dismissed L-1A Case: Import/Export

MATTER OFF-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 28, 2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an importer and wholesaler of fruits and vegetables, seeks to extend the Beneficiary's 
temporary employment as its general manager under the L-1A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 
U.S.C. § 1101(a)(15)(L). The L-1A classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to 
work temporarily in an executive or managerial capacity. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish that the Beneficiary would be employed in a managerial or executive 
capacity under the extended petition. 
In its appeal, the Petitioner submits additional evidence and states that the Director erred in 
concluding that the Beneficiary primarily performs non-qualifying duties, asserting that the 
Beneficiary spends more than half of her time performing qualifying managerial or executive duties, 
such as overseeing the expansion of the company and training its managers. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(15)(L) of the Act. 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. Id. 
The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter ofF-, Inc. 
(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) ofthis 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 regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the 
opening of a new office, may be extended by filing a new Form I-129, accompanied by the 
following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) ofthis section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a 
management or executive capacity; and 
(E) Evidence ofthe financial status ofthe United States operation. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary would be employed in a managerial or executive capacity under the extended petition. 
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Matter ofF-, Inc. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) 
(ii) 
(iii) 
(iv) 
manages the organization, or a department, subdivision, function, or 
component of the organization; 
supervises and controls the work of other supervisory, professional, or 
managerial erri.ployees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
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 
exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. 
Further, "[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." !d. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development ofthe organization. See section 101(a)(44)(C) ofthe Act. · 
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Matter ofF- , lnF. 
A. Evidence of Record 
The Petitioner filed the Form I-129 on December 11, 2015. On the Form I-129, the Petitioner 
indicated that it has six employees in the United States and a gross annual income of $500,000. The 
Beneficiary was previously granted L-1A status for a one-year period commencing on December 20, 
2014. 
In the Form I -129, the Petitioner stated that the Beneficiary is responsible for managing the company 
and "planning and organizing its resources," including handling major accounts in the United States. 
The Petitioner indicated that the Beneficiary supervises an executive manager who oversees sales 
managers and account executives in charge of "accounting and logistics." It further explained that 
the Beneficiary is in charg~ of the company's marketing campaigns, including a $60,000 advertising 
project. 
In an accompanying support letter, the Petitioner · stated that the Beneficiary's former foreign 
employer is an exporter of avocados from Mexico and that the petitioning company was established 
in California to expand the company's U.S. sales. The Petitioner indicated that it has also partnered 
with another company to globalize its distribution, including exporting avocados to China. It 
explained that the Beneficiary is a key employee who "brings together the sales team" and who was 
tasked with launching the Petitioner's operations, including "writing policy manuals and company's 
goals," "hiring managers [and] contracting professional services," and "determining sales 
strategies." The Petitioner stated that the Beneficiary would be responsible for "staffing, training, 
and scheduling personnel, procurement of licensing and certifications, supervision of equipment 
acquisitions, quality control, and the coordination of distribution with [the] parenting company." 
The Petitioner submitted the Beneficiary's resume which included additional duties for the 
Beneficiary, noting that she was responsible for coordinating the design and installation of an 
exhibition booth at a trade show in CA, participating in seminars and trade shows, 
building contact networks, leading teams, managing employee performance, and setting 
developmental plans. 
( 
The Petitioner also provided the following duty description for the Beneficiary: 
The General Manager is responsible for day-to-day activities of directing 
controlling and coordinating all phases of the Importing, Distribution and 
Marketing operations in the U.S. 
1- 30% She will plans [sic], direct, and coordinate the import, distribution 
activities and customer satisfaction of avocados to 
which currently generates 
an annual gross income for Mexican filial of about US $30 million. She 
makes sure distribution proceeds smoothly and promptly to comply with 
customer's requirements. She will ensure strategies, goals and objectives are 
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(b)(6)
Matter ofF- , Inc. 
communicated to line managers and key personnel in ·all areas within the 
logistical structure of the company. She .will daily supervise all documents 
(sales orders/purchase orders) issued by our parent company through our 
shared data entry system making sure all transactions are profitable and within 
company standards. She will ensure USA customers satisfaction in case there 
are complaints or delays in their productions. She will oversee co-distribution 
project with for s~le of avocados to China with [sic] is 
projected started November 2015. She keeps updated with import fees and 
U.S. customs rules to ensure compliance with law. 
2- 30% She will oversee $60,000 marketing project with 
She will design and 
implement market research statistics, initiate market segmentation and 
develop and oversee the production of marketing campaigns and materials. 
As member of she will direct the 
presentation at the annual marketing event (ie. 2014) and 
participation in other events nationally and internationally. 
3- 20% She will hire, train and supervise a staff of account executives for 
development of new markets. She will train staff to develop and oversee 
logistics activities related to eCommerce, order-filling, shipping, payments 
and returns using company's developed software, so they can independently 
manage their 
accounts. 
r4- 10% Liaison between parent company and the U.S, office to ensure timely 
and accurate deliveries in an efficient and cost effective manner. She will 
work closely with other managers to implement the company's policies and 
goals. She will collaborate with Board, and designs, sales and product 
development departments of parent company to develop new sales strategies, 
quality assurance and product developments. 
5- 10% She will oversee Executive Manager. She will monitor compliance with 
company's standards and implement quality-control programs. Assist in the 
selection, supervision, and development of subordinate personnel and 
contracted professionals. Proactively improve process functioning and strive 
for enhanced levels of efficiency. Ensure the safeguard and security of 
Company assets. 
The Petitioner submitted an organizational chart indicating that the Beneficiary reports to the 
I 
Director of the company and that she oversees a west region sales manager and an executive 
manager. The chart reflected that the west region sales manager supervises an east region sales 
manager who in tum oversees a customer service employee. The chart further indicated that the 
executive manager oversees "outsourced" accounting and accounts payable and receivable functions. 
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(b)(6)
Matter ofF-, Inc. 
The Petitioner submitted a business plan dated September 2014 indicating thauhe company would 
begin with two employees, the Beneficiary and the executive manager, the latter of which would be 
responsible for "Logistics, AIR, AlP, and general office administration." It further noted that the 
Beneficiary would begin importing for its client and "work on acquiring new accounts." 
The Petitioner provided a "Permit to Import Plants and Plant Products" dated September 4, 2014, for 
the import of avocados which lists the Beneficiary as the permittee. 
( 
The Petitioner submitted its California quarterly wage report for the second quarter of 2015 
reflecting that it employed three individuals: the Beneficiary, the west regional sales manager, and 
the executive manager. The Petitioner also provided untranslated marketing materials from 
its claim~d advertising contractor. 
The Director later issued a request for evidence (RFE) referencing the Petitioner's organizational 
chart and noting that it reflected six employees while the Petitioner's tax documentation indicated 
that it had only three employees. As such, the Director requested that the Petitioner submit its last 
four state quarterly wage reports and a comprehensive organizational chart reflecting the names, job 
titles, duties, and salaries for each employee. 
In a response letter, the Petitioner provided the names, titles, and salaries for each of its asserted 
seven employees as of April 2016. The,Petitioner stated that the Beneficiary reports to the director 
and chief executive officer, who is responsible for "devising strategies to meet [the] company's 
goals" and the "ultimate decision maker." The Petitioner submitted the following duty description 
for the Beneficiary as "general manager & new business developer": 
Reporting only to the Director and CEO, she has established the rules and 
administration guidelines of the company. She is responsible for day-to-day 
activities of directing, controlling and coordinating all phases of the distribution 
and marketing operations in the U.S. She is the top executive to review all 
projects to ensure . compliance with international certificates such as 
for organic produce, and with plan in 
order to comply with all standards of safety in the handling of food products. The 
is an international certification issued after the establishment is 
evaluated in three areas. She designs and implements market research statistics, 
initiate market segmentation and develops and oversees the production of 
marketing campaigns to generate more clientele. She searches for prospective 
markets, detects buyers and investigates their credit reputation. She has increased 
the company's annual sales to $2.5 million. She monitors compl~ance with 
company's standards and implement quality control programs. She generates the 
Price List for the col)lmerce of our .produces. Since the produce price varies at 
least 
twice a Wt?ek, this list must be updated timely according the variables. She 
studies and compares prices in national and international market and in farms to 
establish prices that are competitive but profitable. The price is mainly based on 
supply. So she develops rules and procedures to buy fruits and vegetables, and 
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Matter ofF-, Inc. 
contract the price to avoid losses. She hires her subordinates and assist[ s] in the 
selection of subcontractors. She directly supervises three employees: Sales 
Manager, Customer Sales Representative and the Executive Manager. She 
indirectly supervises two other employees assisting the Sales Manager and 
Executive Manager in the supervision of their subordinates. 
The Petitioner submitted an organizational chart indicating that the Beneficiary supervises the sales 
manager and west region representative, the customer service employee, and the executive manager. 
The chart further reflected that the sales manager and west region representative oversees the east 
region representative and that the executive manager supervises the account payable and receivable 
employee and an outsourced accounting function. 
In its letter, the Petitioner explained that the sales manager and west region sales representative is 
responsible for negotiating details and payments, assisting in the hiring and training of sales 
representatives, identifying prospective clients, preparing sales contracts and order forms, resolving 
problems, providing support, submitting new business to the Beneficiary for approval, and 
performing other administrative duties. The Petitioner stated that the east region sales representative 
performs duties similar to the asserted supervisor in the west and that the customer service executive 
is responsible for resolving or escalating billing and service complaints, following up on orders 
abroad, coordinating with carriers, and proposing solutions to the Beneficiary. The Petitioner stated 
that the executive manager is responsible for logistics and finances, selecting and providing 
information to an engineering systems company, following the plans and strategies set by the 
Beneficiary, and handling company payroll. Lastly, the Petitioner indicated that an accounts payable 
and receivable representative is tasked with preparing periodical profit and loss statements, paying 
bills, and receiving and dealing with invoices. 
The Petitioner provided a 2015 IRS Form 1120, U.S. Corporation Income Tax Return indicating that 
it earned $2,545,324 and paid $175,361 in salaries during that year. The Petitioner submitted its 
California state quarterly wage report for the first quarter of 2016 reflecting payments to the 
following employees: the director and CEO ($13,184), the sales manager ($16,152), the account 
receivable employee ($2000), the east region representative ($2400), the customer service employee 
($4800), the Beneficiary ($16,152), and one additional employee ($2400). The Petitioner also 
provided state quarterly wage reports for the second and third quarters of 2015 indicating that it had 
three employees, but submitted no wage report for the fourth quarter of2015. 
In denying the petition, the Director pointed to the discrepancy between the Petitioner's 
organizational chart and Petitioner's payroll records and the limited staff of the organization. The 
Director found that it, was likely that the Beneficiary was primarily engaged in non-qualifying 
operational duties. The Director further stated that the Petitioner had questionably modified its 
. organizational structure in response to the RFE. 
In its appeal, the Petitioner asserts that the Beneficiary is not primarily focused on operational tasks, 
but overseeing "global expansion," training managers, and supervising an advertising company in its 
Matter ofF-, Inc. 
formulation of a promotional campaign for the company. The Petitioner notes that the company has 
eight employees and significant revenue, and that it has substantiated these employees with 
supporting payroll evidence. The Petitioner states that it need only demonstrate that the Beneficiary 
spends more than half of her time on qualifying duties and contends that it has established this 
despite her focus on some "administrative tasks." 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that 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, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 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 in either an executive or a managerial capacity. !d. 
The definitions of executive and managerial capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublishedtable decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. The fact that the Beneficiary 
owns or 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 
101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 
101(a)(15)(L) of the Act does not include any and every type of"manager" or "executive"). 
In the instant matter, the Petitioner has submitted duty descriptions for the Beneficiary indicating 
that she would most likely devote a majority of her time to non-qualifying operational tasks. For 
instance, the descriptions refer to her performance of several duties that cannot be classified as 
managerial, including responsibility for all sales and purchase orders, assuring that all transactions 
are profitable, en&uring that all customers are satisfied, presenting and setting up a promotional 
booth at a marketing event, ensuring that all deliveries are timely, coordinating all phases of 
distribution, assuring all produce complies with safety standards, designing and implementing 
market research, investigating the credit of new customers, and generating price lists. Indeed, the 
original duty description for the Beneficiary suggests that the Beneficiary devotes 30% of her time 
directing and coordinating all distribution and sale of produce and another 30% overseeing a 
potential marketing project with an independent contractor, but only 10% overseeing the executive 
manager and 20% hiring and supervising account executives. In other words," the description does 
not reflect that she would devote her time primarily to managerial or executive level tasks. As 
noted, 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, 
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Matter ofF-, Inc. 
e.g., sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); Matter ofChurch Scientology Int'l., 19 I&N Dec. 593, 
604 (Comm'r 1988). 
In contrast, the Petitioner provides little detail regarding the Beneficiary's claimed qualifying tasks, 
such as what "strategies, goals and objectives" she set and communicated to "line managers," the 
nature of the $60,000 marketing project that would require 30% of her time, staff she trained, sales 
strategies or "quality assurance and product developments" she instituted, and company standards 
and quality control program she assures compliance with. Further, the Petitioner asserts that the 
Beneficiary is responsible for growing the Petitioner's business in Chinese and other global markets, 
but submits insufficient supporting evidence to substantiate this claim. In fact, the detail provided 
with respect to non-qualifying operational tasks greatly outweighs that provided with respect to the 
Beneficiary asserted qualifying tasks. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter of Treasure Craft of Cal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). Specifics are clearly an important indication of whether a beneficiary's 
duties involve specialized knowledge, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 
905 F .2d 41 (2d. Cir. 1990). 
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 understanding the Beneficiary's 
actual duties and role in a business. 
In its appeal, the Petitioner poi.IJ.ts to the hierarchy of the organization, its revenue, and size and 
suggests that these factors support a finding that the Beneficiary will act in a managerial capacity. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See sections 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. §§ 
1101(a)(44)(A)(i) and (ii). Personnel managers are required to primarily supervise and control the 
work of other supervisory, professional, or managerial employees. Contrary to the common 
understanding of the word "manager," the statute plainly states that a "first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory 
dlities unless the employees supervised are professiona1."1 Section 101(a)(44)(A) of the Act; 8 
1 In evaluating whether the Beneficiary manages professional employees, we 'must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) 
(defining "profession" to mean "any occupation for which a United States baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation"). Section 10l(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), 
states that "[t]he term profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." 
9 
Matter ofF-, Inc. 
C.F.R. § 214.2(l)(l)(ii)(B)(2). If a beneficiary directly supervises other employees, the beneficiary 
must also have the authority to hire and fire those employees, or recommend those actions, and take 
other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3). 
Here, the Petitioner did not submit its state quarterly wage report from the fourth quarter of 2015, as 
requested by the Director, the quarter most relevant to assessing the Beneficiary's eligibility as of the 
date of the filing of the petition on December 11,2015. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F .R. 
§ 103.2(b)(14). Without this information, we cannot determine which employees were actually 
working for the company at the time of filing or at what point the Petitioner's staff increased from 
three employees to the six employees claimed on the Form I-129. Further, the Petitioner provides 
two different organizational charts, one of which appears to depict the staffing and structure of the 
company as of April2016. As such, we will focus on the chart submitted in support of the petition. 
A visa petition may not be approved based on speculation of future eligibility or after a petitioner or 
beneficiary becomes eligible under a new set of facts. See, e.g, Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg'l Comm'r 1978); Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
In support of the petition, the Petitioner provided an organizational chart indicating that the 
Beneficiary supervised the general manager/business development employee, who in tum oversaw 
the west region sale manager and the executive manager. The chart further reflected that the west 
region sales manager supervised the east region sales manager who oversees the customer service 
employee, while the executive manager supervises outsourced and accounts payable and receivable 
functions. However, the submitted evidence does not substantiate that the Beneficiary's 
subordinates act as managers or supervisors. The duty descriptions of the west region sales 
manager, the east region sales manager, and the executive manager do not mention the supervision 
of subordinates. Further, the Petitioner's state tax documentation from the first quarter of 2016 
reflects that the east region representative and the accounting executive and accounts payable 
employees are paid only part time salaries, indicating that their asserted managers would not devote 
a great deal of their time to supervising employees.2 In the alternative, the Petitioner has not 
demonstrated that any of the Beneficiary's subordinates are professionals performing duties that 
require a bachelor's degree. See section 101(a)(44)(A)(ii) ofthe Act. 
Moreover, the Petitioner has not demonstrated that the Beneficiary's duties primarily focus on the 
management of the organization and the supervision of qualifying managerial, professional, or 
supervisory employees. Although the Beneficiary's job description references her supervision of 
two employees, including two asserted managers who supervise subordinate employees or 
contractors, the Petitioner has not corroborated her supervision of other managers or professionals 
with supporting evidence. Indeed, as noted, the Beneficiary's duties indicate that she would perform 
a number of non-managerial duties necessary for the Petitioner's routine operations. 
2 The submitted CA state quarterly wage report for the first quarter of 2016 indicates that the Petitioner paid the east 
region representative $2400 during that quarter, or the equivalent of $9,600 per year, and the accounting executive 
· $2000, or approximately $8000 per year. 
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Matter ofF-, Inc. 
Further, the duties of the Beneficiary's subordinates indicate that she will delegate little of the day­
to-day tasks to these employees, as these employees will regularly coordinate with the Beneficiary 
on customer complaints, selecting contractors, approving new clients, and nearly all of the 
company's day-to-day operations. In addition, although the Petitioner also contends that the 
Beneficiary would spend a significant amount of time supervising a marketing contractor, it 
has provided no evidence such as contracts or invoices to corroborate this relationship or the 
contractors she supervises pursuant to this relationship. Likewise, the Petitioner indicates that it has 
an outsourced accounting function, but does not corroborate this relationship with documentary 
evidence. In sum, the Petitioner has not submitted sufficient evidence that the Beneficiary's 
subordinate employees will relieve her from performing non-qualifying operational and 
administrative duties at the U.S. company or that she will be employed primarily as a personnel 
manager. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (quoting Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). 
The Petitioner has not established, in the alternative, that the Beneficiary would be employed 
primarily as a "function manager." 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 position description that describes 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.P.R. § 214.2(1)(3)(ii). In addition, a 
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 did 
not indicate that the Beneficiary. would qualify as a function manager. The Petitioner did not 
describe an essential function to be managed by the Beneficiary or provide a breakdown of the 
Beneficiary's job duties to support such a claim. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within an organizational 
hierarchy, including major components or functions of the organization, and 
that perso:p'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-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 
11 
Matter ofF-, Inc. 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." !d. While the definition of 
"executive capacity" does not require the petitioner to establish that the beneficiary supervises a 
subordinate staff comprised of managers, supervisors and professionals, it is the petitioner's burden 
to establish that someone other than the beneficiary carries out the day-to-day, non-executive 
functions of the organization. Here, the Petitioner did not demonstrate that the Beneficiary's duties 
will primarily focus on the broad goals and policies of the organization rather than on its day-to-day 
operations. 
We note 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§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). In reviewing the relevance of 
the number of employees a petitioner has, federal courts have generally agreed that USCIS "may 
properly consider an organization's small size as one factor in assessing whether its operations are 
substantial enough to support a manager." Family Inc. v. US. Citizenship and Immigration Services 
469 F. 3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F 2d. 
175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). It is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial 
or non-executive operations of the company, or a "shell company" that does not conduct business in 
a regular and continuous manner. See, e.g, Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). 
On appeal, the Petitioner contends that it has established that the Beneficiary will devote more than 
half of her time to qualifying duties. However, as we discussed in detail previously, the Petitioner 
has not provided sufficient evidence to indicate that the Beneficiary will primarily perform 
managerial or executive tasks, but instead provided duty descriptions for the Beneficiary and her 
subordinates, suggesting that she would allocate a majority of her time to non-qualifying operational 
tasks. Further, the pro~ided evid~nce does not reflect that the Beneficiary has sufficient subordinate 
employees to carry out the routine tasks associated with the Petitioner's intended business without 
the significant involvement of the Beneficiary, such as arranging for the shipment of produce, 
handling all purchase orders, setting up promotional booths and attending other marketing events, 
coordinating distribution, assuring compliance with safety standards, dealing with customs issues, 
performing market research, processing new customers, and processing payments. In fact, the 
Beneficiary's duty description makes reference to all of these non-qualifying operational duties . 
.. 
Although the Petitioner now provides evidence on appeal that it now employs eight individuals, at 
the time of the petition, the evidence indicated that it employed four employees subordinate to the 
Beneficiary, and supporting evidence reflected that two of these were engaged on a part-time basis. 
Therefore, the evidence does not demonstrate that the Petitioner's organizational structure, as of the 
date of filing, was sufficient to support the Beneficiary in a managerial or executive capacity 
whereby she was relieved from primarily performing non-qualifying operational duties. An 
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Matter ofF-, Inc. 
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 at Dec. 593, 604. Again, a 
visa petition may not be approved based on speculation of future eligibility or after a petitioner or 
beneficiary becomes eligible under a new set of facts. See, e.g., Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg'l Comm'r 1978); Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
Further, in the present matter, the regulations require USCIS to examine the organizational structure 
and staffing levels of the petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 
214.2(1)(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 USCIS 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 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 managerial or executive capacity. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be employed in a managerial or executive capacity under the extended petition. 
III. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofF-, Inc., ID# 58879 (AAO Oct. 28, 2016) 
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