dismissed L-1A Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-R-USAP-B-P-, INC. 
APPEAL OF VERMONT SERVlCE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 13,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a manufacturer and wholesaler of plastic bags and related products, seeks to 
temporarily employ the Beneficiary as its vice president under the L-1A nonimmigrant classification 
for intracompany transferees. See Immigration and Nationality Act (the Act) section 1 01 (a )(15)(L ), 
8 U.S.C. § 1101(a)(15)(L). The L-1A classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to 
work temporarily in an executive or managerial capacity. 
The Director, Vermont Service Center, denied the petition concluding that the Petitioner would not 
employ the Beneficiary in a managerial or executive capacity in the United States. 
The matter is now before us on appeal. In support of its appeal, the Petitioner disputes the Director's 
decision, asserting that the Beneficiary "is the only executive level official to lead" the Petitioner's 
production department. The Petitioner contends that it· provided a detailed description of the 
Beneficiary's job duties to establish that the Beneficiary "has been and will be the most important 
intracompany transferee." 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
nmst seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
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Matter ofS-R-USAP-B-P-, Inc. 
(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) ofthis 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. l 
(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 employrp.ent abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(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 
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Matter ofS-R-USAP-B-P-, Inc. 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. Evidence of Record 
The Petitioner filed the Form I-129-on April 7, 2015, claiming nine employees and a gross annual 
income of $800,000. 
In support of the Form I-129, the Petitioner provided a supplemental statement, containing a list of 
the Beneficiary's proposed job duties.1 
The Petitioner also submitted an organizational chart depicting the company's president at the top­
most tier, followed by the Beneficiary and one other vice president at the second tier. As the chart 
does not name anyone in the second vice president position, it appears that the Beneficiary was the 
Petitioner's only vice president at the time of filing. The chart depicts the Beneficiary as overseeing 
one employee in the "Production/Manufacturing Department" while seemingly sharing oversight 
with the other vice president position of two employees in "Purchasing/Supply Management." The 
unnamed vice president is shown as overseeing the employee in the finance department. The chart 
shows a fourth tier comprised .of an Georgia and a New York office, both subject to 
oversight by the finance department, "Purchasing/Supply Management," and the 
1 The Petitioner provided the same list of job duties in response to the Director's request for evidence (RFE), adding time 
constraints to the latter job description. As such, we will restate the list of job duties in our summary of the Petitioner's 
RFE response. 
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Matter ofS-R-USAP-B-P- , Inc. 
"Production/Manufacturing Department." Only the office in Georgia appears to have 
employees, as the chart does not name any employees at the New York office and the individuals 
listed at the fourth tier as employees at the office are the same as those listed under the 
department headings at the third tier of the hierarchy. Finally, the chart lists a fifth tier, showing 
"warehouse," "workshop," and "service" positions within the "Production/Manufacturing 
Department" and the "Purchasing/Supply Management" department. The chart does not name any 
employees for any of the fifth tier positions. 
After reviewing the Petitioner's supporting evidence, the Director issued anRFE, finding that the 
Petitioner provided a vague job description that was not supported by the evidence of record. The 
Director asked the Petitioner to list the Beneficiary's job duties with time constraints stating what 
percentage of time the Beneficiary would allocate to each of his assigned tasks. The Director also 
requested an organizational chart depicting the Petitioner's organizational structure and the 
Petitioner's payroll summary, IRS Form W-2s it issued, and its quarterly wage reports for the four 
quarters preceding the RFE. The Director asked that the Petitioner provide a summary of the job 
duties performed by the employees within the Beneficiary's immediate division, department, or 
team. 
In response to the RFE, the Petitioner submitted the following list of job duties and their respective 
time allocations: 
1. Plan, develop and implement organizational policies and goals for the production 
activities ofthe U.S. operations in collaboration with the President. 30% 
2. Direct and coordinate the daily production/manufacturing activities . . . . 10% 
3. Manage and direct the activities of preparing production/manufacturing reports and 
the financial budget. Analyze production budget to identify areas in which 
reductions can be made, and allocate operating budget. 1 Q% 
4. Confer with assistant managers and review activity, operating, and sales reports to 
determine changes in programs or operations required. 1 0% 
5. Direct preparation of directive to production administrators outlining policy, 
programs or operations changes to be implemented. 5% 
6. Maintain a commitment to the company vision and the "spirit" of the organization. 
5% 
7. Manage and direct manufacturing forecast: revenue target planning and action items 
development. 5% 
8. Oversee the accounting and overall financial status of the production activities. 
Review activity reports and financial statements to determine progress and status in 
attaining objectives, and revise objectives and plans in accordance with current 
conditions. 5% 
9. Supervise activities related to inventory control and supply chain management. 5% 
10. Responsible for the hiring and firing of production pyrsonnel, including managers, 
engineers, and administrative staff, in collaboration with the President. 5% 
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Matter ofS-R-USAP-B-P-, Inc. 
11. Communicate clearly and directly with supervised personnel concernmg 
performance expectations, productivity, and accountability. 5% 
12. Promote organization in industry, manufacturing, or trade organizations. Represent 
the company in professional meetings and trade shows. 5% 
It is noted that, with the exception Of the percentag~ breakdown, the above job description restates 
the original list of job duties that the Petitioner provided initially in support of the petition. The 
Petitioner also provided, in part, the following additional evidence: 
-, 
(1) A letter naming the Petitioner's 12 current employees and their respective 
position titles, indicating that the first eight individuals are salaried employees, 
while the remaining four work on an hourly basis and are issued IRS Form 1 099s. 
The Petitioner further indicated that it plans to hire additional employees to staff 
its New York branch office once the branch becomes fully operational. 
(2) A document naming the Petitioner's 12 employees and listing their respective 
salaries (which range from $600 to $4000) or hourly wages (which range from 
$7.25 to $8.75 per hour). ' 
(3) Photocopies of paychecks issued to four employees, whose position titles in the 
staff list were identified as "worker." Only two of the workers -
and - were shown as being consistently paid 
at the time of filing in April 2015 and beyond. The Petitioner provided only two 
paychecks for the other two workers - and showing 
employment in June and July 2015. 
(4) The Beneficiary's Form W-2 for 2014 and the Beneficiary's payroll journals for 
the first six 
months of2015. 
(5) Form 941, Employer's Quarterly Federal Tax Return, for the first quarter of2015, 
indicating that the Petitioner had five employees during that quarter. 
( 6) The Petitioner's organizational chart depicting one new employee hired after the 
filing of the instant p~tition. 
The Director denied the petition, concluding that the Petitioner did not establish that the Beneficiary 
would be employed in the United States in a managerial or executive capacity. In denying the 
petition, the Director found that the Petitioner did not establish that it has the ability to relieve the 
Beneficiary from having to primarily perform nonmanagerial and nonexecutive job duties. 
'-
In a supporting appeal brief, the Petitioner provides additional statements and time constraints in an 
attempt to clarify information about the Beneficiary's job duties. The Petitioner also states that the 
Beneficiary exercises wide latitude in discretionary decision-making for the production department 
and is responsible for hiring and firing the production department managers at the Petitioner's 
Georgia and New York locations. 
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Matter ofS-R-USAP-B-P-, Inc. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that it would employ the Beneficiary 
in the United States in a managerial capacity. 
When examining the executive or managerial capacity of the Beneficiary, we 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 the Beneficiary would perform and indicate 
whether such duties are in either an executive or a managerial capacity. !d. 
The definitions of executive and managerial capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc. v. INS, 940 F.2d 1533. 
In the matter at hand, the Petitioner initially offered a deficient job description that the Director 
found to be lacking in the necessary degree of detail. Although the Petitioner was allowed an 
opportunity to provide a more comprehensive list of the Beneficiary's specific job duties in response 
to an RFE, the Petitioner resubmitted the same list of job duties and added a percentage breakdown 
in an attempt to comply with the Director's request. The Petitioner did not provide any new 
information that would more clearly convey an understanding of the actual tasks the Beneficiary 
would be expected to perform on a daily basis under an approved petition. 
Published case law has firmly established that the actual duties themselves reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 
905 F.2d 41 (2d. Cir. 1990). Providing a job description that recites the Beneficiary's broad job 
responsibilities or restates portions of the statutory definitions of managerial or executive capacity is 
not sufficient to establish how the Beneficiary would allocate his time or that he would allocate his 
time primarily to tasks of a managerial or executive nature. For instance, the Petitioner stated that 
30% of the Beneficiary's time would be spent planning, developing, and implementing 
organizational policies and production goals. While this broadly-stated job duty conveys a sense of 
the Beneficiary's discretionary authority, it does not explain what specific actions the Beneficiary 
would take or what factors he would analyze to effectively plan and develop the Petitioner's policies 
and goals; nor does the Petitioner clarify or provide examples of the types of policies or goals the 
Beneficiary would set within the context of the Petitioner's production activities. The record also 
lacks sufficient information about the tasks involved in directing and coordinating daily 
production/manufacturing activities or managing and directing the preparation of a financial budget 
for those activities, which together would consume another 20% of the Beneficiary's time. In fact, 
the Petitioner did not specify the "production/manufacturing activities" or state who would actually 
carry out and who would provide financiaL reports pertaining to those undisclosed activities. In 
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Matter ofS-R-USAP-B-P-, Inc. 
claiming that the Beneficiary would "[ d]irect preparation of directive to production administrators" 
the Petitioner neglected to specify what type of directive would be prepared and who would fall in 
the category of the "production administrators" who would be tasked with such preparation. The 
Petitioner was similarly vague in identifying the specific measures the Beneficiary would take or the 
tasks he would assume in his effort to further "the company vision and the 'spirit' of the 
organization." 
Further, while the Petitioner claimed that the Beneficiary would "[m]anage and direct manufacturing 
forecast," this vaguely-stated job responsibility does not clarify how someone would manage and 
direct a projected forecast. It is unclear what tasks are involved in such management or who would 
carry out those tasks. Although the Petitioner also stated that the Beneficiary would oversee 
accounting and the "overall financial status of production activities" and supervise activities that are 
related to inventory, the Petitioner did not disclose who was performing the underlying accounting 
and invent9ry activities that the Beneficiary would have been able to oversee and supervise at the 
time the petition was filed. Moreover, the Petitioner's organizational charts depict the finance 
department as being subject to oversight by the second vice president, rather than the Beneficiary, 
thereby making the chart inconsistent with claims made in the Beneficiary's job description. The 
Petitioner has not resolved this inconsistency with independent, objective evidence pointing to where 
the truth lies. See, Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Although the Director 
asked the Petitioner to provide job descriptions for the Beneficiary's subordinates, which may have 
shed light as to who would perform the operational tasks of the production department that the 
Beneficiary would purportedly direct, the Petitioner did not provide this relevant information. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. § 103.2(b)(l4). Lastly, we note that while the Beneficiary's position 
in the organizational chart indicates that he would have a .shared role in overseeing the 
"Purchasing/Supply management" department, it is unclear which of his job duties reflect his 
position as depicted in the chart. In general, given the lack of information about the Beneficiary's 
support staff at the time of filing and the job duties they would perform, the Petitioner leaves open 
the possibility that the ·Beneficiary would have to assume a participatory role in carrying out certain 
operational tasks for an unspecified amount of time. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
In the present matter,' the evidence of record is not sufficient to substantiate the claim that the 
Petitioner was equipped with an adequate support staff to relieve the Beneficiary from having to 
allocate his time primarily to nonmanagerial or nonexecutive job duties. First, we note that the 
Petitioner's original organizational chart lists only six total employees at the time of filing, including 
the Beneficiary and the company's president, thereby leaving only four employees to carry out the 
(b)(6)
Matter ofS-R-USAP-B-P-, Inc. 
operational and administrative tasks of three different departments, including the 
"Production/Manufacturing Department" that the Petitioner emphasizes as the Beneficiary's chief 
concern. We further note that the employees listed at the fourth tier of the hierarchy are the same as 
those listed at the third tier, thus indicating the creation of an artificial tier with the Petitioner's 
organizational hierarchy. The depiction of an extra tier is confusing, as it indicates that department 
managers serve as both managers and subordinates. For example, who is listed at the 
third tier as manager of the finance department, is also depicted at the subordinate fourth tier, 
thereby indicating that he not only manages the finance department, but also holds the subordinate 
position in which he/she presumably performs the underlying duties of that department at the 
office. The Petitioner similarly listed and at the third and fourth tiers of 
the Purchasing/Supply Management and the Production/Manufacturing departments, respectively. 
The chart also shows a fifth tier comprised of "warehouse," "workshop," and "service." However, 
there are no employee names associated with any of the fifth tier positions, thereby leading us to 
understand that such positions are projections for future hires, similar to the chart's inclusion of a 
second vice president, whose position was depicted as vacant in the original organizational chart that 
the Petitioner submitted at the time the petition was filed. Only the Petitioner's updated 
organizational chart, which was submitted in response to the RFE, shows that the other vice 
president position was filled by a hire that apparently took place after the petition was 
filed. The Petitioner's depiction of a "New York Office" as parallel to the Office" also 
appears to be a future projection, particularly given the Petitioner's claim on appeal, indicating that 
the New York office became fully operational in August 2015, which is approximately four months 
after the instant petition was filed. A petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner 
or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm'r 1978). Therefore, any new employees or any changes in the Petitioner's 
business operation that occurred after the petition was filed would be deemed irrelevant for the 
purpose of determining the Petitioner's eligibility at the time of filing. 
In addition, the evidence must substantiate that the duties of a beneficiary and his subordinates 
correspond to their respective placements in an organization's structural hierarchy; artificial tiers of 
subordinate employees and inflated job titles will not establi~h that an organization is sufficiently 
complex to support an executive or manager position. An individual whose primary duties are those 
of a first-line supervisor will not be considered to be acting in a managerial capacity merely by 
virtue of his or her supervisory duties unless the employees supervised are professional. Section 
101(a)(44)(A)(iv) of the Act. Here, not only did the Petitioner neglect to provide job descriptions for 
the employees that were working for its organization at the time of filing, but the Petitioner also 
provided a confusing organizational chart containing multiple hierarchical tiers, some of which had 
overlapping employees assuming multiple positions within the organization, while other tiers 
broadly stated the location of one of the Petitioner's U.S. operations or just broadly categorized the 
types of employees as "warehouse," "workshop," or "service," as with the lowest tier of the 
Petitioner's organizational chart. 
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Matter ofS-R-USAP-B-P-, Inc. 
We also ,find it worthy to note that the list of supporting documents that we previously itemized did 
not include quarterly wage reports for the last four quarters, as requested in the RFE. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. § 103.2(b)(l4). The requested documents are highly probative, as they can assist 
us in establishing precisely whom the Petitioner employed at the time of filing andeach employee's 
wages, which would allow us to gauge the full- or part-time status of the Petitioner's support staff. 
Instead, the Petitioner provided a single quarterly tax return for the time period that directly preceded 
the filing of the Form 1-129. Not only is this document insufficient due to its lack of employee­
specific information, but it also does not include to the relevant time period during which the 
petition was filed. 
Although the Petitioner provided its own internally generated list of 12 employees it claims to have 
had at the time it responded to the RFE, this document lacks sufficient corroborating evidence to 
establish that anyone other than the Beneficiary and two workers, whose paystubs reflect work 
performed in April 2015, actually worked for the Petitioner at the time the petition was filed. 
Although the Petitioner submitted paystubs for four of its workers, who were identified with the 
position title of "worker," two of the employees' paystubs reflect wages for work performed in June 
and July 2015. As such, the submitted evidence does not establish that either employee was working 
for the Petitioner at the time of filing. Moreover, it is unclear from the information provided 
whether the two "workers" employed at the time the petition was filed were employed in a part-time 
or full-time status. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. See Matter of Soffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
As previously noted, the record also lacks information about the claimed support personnel's job 
duties, which is relevant for the purpose of conveying each employee's role within the organization 
and the Petitioner's overall plans and ability to relieve the Beneficiary from having to allocate his 
time primarily to its administrative and operational tasks. The Petitioner's broad claims about the 
Beneficiary's role and placement within the organizational hierarchy or about his level of authority 
over the organization's personnel and business matters are not sufficient without corroborating 
evidence of an adequate support staff'capable of carrying out the underlying administrative and 
operational tasks. See !d. 
Again, as the Petitioner did not provide job descriptions or establish who, other than the Beneficiary 
and two hourly workers, it employed at the time of filing, we cannot conclude that the Petitioner had 
sufficient staff to support the Beneficiary in a position that would primarily involve managerial or 
executive job duties. 
On appeal, the Petitioner provides a confusing explanation, indicating that the Beneficiary would 
allocate part of his time to job duties in a managerial capacity and part of his time to job duties in an 
executive capacity. More specifically, the Petitioner claims will spend 50% of his time "as the 
manager of the production department," which the Petitioner equates to "directing the management 
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Matter ofS-R-USAP-B-P-, Inc. 
of the production department," despite the fact that managing the production department is an 
characteristic of managerial capacity while directing the management of that department is a 
characteristic of executive capacity. The Petitioner further states that the Beneficiary will allocate 
40% of his time to establishing goals and policies, while in the following paragraph on page 13 of 
the appeal brief, the Petitioner states that the Beneficiary will spend 40% of his time both 
establishing and implementing the goals and policies of the organization, which would require wide 
latitude in making discretionary decisions. In sum, it appears that the Petitioner is claiming that the 
Beneficiary qualifies as both a function manager and an executive. A beneficiary may not claim to 
be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory 
definitions. Rather, the Petitioner must identify which definition applies to the Beneficiary's 
proposed position al)d provide evidence to show that the proposed job duties fit the four criteria set 
forth in the statutory definition for executive or manager. 
First, we will address the claim that the Beneficiary's proposed position will be in the capacity of a 
function manager.2 The term "function manager" applies generally when a beneficiary does not 
supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The term 
"essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
will manage an essential function, a petitioner must furnish a written job offer that clearly describes 
the duties to be performed in managing the essential function, i.e., identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of a 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 
§ 214.2(1)(3 )(ii). In addition, the petitioner's description of a beneficiary's daily duties must 
demonstrate that the beneficiary will manage the function rather than performs the duties related to 
. the function. Further, in the case of a function manager, a totality of the evidence analysis takes into 
account the lack of subordinates for the beneficiary to directly supervise, while focusing on other 
relevant factors, such as the beneficiary's position within the organizational hierarchy, the depth of 
the petitioner's organizational structure, and the scope of the beneficiary's authority and its impact 
on the petitioner's operations. 
In the instant matter, the Petitioner has not provided evidence to establish that the Beneficiary 
manages an essential function. Rather, the Petitioner focuses on the fo~r prongs that comprise the 
definition of executive capacity to support its claims, while neglecting to provide a list of the 
Beneficiary's specifically delineated tasks and evidence of employees available to carry out the 
underlying duties of the function the Beneficiary is claimed to manage. Without this critical 
evidence, we cannot conclude that the Beneficiary will manage the production function rather than 
perform the duties related to that function. An employee who "primarily" performs the tasks 
2 
The Petitioner does not claim that the Beneficiary will be employed as a personnel manager, and given the lack of 
evidence to show that the Beneficiary would allocate his time primarily to managing a staff of supervisory, professional, 
or managerial subordinates, we also cannot conclude that the Beneficiary would be employed in the capacity of a 
personnel manager. Sections 10l(a)(44)(A)(ii) and (iii) ofthe Act; 8 C.F.R. §§ 214.2(1)(l)(ii)(B)(2) and (3). 
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Matter ofS-R-USAP-B-P-, Inc. 
necessary to produce a product or to provide services is not considered to be "primarily" employed 
in a managerial or executive capacity. See also, sections 101(a)(44)(A) and (B) oftlie Act (requiring 
that one "primarily" perform the enumerated managerial or executive duties); Matter of Church 
Scientology International, 19 I&N Dec. 593,604 (Comm'r 1988). 
Alternatively, the Petitioner states that the Beneficiary will be employed in an executive capacity. 
Focusing on the four prongs that comprise the definition of executive capacity, the Petitioner claims 
that the Beneficiary "implements a quality assurance policy that serves as the goal for the production 
departments at. [the petitioning entity]." The statutory definition of the term "executive capacity" 
focuses on a person's elevated position within a complex organizational hierarchy, including major 
components or functions of the organization, and that person's authority to direct the organization. 
Section 101(a)(14)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for a beneficiary to direct and a beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An 
individual will not be deemed an executive under the statute simply because they have an executive 
title or because they "direct" the enterprise as an owner or sole managerial employee. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." !d. 
Here, while the Petitioner discusses the Beneficiary's discretionary authority in deciding to increase 
the size and thickness of the plastic bags the Petitioner manufactures as well as his authority to hire 
and fire the production department managers, the record does not establish that the Petitioner has the 
organizational complexity to employ the Beneficiary in a primarily executive capacity. While the 
Petitioner's organizational chart depicts a hierarchy comprised of multiple tiers, the record lacks 
sufficient evidence to establish that those tiers were operational at the time of filing. Despite the 
Petitioner's inclusion of a New York office in both of the ~ubmitted organizational charts, the 
Petitioner expressly stated that the New York office did not become fully functional until August 
2015 and therefor is not a factor we can consider in determining the Petitioner's eligibility as of 
April 2015, when the petition was filed. The Petitioner's references on appeal to a production 
manager, who was hired in October 2015, and its recent hiring of two full-time production line 
operators and one seasonal part-time packager and warehouse helper similarly do not establish 
eligibility at the time of filing, as all three hiring events took place after the petition was filed. See 
Matter of Michelin Tire Corp., 17 I&N Dec. 248. In general, while the Petitioner provides an 
adequate discussion of the Beneficiary's authority over the Petitioner's personnel and business 
matters, the record does not establish that at the time of filing, the Petitioner had the ability to relieve 
the Beneficiary from having to primarily carry out its nonmanagerial and nonexecutive tasks. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
will be employed in a primarily managerial capacity. 
I 
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Matter ofS-R-USAP-B-P-, Inc. 
III. .CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reason. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N 127, 128 (BIA 2013). Here, 
that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-R-USAP-B-P-, INC, ID# 19565 (AAO Oct. 13, 2016) 
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