dismissed L-1A Case: Import/Distribution

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
O!ce ofAdmznlstratrve Appeals, MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 08 013 52339 Office: VERMONT SERVICE CENTER Date: MAY 2 0 2009 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for the 
specific requirements. All motions must be submitted to the ofice that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. tj 103.5(a)(l)(i). 
F. Grissorn 
Acting Chief, Administrative Appeals Office 
EAC 08 013 52339 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition and 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 10 1 (a)( 15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 10 1 (a)(15)(L). The petitioner, a Texas limited liability company, is engaged in the import and 
distribution of tequila and related products. It claims to be an affiliate of Corporation Licorera 1910 SA de 
CV, located in Mexico. The petitioner seeks to employ the beneficiary as its general manager for a period of 
three 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary 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 for review. On appeal, counsel for the petitioner asserts that the beneficiary 
will be employed as a functional manager, responsible for managing the importation, marketing, and 
distribution functions of the company's Mexican affiliate, which produces the products sold in the United 
States. Counsel emphasizes that the petitioner outsources the day-to-day activities associated with these 
functions and that the beneficiary's primary role is to plan and direct the U.S. operation. 
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 affiliate 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 petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(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. 
I 
 The record shows that the beneficiary was previously granted one year in L-1A classification to open the 
petitioner's new office in the United States (SRC 05 800 30936, valid August 12, 2005 until August 12, 2006). 
The petitioner filed a timely request to extend the beneficiary's status on August 1 1, 2006 and USCIS records 
show that this petition was denied on or about February 7, 2007. (EAC 06 240 5 1789). The petitioner states 
that the denial was based on failure to submit a timely response to a request for evidence, but maintains that it 
did in fact submit its response within the required timeframe. 
EAC 08 013 52339 
Page 3 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifLing 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 himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will 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. 5 1101(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 
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. 5 1 101(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 
EAC 08 013 52339 
Page 4 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant petition on October 11,2007. On Form 1-129, Petition for a Nonirnrnigrant 
Worker, the petitioner indicated that it is engaged in the importation and distribution of liquors and employs one 
worker. The petitioner stated that the beneficiary will "manage all aspects of operations of liquor import 
business." 
In a letter dated July 7, 2007, counsel for the petitioner explained that the petitioner was established in the United 
States in 2005 for the purpose of taking over the import, marketing, distribution, and sales functions of its 
Mexican affiliate. Counsel explained that the Mexican company manufactures premium tequila and tequila-based 
beverages, and has a long history of export sales to the United States. Counsel noted that the U.S. import, 
marketing, distribution and sales functions of the Mexican company were previously outsourced to United States 
companies. 
Counsel explained that the beneficiary, as the sole employee of the U.S. company, will serve as a functional 
manager. Specifically, counsel stated: 
The business of the Petitioner acts essentially as a division of the Mexican production company: 
it is charged with importation, marketing, and distribution of the Mexican companies [sic] 
products in the United States. Beneficiary is thus essentially charged with the United States 
importation, marketing, and distribution functions of the Mexican company. At the moment and 
for the foreseeable future, that is the whole of the activity of the United States company, to serve 
those functions of the Mexican company. Accordingly, Beneficiary is a functional manager for 
those activities. 
As the sole employee, some of his duties may not be strictly managerial but are common to the 
position and do not disqualify him from classification as an L-1A executive manager. See 
Republic of Transkei, et al. v. INS, 923 F. 2d 175 (DC 1991)(some non-managerial activities 
incidental to the position do not disquali@ position as a manager). 
Far and away the majority of activities of Beneficiary's position, however, are executive and 
managerial in nature. Beneficiary's primary role is to plan, organize, direct and control the 
functions of Petitioner to accomplish the importation, marketing, and distribution of the tequila 
products from the Mexican company into the United States . . . . 
. . . . Beneficiary is charged with executive functions of planning and the managerial function of 
managing these activities. The actual execution of the activities is accomplished through 
outsourcing the majority of the functions. Beneficiary's role in the United States Petitioner 
company is as an executive in planning and directing the operation. His duties are executive in 
nature as he is devises [sic] the marketing strategy for the company's products and must 
accomplish the distribution of the products. This is effectuated through outsourcing much of the 
EAC 08 013 52339 
Page 5 
actual activities. Beneficiary's role is to find, negotiate with, and conduct operations with the 
outsource providers. 
The petitioner submitted a separate job description which appears to describe the beneficiary's position as 
envisioned at the time his initial L-1 petition was filed in 2005. The description describes the objectives of the 
U.S. company and includes the proposed duties of the "general manager" as follows: 
1. To choose the best regional distributor for 1921 Product line, according with our distribution 
needs and product profile. 
2. To introduce " actual and future product line with those distributors. 
3. To hire regional Brokerage companies that work in harmony with our regional distributors 
and count with the professionalism and experience to handle products with a high category 
profile. . . 
4. To hire sales representatives to reinforce our sales capacity and give support to our brokers 
and distributor's sales force. 
5. To hire companies that provides next services: 
1. Spirits Importing 
2. Spirits sales registrations paperwork 
3. Warehousing 
4. Product orders shipping Nation wide 
5. Collecting 
6. Tax Accounting 
6. To provide Tequila Technical and educational courses to: 
Brokerage teams 
2. distributors sales forces 
3. Main customers and important accounts personnel Nationwide 
7. To coordinate Brokers, Sales representatives, Distributors, supplier and hired services 
entities to operate efficiently. 
8. To manage [the petitioner's] operation in the USA. 
Counsel explained that the petitioner outsources the logistics function to MHW Ltd., which is responsible for 
importation of products; compliance with permitting/licensing issues related to the distribution of alcohol within 
the United States and within various states; customer service; and accounts receivable. Counsel indicated that 
MHW outsources the warehousing of the petitioner's tequila products to another company. 
Counsel further explained that the petitioner outsources sales and promotional activities to different brokers in 
different U.S. states including Trans World Alliance (California); Multicarte (Texas, Arizona, Oklahoma, 
Louisiana); and Platinum Beverage (Colorado and Minnesota). Finally, counsel stated that the actual distribution 
of the product to retailers is contracted to a separate distributor in each state. 
The petitioner submitted an organizational chart identifying all of the outsourced service providers mentioned in 
counsel's letter, as well as an accountant. 
EAC 08 013 52339 
Page 6 
The director issued a request for additional evidence (RFE) on October 26, 2007, in which he instructed the 
petitioner to submit the following: (1) evidence that establishes the duties performed by the beneficiary in the past 
year and the duties helshe would perform under the approved petition; (2) evidence showing how the beneficiary 
is relieved from performing non-managerial duties related to importation, warehousing, marketing and 
distribution of products; and (3) evidence documenting the number of contractors utilized and the duties 
performed, as well as copies of contracts and evidence of payment for services provided by contractors. 
In a response dated October 3 1, 2007, the petitioner submitted a letter from the beneficiary, in which he further 
described his duties as follows: 
Please note that I manage the entire distribution process and marketing efforts for the "1921" 
Tequila brand products in the U.S., which is an essential function of the organization. Also I am 
responsible for supervising the distribution of the product, its marketing in the US and the related 
operations; accordingly, I function at a senior level with respect to the company. Finally, the 
stated duties establish that I exercise wide discretion over the day-to-day operations of the entire 
U.S. company by controlling and directing the work of other part time employees and 
independent contractors. In this ease [sic], I manage and oversee three important functions for 
the organization: distribution, marketing, promotion, and operations. . . . [Ilit remains [my] 
responsibility to supervise the distribution work in order to provide for an efficient distribution 
flow of "1921" Tequila product line. Please also note that I have managerial control of all 
Brokers contracted and some employees of our distributors, who are managers and/or 
professionals, pursuant to contractual obligations of the parties. For the marketing and 
promotions function, I have wide decision making power to create company's policies and 
directions as to the marketing and promotion goals and objectives. For the operations function, 
some of the most significant evidence that I function at a senior level within the organization are: 
1) I have recently hired a part time Marketing Manager and some Promoters in some US states 
as follows: 
a) I have contracted - as marketing manager for North [Carolina]. . . . 
b) Another person recently contracted is 
 as a Sales supervisor in 
California. . . . 
2) The fact of taking decision to proceeded legally against one of our main distributors for 
trying to breach the contract that took me more than a year to negotiate with their lawyers. 
3) I constantly travel around U.S. visiting our various distributors, potential new distributors, 
participating in show, conventions and wine & spirits events, meeting my brokers, visiting K 
accounts in states we are in etc. etc. 
EAC 08 013 52339 
Page 7 
The petitioner provided a detailed explanation of how it operates in the United States, noting that its main supplier 
is its Mexican parent company, which produces the tequila products the petitioner imports and distributes in the 
United States. The petitioner explained that its "product management" functions are performed by a third-party 
company, MHW Ltd., which, through its web page, reports to him on a daily basis regarding "sales, cash 
collections, expenses generated, inventories, invoices." The beneficiary explained that.the petitioner utilizes the 
services of an accounting firm to perform tax accounting and to prepare tax returns for the U.S. company, and 
noted that the Mexican entity is able to assist with making electronic payments to vendors. 
With respect to the product distribution function, the beneficiary noted that he is "responsible for the overall 
strategies and performance of the contacted distributor and the broker network," and that he holds "general 
powers to act on behalf of the company with special emphasis on leading the growth of the business in the US 
market and as a strategic point of contact for future international development." The beneficiary stated that he is 
responsible for identifying distributors in each state with desirable characteristics, introducing the products to 
them, negotiating prices, sales conditions, sales goals, and other terms. The petitioner provided a list of its 
distributors in eleven states. 
The beneficiary indicated that his "main job duties" involve the sales and promotion function, which he described 
as follows: 
[Dleveloping marketing objectives, strategies and tactical plans for the " 1921 " line of products; 
formulating the marketing budget; developing and implementing elements of the marketing plan, 
including creative, media, sales promotion, on-premises events, packaging, research and product 
aspects; directing all activities related to brand objectives, strategies and plans; coordinating the 
interrelated activities of the marketing disciplines and functions (such as public relations, sales 
promotion, purchasing/production and legal); monitoring brand marketing progress; reporting on 
marketing and financial results; making presentations and representing the brand at sales 
meetings with distributors/wholesalers and retailers; providing monthly performance updates; 
managing and supervising assigned budgets; coordinating with advertising agencies and internal 
marketing partners; overseeing the execution of marketing plans; analyzing and reporting on 
activities of competitors and overall market trends; providing input during evaluation of new 
product opportunities. When distributors accepting our products are big organizations, I need 
help to manage their sales force, promotion follow-up, and sales operation in coordination with 
distributor's main accounts or wholesalers. For this purpose, I need brokers representing our 
products. After deep research and lots of interviews, I decide which one is the best broker to suit 
our product profile and represent our brand in those particular states. 
The beneficiary stated that the broker's duties include: promoting the petitioner's brand regionally; introducing 
products to the best liquor stores, restaurants, bars, restaurants and super market chains; working with distributors' 
sales people and reporting monthly sales; establishing incentive plans for distributors' sales teams; proposing 
special offers for key accounts; and working out special negotiations with distributors. 
The beneficiary indicated that another main function he performs is making contacts for media exposure. The 
beneficiary stated: 
EAC 08 013 52339 
Page 8 
I constantly travel around USA visiting our distributors, educating their sales people about our 
products and working the market out in the streets with them. At same time, look for persons 
involved in the Spirits Industry with media exposure to approach them with samples and recruit 
them to promote our products. So far, several influential persons in the Spirits Industry have 
been contacted and are active in promoting our brand. 
The beneficiary further stated that another important activity he performs is "report analysis, hiring services, and 
overall the coordination among all elements and figures involved in the business operation." The petitioner 
emphasized that "having an executive with decision-making capacity continuously researching the US market and 
generating the relations, as well as applying the knowledge to the organization as a whole is crucial to our 
projected success." 
The petitioner submitted extensive documentation to corroborate its claimed relationships with MHW Ltd., 
brokers, distributors, accountants and other contractors and service providers. 
The director denied the petition on December 21, 2007, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity. In denying the petition, the 
director determined that the petitioner had not established that the beneficiary would function at a senior level 
within an organizational hierarchy other than in position title. The director further found that the petitioner had 
not established that the beneficiary would be involved in the supervision and control of the work of other 
supervisory, professional or managerial employees. 
The director acknowledged that the petitioner listed "a number of duties that would normally be required of or 
associated with a manager or executive," but was "not convinced that the beneficiary will actually be canying out 
these duties." The director concluded that the petitioning entity does not appear to require a bona fide manager or 
executive to perform the listed duties on a full-time basis, but rather the beneficiary would be engaged in the non- 
managerial, day-to-day operations of the company. 
On appeal, counsel for the petitioner maintains that the beneficiary is entitled to L-1A classification because he 
primarily acts as a functional manager. Counsel emphasizes that the U.S. entity acts essentially as a division of 
the Mexican company, charged with importation, marketing and distribution of its products in the United States, 
and that the beneficiary manages all of these functions. Counsel asserts that the beneficiary's primarily duties are 
managerial and involve planning and directing the company's major functions, while non-managerial duties are 
outsourced. 
Counsel further explains: 
[Tlhe primary roles of Beneficiary are (1) the executive function of planning and establishing the 
markets and strategies to reach the markets; and (2) the managerial function of managing the 
actual execution of the importation, marketing and distribution through various separate 
outsourced companies. . . . . Essentially, all actual activities are outsourced. Beneficiary's role is 
to plan, develop, and manage those actually canying out those activities. . . . Although 
Beneficiary is the sole employee, his role is an executive and manager. Given the purpose of the 
EAC 08 013 52339 
Page 9 
Petitioner entity and the stage of its development, it is appropriate and reasonable that it have 
few or even a sole employee. 
Counsel emphasizes that the petitioner's Mexican parent company employs approximately 30 people and that the 
parent company works closely with the U.S. company. Counsel asserts that the beneficiary is therefore "freely 
able to rely on the Mexican company support personnel for assistance with non-managerial duties." 
Counsel further states that the beneficiary "has some non-managerial activities that are incident to his overall 
position," but states that "overall, approximately 50% of [Beneficiary's] time is devoted to the executive functions 
of planning for the organization's development of markets and the service [of] its current markets." Counsel 
indicates that the other 50% of the beneficiary's time is devoted to "managing the actual activities of Petitioner in 
its importation, marketing, and distribution role through managing of the activities of separate companies 
contracted to execute the actual activities." 
Upon review, and for the reasons discussed herein, counsel's assertions are not persuasive. Preliminarily, the 
AAO notes that when denying a petition, a director has an affirmative duty to explain the specific reasons for 
the denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden of proof 
pursuant to section 291 of the Act, 8 U.S.C. 5 1361. See 8 C.F.R. 3 103.3(a)(l)(i). The director's decision 
contained few specific references to the evidence submitted by the petitioner and instead focused on the fact 
that the beneficiary is the sole employee of the U.S. company. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). Accordingly, the AAO will 
herein address the petitioner's evidence and eligibility. 
The petitioner has not established that the beneficiary's duties for the petitioner will be primarily managerial 
or executive in nature. 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 managerial capacity. Id. 
In addition, 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). The petitioner must establish that a majority of the 
beneficiary's duties are related to operational or policy management, not to the performance of the duties of 
another type of non-managerial or non-executive position, or other involvement in the operational activities of 
the company. 
EAC 08 013 52339 
Page 10 
The petitioner has submitted a lengthy description of the beneficiary's duties and claims that he will be 
employed in an executive capacity, or as a "function manager." However, the petitioner's description of the 
beneficiary's duties does not demonstrate that the beneficiary will primarily perform the types of high-level 
responsibilities that are specified in the statutory definitions of managerial or executive capacity, nor does it 
support counsel's assertion that the beneficiary devotes 50 percent of his time to executive duties and 50 
percent of his time to managerial duties. 
For example, in response to the RFE, the beneficiary stated that he "constantly" travels around the United 
States visiting distributors, potential new distributors, participating in shows, conventions and events, meeting 
with brokers, and meeting with companies with which the petitioner has accounts. He states that one of his 
main functions is to "constantly travel around USA visiting our distributors, educating their sales people about 
our products and working the market out in the streets with them." His other duties include approaching 
people in the spirits industry with product samples, "constant P.R. & promotional activities," and making 
media contacts. The beneficiary further indicated that his duties in the sales and promotion area include 
monitoring brand marketing progress; reporting on marketing results; making presentations and representing 
the brand at sales meetings with distributors/wholesalers and retails; providing monthly performance updates; 
and analyzing and reporting on the activities of competitors and overall marketing trends. 
The petitioner has not explained how the beneficiary's direct involvement in the petitioner's sales, marketing, 
promotion, public relations, and market research activities fall under the statutory definitions of managerial or 
executive capacity. The petitioner did not indicate that the beneficiary manages the performance of these 
duties through direct subordinates, or outsourced employees, nor is it evident that any employees of the 
petitioner's parent company relieve the beneficiary from performing these duties. Furthermore, if the 
beneficiary is "constantly" performing marketing, public relations and promotions tasks, he cannot be 
devoting 100 percent of his time to managerial and executive duties, as claimed by counsel. 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). 
While it appears that the petitioner has distributors and brokers responsible for getting the petitioner's 
products onto the shelves of individual retailers in several states, the beneficiary himself is responsible for 
marketing and promoting the petitioner's product and launching it in the United States market and assisting 
the company's existing distributors with marketing the petitioner's product to the end market by training and 
educating their sales staff. The record shows that the beneficiary hired a sales representative subsequent to 
the filing of the petition, as well as a contracted marketing manager and sales supervisor. However, the 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may 
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
The record suggests that the beneficiary is less involved in the day-to-day activities of importing and 
distributing the petitioner's products, yet the coordination of such activities would reasonably involve a fair 
amount of administrative and clerical work that does not fall under the traditional definitions of managerial or 
EAC 08 013 52339 
Page 11 
executive capacity. It is not clear how the beneficiary coordinates the network of distributors, brokers and 
logistics service providers without the assistance of a secretary or administrative assistant to perfom 
administrative and recordkeeping tasks. Further, it is not clear what portion of his duties related to these 
functions is primarily managerial or executive in nature. 
Overall, while it is evident that the beneficiary exercises discretion over the day-to-day operations of the 
company as its sole employee and co-owner, and performs some managerial and executive tasks, 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. 
Therefore, although performing tasks necessary to produce a product or service or other non-managerial tasks 
will not automatically disqualify the beneficiary, the petitioner still has the burden of establishing that the 
beneficiary is "primarily" performing managerial or executive duties as required by the statutory definitions. 
Here, the petitioner has provided no meaningful breakdown of how the beneficiary allocates his time among 
qualifying and non-qualifying duties. Counsel's blanket assertion that the beneficiary divides his time equally 
between managerial and executive tasks, while performing only a few incidental non-managerial tasks, is not 
supported by the evidence of record. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Based on the 
beneficiary's own assertions, he is constantly traveling the United States to promote the petitioner's products, 
to train sales staff, and to make public relations contacts, duties that have not been shown to be managerial or 
executive in nature. Based on the current record, the AAO is unable to determine whether the claimed 
managerial duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily 
performs non-managerial administrative or operational duties. The petitioner's description of the beneficiary's 
job duties does not sufficiently 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). 
Counsel asserts that the beneficiary qualifies for L-1A classification based on his management of the 
"essential functions" of importation, marketing and distribution in the U.S. market on behalf of the foreign 
entity. 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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(ii). 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 detailed position description that clearly explains the duties to 
be performed in managing the essential function, i.e. identifies the function with specificity, articulates the 
essential nature of the function, and establishes the proportion of the beneficiary's daily duties attributed to 
managing the essential function. See 8 C.F.R. 5 214.2(1)(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. 
EAC 08 013 52339 
Page 12 
Beyond the required description of the job duties, USCIS 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 performing 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. In the 
case of a function manager, where no subordinates are directly supervised, these other factors may include the 
beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision 
of employees within the scope of the function managed, and the value of the budgets, products, or services 
that the beneficiary manages. It is the petitioner's obligation to establish that the day-to-day non-managerial 
tasks of the function(s) managed are performed by someone other than the beneficiary. 
In this matter, the petitioner has not provided evidence that the beneficiary primarily manages an essential 
function. While the petitioner has shown that many aspects of its importation and distribution functions are 
outsourced, the beneficiary's actual duties appear to relate primarily to ongoing marketing, promotional and 
public relations activities for the petitioner's brand in the United States. As discussed above, such duties have 
not been shown to be managerial or executive in nature. The company was established to open and expand 
sales channels in the United States and the beneficiary himself is primarily responsible for accomplishing this 
goal. Therefore, while the beneficiary may oversee importation and distribution functions, the record does 
not show that these are currently his primary duties. Rather, as discussed above, the beneficiary's primary 
duties, based on the beneficiary's representations that he is "constantly" traveling in the United States to 
perform duties related to sales, marketing, promotions and public relations, are not in fact managerial in 
nature. The actual duties themselves 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). 
Counsel for the petitioner asserts that in addition to qualifying as a "function manager," the beneficiary will 
be employed in an executive capacity. The statutory definition of the term "executive capacity" focuses on a 
person's elevated position within a complex 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. 5 1101(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 of directors, or stockholders of the 
organization." Id. 
Here the petitioner has not established that the beneficiary primarily focuses on the broad goals and policies 
of the organization, as it is evident that he is involved in the day-to-day operations of the enterprise, 
particularly with respect to the ongoing launch of the petitioner's product in the U.S. market and all 
accompanying marketing, market research and promotional activities. The petitioner has not indicated what 
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executive duties the beneficiary performs, and merely paraphrased the statutory definition in support of its 
claims that the beneficiary performs executive duties. Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108 (E.D.N.Y. 1989), 
aff, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Counsel correctly observes 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 5 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C). However, in reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that U.S. Citizenship and 
Immigration Services (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 13 13, 13 16 (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)). Furthermore, 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. 2001). 
At the time of filing, the petitioner was a two-year-old import and distribution company, which employed the 
beneficiary as its sole employee and various outsourced service providers in the areas of logistics, 
warehousing, accounting, sales and distribution. One of the major objectives of the company is to continue to 
widen its distribution network, and, as discussed above, the beneficiary himself is responsible for the 
marketing, promotion and public relations duties that accompany the ongoing launch of the product in the 
United States. In addition, it is not clear based on the record that the beneficiary would be relieved from 
performing the day-to-day administrative and clerical tasks associated with operating the U.S. company. 
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 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 101(a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 5 1 percent of his 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. 
On appeal, counsel indicates that the petitioner has hired one employee and intends to hire additional 
employees in the future. However, the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). 
The fact that the beneficiary manages a business does not necessarily establish eligibility for classification as 
an intracompany transferee in a managerial or executive capacity within the meaning of sections 
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101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 101(a)(l5)(L) 
of the Act does not include any and every type of "manager" or "executive"). While the AAO does not doubt 
that the beneficiary exercises discretion over the petitioner's day-to-day operations as its co-owner and sole 
employee, the petitioner has failed to show that his actual duties will be in a primarily managerial or executive 
capacity. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 F. Supp. at 1108. 
Based on the foregoing discussion, the petitioner has failed to establish that the beneficiary will be employed 
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.