dismissed L-1A Case: Import/Export

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: WAC 08 240 5 1 189 Office: CALlFORNIA SERVICE CENTER Date: MAR 0 2 2010 
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. tj 1 lOl(a)(lj)(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. 
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. 103.5 for the 
specific requirements. All motions must be submitted to the office 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). 
Veny Rhew 
Chief, Administrative Appeals Office 
WAC 08 240 51 189 
Page 2 
DISCUSSION: The Director, California 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 extend the employment of its president'chief 
executive officer as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 1 5)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. fj 1101(a)(15)(L). The petitioner, a California 
corporation, states that it is engaged in the import, export and wholesale of ceramic tile and other building 
petitioner has employed the beneficiary since December 2004 and now seeks to extend her L-1A 
classification for three additional years. 
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. 
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 petitioner's 
description of [the beneficiary's] job duties proved the executive capacity of the beneficiary's position." 
Counsel contends that the director erroneously interpreted the proposed job duties and failed to consider the 
"current declining economic environment and business downturn," in making her determination. Counsel 
submits a brief, but no additional documentary evidence, in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or 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 (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. 
WAC 08 240 51 189 
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 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 a primarily managerial or executive capacity under the extended petition. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. $ 1 10 l(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 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 
WAC 08 240 51 189 
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The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on September 8, 2008. The petitioner 
stated on Form 1-129 that the U.S. company two employees. In a letter dated August 27, 2008, counsel for the 
petitioner stated that the beneficiary is employed in an executive capacity as the chief executive offtcer of the U.S. 
company with "full responsibility for the petitioning company." Counsel further stated: 
It is her duty to exercise discretion over every aspect of operations of the business, and she has 
the authority to hire, fire and take other personnel actions over all directly supervised employees. 
For the past few years since the initial establishment of the U.S. petitioning company, [the 
beneficiary] has organized the office and implemented strategic business systems to assure the 
success of the petitioning company. This required detailed coordination with executives in the 
home offices so that the integration would include the objectives of the foreign parent. [The 
beneficiary] has also conducted extensive research to determine which suppliers and contractors 
to use. Upon deciding on a list of rightfd bona-fide suppliers and contractors, [the beneficiary] 
conducted extensive interviews in order to select the best possible affiliates. [The beneficiay] 
also acted as a liaison at a high level between client executives and her contractors to resolve 
problems. In addition, as the president of the company, she has implemented her business plan 
and set out to establish a solid public relations and advertising campaign to assure future growth. 
As a company in pursuit of growing business in North America market, [the beneficiary's] work 
as the CEO & President is particularly important. The beneficiary will spend a tremendous 
amount of time making important executive decisions that will ensure the well-being and 
efficient operation of the company. 
The petitioner submitted an organizational chart for the U.S. company which depicts the beneficiary in the 
positions of president and marketing manager. The chart depicts a finance department staffed by a 
cashierlwarehouse manager) and a contracted accounting firm. Finally, the chart depicts an "office 
center" with an office manager, receptionist and clerk. The beneficiary and are the only employees 
identified by name on the organizational chart. 
The petitioner submitted copies of its IRS Forms 94 1, Employer's Quarterly Federal Tax Return, and California 
Forms DE-6, Quarterly Wage and Withholding Report, for the last two quarters of 2007 and first two quarters of 
2008. The wage reports confirm that the beneficiary andwere the only employees paid between July 
2007 and June 2008. 
On December 1, 2008, the director issued a request for additional evidence (RFE) in which she requested: (1) a 
more detailed description of the beneficiary's duties, including the percentage of time spent in each specific duty 
listed; (2) a more detailed organizational chart clearly identified the beneficiary's position and all subordinates by 
name and job title; (3) a brief description of job duties, educational level, salarieslwages and source of 
remuneration for the beneficiary's subordinates; (4) copies of the petitioner's state quarterly wage reports for the 
last three quarters; and (5) if the beneficiary will be employed in an executive capacity, a list of the specific goals 
and policies the beneficiary has established, the specific discretionary decisions she has made, and a specific day- 
to-day description of the duties the beneficiary has performed over the last six months. 
WAC 08 240 51189 
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In a response dated December 12, 2008, counsel for the petitioner further described the beneficiary's position as 
follows: 
I) Beneficiary Made Personnel 1)ecisions Based on Economic Downturn 
The beneficiary has made the decision to cut payroll expenses and eliminate some positions, 
based on reasoned analysis of the macro-economic conditions, as well as business activities of 
the petitioner. These decisions were made in conjunction with detailed discussions . . . with the 
parent company's Board of Directors in China. . . . The beneficiary has embarked on expanding 
client base for new businesses in this difficult environment . . . . 
2) Beneficiary has Consulted with Foreign Parent in Shaping New Company Strategy 
The beneficiary has been in constant consultation with her superiors at the Chinese parent 
company, and the Chinese parent has great confidence in the petitioner's ability to steer the US 
subsidiary through these turbulent times. . . . The unwavering support from the parent company 
is the result of the beneficiary's ability to fashion a succinct and coherent strategy for company 
growth. The beneficiary's executive leadership is therefore apparent in her dealings with the 
Chinese parent. 
3) Beneficiary is Forging New Strategic Vision and Business Opportunities for the Petitioner 
The beneficiary has established a plan of generating new business clients and increased in this 
difficult environment by broaden the company's market focus. The beneficiary is instituting 
plans to conduct sales and marketing activities in the regions of the US with less severe housing 
problems. The beneficiary is exploring the possibility of venturing into other business 
opportunities beside the sale and distribution of decorative stones. 
Due to the fact that the Chinese market for building materials is still growing, the beneficiary is 
making the paradigm shift of exporting US made, high quality building materials to China . . . . 
Counsel noted that the petitioner has three employees, including the beneficiary, and noted that, given the 
downturn in the economy and the decrease in homebuilding and renovation spending by Southern California 
residents, the petitioning company "is facing the brunt of the economic crisis." 
The petitioner submitted a revised organizational chart in response to the RFE which depicts the beneficiary as 
president. The chart indicates that holds the positions of marketing manager and finance 
department, while is the head of the "office center." The positions of cashier/warehouse, office 
manager and receptionist are listed, but apparently vacant. Finally, the petitioner submitted a copy of its 
California Form DE-6 for the third quarter of 2003, which shows that was hired in August 2008. 
The director denied the petition on December 3 1, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. In 
WAC 08 240 51 189 
Page 6 
denying the petition, the director emphasized that the beneficiary's claimed duties are too broad and nonspecific to 
convey any understanding of what she does on a day-to-day basis as the petitioner's president, and merely 
paraphrased the statutory definitions of managerial and executive capacity. 
The director also based her decision, in part, on the petitioner's staffing levels, noting that, with a staff of only one 
or two subordinates, it had not been established that the beneficiary would be relieved from performing many 
aspects of the day-to-day operation of the business. While the director acknowledged counsel's claim that the 
beneficiary made the executive decision to eliminate some positions for economic reasons, the director noted that 
the petitioner's evidence indicates that the company has been staffed by only two employees since the beginning 
of 2007. 
The director concluded that, while the beneficiary may have the requisite authority and discretion over the 
petitioning company, the petitioner had failed to establish that her actual duties would be primarily managerial or 
executive in nature, or that she would supervise a staff of subordinate staff comprised of managerial, professional 
or supervisory employees. 
On appeal, counsel for the petitioner asserts that the director "failed to incorporate the whole record of the 
evidence" and "failed to give due consideration to petitioner's special needs in personnel management in order to 
survive the recent declining in real estate market." Counsel alleges that the director inappropriately 
decided the executive capacity of the proposed position solely based on the number of petitioner's current 
employees." 
Further, counsel asserts that the organizational chart submitted in response to the director's request for evidence 
"demonstrated that the beneficiary sits at the top of the petitioner's company hierarchy and directly supervises two 
managerial positions - MarketingIFinance Manager and General Office Manager." Counsel acknowledges that 
the petitioner failed to provide the requested position descriptions for the beneficiary's subordinates but states: 
"the job titles of the subordinates, in combination of the nature of the petitioner's business, are clear enough to 
indicate the duties to be performed by the subordinate personnel to relieve the beneficiary from non-qualifying 
duties." Specifically, counsel states that the employees' job titles "made it clear that these positions . . . would 
cover general marketing, finance and custonler service in a sales company such as negotiating contracts, planning 
marketing strategies and advertising, building business, working with sales people, monitoring sales and 
marketing performance, working with independent auditors and accountants and etc., and therefore relieve the 
beneficiary from perform [sic] such duties to provide a service." 
In addition, counsel asserts that the director considered the petitioner's staffing levels without considering the 
reasonable needs of the organization in light of its overall purpose and stage of development, as required by 
section 101(a)(44)(C) of the Act. Counsel asserts that, as a company deeply involved in real estate during an 
economic downturn, the petitioner has a reasonable need to control costs, and "the fact that it only has three 
fulltime employees on its payroll at present does not take away the executive nature of the beneficiary's position." 
Counsel asserts that the beneficiary's level of authority in the company "far exceeds the level normally given to a 
first-line supervisor and qualifies the position as an executive appointment." 
WAC 08 240 5 1 189 
Page 7 
Upon review, and for the reasons stated herein, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
When examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the proposed 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 that will be performed by the beneficiary and 
indicate whether such duties will be either in an executive or managerial capacity. Id. The AAO will then 
consider this information in light of 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. 
As noted by the director, the petitioner has failed to provide a sufficiently detailed description of the 
beneficiary's day-to-day duties. The initial position description failed to specify any specific tasks the 
beneficiary performs on a daily basis as the chief executive officer of a ceramic tile wholesale business. For 
example, the petitioner stated that the beneficiary "has full responsibility for the petitioning U.S. company," 
"exercise[s] discretion over every aspect of operations of the business," "has the authority to hire and fire and 
take personnel actions," and "will spend a tremendous amount of time making important executive decisions." 
Such duties provide little insight into the nature of the beneficiary's position, and largely paraphrase the 
statutory definitions of managerial and executive capacity. See section 101(a)(44)(A) and (B) of the Act. 
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. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F. 2d 4 1 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The director therefore requested a more detailed description of the beneficiary's' duties, accompanied by a 
breakdown of the percentage of time the beneficiary allocates to specific tasks. The director's request also 
included a request for a list of specific decisions the beneficiary has made, specific goals and policies she has 
implemented, and a specific, day-to-day description of the duties the beneficiary performed over a six month 
period. Counsel's response to this clear request provided offered little more information regarding the nature 
of the beneficiary's daily responsibilities. Counsel noted that the beneficiary made the decision to "cut payroll 
expenses and eliminate some positions," and is instituting plans to generate new business in other regions of 
the United States and through export activities, but discussed these decisions and goals in vague terms. The 
petitioner did not provide the requested specific job description for the beneficiary or the amount of time she 
devotes to specific tasks. Any failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). Although the director's adverse decision 
includes a detailed discussion explaining why the submitted job descriptions are deficient, neither counsel nor 
the petitioner has supplemented the record on appeal with any further information regarding the beneficiary's 
actual job duties. 
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 prove that the beneficiary primarily performs these specified responsibilities and does not 
WAC 08 240 51189 
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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 beneficiary's "control," management or direction over 
a company cannot be assumed or considered "inherent" to her position merely on the basis of the beneficiary's 
job title, placement on a general organizational chart or broadly-cast business responsibilities. While the AAO 
does not doubt that the beneficiary has the requisite level of authority over the U.S. company, the record 
remains devoid of a description of the beneficiary's actual job duties and is therefore insufficient to establish 
that the beneficiary would be performing primarily managerial or executive duties. 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 her daily routine. The actual duties themselves will 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp, at 1108. 
As noted above, when examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and 
Immigration Services (USCIS) reviews the totality of the record, including descriptions of a beneficiary's 
duties and those of his or her subordinate employees, the nature of the petitioner's business, the employment 
and remuneration of employees, and any other facts contributing to a complete understanding of a 
beneficiary's actual role in a business. 
Here, there are unexplained discrepancies regarding the number of employees working for the petitioner, their 
job titles and their job duties. At the time of filing, the petitioner indicated on Form 1-129 that it has two 
employees. It named only two employees on its organizational chart, indicating that the beneficiary serves as 
both president and marketing manager, and that serves as "cashier/warehouse manager." In 
response to the RFE, the serves as both finance manager and marketing 
manager, while a third employee, office center manager. The petitioner has also 
submitted a Form DE-6, Quarterly Wage and Withholding Report, which suggests that as 
working for the company as of August 2008, prior to the filing of the petition. The petitioner has not 
submitted any explanation for these inconsistencies. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). It is reasonable to believe that if the 
petitioner actually employed three employees as of the date the petition was filed, it would have reported this 
information on the Form 1-129 and in the original organizational chart. Therefore, these discrepancies raise 
questions regarding the reliability of the petitioner's claims regarding its staffing levels and the ability of the 
subordinate employees to relieve the beneficiary from involvement in the day-to-day operations of the 
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. 5 1 10 1 (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. 4 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
WAC 08 240 51 189 
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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. fj 214.2(1)(1)(ii)(B)(3). 
Here, the petitioner originally claimed that the beneficiary's sole subordinate was a "cashierlwarehouse 
manager" and later claimed that the beneficiary supervises both a marketinglfinance manager and an office 
center manager, while the cashier/warehouse position is un-staffed. Regardless of whether the beneficiary 
supervised one or two employees, the totality of the record does not support a conclusion that the beneficiary's 
subordinates are supervisors, managers or professionals. Though requested by the director, the petitioner did 
not provide job descriptions for the beneficiary's subordinates or the level of education required to perform 
the duties of the subordinate positions. Any failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 103.2(b)(14). 
On appeal, counsel acknowledges that the petitioner failed to provide the requested position descriptions for 
the beneficiary's subordinates. Rather than supplementing the record on appeal with this pertinent 
information, counsel suggests that the director should have assumed that such employees "would cover 
general marketing, finance and customer service" functions. Counsel's unsupported assertions are not a 
substitute for the specific information directly requested by the director. 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). Absent a description of the actual duties performed by the claimed subordinate managers, the AAO 
cannot determine whether they are performing managerial duties or whether they are performing the routine 
duties of the departments they are claimed to manage or supervise. 
Thus, the petitioner has not established that the beneficiary's subordinates possess or require a bachelor's 
degree, such that they could be classified as professionals.' Nor has the petitioner shown that either of these 
employees supervise subordinate staff members or manage a clearly defined department or function of the 
petitioner, such that they could be classified as managers or supervisors. An employee will not be considered 
to be a supervisor simply because of a job title, because he or she is arbitrarily placed on an organizational 
chart in a position superior to another employee, or even because he or she supervises daily work activities 
and assignments. Rather, the employee must be shown to possess some significant degree of control or 
authority over the employment of subordinates. See generally Browne v. Signal Mountain Nursery, L.P., 286 
F.Supp.2d 904,907 (E.D. Tenn. 2003) (Cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at * 16 (E.D. 
Tex. Jan. 11, 2007)). The petitioner has not shown that the beneficiary's subordinate employees are 
' Section 10 1 (a)(32) of the Act, 8 U.S.C. 5 1 10 1 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 (7 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
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supervisory, professional, or managerial, and she cannot qualify as a "personnel manager" pursuant to section 
10 1 (a)(44)(A)(ii) of the Act. 
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. 5 1 101 (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 hnction, the petitioner must furnish a position description 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. 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. Here, the petitioner has not clearly articulated a claim that the beneficiary manages an 
essential function of the petitioning company, and, as discussed above, the petitioner has not provided a 
detailed description of the beneficiary's duties sufficient to establish that she performs primarily managerial 
duties. As noted above, absent a clear and credible breakdown of the time spent by the beneficiary performing 
her duties, the AAO cannot determine what proportion of her duties will be managerial, nor can it deduce 
whether the beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. US. 
Dept. Of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 101 (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-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. While the beneficiary's job 
description borrows liberally from the statutory definition of "executive capacity," the facts of this case do not 
support a finding that her actual duties are primarily focused on the broad policies of the U.S. company. The 
fact that the beneficiary manages a business, regardless of its size, does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). 
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 1 101(a)(44)(C). However, counsel incorrectly asserts that the 
director "decided the executive capacity of the proposed position solely based on the number of petitioner's 
current employees." The AAO notes that the director in fact denied the petition in large part based on the 
WAC 08 240 51 189 
Page 11 
petitioner's failure to provide the requested detailed description of the beneficiary's duties, and did not base 
her determination solely on the petitioner's staffing levels. 
In reviewing the relevance of the number of employees a petitioner has, 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 
Sewices 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)). 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. 200 1). 
The petitioning company was established in 2004 and claims to operate a wholesale, import and export 
company. The evidence shows that the petitioner leases an approximately 8,000 square foot space to be used 
for the sale and distribution of ceramic tile products, and photographs of the business indicate that it does 
business as a "ceramic tile factory outlet" with a large showroom and warehouse space. The company 
achieved gross sales of $720,492 in 2006 and $555,543 in 2007. At the time of filing, the petitioner claimed 
to employ the beneficiary as president, one cashier/warehouse manager and a contracted accountant, but 
failed to provide detailed position descriptions for its employees. The petitioner has not explained how a 
single employee relieves the beneficiary from substantial involvement in the day-to-day operations of the 
company, particularly in light of counsel's assertions that multiple positions were eliminated by the 
beneficiary due to the economic downturn. While the company's sales decreased between 2006 and 2007, the 
decrease was not drastic. If positions were in fact eliminated, it is reasonable to believe that the company's 
remaining employees, including the beneficiary, have been responsible for performing the duties of 
employees who were laid off in order to ensure the financial health of the company. 
Considering these issues along with the vague job description submitted for the beneficiary, and the 
petitioner's failure to provide position descriptions for the beneficiary's staff, the AAO cannot conclude that 
the beneficiary is relieved from involvement in the day-to-day operations of the company. The petitioner 
reasonably requires employees to perform duties associated with sales, marketing, customer service, 
warehouse, inventory, delivery, purchasing, day-to-day banking, bookkeeping, administrative and clerical 
matters, and other routine functions. The petitioner has not provided information regarding how such tasks are 
accomplished within the two to three-person company, or how the beneficiary is relieved from direct 
participation in these matters. 
The petitioner cannot simply explain that its industry has been negatively impacted by an economic downturn 
and expect to be exempted from the requirement that it employ the beneficiary in a primarily managerial or 
executive capacity. As noted by the director, the evidence of record does not establish that the petitioner was 
forced by economic factors to decrease its staffing levels. The petitioner maintained a staff of two employees 
throughout 2007 and most of 2008. Furthermore, the AAO notes that according to the petitioner's IRS Forms 
1120, the petitioner paid its employees $101,770 in 2006 and $105,579 in 2007, thus suggesting that no 
WAC 08 240 51189 
Page 12 
significant staffing changes occurred from one year to the next. It is unclear based on the evidence in the 
current record whether the petitioner has ever been fully staffed, with all positions listed on the organizational 
chart filled. 
In sum, the lack of a detailed description of the beneficiary's actual duties, considered in conjunction with the 
petitioner's failure to respond to the director's request for evidence and the evident lack of employees to 
perform the non-qualifying operational and administrative functions of the organization, precludes the AAO 
from determining that the beneficiary is employed in a primarily managerial or executive capacity. While the 
beneficiary may exercise discretionary authority over the U.S. company, the record is not persuasive in 
demonstrating that the beneficiary has been or will be employed in a primarily managerial or executive 
capacity. The petitioner suggests that its current staffing levels are temporary and that it will expand and 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). In the instant matter, the petitioner has not established that it currently employs the 
beneficiary in a primarily managerial or executive capacity. 
While USCIS previously approved a new office petition and an extension of status filed on behalf of the 
beneficiary, the prior approvals do not preclude USCIS from denying an extension of the original visa based 
on reassessment of beneficiary's or petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556, 2004 WL 1240482 (5th Cir. 2004). If the previous nonimmigrant petitions were approved based on the 
same unsupported assertions that are contained in the current record, the approvals would constitute material 
and gross error on the part of the director. Due to the lack of evidence of eligibility in the present record, the 
AAO finds that the director was justified in departing from the previous approvals by denying the present 
request to extend the beneficiary's status. As discussed above, the evidence submitted fails to describe the 
beneficiary's actual job duties in detail as required by 8 C.F.R. 9 214.2(1)(3)(ii), includes unresolved 
inconsistencies regarding the staffing of the company, and is insufficient to establish that the beneficiary 
would be employed in a managerial or executive capacity. 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593,597 (Comm. 1988). It would be absurd to suggest that USCIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Furthermore, the AAO's authority over the service centers 
is comparable to the relationship between a court of appeals and a district court. Even if a service center 
director had approved the nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound 
to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The petitioner has not submitted evidence on appeal to overcome the director's determination that the 
beneficiary will not be employed in a managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
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Page 13 
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.