dismissed L-1A Case: Medical Supply Distribution

U.S. Department of Homeland Sccuritj 
20 Mass Ave. N W Rm A3042 
Wn\h~ngton, DC 20536 
11s. Citizenship 
and Imrnigratlon 
File: WAC 03 059 51797 Oilice: CALIFORMA SERVICE CEN'I'EU Date: ,lllN 1 4: 2ClC15 
Petition: Petition for a Nonimtnigrant Workcr Pursuarlt to Section IO!(a)(15)(L) of the 
Irn~nigrution i~nd Nakioraality Act, 8 U.S.C. $ 1 lOl(a)( 15)(L) 
This is the dccisio~~ of the Xdrr~inistrativc Appeals Office in your case. All documents have been ret~~rned 
to the office that originally decided jortr case. Any further inquiry must be rnadc to that office. 
7 .- - 
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C.... -&=#Y' 
Robert P. Wie~ndnn, U~icctu~ 
Administrative Appeals C)fiicc 
WAC 03 059 5 1797 
Page 2 
DISCUSSION: The llirector, Californra Serv~cc Center. denied the petition for a nonimrn~grant visa. 
The matter is now before the f\drninistrat~vt. Appeals Oftice (AAO) on appeal. Thc AAO will dismiss 
the appeal. 
The petitioner seeks to ernploy the beneficiary temporarily in the United States as an I.,-iA nonimmigrant 
intracompany transferee pursuanl to section IOl(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C.'. 5 1101(a)(15)(L). The LJ.S. petitioner, a corporation organized in the State of California, 
that is engaged in the distril-jution of mtt:dical and laboratory supplies and seeks to employ the beneficiary 
as its chief operating officer. 'I'hc petitic?ner claims thilt it is the subsidiary of located 
in Quezon City, the f'tiilippirles. 
The director denicci the pi:tition co~~cluding that the petitioner did not establish tl-rat (1) a qualifying 
relationship existed between the 1J.S. entity and a foreign entity; arid (2) the beneficiary will he employed 
in the United States in a prirriarily managerial or executive capaci:~. 
The petitioner suhsequcntly filcd an appeal. The director dt:clined to treat the appeal ijs a nlotion and 
forwarded the appeal to the AACb for review. On appeal. counsel for the petitioner asserts that the 
evidence submittcd with the initial petition and in response to the director's request for additional 
evidence clearly established that the lxneficiary was cmploycd in a primarily inanagerial or executive 
capacity as dcfincd \>)I the regulations and that the requisite qualifying relationship existed between the 
petitioner and a foreign cniity. In support of this assertion. counsel submits a brief and additional 
evidcncc. 
To establish eligibility for the I-.-1 nonimrnigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 I(a)(lS)(L) of the Act. Specificul ly, a qllalifying organization must have employed 
the beneficiary in a qualifying mi~nagerial or execiltive capacity. or in a specialized knowiedge capacity, 
for one cor~tinuous ycar wilhin three years preceding the beneficiary's application for admission into the 
United States. In addition. the bermcficiary musl seek to enter the United States temporarily to continue 
rendering his or her services to the sarnt: eruployer or a subsidiary or affiliate thcrcof it1 a managerial, 
executivc. or specializeti knowledge capacity. 
'I'he regulation at 8 C.F R. 5 ?I4.211)(3) slates that an ~ndivtdual petitton filed on Form I-12C) shall be 
accompan led by. 
(i) Evidt-ncc that the pet~tioner and thc org;inization which elnployed or will employ 
the alien arc qualifying clrganizations as defined in paragraph (I)(l)(ii)((i) of this 
srctior~. 
(ii) Evidence that lhlc alien will be ernploycd in an executive. managerial. or 
specialized knoinrlcdge cilpacity, including n detailed description of the services 
10 be pcrfcrrined. 
WAC 03 059 5 1707 
Page 3 
(iii) Evidence that the alien iias at least one continuous year of full time clnployment 
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 inanagerial, exec~.~tive or involved specialized knowledge and that the alien's 
prior education. training, and employment qualifies hindher to pcrfornl the 
intended services in the United States; however, the work in the United States 
nccd not he the same work which the alien performed ahroad. 
The first issue in thc present nratt~:r is whether the petitioner and the forcign organization are qualified 
organizations as dcfincd by 8 C'.F.R. 5 214.2(1)(l)(ii)(C;). The regulation defines the tern1 "quatifying 
organization" as n United States or foreign firm. corporation, or other legal entity wt~ich: 
(I) Meets exactly nne of the qu:ilifying selationships specified in the definitions of a parent, 
branch. affiliate or subsidiary spccifictl in paragraph (I)(l)(ii) of this section; 
(2) Is or will bc doing business (engaging in international trade is not required) as an employer in 
the United States and in irt least one other country directly or through a parent, branch, affiliate. 
or subsidiary for t11e duration of the alien's stay In the United States as an intraconlpany 
transferee; and 
(3) Ottcr~vlse meets t.hr rcqui~evrlc.nts of section 101(a)( lS)(L) of the Act. 
Additionally. the regulat~on at X C.F.R.. 9 '214 ?(l)(l)(ii) provides: 
(I) "Parent" Illcans a firm, corporation. or other legal entity which has subsidiaries. 
(J) "Branch" means an operating division or offict: of the sarr~e organization housed in a different 
location. 
(K) "Subsidiary" lrielills n firm, corporation, or o~her It:gal entity of which a parent owns. directly 
or indirectly, morc than halj of thc ctntity and controls tht: entity; or owns. directly or indirectly, 
half' of the entity and controls the entity; or owns. directly or indirectly. 50 percent of a 50-50 
joint venture and has eqirsi control and veto power over the cntity; or owns. directly or indirectly. 
less than half of the entity, bu~ in fact cor~trols the t:ntity. 
(L) "Affiliate" tncans 
(1) 01le of two subsidiaries both of which are owned and controlled by the sarne parent or 
individual, or 
WAC 03 050 5 1797 
Page 4 
(2) One of t~o lcgal entities owned and controlled by the same group of individuals. each 
~ndividual owning and controlling approximately the same share or proportion of each 
entlty. or 
(3) In lht: case of a partnership that is organized in the United States to provide accounting 
services along with managerial andlor coilsulting services and that rnarke~s its accounting 
services under an internationally recognized name under an agreement with a worldwide 
coordiriating organization that is owned and controlled by the mcrnlxr accounting fimis, a 
parznership (or similar organization) that is organized outside the Ilnited States to provide 
accounting services shall be considered to be an affiliate of'the Ilnitcd States partnership if it 
markcts its accounting services under the same internationally recognizcd name under the 
agreelncnt with the v,/orldwide coordinatirig organization of which  he United States 
partnership is also ii member. 
In this case, thc petitioner cl:lims that the 1J.S. entity is the sitbsidiary of thc foreign entity. The director 
found the initial evidence submittt:d with the petition to be ins~~fficient to q~ialify the petitioner for the 
benefit sought. ;lnd consequently issuer1 a request for evidcnce on March 3, 2003. In the request. the 
director asked the petitioner to submit evidence that definitively established its qualifying relationship 
with the foreign cornp;lny. and specificaIly requested evidence of the foreign entity's ownership and 
control of the I.I.S. petitioner. On May 23, 3003. the petitioner submitted iI detailed response to the 
director's request which was accorripariicd by numerous corporate docutnents for the U.S. and foreign 
companies as well as adtli~ional tlocumcr~tary evidence in support of the cl~tirned relationship. 
Upon review of the evidence submitted, the director concluded that the L1.S. entity was not the subsidiary 
of the foreign entity hased 011 the docurncntatiori subniittcd. Specifically, the director found that the 
petitioner had fa~led to subhtantiate its claim that the foreign entity owned a 59(% interest in the U.S. 
entity. The director subscquer~tly concluded that the petitioner's cla~nl wa\ invalid and, as a result, the 
petition was der~ied on June 30. 2003. 
The petitioner appealed thc decision, asst:rting that thc: foreign entity did in fact own the proportion 
claimed. In support of this conlention, the counsel for the petitioner provided additional docun~cntation 
which outlines the manner in which rhe ownership of thc U.S. entity was acquired. The AAO will first 
examine the record of proceeding and the director's decision prior to examining the petitioner's clai~ns on 
appeal. 
The regulation ancl case law ccmfirm lhat ownership and control arc the factors that must be examined in 
determining whcther a qu:tliiyin[; relalionship exists between United States and foreign elltities for 
purposes of this visa classificstiuti. hlfirtclr rf Clllrrc,lt ,Sc.ienrolo,yy I~~tert~~~tior~cil, I9 I&N Uec. 593 (BIA 
1988); .see rrlso Mnttrr (tf' Sirv71cns Mctlicxl S~.~i~/ti.v, 1t1c.. 19 I&N Ilec, 302 (HIA 1086); Mntfer'cf 
Hugl~es, 18 I&IS DD~ 289 (Co~nni. 1987). In context of this visa petition. ownership refers to the direct 
or indirect legal right of possession or thc assets of an cntity with full power and authority to control; 
control mcans the direct or indirt:c;t legal right and authority to direct the establishment, inanagernent, and 
operations of an entity. bfcrttrr ($(;IIII~L.~I Sr.ie~~tolo'yy, I9 IXrN Dec. at 595. 
WAC 03 059 5 1797 
Page 5 
Upon review of the rc-cord of proci:eding. the petitioner did not estahiish that it has the required qualifying 
relationship with the foreign entity. 
In this case. the petitioner provided dcxunlcntary evidence outlining the shareholder interests in the U.S. 
entity. and supplelnentcd this evidence with explanatory statemnents which discussed the manner in which 
the ownership intcresls were ucquir;d by the Ibreigrl entity. The initial petition includcd no documentary 
evidence supporting the claimed relationship between the U.S, and foreign entities. Consequently, the 
director issued ii request for evtdence establishing the business relationship between the two entities. In 
response to this request, counsel subn~~ttcd statrlncnts which claimed that ~rdoin~ 
business as - had agreed to transfer $150,000 to the I1.S entity in exchange for a 
59% ownershrp Interest in the enilty. The evidence submitted consibted of a Metnorandurn of 
Understanding dated January 10, 200 I, which outlined I his a >ree~,~ent, as wcll ;is a Corporate Secretary's 
certificate, dated Ocrober 14. 2002, which suited that Ur-wned 100.OOO sbsrrr. or 59% of the 
U.S. entity. 
The director concluded that tlae evidcncc did not establish ttnt the two companies were owned and 
controlled by the same parent, nor was there significant ~:ornmonality of ownership in existence.' The 
director based his decision on the lack of evidtvce in the record regarding the ownership of both entities. 
Upon review of the record of proceeding, the ,4AO concurs with thc director's finding that the 1.I.S. and 
foreign entities do not have a qualifying relationship as defined by the regulation at 8 C.F.R. 
$214.2(1)( l)(ii)(L). Specifically, the AAO finds that rhe evidence submitted in support of this petition 
was insufficient to c1c;arly establish the crwnersl~ip compositions of both of the entities in qucstion. 
On appeal, counsel for the petitioner again alleges that thc 1)r 
h 
wns the foreign entity and 
owns 59%) of the U.S. entity. 'I'he recorcl. however. clearly indicates t at at the tinlc of the filing of the 
petition, the petitioning enterprise did not maintr\in a qualifying relationship with the overseas company. 
The petitioner claims. in the ('orporate Secretary's Certificilre dated Clctohcr 14. 2002, that the U.S. entity 
was owned as follilws: 
I 
The AAO notes that wilt1 regard to the "commonality of ownership" analysis. the director erroneously 
concluded that "c~rnmon cnrltr01 ;nust exis1 for there In be a clualifying rc1;ltionship." Since the claimed 
relationship in this i.iiltLicr i:: that of a parent and a suhsidi;lry, com~nonalily of control is not n requirement 
to establish such a :elorionship. 
WAC 03 059 5 1797 
Page 6 
The ~etitioner. however. failed to ~rovide anv additional do;umclltiirv evidence to corroborate this claim. 
Counsel sub~nittcd copies of receipts evidencing ~r~eriodic remittance of payments toward 
the alle~ed $150.000 clalmcd no have been paid in exchdnee for her ownershit, interests in the U.S. entity. u u 
More specifically, counst:l :ts;erts thiit D ntered into an "agreen~ent" to purchase 59% of the 
petitioner's stock in exch;~ni<r.: for a "pro~~ii?iel' to invt+st up to $150,000. Although counsel asserts that this 
agreement was subrn~tic-d. ~t ib not present in the record of proceed~ng. 'I'he AAO assumes, therefore. that 
the Memoranduni OS li~lderstanding contained in the record is the promissory note which counsel asserts 
is proof of ~wnershi~ interests in the petitioner. This Me~norandum is not a promissory 
note. Funhennore, ~t on~~ts the date by which the $150.000 must be paid, and fi~rther omits any terms of 
int rest corn~nonly contained in pro~nissory notes. Since the Memorandum elcarly states that Dr. 
e will "contribute" $150.000 towards the purchase of stock, it must be assumed that a 59% 
ownership interest will not tx established unt~l the total amount 15 pa~d in full. 
On appeal, counsel introdui:e.s lor the first tiaut: t$-ditfence that Dr. as not yet paid the entire 
purchase atnount nf'$150,C#Nl for her 59?% interest in the I1.S. counsel states that Dr. <. 
as sraJcrcd imly $35.090 t(~ da~e tnward her intercats in tlir 1J.S entiiy 
contention. cok~nsel s~~bmits copies of receipts for periodic paynnerlts made by Dr toward the 
$150.OOO. It i!; i:!::,~. ilhcrofore, that altlhsugh the petitioner alleged that a majority interest in the U.S. - - 
entity had bccn acqurrcci by 1) or thc surn of S150.000. this contention is false and not an 
accurate representatlon of the ~t: U.S ent~ty. If CIS fails to believe that a fact stated in the 
petition is true, (.'IS may reject that t'i~ct. Section 204(b) of the Act. 8 1J.S.C. 5 1154(b); see cllso 
Artcteklrcri v. I.N.S.. 876 F.2d 1218. 1220 (5th Cir.1089); LA-Attn Bakery Slrnp. Itrc. rq. Nelson, 705 F. 
Supp. 7. 10 (D.D.C. 1988); S\:stror;ics Corp. I.. I.NS, 153 I:. Supp. 2.6 7, 15 (D.D.C. 2001 ). 
Since the record contitin.; ev~dence of only S $5.090 rrndered to ddte toward the purchase of stock, and 
since the~e IS 110 'i(idi111)nal evtiience to wggest othzrw~se. it nlust be concluded that Dr. 
only 13 8% cot the IJ 4;. ent~ty's stock and not 59%) ,lr allegt:ti by counsel Go111g 
supponing d~ct.:~nct:n!r.ic~ evidence is no!: sr.~fficient for purposes of meeting-the burden of proof in these 
proceedings. Mrritcr II'rcpo.;:rt.c C'rirfi of' Culjforr~irr, 14 IRrN Slec. 191) (Reg. Corn~n. 1972). 
Furthermore. without documentary cviciencc to support thc claim the assertions nf'counsel will not satisfy 
the petitioner's burden of proof. 'The assertions of counsel do not constitute evidence. Mnttcr of 
Obirighc,nn. 19 I&% I>ec. 533, 534 (BIA 1988); h4~ttcs Of LAIIII.P(I)IO, 19 I&N DCC. 1 (131A 1083); Matter 
of Rr1mire:-Snnchr.,7. 17 I&N Dcc 503. Sob (HIA 1'180). 
4 
As general evtdznci: ut a pelitloner'\ cla~mned quality ~ng relation\tlip. the Corporate Secretary's {'ertificate 
and the Memorandum of Understanding provided in this case are not sufficient to deter~nlne whether Dr. 
aintains ov",r~ership and control of the I.J.S. entity. The corporate stock certificatc ledger, 
s!ozk ccr~ificatc regislry, corpr.,t.attt byl;.t\us. ant1 tht: ~ninutes of relevant annual 
shareholder mcetii-tg!; un.iilst :ilso he examined to (letermine the total numher of' shares issued. the exact 
number isstled to the ~I~rareh~lder~, rand the subsequrn~ percenlage ownersl-rip and its efrect 011 corporate 
control. Additio~~ally, a petitio~~ing company nlust disclosc all agreements relating to the voting of shares, 
thc distribution of profit, the Inanagement and direction of the subsidiary, and any othcr factor affecting 
actual control of the entity. Srr M(i;~er of .S~CJHICII.T hlrtiictrl S\jsii~t~l~, Irlc*., 19 I&N Dee. at 302. Without 
WAC 03 050 5 179'7 
Page 7 
full disclosure of all relevant documents, C'itizenship and 1Irnrnigration Services (CIS) is unable to 
determine the elements of owncrsliip and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. 9 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire txyond {he issuance of paper stc~ck ~(xtificates into the means by which stock 
ownership was acquired. As requested by the director, evidence of this nature should ir~clude 
documentation of manics, property, or other consideration furnished to the entity in exchange for stock 
ownership. Additional supporting evidence would include sttxk purchase agrezmenls, subscription 
agreements, corporate by-laws, minutes I.J~ relevant shareholder rneetitlgs. or olher leg11 dr~uments 
governing the acquisition of the ownership interest. 
Although requested by the director. the pet~tioner evidence. other than the 
statelne~its of counsel, to substantiate the claim that Dr of the fore~gn entity. 
Without dmurnentary evidence to support the w~ll riot satisfy the 
petitioner's burden of proof. ?'he: assertions of counsel do not constitute evidence. Murtrr oJ'Ohnighen~, 
19 I&N Dec. at 534; Mnrrc.r Of Lntrreono, 19 1&1V Dec. at 1 ; Mtrtter r?/ Rcrt~~irez-Siinc./~ez. 17 I&N Uec. at 
506. In addition, allhough rhc director requested specific cviderice regarding the ownership and control of 
the U.S. entity, the pctilioucr rs~riitted the specific dncunlcnts. such as the stock registry and stock 
certificates. requestetf Dy the director. Failure lo submit requested evidence tliat precludes a material line 
of inquiry shall bc grounds for tlcnying lt~e petition. 8 C.F.K. 3 103.?(b)( 14). 
Based on the evidence presented. it is concluded that the petitioner and the foreign entity did not maintain 
a parent-subsidiary relationship as of thc filing date of this pctition, and thus did not have a qualifying 
relationship as required by the regulations. There is no evident:c of the ownership of the foreign entity in 
the record. and the evidcncl: provided in support of thc U.S. entity's ownership is doubtful. contradictory, 
and uncorroborated. For this reason, the petition rnay not be approved. 
The second issue in [his matter is vihett.rer the beni:ficiary will bc el.nployed by the IJnited States entity in 
a primarily managerial or exect~tivr: capacity. 
Section lOl(a)(33)(A) of the Act, 8 U.S.C. 5 1 10 1(a)(44)( A). defines the term "managerial capacity" as 
an assignment withln an orgarriz~tion in which the cmployec primarily: 
(i) manages the orpanization. or rr ~lepari~ncnr, snk~d:vi\ion. function. or component 
of the organi7at1on; 
(ii) supervises and controls the work of c~ther supervisory, professional, or 
managerial ernployit.ej, or manages an essential function within the organization, 
or a dcpartn~ent or :;ut)division of the 01-ganizatic~n; 
(iii) if another employee or other elnployees ;Ire directly supervised. has the authority 
to hirc and fire or recotnmend those as well iis other personnel actions (such as 
WAC OR 059 5 1707 
Page 8 
pro~notion and leave authorization). or if no other e~nployre is directly 
supervised, functions at a senior level within the organi~at~onal hierarchy or with 
respect to the [unction rnanagetl; and 
(iv) exercises discretion over the day to day aperations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a nunagerial capacity merely by virtue of the supervisor's supervisory 
duties unlcsq the employees 5upervised are professional. 
Section 10l(a)(44)(B) of thc Act. 8 U.S.C'. 5 1101(a)(44)(H), defines the term "executive capacity" as an 
assignnlent within an organ17iation in which the enrployee prlrnarlly: 
(i) directs the ~~~anagement of the organization or a major component or function of 
the organi~at ion, 
(ii) establishes the goals and policies of the org;~nization. component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) rcceivcs ntll y gcrrcral supervision or direction from highcr lcvcl executives, the 
borard of directors, or stockholders of rl,c organization. 
In the initial peti,tiun. Ihe pcli!.ioner statcci that the beneficiary would be acting as the Chief operaling 
Officer. On March 1. 200.3, thc director requested additional evidence esti~hlishing that the beneficiary 
was quaiifred for the benefit sought. Specifically. the director requested evidence supporting the 
petitioner's claim that the h,:neficiar.y had been acting in a primarily managerial or executivc capacity 
while abroad, and that she would continue working in a primarily mi~nagerial capacity while in the United 
States. 
In a response dated May 22. 2003. the petitioner. through counsel. submitted ii detailed response 
accompanied by the documentation requested by the director. Counsel's response included copies of 
organizational charts for both the U.S. and foreign entities. a copy of the U.S: entity's lease and proposed 
business plan. and an extensive summary of the beneficiary's duries. 
On June 30, 2003 the director denied the petition. 'I'he director determined that the evidence in the record 
did not establish that the beneficiar)~ woiilt-l he employed. in a primarily managerial or executivc capacity 
while in the Unitcd States. Specifically, the clirector concluded that tht: duties of the beneficiary, as 
presented by counsel. wcre. vague arid general and addcd that the proposed duties appeared to merely 
summarize the regulatory dcfinitiuns. 
On appeal, couriscl for thc petitioner rcstates the hur rttqt~iremenls of "nlanagerial capacity" as defined by 
the regulations. and alleges for tl-ri: first time that the beneficiary is appropriately qualified as a [unction 
manager. 
WAC 03 059 5 1797 
Page 9 
The AAO, upon review of the record of prcxeeding, concur:, with the director's finding. Specifically. 
upon review of the beneficiary's stated duties. it appears that the beneficiary will not be acting in a 
primarily managerial or executive capacity. The beneficiary will not be supervising other professional or 
supervisory employees. In addition, it does not appeiir that the beneficiary will be rrlanaging an essential 
function of the orgdnizat~on. 
When examining the executive or managerial capacity of the txneficiary, the AAO will look first to the 
petitioner's descript.ion of the Job dutie:;. See X C.F.R. 9 214.3(1)(3)(ii). In this case, counsel initially 
described the beneiiciary's duties as foilnws: 
As Chief Operating Officer, she will bring together the sales staff to work on each 
account; supervise their work in locating and contracting customers and suppliers 
spccially at this time when [the U.S. entity] is t:xpandirig to the East Coast; set standards 
for the work and general guidelines for each assignment which must be followed and 
executed by the sales staff and coordinates tt~cm to assure that each account is properly 
~naintained by servicing them atieq~~ately, and on schedule. She must also coordinate the 
continuous supply of medical rind laboratory supplies, make sure that they are up to date 
and aluiays in st(~;k. She e\l:llu;tkes the performance of the sales staff and can recommend 
hiring and firing of pt:rsonnel. Reing the Chief Operating Officer. she must spend a 
mdority of tter tin-~e coordi~~ating the work of each salcs . . . staff, reviewing the quality 
of their pt.oducts a~id the manncr by which their clients are supplied (i.e., are they oil time 
or up to date) and administering the sales staff and other support personnel. Strong 
managerial skills arc needed for the important coordination and scheduling functions 
performed by the Chief Operating Officer. 
In response to the director's rtqucst for additional cvidcnce. c:ounwl suhmittcd an updated list prcparcd by 
the corporate secretary of the 1J.S. entity. which identified the beneficiary's duties as including: 
1. Prepare and submit a comprehensivt: plan for the operations of the company together with the 
financia! budget for the year. 
2. Review and resonmend necded staffing to effect the plan. 
3. Develop marketing strdtegy and oversee importtexport of medical 6i dental equipment and 
supplies to anld] from [tic I%ili~?piries. 
4. Supervise custo~ner sales, service. aid deliver as well as the prtxurement of invenlory for 
resale. 
5. Train all personnel on customer service and efficient marketing techniques. 
6. Submit personnel job evaluation prior to c~nployee's itnniversary dale. 
7. Supcrvist: stocking of rnerch:ti~dise fix resale and in~plemcnt necessary inventory controls. 
8. Sit in lilt] ri:gular management ~neeitings and at regular and special board meetings. 
9. Establish V~I-itten pi~licq, ;in0 procedures for marketing and procurement. 
10. Visit customers and suppliers to tlevclop ilnd maintain cfficicnt trade relationships. 
I I. Other duties ant1 responsihilitics that may bc assigncd from time to time. 
WAC 03 059 5 1797 
Page 10 
On appeal, co~rnsel for the petitioner provided a step-by-step analysis of the beneficiary's duties by 
examining them within the context of each of the four elemltnts of managerial capacity. In addition. 
counsel alleges that the beneficiary is the "big cheese" and is "the only officer responsible in the day to 
day operations of the corupany and the activity and function of its employees and officers." 
The AAO is not persuaded that the proposcd duties of the beneficiary satisfy the regulatory requirements. 
In addition, \he arpumcnts provided by counsel on appeal arc not convincing. 
There are two probicms with the hencficiary's ,stated dutics. First, the beneficiary's proposed duties 
include rlutrlcrous non-managerial tasks that are esse:ntial to tho daily operations of the business. 
Specifically. the asset-:ion that the he~xiiciary will be visiting custolncrs and suppliers as well as 
supervising the stocki?lg of merchandise suggests that she will be performing rnany undertakings that 
would normall y be delcgatetl to sales representatives or othcr non-managerial personnel. In this case, it is 
clear that the proposed duties include many practical obligations that would normally be delegated by a 
manager or supervisor to a subordinate staff. The actual duties thertjselvcs reveal the true nature of the 
employment. F'cclin Brvs. C'o., Lid. \J. Strvrr, 733 1'. Supp. 1 103, I 108 (E.D.N.Y. 1989), nfd, 905 F.2d 41 
(2d. Cir. 1990).' Secondly, the description of her duties indicates that a significant portion of her time 
would be devoted to the supervision and direction of sales representatives. Although the bcncficiary is 
not required to supervise personnel, if it is claimed that her du~:ies involve supervising employees, the 
petitioner must establish 1.ha.n the suhordinatc ernplayces are supervisory, prolessional. or managerial. See 
(i IOl(a)(44)(A)(ij) of tlre Act. 
In evaluating whether the beneficiary Inanages prof~:ssional eanployzes. the AAO must evaluate whether 
the subordinate positions require a. baccalaureate degree as a minimurn for entry into the field of 
endeavor. Section lOl(a)(3'2) of the Act, 13 U.S.C. $ 1101(a)(32), states that "[tlhe term profession shall 
include but not be limited to architects, engineers, lawyers. physicians, surgeons. atid teachers in 
ekmentary or second:~ry schools, cnllcgcs. acadeinies, or seminaries." The term "profession" 
contemplates'kno~vledge or learning, not [nerdy skill. of an advanced type in a given field gained by ii 
prolonged coijrsc of specialized instructiori and study of at least bacc:lI;~urt.ate level. which is a realistic 
prerequisite to entry into the particula~. field of cmdeinvor. Mrirrcr- c!f'Sc~u. 19 I&N Dec. 817 (Cornin. 
1988); Matter of Ling, 13 I&N I)ec:. 35 {K.C. 1968); Matter ($Shin, I 1 I&N Dcc. 686 (D.D. 1966). 
Though requested bv the director, the petitioner did not providc: the level of education required to perform 
the duties ot. its sales and purchasing repre.serltutivcs. Any firilur~: to suhrnit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.K. # 103.2(b)(14). 
Thus, the petitioner has not established that these elnployees possess or require an advanced degree. such 
that they could be classified as proressionals. Nor has thc petitioner shown that any of the employees 
supervise s~lbordir~atc staff mcrnbcrs or manage a clearly defined department or function of the petitioner, 
such that they coltld be classified as managers or super\isors. Thns, the petitioner has not shown that the 
beneficiary's subordinate employees are supervisory. profcl:;sic.~nal. or ~n;lnagerial, as required by section 
IOl(a1(44)(A)(ii) of the Act 
WAC 03 059 5 1797 
Page 11 
Counsel further allcges for the first time on appeal that the beneficiary is acting in the capacity of a 
"function manager." The term "function manager" applies generally when a beneficiary does not 
supervise or control the work of a subordinate staff but instead is prinrarily rcsporlsiblc for managing an 
"essential function" within the organization. SLJP section IOl(a)(4il)(A)(ii) of the Act, 8 U.S.C. 
9 I lOl(a)(44)(A)(ii). If a petitioner claims that the beneficiary is rnanaging  an essential function, the 
petitioner must identify the function with specificity, articulate the essential nature of the function. and 
establish the proportion of the beneficiary's daily duties attrihuted to nirtnaging the essential function. In 
addition, thc pctitioncr must provide a cornprehcnsivc and dctailcd description of the bcncficiary's daily 
duties demonstrating that the beneficiary manages the function rather than performs the dutics relating to 
the function. An ernployee who primarily performs the tasks necess:lry to produce a producl or to provide 
services is not considered to he cmployetl in a managerial or execulive capacity. Mcittcr r,S Cltiirch 
Scierttology Internnt~ottnl, 19 J.&W Dec. 593, 604 (Comln. 1988). 
Whether the beneficiary is ;tn "activity" or "function" manager turns in part on whether the petitioner has 
sustained its burden of proving that her duties are "primarily" managerial. 1-lere. the petitioner rails to 
document what proportion of the beneficiary's duties would be managerial functions and what proportion 
would be non-managerial. The petitioner lists sonle of the benrficiaty's dulies as managerial, but it fails 
to quantify the time the hcneficiary spends on thcm. This failurc of dcxurncntation is imponant because 
several of the kneficiary's daily tasks, such ;is "visiting custolners, and supervising the stocking of 
merchandise" do not fall directly under traditional managerial duties as defined in the statute. In this 
matter. the petitioner has nor providcd cvidcnce that the beneficiary manages an essential function. 
Therefore, the APLO cannot detcrminc whether the beneficiary is primarily performing the duties of a 
function manager. Src IKh,9 US, it~. v. C1.S. Dcpt. c?fJ~isticr,, 48 I:. Supp. 2d 22, 24 (D.D.C. 1999). 
Finally, counsel allcges that the beneficiary is the cle ,fi~crfo hcad of the I.I.S. entity and that the Vice 
President for operations iinswcrs to her. 'The organizational chart provided. however, indicates that this is 
not accurate. It is incumbent upon the peritioner to resolve any inconsistencies in the record by 
independent objective t:vidence. Any attempt to explain or reci>ncile such inconsistencies will not suffice 
unless the petitioner submits competent objcctivc cvidcnce pointing to where the truth lies. Multer of Ho. 
19 I&N Dec. 582,5"11-92 (UIA 1988). 
On review, the record as presently coristituted is not persuasive in de~nor~strating that the beneficiary will 
be employed in a prirnurily managerial or cuecutive ci~pacity. For this reason. the petition may not he 
approved. 
Beyond the decision of the director. the rccord corltains insufficient cvidcnce to establish that the overseas 
company employed the beneficiary in :I primarily managerial or cxecutivr capacity. Although counsel 
and the petitioner refer to the heneficia.ry's overseas position as "Marketing and l'rocuremcnt Manager," 
the description of clutit:~ provided iistcti numerous non-qu;~li.fving duties. such as contracting local and 
foreign custo~ners and dcveiopirlg and prornotircg the company relationship with the customers and 
suppliers. Such duties suggest that the beneficiary piaycd an activc role in generating the services of the 
/foreign entity. An exnployee who primarily performs the t;lsks necessary to produce a product or to 
provide services is not consitlcred to be cmploycd is1 a managerial or executive capacity. Molter of 
, WAC 03 059 5 1797 
Page 12 
Ch~rrch Screutoln,gv Inler.lttrtinn~~1, 19 IBN 12cc. 593. 604 (Cvmm. 1988). The actual duties themselves 
reveal the true nalurc of the ernployrnent. Frclin Bms. Co.. f,td. ti. SNIYI, 724 F. Supp 1103, 1108 
(E.D.N.Y. 1989), c!ff'tl. 905 F.2d 31 (2d Cir. 1990). Bdsed on the evidence submitted, it does not appear 
that the beneficiary has Rcen acting it1 a primiinly managerial or executive capacity while abroad. For this 
additional reason. the petition nlay not be approved. 
An application or petition that fails to con~ply with the technical requirements of the law may be denied 
by the AAO even if the, Ser-.,licc Center does nut identify all of the grounds for denial in the initial 
decision. Scje ,!;per~ccr Et~tc~ryrisc~s. I~K.. v, U~ziterl Stutes. 220 1:. Supp. 2d 1025. 1043 (E.D. Cal. 2001). 
czfSd. 345 F.3d (183 (9lb Cir. 2003); s~e criso Dor r:. INS. 891 F.2d 007. ](lo2 n. 9 (2d Cir. I989Nnoting 
that the AAO revicws appeals on a ti? novo basis). 
In visa petition proceedings. the burder! of proving eiigibility for the benefit sought remains entircly with 
the petitioner. Section 201 of the Act. 8 I.J.S.C. $ 1301. Here, that bt~rcien has not bccn met. 
Accordingly, the director's deckion will he ;iffirmed and the petition will be dcnicd. 
0RI)ER: The appeal is tfisrnisscd.