dismissed L-1A Case: Historic Newspaper Business

U.s. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 0322054781 Office: VERMONT SERVICE CENTER Date: OCT 02 2001
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § I I01(a)(l5)(L)
IN 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.
~~
~obert~a~n, Chief
Administrative Appeals Office
www.uscis.gov
EAC 03 220 54781
Page 2
DISCUSSION: The Director, Vermont 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 visa petition seeking to employ the beneficiary as its general manager
as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § llOl(a)(15XL). The petitioner is a corporation organized under the laws
of the State of Delaware and is allegedly engaged in the historic newspaper business.
The director denied the petition. After concluding that the beneficiary was coming to the United States to
open or to be employed at a "new office," the director detennined that petitioner did not establish (1) that the
intended United States operation, within one year of the approval of the petition, will support an executive or
managerial position; or (2) that the beneficiary had been employed abroad in a primarily executive or
managerial position.l
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 to the petitioner asserts that the director
erred and that the beneficiary's duties have been, and will be, primarily those of an executive or manager. In
support, counsel submits a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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 seekto enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.
(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 Jhe three years preceding the filing of
the petition.
lit is noted that, while the director did not specifically indicate that she was applying the "new office" criteria,
this is implied by her citation to the regulations applicable to "new offices" at 8 C.F.R. § 214.2(l)(3)(v) and
her determination that the petition is a "new office" as defined at 8 C.F.R. § 214.2(1XI)(ii)(F).
EAC 0322054781
Page 3
(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 him/her to perfonn the intended
services in the United States; however, the work in the United States need not be the
same work which the alien perfonned abroad.
The regulation at 8 C.F.R. § 214.2(1X3Xv)states that if the petition indicates that the beneficiary is coming to the
United States as a manager or executive to open or to be employed in a "new office" in the United States, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position as
defined in paragraphs (I)(1)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to connnence doing business in the United States; and
(3) The organizational structure of the foreign entity.
The regulation at 8 C.F.R. § 214.2(1)(I)(ii)(F) defines a "new office" as:
[A]n organization which has been doing business in the United States through a parent,
branch, affiliate, or subsidiary for less then one year.
Moreover, the regulation at 8 C.F.R. § 214.2(1)(1)(ii)(H) defines "doing business" as:
[T]he regular, systematic, and continuous provision of goods and/or services by a
qualifying organization and does not include the mere presence of an agent or office of
the qualifying organization in the United States and abroad.
A threshold issue in this matter is whether the director correctly treated the petitioner as a "new office" in
adjudicating the petition.
EAC 0322054781
Page 4
In the Form 1-129 petition, the petitioner asserts on page 6 that the beneficiary is not coriring to the United States
to open a "new office." The petitioner's supporting documentation includes evidence that the foreign entitY
acquired the stock of the petitioner on January 1, 2002; that the petitioner has employed approximately nine
people; that the petitioner has been engaged in business both before and after the foreign entity's acquisition of its
stock; and that the petitioner began leasing space for the business in New Jersey on June 1,2002. The instant
petition was filed on July 29, 2003.
Despite this evidence, the director concluded that, because the record did not establish that the petitioner has been
doing business for at least one year, it should be treated as a "new office" and the more lenient criteria set forth in
8 C.F.R. § 214.2(l)(3)(v) should be applied. The AAO disagrees. As outlined above, the record clearly
establishes that the petitioner is an ongoing business concern which had been engaged in business for more than
one year before the filing of the petition. Furthermore, the record indicates that the foreign entity has owned and
operated the petitioner since January 2002, over 18 months before the instant petition was filed.
Therefore, the AAO concludes that the petitioner does not meet the definition of a "new office" in 8 C.F.R. §
214.2(l)(1)(ii)(F), because the record establishes that it has been "doing business" in a regular, systematic, and
continuous fashion for over one year before the filing of the instant petition. Thus, the director's application
of the "new office" criteria in 8 C.F.R. § 2l4.2(l)(3)(v)(C) was in error, and, to the extent the director denied
the petition because the petitioner failed to establish that the intended United States operation will support an
executive or managerial position within one year, the decision is hereby withdrawn. However, for those
reasons set forth below, the petitioner has nevertheless failed to establish its eligibility for the benefit sought,
and the appeal will be dismissed.
In view of the above, the primary issue in the present matter is whether the petitioner has established that the
beneficiary has at least one continuous year of full-time employment abroad in a position that was
managerial, executive, or involved specialized knowledge. 2
Section lOl(a)(44)(A) of the Act, 8 U.S.C. § 110l(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
2While the decision does not clearly explain whether the director applied 8 C.F.R. § 214.2(l)(3)(iv) or 8
C.F.R. § 214.2(l)(3)(v)(B) in denying the petition, it is noted that 8 C.F.R. § 214.2(l)(3)(iv) should be applied
in this matter because the petitioner is not a "new office" as defined by the regulations. Therefore, to the
extent the director relied on 8 C.F.R. § 214.2(l)(3)(v)(B) in denying the petition, that reasoning is hereby
withdrawn, and the AAO shall properly apply 8 C.F.R. § 214.2(l)(3)(iv).
EAC 03 220 54781
Page 5
hire and fire or recommend those as well as other personnel actions (such as
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.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether it is claiming that the beneficiary was primarily
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. A petitioner may not claim that a beneficiary was employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets
each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
The petitioner described the beneficiary's job duties abroad in the Form 1-129as follows:
Management of the day(-]to(-]day operations of the (foreign organization]. Supervision of
personnel, contracts, marketing, and financial aspects of the company.
On August 8, 2003, the director requested additional evidence. The director requested, inter alia, an
organizational chart for the foreign employer and more detailed job descriptions for the beneficiary and his
subordinate workers.
In response, the petitioner submitted an organizational chart for the foreign entity showing the beneficiary
reporting to a vice president and supervising six employees. The beneficiary is portrayed as supervising three
"office team" employees and three "fulfillment warehouse" employees. The petitioner also submitted brief
job descriptions for the "office team" employees (described as "office team/customer representatives" in the
EAC 03 220 54781
Page 6
job description) and the "fulfillment warehouse" employees. The "office team/customer representatives" are
described as processing customer orders. The "fulfillment warehouse" employees are described as working
directly with the foreign entity's inventory of newspapers.
On November 3, 2003, the director denied the petition. The director concluded, inter alia, that the petitioner
failed to establish that the beneficiary had been employed abroad in a primarily executive or managerial
position.
On appeal, the petitioner asserts that the beneficiary's duties were primarily those of an executive or manager.
Upon review, the petitioner's assertions are not persuasive.
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. §§ 214.2(l)(3)(ii) and (iv). The petitioner's description
of the job duties must clearly describe the duties performed by the beneficiary and indicate whether such
duties were either in an executive or managerial capacity. Id. The petitioner must specifically state whether
the beneficiary was primarily employed in a managerial or executive capacity. As explained above, a
petitioner cannot claim that some of the duties of the position entailed executive responsibilities, while other
duties were managerial. A petitioner may not claim that a beneficiary has been employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary acted in
a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demo!1stratewhat the beneficiary did on a day-to-day basis.
The petitioner has described the beneficiary as managing the day-to-day operations of the foreign entity and
as supervising "personnel, contracts, marketing, and [the] financial aspects of the company." However, the
petitioner does not explain how, exactly, the beneficiary "supervised" contracts, marketing, and financial
matters when the organizational chart indicates that he supervised only warehouse workers and customer
services representatives. The fact that the petitioner has given the beneficiary a managerial title and has
prepared a vague job description which includes lofty duties does not establish that the beneficiary was
actually performing managerial duties. Specifics are clearly an important indication of whether a
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y.
1989), a!f'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972).
Likewise, despite being specifically requested by the director in the Request for Evidence, the petitioner did
not provide a breakdown of how much time the beneficiary devoted to the duties ascribed to him. Failure to
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition.
8 C.F.R. § I03.2(b)(l4). This is particularly important in this matter because most of the duties listed by the
petitioner appear to be non-qualifying administrative or operational tasks which do not rise to the level of
being managerial or executive in nature. For example, the petitioner states that the beneficiary supervised
contracts, marketing, and financial matters. However, such duties constitute administrative or operational
EAC 03 220 54781
Page 7
tasks when the tasks inherent in these duties are performed by the beneficiary. As the organizational chart
and job descriptions for the subordinate employees fail to identify any employees who relieved the
beneficiary of the need to perform the non-qualifying tasks inherent in marketing, contracting, and financial
matters, it must be concluded that he performed these tasks. As the petitioner has not established how much
time the beneficiary devoted to such non-qualifying tasks, it cannot be confirmed that he was "primarily"
employed as a manager. 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 101(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 International, 19 I&N Dec. 593, 604 (Comm.
1988).
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the organizational chart and job descriptions for the subordinate staff members, the beneficiary
appears to have supervised a staff of six employees. However, the petitioner has not established that the six
employees were primarily engaged in performing supervisory or managerial duties. To the contrary, it
appears that these employees were performing the tasks necessary to produce a product or to provide a
service, e.g., warehousing tasks, inventory repair, and processing customer orders. In view of the above, the
beneficiary would appear to have been primarily a first-line supervisor of non-professional employees, the
provider of actual services, or a combination of both. A managerial employee must have authority over day­
to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees
are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N
Dec. at 604. Moreover, as the petitioner did not establish the skill level or educational background required to
perform the duties of the subordinate positions, the petitioner has not established that the beneficiary managed
professional employees? Therefore, the petitioner has not established that the beneficiary was employed
primarily in a managerial capacity.4
3In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.c. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.e. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
4While the petitioner has not argued that the beneficiary managed an essential function of the organization,
the record nevertheless would not support this position even if taken. The term "function manager" applies
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is
primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e.• identify the
EAC 0322054781
Page 8
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person1selevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section IOI(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary acted primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis.
Moreover, as explained above, the beneficiary appears to have been primarily employed as a first-line
supervisor and/or was performing tasks necessary to produce a product or to provide a service. Finally, as the
beneficiary appears to have reported directly to a vice president, the record is not persuasive in establishing
that the beneficiary had the necessary authority to direct the organization. Therefore, the petitioner has not
established that the beneficiary was employed primarily in an executive capacity.s
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct business
in a regular and continuous manner. See, e.g., Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties were managerial functions, if any,
and what proportion were non-managerial. Also, as explained above, the record indicates that the beneficiary
was primarily a first-line supervisor of non-professional employees and/or was engaged in performing non­
qualifying operational or administrative tasks. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties were managerial,
nor can it deduce whether the beneficiary was primarily performing the duties of a function manager. See
IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
SWhile not raised by the petitioner, it is noted that the record does not establish that the beneficiary had been
employed abroad in a position involving specialized knowledge. See 8 C.F.R. § 214.2(l)(3)(iv). The
petitioner has failed to identify any specialized or advanced body of knowledge, which would distinguish the
beneficiary's role from that of other similarly experienced employees employed by the organization or in the
industry at large.
EAC 03 220 54781
Page 9
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary was primarily performing
managerial or executive duties abroad, and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary will be employed
in the United States in a primarily managerial or executive position as required by 8 C.F.R. § 2l4.2(1)(3)(iv).6
The petitioner described the beneficiary's proposed job duties in the United States in a letter dated October 16,
2003 submitted in response to the director's Request for Evidence. The beneficiary's duties as general
manager are described as follows:
• Management of 10 staff in 3 separate departments.
• Promotion and sales development through media, catalogs advertising and our
websites.
• Managing the order processing and instigating the streamlining of procedures
through electronic data.
• Adding new products to our range such as the Classic Book and First Editions
Millennium Collection which includes 19th century papers from across America.
• Negotiating and developing new partnerships with major newspaper titles and web
companies.
• Purchasing substantial runs of newspapers from all over the United States and other
countries.
• Staff training and the introduction of new procedures.
• Purchasing and installing new equipment in our manufacturing department.
• Negotiating purchasing and introducing new raw materials for our numerous
presentations.
• Cash control, budgets, disbursements, receipts, banking, projections, and credit
control.
• Liaising with our UK operations with all aspects of support.
The petitioner also submitted an organizational chart for the United States operation. The beneficiary is
portrayed as directly supervising an accounts manager, a customer service supervisor, and a fulfillment
warehouse supervisor. The customer services supervisor is, in turn, portrayed as supervising three customer
service representatives and the fulfillment warehouse manager is, in turn, portrayed as supervising two
warehouse workers.
61t is noted that the director considered the beneficiary's proposed duties in the United States in denying the
petition. However, as explained above, it appears that the director considered these duties in the context of
~pplying the "new office" criteria in 8 C.F.R. § 214.2(J)(3)(v)(C), which requires the petitioner to establish
that it will support an executive or managerial employee within one year. As the AAO has withdrawn the
director's decision to the extent that she applied the "new office" criteria, the AAO will instead consider the
beneficiary's proposed duties in the United States in the context of applying 8 C.F.R. § 214.2(l)(3)(iv). This
regulation, which applies to fully formed organizations, requires the petitioner to establish that the beneficiary
will perform primarily executive or managerial duties immediately upon his arrival in the United States.
EAC 0322054781
Page 10
Finally, the petitioner submitted job descriptions for the customer service representative and the fulfillment
warehouse manager. These job descriptions indicate that these employees spend less than 25% of their time
supervising subordinate workers. The rest of the time both the customer service supervisor and the
fulfillment warehouse supervisor are described as performing the tasks necessary to produce a product or to
provide a service.
Upon review, the petitioner has failed to establish that the beneficiary will be employed in a primarily
executive or managerial capacity.
As explained above, 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. § 214.2(1)(3)(ii). In this matter, the
petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act in a
"managerial" capacity. In support of its petition, the petitioner has again provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-to-day
basis. The petitioner has described the beneficiary as introducing "new procedures;" purchasing and installing
"new equipment in our manufacturing department;" and engaging in "cash control, budgets, disbursements,
receipts, banking, projections, and credit control." However, the petitioner does not describe what new
procedures will be introduced; what new equipment will be purchased and whether the beneficiary will be
installing it; or what, exactly, the beneficiary will do in performing the various financial tasks ascribed to him.
Once again, the fact that the petitioner has given the beneficiary a managerial title and has prepared a vague
job description which includes inflated job duties does not establish that the beneficiary will actually perform
managerial duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, a./f'd, 905 F.2d 41. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190.
Likewise, many of the duties listed by the petitioner appear to be non-qualifying administrative or operational
tasks which do not rise to the level of being managerial or executive in nature. For example, the petitioner
states that the beneficiary will engage in marketing and sales, purchasing, product development, staff training,
and various financial tasks. However, such duties constitute administrative or operational tasks when the
tasks inherent in these duties are performed by the beneficiary. As the organizational chart and job
descriptions for the subordinate employees fail to identify any employees who will relieve the beneficiary of
the need to perform the non-qualifying tasks inherent in marketing, purchasing, trailling, product
development, and financial matters, it must be concluded that he will perform these tasks. While the
petitioner asserts that it employs an "accounts manager," the petitioner did not specifically describe this
employee and, thus, it cannot be confirmed that she will relieve the beneficiary of the need to perform non­
qualifying tasks related to financial matters. Therefore, as the petitioner has not established how much time
the beneficiary will devote to non-qualifying tasks, it cannot be confirmed that he will be "primarily"
employed as a manager. 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 1Ol(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial
or executive duties); see also Matter ofChurch Scientology International, 19 I&N Dec. at 604.
EAC 0322054781
Page 11
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart and job descriptions for the subordinate staff members, it appears that
the beneficiary will directly supervise three supervisory employees and, indirectly, approximately five
additional workers. However, the petitioner has not established that the three allegedly supervisory
employees will be primarily engaged in performing supervisory or managerial duties. To the contrary, it
appears that these employees spend less than 25% of their time supervising subordinate workers. The job
descriptions indicate that these employees spend most of their time performing the tasks necessary to produce
a product or to provide a service, e.g., warehousing tasks and processing customer orders. In view of the
above, it appears that the beneficiary will primarily be a first-line supervisor of non-professional employees,
the provider of actual services, or a combination of both. A managerial employee must have authority over
day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised
employees are professionals. 101(a)(44)(A)(iv) of the Att; see also Matter of Church Scientology
International, 19 I&N Dec. at 604. Moreover, as the petitioner did not establish the skill level or educational
background required to perform the duties of the.subordinate positions, the petitioner has not established that
the beneficiary will manage professional employees. Therefore, the petitioner has not established that the
beneficiary will be employed primarily in a managerial capacity.7
Similarly, and for the same reasons indicated above, the petitioner has failed to establish that the beneficiary
will act in an "executive" capacity. The job description provided for the beneficiary is so vague that the AAO
cannot deduce what the beneficiary will do on a day-to-day basis. Moreover, as explained above, it appears
that the beneficiary will be primarily employed as a frrst-line supervisor and/or will perform the tasks
necessary to produce a product or to provide a service. Finally, as it appears that the beneficiary will report
directly to the president in the United Kingdom, the record is not persuasiv~ in establishing that the
beneficiary will have the necessary authority to direct the organization. Therefore, the petitioner has not
established that the·beneficiary will be employed primarily in an executive capacity.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
7Whilethe petitioner has not argued that the beneficiary will manage an essential function of the organization,
the record nevertheless would not support this position even if taken. The petitioner's vague job description
fails to document what proportion of the beneficiary's duties will be managerial, if any, and what proportion
will be non-managerial. Also, as explained above, the record indicates that the beneficiary will primarily be a
first-line supervisor of non-professional employees and/or will engaged in performing non-qualifying
operational or administrative tasks. Absent a clear and credible breakdown of the time to be spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be
managerial, nor can it deduce whether the beneficiary will primarily be performing the duties of a function
manager. See IKEA Us, Inc. v. U.S. Dept. ofJustice, 48 F. Supp. 2d at 24.
EAC 0322054781
Page 12
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.