dismissed L-1A Case: Import/Sale Of Goods

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PUBLIC COPY 
U.S. Department of £%omeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: LIN 04 23 7 52528 Office: NEBRASKA SERVICE CENTER Date: JUL 0 6 2006 
IN RE: 
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 10 1 (a)(15)(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. 
R ert P. Wiemann. Chi 
-7 
' ./ 
Administrative Appeals Office 
LIN 04 237 52528 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of Illinois engaged in the 
import and sale of carved stone, iron and wood products from India. The petitioner claims that it is a 
beneficiary as its president for a three-year period. 
The director denied the petition concluding the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the petitioner 
submitted sufficient evidence to establish that the beneficiary will be employed in an executive capacity. 
Counsel claims that the director applied only the statutory criteria for "managerial capacity," and failed to 
explain why the evidence submitted did not establish that the beneficiary would be employed as an executive. 
Counsel did not submit a brief or additional evidence in support of the appeal. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
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. 
(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 hindher to perform the intended 
LIN 04 237 52528 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issue in this proceeding is whether the beneficiary will be employed by the United States entity in a 
managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 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. 
The nonirnmigrant petition was filed on August 23, 2004. In an August 16, 2004 letter, the petitioner 
described the beneficiary's proposed duties as president of the U.S. company as follows: 
LIN 04 237 52528 
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[The beneficiary] will be responsible for overall operation [and] well being of the company 
[and] its employees. She will have to look for growth opportunities, monitor accounting 
procedures, ensure QC, and maintain control of company through examination [and] 
interpretation of weekly management reports [and] meetings with VP. She would have to 
monitor all company checks and oversee project operations, oversee accounting and sales, 
manage key accounts, determine personnel salaries and bonuses and finally review and 
analyze all the management reports. 
The petitioner noted that it had recently hired two employees, a sales manager and an administrative assistant, 
and provided recent payroll records as evidence of their employment. The petitioner stated that the sales 
manager "has a strong network of sales representatives who work on a commissioned basis, and he manages 
them daily for sales calls." The petitioner further stated that the sales manager would be responsible for sales 
management in the Midwest region, including responsibility for exhibitions, following up and maintaining 
relations with customers, providing targets and managing sales representatives, and managing new orders. 
The petitioner described the administrative assistant as being responsible for "handling calls, customer 
service, mails, etc." 
In addition to its payroll employees, the petitioner stated that it leases a showroom in the "California Market 
Centre" in Los Angeles, California. The petitioner noted that a sales representative working for the California 
Market Center is responsible for manning the petitioner's Los Angeles showroom. The petitioner noted that it 
outsources its customs clearance and warehousing functions to outside companies. 
The director issued a request for additional evidence on August 24,2004, instructing the petitioner to provide: 
(1) a complete, detailed description of the duties to be performed by the beneficiary in the United States, 
including the percentage of time the beneficiary will spend performing each duty; and (2) further 
documentary evidence to establish that the beneficiary qualifies under all four criteria for either a manager or 
an executive, and clearly identifying how the beneficiary's proposed position is specifically situated in 
relation to others in the company. 
The petitioner, through counsel, submitted a response to the director's request on October 1, 2004. The 
petitioner indicated that the beneficiary would direct the management of the company and allocate her time as 
follows: 
A. 
 SALES MANAGEMENT : Sales management is expected to take approximately 
30-35% of her total time. . . 
1. 
 Recruitment, development and Retaining sales managers and sales representatives, who 
would further recruit and manage all the commission based sales representatives. . . . 
(5- 10% of her total time) 
2. 
 Guiding and supervising the work of Sales Managers and Sales Representatives to 
follow up on the leads obtained. These leads are received when sales reps make sales 
calls, follow ups from exhibitions, Emails, website hits and fax messages or telephone 
calls. These need to be evaluated and discussed and are replied by the sales reps and 
sales managers. At the end of each day, the President needs to follow up with each 
LIN 04 237 52528 
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sales rep and manager to get the report for the entire day. This activity would take up 
20-25% of her total time. 
3. 
 Consistent and ongoing interaction with the top clients and their managers and utilize 
those relationships to help shape future clients for effective branding of the product. 
[The petitioner] has some key accounts. . . that consistently provide repeat orders and 
like to work directly with the President. The president would need to follow up with 
them at least thrice a week with each client. These calls and notes from the calls would 
take up approximately 5-10% of her total time. 
B. MARKETING MANAGEMENT: 
Marketing management is expected to take approximately 25-30% of her total time. . . 
1. 
 Creating and implementing marketing strategic plans which would involve decision of 
which temporary exhibitions . . . to participate, and allocate the necessary resources to 
promote the complete produce line and the brand at the highest levels possible. . . . This 
research, discussions and cost calculations would take approximately 10-15% of her 
time. 
2. 
 Profit and Loss responsibility and full operating management responsibility for each 
product stream. . . .The president would have to supervise her sales team to accurately 
monitor the Profit and Loss for each product and revenue stream. . . .Based on her 
analysis, she would have to make right decisions to make each steam profitable. This 
profit and loss analysis would take approximately 5-10% of her time. 
3. 
 Managing the Permanent Showrooms. . . . This activity would take about 10-15% of 
her time every day. 
4. 
 Develop client presentations such as marketing proposals, monthlylweekly reporting 
packages, visual aids. . . Perform research on market, pricing and competitive trends. 
This would take up approximately 3-5% of her total time. 
C. OPERATIONS MANAGEMENT: 
Operations Management is expected to take approximately 30-40% of her total time. . . . 
1. 
 Extensive coordination with the parent company. . . regarding reviewing the designing 
and manufacturing of the products as ordered by clients. The President, initially, would 
be responsible for all communications and supervision with all the Indian Managers 
regarding designing for customer made orders, manufacturing of the products, shipping 
and handling of the products, warehousing and dispatch of the products. . . . This would 
approximately take 15-20% of her time 
2. 
 Coordination and Supervision of Warehousing, shipping and handling in the USA. 
[The petitioner] has a warehouse established in Charleston, SC where it stores its 
inventory. . .. The president would have to supervise the warehousinglshipping 
manager in Charleston for various handling decisions. This would take up 
approximately 10-1 5% of her time. 
3. 
 Decision on Pricing, Profit Mark Ups and Discounts for various product lines for major 
quantities. . . . A detailed analysis needs to be performed regarding manufacturing, 
amount of carving detail requirements, shipping and warehousing to determine the 
price for the product. This would take up approximately 10-15% of her time. 
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D. FINANCE AND ACCOUNTING MANAGEMENT: 
Finance and Accounting Management is expected to take approximately 10-15% of her total 
time.. . . 
1. Work with financial accountants to review accounting operations including timely 
month-end and year-end closing process. Assist in placement of accounting and 
operations systems. Work with financial accountants in helping prepare external 
financial statements. . . Coordinate preparation of tax returns and other required tax 
filings. Review the annual and monthly budgets. 
2. 
 Supervising the Cash Flow Management: The President would have to manage the 
daily cash flow of the Company. This would include supervising the Administrative 
Assistant for the Receivables and Accounts Payables management and finalizing the 
payroll. 
In support of its response to the director's request for evidence, the petitioner submitted a copy of an August 
8, 2003 sales representative agreement between the petitioner and Kenneth Ludwig Home Furnishings, Ltd. 
(KLHF) which designates KLHF as the petitioner's exclusive sales representative, on a commission basis, in 
the tenitones of Minnesota, Wisconsin, Illinois, Michigan and Indiana. The petitioner noted that the sales 
representative has a permanent showroom in the Chicago Merchandise Mart. The petitioner also discussed its 
future plans to "sign up for" two additional showrooms, in Atlanta and Dallas, by the first quarter of 2005, 
and noted that it intended to hire a sales manager, Alpa Bagga, by the beginning of 2005 to manage sales for 
Ohio, Indiana and Wisconsin. The petitioner submitted a new organizational chart which includes the office 
administrator/administrative assistant, the sales manager, the Chicago-based commissioned sales 
representative, the "showroom manager" of the petitioner's Los Angeles showroom in the California Market 
Centre, the proposed sales manager, an outsourced accounting firm whose services are described as "quarterly 
financial statements, budgeting, and tax returns," an outsourced payroll services provider, and an outsourced 
warehousing management company. The petitioner showed all staff reporting directly to the beneficiary. 
The director denied the petition on October 7,2004, concluding that the petitioner had not established that the 
beneficiary would be employed in the United States in a primarily managerial or executive capacity. The 
director noted that neither of the petitioner's current employees for whom the beneficiary would serve as a 
first-line supervisor are employed in professional positions. The director further observed that "the record 
provides no indication that any of the other functional responsibilities outlined for the beneficiary would only 
be managed or directed by the alien and not performed by the alien herself." The director concluded that the 
beneficiary would be primarily involved in performing the day-to-day services essential to maintaining the 
petitioner's business. 
In an appeal filed on October 29, 2004, counsel for the petitioner asserts that the director applied only the 
statutory criteria for "managerial capacity," and failed to provide support for his conclusion that the 
beneficiary would not serve in an executive capacity for the U.S. company. Counsel asserts "in filing for the 
beneficiary to be president of the company, the petitioner was filing for the president to be considered as an 
executive." Counsel notes that in response to the director's request for evidence, counsel specifically stated 
"these duties clearly show that she directs the management, establishes the goals, and as president, exercises a 
wide latitude of discretionary decision-making (only general supervision)." Counsel asserts that this 
statement "directly reflects the regulation concerning duties as an executive." Counsel concludes by 
LIN 04 237 52528 
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reiterating that the director provided "no reasoning to show why the Beneficiary would not be functioning as 
an executive, when, in fact, we maintain she does, and have provided adequate proof to show this." 
Counsel's assertions are not persuasive. Upon review of the petition and the evidence, the petitioner has not 
established that the beneficiary would be employed in the United States in a managerial or executive capacity 
under the extended petition. 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(1)(3)(ii). The 
petitioner's description of the job duties must clearly describe the duties to be performed by the beneficiary 
and indicate whether such duties are either in an executive or managerial capacity. Id. 
Prior to the director's decision, neither the petitioner nor counsel specified whether the beneficiary would be 
employed in a managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. Although the beneficiary's 
proposed job title suggests an "executive" position, the petitioner's initial description of the beneficiary's 
duties failed to describe any executive-level duties. Accordingly, in his request for evidence, the director 
specifically requested that the petitioner clearly identify how the beneficiary's proposed position meets all 
four statutory criteria for managerial capacity, as defined at section 101(a)(44)(A) of the Act, or all four 
statutory criteria of executive capacity, as defined at section 101(b)(44)(B) of the Act. Although the petitioner 
provided a lengthy job description in response, the petitioner failed to specify whether it intended to employ 
the beneficiary as a manager or as an executive, and failed to explain how the beneficiary's duties met the 
requirements of one or the other statutory definitions. Contrary to counsel's assertions on appeal, neither 
counsel nor the petitioner clearly indicated that the beneficiary would be employed in an executive capacity. 
Further, and as discussed further below, the duties described in response to the director's request for evidence 
did not suggest that the beneficiary would perform the types of duties or hold the level of authority consistent 
with an executive-level position. It was therefore reasonable for the director to primarily apply the statutory 
criteria for managerial capacity when analyzing the record in this matter. On appeal, the petitioner does not 
dispute the director's findings that the beneficiary would not be employed in a managerial capacity. 
Regardless, as the AAO's review is conducted on a de novo basis the AAO will herein address the petitioner's 
evidence & eligibility under both statutory definitions. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989). 
Although the petitioner has provided a lengthy description of the beneficiary's duties, portions of the 
description merely paraphrase the statutory definition of executive capacity at section 101(a)(44)(B) of the 
Act, while other portions are too vague to convey an understanding of what duties the beneficiary will 
perform on a day-to-day basis. General, over-broad statements such as "promotes strategic vision," "manages 
and directs the U.S. operation," "establish goals and policies of company," and "use latitude in decision 
making and day to day operation," do not assist the AAO in assessing the beneficiary's actual tasks. 
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. Suva, 724 F. Supp. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Furthermore, the petitioner's descriptions of the beneficiary's duties include a number of operational tasks 
that do not fall under traditional definitions of managerial or executive capacity. The petitioner stated that the 
beneficiary will devote a total of 55 to 65 percent of her time to sales management and marketing 
LIN 04 237 52528 
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management tasks, but the petitioner's description of the beneficiary's duties associated with these 
"management" responsibilities includes routine daily supervision of sales staff, discussing and following up 
sales leads, calling on clients and taking notes fiom these sales calls, performing market research, and 
developing client presentations. While it appears that the beneficiary would exercise supervisory authority 
over the petitioner's "sales manager," based on the petitioner's representations, she will also directly perform 
non-qualifying sales, marketing and customer service duties. 
The petitioner further indicated that the beneficiary would be responsible for "operations management" and 
would spend a total of 25 to 35 percent of her time communicating with the Indian parent company regarding 
product design, manufacturing, shipping and handling for customer orders, and coordinating domestic 
shipping and handling with the petitioner's outsourced warehouse services company. The petitioner did not 
identify any lower-level employees who would assist the beneficiary with these duties, nor clarify how 
communicating and coordinating product orders or product shipping and warehousing qualify as managerial 
or executive duties. 
The beneficiary cannot qualify as a manager or executive simply because she will occupy the highest-level 
position within the company, supervise its employees, and be responsible for the expansion of the business. 
The fact that an individual has a managerial or executive job title and exercises discretion over a company's 
operations does not necessarily establish eligbility for classification as an intracompany transferee in a 
managerial or executive capacity within the meaning of section 101(a)(44) of the Act. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties are related to operational or policy management, not to the 
supervision of lower level employees, performance of the duties of another type of position, or other 
involvement in the operational activities of the company. 
In the instant matter, the petitioner has failed to show that non-qualifying duties will not constitute the 
majority of the beneficiary's time. 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 'I, 19 I&N Dec. 593, 
604 (Comm. 1988). 
Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 4 101 (a)(44)(A)(ii) of the Act. 
LZN 04 237 52528 
Page 9 
The beneficiary in this matter will supervise a "sales manager," an administrative assistant, and a 
commissioned sales representative. As noted by the director, the petitioner did not establish that any of these 
positions require the services of an individual with 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. Although one of the beneficiary's subordinates is referred to as a "sales 
manager" and the petitioner referred to his "network of sales representatives who work on commission basis," 
the petitioner provided no documentary evidence in support of its claim that the sales manager would 
supervise other employees. Further, the petitioner's organizational chart shows the only documented sales 
representative reporting directly to the beneficiary, and no sales representatives under the "sales manager." 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec, 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, the petitioner has not shown 
that the beneficiary's subordinate employees are supervisory, professional, or managerial, as required by 
section 101(a)(44)(A)(ii) of the Act. The considerable portion of time the beneficiary will allocate to 
supervising her subordinates cannot be considered time spent performing managerial duties, further 
supporting a conclusion that the beneficiary's duties will not be primarily managerial of executive in nature. 
On appeal, counsel claims that the beneficiary will be employed as an executive, and appears to suggest that it 
is irrelevant whether the beneficiary will perform the managerial duties of supervising professional, 
managerial or supervisory employees. The statutory definition of the term "executive capacity" focuses on a 
person's elevated position within a complex organizational hierarchy, including major components or 
functions of the organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of 
the Act, 8 U.S.C. tj 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 discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. 
Here the petitioner's description of the beneficiary's duties makes no mention of the beneficiary's 
responsibility for establishing the goals and policies of the organization, and, as discussed above, the 
petitioning company has no subordinate managerial employees. The petitioner has not shown that the 
beneficiary has been or will be functioning at a senior level within an organizational hierarchy. The petitioner has 
not demonstrated that it has reached a level of organizational complexity wherein the hiringffiring of personnel, 
discretionary decision-malung, and setting company goals and policies constitute significant components of the 
duties performed on a day-to-day basis. Rather, as discussed above, the record suggests that the preponderance of 
the beneficiary's time will be devoted to non-qualifymg sales, marketing, first-line supervisory and operational 
tasks. 
LIN 04 237 52528 
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The director based his decision partially on the size of the enterprise and the number of staff, concluding that 
the petitioner did not employ subordinate employees to relieve the beneficiary fkom performing primarily 
non-qualifying duties. Counsel does not address this determination on appeal. Upon review, and in light of the 
discussion of the beneficiary's duties above, the AAO concurs with the director's conclusion. As required by 
section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is 
acting in a managerial or executive capacity, CIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. The AAO has long 
interpreted the regulations and statute to prohibit discrimination against small or medium size businesses. 
However, the AAO has also long required the petitioner to establish that the beneficiary's position comprises 
primarily managerial and executive duties and that the petitioner has sufficient personnel to relieve the 
beneficiary from performing operational and administrative tasks. 
At the time of filing, the petitioner was a one-year-old company engaged in the import, sales and marketing of 
its parent company's hand-carved garden accessories. The petitioner submitted evidence that it employed a 
"sales manager," a part-time administrative assistant, and one commissioned sales representative, and it 
proposed to employ the beneficiary in the "executive" position of president. Based on the petitioner's 
representations, it does not appear that the reasonable needs of the petitioning company might plausibly be 
met by the services of the beneficiary as president and the above-referenced employees. Regardless, the 
reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of 
reviewing the claimed managerial or executive duties. The petitioner must still establish that the beneficiary 
is to be employed in the United States in a primarily managerial or executive capacity, pursuant to sections 
101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this essential 
element of eligibility. 
The AAO acknowledges that the record contains numerous references to the future objectives of the U.S. 
operation, including a detailed business plan and proposed organizational chart reflecting the petitioner's 
anticipated staffing levels for 2007. However, this evidence is not probative of the petitioner's eligibility as 
of the filing date. The AAO is not required to consider evidence of speculative future activity. The petitioner 
must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter 
ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
the United States in a primarily managerial or executive capacity. For this reason, the appeal will be 
dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.