dismissed L-1A Case: Investment And Trade

6 
i 
u.S. Department of Homeland Security 
20 Massachusetts Ave., N.W , Rrn. 3000 
Washington, DC 20529 
identltying data deletea 
prevent clearly unw-td 
 u.S. Citizenship ' 
invasion of persod Svacy 
 and Immigration 
Services 
File: WAC 05 099 5021 8 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(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. 
I 
WAC 05 099 502 18 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administratwe 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 10,l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. fj 1101(a)(15)(L). The petitioner is a Nevada limited liability company that claims to be engaged in 
investment activities and import and export of tobacco leaves and cigarettes. The petitioner states that it is a 
subsidiary of 
 located in Hong Kong, China. The petitioner seeks to 
employ the beneficiary as its president for a three+ear period. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a'motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
"ignored the facts of the case" and "commonsense business practice," and failed to correctly consider the 
reasonable needs of the petitioner given its overall purpose and stage of development. Counsel submits a brief 
in support .of the'appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section ibl(a)(l5)(~) 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, execut~ve, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
) (i) 
 Evidence that the petitloner 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. 
(ii~) 
 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 
WAC 05 099 5021 8 
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. 
At issue in the present matter 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. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 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 nonimmigrant petition was filed on February 23, 2005. The petitioner noted on Form 1-129 that the 
company has two permanent employees and ten "occasional employees" and seeks to employ the beneficiary 
WAC 05 099 502 18 
Page 4 I 
as its president, and as vice president of its majority-owned subsidiary, - In a 
letter dated February 18,2005, the petitioner described the beneficiary's proposed role as follows: 
We require [the beneficiary's] frequent presence in the United States as an executive and 
manager employed by both 
 [the petitioner] and 
 in order to delegate or 
personally attend to all activities required to important duties in our operations. He ,will 
handle, delegate or personally conducted [sic] all activities necessary to establish [the 
petitioner's] investment activities, as well as Southwest Bull's purchasing tobacco, producing 
and exporting cigarettes to a'higher profitable level. Specifically Board of Directors of [the 
foreign entity] has authorized [the beneficiary] to complete discretionary powers over day-to- 
day operations, payroll and banking duties, execution of $sset and property leases, hiring and 
firing of employees, setting-up budgets to establish the project and other duties as is 
necessary. 
The petitioner also submitted minutes of a ~aiuary 18, 2005 meeting of the Board of Directors of the its 
 , 
claimed parent company, which included the following description of the beneficiary's proposed duties in the 
United States: 
a. 
 To establish the business goals, commercial tactics, company policies and business 
budgets of [the petitioner] and Southwest Bull & John, Inc.; 
b. 
 To strengthen the commercial relationships with the tobacco importers and exporters 
companies in China and to procure the export of tobacco leaves from USA to China as 
soon as possible; 
c. 
 To obtain the ATF Manufacturing license in the USA, to join in the Master Settlement 
Agreement and to start manufacturing the U.S. brand name "America No. 1" as soon as 
possible; 
d. 
 To expand the investment and trading businesses of [the petitioner]; 
e. 
 To manage the day-to-day operations of the company, to utilize the company's capital 
and assets with full authority, to hire and fire staff (including secretary, accountant, 
translator, lawyers, sales person and worker) with fullauthority[.] 
On March 7, 2005, the director issued a request for additional evidence, in part instructing, the petitioner to 
submit the following evidence in support of its claim that the beneficiary would be employed by the petitioner 
in a managerial or executive capacity: (1) a more detailed description of the beneficiary's proposed duties in 
the United states including the percentage of time to be spent in each of the listed duties; (2) an organizational 
chart for the U.S. entity which clearly identifies all subordinates to be supervised by the beneficiary by name 
and job title; (3) a brief description of job duties, educational level, annual salarieslwages, and immigration 
status for all employees under the beneficiary's supervision; and (4) copies of Nevada quarterly wage reports 
for all employees for the last four quarters. 
In a response received on May 26, 2005, the petitioner provided the following information in response to the 
director's request for a detailed description of the beneficiary's duties: 
WAC 05 099 502 18 
Page 5 
[The beneficiary] will primarily have the following duties: 
a. manages the [petitioner] and its subsidiary Southwest Bull & John, Inc.; 
b. Supervises and controls the work of officers of two companies and general operation [of] two 
companies; 
c. Exercises discretion over the day-to-day operations of the activity[.] 
, 
In lieu of the organizational chart requested by the director, the petitioner provided the following description 
of its current staffing levels: 
Right now [the petitioner] hired Qing Yang, a U.S. citizen as secretary and treasurer with 
salary of $2,20O/month. Southwest Bull hired Thomas F. O'Neil, a U.S. citizen, as 
PresldentlCEO and vice president of [the petitioner].   or [the petitjoner's] Jani-King project, 
we hired about 10 part time workers who are legally authorized to work. Mr. O'Neil made a 
mistake in investing $72,000 into Jani-King's project, his compensation will be decided by 
[the beneficiary] once he is here in the United states: 
The director denied the petition on June 8, 2005, concluding that the petitioner had failed to establish that the 
beneficiary would be employed by the U.S. ent~ty in a primarily managerial or executive capacity. The 
director found that the job descriptions provided for the beneficiary were overly broad and merely 
paraphrased portions of the statutory definitions for managerial and executive capacity. The director further 
observed that the duties described appeared to include sales and marketing tasks which could not be 
considered managerial or executive in nature. In addition, the director noted that the petitioner failed to 
provide the requested position descriptions for the beneficiary's claimed subordinates and therefore had not 
established that the beneficiary would supervise a staff of professional, managerial or supervisory employees, 
or that the subordinate staff would relieve the beneficiary from performing the non-managerial and non- 
executive functions of the company. Finally, the director noted that the petitioner did not submit documentary 
evidence to support its claim that it had hired ten part-time workers or any other staff, such as contractors or 
consultants, to relieve the beneficiary from performing the day-to-day duties required to operate the business. 
  he director acknowledged that the petitioner may intend to increase its full-time staff in the future, but noted 
that the future hiring of additional employees has no bearing on a determination as to whether the beneficiary 
will be employed in a primarily managerial or executive capacity. The director observed that the petitioner, 
as an established office, must establish eligibility~for the beneficiary sought at the time of filing. 
The petitioner filed the instant appeal on July 7, 2005. In an appellate brief dated August 2, 2005, counsel for 
the petitioner asserts that the beneficiary's duties will be primarily executive in nature, and contends that the 
director "ignored not only the facts of the case but also commonsense business practice." Specifically, 
counsel states: I 
The Service neglected to take into account the fact that the Beneficiary, as the President of 
[the petitioner] and Vice-President of Southwest Bull of the company, is in essence the only 
employee who can be considered a company executive. If the Service's position is to be taken 
to its logical end then it must be concluded that the Petitioner is a$company lacking 
WAC 05 099 502 18 
Page 6 
executives and managers and instead is a company that consists of only lower level 
employees. From a business standpoint this is impossible. 
Counsel emphasizes that the foreign entity invested over one million dollars in the U.S. operations, and 
asserts "all companies must have executive level employees who are vested with the powers to oversee the 
operation of the business. The Petitioner has vested such overall executive powers in the Beneficiary and to 
conclude otherwise is to ignore not only the facts of the case but commonsense business practice." Counsel 
recites the st&utory definition of "executive capacity" and asserts that the beneficiary's duties as described by 
the petitioner, are "virtually idekical." Counsel suggests that the director's conclusion that the beneficiary 
would act as a first-lme supervisor over non-professional employees implies a failure on the part of the 
director to review the documentation submitted. 
Counsel further asserts that the director failed to consider the reasonable needs of the petitioning organization 
in light of its overall purpose and stage of development, as specified in section 101(a)(44)(C) of the Act. 
Counsel states that many small business operated streamlined organizations and states that USCIS "should not 
judge the sophistication and complexity of executive positions in the relevant industry on the basis of the 
number of employees supervised, or the lack of subordinate employees." Counsel cites an unpublished AAO 
decision in support of his assertion that "staffing levels should only be considered if the Petitioner relies upon 
them as the primary basis upon which to qualify a beneficiary as an executive or manager." Counsel states 
that "the staffing of three U.S. employees are perfect" for the petitioner's current stage of developmen< and 
notes that the petitioner will "immediately take bold steps to expand" upon approval of the beneficiary's L-1A 
visa petition. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary 
will be employed by the U.S. 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(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. 
While the petitioner has been provided with multiple opportunities to provide a detailed description of the 
beneficiary's proposed duties, the provided job descriptions do not address the specific managerial or 
executive job duties to be performed by the beneficiary in the position-of president. For instance, in its 
February 18, 2005 letter, the petitioner stated that the beneficiary will "delegate or personally attend to all 
activities required to important duties in our operations," "handle, delegate or personally [conduct] all 
activities necessary" related to the petitioner's investment and tobacco purchasing and exporting businesses, 
and have "complete discretionary powers over day-to-day operations." The petitioner's description does not 
clarify what specific "activities" are "necessary" and it clearly acknowledges that the beneficiary will directly 
"perform," "handle," or "personally conduct" certain activities, thus implying that he will be performing 
certain non-managerial or non-executive tasks, rather than supervising the performance of such tasks through 
subordinate personnel. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
WAC 05 099 502 18 
Page 7 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 
41 (2d. Cir. 1990). 
Similarly, the position description submitted by the foreign entity, included in its ~anuary 18, 2005 board 
meeting minutes, describes the beneficiary's position in ambiguous terms, and lacks the specificity required 
by the regulations. See 8 C.F.R. tj 214.2(1)(3)(ii). Specifically, the meeting minutes include such vague duties 
as "establish the business goals, commercial tactics, company policies and business budgets," "expand the 
investment and trading businesses," and "manage the day-to-day operations of the company." The petitioner 
 . 
did not define the beneficiary's goals or policies, identify the specific efforts to be taken to "expand" the 
business, nor explain what tasks the beneficiary would perform to "manage the day-to-day operations." 
Reciting the beneficiary's vague job responsibilities.or broadly-cast busines's 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. Suva, 724 F. Supp. at 
1108. 
The foreign entity's board meeting minutes also indicate that the beneficiary's responsibilities will include 
obtaining licenses to "start manufacturing" in the U.S. and "to strengthen the commercial relationship with the 
tobacco importers and export companies in China and to procure the export of tobacco leaves from USA to 
China." The petitioner's failure to address the specific managerial and executive tasks involved in these 
responsibilities is particularly relevant as these more closely resemble non-qualifying tasks related to the 
organization's marketing, sales, purchasing and export functions. Based on the petitioner's claims, the 
beneficiary would "oversee" all operations, yet, as noted above, the petitioner did not identify which tasks.the 
beneficiary will perform personally, and which tasks will be delegated, nor did it sufficiently describe its 
staffing structure or provide evidence that the beneficiary would be relieved from performing non-qualifying 
duties associated with the day-to-day operations of the petitioner's two businesses. 
1 
In sum, the petitioner's initial job descriptions were overly broad and suggested that the beneficiary would.be 
required to .devote some portion of his time to non-qualifying duties related to the purchase, sales and 
marketing of the petitioner's products. Accordingly, the director reasonably requested a detailed description 
of the specific duties to be performed by the beneficiary in the proposed position, an account of the 
percentage of time the beneficiary would devote to each'of the listed duties, an organizational chart for the 
company, descriptions of all positions to be supervised by the beneficiary, and evidence of wages paid to the 
petitioner's employees. The regulation states that the petitioner shall submit additional evidence as .the 
, director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established, as of the time . 
the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The requested evidence was critical, as it would 
have assisted in establishing whether the actual duties to be performed by the beneficiary are managerial or 
 . 
executive in nature, the percentage of time to be devoted to qualifying versus non-qualifying duties; and 
whether the petitioner employed other workers who would reasonably be expected to relieve the beneficiary 
 : 
from ~riniarily conducting the day-to-day functions of the business. 
WAC 05 099 502 18 
Page 8 
> 
The petihoner failed to provide most of the requested evidence, including the organizational chart, a 
description of the duties to be performed by the beneficiary's subordinates, a detailed list of the beneficiary's 
duties, or the percentage of time he would devote to each of his various responsibilities. The failure to submit 
requested evidence that precludes a material line of ~nquiry shall be grounds for denying the petition. 8 C:F.R. 
5 103.2(b)(14). 
Instead, the petitioner submitted an even more general job description of the beneficiary's proposed duties 
which essentially paraphrased the statutory definition of managerial capacity, noting that the beneficiary 
would "manage" the petitioning company and its subsidiary, supervise and control the work of the companies' 
officers, and "exercise discretion over the day-to-day operations of the activity." See sections 
101(a)(44)(A)(i), (ii) and (iv) of the Act. Conclusory assertions regarding the beneficiary's employment 
capacity are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), agd, 
905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The MO will not accept a vague job description and speculate as to the managerial or executive tasks to be 
performed in connection with overseeing "daily operations" or unspecified "activities. The petitioner has not 
established the actual duties to be performed by the beneficiary as president, such that they could be classified 
as managerial or executive. On appeal, counsel simply repeats the position description found in the 
petitioner's February 18, 2005 letter and asserts that as the description closely resembles the statutory 
definition of ."executive capacity," the beneficiary is qualified for the benefit sought. Counsel also argues that 
the beneficiary "is the only" employee who can be considered a company executive" and implies that the 
denial of the petition leads to the conclusion that the company can operate without an executive. 
Counsel's assertions are not persuasive. The petitioner's initial description of the beneficiary's duties, as 
discussed above, was overly broad and failed to distinguish ,between executive and non-executive tasks. 
Again, the petitioner cannot satisfy its burden of proof by paraphrasing the statutory definitions. The 
regulations require a detailed description of the actual duties to be performed by the beneficiary. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. at 1108. Further, counsel's assertions that every company requires an 
executive and that the beneficiary is the only employee who can be considered an executive of the petitioning 
company is not supported by the record. The petitioner indicates that the beneficiary will serve as president 
of the petitioning company and as vice president of the petitioner's subsidiary,-. 
The petitioner has also stated that 'ewes as president of the petitioner's subsidiary and as vice 
president of the petitioner. Since the petitioner has provided no description of Mr. duties and only a 
limited descnption of the beneficiary's duties, the MO has no basis for distinguishing between these two 
employees in terms of the level of authority held by each. 
> 
Regardless, the fact that the beneficiary has an executive job title and 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 (Feb. 26, 1987). By 
statute, eligibility for this classification requires that the duties of a position be "primarily" of an executive or 
managerial nature. Sections 10 l(A)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 101(a)(44). Pursuant to the strict 
statutory definitions, section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
WAC 05 099 5021 8 
Page 9 
"executive." See sectlon 101(a)(44)(A)(iv) of the Act; see also 52 Fed. Reg. 5738, 5740 (February 26, 
1987)(available at 1987 WL 127799). 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. 
With regard to the petitioner's employees, counsel correctly observes that, when staffing levels are used as a 
determining factor in denying a visa to a multinational manager or executive, the reasonable needs of the 
organization in relation to i'ts overall purpose and stage of development must be considered and addressed. 
See fj lOl(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C). However, there is no indication m this matter that. 
the reasonable needs of the organization were not considered by the director. On the contrary, it appears the 
reasonable needs were considered, and the dlrector cdncluded that the petitioner was incapable based on its 
overall purpose and stage of development to support a primarily managerial or executive position as defined 
by sections 101(a)(44)(A) and (B) of the Act. 
In addition, it is important for Citizenship and Immigration Services (CIS) to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the 
- 
 absence of employees who would perform the non-managerial or non-executive operations of the company, or 
a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics 
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when 
CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
In thls matter, the petltloner claims to operate two companies, the petitioning company and its subsidiary, and 
states that it employs a full-tlme vice president (who serves as president of the subsidiary), a full-time 
"secretary and treasurer," and "ten part time workers who are legally authorized to work." The petitioner's 
quarterly wage report for the first quarter of 2005 confirms the employment of the vice president and two 
part-tlme workers who \received wages of approximately $250 and $770. The petitioner's "secretary and 
treasurer" was not on the petitioner's payroll at the tlme the petition was filed, although it appears that this 
employee was issued a Form W-2 by the subsidiary company in previous years. There IS insufficient evidence 
to establish that this employee was working for either company as of the date the petition was filed. Although 
specifically requested by the director, the petitioner opted not to provide a detailed organizational chart 
depicting all of the beneficiary's subordinates and then job tltles, or posltion descriptions for ~ts employees. 
Golng on record w~thout supporting documentary emdence is not sufficient for purposes of meeting the 
burden of proof in these proceedmgs. Matter of Soffici, 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 claims to operate a cleaning franchise business, and is seeking "other investments," and its 
subsidiary is engaged in the import, export and wholesale trade of cigarettes and tobacco. Based on the 
petitioner's representations, it does not appear that the reasonable needs of the petitioning company and its 
subsidiary might plausibly be met by the services of the beneficiary as president and vice president, a vice 
president and president, a secretary and treasurer, and two part-time employees. Rather, a review of the 
totality of the record, including the submitted job descriptions and evidence.of staffing, supports the drrector's 
conclusion that the beneficiary would be requlred to devote the majority of his tlme to performing non- 
managerial, non-executive duties related to the petitioner's and its subsidiary's sales, marketing and other 
WAC 05 099 502 18 
' Page 10 
routine operational tasks. An employee who "primarily" perfoms 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 1, 19 I&N Dec. 593,604 (Cornm. 1988). 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium 
size businesdes. However, the AAO has also long required the petitioner to establish that the beneficiary's 
position consists of primarily managerial and executive duties and that the petitioner has sufficient personnel 
to relieve the beneficiary from performing operational and administrative tasks. The AAO acknowledges that 
in certain situations a beneficiary who is the sole employee of a company may qualify as a manager or 
executive. It is the petitioner's obligation to establish however, through independent documentary evidence, 
that the day-to-day non-managerial and non-executive tasks of the petitioning entity are performed by 
someone other than the beneficiary. Again, as the petitioner has failed to provide job descriptions for its 
employees or a clear description of the petitioner's and its subsidiary's organizational structure, the petitioner 
has not met this burden. Even though the enterprise claims to be in a preliminary stage-of organizational 
development, the petitioner is not relieved from meeting the statutory requirement of establishing that the 
beneficiary will perform primarily managerial or executive duties as of the date the petition is approved. 
The AAO acknowledges the petitioner's assertions that the U.S. company and its subsidiary anticipated hiring 
additional employees and expanding their business operations in the future. However, as noted by the 
director, a visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978); Matter ofKatigbak, 14 I&N Dec. 45,49 (Cornm. 1971). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed 
primarily in a qualifying managerial or executive capacity. For ths reason, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.