dismissed L-1A Case: Import And Marketing

identifying data deleted to 
prev~nt clearly unwarranted 
InvasIOn of personal privacy 
PUBUCCOpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: MAY 1 7 2011 Office: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(IS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § IIOl(a)(IS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § I03.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 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 a nonimmigrant 
intracompany transferee pursuant to section 101 (a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.c. § llOl(a)(l5)(L). The petitioner, a California corporation, is engaged in the import and marketing of 
handbags and related products. It states that it is a subsidiary of Tianjin Eass Group Trading Co. Ltd., located 
in China. The petitioner seeks to employ the beneficiary in the position of president for a period of three 
years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary has been 
employed abroad or will be employed in the United States 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. On appeal, counsel for the petitioner asserts that the director failed to 
consider the totality of the evidence when considering whether the beneficiary would be employed in a 
managerial or executive capacity, erred in concluding that the beneficiary would not supervise managerial or 
professional personnel, and placed undue emphasis on the size of the petitioning entity. Counsel contends 
that the beneficiary will be employed in both an executive capacity and a managerial capacity based on his 
duties and level of authority within the United States entity. 
I. The Law 
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(a)(I5)(L) of the Act. Specifically, a qualitying organization must have employed the 
beneficiary in a qualitying 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 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 qualitying organizations as defined in paragraph (l)(I)(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 qualitying organization within the three years preceding the filing of 
the petition. 
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 himlher 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. 
II. The Issue on Appeal 
The first issue to be addressed is whether the petitioner established that the beneficiary would be employed in 
the United States in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.c. § I 101 (a)(44)(A), defines the tenn "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 
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. § IIOl(a)(44)(B), defines the tenn "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 
Page 4 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 
A. Procedural History 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on February 3, 2009. In a letter 
accompanying the petition, the petitioner stated that the beneficiary will perform the following duties as 
President of the U.S. company, which is engaged in the import and wholesale of handbags: 
(1) Formulating and determining corporate policies and strategies in accordance with general 
directives from parent company; (2) Directing and coordinating company activities to obtain 
optimum efficiency, economy of operations, and maximization of profits; (3) Directing and 
coordinating activities to develop new markets and to explore business opportunities; (4) 
Personnel actions including hiring and dismissing; (5) Reviewing operating, sales reports and 
financial statements to determine business progress; (6) Planning and developing industrial, 
labor and public relations policies. 
The petitioner also submitted a statement from the foreign entity confirming its decision to send the 
beneficiary to serve as the president of the U.S. company for a period of three years. The foreign entity stated 
that the beneficiary'S responsibilities in the United States will include the following: 
He will have broad scope of responsibilities to direct activities such as procurement, 
marketing, warehouse management and quality assurance. He will have plenary power 
regarding the personnel structure and management which include, but not limited to, hire, 
recruit and evaluate job performances. He will also participate in new product/R&D 
activities; coordinate outsourcing accounting service office to insure that the accounting 
issues are appropriately completed, etc. 
In addition, the petitioner stated that the beneficiary's "detailed responsibilities" will include: 
Accounting 
Human Resource (Contracts, Payroll, Benefits, etc.) 
Operations including Logistics (Ocean Freight, Air Freight, Warehousing) 
Purchasing 
Letters of Credit 
Information Technology 
Legal 
Imports, Customs Clearance through Receipt in Warehouse 
I. Directs all activities of the branch company implementing company policies and 
procedures. Activities will consist of procurement, warehouse management, quality 
assurance and consolidations. 
Page 5 
2. Coordinate procurement activities with China headquarters purchasing 
3. Identify and implement cost saving procurement initiatives 
4. Adhere to company established internal controls by insuring accurate and timely 
information is conveyed and reported 
5. Recruit, train and manage personnel 
6. Participate in new productIR&D activities 
7. Support company internal distribution efforts 
8. Compliance with US business regulation/Procedure etc. 
9. Coordinate outsourcing accounting service office to insure that the accounting issues are 
appropriately completed. 
The petitioner submitted an organizational chart indicating that the beneficiary will directly supervise a 
warehouse manager and a sales manager, while the company's other employees include two sales staff and 
one warehouse worker. The petitioner provided evidence of wages paid to all five employees during the 
fourth quarter of 2008, as well as a description of each subordinate position. 
The director issued a request for additional evidence (RFE) on February 5, 2009, in which she instructed the 
petitioner to provide: (1) a more detailed description of the beneficiary's proposed duties, including the 
percentage of time the beneficiary will spend on each specific task; (2) an organizational chart identifying all 
employees by name and position title; and (3) a list of all employees including their names, job duties, 
beginning and end dates of employment, immigration status, educational levels, and source of remuneration. 
In a response dated February 5, 2009, the petitioner re-submitted two of the above job descriptions for the 
beneficiary. The petitioner stated that the company has five full-time employees and expects to hire 
additional staff in the near future. The petitioner also re-submitted the job descriptions previously submitted 
for each subordinate employee. With respect to the beneficiary's employment capacity, the petitioner stated: 
[The beneficiary 1 will be the president of the US Company and will directly supervise two 
Department, 
and Warehouse Department. The Manager of Sales 
has obtained a bachelor degree from University of lllinois, 
USA in business administration. The Manager of the Warehouse Department, 
has obtained a bachelor degree from Tatung Institute of Technology, Taipei, Taiwan. [The 
beneficiary 1 will supervise and control the work of managerial employees as the president of 
the U.S. company. 
On February 14, 2009, the director denied the petition, concluding that the petitioner failed to establish that 
the beneficiary would be employed in the United States in a primarily managerial or executive capacity. In 
denying the petition, the director observed that, based on the job description provided, the beneficiary would 
be performing several non-managerial tasks associated with the day-to-day operations of the company, and it 
could therefore not be determined whether the beneficiary'S actual duties are primarily managerial or 
executive in nature. The director further found that, while the beneficiary would be supervising two 
"department managers," these employees would not be acting primarily as managers or supervisors, and thus 
Page 6 
the petitioner did not establish that the beneficiary will primarily supervise a subordinate staff comprised of 
managerial or supervisory employees. 
On appeal, counsel for the petitioner asserts that the beneficiary will be performing duties that fall within the 
statutory definition of "executive capacity" at section 10 I (a)(44)(B) of the Act. Counsel states: 
The beneficiary will be performing many aspects of the day-to-day operations of the 
business. Procurement and logistics duties are only part of the job functions the beneficiary 
will supervise and direct. Your office has concluded that "a significant amount of the 
beneficiary's proposed duties are comprised of procurement, purchasing, logistics and 
distribution" and has failed to take a totality criteria to look into all the aspects of the 
beneficiary's executive and managerial job duties. 
Counsel emphasizes that the beneficiary is the founder and president of the petitioner's parent company, 
which "has vested the beneficiary ultimate and plenary authority to manage and run the U.S. subsidiary." 
Counsel asserts that the beneficiary's direct subordinates are in fact "managerial or professional in nature." 
Counsel notes that there are no employees under the warehouse manager as of March 12, 2009, but states that 
new employees will be recruited. Counsel stresses that the sales manager has a bachelor's degree in business 
administration, and supervises the salespersons to implement sales and marketing plans. Counsel contends 
that the petitioner is "a relatively new establishment," and that "it is quite obvious that the company is 
expected to hire more employees as the business expands." 
Finally, counsel suggests that the director placed undue emphasis on the size of the organization and the 
number of staff managed, without considering the reasonable needs of the organization and its current stage of 
development. Counsel asserts that, although the number of employees is relatively small, the beneficiary will 
be managing essential functions and overseeing professionals, thus meeting the criteria for managerial 
capacity pursuant to section 10 I (a)(44)(A) of the Act. 
B. Discussion 
Upon review, and for the reasons discussed below the petitioner has not established that the beneficiary will 
be employed in the United States in a primarily managerial or executive 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. § 2l4.2(I)(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 
in either an executive or a managerial capacity. Id. 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must show that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World. Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30,1991). 
Page 7 
The fact that the beneficiary manages or directs a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
sections 101(a)(l5)(L) of the Act. By statute, eligibility for this classification requires that the duties of a 
position be "primarily" of an executive or managerial nature. Sections 101(A)(44)(A) and (B) of the Act, 8 
U.s.c. § 1101(a)(44). Pursuant to the strict statutory definitions, section 101(a)(15)(L) of the Act does not 
include any and every type of "manager" or "executive," such as staff officers or specialists, self-employed 
persons who perform the management activities involved in practicing a profession or trade, or a first-line 
supervisor of non-professional employees. See section 101(a)(44)(A)(iv) of the Act; see also 52 Fed. Reg. 
5738,5740 (February 26, 1987)(available at 1987 WL 127799). While the AAO does not doubt that the 
beneficiary exercises discretion over the petitioner's day-to-day operations and possesses the requisite level of 
authority with respect to discretionary decision-making as the company president, the petitioner has failed to 
demonstrate that the beneficiary'S duties would be primarily managerial or executive in nature. 
The petitioner initially submitted two very different descriptions of the beneficiary'S proposed duties as 
president of the U.S. company. The description included in the petitioner's letter dated January 16, 2008 was 
vague and largely paraphrased the statutory definitions of managerial and executive capacity at section 
101(a)(44)(A) and (B) of the Act. For example, the petitioner indicated that the beneficiary will be 
"fonnulating and detennining corporate policies and strategies"; "directing and coordinating company 
activities"; "directing and coordinating activities to develop new markets;" and "planning and developing 
industrial, labor and public relations policies." While these broad and generalized responsibilities suggest that 
the beneficiary has authority over the company's policies and activities, they offer no insight into what he will 
actually do on a day-to-day basis as the president of an import and wholesale distribution company. Specifics 
are clearly an important indication of whether a beneficiary's duties involve specialized knowledge, otherwise 
meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., LId. v. Sava, 
724 F. Supp. 1103, 1108 (ED.N.Y. 1989), ajfd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Concurrently, the petitioner submitted a more detailed list ofresponsibilities indicating that the beneficiary is 
responsible for accounting, human resources, purchasing, operations, logistics, letters of credit, infonnation 
technology, legal matters, imports and customs clearance. The petitioner did not clearly define what specific 
managerial or executive duties the beneficiary would perform with respect to most of these areas of 
responsibility. However, the petitioner did indicate that the beneficiary would be personally responsible for 
coordinating procurement activities, and participating in new product/R&D activities, duties that are clearly 
not managerial tasks. Furthennore, a review of the detailed position descriptions provided for the existing 
U.S. employees reflects that none of them are responsible for perfonning duties related to these company 
functions. If the beneficiary will be solely responsible for administrative human resource matters, purchasing, 
logistics, and importing functions, then it is reasonable to conclude that he will perform both managerial and 
non-managerial duties associated with such functions. An employee who "primarily" perfonns 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 
Int'!., 191&N Dec. 593,604 (Comm. 1988). 
Given the divergence between the two job descriptions submitted at the time of filing, and the fact that one of 
the job descriptions revealed that the beneficiary'S duties would include both managerial and non-managerial 
Page 8 
functions, the director reasonably requested clarification regarding the specific duties the beneficiary would 
perfonn and the amount of time he would devote to specific duties. While perfonning non-qualifying tasks 
necessary to produce a product or service will not automatically disqualify the beneficiary as long as those 
tasks are not the majority of the beneficiary's duties, the petitioner still has the burden of establishing that the 
beneficiary is "primarily" perfonning managerial or executive duties. Section 101(a)(44) of the Act; see also 
Brazil Quality Stones, Inc. v. Chertoff, 531, F.3d 1063, 1069-70 (9th Cir. 2008). 
In response to the director's request for evidence, the petitioner chose to simply re-submit the above­
referenced job descriptions which had already been reviewed and found to be insufficient to establish either 
that the beneficiary's duties would be primarily managerial or executive in nature, or whether the beneficiary 
would be primarily perfonning duties relating to the company's purchasing, procurement, logistics, importing 
and other operational and administrative functions. Any failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Based on the current record, the AAO is unable to detennine whether the claimed managerial duties constitute 
the majority of the beneficiary'S duties, or whether the beneficiary would primarily perfonn non-managerial 
administrative or operational duties. The petitioner lists the beneficiary'S duties as including both managerial 
and administrative or operational tasks, but fails to quantify the time the beneficiary spends on them, despite 
the director's specific request for such information. This failure of documentation is important because 
several of the responsibilities attributed to the beneficiary, as discussed above, do not fall directly under 
traditional managerial or executive duties as defined in the statute, and the petitioner has identified no other 
company employees to whom such non-qualifying activities would be delegated. For this reason, the AAO 
cannot determine whether the beneficiary would be primarily perfonning the duties of a manager or 
executive. See IKEA US, Inc. v. Us. Dept. of Justice, 48 F. Supp. 2d 22, 24 (DD.C. 1999). 
Beyond the required description of the job duties, U.S. Citizenship and Immigration Services (USClS) 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from perfonning operational duties, the 
nature of the petitioner's business, and any other factors that will contribute to a complete understanding of a 
beneficiary's actual duties and role in a business. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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)(A)(iv) of the Act; 8 C.F.R. § 2l4.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. § 2l4.2(l)(l)(ii)(B)(3). 
The petitioner's personnel structure at the time of filing included a sales department manager, a warehouse 
manager, two sales staff, and one warehouse worker who was no longer working for the company at the time 
the appeal was filed in March 2009. While the director noted that there is some overlap between the duties 
perfonned by the petitioner's sales manager and his subordinate staff, the AAO is satisfied that the sales 
manager can be considered a supervisory position. Upon review of the totality of the evidence, however, we 
cannot conclude that the supervision of a subordinate staff comprised of supervisory personnel is among the 
beneficiary'S primary tasks. As discussed above, the petitioner failed to provide the requested infonnation 
regarding how the beneficiary allocates his time among his responsibilities. Further, all of the petitioner'S 
existing personnel are assigned to either sales or warehouse functions, while the beneficiary is claimed to be 
responsible for essentially every other aspect of the company. Thus, while we conclude that the portion of 
time the beneficiary devotes to overseeing the company's supervisory personnel would be considered a 
qualifying managerial task, the record does not support a finding that this would be the beneficiary'S primary 
area of responsibility. 
On appeal, counsel asserts that the beneficiary will manage the U.S. company's "essential functions." The 
tenn "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, 8 U.S.C. § IIOI(a)(44)(A)(ii). The tenn "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must clearly describes the duties to be perfonned in managing the essential 
function, identify the 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 perfonns the duties related to the function. 
Counsel's broad assertion that the beneficiary will manage the company's essential functions as its president is 
insufficient to establish that the beneficiary will primarily act as a function manager. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Maller of Ramirez-Sanchez, 17 I&N Dec. 
503 (BIA 1980). As noted above, the beneficiary is claimed to be responsible for a number of company 
activities, including logistics, procurement, and research and development. It is the petitioner's obligation to 
establish that the day-to-day non-managerial tasks of the function managed are perfonned by someone other 
than the beneficiary. Again, the only tasks that have been delegated to someone other than the beneficiary are 
sales and warehousing. The beneficiary will not be considered to be "managing" all other functions of the 
company simply because he is the sole employee responsible for such activities. Whether the beneficiary is 
an "activity" or "function" manager turns in part on whether the petitioner has sustained its burden of proving 
that his duties are "primarily" managerial. As discussed above, the petitioner has not sustained this burden. 
The statutory definition of the tenn "executive capacity" focuses on a person's elevated position within an 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101 (a)(44)(B) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(B). 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 
Page 10 
of directors, or stockholders of the organization." Id. Here, while the beneficiary will be responsible for the 
goals and policies of the company as its president, the evidence of record fails to demonstrate that these would 
be the beneficiary's primary duties. The petitioner has attributed a number of non-qualifYing responsibilities 
to the beneficiary and has failed to indicate how much of his time would be available for executive tasks. 
The AAO notes that a company's size alone, without taking into account the reasonable needs of the 
organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See section 10 1 (a)(44)(C) of the Act, 8 U.S.c. § 1101(a)(44)(C). In reviewing the relevance of the number of 
employees a petitioner has, however, federal courts have generally agreed that USCIS "may properly consider 
an organization's small size as one factor in assessing whether its operations are substantial enough to support 
a manager." Family Inc. v. Us. Citizenship and Immigration Services 469 F. 3d 1313, 1316 (9th Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003)). It is appropriate for USCIS 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. 200 I). 
The petitioner operates a handbag import and wholesale business that has been in business for slightly more 
than one year. It is staffed by three sales personnel and one to two warehouse personnel, and does not have 
any administrative employees. The petitioner states that the beneficiary will be responsible for all other 
activities including administrative, human resources, logistics, customs clearance, research and development, 
purchasing, operations, and importing tasks. Therefore, notwithstanding the beneficiary's job title of 
"president" it appears that the petitioner presently has a reasonable need for him to perform a number of non­
managerial and non-executive tasks that would preclude him from performing primarily qualifYing duties. 
We acknowledge counsel's arguments that the petitioner is a relatively new company and expects to grow 
quickly and hire additional employees. Regardless of the fact that the petitioner is in a preliminary stage of 
organizational development, the petitioner is not relieved from meeting the statutory requirements. It is a 
long-established rule in visa petition proceedings that a petitioner must establish eligibility as of the time of 
filing the petition. A visa petition may not be approved based on speculation of future eligibility or after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Furthermore, the reasonable needs of the petitioner 
will not supersede the requirement that the beneficiary be "primarily" employed in a managerial or executive 
capacity as required by the statute. See sections IOI(a)(44)(A) and (8) of the Act, 8 U.S.c. § 1 10 1 (a)(44). 
The reasonable needs of the petitioner may justifY a beneficiary who allocates 51 percent of his or her duties 
to managerial or executive tasks as opposed to 90 percent, but those needs will not excuse a beneficiary who 
spends the majority of his or her time on non-qualifying duties. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in the United 
States in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
Page 11 
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. 
ORDER: The appeal is dismissed.