dismissed L-1A Case: Metal Alloy Manufacturing

7. 
r identifying data deleted to 
prevent clz~~., iflwemnted 
invasion 01 personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: WAC 09 059 51481 Office: CALIFORNIA SERVICE CENTER Date: MAR 0 4 2010 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (a)(l5)(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office u- - 
WAC 09 059 51481 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition and 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-IA nonimmigrant 
intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 101 (a)(15)(L). The petitioner, a Delaware corporation with a subsidiary in the Republic of Korea, 
is engaged in the development and manufacture of metal alloys. The petitioner seeks to employ the 
beneficiary in the position of finance manager for a period of three years. 
The director denied the petition on two separate grounds, concluding that the petitioner had failed to establish: 
(1) that the beneficiary has been employed by the petitioner's foreign subsidiary in a primarily managerial or 
executive capacity, and (2) that the beneficiary would 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 beneficiary 
has been and will be managing an essential component for the petitioner's international organization and 
managing professional employees. Counsel asserts that the director failed to consider the current and 
proposed responsibilities in light of the totality of the circumstances and the reasonable needs of the company. 
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)(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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC09059 51481 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
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 addressed by the director is whether the petitioner has been employed by the petitioner's 
Korean subsidiary in a primarily managerial capacity. The petitioner does not claim that the beneficiary has 
been employed in an executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 4 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 Form 1-129, Petition for a Nonimmigrant Worker, on December 29,2008. In a letter dated 
December 24,2008, the petitioner described the beneficiary's employment with its Korean subsidiary as follows: 
[The beneficiary's] most recent foreign position with [the foreign entity] is Financial Controller, 
where he has provided financial accounting, cost accounting and controlling, tax accounting, as 
well as cash management. 
As for the financial accounting, [the beneficiary] supervised daily accounting transactions of the 
corporate subsidiary, while reporting its financial status to the corporate Chief Financial Officer 
in the United States. Furthermore, he assisted with quarterly review and annual audit of the 
corporation's financial statements. 
WAC 09 059 5 148 1 
Page 4 
In the area of cost accounting and controlling, [the beneficiary] engaged in cost planning and 
budgeting for the corporation while creating and developing costing packages to be reported to 
CFO. He also conducted manufacturing performance analysis to maximize efficiency and 
reported its status to the corporate executive. 
In addition to above duties, [the beneficiary] also performed corporate and VAT (Value Added 
Tax) accounting as well as monitoring and reporting corporate cash flow. 
The petitioner submitted an organizational chart for the foreign entity, but the chart did not identify the 
beneficiary, his position, or a financial department. 
The director issued a request for additional evidence (RFE) on January 7, 2009, instructing the petitioner to 
submit additional evidence to establish that the beneficiary has been performing the duties of a manager or 
executive with the foreign entity. Specifically, the director requested that the petitioner submit: (1) a more 
detailed description of the beneficiary's duties, indicating exactly who the beneficiary supervises and their job 
titles and position descriptions; (2) the percentage of time the beneficiary spends performing the listed duties; and 
(3) a detailed organizational chart for the foreign entity which clearly depicts the foreign entity's staffing levels, 
the beneficiary's position, and all employees under his supervision. 
In response to the director's request, the petitioner submitted the following description of the beneficiary's duties: 
1. Financial Accounting 
a. Supervision of daily accounting transactions 
b. Organize and prepare monthly, quarterly, and yearly end closing statements 
c. Make up consolidation financial statement between Korea and China 
d. Assist with quarterly review and annual audits of Company's financial statements 
e. Analyze financial information to produce forecasts of business, industry, and 
economic conditions for use in making investment decisions 
f. Perform year end KGAAP audit 
g. Report financial status of the subsidiary to the corporate headquarter in the United 
States 
2. Cost Accounting and Controlling 
a. Assemble manufacturing performance analysis 
b. Create costing package and report directly to Chief Financial Officer 
c. Prepare cost management report for the corporate executives (CEO, CFO, COO, 
and CMO) 
d. Formulate manufacturing performance analysis 
e. SAP control 
3. Tax Accounting 
a. Corporate income tax filing 
b. Value Added Tax filing 
WAC 09 059 51481 
Page 5 
4. Cash Management 
a. Prepare and report cash forecast 
b. Prepare and report working capital 
The petitioner also submitted a revised organizational chart for the foreign entity which includes a finance 
department notated as "inactive." The department employees include the beneficiary as controller and three 
"staff." The petitioner stated that this staff includes an employee who is responsible for general ledger account 
maintenance, month-end closing, assisting with monthly financial statement preparation, and audit document 
requests. The other two employees are responsible for accounts payable and receivable processing, cash posting 
and reporting, payroll processing and human resources documentation. Finally, the petitioner indicated that one 
finance department employee has a four-year college degree, while the other employees have two-year degrees. 
The director denied the petition on January 23, 2009, concluding that the petitioner failed to establish that the 
beneficiary was employed by the foreign entity in a primarily managerial or executive capacity. In denying the 
petition, the director noted that the petitioner's description of the beneficiary's position was insufficient to 
establish that he would be primarily engaged in managerial or executive duties. The director noted that the fact 
that the petitioner claims that the beneficiary manages the finance department does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial capacity. The director also found 
insufficient evidence to establish that the beneficiary has been managing a subordinate staff of professional, 
managerial or supervisory personnel would relieve him from performing the non-managerial functions of the 
finance department. Finally, the director questioned why the finance department was listed as "inactive" on the 
foreign entity's organizational chart. 
On appeal, counsel for the petitioner asserts that the petitioner "has proved by a preponderance of the evidence 
that the beneficiary manages a department or an essential 'component' of the foreign subsidiary" pursuant to 
section 101(a)(44)(A)(i) of the Act. Counsel states that the beneficiary's position of "controller" is equivalent to a 
manager, and that the beneficiary "was given a complete discretion over a three-member finance department 
which was a crucial department of the corporation." Counsel asserts that the finance department was listed on the 
foreign entity's organizational chart as "inactive" because the beneficiary is currently in the United States and "his 
status with the company is 'inactive' for the purposes of organizational chart." Counsel states that another 
employee was trained by the beneficiary and is currently running the finance department. In addition, counsel 
asserts that the beneficiary supervised and controlled professional employees of the finance department who 
reported directly to him. Counsel states that each employee "has distinct functions that play an essential role in the 
finance department," and that "the beneficiary is the only person qualified within the subsidiary to hire, terminate 
or promote employees within the finance department." 
Counsel acknowledges the director's conclusion that the beneficiary "was not functioning at a senior level within 
an organizational hierarchy," and emphasizes that the statutory definition of managerial capacity does not 
specifically require the beneficiary to do so. Rather, counsel states that the beneficiary "has demonstrated by 
preponderance of evidence that it [sic] had authority to hire and fire or recommend those employees under his 
supervision," pursuant to section 101(a)(44)(A)(iii) of the Act. Further, counsel states that the foreign entity's 
organizational chart "clearly positions the beneficiary horizontally equal to other senior level employees within 
the organization." Finally, counsel asserts that the beneficiary satisfies the provision at section 101(a)(44)(A)(iv) 
WAC 09 059 51481 
Page 6 
of the Act because he exercised discretion over the day-to-day operations of the foreign entity's finance 
department. 
Upon review, and for the reasons discussed herein, the AAO concurs with the director's determination. The 
petitioner has not established that the beneficiary has been employed by the foreign entity in a primarily 
managerial capacity. As noted above, the petitioner does not claim that the beneficiary will be employed in an 
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. In addition, the definitions of executive and managerial 
capacity each 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). 
Here, while the petitioner indicates that the beneficiary manages the foreign entity's finance department, the 
petitioner has also indicated that the beneficiary was hired by the foreign entity "to perform financial 
accounting and budgeting." A review of the position descriptions submitted suggests that the beneficiary's 
duties are primarily associated with accounting and financial analysis functions and that he does not primarily 
engage in managing a department of the company. For example, the petitioner categorizes the beneficiary's 
duties as "financial accounting," "cost accounting," "tax accounting," and "cash management." The 
beneficiary is personally responsible for organizing and preparing monthly, quarterly and annual statements, 
formulating manufacturing performance analysis, SAP control, corporate and value added tax filing, 
preparing cash forecasts, analyzing financial information to produce forecasts, and assisting with review and 
audit of financial statements. While these may be complex tasks requiring an experienced financial or 
accounting professional, the petitioner has not explained how directly performing the foreign entity's 
accounting functions elevates the beneficiary's position to a managerial position. Furthermore, the duties do 
not appear to be those of a department or component manager. 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'l., 19 I&N Dec. 593, 604 (Comm. 1988). The only duty listed which even suggests that the beneficiary 
has a supervisory or managerial level of authority is the petitioner's statement that he is responsible for 
"supervision of daily accounting transactions." There is no mention as to how the beneficiary carries out this 
task, who he supervises, or how this one supervisory responsibility is equivalent to managing a component of 
the company. 
Furthermore, although specifically requested by the director, the petitioner's description of the beneficiary's 
job duties does not establish what proportion of the beneficiary's duties is managerial in nature, and what 
proportion is actually non-managerial. See Republic ofTranskei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
WAC 09 059 5 148 1 
Page 7 
The director explicitly requested that the petitioner identify the beneficiary's specific duties and the 
percentage of time the beneficiary spends on each duty. The petitioner's response, as discussed above, 
indicated that the beneficiary performs mainly accounting functions as well as "supervision of daily 
accounting transactions," and failed to include the requested breakdown explaining how his time is allocated. 
Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. tj 103.2(b)(14). While performing non-qualifying duties will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner 
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive 
duties. Section 10 1 (a)(44) of the Act. 
In response to the request for evidence, the petitioner also stated for the first time that the beneficiary 
supervises a subordinate staff of three professional employees, and has the authority to hire and fire 
department employees. The statutory definition of "managerial capacity" allows for both "personnel 
managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. tj 
1101(a)(44)(A)(i) and (ii). Personnel managers are required to primarily supervise and control the work of 
other supervisory, professional, or managerial employees. Contrary to the common understanding of the 
word "manager," the statute plainly states that 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)(A)(iv) of the Act; 8 C.F.R. § 214.2(1)(1)(ii)(B)(2). If a beneficiary 
directly supervises other employees, the beneficiary must also have the authority to hire and fire those 
employees, or recommend those actions, and take other personnel actions. 8 C.F.R. 5 214.2(1)(1)(ii)(B)(3). 
As discussed above, the job descriptions provided by the petitioner do not clearly indicate that the beneficiary 
is responsible for any personnel supervision or management functions, and the petitioner did not claim at the 
time of filing that the beneficiary has been or would be supervising other employees. Therefore, the 
discussion of the beneficiary's actual duties is at odds with the petitioner's claim that the beneficiary manages 
the finance department and all the department's employees. The actual duties themselves reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afyd, 905 F.2d 
41 (2d. Cir. 1990). 
While the AAO does not doubt that the foreign entity employs other workers in its finance and accounting 
department, the evidence submitted does not clearly corroborate the petitioner's claims that the beneficiary 
supervises and controls these workers, that the workers are professionals, or that the beneficiary has the 
authority to hire and fire employees. An employee will not be considered to be a supervisor simply because of 
a job title, because he or she is arbitrarily placed on an organizational chart in a position superior to another 
employee, or even because he or she supervises daily work activities and assignments. Rather, the employee 
must be shown to possess some significant degree of control or authority over the employment of 
subordinates. See generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 
2003) (Cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at * 16 (E.D. Tex. Jan. 11,2007)). 
Furthermore, even if the petitioner did demonstrate that the beneficiary supervises subordinates and has the 
authority to hire and fire employees or make other personnel decisions, the petitioner has not established that 
the three "staff" depicted on the foreign entity's organizational chart are managers, supervisors or 
WAC 09 059 5 1481 
Page 8 
professionals. The petitioner has not provided job titles for the claimed employees and has provided very 
little information regarding the nature and extent of their responsibilities. Therefore the petitioner has not 
established that any of the beneficiary's subordinates supervise subordinate staff, or that they are 
professionals, notwithstanding the petitioner's claim that one employee has a four-year college degree.' 
For these reasons, the petitioner has not established that the beneficiary qualifies for the benefit sought as a 
personnel manager. 
On appeal, counsel indicates that the beneficiary has been managing an essential function of the foreign 
entity. 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 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (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 job description that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. 
In this matter, the petitioner has not provided evidence that the beneficiary will manage an essential function. 
The petitioner has not clearly or consistently identified the beneficiary's actual duties or his level of authority, 
much less established that he will perform primarily managerial duties related to the accounting or finance 
function. Counsel stresses on appeal that the job title of "controller" in Korea is equivalent to a "manager" in 
the United States. However, even if the beneficiary is the titular head of the finance department, this alone 
would be insufficient to establish that he is primarily engaged in managing that function. As discussed above, 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1 101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Mattev of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by 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 work of the "staff' claimed to be supervised by the 
beneficiary. 
WAC 09 059 5 148 1 
Page 9 
the majority of the beneficiary's duties, as described by the petitioner at the time of filing, do not fall under the 
definition of managerial or executive capacity and are primarily related to performing accounting, auditing 
and financial analysis, rather than managing the finance function of the company. Based on the limited 
evidence submitted regarding the other department employees, it appears that many of the company's 
accounting functions are performed directly and entirely by the beneficiary and not delegated to any other 
staff. Again, while performing non-qualifying tasks necessary to produce a product or service will not 
automatically disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, 
the petitioner still has the burden of establishing that the beneficiary is "primarily" performing managerial or 
executive duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" 
manager turns in part on whether the petitioner has sustained its burden of proving that his duties are 
"primarily" managerial. Here, the petitioner has not met this burden. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary has been employed 
by the foreign entity in a primarily managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
The second issue addressed by the director is whether the beneficiary will be employed by the U.S. entity in a 
primarily managerial or executive capacity. 
In its letter dated December 24, 2008, the petitioner described the beneficiary's proposed U.S. position as 
follows: 
[The beneficiary's] role as Financial Manager of [the petitioner's] corporate headquarters will 
give him responsibility for participation in the development of new strategies and programs to 
improve [the petitioner's] financial condition and thus to contribute to the expansion of [the 
petitioner's] business internationally. [The beneficiary] will work closely with [the 
petitioner's] senior executives in the development and delivery of these programs to the 
Korean subsidiary. 
[The beneficiary] will develop and propose financial models to [the foreign entity's] 
executives and investors to provide a sense of direction and ensure corporate financial 
viability in this time of global economic downturn. Although initial hiring of [the beneficiary] 
by our Korea subsidiary was to perform financial accounting and budgeting, his services in 
the U.S. corporate headquarter is of utmost importance because of the corporation's need to 
attract additional investors to further develop and promote [the petitioner's] technology 
throughout the U.S. and beyond. 
[The beneficiary] will also translate critical Korean financial documents and brief them to 
senior executives and investors at the corporate headquarters. He is best qualified within the 
organization to perform such tasks due to many years of experience in dealing with Korean 
financial documents as well as his familiarity with the corporation, due to his two years of 
experience with [the foreign entity]. The complexity and technicality of these documents 
require someone with exceptional knowledge and expertise. . . . 
WAC 09 059 5 148 1 
Page 10 
The petitioner submitted an organizational chart for the U.S. company which lists a finance department 
comprised of a chief financial officer, who supervises a vice president. The chart only lists managerial staff 
and did not identify any staff members within any of the depicted departments, nor did it identify the 
placement of the beneficiary's proposed position within the organizational hierarchy. 
In the RFE issued on January 7, 2009, the director requested a more detailed description of the beneficiary's 
proposed duties and the percentage of time the beneficiary will spend in each of the listed duties, as well as an 
organizational chart which clearly identifies the beneficiary's proposed position and lists all employees he will 
supervise by name and job title. Finally, the director requested evidence of wages paid to any employees who 
will be working under the beneficiary's supervision in the United States. 
In response to the director's request, the petitioner provided the following description of the beneficiary's 
proposed duties: 
1. Develop and propose financial models to the corporate executives and investors to assist 
in implementation of financial goals feasible for the corporation 
2. Analyze financial information to produce forecasts of business, industry, and economic 
conditions for use in making investment decisions 
3. Communicate daily with managers of the South Korean subsidiary and report its financial 
status to corporate executives in the United States 
4. Supervise preparation of financial information so that outside accountants can complete 
corporate tax returns. 
5. Direct preparation of financial statements, business activity reports, financial position 
forecasts, annual budgets, or reports required by regulatory agencies 
6. Conduct or coordinate audits of company accounts and financial transactions to ensure 
compliance with SEC and South Korean corporate regulations 
7. Monitor financial activities and details such as working capital balances to ensure that 
corporation has sufficient capital to operate when the research & development costs 
exceed the accounts receivables 
8. Translate any Korean financial documents and brief corporate executives of U.S. 
headquarter 
9. Coordinate preparation of consolidation financial statements between Korea and U.S. to 
be briefed to corporate executives 
10. Supervise daily accounting transactions and audit any significant expenditures 
11. Coordinate organization and preparation of monthly, quarterly and yearly end closing 
statements 
12. Direct preparation of cash forecast reports. 
The petitioner submitted a revised organizational chart which depicts the beneficiary's proposed position of 
finance manager, reporting to the vice president of finance. The chart indicates that the beneficiary would 
supervise a senior accountant and an accounting assistant. The petitioner submitted copies of IRS Forms W-2, 
Wage and Tax Statement, for 2008, for these two employees. 
WAC 09 059 5 148 1 
Page 11 
Upon review of this evidence, the director concluded that the petitioner had failed to establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity. The 
director found that the petitioner described the beneficiary's proposed duties in only broad and general terms 
and failed to describe the actual duties to be performed. The director determined that the beneficiary would be 
acting at most as a first-line supervisor. 
On appeal, counsel asserts that the beneficiary's role in the United States will be similar to the position he 
occupied abroad, except that he will have "wider discretion over the corporate financial decisions and will 
have opportunity to have a direct input in annual budgeting," as he will be able to attend daily executive 
meetings. Counsel asserts that the beneficiary will supervise two U.S. employees, and also continue to 
supervise the foreign entity's finance department and its employees. Counsel further states that the beneficiary 
will exercise discretion to hire and fire employees and recommend personnel actions for both departments. 
Counsel states that the beneficiary will primarily "participate in the development of new strategies and 
programs to improve U.S. company's financial condition" by working closely with senior executives "in 
development and delivery of these programs to the Korean subsidiary." Counsel concludes by stating that "the 
primary objective of accounting employees within the finance department is to assist the beneficiary so that 
he can prepare such reports in a timely manner in furtherance of the corporation's success." 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary 
will be employed in the United States in a primarily managerial 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. $ 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. In addition, the definitions of executive and managerial 
capacity each 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). 
While the petitioner indicates that the beneficiary's proposed role will entail wider discretion over corporate 
financial decisions, and the position appears to be a promotion over his previous role with the foreign entity, 
the petitioner's description of the beneficiary's duties is vague, lacks the detail requested by the director, and 
appears to include both qualifying and non-qualifying duties associated with the company's finance and 
accounting function. The petitioner indicates that the beneficiary will "coordinate," "supervise" or "direct" 
preparation of consolidated financial statements, cash forecast reports, periodic financial statements, daily 
accounting transactions, business reports, forecasts and budgets, and "preparation of financial information," 
but the record does not clearly indicate the specific tasks he will perform in relation to these responsibilities, 
or to what extent the preparation of such financial documents is actually delegated to a subordinate staff or 
outside contractors. 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 
WAC 09 059 5 148 1 
Page 12 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 
41 (2d. Cir. 1990). 
Furthermore, tasks such as monitoring financial activities, translating Korean financial documents, analyzing 
financial information to produce forecasts, and developing financial models, without additional explanation, 
have not been shown to be managerial in nature. Again, whether the beneficiary is a managerial or executive 
employee turns on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document 
what proportion of the beneficiary's duties would be managerial functions and what proportion would be non- 
managerial. The petitioner lists the beneficiary's duties as including both managerial and operational tasks, 
but fails to quantifL the time the beneficiary spends on them, despite the director's specific request for a 
breakdown indicating the percentage of time the beneficiary would spend on specific 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. fj 103.2(b)(14). This failure of documentation is important because several of the beneficiary's daily 
tasks, as noted above, do not fall directly under traditional managerial duties as defined in the statute. For this 
reason, the AAO cannot determine whether the beneficiary will be primarily performing the duties of a 
manager. See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
As with the beneficiary's overseas position, the petitioner indicates that the beneficiary will supervise a 
subordinate staff (comprised of an senior accountant and accounting assistant), and now states for the first 
time on appeal that the beneficiary will also oversee the foreign entity's accounting department, as well as 
have the authority to hire and fire finance department employees for both the U.S. and foreign entities. As 
with the beneficiary's foreign position, the beneficiary's U.S. position description does not include any of 
these claimed supervisory duties, and there was nothing in the initial filing to suggest that the beneficiary's 
role would be that of a department manager with supervisory responsibilities. 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). A petitioner 
may not make material changes to a petition in an effort to make a deficient petition conform to USCIS 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Furthermore, while the petitioner has provided evidence of wages paid to the two employees who are claimed 
to work under the beneficiary's supervision, the petitioner has not provided any description of their job duties 
and it cannot be determined that the proposed subordinate employees are managers, supervisors or 
professionals. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998). As 
discussed above, personnel managers are required to primarily supervise and control the work of other 
supervisory, professional, or managerial employees. Contrary to the common understanding of the word 
"manager," the statute plainly states that 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 10l(a)(44)(A)(iv) of the Act; 8 C.F.R. 2 14.2(1)(1)(ii)(B)(2). If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. fj 214,2(1)(1)(ii)(B)(3). Here, due to the 
WAC 09 059 5 148 1 
Page 13 
lack of evidence and the petitioner's failure to mention any supervisory responsibilities among the 
beneficiary's proposed job duties, the petitioner has not met these criteria. 
Finally, the petitioner has not established that the beneficiary will manage an essential function of the 
petitioning company. Absent additional evidence regarding the duties performed by the beneficiary, the two 
other accounting department employees, and any contracted accountants, the AAO cannot determine to what 
extent the beneficiary would be relieved from performing the non-managerial functions of the petitioner's 
financial department. Again, while performing non-qualifying tasks necessary to produce a product or service 
will not automatically disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's 
duties, the petitioner still has the burden of establishing that the beneficiary is "primarily" performing 
managerial or executive duties. Section 101(a)(44) of the Act. Whether the beneficiary is an "activity" or 
"function" manager turns in part on whether the petitioner has sustained its burden of proving that his duties 
are "primarily" managerial. Here, the petitioner has not met this burden. In addition, the petitioner has not 
established that the beneficiary functions at a senior level within the organizational hierarchy or with respect 
to the function he is claimed to manage. According to the petitioner's organizational chart, the beneficiary 
will report to the vice president of finance, who in turn reports to the chief financial officer. With this 
structure, it is not clear that the beneficiary would be considered a senior employee within the function or to 
what extent he would be authorized to exercise discretion over the day-to-day operation of the department. 
Overall, the evidence of record is insufficient to establish that the beneficiary would be employed in the 
United States in a primarily managerial or executive capacity. For this additional reason, the petition cannot 
be approved. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. tj 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.