dismissed L-1A Case: Import/Retail

identifyin r 1 ~.t, .~ ~leted to
pevent ~f" .\,varranted
lavuion01 i>t-t'sonalprivacy
PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 04 022 52706 Office: CALIFORNIA SERVICE CENTER Date: JUL 0 5 2001
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(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.
"-
Robert P. Wiemann, C ef
Administrative Appeals Office
www.uscis.gov
WAC 04 022 52706
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(l5)(L). The petitioner, a California corporation, states that it intends to import books and
handicrafts from Nepal. The petitioner claims that it is the subsidiary of Global Books Center, located in
Kathmandu, Nepal. The petitioner seeks to employ the beneficiary as the import/marketing manager of its
new office in the United States for a two-year period. 1
The director denied the petition concluding that the petitioner did not establish: (1) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) that the beneficiary has
been employed by the foreign entity in a managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal counsel for the petitioner asserts that the beneficiary
has been and would be employed in a qualifying managerial capacity and is therefore eligible for the
requested classification. Counsel submits a brief and additional documentary evidence in support of the
appeal.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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. § 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 (1)(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.
1 Pursuant to the regulation at 8 C.F.R. § 214.2(1)(7)(i)(A)(3), if the beneficiary is coming to the United States
to open or be employed in a new office, the petition may be approved for a period not to exceed one year.
WAC 04 022 52706
Page 3
(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.
If the petition indicates that the beneficiary is coming to the United States as a manager or executive to open
or to be employed in a new office in the United States, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment involved executive or managerial authority over the new
operation; and
(C) The intended United States operation, within one year of the approval of the petition,
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B)
or (C) of this section, supported by information regarding:
(1) The proposed nature of the office describing the scope of the entity, its
organizational structure, and its financial goals;
(2) The size of the United States investment and the financial ability of the
foreign entity to remunerate the beneficiary and to commence doing business
in the United States; and
(3) The organizational structure of the foreign entity.
The first issue addressed by the director is whether the petitioner established that the beneficiary will be
employed by the United States entity in a primarily managerial or executive capacity.
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) manages the organization, or a department, subdivision, function, or component of
the organization;
WAC 04 022 52706
Page 4
(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), 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.
Pursuant to the regulations at 8 C.F.R. §§ 214.2(l)(3)(v)(B) and (C), the petitioner must establish that the
beneficiary's proposed position will involve executive or managerial authority over the new operation, and
that the new U.S. company will support an executive or managerial position within one year.
The nonimmigrant petition was filed on October 31,2003. The petitioner indicated on Form 1-129 that the
beneficiary would serve as "import cum marketing manager" and perform "some clerical work." On the L
Classification Supplement, the petitioner further described the beneficiary's duties as:
Will help to set up the business in a torist [sic] area, buy books, meet distributors (agents)
in U.S., send items saleable in [N]epal and export to Nepal plus train one or more
individuals to be serviceable to the new company[.]
The director determined that there was insufficient evidence in the record to demonstrate eligibility and issued
a request for evidence on December 19, 2003. The director instructed the petitioner to submit: (1) a detailed
description of the beneficiary's proposed duties in the United States, including the percentage of time the
WAC 04 022 52706
Page 5
beneficiary would devote to each duty; (2) the proposed number of employees for the U.S. company and an
organizational chart depicting the job titles, job duties, educational levels, and salaries/wages for all proposed
employees; and, (3) an explanation as to how the new U.S. company will support a managerial or executive
capacity within one year. The director further requested evidence related to the new office requirements set
forth at 8 C.F.R. § 214.2(l)(3)(v)(C), including a detailed description of the type of business to be operated,
and a detailed hiring plan for the U.S. company's first twelve months of operation.
In a response dated March 10, 2004, counsel for the petitioner stated:
At this time the beneficiary is training the US investor and director of the local company
and has one employee. As the business activity picks up, the firm will need at least three
more employees, a total of four plus the beneficiary.
Counsel stated that the petitioner is engaged in wholesale and retail sales of imported Nepalese books,
magazines, jewelry, metal sculptures, hand woven shawls, sweaters, paintings, homemade rice paper and gift
items. Neither counsel nor the petitioner further addressed the beneficiary's proposed duties, the petitioner's
hiring plan, or the proposed organizational structure of the company.
The director denied the petition on April 8, 2004, concluding that the petitioner had not established that the
beneficiary would be employed in a managerial or executive capacity. The director noted that the petitioner
had described the beneficiary's duties in only broad and general terms and had provided insufficient detail
regarding the beneficiary's actual duties and the percentage of time he would devote to managerial duties.
The director observed that based on the limited evidence submitted, it appeared the preponderance of the
beneficiary's duties would be directly providing the services of the petitioner's store.
On appeal, counsel for the petitioner asserts that the beneficiary will be employed in a managerial position as
marketing manager/importer "to oversee the management of the U.S. Company." Counsel asserts that the
beneficiary would have "managerial authority over essential subdivisions of the petitioner's vast U.S.
organization, which consists of major division [sic] and several subdivisions within this division." Counsel
further describes the beneficiary's proposed duties as follows:
[The beneficiary] will plan and develop investment in the United States. [The
beneficiary] will also hire and supervise assistant staff. [The beneficiary] would be
responsible for managing and directing the entire U.S. marketing. [The beneficiary]
would analyze market trends and economic conditions to forecast potential purchases and
sales. [The beneficiary] would be responsible for overall U.S. sales and marketing
operations, manage the planning and implementation of the overall strategies for
marketing and promotional activities nationwide. [The beneficiary] would explore U.S.
Market for Nepalese goods like Books, Magazines, handicrafts and Pashmina shawls.
[The beneficiary] will study the market trend and explore that which goods are profitable
for exporting to Nepal. After finalizing negotiations with American sellers and buyers, he
will coordinate for shipment of goods with Parent company in Nepal. Other duties would
WAC 04 022 52706
Page 6
include analyzing market, setting strategic planning goals, setting sales quotas and
expenses, developing advertising and promoting products in U.S.A.
In support of the appeal, the petitioner submits an organizational chart for the U.S. company depicting the
beneficiary as president and marketing manager. The chart indicates that the beneficiary will supervise a
marketing assistant, a senior salesman and an accountant , and depicts three salesmen under the supervision of
the senior salesman. The petitioner also attaches brief position descriptions for each employee.
Upon review, counsel's assertions are not persuasive. 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.ld.
Preliminarily , the AAO notes that the petitioner has substantially altered the description of the beneficiary's
duties from one of initially setting up operations for a retail store, to one of analyzing market trends,
developing market strategies, coordinating shipments of goods to and from Nepal, and a manage a "vast U.S.
organization." The petitioner also indicated in its March 2004 response to the request for evidence that the
petitioner has one employee and anticipated a maximum staff of four, and now claims on appeal to employ
seven people as of May 2004.
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title,
its level of authority within the organizational hierarchy , or the associated job responsibilities. The petitioner
must establish that the position offered to the beneficiary when the petition was filed merits classification as a
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec . 248, 249 (Reg. Comm. 1978).
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to
CIS requirements. See Matter of Izummi , 22 I&N Dec . 169, 176 (Assoc. Comm. 1998). In this case the
descriptions offered by the petitioner are inconsistent, and make no reference to the types of duties initially
listed, nor has the petitioner submitted documentation corroborating either description. This fact, coupled with
the lack of supporting evidence that the petitioner actually hired the six claimed employees or has a "vast U.S.
organization ," leads the AAO to conclude that the evidence offered on appeal is not probative.
Further, the director specifically requested evidence of the beneficiary's proposed duties and the proposed
organizational structure of the U.S . business in the request for evidence. As noted above, the petitioner made
only a cursory attempt to respond to the director's request, and failed to submit much of the requested
evidence. Where , as here , a petitioner has been put on notice of a deficiency in the evidence and has been
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time
on appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec.
533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have
submitted the beneficiary's job description and evidence regarding the petitioner's staffing levels in response
to the director's request for evidence. Id. Under the circumstances, the AAO need not and does not consider
the sufficiency of the evidence submitted on appeal. Therefore, the analysis of this criterion will be based on
the job description submitted with the initial petition.
WAC 04 022 52706
Page 7
Upon review, the petitioner has not established that the U.S. company would employ the beneficiary in a
primarily managerial or executive capacity within one year. The petitioner indicates that the beneficiary's
duties will include buying books, meeting distributors, purchasing and exporting items to Nepal, and "some
clerical duties." Based on this description, the beneficiary will be responsible for providing the purchasing,
sales and trading services of the U.S. company. 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. 593,
604 (Comm. 1988).
While it appears that the beneficiary will have the authority to hire and train employees for the U.S. company,
the petitioner failed to provide the requested hiring plan, a business plan, or any other information regarding
the number of employees to be hired within the first year of operations and their proposed job duties. The
petitioner indicated that the beneficiary "is training the US investor and director of the local company and has
one employee." The petitioner did not indicate to whom it was referring, as the petitioner did not otherwise
provide evidence related to a U.S. investor or director. Going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici,
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972)). The petitioner suggested that a total of five employees, including the beneficiary, would
eventually be hired, but provided no timetable for hiring these employees or any explanation regarding their
proposed 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. § 103.2(b)(14).
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties.
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). The record does
not establish that the petitioner, at the end of the first year of operations, will have sufficient staff to relieve
the beneficiary from non-managerial tasks associated with petitioner's business. Considered in conjunction
with the petitioner's failure to provide the requested comprehensive description of the beneficiary job duties
and a meaningful account of how his time will be allocated, the totality of the record does not support the
petitioner's claim that the beneficiary will be employed in a primarily managerial or executive capacity.
Accordingly, the appeal will be dismissed.
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Page 8
The second issue in this proceeding is whether the petitioner established that the beneficiary was employed by
the foreign entity in a primarily managerial or executive capacity.
The petitioner described the beneficiary's duties as follows on the L Classification supplement to Form 1-129:
[I]ncharge-in-chief [sic] selection, buying Imported and indigenous books set up distribution
centers , visit schools/colleges established a small scale manufature [sic] of handicrafts on
premises weaving and dyeing and finishing of shawls.
In the initial letter dated October 29 , 2003, the beneficiary's duties with the foreign entity were described as:
[The beneficiary] has been serving and operating the Nepalese company as its managing
director for a number of years .... [The beneficiary] is/was responsible for imports and
overall marketing of parent firm's products in Nepal, including some export to the United
States.
The petitioner submitted an organizational chart for the foreign company , which indicates a total of twelve
employees, but none of the employees are identified by name. The chart depicts a managing director, a
general manager, a personnel manager, a marketing manager, a finance manager, a personnel assistant, a
marketing assistant, an accountant assistant, two salesmen, and two driver/helpers.
The director subsequently requested additional evidence regarding the number of employees working for the
foreign entity ; a copy of the foreign ,company's organizational chart identifying the employees by name and
job title; brief position descriptions for all employees of the foreign entity; and a detailed description of the
beneficiary's duties, including the percentage of time he devotes to each job duty.
In response to the director's request , the petitioner stated that the foreign entity is a family business owned by
the beneficiary, his spouse, and their three children. Counsel stated that there are no payroll records and that
each family member "takes whatever he/she needs and then pays taxes what they took from the operation of
the business." Counsel noted that the beneficiary "being the head of the family operated the business with the
assistance of other family members , all treated as employees/part owners." Counsel stated that in addition to
the family members, the foreign entity employed two full-time employees and 10 to 15 weavers on an as­
needed basis.
Counsel further described the beneficiary's duties abroad as follows:
Beneficiary being the head of the family business worked as the general manager paid
accordingly and was responsible for the overall success and operation of the business.
[Beneficiary] was responsible to contact local, foreign (India , USA, etc.) exporters
regarding history, cultural, religious and business related books, import from India hand
made artifacts , supervise local weavers on [the foreign entity's] site to weave Pashmina
shawls and sweaters , inspect the raw material , the final products, set prices and
conditions of sale, layout of the merchandize [sic] in the company store.
WAC 04022 52706
Page 9
Counsel stated that an organizational chart with a summary of duties and salary for each employee was
attached , but such evidence cannot be located in the petitioner's response to the request for evidence.
The director denied the petition concluding that the petitioner had failed to establish that the beneficiary has
been employed by the foreign entity in a managerial or executive capacity. The director observed that based
on the position descriptions provided , the beneficiary is responsible for supervising low-level employees and
performing many aspects of the day-to-day operations of the business. The director noted that the petitioner
had failed to provide a comprehensive description of the beneficiary's duties that would establish that he is
primarily responsible for managing the organization, or a department, division or function of the organization ,
or that he manages a subordinate staff of professional , managerial or supervisory personnel who relieve him
from performing non-qualifying duties.
On appeal , current counsel of record emphasizes that the beneficiary is the owner and managing director of
the foreign entity, not a "mere high level employee." Counsel notes that previous counsel erroneously referred
to the beneficiary as "general manager ," thus contributing to the denial of the petition. Counsel asserts that the
beneficiary performs the following duties in his role as managing director:
[The] beneficiary also manages inventory and purchasing of imported books, magazine,
novel , newspaper and other published materials from Asia and European markets like India,
Thailand, Singapore and England. Beneficiary negotiates and oversees substantial
international purchase contracts with sellers in these foreign countries. As shown in the
organizational chart, beneficiary is also responsible for hiring and supervising the General
Manager , marketing manager, personnel manager and finance manager. Beneficiary was also
responsible for the production and sales of hand made handicrafts , Pashmina shawls and
sweaters. He supervised the business from production to whole and established policies and
objectives.
The petitioner re-submits the organizational chart submitted with the initial petition, which indicates that the
foreign entity employs a total of twelve employees.
Upon review, the petitioner has not established that the beneficiary was employed by the foreign entity in a
primarily managerial or executive capacity. When examining the executive or managerial capacity of the
beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R.
§ 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.ld .
The fact that an individual owns and operates a business and has an executive job title does not necessarily
establish eligibility for classification as an intracompany transferee in a managerial or executive capacity
within the meaning of section 101(a)(44) of the Act. See 52 Fed. Reg. 5738 , 5739 (Feb. 26 , 1987). A
distinction must be drawn between the plain definition of manager as understood in the ordinary course of the
average business , and the regulatory definition of managerial capacity as defined in 8 C.F.R. §
214.2(l)(l)(ii)(B). The latter restricts the beneficiary's duties and prevents the beneficiary from being able to
WAC 04 022 52706
Page 10
actually perform the duties that provide the product or service of the company. Thus, the fact that an
individual manages a business does not necessarily establish eligibility for classification as an intracompany
transferee in a managerial or executive capacity as contemplated by statute and regulation. In this case the
record does not contain sufficient evidence to demonstrate the nature of the beneficiary's employment
capacity abroad.
The job descriptions provided for the beneficiary's position as managing director of the foreign entity fall
significantly short of establishing that his primary duties have been managerial or executive in nature. The
petitioner indicated that the beneficiary selects and buys books, was responsible for imports and "overall
marketing," contacting exporters, supervising weavers and inspecting their work, inspecting raw materials
used in weaving, and displaying merchandise in the foreign entity's store. Based on the descriptions provided
in support of the initial petition and in response to the director's request for evidence, the beneficiary devotes
a significant portion of his time to purchasing, importing, exporting, first-line supervisory tasks, and other
non-qualifying duties required to operate various aspects of the foreign entity's business.
The definitions of executive and managerial capacity have two separate 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). Here, while the beneficiary evidently exercised
authority over the foreign entity as its owner and managing director, the record does not support a finding that
he devoted the majority of his time to managerial or executive tasks. 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. Although
specifically requested by the director, the petitioner's description of the beneficiary's job duties does not
establish what proportion of the beneficiary's duties is managerial in nature, and what proportion is actually
non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 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)(l4).
Counsel now attempts to further clarify the beneficiary's duties on appeal, noting that the beneficiary
"manages inventory and purchasing," is "responsible for the production and sales of hand made handicrafts,"
"establishes business policies and objectives," "negotiates and oversees substantial international purchase
contracts," and manages four managerial employees. Counsel's assertions are unpersuasive. The job
description provided on appeal is not sufficiently detailed to establish the beneficiary's employment in a
qualifying capacity. 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. at 1108. 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).
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Page 11
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather the
AAO must determine based on a totality of the record whether the description of the beneficiary's duties
represents a credible perspective of the beneficiary's role within the organizational hierarchy. Therefore,
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.
The organizational chart submitted with the initial petition was insufficient to assist in a determination of the
beneficiary's employment capacity, as it failed to identify any employees by name and did not clearly indicate
that all of the listed positions were actually filled. As noted above, the chart indicated 12 employees,
including a managing director, a general manager, three managers responsible for marketing, personnel and
finance, an assistant for each manager, two sales people and two drivers.
The director reasonably requested that the petitioner provide a more detailed organizational chart, clearly
indicate the number of employees and the positions held, provide job descriptions for all employees and
provide payroll documentation. The petitioner failed to submit the requested evidence in response, but did
indicate that the beneficiary's spouse and three children all work for the business. The petitioner indicated that
the company has two additional full-time employees, and hires 10-15 weavers as needed. The petitioner did
not identify the job titles or job duties of the beneficiary's family members or its claimed additional full-time
employees, or attempt to reconcile this description of staffing levels with the organizational chart submitted
with the initial petition. 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).
Furthermore, 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 ofHo, 19 I&N Dec.
582, 591-92 (BIA 1988). Based on the petitioner's response to the request for evidence, the foreign entity
employs, at most, seven full-time employees including the beneficiary, not twelve as indicated on the
organizational chart. Further, the organizational chart did not include any employees engaged in the weaving
activities of the foreign entity, or suggest that the foreign entity employs any employees responsible for
purchasing, import or export functions. This omission is particularly critical, as the petitioner indicates that
the beneficiary himself supervises the weavers and performs many of the purchasing and import/export
activities. Finally, the record remains devoid of any evidence documenting the employment of the foreign
entity's employees. Counsel's assertion that the family members take money from the business as needed does
not assist in documenting the employment of the other claimed employees. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter ofSoffici, 22 I&N Dec. at 165.
As the AAO cannot determine who is employed by the foreign entity or what duties they perform, it cannot be
concluded that the beneficiary supervises a subordinate staff of professional, managers or supervisors. See
section 101(a)(44)(A)(i) of the Act, 8 U.S.C. § 1101(a)(44)(A)(i). Further, the record does not establish that
WAC 04 022 52706
Page 12
the beneficiary supervises a staff sufficient to relieve him from performing the non-managerial functions of
the business. Collectively, the non-qualifying duties included in the beneficiary's job description, considered
in light of the lack of evidence of the foreign entity's staffing, further support a conclusion that the beneficiary
has not been performing primarily managerial or executive duties.
While the AAO acknowledges that former counsel erroneously referred to the beneficiary as "general
manager" rather than as "managing director," it is noted that it is the beneficiary's actual duties, and not his
job title, which reveal the true nature of his employment. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp.
1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Contrary to current counsel's assertion, there
is nothing in the director's decision to suggest that she denied the petition based on thejob title erroneously
provided by former counsel.
Based on the foregoing discussion, the petitioner has not established that the beneficiary was employed by the
foreign entity in a primarily managerial or executive capacity. For this reason, the appeal will be dismissed.
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if he or she shows that the AAO abused its discretion with respect to all of the AAO's enumerated grounds.
See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d
683 (9th Cir. 2003).
The petition will be denied and the appeal dismissed 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.
ORDER: The appeal is dismissed.