dismissed L-1A Case: Import/Export

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Servic
FILE: SRC 03 043 51255 Office: TEXAS SERVICE CENTER Date: MAY 24 2001
INRE: 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. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
~~~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 0304351255
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner, a Texas corporation, claims that it is engaged in the export and import of merchandise.
The petitioner states that it is a subsidiary of GEE ESS International, located in India. Accordingly, the
United States entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary as a
nonimmigrant intracompany transferee (L-IA) pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 110I(a)(15)(L). The beneficiary was initially granted a one-year
period of stay to open a new office in the United States and the petitioner now seeks to extend the
beneficiary's stay in order to continue to fill the position of director/vice-president for a three-year period.
The director denied the petition on May 27, 2004, concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that it did not appear that the u.S. entity employed any
additional employees and thus the beneficiary does not supervise a staff of professional, managerial, or
supervisory personnel who will relieve the beneficiary from performing non-qualifying duties. Thus, the
director determined that the beneficiary will be primarily involved in performing the day-to-day services
essential to running a business.
The petitioner subsequently filed an appeal on June 25, 2004. 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 contends
that CIS should not be determining managerial or executive capacity merely on the basis of the number of
employees that the beneficiary supervises or the job titles of the employees. Counsel contends that CIS
cannot look at the company's size alone but must also take into account the reasonable needs of the
organization and must consider the beneficiary's duties "in light of the overall purpose and stage of
development" of the U.S. company. Counsel further asserts that the beneficiary is in a senior-level and
executive position for the U.s. entity. Counsel states that the U.S. entity is in an early stage of
development as the entity "does not require large staffing levels." In addition, counsel cites several
decisions to support the claim that a beneficiary as a sole employee or managing a small number of
supervisors may qualify as a position of managerial or executive capacity. Finally, counsel for the
petitioner asserts that the beneficiary is a function manager, and is employed by the petitioner in a
primarily executive and managerial capacity. Counsel submits a brief in support of the appeal.
To establish eligibility under section 10I(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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) further states that an individual petition filed on Form 1-129 shall be
accompanied by:
SRC 03 043 51255
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(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 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 him/her 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 issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary
will be employed in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides:
The term "managerial capacity" means 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. § 1101(a)(44)(B), provides:
SRC 03 043 51255
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The term "executive capacity" means 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 nonimmigrant petition was filed on November 27, 2002. The Form 1-129 indicates that the beneficiary
will be employed in the position of director for the petitioner, which claimed to have two employees. On the
Form 1-129, the beneficiary's proposed duties in the U.S. are described as the following:
Direct and coordinate activities of the organization and formulate and administer
company policies: In consultation with the management and the Indian Company
develop long range goals and objectives of the company. Be responsible for corporate
planning, general administration, marketing-sales and purchasing activities for the
subsidiary. Direct and coordinate activities of managers and employees in the
production, operations, purchasing and marketing departments for which responsibility
is delegated to further attainment of goals and objectives. Review and analyze activities,
costs, operations, and forecast data to determine progress toward stated goals and
objectives. Discuss with management and employees to review achievements and
discuss required changes in goals or objectives of the company.
The petitioner also submitted several documents for the U.S. entity, including financial statements, tax
returns, insurance policies, employee quarterly wage reports, and receipts and invoices, for 2002.
On April 27, 2003, the director determined that the petitioner did not submit sufficient evidence to process
the petition and the director requested additional information. The petitioner responded to the response on
July 21, 2003. On December 22, 2003, the director sent out a second request for evidence with additional
questions to be addressed by the petitioner based on its response to the initial request. The director requested
the following documentation in the combined requests for evidence: (1) a description of the position held by
the beneficiary, including all duties performed and percentage of time spent on each duty; (2) an
organizational chart of the U.S. entity, including the position titles and duties of all of the employees; (3) a
copy of the Form 1120, U.S. Corporation Income Tax Return, for 2002; (4) copies of the U.S. company's
IRS Form 941, Employer's Quarterly Federal Tax Return, for all employees for 2002 to 2003; (5) a
position description of each individual employed by the U.S. entity, including all duties performed and
percentage of time spent of each duty; (6) copies of Forms W-2 for all employees for 2002; (7) an
explanation as to whether the beneficiary is performing the functions of the U.S. company since the
submitted Quarterly Wage Reports indicate zero employees; and, (8) an explanation as to the products
that are imported and exported by the petitioner and where such products are stored and sold.
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In response to the director's request, the petitioner submitted the following job description of the duties to be
performed by the beneficiary in the U.S. entity:
In consultation with the management and the parent company in India, develop long-range
goals and objectives of the US subsidiary company. Develop strategic planning goals for
this company - 15 percent of the time
Direct and coordinate marketing, business development and import/export activities of the
organization. Plan and manage all the business investments made by the foreign parent
corporation in the United States. Oversee new investment activities, including reviewing
proposals and exploring other businesses - 15 percent of the time
Organize the company and its corporate affairs. Confer and cooperates with management
personnel in formulating administrative and operational policies and procedures - 15
percent of time
Responsible for corporate planning, administration, marketing, sales, import/export and
purchase activities of the company and for all business activities in the US, costs, operation
and future projections of the company and assessment of the progress of the company
towards stated goals and objectives -15 percent of the time
Discuss with management and employees to review achievements and discuss required
changes in projects or objectives of the company -10 percent of the time
Direct and coordinate activities of employees in the operations, purchasing and marketing
departments for which responsibility is delegated for further attainment of goals and
objectives -10 percent of the time
Direct and coordinate activities of employees in the operations, purchasing and marketing
departments for which responsibility is delegated for further attainment of goals and
objectives -10 percent of the time
Review and analyze activities, costs, operations, and forecast data to determine progress
toward stated goals and objectives -10 percent of the time
Oversee the financial and accounting activities of the organization, including budgeting, tax
and regulatory matters - 5 percent of the time
Responsible to report and advise the parent company for future diversification of assets
dependent on the prevalent market trends - 5 percent of the time
The petitioner also provided job descriptions for the individuals currently employed by the U.S. entity which
include the president, the store manager, the finance manager, and two floor helpers. The petitioner
submitted an organizational chart of the U.S. company that indicates that the U.S. entity employs a president
who supervises the beneficiary as the vice-president, who in tum supervises the store manager and the
SRC 03 04351255
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finance manager, who supervise two floor helpers. In a letter submitted in response to the director's request
for evidence, dated March 11, 2004, counsel for the petitioner asserts that the beneficiary "has two
professional employees reporting to him" who are the finance manager and the store manager who "look after
the day-to-day operations of the organization." Counsel further asserts that the beneficiary supervises an
"outside Accountant, who prepares and files the taxes for the organization."
The petitioner also submitted Forms W-2 for 2003 for the beneficiary and four additional employees. The
additional employees received annual salaries that ranged from $3000 to $7000, thus it is not clear that these
employees worked a full-time schedule. Regardless, the Forms W-2 are for 2003 which is the year after the
instant petition was filed. 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm.
1978).
The petitioner also submitted the U.S. company's 2002 Form 1120, U.S. Corporation Income Tax Return,
which indicated that the U.S. entity paid $27,000 in compensation to officers, and did not pay any salaries or
wages for 2002.
In addition, the petitioner submitted the company's Texas Employer's Quarterly Report for all four quarters
of 2003 and the last three quarters of 2002. In the last quarter of 2002, the quarter in which the instant
petition was filed, the U.S. entity employed one individual, the beneficiary. In addition, the petitioner
submitted Form 941, Employer's Quarterly Federal Tax Return, for the last two quarters of 2003 and 2002.
The Form 941 for the last quarter of 2002, the quarter in which the instant petition was filed, indicates that
$10,500 in wages was paid that quarter, which is the same wages paid to the beneficiary in the state tax
returns.
The director denied the petrtion on May 27, 2004, concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company. The director noted that it does not appear that the beneficiary supervises a
staff who will relieve him from performing non-qualifying duties. Thus the beneficiary will be primarily
involved in performing the day-to-day services essential to running a business.
On appeal, counsel for the petitioner contends that the CIS should not be determining managerial or
executive capacity merely on the basis of the number of employees that the beneficiary supervises or the
job titles of the employees. Counsel contends that CIS cannot look at the company's size alone but must
also take into account the reasonable needs of the organization and must consider the beneficiary's duties
"in light of the overall purpose and stage of development" of the U.S. company. Counsel further asserts
that the beneficiary is in a senior-level and executive position for the U.S. entity. Counsel states that the
U.S. entity is in an early stage of development, as the entity "does not require large staffing levels." In
addition, counsel cites several decisions to support the claim that a beneficiary as a sole employee or
managing a small number of supervisors may qualify as a position of managerial or executive capacity.
Finally, counsel for the petitioner asserts that the beneficiary is a function manager, and is employed by
the petitioner in a primarily executive and managerial capacity.
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Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not
established that the beneficiary will be employed in a 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. § 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly
describe the duties to be performed by the beneficiary and indicate whether such duties are either in an
executive or managerial capacity. Id.
The definitions of executive and managerial capacity have two specific requirements. First, the petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the
definitions . Second , the petitioner must prove 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).
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. An employee who "primarily" performs the tasks
necessary to produce a product or provide a service 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 1& N Dec. at 604.
Here, while the beneficiary evidently exercises discretion over the day-to-day operations of the business ,
the petitioner 's description of his proposed duties suggest that the beneficiary's actual duties include a
number of non-managerial and non-executive duties.
The beneficiary's proposed job description includes vague duties such as the beneficiary will "develop
long-range goals and objectives of the US subsidiary company" ; "develop strategic planning goals for this
company"; "organize the company and its corporate affairs "; and "responsible to report and advise the
parent company for future diversification of assets dependent on the prevalent market trends." Reciting the
beneficiary 's vague job responsibilities or broadly-cast business objectives is not sufficient; the
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to
provide any detail or explanation of the beneficiary's activities in the course of his daily routine. The
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
In addition , the job duties required of the beneficiary include non-qualifying duties such as the beneficiary
will "direct and coordinate marketing , business development and import/export activities of the
organization "; "plan and manage all the business investments made by the foreign parent corporation in
the United States" ; "oversee new investment activities , including reviewing proposals and exploring other
businesses" ; "responsible for corporate planning , administration, marketing , sales, import/export and
purchase activities of the company and for all business activities in the US , costs, operation and future
projections of the company and assessment of the progress of the company towards stated goals and
objectives"; "direct and coordinate activities of employees in the operations, purchasing and marketing
departments for which responsibility is delegated for further attainment of goals and objectives" and "oversee
the financial and accounting activities of the organization , including budgeting , tax and regulatory matters."
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Since the petitioner has not provided evidence that the U.S. company hired any additional employees at the
time the instant petition was filed, it appears that the beneficiary will be performing non-qualifying duties
related to purchasing, finance, marketing, sales, import/export functions, and business operations, rather then
directing such activities through subordinate employees. 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 Int 'l., 19 I&N Dec. at 604.
As noted above, according to the petitioner's statement on Form 1-129, the U.S. company has two
employees. In addition, in response to the director's request for evidence, the petitioner indicated that the
U.S. entity has six employees. However, the petitioner's state tax return, Texas Employer's Quarterly
Report, for the quarter ended December 2002, indicated one employee. Thus, for the quarter in which the
instant petition was filed the U.S. company employed one individual. Although the company submitted the
petitioner's federal and state tax returns for 2003 which indicated that the U.S. entity employed additional
individuals in 2003, that was after the instant petition was filed. 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). In addition, the petitioner submitted the U.S. company's
2002 Form 1120, U.S. Corporation Income Tax Return, which indicated that the U.S. entity paid $27,000 in
compensation to officers, who is shown as the beneficiary, and the U.S. entity did not pay any salaries and/or
wages for 2002. Thus, it does not appear that the U.S. company employed any individuals in addition to the
beneficiary at the time the petition was filed.
Counsel correctly observes that a company's size alone may not be the determining factor in denying a
visa to a multinational manager or executive. Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. §
1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a
managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in
light of the overall purpose and stage of development of the organization.
Furthermore, 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). The size ofa company may be especially relevant when CIS notes discrepancies
in the record and fails to believe that the facts asserted are true. Id. Pursuant to section 101(a)(44)(C) of
the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a factor in determining whether an
individual is acting in a managerial or executive capacity, CIS must take into account the reasonable
needs of the organization, in light of the overall purpose and stage of development of the organization. In
the present matter, however, the regulations provide strict evidentiary requirements for the extension of a
"new office" petition and require CIS to examine the organizational structure and staffing levels of the
petitioner. See 8 C.F.R. § 214.2(l)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the
"new office" operation one year within the date of approval of the petition to support an executive or
managerial position. There is no provision in CIS regulations that allows for an extension of this one­
year period. If the business does not have sufficient staffing after one year to relieve the beneficiary from
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primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary
in a predominantly managerial or executive position.
At the time of filing, the petitioner was a one-year old company that imported and exported merchandise
and managed a dollar store. According to the Form 941, Employer's Quarterly Federal Tax Return, for
the last quarter of 2002, the quarter in which the instant petition was filed, the U.S. entity employed one
individual who is assumed to be the beneficiary. As the only employee of the U.S. entity, it appears that
the beneficiary will be performing all of the various operational tasks inherent in operating a retail store
on a daily basis, such as acquiring products, negotiating contracts with suppliers, preparing budgets,
budgeting, bookkeeping, paying bills, maintaining inventory, handling customer transactions and
customer service. Based on the record of proceeding, the beneficiary's job duties are principally
composed of non-qualifying duties that preclude him from functioning in a primarily managerial or
executive role. It does not appear that the reasonable needs of the petitioning company might plausibly be
met by the services of the beneficiary alone. Regardless, the reasonable needs of the petitioner serve only
as a factor in evaluating the lack of staff in the context of reviewing the claimed managerial or executive
duties. The petitioner must still establish that the beneficiary is to be employed in the United States in a
primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As
discussed above, the petitioner has not established this essential element of eligibility.
On appeal, counsel asserts that the position offered to the beneficiary is executive in 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. §
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 managerial 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-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. As the beneficiary is the only employee, the U.S. company has not established a
complex organizational structure which would elevate the beneficiary to a position of primarily executive
capacity.
As discussed above, the beneficiary's job description was not sufficient to establish that he would be
employed in a primarily managerial or executive capacity, and the petitioner has not identified any
employees within the petitioner's organization, subordinate to the beneficiary, who would relieve the
beneficiary from performing routine duties inherent to operating the business. The fact that the
beneficiary has been given a managerial job title and general oversight authority over the business is
insufficient to elevate his position to that of an executive or manager as contemplated by the governing
statute and regulations.
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Finally, the AAO acknowledges counsel's contention that the service further erred in not identifying the
beneficiary's position as one which manages an essential function within the petitioner's organization.
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, 8 U.S.C. § 1101(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 written job offer that clearly describes the duties to be
performed in managing the essential function, i.e. 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
performs the duties related to the function. An employee who primarily performs the tasks necessary to
produce a product or to provide services is not considered to be employed in a managerial or executive
capacity. Boyang, Ltd. v. l.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner
has not provided evidence that the beneficiary manages an essential function.
Beyond the required description of the job duties, CIS 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 operations 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 with in the organizational hierarchy, the depth of the
petitioner's operations, the indirect supervising of employees within the scope of the function managed,
and the value of the budgets, products, or services that the beneficiary manages.
Other than stating that the proposed position is an essential function, counsel provides no explanation or
evidence in support of his claim that the beneficiary would qualify as a function manager pursuant to
section 101(a)(44)(A)(ii) of the Act. 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); Matter ofRamirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).
As discussed above, the totality of the record supports a conclusion that the beneficiary would be required
to perform primarily non-qualifying duties associated with the petitioner's day-to-day functions, as the
petitioner has not identified any staff within the petitioner's organization, subordinate to the beneficiary,
who would relieve the beneficiary from performing routine duties inherent to operating the business.
Again, the fact that the beneficiary has been given a managerial job title and general oversight authority
over the business is insufficient to elevate his position to that of a "function manager" as contemplated by
the governing statute and regulations.
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or
medium size businesses. However, the AAO has also consistently required the petitioner to establish that
the beneficiary's position consists of primarily managerial and executive duties and that the petitioner has
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks. It is
SRC 03 043 51255
Page 11
the petitioner's obligation to establish through independent documentary evidence that the day-to-day
non-managerial and non-executive tasks of the petitioning entity are performed by someone other than the
beneficiary, although, as correctly noted by counsel, these employees need not be professionals. Here, the
petitioner has not met this burden.
Furthermore, counsel for the petitioner discusses prior cases approved by the AAO where the AAO held
that a small staff does not justify a denial where the beneficiary holds wide decision-making discretion.
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met
the requirements of serving in a managerial and executive capacity for L-1 classification even though he
was the sole employee. Counsel has furnished no evidence to establish that the facts of the instant
petition are analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished
decisions are not similarly binding. The cases cited by counsel are not AAO precedent decisions.
Additionally, counsel observes that Congress omitted the language that discussed individuals who
produce a product or provide a service from the Immigration Act of 1990 and asserts that this is a clear
indicator that such individuals are not precluded from qualifying as multinational managers or executives.
However, the AAO will not draw this conclusion based solely on an omission.
Despite the changes made by the Immigration Act of 1990, the statute continues to require that an
individual "primarily" perform managerial or executive duties in order to qualify as a managerial or
executive employee under the Act. The word "primarily" is defined as "at first," "principally," or
"chiefly." Webster's II New College Dictionary 877 (2001). Where an individual is "principally" or
"chiefly" performing the tasks necessary to produce a product or to provide a service, that individual
cannot also "principally" or "chiefly" perform managerial or executive duties. Counsel submits no
evidence in the form of congressional reports, case law, or other documentation to support his argument.
Accordingly, counsel's unsupported assertions are not persuasive on this point.
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.2 (5 th Cir. 1989), and Mars
Jewelers, Inc. v. INS, 702 F.Supp 1570 (N.D. Ga. 1988), to stand for the proposition that the small size of
a petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or
executive capacity. Counsel has furnished no evidence to establish that the facts of the instant petition are
analogous to those in National Hand Tool Corp. v. Pasquarell or Mars Jewelers, Inc. v. INS. It is noted
that both of the cases cited by counsel relate to immigrant visa petitions, and not to the extension of an
L-l nonimmigrant visa pursuant to 8 C.F.R. § 214.2(l)(14)(ii).
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition. For this reason,
the appeal will be dismissed.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decision. 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.
SRC 03 043 51255
Page 12
ORDER: The appeal is dismissed.