dismissed L-1A Case: Machinery Sales And Service

U.S. Drpnrtmcnt of Homeland Security 
20 Massachusetts Ave.. N.W.. Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC-04-1 08-5023 1 Office: CALIFORNJA SERVlCE CENTER Date: JUL 2 0 ZIlS 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section I0 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN 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. 
obert P. Wiemann, Director 
Appeals Office 
WAC-04- I 08-5023 1 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnmigrant 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 extend the employment of its Vice President and 
General Manager as an L-1 A nonimmigrant intracompany transferee pursuant to section 1 Ol(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of California that engages in sales and after sale service 
machines and related products. The petitioner claims that it is the subsidiary of 
located in Taizhou, China. The beneficiary was initially granted a one-year period of 
stay to open a new o tice in the United States and the petitioner now seeks to extend the beneficiary's stay. f 
The director denied the petition concluding that 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 director 
failed to consider the evidence that the petitioner submitted in response to a request for evidence, and that the 
director erred in not referring to all evidence of the beneficiary:~ duties for the previous year. In support of 
these assertions, counsel submits a brief. additional evidence, and docurnentation already entered into the 
record of proceeding. 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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 te~nporarily 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. 3 214.2(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 organization< as defined in paragraph (I)(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 organi~atibn within the three years preceding the filing of 
the petition. 
WAC-04- 108-5023 I 
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(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 hidher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 9 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Forrn 1-1 29, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (I)(! )(ii)~:G) of this section; 
(B) Evidence that the United States .entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties perfor1:ned by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staft'ing of the new operation, including the number of 
employees and types of positiorls held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in the present matter is whether 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. 3 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 
WAC-04- 108-5023 1 
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(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. $ I IOl(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 supervisioll or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter submitted with the initial petition on March 8,2004, counsel described the beneficiary's prospective 
job duties as follows: 
In the extension period, Beneficiary plans to further and complete its business objectives of 
the [petitioner] and the [foreign entity] hy establishing attending [sic] more trade shows and 
establish [sic] more customers in both North America and South American countries. 
Beneficiary will also set up new development policy and execute plans to accomplish the 
[petitioner's] goals via hands-on and daily management of the 1IS operations, hiring and 
termination of its staff and report the financial statues [sic] and deliver timely information to 
the [foreign entity], forecast growth and financial needs based upon business projections. 
In a separate letter dated March 2. 2004, the petitioner added the following regarding the beneficiary's 
prospective duties: 
Beneficiary plans to hire one administrative person to assist Beneficiary to run the 
administrative functions of the company. hire two or three sales persons to market Petitioner's 
products and hire one technician to be trained on handling customers' questions on 
installation, repair and operation of Petitioner's products. In addition, Beneficiary plans to 
attend 5 industry trade shows to exhibit Petitioner's products and train the sales people to 
follow up with the potential customers who attended Petitioner's trade booth. Beneficiary 
plans to set up a sales goal for 2004 for the United States, Canada and South America in the 
range of $3 million US Dollars and implement the sales plans among the staff and coordinate 
the supply logistics with the parent company. 
WAC-04- I 08-5023 1 
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On Form 1-1 29, the petitioner described the bellel-iciary's prospective duties as follows: 
Directing and Managing the [petitioner's] overall Operations, setting up company 
development policies and goals, governing the company's day-to-day administration and 
business transactions, delegating duties to subordinates, as well as hiring and termination of 
high level personnel and being responsible for determining both the short term and long term 
strategies and goals for the company, exercise wide latitude in decision-making and be 
responsible only to the foreign company's Board of Directors (re: report the financial status 
and deliver timely information to the parent company, forecast.growth and financial needs 
based upon business projection) 
[Dlirecting and managing the [petitioner's] repair center for returned goods and warranty 
good [sic]; responsible for setting up cornpany distribution and marketing policies and goals, 
governing the company's day-to-day administration, delegating duties to subordinates, as 
well as hiring and termination of high-level personnel and being responsible for determining 
both the short term and long term 
Counsel stated that the petitioner hired one employee as an administrative assistant during the first year of 
operation, and that the beneficiary is engaged in further recruitment efforts. The petitioner indicated on Form 
1-129 that it employs one individual. The petil.ioner explained that its administrative assistant returned to 
China for personal reasons, yet that she intends 1.0 return to the llnited States and continue employment with 
the petitioner. 
On March 10, 2004, the director requested additional evidence. In part, the director instructed the petitioner 
as follows: 
Clearly demonstrate that the beneficiary, within one year of doing business in the U.S[.], will 
be employed in an executive or managerial capacity. In this case, the I-year time frame is 
from 613012003 to 6/30/2004. This is best [shown] by providing the following: 
The proposed organizational :structure showing all positions within one year 
operating the new office in the U.S. In this case, the 1-year time frame is from 
6/30/2003 to 613012004. 
A time table to hire all the proposed positions within one year operating the new 
office in the U.S. In this case, the I -year time frame is from 613012003 to 6/30/2004. 
A list of all current employees ofthe [petitioner], including name, job title and duties, 
education, salariesiwages, beginning date of employment. 
WAC-04-1 08-5023 1 
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Submit the most recent Form 1120 U.S. Corporate Income Tax Return and DE-6, 
W-2. W-3. 
Submit copies of business plan. The plan should include specific details as to the 
business to be conducted, and one-year projection for business expenses, sales, gross 
income and profits or losses. 
(Emphasis in original). 
In a response dated May 26, 2004, the petitioner submitted a business plan, an audited financial statement as 
of April 30, 2004, its 2002 IRS Form 1120, U.S. Corporation Income Tax Return, a bank statement dated 
May 25, 2004, a letter from counsel, and a letter from the beneficiary on behalf of the petitioner. In counsel's 
letter, he stated the following: 
Beneficiary hired one administrative employee at the start of operation and place [sic] 
advertisement in USA [Tloday for a period of 5 days . . . . He did not find anyone that is 
suited for internal employment of [sic-1 the [petitioner.] Therdore, his recruiting efforts 
continued. After identifying experienced high level sales people and executives from the 
world's largest high pressure cleaning machine manufacturer in the United States, [the 
beneficiary] spent about 3 months approaching them with competitive compensation 
packages and he finally persuaded top executives from the largest high pressure cleaning 
machine company in the world to come work for the [petitioner] . . . . 
Unfortunately, [the] petitioner did not find any suitable employees and hire them prior to the 
submission of this Petition and resubnlission due to short time restraint of the L-1 visa 
allowance. However, Petitioner has identified suitable candidates and plans to implement the 
New Business Plan upon approval by the Parent Company of its budget for the next phase. 
In the letter from the beneficiary, he discusses the business operations and goals of the petitioner, including 
licensing a name brand from an established company. The beneficiary distinguisl~es the petitioner's products 
from those of its competitors, and discusses design strategies he discovered at U.S. trade shows. The 
beneficiary further stated the following: 
I felt that I should not rush into hiring people for our old business plan. Since we have 
invested time and money in our US ventilres and I think that we should do it right. If you can 
give me one year for me to implement our New Plan, we can show you our implementation 
of our new plan next year with the hiring of high level executives and other US workers and 
increase our contribution to the United States by our tax payment and expenditures and hiring 
of US workers. 
The petitioner's business plan indicates that the petitioner intends to hire two vice presidents by July 5, 2004. 
WAC-04- 108-5023 1 
Page 7 
On June 4, 2004, the director denied the petition. The director determined that the petitioner did not establish 
that the beneficiary will be employed in the Uli~ited States in a primarily managerial or executive capacity. 
The director stated that "marketing and distribution duties by definition qualify as performing tasks necessary 
to provide a service or produce a product," and such duties are not managerial or executive in nature. The 
director noted that "[tlhe record indicates that a preponderance of the beneficiary's duties have been directly 
involved in sales or market research. It appears  hat the beneficiary has been actually performing the services 
of the business. As case law confirms, an employee who primarily performs the tasks necessary to produce a 
product or to provide a service is not considered as employed in a managerial or execut2e capacity." The 
director further stated the following: 
The petitioner has not demonstrated that it has reached or will reach a level of organizational 
complexity wherein the hirindfiring of personnel, discretionary decision-making, and setting 
company goats and policies constitute significant components of the duties performed by the 
beneficiary on a day-to-day basis. USCIS is not compelled to deem the beneficiary to be a 
manger or executive simply because the beneficiary possesses a managerial or executive title. 
Further, the evidence fails to establish lhat the beneficiary will be managing a subordinate 
staff of professional, managerial, or supervisory personnel who will relieve him from 
performing non-qualifying duties. 
On appeal, counsel asserts that the director failed to consider the evidence that the petitioner submitted in 
response to a request for evidence. Specifically, counsel states the following: 
The Service erred in failing to view new business plans with specific evidence containing 
the names of the top executives from its competitors and its plan to hire them each at an 
annual salary over $100,000.00 and its further request or provide an opportunity for the 
Petitioner to provide on-going or current information with regards to the new hires 
defeats [sic] the purpose of a Request for Evidence as described at 8 C.F.R. Section 
103.2(b)(8), i.e., to elicit additional injormation that clarifies whether eligibility for the 
benefit sought has been established so as [sic] to warrant a reversal of the Service's 
decision inconsistent with the Regulations. 
(Emphasis in original). Counsel references the petitioner's efforts to hire two executives, and asserts that 
"[tlo expect everything to be in place and submitted within the deadline of L-l visa extension processing 
frame is unreasonable and sometimes might appear unfair to impose." Counsel indicates that, on July 2, 
2004, the petitioner hired an attorney to prepare a Form 1- 129 petition to secure H- 1 status for one of its new 
hires. Counsel further stated that the petitioner finalized an employment agreement for another employee to 
begin on August 1, 2004, yet the employee decided to postpone employment. Counsel suggests that 8 C.F.R. 
5 103.2(b)(8) requires Citizenship and immigration Services (CIS) to allow the petitioner more time to submit 
ongoing evidence of its business and hiring developments. 
Counsel explains that the beneficiary's sales actrvity has involved dealing with "mainly . . . large whole sale 
[sic] or retail operations . . . ." Counsel states that "sales contacts have been made in trade shows and sales 
were consummated after trade shows via email and telephone calls and company visit. On all the sales 
WAC-04- 108-5023 1 
Page 8 
activities, Beneficiary was dealing with owners of the business and top executive of the client company. 
Therefore, Beneficiary was not performing a low level sales job for the Petitioner." Counsel states that the 
beneficiary established a call center for customers to obtain product support. Counsel provided that "{the 
beneficiary] believes that if he can spend less than 5% of his time working to take care of. . . the call rate 
[there is] no urgent need to staff one person for this position." 
Counsel states that "if [CIS] has questions on how Beneficiary spent his time between his executive duties 
and other duties, [CIS] should have requested Petitioner to provide Beneficiary's allocation of time." 
Counsel further asserts that the director erred in not referring to all evidence of the beneficiary's duties for the 
previous year. In his brief, counsel stated the following: 
[CIS] erred in failing to refer to all elements of Petitioner's proffered evidence of past 
year's operations with sales and the executive functions performed by Beneficiary and 
erroneously concluded that Beneficiary was primarily performing the tasks necessary to 
produce a product or to provide a service and therefore was not employed in a 
managerial and executive capacity when the offered evidence clearly indicates that 
Beneficiary was primarily involved in forming a new company development plan, 
engaged in discussion with top execulives from its competitors and boldly proposed a 
brand new development policy rep1ac:ing the old business development plan proposed 
by its parent company, actively pursuing experienced and capable top executives from 
its competitors, making plans to lure and hire then for permanent employment with 
Petitioner, meeting legal experts consulting on employment law issues and licensing 
issues and approaching name brand companies for licensing right meeting all 
requirements of Section 101(a)(44)(A) of the Act. 
(Emphasis in original). Counsel states that the petitioner does not produce a product in the United States, and 
it "is not a service company that is involved in the regular and systematic provision of sales and marketing 
plans for other companies." 'Thus, counsel asserts that the beneficiary is not primarily involved with 
producing the petitioner's products or providing the petitioner's services. Counsel claims that the business 
plan is evidence of the beneficiary's work during the previous six months. Counsel asserts that the 
beneficiary devotes little time to returning calls from customers regarding product service and returns. The 
petitioner submitted a letter from the beneficiary in which he explains that he has spent a small portion of his 
time addressing customer concerns and returns, and that the need for him to engage in this activity has ceased 
due to discontinuing sales through a partic~ilar rel.ailer. 
Upon review, counsel's assertions are not persuasive and the petitioner has failed to show that the beneficiary 
will be employed in a primarily managerial or executive capacity. See 8 C.F.R. 5 2 14.2(1)(3)(ii). 
As a preliminary matter, it is noted that the director made an erroneous statement in his request for evidence 
regarding the date on which the petitioner must establish that it is capable of employing the beneficiary in a 
primarily managerial or executive capacity. The director stated that the petitioner must "demonstrate that the 
beneficiary, within one year of doing business in the U.SE.1, will be employed in an executive or managerial 
WAC-04-1 08-5023 1 
Page 9 
capacity. In this case, the 1-year time frame is from 6/3012003 to 613012004." (Emphasis in original). As 
June 30, 2003 is the date that the beneficiary first entered the United States in L-IA status, the director 
represented that the petitioner is afforded one year to open its new office commencing on the date the 
beneticiary entered the United States. 
However, the regulation at 8 C.F.R. 5 214,2(1)(3')(v)(C) that governs new office petitions requires a petitioner 
to show that "[tlhe intended United States operation, within one year of the upprovul of the petition, will 
support an executive or managerial position." (Emphasis added). Thus, the date of approval of the initial 
new office petition determines the beginning of the one-year period in which the petitioner may open a new 
office. The petitioner's prior petition (WAC-083-098-50466) to allow the beneficiary to enter the United 
States in order to open its new office was approved on March 24,2003, valid from March 18,2002' to March 
17, 2004. Accordingly, the petitioner was afforded a one-year period in which to bring its operations to a 
level sufficient to support the beneficiary in a primarily managerial or executive capacity, ending on March 
17,2004. 
Further, any request for an extension of a petition that was originally approved as a new office must be evaluated 
under the criteria set forth at 8 C.F.R. $ 214.2(1)(14)(ii), which requires the petitioner to submit evidence of the 
beneficiary's duties during the prior year, the beneficiary's prospective duties, and the petitioner's staffing. The 
regulation at 8 C.F.R. $ 2 14.2(1)(3)(v)(C) allows the intended United States operation one year within the date 
of approval of the petition to support an executive or managerial position. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business is not sufficiently operational 
after one year, the petitioner is ineligible by regulation for an extension. In light of the above-discussed 
regulations, the approval date of the new offii-e petition, not the beneficiary's date of entry, marks the 
commencement of the one-year period afforded to the petitioner to open its new office. 
As noted above, the director indicated that the petitioner must show that it will support the beneficiary in a 
primarily managerial or executive capacity by June 30, 2004. Yet, as the present petition was tiled on March 
8, 2004, the director suggested that the petitioner must establish present eligibility by showing events that will 
occur in the future. However, a visa petition may not be approved based on speculation of future eligibility or 
after the petitioner becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm. 1978); Moiler of Kurightrk, 14 I&N Dec. 45, 49 (Comm. 1971). The petitioner must 
establish eligibility at the time of filing the nonininligrant visa petition. 
Based on the foregoing, the petitioner must show that it wilt support the beneficiary in a primarily managerial 
or executive capacity as of the date of filing the petition. 
When examining the executive or managerial c~apacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 2 14.2(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. The petitioner must specifically state whether the 
It is noted that the beginning date of validity, 'March 18, 2002, constitutes an error, as the petition was not 
filed until February 7, 2003. It is assumed that the correct date should be March 18, 2003. 
WAC-04-1 08-5023 1 
Page 10 
beneficiary is primarily employed in a managerial or executive capacity. In the present matter, the 
beneficiary's job descriptions do not show that he will be primarily engaged with managerial or executive 
duties. The petitioner's documentation reflect:< that he will perform significant non-qualifying sales and 
marketing tasks. For example, the petitioner states the beneficiary will "[attend] more trade shows and 
establish more customers in both North America and South American countries," which appear to be sales 
functions. The petitioner explained that the beneficiary will be responsible for "directing and managing the 
[petitioner's] repair center for returned goods artd warranty good [sic]." While this duty does not appear to 
require a significant amount of the beneficiary's time, it is clearly a non-managerial, non-executive task. 
Based on the current record, the AAO is unable to determine whether the claimed managerial and executive 
duties will constitute the majority of the bent:ficiarygs duties, or whether the beneficiary will primarily 
perform non-managerial administrative or operalional duties. The petitioner's description of the beneficiary's 
job duties does not establish what proportion of the beneficiary's duties will be tnanagerial or executive in 
nature, and what proportion will be non-qualifying. See Repziblic qf Trunskei v. INS', 923 F.2d 175, 177 (D.C. 
Cir. 1991). Counsel states that "if [CIS] has questions on how Beneficiary spent his time between his 
executive duties and other duties, [CIS] should have requested Petitioner to provide Beneficiary's allocation 
of time." Yet, on appeal counsel and the petitioner fail to submit an explanation of how the beneficiary will 
apportion his time. Thus, counsel's statement is unpersuasive. 
The job descriptions for the beneficiary contain substantial portions that do not relate to the status of the 
petitioner as of the filing date. Specifically, the beneficiary's stated duties contain numerous references to his 
authority over subordinate employees and delegation of tasks. However, as of the date of filing, the 
beneficiary is the petitioner's sole employee, and thus there are no subordinates to supervise. The facts that 
the petitioner has conducted recruiting efforts and has entered into agreements to hire additional staff are not 
probative of the petitioner's eligibility as of the filing date, and the beneficiary's duties relating to these 
prospective employees will not be considered. Again, 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 ser of facts. hfutter qf Michalin Tire Carp.. 17 I&N Dec. 248 
(Reg. Comm. 1978). 
In discussing the petitioner's hiring efforts, counsel asserts that "[tlo expect everything to be in place and 
submitted within the deadline of 1,-1 visa extension processing frame is unreasonable and sometimes might 
appear unfair to impose." Counsel suggests that 8 C.F.R. 5 103.2(b)(8) requires CIS to allow the petitioner 
more time to submit ongoing evidence of its business and hiring developments. Yet, once again the petitioner 
must establish eligibility at the time of filing the nonimmigrant visa petition. Murler of Michelin Tire Carp., 
17 I&N Dec. 248 (Reg. Comm. 1978). Evidenc,e of business and hiring activity that occurs after the date of 
filing is not relevant to the petitioner's eligibility in these proceedings. Further, the regulation at 8 C.F.R. 
5 103.2(b)(8) states that "the applicant or peti~~ioner shall be given 12 weeks to respond to a request for 
evidence. Additional time may not be granted." As the director afforded the petitioner 84 days to submit 
additional evidence of its eligibility, including, evidence of its staffing, he satisfied the requirements of 
8 C.F.R. $ 103.2(b)(8). Contrary to counsel'!; assertion, nothing in 8 C.F.R. 9 103.2(b)(8) requires the 
director to allow an open-ended period in which  he petitioner may s~~pplement the record of proceeding. 
WAC-04- 108-5023 1 
Page 1 1 
As noted above, the beneficiary is the petitioner's sole employee. This fact is confirmed on Form 1-129. 
Though the petitioner hired an administrative assistant, the petitioner stated that this employee returned to 
China. The evidence of record is not clear as to whether this individual will return to the petitioner's employ. 
Pursuant to section I0 1 (a)(44 )(C) of the Act, 8 LI S.O. 9 1 I0 1 (a)(44)(C), 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. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. jj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. jj 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. Again, there is no provision in CIS regulations that allows for an extension of this 
one-year period. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
In the instant matter, the petitioner's business needs require its employees to perform numerous non- 
qualifying duties such as contacting potential customers, representing the petitioner at trade shows, answering 
questions about merchandise, operating a customer support call center, paying routine bills and managing a 
checking account, arranging for shipment of purchased goods from the parent company, and providing U.S. 
customers with replacement parts. In fact, as confirnmed by the petitioner's business plan, the primary 
function of the petitioner is sales and support on behalf of the foreign entity. As the beneficiary is the sole 
employee of the petitioner, it is evident that he must perform all of these non-managerial and non-executive 
tasks. The petitioner has failed to show that these duties do not constitute the majority of the beneficiary's 
time. 
Counsel's assertion that the director failed to view the petitioner's new business plans and evidence in 
response to the request for evidence is not persuasive. In discussing the new evidence, counsel makes 
frequent reference to the petitioner's future plan:;. However, as discussed above, business activity and hiring 
that occurs after the date of filing is not probative of the petitioner's eligibility as of the filing date. The 
director was not required to consider evidence of speculative future activity, and nothing in the director's 
decision or evidence of record suggests that the director erroneously disregarded relevant documentation. 
Counsel asserts that the director erred in failing to refer to all elements of the petitioner's proffered evidence 
of the past year's operations. However, the beneticiary's activities over the past year are not at issue. The 
relevant inquiry is whether the beneficiary will be employed in a primarily managerial or executive capacity 
in the future, commencing on the filing datt:. While the beneficiary may have achieved significant 
accomplishments toward establishing the petitioner's operations in the United States, the petitioner has not 
shown that it has reached the point that he will he employed in a primarily managerial or executive capacity 
as of the filing date. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 5 2 14.2(1)(3)(ii). 
WAC-04- 108-5023 1 
Page 12 
in visa proceedings, the burden of proving eligibility 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. Accordingly, the 
director's decision will be affirmed and the appeal will be dismissed. 
ORDER: The appeal is dismissed