dismissed L-1A Case: Maintenance And Repair Services

, 
ide.nti@ing data deieted to 
prevent ciez~'Iy ~~:~1~a.nmted 
invasion sf pencnaf privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 07 262 52223 OFFICE: VERMONT SERVICE CENTER Date: NM( 0 3 zm 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
E3fl@~.- 
64 
Robert P. Wiernann, Chief 
Administrative Appeals Office 
EAC 07 262 52223 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 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 extend the employment of its general manager as an 
L-1 A nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. !j 1 10 1 (a)(15)(L). The petitioner, a Florida corporation, states that it is 
engaged in the provision of maintenance and repair services. It claims to be a subsidiary of m 
ME - GS Refrigeracao, located in Sao Paulo, Brazil. The beneficiary was initially granted a one-year period in 
L-1A status in order to open a new office in the United States, and the petitioner now seeks to extend the 
beneficiary's stay for two additional years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, the petitioner asserts that the director misconstrued the 
evidence submitted and incorrectly concluded that the petitioner does not employ a full-time staff. The 
petitioner contends that the beneficiary supervises three employees and contractors, and performs primarily 
managerial or executive duties. The petitioner submits a brief and evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101 (a)(15)(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 the three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the U.S. temporarily to continue rendering his or her 
services to the same employer or a subsidiary or affiliate in a managerial, executive or specialized knowledge 
capacity. 
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 himlher to perform the intended 
EAC 07 262 52223 
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 regulation at 8 C.F.R. 8 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) 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 performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. fj 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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 
EAC 07 262 52223 
Page 4 
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 1 101(a)(44)(B), provides: 
The term "executive capacity" means 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 petitioner filed the nonimmigrant visa petition on September 14, 2007. The petitioner stated that the 
company is engaged in the repair and maintenance of air conditioners and heating systems for commercial 
and residential clients, painting, sprinkler repair, cabinet installation, residential and commercial remodeling, 
flooring, handyman services, and other similar services. 
In a letter dated September 12, 2007, the petitioner provided the following description of the duties performed 
by the beneficiary as general manager: 
[The beneficiary] is responsible for establishing the policies and initiatives required to ensure 
that the company will operate as a team, establishing the goals needed to reach the objectives 
of the company, coordinating the development and the implementation of the plans, 
programs, and strategies for generating resources, revenues and profits for the company, 
directing the management, coordinating the activities of the different branches of the 
company, ensuring that the work is done under established policies, and focusing on the 
desired and programmed results, reviewing and presenting activity reports and financial 
statements to determine and to show the progress and status in attaining goals and objectives, 
and finally, representing the company before the managers, employees, contractors, clients, 
potential clients, and prospects in general. 
In a separate statement of job duties titled "Job Offer," the petitioner stated that the beneficiary allocates his 
time as follows during a 40-hour work week: 
1. Net-Meetings with the Holding Company 
 2 hours (5.0%) 
2. Meeting with Management 
 21.5 hours (53.8%) 
3. Meeting with contractors, Suppliers, Business Partners 
 5 hours (12.5%) 
EAC 07 262 52223 
Page 5 
4. Meetings and Contacts with Clients and Potential Clients 
 5.5 hours (13.8%) 
5. Other Meetings and Contacts 
 2 hours (5%) 
6. Analysis, Evaluation, Preparation 
 4 hours (10%) 
The petitioner also provided a sample daily schedule for a typical Monday to Friday workweek. The record 
contains other statements of the beneficiary's duties, but they closely resemble the duties listed in the letter 
dated September 12,2007, and will therefore not be repeated here. 
The petitioner submitted an or anizational chart showing that the beneficiary supervises a finance and 
administration employee, - and three departments, which include marketing, planning and 
development and operations. The chart shows that the marketing department is staffed by - 
who is responsible for sales and customer care, and an unidentified independent contractor. The operations 
department is staffed by a manager, , as well as unidentified independent contractors 
responsible for labor and installation, and a "staffing company." The "planning and development" 
department, according to the organizational chart, is not yet staffed. The petitioner provided position 
descriptions for the beneficiary's three subordinates. 
The petitioner also submitted its Florida Form UCT-6, Employer's Quarterly Report, for the second quarter of 
2007, which confiied that the company employs the three individuals named on the organizational chart, all 
at a gross monthly salary of $1,000. 
The director found the initial evidence insufficient to establish that the beneficiary would be employed in a 
primarily managerial or executive capacity. Accordingly, on December 14,2007, the director issued a request 
for additional evidence (RFE), in which he requested, inter alia, the following: (1) a comprehensive 
description of the beneficiary's duties with an explanation as to how those duties will be managerial or 
executive in nature; (2) a list of the petitioner's employees, along with a complete position description for 
each worker, a breakdown of the number of hours devoted to their job duties on a weekly basis, and 
educational credentials for each employee; (3) a copy of the petitioner's IRS Form 941, Employer's Quarterly 
Tax Return, for the third quarter of 2007; and (4) copies of the petitioner's IRS Forms W-2, W-3, 1096, and 
1099 for 2006, evidencing wages paid to employees and contractors. The director also requested photographs 
of the petitioner's business premises. 
In response to the director's request, the petitioner stated that the beneficiary performs the following duties in 
his role as general manager: 
[Mlanaging all supervisors and managers of all departments of the company as follows: 
Sales Department Manager and Supervisor 
- Operations Department Manager and Supervisor 
- Financial Department Manager and Supervisor 
His duties will vary according to the department he is managing and supervising at the 
moment. As examples: 
EAC 07 262 52223 
Page 6 
On the sales department, he makes sure all customers are satisfied, he assures that all 
sales processes are handled with perfection and professionalism; he guides and trains the 
department manager on new programs brought to the company. 
On the operations department he brings in new projects to be experienced and manages 
the head of [the] department into [sic] that. He provides information and support to the 
groups and chambers that joined the company. 
On the Financial Department he receives all reconciliation of the day made by the 
different departments and assures what [sic] being processed. He manages cautiously 
this department since here the numbers have to be accurate. 
The petitioner also submitted the following descriptions of duties for the beneficiary's subordinates: 
Sales Department 
is responsible for acquiring new clients by phone operations during the first 2 
[hours] of work. She has 3 [hours] of her work day to visit existing clients andfor call them to 
make sure they are being treated right by the company staff. The other 3 [hours] she does part 
of the sales reconciliation to be sent to the manager daily. 
Operations Department 
is head of this department. For 3 [hours] of the day she analyzes network 
events and groups in Central Florida that the company may benefit if joining with. She also 
researches the competitors to check if there [sic] members of those "chambers." For 3 
[hours] she does research on clients to be and already clients so the company would know in 
what area to invest. The other 2 [hours] she supervises what is being done in the other 
department's reconciliation of the day. 
Financial Department 
for 2 [hours] she plans and organizes controlling and evaluating the 
operation of the accounting system. She also audits the financial department. For 1 [hour] she 
revises and remakes the company's policies. For another 1 [hour] she prepares the financial 
statements and summaries. She analyzes the financial management reports. She supervises 
the development of financial simulation models for during 1 [hour]. For 2 [hours] she 
recruits, organizes, trains and manages the staff. And for the last our [sic] of her work day she 
reports to senior management any trends that are or may be critical to the financial 
performance of all departments. 
The petitioner also submitted the requested evidence of wages paid to its four claimed employees in 2007. 
The beneficiary earned $36,000, while the other employees earned $12,000 each. The petitioner submitted an 
un-audited year-end profit and loss statement for 2007 which shows an additional $59,221 paid to 
subcontractors; however, the petitioner did not submit copies of IRS Forms 1099 or 1096 as requested by the 
director. The petitioner submitted a photograph of a van bearing the petitioner's name, a small office with two 
' EAC 07 262 52223 
Page 7 
desks and one identified employee working, and a photograph of four individuals wearing shirts bearing the 
company's logo. The petitioner did not identify the employees in the photographs. 
The director denied the petition on March 19, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition. 
In denying the petition, the director observed the petitioner's descriptions of the beneficiary's duties identified 
general managerial fhctions, but failed to specify what managerial or executive tasks he would perform 
within the context of the company's current staffing arrangement. The director further found that it is unclear 
based on the evidence in the record who is actually providing the petitioner's services to its customers and 
clients, and therefore likely that the beneficiary will perform or help to perform these duties. In addition, the 
director noted that the petitioner paid only $72,000 to four employees in 2007, and questioned whether any 
employees received wages commensurate with their claimed managerial positions. The director determined 
that the petitioner had not established that the beneficiary supervises a subordinate staff of supervisors, 
managers or professionals. 
On appeal, the petitioner addresses the wages paid to the petitioner's employees and indicates for the first 
time that the operations manager works on a part-time basis, and that the beneficiary's other employees earn 
commissions in addition to their $12,000 base salaries. The petitioner &her asserts that the company has 
subcontractors that provide air conditioning repair, sprinkler repair, drywall, pool pump, fiber optic lighting 
and freezer and refrigerator repair services. With respect to the beneficiary's duties, the petitioner states the 
following: 
The General Manager will not to be engaged in any day-to-day activities or non-qualifying 
duties for his position. His daily schedule is listed below: 
9:OO am: 
 meeting with employees to schedule their daily activities and review the 
previous day report of job completed 
10:OO am: 
 contact the company in Brazil to inform them about the performance of the 
day before. 
1 1 :00 am: 
 Review and analyze financial statements. Review client's comments and 
suggestions. 
12:OO-1:00 pm: Lunch 
2:OO-5:00 pm: He does not have a preset schedule. Most of the time he supervises, directs 
and solves the employees issues regarding jobs performed and future jobs 
orland client issues. 
The petitioner re-submits a number of documents that were submitted in response to the petitioner's request 
for evidence, including evidence of wages paid to employees in 2007, and copies of previous job descriptions 
submitted in support of the petition. The petitioner also submits a total of 17 color photographs of the interior 
and exterior of the petitioner's offices and storage space and company vans. According to information 
included in the photograph, the petitioner's business operates from 8:00 a.m. until 6:00 p.m., Monday to 
Friday, and from 8:00 a.m. to 1:00 p.m. on Saturdays. The petitioner submitted photographs of the beneficiary 
EAC 07 262 52223 
Page 8 
and the three other employees, and a photograph of the beneficiary with two individuals identified simply as 
and ' who are claimed to be subcontractors.' 
The petitioner's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not 
established that the beneficiary will be employed in a primarily 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. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
in either an executive or a managerial capacity. Id. 
The definitions of executive and managerial capacity each have two basic 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 fact that the beneficiary manages a business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 
1987) (noting that section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive"). While the AAO does not doubt that the beneficiary exercises discretion over the petitioner's 
day-to-day operations and has the appropriate level of authority, the petitioner has failed to show that his 
duties will be primarily in a managerial or executive capacity. 
Although the petitioner has provided a breakdown of how the beneficiary's time will be divided among his 
various responsibilities, the job description provided is too ambiguous to convey any understanding of what 
tasks the beneficiary will perform on a day-to-day basis. For example, the petitioner indicated that the 
beneficiary would devote a total of 53.8% of his time on a weekly basis to "meeting with management," but 
failed to indicate specifically the purpose of these meetings or how this constitutes a managerial or executive 
duty. Further, as discussed below, the petitioner failed to establish that its "managers" are actually performing 
any managerial duties, nor did it indicate that any of the beneficiary's subordinates spend any significant 
amount of time meeting with him, as his job description would suggest. The petitioner indicates that the 
beneficiary spends another 26.3% of his time meeting with contractors, suppliers, business partners, clients 
and potential clients, and 10% of his time on "other meetings." Again, the petitioner failed to provide any 
details regarding the purpose of the beneficiary's meetings and it cannot be concluded that the beneficiary's 
duties in this regard are primarily managerial or executive in nature. 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 reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
1 
According to USCIS records, the beneficiary has a son named 
 who previously applied for 
employment authorization as an L-2 dependent. His application was denied on January 23,2007 (SRC 07 034 
EAC 07 262 52223 
Page 9 
The petitioner's other descriptions of the beneficiary's duties are similarly vague and nonspecific, and fail to 
detail exactly what he does on a day-to-day basis. For example, the petitioner indicates that the beneficiary 
"establishes policies and initiatives," "establishes goals and objectives," "coordinates the development and 
implementation of plans, programs and strategies," "directs the management by coordinating the activities of 
different areas," "reviews and presents activity reports," "makes sure all customers are being satisfied," 
"brings in new projects to be experienced," and "trains the [sales] department manager on new programs." 
The petitioner offers no insight into the beneficiary's actual duties with respect to customer service or "new 
projects." Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner 
has failed to provide any detail or explanation of the beneficiary's activities in the course of his daily routine. 
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. at 1108. 
Although the director specifically noted that the petitioner's descriptions of the beneficiary's duties were 
insufficient to establish his employment in a managerial or executive capacity, the petitioner has not 
attempted to further clarify the beneficiary's duties, other than stating that the beneficiary will not be engaged 
in any day-to-day activities or non-qualifying duties. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Cornrn. 1972)). 
Without a comprehensive description of the beneficiary's duties upon which to rely, the director reasonably 
looked at the petitioner's staffing levels to determine whether the record as a whole supported the petitioner's 
claim that the beneficiary would be employed in a primarily managerial or executive capacity. Beyond the 
required description of the job duties, CIS reviews the totality of the record when examining the claimed 
managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, the 
duties of the beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary 
fi-om performing operational duties, the nature of the petitioner's business, and any other factors that will 
contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
Although the beneficiary is not required to supervise personnel, if it is claimed that his managerial duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 
 10 1 (a)(44)(A)(ii) of the Act. 
The petitioner claims to employ a sales department manager and supervisor, an operations department 
manager and supervisor, and a financial department manager and supervisor. Of these employees, the 
operations manager has subordinates depicted on the organizational chart. Specifically, the chart shows this 
position above "Labors-Installation (Independent Contractors)." However, the petitioner did not persuasively 
demonstrate that any of the beneficiary's subordinates perform managerial duties or supervise lower-level 
employees or contractors. For example, the sales department manager is responsible for sales, customer 
service and "sales reconciliation" duties. The operations manager, according to the petitioner, "analyzes 
network events," "researches competitors," "researches clients," and supervises the other departments' daily 
"reconciliation." None of these duties suggest that the operations manager spends any portion of her time 
supervising the claimed independent contractors. Finally, the position description for the financial 
department manager contains a number of duties that do not seem credible given the size and nature of the 
EAC 07 262 52223 
Page 10 
petitioner's business. For example, the petitioner indicated that the beneficiary spends one hour every day 
revising company policies, two hours "evaluating the operation of the accounting system," one hour 
"supervising the development and implementation of financial simulation models," and two hours recruiting, 
training, and managing staff. The petitioner does not indicate that this employee actually supervises any 
employees, so it is unclear who would be carrying out the various financial activities she is claimed to 
supervise. Furthermore, given that the petitioner does not claim to have a bookkeeper, accountant, 
administrative or clerical staff, it has not adequately explained why it requires an employee to prepare daily 
financial management reports, financial simulation models, audits and accounting system evaluations. The 
evidence must substantiate that the duties of the beneficiary and his or her subordinates correspond to their 
placement in an organization's structural hierarchy; artificial tiers of subordinate employees and inflated job 
titles are not probative and will not establish that an organization is sufficiently complex to support an 
executive or manager position. 
Furthermore, an employee will not be considered to be a supervisor simply because of a job title, because he 
or she is arbitrarily placed on an organizational chart in a position superior to another employee, or even 
because he or she supervises daily work activities and assignments. Rather, the employee must be shown to 
possess some significant degree of control or authority over the employment of subordinates. See generally 
Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (Cited in Hayes v. 
Laroy Thomas, Inc., 2007 WL 128287 at "1 6 (E.D. Tex. Jan. 1 1,2007)). 
Though requested by the director, the petitioner did not provide the level of education required to perform the 
duties carried out by the beneficiary's subordinates or provide evidence of their educational credentials. Any 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2@)(14). Thus, the petitioner has not established that these employees possess or 
require a bachelor's degree, such that they could be classified as professionals.2 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. 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. 
Despite the petitioner's inability to show that the beneficiary primarily supervises managerial, supervisory or 
professional employees, the petitioner can still establish the beneficiary's eligibility by providing evidence 
that the beneficiary is a function manager. The term "hnction manager" applies generally when a beneficiary 
does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
2 
 In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1 101 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by the subordinate employee. 
EAC 07 262 52223 
Page 11 
an "essential function" within the organization. 
 See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
8 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner 
claims that the beneficiary is managing an essential function, the petitioner must provide a detailed job 
description that identifies the function with specificity, articulates the essential nature of the function, and 
establishes the proportion of the beneficiary's daily duties attributed to managing the essential function. 
8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
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 10 1 (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 Intn 'l., 19 I&N Dec. 593,604 (Comm. 1988). In such a situation, the AAO 
recognizes that other employees carry out the functions of the organization, even though those employees 
may not be directly under the function manager's supervision. It is the petitioner's obligation to establish that 
the day-to-day non-managerial tasks of the function managed are performed by someone other than the 
beneficiary. 
Here, the petitioner has not claimed that the beneficiary will manage an essential function, nor has it 
sufficiently articulated the beneficiary's duties, or the proportion of his time devoted to managerial duties. 
Absent a clear and credible breakdown of the time spent by the beneficiary performing his duties, the AAO 
cannot determine what proportion of his duties would be managerial or executive, nor can it deduce whether 
the beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Furthermore, as noted by the director, the petitioner has also failed to document who is carrying out the 
company's services. The petitioner claims to employ independent contractors who provide all of the 
petitioner's services including air conditioning repair, sprinkler repair, drywall installation, pool pump repair, 
fiber optic lighting, painting and freezer and refrigerator repair. At the time of filing, the petitioner submitted 
a year-to-date profit and loss statement indicating that the company paid $24,165.11 to subcontractors as of 
August 31, 2007. However, the record contains no evidence of the number of subcontractors the petitioner 
regularly employs, the number of hours they work, or the duties they perform. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, the director specifically requested that the 
petitioner submit evidence of payments made to contractors in the form of IRS Forms 1096 and 1099 for 
2006. Although it does not appear based on the petitioner's 2006 tax return that it paid any contractors in 
2006, its 2007 Forms 1096 and 1099 should have been available at the time the petitioner responded to the 
RFE, and it is noted that the petitioner did provide copies of its Forms W-2 for 2007 at that time. Again, 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 8 103.2(b)(14). Based on the foregoing, the petitioner has not established that it has 
employees or contractors to provide services to the petitioner's customers on a day-to-day basis. 
There is also some discrepancy in the record as to whether the beneficiary's subordinates are employed on a 
full-time basis. The petitioner initially implied that all of the employees work on a full-time basis. After the 
director remarked upon the $12,000 annual salary paid to the three "managers," the petitioner now asserts on 
appeal that one employee, the operations manager, works on a part-time basis, while the finance manager and 
EAC 07 262 52223 
Page 12 
sales department manager earn commissions in addition to their $12,000 base salary. The record contains no 
evidence that any employees are paid on a commission basis. Furthermore, it is noted that USCIS records 
show that that the beneficiary's spouse,, did not file a Form 1-765, Application for 
Employment Authorization, in order to extend her authorization to work in the United States as an L-2 
nonimmigrant beyond August 31, 2007, although the petitioner's records show that she continued to receive 
wages throughout the third and fourth quarters of 2007. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 1 9 I&N Dec. 5 82,59 1 -92 (BIA 1 988). 
Pursuant to section 10 1 (a)(44)(C) of the Act, 8 U.S.C. 5 1 101 (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. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in 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 adrmnistrative tasks, the petitioner is ineligible by regulation for an 
extension. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that Citizenship and Immigration Services (CIS) "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family Inc. v. US. 
Citizenship and Immigration Services 469 F. 3d 13 13, 13 16 (9' Cir. 2006) (citing with approval Republic of 
Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 
1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). Furthermore, it is 
appropriate for 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. 200 1). 
Here, the petitioner has assigned all four of its employees managerial job titles and has failed to document its 
employment of the subcontracted workers who are claimed to provide the petitioner's actual services on a 
day-to-day basis. The petitioner has also failed to indicate who on its staff performs other administrative and 
operational tasks such as purchasing materials, supplies and equipment, advertising, bookkeeping, issuing and 
paying invoices, and supervising and scheduling the claimed contractors. 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 two managerial 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. 
EAC 07 262 52223 
Page 13 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a primarily managerial or executive capacity under the extended petition. Accordingly, 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. 3 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.