dismissed L-1A Case: Heavy Equipment Rental

U.S. Department of Elomeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
identifying data deleted to 
Washington, DC 20529 
prevent clearly unwarranted 
invasion of personal privacy , U. S. Citizenship and Immigration 
Services 
File: WAC 05 030 5 1726 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
,-Robert e' P. Wiemann, 
0 
dministrative Appeals Office 
WAC 05 030 51726 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner is a Califomia limited liability company engaged in heavy equipment 
rental. The petitioner claims to be a branch office of, located in Hamilton, New Zealand. The 
petitioner seeks to employ the beneficiary as its market researchbudget manager for a two-year period. 
The director denied the petition concluding that the petitioner did not establish: (1) that the beneficiary has 
been employed by the foreign entity in a primarily managerial or executive capacity; or (2) that the 
beneficiary will be employed by the U.S. entity in a primarily managerial or executive capacity. 
 . 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
mischaracterized the nature of the beneficiary's duties with the foreign and U.S. entities and contends that the 
beneficiary has been and would be performing primarily managerial duties as well as supervising managerial 
or supervisory employees. Counsel submits a brief in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United, 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affil*ate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8. C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petihoner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this sect~on. 
I (ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himiher to perform the intended 
WAC 05 030 51726 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first issue in the present matter is whether the petitioner established that the beneficiary will be employed 
by the United States entity in a primarily managerial or executive capacity. The petitioner does not contend 
that the beneficiary will be employed in an executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
 L, 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
The nonirnrnigrant petition was fi led.on November 12, 2004. In a letter dated October 9, 2004, the petitioner 
stated that the beneficiary would perform the following duties in his proposed role as Market ResearchIBudget 
Manager: 
He will be responsible for analyzing the current and past budgets of the California Branch and 
preparing and analyzing budget requests as well as identifying opportunities in the area of 
market research and development for new locations and business sales and rental for retail and 
wholesale of our machinery. He will also develop and investigate marketing strateges for 
expansion of our California branch as well as expansion in other parts of the United States. 
The petitioner stated on Form 1-129 that it currently has 19 employees and submitted an organizational chart for 
the U.S. entity. The chart depicts a general managerlvice presidentloperations manager over four departments 
headed by a dispatch manager, an office manager, a sales manager and a service manager, each of whom 
supervises support staff including drivers, a mechanic, a foreman, and shop .and office assistants. The chart 
WAC 05 030 5 1726 
Page 4 
identifies a total of sixteen employees, and included an attachment with brief job descriptions for each position. 
The chart did not identify the beneficiary's proposed position. 
On November 22, 2004, the director requested additional evidence to establish that the beneficiary will be 
employed in a managerial or executive capacity, including: (1) a copy of the U.S. company's organizational chart 
clearly identifying the beneficiary's proposed position and listing all employees under the beneficiary's 
supervision by name and job title; (2) a bnef ,description of the job duties, educational level, and annual 
salaries/wages for all employees utider the beneficiary's supervision; and (3) evidence that the beneficiary will 
supervise and control the work of supervisory, professional or managerial employees, or manage an essential 
function within the organization, or a department or subdivision of the organization. 
In a response dated December 1,2004, counsel for the petitioner provided the following expanded job description 
for the beneficiary's proposed role in the United States: 
[The beneficiary] will manage and oversee all sales~marke'tin~ and budgeting activities of the US 
branch including developing, directing, controlling sales staff and all sales programs. Thu 
includes hiring and firing capability for all employees worhng under [the beneficiary]. He will 
oversee sales distribution, the setting of goals and quotas for sales personnel. Will be responsible 
for analyzing sales statistics and formulating long and short term policies. Will oversee the 
development of sales campaigns and analyze market conditions in order to determine customer 
needa and preferences. 
[The beneficiary] will also focus on assessing and evaluating Southern 'California's (and 
neighboring states) construction industry for appropriate gi-owth and expansion strategies. The 
objectives of this being to identify: A) expansion opportunities in current market locations B) 
appropriate and profitable addition to the current fleet (growth) C) expansion of ground engaging 
attachments D) possible new product lines E) geographic expansion for strategcally placed 
satellite yards. 
[The beneficiary] will also be responsible for establishing a marketing strategy and streamlining 
marketing activities to increase market awareness in established markets and make plans for 
market entry strateges in new markets. He will also spend an appropriate amount of time on 
reviewing budgets and financial reports on a monthly basis in order to ensure that budget 
objectives are being met and to streamline the operation to reach its optimum profit and growth. 
Because of [the beneficiary's] extensive experience with the parent company which parallels ths 
position he is being transferred to ensure that the same company standards are used in the 
saleslmarketing and budgeting approach as have been and are used by the parent company. . . . 
As can be seen fi-om the above information, [the beneficiary] as executive 
Marketing/sales/budget manager has an assignment withn branch in whch he manages a 
department as well as supervises and controls the work of other supervisory employees. He has 
the authority to hire and fire those that are underneath him on the organizational chart as well as 
exercises discretion over the day to day activities over which he has authority. . . . 
WAC 05 030 5 1726 
Page 5 
The petitioner submitted a reused organizational chart for the U.S. entlty whch includes the beneficiary's 
position of market researchhudget manager over the sales manager and sales staff, who are now identified as 
"regional sales managers." The remainder of the organizational chart is essentially unchanged. Counsel noted in 
her letter that the sales manager, who receives an annual salary of $85,000, supervises the two sales personnel, 
lialses with the dispatch manager, and will report to the beneficiary. Counsel indicated that the "regonal sales 
managers" are responsible for sales wthin their asslgned geographic area and receive salanes between $40,000 
and $60,000 "according to expenence.'' 
The dlrector denied the pebbon concluding that the petiboner had failed to establish that the beneficiary would be 
employed by the U.S. entlty m a managerial or executive capacity. The director observed that although the 
beneficiary would have three employees under his supervlslon, none of them would be performing managenal or 
professional duties. The director further found that "duties such as developing a market strategy and streamlining 
marketing activities [are] tasks necessary to provide a service or produce a product." The director determined that 
the beneficiary would at most be a first-line supervisor and found that his daily activities would not be primarily 
managerial or executive in nature. Finally, the director determined that the U.S. entity does not have the 
"organizational complexity" to support the beneficiary in a managerial position. 
On appeal, counsel for the petitioner asserts that the director erred by determining that the beneficiary must 
supervise professionals in order to be considered a manager for purposes of this vlsa classification. Counsel 
asserts that the director incorrectly determined that the beneficiary would not supervise managenal personnel and 
emphasizes that all three of the beneficiary's proposed subordinates are managers. Finally, counsel emphasizes 
that the beneficiary is being transferred to the United States to oversee marketing, sales and budgeting activibes 
associated with the petitioner's expansion. Counsel asserts that the economic value and importance of these 
activities should be considered when determining whether the beneficiary will be employed in a managerial 
capacity. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary will 
be employed by the U.S. entity in a primarily managerial capacity. When examining the executive or managerial 
capacity of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 
C.F.R. fj 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. 
The initial job description submitted by the petitioner was brief and laclung in detail, and failed to establish that 
the beneficiary would be performing managerial duties in the United States. The AAO notes that the focus of the 
initial job descnption was clearly on the beneficiary's responsibility for analyzing budgetary matters and 
preparing and analyzing budgetary requests, as well as performing market research and identifying new locations 
for the expansion of the petitioner's operations. Such duties suggested that the beneficiary would perform duties 
simlar to that of a budget analyst and market research analyst, and would likely hold a specialized role with 
, 
 responsibility for supporting and malung recommendations to management on budgeting and marketing matters. 
An employee who '$rimarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
WAC 05 030 5 1726 
Page 6 
f 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int 'I., 19 I&N Dec. 593,604 (Comm. 1988). 
Accordingly, the initial job descnption did not establish that the beneficiary would be employed in a managerial 
capacity, other than in position btle. Notably, there was no reference in the initial job description to the 
beneficiary's role in managng the entire sales organization of the U.S. company, developing marketing strateges 
or short- and long-term policies, or having the authority to hire and fire employees. 
In its response to the director's request for further evidence, the petitioner expanded the beneficiary's duties to 
include sales management and supervisory duties, hiring and finng authority over subordinate employees, 
formulating short-term and long-term policies, and establishing a marketing strategy. At the same time, the 
petitioner reduced the beneficiary's role in budgeting activities to spending "an appropnate amount of time 
reviewing budgets. . . on a monthly basis." In sum, the initlal descnption appeared to have the beneficiary 
performing specialized budget analysis and market research tasks, while the second iteration of the job has the 
beneficlary instilled with authonty to manage essentially all marketing and sales functions undertaken by the 
U.S. company. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 103.2(b)(8). When responding to a request for evidence, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or its associated job responsibilities. The petitioner must 
establish that the position offered to the beneficiary when the petition was filed-merits classification as a 
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248,249 (Reg. Comm. 1978). If 
significant changes are made to the in~tial request for approval, the petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. The information provided by 
the petitioner in its response to the director's request for further evidence did not clarify or provide more 
specificity to the original duties of the position, but rather added new generic duties to the job description, and 
appeared to significantly change the beneficiary's level of authority and the scope of his responsibility. 
Such a conclusion is further supported by a review of the petitioner's quarterly wage reports, which show that 
only nine of the petitioner's nineteen current employees earn a salary lower than the $40,000 salary offered to 
the beneficiary. Although the petitioner indicates that the beneficiary will manage all sales staff, the AAO 
notes that the sales manager receives a salary in excess of $80,000, while the "regional sales managers7' also 
receive annual salaries between $45,000 and $60,000.  heref fore, it does not appear that the beneficiary will 
be compensated at a level consistent with that of the petitioner's managerial employees. Doubt cast on any 
aspect of the petitioner's proof may undermine the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
WAC 05 030 5 1726 
Page 7 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative. In the present matter, the totality of the record does not 
persuasively establish that the beneficiary will actually manage the sales manager and regional sales managers 
as claimed by the petitioner. However, the AAO concurs with counsel that one of these employees, the sales 
manager, is employed in at least a supervisory capacity, and further concurs that it is not necessary for the 
petitioner to establish that the beneficiary will supervise professionals, as suggested by the director. 
Finally, even if the AAO considers the job description submitted in response to the director's request for 
evidence, the later description includes a number of non-qualifying duties, and fails to specify how much time 
the beneficiary would allocate to them. For example, the petitioner indicated that the beneficiary will analyze 
sales statistics, analyze market conditions to determine customer needs and preferences, and assess and 
evaluate Southern California's construction industry. These duties suggest that the beneficiary would be 
responsible for routine market research and analysis tasks, rather than managing or overseeing the 
performance of these tasks by subordinate personnel, particularly since the petitioner does not currently 
employ any marketing staff. The petitioner's description of the beneficiary's job duties does not establish what 
proportion of the beneficiary's duties is managerial in nature, and what proportion is actually non-managerial. 
See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). However, given the petitioner's initial 
' job descnpt~on, which, as discussed above, was limited to the beneficiary's performance bf budget analysis 
and market research tasks, it is reasonable to conclude that these non-qualifymg duties would be among the 
beneficiary's pnmary duties. Whether the beneficiary is a managerial or executive employee turns on whether 
the petitioner has sustained its burden of proving that his duties are "primarily" managerial or executive. See 
sections 101(a)(44)(A) and (B) of the Act. The word "primarily" is defined as "at first," 
"principally," or "chiefly." Webster's 11 New College Dictionary 877 (2001). Where an individual is 
"principally" or "chiefly" performing the tasks necessary to produce a product or to provide a service, that 
individual cannot also be "priricipally" or "chiefly" performing managerial or executive duties. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive position in the United States. For this reason, the appeal will be 
dismissed. 
The second issue in this matter is whether the petitioner established that the beneficiary has been employed by 
the foreign entity in a primarily managerial or executive capacity. 
In an October 9, 2004 letter submitted in support of the petition, the president of the foreign entity stated that 
the beneficiary has been employed with the New Zealand parent company since September 2001 in the 
capacity of market research and budget manager, and had been "employed by the company in various 
positions begin [sic] trained and groomed" for the position. 
On November 22,2004, the director issued a request for additional evidence, in part instructing the petitioner , 
to submit: (1) a more detailed description of the beneficiary's duties, including the beneficiary's specific 
duties and the percentage of time the beneficiaj spends on each of the listed duties; and (2) a copy of the 
foreign company's organizational chart identifying the beneficiary's position and all employees under the 
WAC 05 030 5 1726 
Page 8 
beneficiary's supervision by name and job title; and (3) brief descriptions of the job duties, educational level 
and annual salaries for all employees under the beneficiary's supervision. 
In a response dated December 1, 2004, counsel for the petitioner provided the following description of the 
beneficiary's employment w~th the foreign entity: 
As Marketing Manager [the beneficiary] performed the following duties: 
1) Marketing Strategy and development - [the beneficiary] spent 25% of his time in this 
area. He managed and oversaw all sales and marketing activities including developing, 
marketing strategy, marketing mix, directing and controlling sales staff and sales 
programs to streamline marketing functions. Provided suggestions and alternatives to 
general manager. 1 
2) Research and Analysis - [the beneficiary] spent 25% of his time in this area. He analyzed 
internal and external sales statistics to formulate long and short term, projections, goals 
and sales policies talung into account budgeting issues and concerns. He analyzed market 
conditions to determine customers needs, expectation and performance. He created sales 
reports for upper management as well as provided information to assist in decision 
making. He analyzed feedback for future alterations. 
3) Goals and Performance - [the beneficiary] spent %15 [sic] of his time setting goals and 
quotas for individual sales personnel, tracking sales performances. He provided direction 
to sales personnel and branch managers. He ensured individual direct sellers project and 
emphasized desired messages and values to customers. 
4)' Advertising and, Promotion - [the beneficiary] spent %35 [sic] of his time in the 
- development and implementation of advertising and promotional activities. He developed 
outlines and briefs for advertisements and' events, oversaw marketing assistant in the 
design and formatting of advertisements and promotional items. He also oversaw the 
organizing of promotion events such as branch openings, sporting events to ensure that 
the desired image and messages were projected to existing and potential customers. 
The petitioner submitted an organizational chart for the foreign entity which depicts the beneficiary as 
marketing manager, reporting to the "." Under the beneficiary's supervision are a "Sales 
ManagerJRep," a marketing assistant, and two sales representatives. Counsel for the petitioner provided the 
following job descriptions for the beneficiary's subordinates: 
1) Sales manager: this individual is directly in charge of sales representatives. He provides 
direction to sales representatives. Provides information to assistant marketing manager. 
Assigns tasks to marketing assistant. Provides reports and market trends and behavior as 
well oversees branch manager and sales representatives pricing and performance. Is 
directly answerable to and works under the Marketing Manager. 
WAC 05 030 5 1726 
Page 9 
2) Marketing Assistant: Performs tasks and duties for Marketing Manager and Sales 
Manager. Performs data collection, basic analysis, formatting and data base collection. 
3) Sales Representatives: is on the road selling in the field. Performs customer relations. 
Works along ,side branch manager. Works with new or existing customers. Has 
designated regions. Also responsible for providing market feedback to sales manager. 
On December 14, 2004, the director denied the petition, concluding that the petitioner did not establish that 
the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. The 
director noted that the beneficiary's job description included several non-qualifying duties and concluded that 
the position description failed to establish that his position with the foreign entity is in a primarily managerial 
or executive capacity. The director further acknowledged the beneficiary's subordinates with the foreign 
entity, but determined that none of them are performing managerial or professional duties. 
On appeal, counsel for, the petitioner contends that the director mischaracterized the nature of the 
beneficiary's duties with the foreign entity as non-qualifying and asserts that "the beneficiary's core activities 
. . . are much more related to the managerial activities of the business as opposed to the operational activities." 
Counsel acknowledges (hat the beneficiary spent some time analyzing, developing and implementing 
marketing and advertising strategies, but asserts that the sales staff and marketing assistant "perform the 
hands on duties even of research, marketing activities, etc., which the beneficiary managed and oversaw and 
reported." 
Counsel further asserts that' the director erred by finding that the beneficiary doesnot supervise professional 
or managerial personnel, noting that the beneficiary need not supervise professionals in order to qualify for 
the benefit sought. Counsel emphasizes that one of the beneficiary's subordinates, the sales manager, is 
employed at the managerial or supervisory level. 
' 
Upon reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been 
employed in a managerial-capacity. When examining the executive or managerial capacity of the beneficiary, 
the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The 
petitioner's description of the job duties must clearly describe the duties to be performed by the beneficiary 
and. indicate whether such duties are either in an executive or manageria1,capacity. Id. 
As a preliminary matter, the AAO notes that the petitioner initially indicated that the beneficiary's role with 
the foreign entity is as a "Market Research and Budget Manager" and in response to the director's request for 
' 
evidence,identified the beneficiary as the foreign entity's "Marketing Manager." It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). The petitioner 
did not initially'submit an organizational chart for the foreign entity, nor did it provide a job description for 
the beneficiary's current position. The foreign entity's president, however, implied in his October 9, 2004 
letter that the position is similar to that offered in the United States, which was described as including budget 
analysis and market research duties. 
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Page 10 
In response to the director's request for evidence, the petitioner submitted a description of the beneficiary's 
duties accompanied by a new job title and an organizational chart. Although the beneficiary's job title was 
init~ally identified as "market research and budget manager," the job description ultimately provided in 
response to the director's request for evidence makes no reference to any duties related to the company's 
budget activities. Considered with the unexplained change in the beneficiary's job title, the response to the 
request for evidence suggests an attempt by the petitioner to conform the beneficiary's job description to the 
requirements for this visa classification. Again, when responding to a request for evidence, a petitioner 
cannot offer a new position to the beneficiary, or materially change a position's title, its level of authority 
within the organizational hierarchy, or its associated job responsibilities. Doubt cast on any aspect of the 
petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Nevertheless, it is not possible to determine from the description provided whether the beneficiary's duties are 
primarily managerial duties or whether the duties involve the routine daily tasks associated with sales and 
market research. The position description provided does not sufficiently demonstrate that the beneficiary's 
tasks are the high-level responsibilities that are spec~fied in the definition of managerial capacity. See section 
101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A). 
For example, the petitioner states that the beneficiary devotes 35 percent of his time to "advertising and 
promotion" including developing advertlsements, organizing promotion events and ensuring that the 
company's "desired image and messages7' were projected to existing and potential customers. Although the 
petitloner indicated that the ,marketing assistant would "format" advertising and promotional items, the 
remainder of the advertising and promoting function, including non-qualifying duties associated with the 
function, appears to be the direct responsibility of the beneficiary. The petitioner indicated that the beneficiary 
devotes an additional 25 percent of his time to analyzing sales statistics in support of sales goals, analyzing 
marketing conditions to determine customer needs, creating sales reports and other inforhation for upper 
management, and analyzing customer feedback. Again, the marketing assistant is described as performing 
"basic analysis" and data collection, but has not been shown to relieve the beneficiary from devoting a 
significant portion of his time to non-managerial market research tasks. Overall, these responsibilities, which 
account for 60 percent of the beneficiary's time, have not been shown to be managerial in nature. An 
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 10 1 (a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int 'l., 19 I&N Dec. 593,604 (Comm. 1988). 
With respect to the beneficiary's supervisory authority, the AAO notes that the petitioner indicated that the 
beneficiary devotes 15 percent of his time to providing direction to sales personnel and branch managers, 
including responsibility for setting goals and quotas and tracking sales performance. The sales manager is also 
described as performing essentially the same supervisory duties, as well as apparently sharing responsibility 
' with the beneficiary for assigning tasks to the marketing assistant, while receiving a higher salary than the 
beneficiary. The petitioner's organizational chart doesn't depict either the beneficiary or the sales manager as 
having supervisory authority over the company's branch managers, as claimed by the petitioner. Again, the 
petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and objective 
WAC 05 030 5 1726 
Page 11 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner has presented a confusing 
account of the reporting structure within its sales and marketing function that does not persuasively establish 
'that. the beneficiary devotes a significant portion of his time to supervising managerial, professional or 
supervisory positions within the foreign organization. See 5 101(a)(44)(A)(ii) of the Act. 
Thepetitioner indicated that the remaining 25 percent of the beneficiary's time is allocated to "marketing 
strategy and development" including managing and oversight of "all sales and marketing activities" including 
"developing marketing strategy, marketing mix," "directing and. controlling sales programs to streamline 
marketing functions" and providing suggestions and alternatives to the general manager. The petitioner failed 
to define the beneficiary's marketing strategies, identify the specific tasks the beneficiary performs to 
"oversee" marketing and sales activities, indicate how the beneficiary controls the "streamlining of marketing 
functions," or explain the general manager's role with respect to the marketing function. Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations 
require a detailed description of.the beneficiary's daily job duties., The petitioner has failed to answer a 
critical question in this case: What does the beneficiary primarily do on a daily basis? The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp., 1103, 
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
' 
. 
. ' 
Overall, the inconsistent job titles provided for the beneficiary, the non-qualifying duties included in the job 
description, the apparent overlap in responsibilities between the beneficiary and the sales manager, and the 
lack of specificity in describing the beneficiary's responsibilities overall precludes a finding that the 
beneficiary is currently employed in a primarily managerial position with the foreign entity. For this reason, 
: the appeal will be dismissed. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for denial. In visa pehtion proceedings, the burden of proving eligbility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, the 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.