dismissed L-1A Case: Marble Import/Distribution

identifjmgdatadeletedto
preventclearlyun~
invasionofpersonalpnwcy
'PUBLICcopy
U.S. Department of Homeland Security
20 Massachusetts Ave, N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: WAC 0716852871 Office: CALIFORNIA SERVICE CENTER Date: DEC 26 2001
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L).
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
,
This is the decision of the Administrative Appeals Office in your case. All docum~nts have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
R~a~~~c'ef
Administrative Appeals Office
www.uscis.gov
WAC 0716852871
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant 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 as an
L-1A nonimmigrant intracompany transferee pursuant to section. 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a California corporation, is engaged in
the import and distribution of marble products. It states that it is a subsidiary of
_,located in Guangdong, China. The beneficiary was initially granted L-1A status in 2004 and the
petitioner now seeks to extend his status for three additional years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be
employed 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
erroneously characterized the beneficiary's job duties and job description, and failed to consider whether the
beneficiary would be employed in an executive capacity. Counsel further contends that the director's analysis
as to whether the petitioner established that the beneficiary would be employed in a managerial capacity was
irrelevant. Counsel submits a brief in support of the appeal.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 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 three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate. thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 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 (1)(1)(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 him/her to perform the intended
WAC 07 16852871
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 sole issue addressed by the director is whether the petitioner established that the beneficiary would 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. § 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 hierarchyor with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(a)(44)(B), provides: ,
The term "executive capacity" means an assignment within an organization In which the
employee primarily
(1) 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 w ide latitude in discretionary decis ion making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization,
WAC 0716852871
Page 4
The nonimmigrant petition was filed on May 8, 2007. In a letter dated April 3, 2007, the petitioner indicated that
the. U.S. company has 12 employees, including salaried employees and "independent contracting sales." The
petitioner described the beneficiary's proposed duties as vice president as follows:
1. Assisting President setting all. of the corporate policies and develop policies for import/export,
marketing, business development, and all other business matters. 15%
2. Directing various domestic sales and marketing activities to promote the sales of the products
imported from the parent company. Market and collate the most updated information regarding
the market demand for a wide variety of products. 15%
3. Taking responsibilities for all daily communications with business partners and representing the
company in various trade shows and exhibitions to promote the company's existing products and
new product lines. 10%
4. Participating in business negotiations with domestic buyers and clients and acting as the
authorized signatory of all major business contracts. 10%
5. Overseeing the implementation of the strategies in all departments to ensure efficient operation
and maximum profits. 10%
6. Conducting ~egulatory. meetings with staff for discussion regarding management problems and
formulate future expansion projects. 10%
7. Preparing monthly reports on the business transactions of the departrrient and submitting them to
the President and then to Parent Company, upon request of the Board of Directors. 10%
8. Supervising the work of managers and professionals within the above departments and
evaluating their performance. 10%
9. Acting as the highest executive of the company during the President's absence when going
backing [sic] to Parent Company to report business. 10%
The petitioner submitted an organizational chart indicating the staffing of the company as of January 2007. The
organizational chart depicts the beneficiary as vice president and chief executive officer with four direct
subordinates: a marketing department employee, a coordination department employee, a sales
department/customer service employee, and a chief financial officer/accountant. The chart shows a web
developer working in the marketing department, but the petitioner also indicates that this employee, Lei Yan, is in
the financial department. The chart lists four "outside sales'vemployees working in the sales department, and two
accounting employees of the foreign entity who report to the financial officer. The petitioner provided a copy of
its California Form DE-6, Quarterly Wage and Withholding Report, for the fourth quarter of 2006, which
confirmed the employment of seven employees on the organizational chart. The petitioner indicated that the
outside sales representatives are paid on a commission basis.
The petitioner also provided an employee list with brief position descriptions for each worker. The beneficiary's
position was described therein as follows:
• Manages marketing department, coordination department and sales department.
• Provides managerial vision on business strategy and marketing plan.,
• Makes decision on product selection and purchase from factory overseas
• Designs pricing structure for distributors, wholesalers and retailers in the United States.
• Operates and monitors daily procedure in office and warehouse.
\
WAC 0716852871
Page 5
• Reports business status and any required information to president and ERP program.
The petitioner also provided brief position descriptions for all other employees ofthe U.S. company.
The director issued a request for additional evidence on June 20, 2007, in which the petitioner was instructed to
submit the following: (1) the total number of employees at the beneficiary's worksite; (2) a more detailed
organizational chart for the u.s. company which includes each employees' job title, job duties, educational level,
annual wages and immigration status; (3) a more detailed description of the beneficiary's duties and the
percentage of time he spends on each duty; (4) clarification regarding the employment status of the "outside
sales" staff; (5) copies Qfthe petitioner's California Forms DE-6 for the last four quarters; (6) copies of the u.s.
company's payroll summary, and IRS Forms W-2 and W-3 for 2006; and (7) if the petitioner claims that the
beneficiary manages professional employees, evidence of the number of hours the beneficiary has devoted to
supervising professional employees for the last six months, and evidence of the educational credentials for the
professional employees.
'.
In a response received on July 23, 2007, the petitioner included the following position description for the
beneficiary:
(1) to recruit,train, supervise, promote or otherwise terminate all the supervisory, professional
and managerial employees;
(2) to manage and supervise the marketing, sales, logistic, finance and administrative functions
and to make managerial decisions for the USA operations on the daily basis;
(3) to formulate the long and short term business plans for the USA operation;
(4) to safeguard the company's assets and other financial resources;
(5) to properly account for the operation results of the company;
(6) to work closely with the group's head office in China and Hong Kong to ensure that the
USA operations meet or exceed the overall objective ofthe group;
(7). to report to the president of the company.
The petitioner clarified t~t the 12 employees claimed at the time of filing included six payroll staff and six
outside sales representatives, and provided evidence of payments to the commissioned sales employees.
The petitioner provided an updated organizational chart depicting the staffing structure ofthe company as of July
1, 2007. The beneficiary was still shown as supervising four employees, but .only one subordinate, the sales
department employee, appears on both organizational charts. The beneficiary's direct subordinates also include a
marketing department employee, a logistics and distribution department employee, and an accounting and
administration department employee. The chart also depicts five outside sales representatives, and open positions
for a sales employee and an e-commerce and web administration employee.
In an attached statement, the petitioner indicated that all employees have a "university" education level. The
petitioner stated that the beneficiary's subordinates are responsible for marketing planning, communication,
promotion, sales and logistics coordination, sales force management, accounting, banking and office support.
The petitioner identified the beneficiary's subordinates as professional employees who hold the' titles of
"supervisor, marketing operations," "supervisor, logistic & distribution," "manager, sales," and "accounting
WAC 07 16852871
Page 6
officer." The petitioner indicated that the marketing , logistics and distribution , and accounting employees were
hired.in May and June 2007 .
The petitioner submitted a copy of its California Form DE-6 for the second quarter of 2007, which lists a total of
ten employees and includes one employee who is not identified on either organizational chart. The Form DE-6 .
indicates that the petitioner had six employees in April and May, and seven employees as of June 2007. The
petitioner clarified that the employee identified in the original organizational chart as chief financial officer was
terminated in May 2007 , the previous marketing employee resigned in March 2007 , and the employee previously
identified as "web development" resigned in June 2007.
Finally, the petitioner provided copies of its IRS Forms W-2 and W-3 for 2006 . The Form W-3 shows that a total
of $128,213.18 was paid to ten employees in 2006 . However, the AAO notes that the 2006 Forms W-2 show
payments to employees who , according to the petitioner , were not hired until the second quarter of 2007. For
these employees, the amount indicated on the 2006 Form W-2 is equal to the amount paid to the employees
during the second quarter of 2007. Furthermore, at least one employee who , according to the petitioner , was
employed in 2006 , , did not receive a Form W-2. In addition, the petitioner 's IRS Form 1120, U .S.
Corporation IncomeTax Return, indicates that the company paid salaries and wages of $194,206 in 2006 , thus
there is a significant discrepancy between the wages reported on Form W-3 and the wages reported on Form
1120. Doubt cast on any aspect of the petitioner's proof may, of course , lead to a reevaluation of the
reliability and sufficiency of the remaining evidence offered in support of the visa petition . Matter ofHo, 19
I&N Dec. 582 ,591 (BIA 1988).
The director denied the petition on August 9 , 2007, concluding that the petitioner did not establish that the
beneficiary would be employed in a primarily managerial or executive capacity . The director observed that the
petitioner employs six to seven staff members, and noted that the claimed "outside sales" staff and foreign
accounting employees would not be considered for the purpose of analyzing whether the beneficiary would be
employed in a qualifying capacity. The director further found that the petitioner had failed to establish that the
beneficiary's subordinate employees are professionals , as no documentary evidence was submitted to support the
petitioner's claims that these employees have the appropriate degrees, or that their positions require a degreed
individual to perform the assigned duties.
In addition, the director determined that the petitioner 's description of the beneficiary's duties was too vague to
demonstrate what the beneficiary does on a day to-day basis , and thus failed to establish that he primarily
performs qualifying tasks . The director concluded that the beneficiary appears to be a first-line supervisor, with
no managerial, supervisory, or professional staff to relieve him from performing non-qualifying duties.
On appeal, counsel.for the petitionerasserts that the petitioner clearly established that the beneficiary would be
employed in an executive capacity as the petitioner's primary executive, yet the director only considered whether
the beneficiary would be employed in a managerial capacity and did not addre ss the issue of executive capacity.
Counsel asserts that the director's conclusion "that the beneficiary's duties do not fit the definition of managerial
capacity is not relevant or dispositive."
Counsel further objects to the director's findings that the beneficiary's job description is too vague, asserting that
the petitioner provided specific information showing that the beneficiary is primarily engaged in executive duties .
WAC 07 16852871
Page 7
Counsel asserts that the beneficiary sets and develops marketing goals and policies and must communicate with
business partners and customers to perform this duty. Counsel asserts that "when he engages in activities that the
decision describes as first-line supervising or providing services or products he is doing so as a mere corollary to
his larger duties."
Counsel asserts that the director also failed to correctly address the significance of the beneficiary's role with
respect to the parent company's accounting department andthe petitioner's outside force. Counsel notes that there
is nothing prohibiting the beneficiary from having contact with the petitioner's parent company, and states that the
beneficiary's contact with the foreign entity is for the benefit of the U.S. company. With respect to the outside
sales employees, counsel asserts that "the independent contractors are an indication that the beneficiary is an
executive." Counsel asserts that "each of the four elements ofthe definition of executive capacity ... is involved
in the on-going business relationship between thepetitioner and the independent contractors."
Counsel states that the beneficiary would be the petitioner's primary executive "since the company president
would be working for the parent company in China for an extended period."
Counsel's assertions are not persuasive. The petitioner has not established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition. Although counsel
insists that the petitioner has consistently identified the position as being executi ve in nature, the AAO will
consider the statutory criteria for both managerial and executive capacity.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner 's description of the job duties. See 8 C.F.R. § 2l4 .2(l)(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. !d.
At the time the petition was filed, the petitioner submitted two different position descriptions for, the
beneficiary's position. The petitioner's letter dated April 3, 2007 included a .list of duties and indicated the
percentage of time the beneficiary would devote to each duty . However, many of the duties were not clearly
described, and, overall , the description fell significantly short of establishing that 'the beneficiary's duties
would be primarily managerial or executive in nature. For example , the petitioner indicated that the
beneficiary devotes 15 percent of his time to direct ing sales and marketing activities but some portion of this
time is spent collating information regarding market demand, a task that would not be considered executive or
managerial in nature. The petitioner indicated that the beneficiary would simultaneously devote only ten
percent of his time to acting as the highest executive in the president's absence , while "working most of his
time as the number one executive of our company during the absence of the president." Regardless of how
much time the beneficiary devotes to acting on the pres ident's behalf , the petitioner never specifically stated
what duties the beneficiary would perform in this regard. Going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings . Matter ofSoffici,
22 I&N Dec. 158 , 165 (Comm. 1998) (citing Matter of Treasure Craft of California , 14 I&N Dec. 190 (Reg .
Comm. 1972)).'The fact that the beneficiary would spend 15 percent of his time "assisting the President" with
corporate policies and business matters suggests that the president maintains author ity over the beneficiary ,
even when not in the United States.
WAC 07 16852871
Page 8
The petitioner's description also included such vague duties as "overseeing the implementation of strategies,"
"conducting regulatory meetings with staff," and "preparing monthly reports on the business transactions of
the department." Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is
not sufficient; the regulations require a detailed description of the benefic iary'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 Bro s. Co.,
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N .Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
Finally, the petitioner indicated in its initial letter that the beneficiary devotes 20 percent of his time to "all
daily communications with business partners and representing the company in various trade shows and
exhibitions," and "participating in business negotiations with domestic buyers and clients." These duties
suggest the beneficiary's involvement in routine business transactions and sales activities and have not been
demonstrated to be managerial or executive in nature.
The alternate position description submitted at the t ime of filing included similarly vague duties such as
"provides managerial vision on business strategy and marketing plan," "operates and monitors daily procedure
in office and warehouse ," and "reports business status to the president." Furthermore , the petitioner stated
that the beneficiary "makes decision[s] on product selection and purchase from factory oversea[s] ," but did
not clearly identify any subordinate employees to perform the purchasing or import function. Given that the
description included in the petitioner's letter accounted .for 100 percent 'of the beneficiary's time, the
simultaneous submission of a different list of duties raises questions regarding the accuracy or completeness
of either description . 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 ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988).
The director identified these deficiencies and requested a more detailed description of the beneficiary's duties
with the percentage of time spent in each of the listed duties. However, rather than expanding upon its
original list of nine duties provided at the time of filing, the petitioner provided a list of seven duties that were
more vague than those previously outlined and offered no clarification as to how the beneficiary's time would
be allocated. The petitioner indicated that the beneficiary would "manage and supervise" all functions ,
"formulate the long and short term business plans ," "safeguard the company's assets and other ' financial
resources," and "properly account for the operation results ." It is impossible to determine what specific tasks
the beneficiary performs based on these general statements . 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. Sava, 724 F.
Supp. 1103 (E .D.N.Y. 1989),aff'd , 905 F .2d 41 (2d. Cir. 1990). 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)(14).
Contrary to counsel' s assertions on appeal , the petitioner's descriptions of the beneficiary's duties do not
provide specific information regarding the beneficiary's claimed executive duties. .
The definitions of executive and managerial capacity have two specific requirements. 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 '
WAC 07 16852871
Page 9
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) . While the petitioner places considerable emphasis
on the fact that the beneficiary is often the highest-level employee present in the United States due to jts
president's travels to China , 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 section 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738 ,5739 (Feb. 26, 1987).
The petitioner has not enumerated the specific managerial or executive job duties to be performed by the
beneficiary on a daily basis as the company's vice president, or in his claimed role as acting president. While
the AAO is prepared to conclude that some of the beneficiary's tasks are qualifying, the petitioner has the
burden of establishing that a majority of his tasks would be qualifying. This determination cannot be based
on the beneficiary's management of subordinates, the petitioner's gross income, or a job description that fails
to clarify the beneficiary's specific daily tasks. The actual duties themselves reveal the true nature of the
employment. Fedin Bros . Co., Ltd. v. Sava, 724 F. Supp . at 1108. The record does not include a sufficiently
detailed description of the beneficiary's proposed day-to-day dut ies, which is germane to a determination
regarding the beneficiary's employment capacity in the United States.
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve
supervising employees , the petitioner must establish that the subordinate employees are supervisory,
professional , or managerial. See § 101(a)(44)(A)(ii) of the Act. In response to the director's request for
evidence, the petitioner stated that the supervisor , marketing operations, supervisor , logistics & distribution ,
sales manager , and accounting officer are all professional positions. However, of these employees , only the
"manager, sales" was employed by the petitioner at the time the petition was filed. 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 petit ioner or beneficiary becomes eligible under a new set of facts. Matter of .
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
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. § 1101(a)(32), states that "[t]he 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 ga ined 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 ·(Comm. 1988); Matter of Ling, 13 I&N Dec . 35 (R .C. 1968);
Matter ofShin, 11 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 a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
<,
defined above . In the instant case , the petitioner has not, in fact, established that a bachelor's degree is
actually necessary, for example, to perform the duties of the sales manager, whose duties were originally
described as "coordinates with outside sales representat ives." This employee was also initially described as
WAC 07 16852871
Page 10
holding the concurrent role of "customer service" with responsibility for "receiving orders, order process ,
visitor reception," duties which have not been shown to require an employee with a bachelor's degree.
Furthermore, as 'noted by the director, the petitioner chose not to provide the requested evidence of the
educational credentials for the beneficiary's subordinates or a sufficiently detailed description of their duties .
Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying
the petition. 8 C.F.R. §' l 03.2(b)(14). Thus , even if the AAO considered the employees hired subsequent to
the filing of the petition, the petitioner has not established that these employees possess or require a
bachelor's degree, such that they could be classified as professionals. Nor has the petitioner shown that any
of these em~loyees supervise subordinate staff members such that they could be classified as managers or
supervisors. Only the sales department manager is claimed to supervise employees , however, as noted above ,
the petitioner initially stated that he "coordinates sales" and performs customer service duties. His duties were
only later amended to "manage sales force" in response to the request for evidence , therefore his actual degree
of supervisory authority over the petit ioner's independent sales representatives is unclear. 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.
On appeal, counsel asserts that the director improperly applied the statutory definition of managerial capacity ,
and 'asserts that the beneficiary would instead be employed in an executive capacity. The statutory definition
of the term "executive capacity" focuses on a person's elevated position within a complex organizational
hierarchy, including major components or functions of the organization , and that person 's authority to direct
the organization. Section 101(a)(44)(B) of the Act , 8 U.S .c. § 110I(a)(44)(B). Under the statute , a
beneficiary must have the ability to "direct the management" and "establish the goals and policie s" .of that
organization . Inherent to the definition, the organization must have a subordinate level of managerial
employees for the beneficiary to direct an~ the beneficiary must primarily focus on the broad goals and
policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be
deemed an executive under the statute simply because they have an executive title or because they "direct" the
enterprise as the owner or sole managerial employee. As discussed above, the job descriptions provided for
the beneficiary are so vague that theAAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, the record does not establish that the benefic iary was managing a subordinate level of managerial
employees. The petitioner's claim that the benefic iary will be the company's "primary executive" while the
petitioner's president is abroad is also not persuas ive, as the pet itioner has not described the duties he would
perform as acting president , and the petitioner's conclusory assertions regarding the beneficiary's executive
capacity are insufficient. Therefore, the petitioner has not established that the beneficiary will be employed
primarily in an executive capacity. '
,A company's size alone , without taking into account the reasonable needs of the organization, may not be the
determining factor in denying a visa to a multinational manager or executive. See § 101(a)(44)(C) of the Act,
8 U .S.c. § 1101(a)(44)(C). However , it is appropriate for USCIS 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-executi ve operations of the company, or a "shell
, company" that does not conduct business in a regular and continuous manner . See" e.g. Systronic s Corp. v.
INS, 153 F. Supp. 2d 7 , 15 (D.D.C. 2001). The size of a company may be espec ially relevant when USCIS
notes discrepancies in the record and fails to believe that the facts asserted are true. Id.
WAC 07 16852871
Page 11
As noted above, there are several irregularities in the petitioner's tax and payroll records which raise questions
regarding their credibility. Most notably, the petitioner's 2006 Forms W-2 showpayments to employees who
were not hired unt il 2007, while the total amount paid to the petitioner's employees is significantly.different
from the amount shown on the company's 2006 IRS Form 1120 . Although the petitioner claims that its
original marketing department employee , resigned in March 2007 , the petitioner's quarterly wage
reports show that he was act~ally last paid by the petitioner during the last quarter of 2006, and it is unclear
why the petitioner claimed him as an employee at the time of filing. The "coordination department" employee
also appears to have left the company inApril 2007, prior to the filing of the petition. 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 ofHo, 19I&N Dec. at 591-92 .
T1)e petitioner operates as an importer and distributor of marble and granite products , and has leased a 6,450
. square foot industrial warehouse space. At the time of filing, it employed a president , a vice president (the
beneficiary) , a web developer/finance employee, an accountant , a sales department employee , and outside
sales staff. While the petitioner later hired a marketing employee , a logistics and distribution employee , and
an accounting and administration officer, there is no evidence that the petitioner had employees to perform
duties related to marketing , administration , or import , logistics, warehousing and distribution functions at the
time of filing. Thus while the petitioner appears to have sufficient sales staff to relieve the beneficiary from
performing this function, the lack of staff to perform other essential functions raises questions as to how much
time the beneficiary would reasonably devote to the claimed executive duties . The absence of a subordinate
staff sufficient to perform the non-qualifying duties of the petitioner's business is a proper consideration in the
analysis of the beneficiary's employment capacity. See Q Data Consult ing, Inc. v. INS. .293 F . Supp. 25, 29
(D.D.C. 2003).
Contrary to counsel's assertions, the fact that the beneficiary often acts as the most senior employee w ithin
the petitioner's five- 'to seven-person company is not sufficient to establish that he will serve in a primarily
managerial or executive capacity for purposes of this visa classification. The reasonable needs of the
petitioner will not supersede the requirement that the beneficiary be "primarily" employed in a managerial or
executive capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C . §
1101(a)(44). Here , the petitioner has not established that the beneficiary will be performing primarily non­
qualifying duties.
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in
a managerial or executive capacity under the extended petition. For this reason , the appeal will be dismissed.
In visa petition proceedings , the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.