dismissed L-1A Case: Marketing And Promotional Merchandise

tdentifylng data deletea b 
preveut clearly unwarranted 
invasion of oersonal prlvac?. 
PUBLIC COPY 
U.S. Department of fIomeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: WAC 04 160 50477 Office: CALIFORNIA SERVICE CENTER Date: JUL 0 6 2m6 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
WAC 04 160 50477 
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 employ the beneficiary 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. 8 1101(a)(15)(L). The petitioner, a Nevada corporation, states that it is a full service rovider of 
rate gifts and promotional merchandise. The petitioner claims to be a subsidiary of h~ 
located in Hong Kong. The petitioner seeks to employ the beneficiary as its director of marketing and 
sales. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
mischaracterized the scope and size of the petitioner's business and the nature of the beneficiary's managerial 
duties, and those to be performed by her subordinates. Counsel claims that the beneficiary will manage two 
managerial/supervisory level employees, and an essential function of the petitioning organization. Counsel 
submits a brief and additional 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)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States 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. 8 214.2(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 
WAC 04 160 50477 
Page 3 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first issue in this matter is whether the petitioner established that the beneficiary will be employed by the 
United States entity in a primarily managerial capacity. The petitioner does not claim that the beneficiary will 
serve in an executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
The petitioner filed the nonimmigrant petition on May 13, 2004, noting on Form 1-129 its intention to employ 
the beneficiary as its director of marketing and sales with responsibility "to establish [a] distribution network 
for the parent company's products in the United States." In a May 11, 2004 letter submitted in support of the 
petition, the petitioner further described the beneficiary's proposed duties: 
[The beneficiary] will be responsible for working with our other account managers in 
directing the U.S. operations with responsibility for profitable management of the accounts. 
With the team, she will help develop the strategy to market our services to ensure optimum 
success and in accordance with our company's procedures. 
Specifically, her duties shall include, but not necessarily be limited to: 
Meet with corporate account managers to discuss new and exciting projects. 
WAC 04 160 50477 
Page 4 
Develop detailed marketing strategies that will enhance demand for clients products or in 
alternative create favorable public perception. 
Direct staff in creating concepts for creative marketing and promotions. 
Evaluation of competitors' practices. 
Coordinate branches business activities with overall corporate activities. 
Monitor, analyze costs and prepare budget. 
Integrate activity with parent company and worldwide offices. 
Synergize promotions locally, regionally, and coordinate with Head Office for global 
promotions. 
Select and direct activities of support staff, professionals and administration. 
In short, it is our intention to bring [the beneficiary] to the United States for her to 
immediately provide her services and expertise in managing our current and forthcoming 
projects ensuring that the service we provide our clients are at par with [the petitioner's] 
standard of quality. . . .She will also be in charge of managing our expansion in the South 
America market handling both the Kellogg and Colgate-Palmolive accounts. 
The petitioner submitted an organizational chart which depicts the current staff of the U.S. company, 
including a vice president, a senior manager who supervises two "creative" employees, and an associate 
director who supervises an account executive and an account service employee. The chart did not include the 
beneficiary's proposed U.S. position. 
The director issued a request for additional evidence on June 10, 2004, in part instructing the petitioner to 
submit the following evidence to establish that the beneficiary will be employed in the United States in a 
managerial or executive capacity: (1) the total number of employees at the U.S. location where the beneficiary 
will be employed; (2) an organizational chart clearly identifying the beneficiary's position and listing all 
employees who will work under her supervision by name and job title, as well as a brief description of their 
job duties, educational levels, annual salarieslwages and immigration status; (3) a more detailed description of 
the beneficiary's proposed duties, including the percentage of time the beneficiary will spend on each specific 
duty; (4) copies of the petitioner's California Forms DE-6, Quarterly Wage and Withholding Report, for the 
last four quarters; and (5) copies of the U.S. company's payroll summary, and IRS Forms W-2 and W-3 
evidencing wages paid to employees. 
In a September 1, 2004 letter, former counsel for the petitioner provided the following description of the 
beneficiary's proposed duties as "Manager of Marketing and Sales": 
Act as principal liaison and local representative between [the petitioner] and corporate 
clients. The purpose of this liaison is to insure client accounts are serviced. She is 
required to meet with their management to both advise as to account status and to gather 
their requirements. 
She shall manage accounts to insure profitable management. 
WAC 04 160 50477 
Page 5 
She shall direct office staff including creative directors and graphic designers - degreed 
professionals, as well as administrative staff. This expansion is to allow more rapid 
response times demanded by clients. 
Prepare reports for home office. 
The petitioner also submitted the following "job summary" for the position of "Director, Sales & Marketing": 
Forecasting and budgeting - 
Prepare annual budget vs. forecasted sales and revenue 
Budget resource requirement and allocation. 
Conducts competitive analysis and agency presence 
Business development for old and new clients 
Project Management - 
Assign work teams and keep track of progress 
Coordination with various [company] offices worldwide 
Keep subordinates in line with new policies, manufacturing trends and updates. 
Link between [Hong Kong] operations and overseas project management team 
Train and develop new staff hires. 
Timeline management - 
Monitor management timelines and delegate assignments 
Weekly management updates on project status 
Work directly with Creative Director for program pitches 
Develop final Project Checklist and deliverables 
Program Tracking - 
Open, maintain, and monitor timesheets for project management team 
Cost tracking of resources used per project 
Evaluate profitability of project (forecasted revenue vs. forecasted resource allocation) 
Evaluate project cost (actual expenses vs. forecasted expenses) 
Maintain budget allowances for projected expenses 
Production/Manufacturing - 
Liaise with Hong Kong operations team (Project Engineer, Quality Assurance Manager, Logistics 
Department) in all phases of production until delivery to client. 
Coordinate with U.S. partner laboratories for Quality Assurance & Quality Control 
The petitioner's job description also included the following "key responsibilities and accountabilities": 
1. North and South AmericalCanada 
a. Program development and management: 
1. Research 
11. 
 Creative brief direction and management 
... 
111. Facilitate creative brainstorm sessions 
iv. 
 Prepare presentation materials and quotations 
WAC 04 160 50477 
Page 6 
v. 
 Coordinate communication between client, brand manager with [the parent 
company] 
b. Project execution management: 
I. Project timeline management 
ii. 
 Approval process with client and licensor 
. . . 
111. Program maintenance 
iv. Weekly management update reports 
v. Monitor after sales services. 
* * 
3. NBD North & South America Support 
a. Research 
b. Competitive analysis traclung 
c. 
 Sales collateral generation for NBD 
4. Maxx US - Office Management Support 
5. Industry relations / Networking 
The petitioner failed to provide the requested breakdown of job duties for the beneficiary and the other 
employees as requested by the director. 
Former counsel for the petitioner noted that the U.S. company employed six employees at the date of filing 
and recently hired three additional employees, including two professional graphic designers, "in anticipation 
of the expansion of services which [the beneficiary] will be making possible." The petitioner noted that the 
new employees were hired as independent contractors. The petitioner's Form DE-6, Quarterly Wage and 
Withholding Report, confirms the full-time employment of the other six employees as of the date of filing. 
The petitioner submitted an organizational chart depicting the beneficiary's proposed position as "Client 
Service Manager." The chart shows her direct subordinates as a creative director who in turn supervises the 
recently-hired graphic artists; and a project manager, who supervises a licensing coordinator and the recently 
hired "project management assistant." The organizational chart shows three positions above the beneficiary 
including a "Director, New Business Development," a "Director, Client Service" and a "VP, Global Clients 
and Strategic Development." The petitioner provided brief job descriptions for each employee, noting that the 
creative director "heads the creative group and is responsible for the development of ideas, artworks and 
presentation visuals" with the assistance of the graphic artist. The petitioner noted that the project manager 
"works on day-to-day client servicing" and the licensing coordinator is "responsible for cultivating and 
developing studio relationships" and gathers information about "upcoming properties, trends and new ideas to 
be shared with the worldwide team." The petitioner did not provide a job description for the "Client Service 
Manager" position. 
The director denied the petition on October 5, 2004, concluding that the petitioner had not established that the 
beneficiary would be employed in a primarily managerial or executive capacity in the United States. The 
director, referencing the job description provided in former counsel's September 1, 2004 letter, found that the 
majority of the beneficiary's proposed responsibilities would include customer service and administrative 
WAC 04 160 50477 
Page 7 
tasks. 
 The director also found that the claimed duties were too broad and nonspecific to convey any 
understanding of the beneficiary's actual day-to-day duties. Finally, the director noted that several employees 
identified on the organizational chart did not appear on the petitioner's state quarterly wage report 
corresponding with the date the petition was filed, and determined that the petitioner had not demonstrated 
that it "has reached or will reach a level or organizational complexity wherein the hiringlfiring of personnel, 
discretionary decision-making, and setting company goals and policies constitute significant components of 
the duties performed on a day-to-day basis." The director concluded "the beneficiary's marketing and 
production-oriented duties and vaguely defined responsibilities preclude USCIS from classifying the 
beneficiary as a manager or executive." 
The petitioner filed an appeal on November 4, 2004. On appeal, counsel for the petitioner again identifies the 
beneficiary's proposed position as "Client Service Manager." Counsel provides an overview of the 
petitioner's corporate group, noting that the petitioner's ultimate parent company is "one of the world's 
leading advertising and marketing services corporations," while the petitioner's direct parent company has a 
"global network of subsidiaries" capable of providing "global full service project management capabilities 
including product development, creation, licensing, promotional strategy, sourcing and SCM, quality control 
and assurance, logistics and fulfillment, manufacturing, operations and engineering for a full range of 
promotion and management services to a full range of industries throughout the world." 
Counsel asserts that the director mischaracterized the petitioner as a "small company" and ignored "the actual 
business realities of the corporation's . . . actual business operations." Counsel notes that while the petitioner 
has only nine employees, it "plays an integral part in its global business operations." Counsel notes that the 
petitioner and its overseas operations are fully integrated, and, since many of the brands the petitioner serves 
are located in the United States, the petitioner plays an integral role in servicing these accounts. Counsel 
further describes the scope of the beneficiary's duties: 
As Client Services Manager, [the beneficiary] will manage not only the two key departments, 
Creative and Operations Departments at [the petitioner's] Los Angeles office, she will also 
have responsibility for managing various aspects of [the parent company's] manufacturing, 
quality control, and safety employees in the Hong Kong Office. . . . [The beneficiary] will 
manage 6 U.S. employees in additional [sic] to the Operational Department employees in 
Hong Kong. 
Counsel further asserts that, with respect to the beneficiary's U.S. subordinates, the petitioner previously 
explained that it hired additional employees subsequent to the filing of the petition in anticipation of the 
beneficiary's transfer to the United States. The petitioner submits evidence of payments to the three 
contracted employees, along with evidence that two of the three employees are now on the petitioner's 
payroll. Counsel contends that while the beneficiary will perform some executive duties, she will serve the 
company in a "primarily managerial position." Counsel emphasizes that the beneficiary will: supervise two 
subordinate managerial and professional employees who will in turn manage the creative and operations 
departments; make policy decisions and implement policy directives mandated by senior management 
regarding marketing and promotion planning operations, including responsibility for establishing new market 
WAC 04 160 50477 
Page 8 
demand forecasting procedures; and function at a senior level within the petitioner's organizational hierarchy, 
receiving only general supervision from senior managers. 
Counsel further states that even if the beneficiary didn't manage a subordinate staff of professional 
managerial or supervisory personnel, she would still qualify for the benefit sought because she will manage 
the creative and operations departments which produce the actual promotion products for the company's 
corporate clients. Counsel asserts that as "Client Services Representative," the beneficiary will manage the 
petitioner's "core business function, the actual management and establishment of the strategy to concept 
development of the promotional initiatives for its global clients." 
In support of the appeal, the petitioner submits a November 3, 2004 letter from the foreign entity's president, 
who states that as "Client Services Manager" the beneficiary will "manage the client interface of [the 
petitioner] with the Operations and Creative/Product Departments for design, manufacturing, product safety 
and compliance for KFC, Kellogg and Colgate Palmolive" and be responsible "for managing the various 
operational units in Hong Kong, like engineering, quality assurance and quality control to ensure all products 
meet the client's budget, product and engineering specifications, safety and quality compliance requirements." 
The foreign entity noted that the beneficiary would: 
Manage product design, manufacturing capabilities and limitations and provide direction 
to the creative director and product designers in the Los Angeles office. 
Manage customized product cost analysis to provide account managers with direction on 
premium programs that ensure profitability for [the petitioner] 
Utilize in depth knowledge of ever-changing product safety and regulatory standards 
around the world and manage the Operations Department for [the petitioner] on behalf of 
our clients' promotional products. She must ensure that the Operations Department's 
product development is in compliance with all regulatory standards and be able to 
represent [the petitioning organization], at a management level, regarding all product 
safety decisions with third party product testing laboratories and our client's Quality 
Assurance Teams. 
Manage Maxx Marketing corporate product safety policy guidelines and standard 
operating procedures up to date with respective national safety agencies and laboratories. 
Counsel's assertions are not persuasive. Upon review, the petitioner has not established that the beneficiary 
will be employed in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 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 
either in an executive or managerial capacity. Id. Here, the petitioner has consistently claimed that the 
WAC 04 160 50477 
Page 9 
beneficiary will perform primarily managerial duties as defined at section 101(a)(44)(A) of the Act, 8 U.S.C. 
3 1 1 0 1 (a)(44)(A). 
However, the petitioner and counsel have utilized at least three different job titles to identify the beneficiary's 
proposed position in the United States, an inconsistency which raises questions regarding the credibility of the 
information submitted regarding the beneficiary's proposed duties. The petitioner stated on Form 1-129 that 
the beneficiary would serve as its "Director of Marketing and Sales." In response to the request for evidence, 
the petitioner and counsel referred to the beneficiary as "Director, Sales and Marketing" and provided a 
detailed description of that position, but also submitted an organizational chart identifying the beneficiary's 
proposed position as "Client Service Manager" reporting to a "Director, New Business Development7' and a 
"Director, Client Service." None of these three positions were identified on the petitioner's initial 
organizational chart. On appeal, the beneficiary is referred to as both "Client Service Manager," and "Client 
Service Representative" and the foreign entity's president submits a position description which includes 
duties that were not previously mentioned, most notably, responsibility for managing the entire operations 
department of the petitioner's Hong Kong parent company. Based on the petitioner's representations, the 
beneficiary has served as both a client service manager and as a manager or director of sales and marketing 
for the foreign entity, so it is reasonable to assume that these are distinct positions with clearly defined 
responsibilities within the petitioner's organization. It is the petitioner's burden to clearly describe the 
position that is being offered to the beneficiary. See 8 C.F.R. 9 214.2(1)(3)(ii). Without this information, it is 
difficult to conduct a meaningful analysis of the remainder of the evidence submitted in support 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 of Ho, 19 I&N Dec. 582, 591- 
92 (BIA 1988). Furthermore, the AAO notes that in response to a request for evidence or on appeal, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or the associated job responsibilities. The petitioner must 
establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
CIS requirements. See Matter of hmmi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). For these reasons, the 
AAO will consider only that evidence offered in support of the beneficiary's proposed employment in the 
position of "Director of Marketing and Sales" with the U.S. company. 
The petitioner's response to the request for evidence included a lengthy description of this position. However, 
based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary will primarily perform non-managerial 
administrative or operational duties. Although specifically requested by the director, the petitioner's 
description of the beneficiary's job duties did not provide the percentage of time the beneficiary would 
allocate to each of the listed duties. Thus, the record as presently constituted does not establish what 
proportion of the beneficiary's duties is managerial in nature, and what proportion will actually be non- 
managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Any failure to submit 
WAC 04 160 50477 
Page 10 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
3 103.2(b)(14). 
The AAO aclcnowledges that some of the beneficiary's duties related to forecasting and preparing budgets, 
developing marketing strategies, and project management, may be considered managerial in nature. However, 
many of the beneficiary's proposed duties are either clearly non-managerial or are too vaguely defined to be 
considered managerial in nature. For example, the beneficiary's responsibility for "program development and 
management" includes non-managerial duties such as performing research, participating in "creative 
brainstorm sessions," worlung directly on program pitches, and preparing client presentation materials. The 
beneficiary's responsibilities also include conducting competitive analysis, performing unspecified duties 
related to "business development for old and new clients," performing research, competitive analysis tracking 
and "sales collateral generation" for "NBD," "monitor[ing] after sales services," tracking project costs, and 
unspecified duties related to "office management support" and "industry relations/networking." The 
beneficiary also appears to be solely responsible for liaising with the parent company's operations team 
during the production and delivery process. Without additional explanation, or evidence that she would be 
directing lower-level employees to perform non-qualifying duties associated with sales, marketing, business 
development and day-to-day communications with the overseas entity, the record suggests that the beneficiary 
is directly involved in routine research, marketing, client communications, client servicing, creative and 
operations/liaison duties that comprise the daily operations of the business. These duties do not appear to be 
incidental to the beneficiary's daily duties. It is not possible to determine that the beneficiary's duties 
associated with these activities would be primarily managerial functions. 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 101(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Int '1, 19 I&N Dec. 593, 604 (Comrn. 1988). 
The definitions of executive and managerial capacity have two 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 test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties related to operational or policy management, not to the 
supervision of lower level employees, performance of the duties of another type of position, or other 
involvement in the operational activities of the company. 
In the instant matter, the petitioner has failed to show that non-qualifying duties will not constitute the 
majority of the beneficiary's time. The provided job descriptions do not allow the AAO to determine the 
amount of time the beneficiary will devote to managerial versus non-managerial duties. 
On appeal, counsel asserts that the beneficiary will supervise "two managerial/supervisory level employees" 
in the petitioner's "creative and operations departments" who will relieve her fi-om performing non-qualifying 
duties and in turn supervise their own staff of four employees, including professional employees. Although 
the beneficiary is not required to supervise personnel, if it is claimed that her duties involve supervising 
WAC 04 160 50477 
Page 1 1 
employees, the petitioner must establish that the subordinate employees are supervisory, professional, or 
managerial. See 9 10 1 (a)(44)(A)(ii) of the Act. 
The record as presently constituted does not clearly establish the job titles and job duties of the beneficiary's 
proposed subordinates, which makes it difficult to evaluate the petitioner's claims that the beneficiary will 
supervise subordinate managerial and supervisory employees. The organizational chart submitted with the 
initial petition failed to identify the beneficiary's proposed position within the U.S. company. Four of the 
seven employees on the chart, including an "associate director," an "account executive," an "account service" 
employee, and a "creative" employee, do not appear on the petitioner's California Form DE-6, Quarterly 
quarter in which the petition was 
 loyees who do appear 
(identified as "vice president"), 
 (identified as "senior 
manager") an 
 "creative" working unde- The petitioner's Form DE-6 
includes four employees who were not identified on the initial organizational chart. 
In response to the director's request for evidence, the petitioner submitted a new organizational chart. The 
employee previously identified as the "vice president" is depicted as the "Director, New Business 
Development," The chart includes a "Vice President, Global Clients and Strate ic Development" and a 
"Director, Client Service" who were not included on the previous chart. m who was previously 
identified as a senior manager overseeing the creative team is depicted as a "project manager" overseeing a 
licensing coordinator and a project management assistant, who joined the company subsequent to the filing of 
the petition. who was previously depicted as a "creative" employee is depicted as "creative 
director" overseeing two graphic artists who were employed as independent contractors. Finally, as mentioned 
above, the beneficiary is identified on the second organizational chart, but the petitioner changed her job title 
from "Director, Sales and Marketing" to "Client Service Manager" and failed to provide a description of the 
newly offered position. The petitioner showed the beneficiary as "Client Service Manager" overseeing the 
project manager, who is responsible for "day-to-day client servicing," and the creative director, who is 
responsible for "development of ideas, artworks and presentation visuals" and heading the "creative group." 
However, based on the various changes in the employees' job titles between the time of filing and the 
petitioner's response to the request for evidence, the AAO cannot conclude that the beneficiary, as the 
"Director of Marketing and Sales," would primarily supervise supervisory, managerial or professional 
personnel as of the date the petition was filed. 
Again, 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, 19 I&N Dec. 
at 591-92. 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. Id. at 59 1. 
On appeal, counsel contends that the director erred by mischaracterizing the size, nature and scope of the 
petitioning company, asserting that, regardless of the number of employees in the United States, the company 
is "an integral part in its global business operations" of the group of companies that includes the petitioner 
and the beneficiary's foreign employer. Counsel asserts for the first time on appeal that the beneficiary will 
manage the operational department employees of the petitioner's parent company. As discussed above, this 
WAC 04 160 50477 
Page 12 
assertion has not been substantiated in the record. The job description and organizational chart provided in 
response to the director's request for evidence made no mention of the beneficiary's responsibility for 
managing any overseas employees, much less management of an entire department. On appeal, a petitioner 
cannot offer a new position to the beneficiary, or materially change a position's title, its level of authority 
within the organizational hierarchy, or the associated job responsibilities. The petitioner must establish that 
the position offered to the beneficiary when the petition was filed merits classification as a managerial or 
executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to CIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Cornm. 1998). 
Although the director based his decision partially on the size of the enterprise and the number of staff, the 
director did not take into consideration the reasonable needs of the enterprise. As required by section 
101(a)(44)(C) of the Act, 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. 
At the time of filing, the petitioner was a two-year-old marketing company with six payroll employees and 
one creative employee working on a contract basis. As discussed above, the petitioner has submitted two 
different organizational charts and inconsistent information regarding the positions held by several of its 
employees, as well as inconsistent information regarding the beneficiary's proposed position. These 
discrepancies make it difficult to perform a meaningful evaluation of the petitioner's staffing levels and the 
ability of the petitioning organization to support a new managerial position. Reviewing the organizational 
chart submitted in response to the director's request for evidence, five of the six payroll employees employed 
at the time of filing had managerial or executive titles. Notwithstanding the petitioner's assertion that the 
beneficiary will manage two departments, the petitioner did not submit evidence that it employed sufficient 
subordinate staff members who would perform the actual day-to-day, non-managerial operations of the 
petitioner's creative and operations departments. 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. 
Counsel's claim that the petitioner's business should be considered an integral part of its parent company's 
global operations is not persuasive. While the AAO does not doubt that the petitioning organization is an 
integral component of its corporate group, and operates in conjunction with these companies, the fact that the 
small, but growing U.S. company is part of a larger group does not automatically elevate the beneficiary's 
proposed role to a qualifying managerial position. The petitioner must still provide a consistent job title for 
the beneficiary, detailed descriptions of the beneficiary's duties and the amount of time she will devote to each 
duty, evidence that the beneficiary will perform primarily managerial duties, consistent descriptions of the 
beneficiary's subordinates' job titles and duties, and evidence that the U.S. company is sufficiently complex 
organizationally to require another managerial position. The evidence submitted is insufficient to establish 
that the beneficiary's actual duties will be primarily managerial. 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), affd, 905 
F.2d 41 (2d. Cir. 1990). 
WAC 04 160 50477 
Page 13 
The AAO acknowledges counsel's on appeal that the beneficiary would serve as a function manager of the 
petitioning organization's "core business function" based on her oversight of the creative and operations 
departments. 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, 8 U.S.C. 3 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 furnish 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. 3 214.2(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 employed in a managerial 
or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing 
Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the 
petitioner has not provided evidence that the beneficiary manages an essential function. 
Whether the beneficiary is an "activity" or "function" manager turns in part on whether the petitioner has 
sustained its burden of proving that her duties are "primarily" managerial. The petitioner has failed to 
establish any clear distinctions between the proposed qualifying and non-qualifying duties of the beneficiary. 
Specifically, the petitioner submitted no information to establish the percentage of time the beneficiary will 
perform the claimed managerial duties, although the beneficiary's job description includes some duties that 
are not managerial. Absent a clear and credible breakdown of the time spent by the beneficiary performing 
her duties, the AAO cannot determine what proportion of his duties would be managerial or executive, nor 
can it deduce whether the beneficiary is primarily performing the duties of a function manager. See IKEA US, 
Inc. v. US. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
the United States in a managerial or executive capacity. 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. 3 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.