dismissed L-1A Case: Oil And Gas

U.S. Citizenship 
and Immigration 
Services 
MATTER OF KRS-, LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 28, 2017 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a supplier of equipment and materials for the oil and gas industry, seeks to extend the 
Beneficiary's temporary employment as its company controller under the L-1A nonimmigrant 
classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 
10l(a)(l5)(L), 8 U.S.C. § 110l(a)(15)(L). The L-lA classification allows a corporation or other legal 
entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States 
to work temporarily in a managerial or executive capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
evidence of record did not establish that the Beneficiary would be employed in a managerial or 
executive capacity under the extended petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that Director erred in finding that the. Petitioner did not submit sufficient evidence of the 
scope of its operations in support of its claim that the Beneficiary would be employed in an 
executive capacity. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for 1, continuous year within 3 years preceding the Beneficiary's application for admission 
into the United States. Section 101 (a)(l5)(L) of the Act. 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. ld. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of KRS-. LLC 
(i) Evidence that the petitioner and the organization which employed or will 
employ the· alien are qualifying organizations as defined in paragraph 
(1)(1)(ii)(G) ofthis section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the United States; however, the work in the United 
States need not be the same work which the alien performed abroad. 
The regulation at 8 C.F .R. § 214.2(1)( 14 )(ii) also provides that a visa petition, which involved the 
opening of a new office, may be extended by filing a new Form I-129, accompanied by the 
following: 
(A) Evidence that the United States and foreign entitles are still qualifying 
organizations as defined in paragraph (1)(1 )(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (1)( 1 )(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) Evidence ofthe financial status of the United States operation. 
II. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not esta,blish that the 
Beneficiary will be employed in a managerial or executive capacity under the extended petition. 
2 
Matter of KRS-, LLC 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
. managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. 
Further, "[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." I d. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 110l(a)(44)(B), defines the term "executive capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See sect,ion 1 01 (a)( 44 )(C) of the Act. 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we agree with the Director's determination. 
3 
(b)(6)
Matter of KRS-, LLC 
A. Duties 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). 
In a letter in support of the petition, the Petitioner, a material and equipment supplier for the oil and 
gas industry with five claimed employees, described the Beneficiary's position of company 
controller as "a high level executive position responsible for managing the financial and accounting 
activities of our company with a focus on the oil and gas industry, and further developing the 
business activities of our office in Texas." The Petitioner provided a list of approximately 
30 duties and later, in response to a request for evidence, resubmitted the same list of duties, 
indicating that the Beneficiary would spend bet\veen 2 and 4 percent of his time on each of the listed 
tasks. It further stated that the Beneficiary "will be responsible for the essential function of directing 
and managing the financial and accounting activities of our U.S. Corporation." 
While the position description was lengthy, the individual listed job duties were repetitive and 
general in nature and did not clearly illustrate the Beneficiary's claimed role as controller for an 
international group of companies. The job description conveyed the Beneficiary's authority over the 
Petitioner's financial matters, noting that he will "direct, control and oversee activities in the 
accounting, financial and taxation areas," maintain a system of accounting policies and procedures, 
"oversee the operations of the accounting department, including the design of accounting systems," 
oversee compliance with government reporting requirements, direct the preparation of financial 
statements, "ensure the issuance of complete financial statements," and "maintain a system of 
controls over accounting transactions," amongst other duties. 
The definitions of executive and managerial capacity have two parts. First, the Petitioner must show 
that the Beneficiary will perform certain high-level responsibilities. Champion World. Inc. v. INS, 
940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See. e.g, Family Inc. v. 
USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, Inc. v. INS, 940 F.2d 1533. Here, 
while the evidence showed the Beneficiary would be its senior employee with respect to financial 
activities, the breakdown of the Beneficiary's duties was disjointed and did not present a clear 
picture of what he primarily does on a day-to-day basis or to what extent he is relieved from 
performing non-qualifying duties associated with the company's or group of companies' financial, 
payroll, accounting and taxation matters. 
B. Staffing 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
4 
(b)(6)
Matter of KRS-, LLC 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
In denying the petition, the Director did not specifically address the Beneficiary's stated job duties, 
but rather determined that the stated duties were "not consistent with the current scope and 
development of your company in the United States." The Director acknowledged the Petitioner's 
assertion that the Beneficiary's role as company controller would require him to direct and manage 
finance and accounting functions for a group of companies in the United States as well as continued 
oversight of its Venezuelan affiliate's finance and administration department and its three 
employees. However, the Director found inconsistencies in the record and insufficient evidence 
overall to support the interrelated nature of the companies' operations. 
On appeal, the Petitioner emphasizes that it provided organizational charts and evidence of 
ownership for the group companies sufticient to show the overall scope of operations, the 
relationship between the companies in the United States and Venezuela, and "the Beneficiary's role 
as a Controller for the entire organization as a whole." 
The record contains several charts intended to show the structure of the which 
depict several Venezuelan and U.S. companies, including the Beneficiary's former employer, 
The charts listed a total of five U.S. companies, including four 
"procurement" companies: the Petitioner, and 
and one "real estate" company, The Petitioner provided 
addresses and a map showing that the companies are located adjacent to one another in 
Texas, but later provided evidence that was dissolved subsequent to the filing 
of the petition. 
The Petitioner submitted a copy of its organizational chart which showed as Director of 
operations, supervising the Beneficiary, a supply chain manager and a vacant 
commercial and sales manager position. The chart depicted a finance administrator a 
vacant tax coordinator position, and an administrative assistant subordinate to the 
Beneficiary. Under the supply chain manager, the chart shows four vacant procurement positions, 
an inventory and logistic coordinator, and a warehouse assistant. Finally, the chart shows a vacant 
bid process position under the commercial and sales manager position. 
The Petitioner also provided organizational charts for ' and 
Both charts list and - accounting coordinator, as the Beneficiary's 
subordinates, with a note that the Beneficiary, and are "assigned from" the 
petitioning company to provide services for these entities. The chart lists a total of seven 
individuals reporting to while the commercial and sales department is unstaffed on all 
three company charts. 
The supporting evidence confirmed that and work for the Petitioner (along with 
the Beneficiary and while is an employee of The 
5 
(b)(6)
Matter of KRS-, LLC 
Petitioner provided identical position descriptions for and stating that both 
employees are responsible for employee payroll, accounts payable, accounts receivable, and 
assisting the Beneficiary with the following duties: 
• Prepares special reports by collecting, analyzing and summarizing information 
and trends. 
• Complies with federal, state, and local legal requirements by studying existing 
and new legislation; anticipating future legislation; enforcing adherence to 
requirements; filing financial reports; advising management on needed actions. 
• Ensures operation of equipment . by establishing preventative maintenance 
requirements and service contracts; maintmmng equipment inventories; 
evaluating new equipment and techniques. 
• Protects operations by keeping financial information and plans confidential. 
The Petitioner stated that both of these positions require a bachelor's degree "or equivalent" with 2 
years of bookkeeping experience. The Petitioner also submitted a job description for the 
administrative assistant, indicating that she manages her supervisor's calendar, screens incoming 
calls and correspondence, acts as custodian of corporate documents and records, directs preparation 
and filing of corporate legal documents, composes and prepares correspondence and reports, creates 
and maintains database and spreadsheet files, and arranges travel plans and itineraries. 
In addition, the Petitioner provided a chart for its Venezuelan affiliate, 
which depicted the Beneficiary as controller supervising a systems and telecommunications 
employee, a finance and administration manager, and an accounting management employee. The 
Petitioner also submitted detailed position information for these claimed foreign subordinates. 
However, according to the information provided, none of these positions report to the Beneficiary's 
controller position; rather, the submitted information indicated that an administration manager 
supervises the systems and telecommunications coordinator, while the finance and administration 
manager and accounting manager both report to the foreign entity's finance director. 
The Director later issued a request for evidence (RFE). The Director advised the Petitioner that the 
initial evidence did not demonstrate how its current scope and structure could support an L-1 A 
employee who performs primarily managerial or executive duties. The Director noted that some of 
the documentation submitted suggested that the Beneficiary would be acting on behalf of a group of 
companies, but noted that the evidence did not substantiate or corroborate these claims with 
documentary evidence. As such, the Director advised that the Beneficiary's role within the larger 
group of companies had not been established. 
In a letter submitted in response to the RFE, the Petitioner stated that the Beneficiary "directs the 
financial and accounting activities of our company and its affiliates" and "oversees a team of six (6) 
professional accounting and systems and telecommunications personnel" located in Texas and 
Venezuela. The Petitioner provided a revised U.S. organizational chart which includes the 
Petitioner's company name along with and The chart shows 
6 
(b)(6)
MC:Jtter of KRS-, LLC 
the Beneficiary supervising 
identified Venezuelan employees. 
and as well as the three previously-
The Petitioner re-submitted the same position description for but changed his job title to 
"Finance Administrator/Coordinator - Accounts Payable." The Petitioner revised job 
title to "accounting coordinator" and submitted a completely revised position description for him, 
and at the same time submitted copies of quarterly tax filings for both the Petitioner and 
which signed in his capacity as "HR Supervisor. " Finally, the Petitioner changed 
title to "Administrative Assistant - Accounts Receivable" and added one duty ("assists 
with accounts receivables items") to her previous job description. 
The Petitioner also submitted revised position information for the foreign employees. Specifically, it 
revised the title of the supervisor for each of these positions. The new descriptions indicate that the 
finance and administratiop manager and accounting manager are supervised by the "controller & 
financial director," while the systems and telecommunications coordinator is supervised solely by 
the controller. ' 
The Petitioner provided certificates of formation for and 
in support of its claim that these entities are the Petitioner's affiliates. It provided 
its unaudited financial statement for the year ended December 31, 2015, showing $7.79 million in 
net sales and net income of $52,332. The Petitioner also submitted audited financial statements for 
2012 and 2013 for 
Upon review of all of the submitted evidence, we agree with the Director's finding that the totality of 
the evidence submitted is insufficient to support the Petitioner's claims that the Beneficiary performs 
primarily managerial or executive, duties associated with the group's financial activities in 
the United States and abroad. · 
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. 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." 1 · Section 101 (a)( 44 )(A)(iv) of the Act. 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. § 214.2(l)(l)(ii)(B)(3). 
1 In evaluating whether a beneficiary manages professional employees, we must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. C). 8 C.F.R. § 204.5(k)(2) 
(defining "profession " to mean "any occupation for which a 
U.S. baccalaureate degree or its foreign equivalent is the 
minimum requirement for entry into the occupation") . Section I 0 I (a)(32) of the Act, states that "[t]he term profession 
shall include but not be limited to architects, engineers , lawyers , physicians , surgeons , and teachers in elementary or 
secondary schools , colleges , academies, or seminaries ." 
(b)(6)
Matter of KRS- , LLC 
Here, the Petitioner has stated that the Beneficiary supervises six professionals, including two 
employees of the petitioning company, one employee who works for its U.S. affiliate, and three 
employees who work for its Venezuelan affiliate. With respect to the U.S. employees, while the 
Petitioner indicated that two of the three positions require a bachelor's degree or its equivalent , it 
later stated that only one of the employees , the finance administrator actually obtained at least a 
bachelor's degree. Moreover, the duties attributed to this position , including preparing payroll and 
handling accounts payable and receivable, did not clearly require completion of a bachelor's degree. 
The Petitioner provided two completely different position descriptions for position of 
accounting coordinator without providing an explanation and also submitted evidence indicating that 
he is acting as an "HR Supervisor." The Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). Overall, the evidence did not establish that the Beneficiary is primarily 
supervising professional positions or that his subordinates are managers or supervisors, as none of 
them have any stated supervisory duties. 
With respect to the Beneficiary ' s claimed supervision of the three foreign staff, we note that the 
initially submitted position descriptions for those employees stated that the employees report to 
either the foreign entity' s administration manager or its finance director, rather than to the 
Beneficiary. While the Petitioner later revised this information to indicate that these employee s 
report to the Beneficiary, the Petitioner did not provide an explanation for this material change. A 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. A1atter oflzummi , 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). 
Moreover, there is nothing in the position descriptions for the foreign employees suggesting that 
they are involved in the day-to-day financial and administration duties of the petitioning company , 
nor is there indication in the breakdown of the Beneficiar y' s job duties suggesting that he oversees 
the Venezuelan staff in carrying out his duties for the Petitioner. Therefore, we find insufficient 
evidence to establish that the Beneficiary directly supervises 
the foreign staff. 
The Petitioner has not established, in the alternative, that the Beneficiary will be employed primarily 
as 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 primarily responsible for 
managing an "essential function" within the organization. See section 101 (a)( 44 )(A)(ii) of the Act. 
The term "essential function " is not defined by statute or regulation. If a petitioner claims that a 
beneficiary will manage an essential function , a petitioner must clearly describe the duties to be 
performed in managing the essential function, i.e., identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of a beneficiary's daily duties 
dedicated to managing the essential function. See 8 C.P.R. § 214.2(1)(3)(ii). In addition , a 
petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will 
manage the function rather than perform the duties related to the function . 
While a function manager is not required to directly supervise subordinate staff, the Petitioner claims 
that the Beneficiary supervises six staff located in the U.S. and abroad, and that these individuals 
perform non-qualifying duties associated with 
accounting, taxation , and payroll, leaving the 
8 
(b)(6)
Matter of KRS-. LLC 
Beneficiary free to primarily manage these essential function for the group of companies. However , 
we note that the Petitioner initially described the function in narrower terms, as it stated at the time 
of filing that the Beneficiary "will be responsible for the essential function of directing and 
managing the financial and accounting activities of our US Corporation ." The record does not 
establish how the three U.S.-based employees would relieve the Beneficiary from performing the 
non-qualifying quties associated with this function as the Petitioner initially indicated that two of the 
Beneficiary's subordinates . perform identical,_ and limited duties, associated with payroll and 
accounts payable and receivable, while the other employee performs mostly administrative tasks. 
The Petitioner has submitted three job titles and two very different position descriptions for 
and we are not in a position to determine what his role is. 
Further, as discussed , the record contains inconsistent infonnation ' regarding the Beneficiary's 
oversight of the Venezuela-based finance and administration team and does not support a claim that 
the foreign staff will support the Beneficiary in carrying out his duties for the Petitioner or its U.S. 
affiliates. We acknowledge that the Petitioner cites to Malter of Z-A- Inc., (Adopted Decision 2016-
02) (AAO Apr. 14, 2016) in support of its claim that USCJS must consider evidence of a 
Beneficiary's role within the wider qualifying organization, and consider the reasonable needs of the 
organization as a whole, including any related entities within the qualifying organization. However, 
we agree with the Director's finding that the evidence here does not establish that the foreign entity's 
finance and administration employees relieve the Beneficiary from performing non-qualifying duties 
associated with the activities he is claimed to manage in the United States, or that the financial 
operations of the Petitioner and its Venezuelan affiliate are intertwined and under the Benefic]ary's 
authority. As noted, the initial evidence showed that the Beneficiary's claimed foreign subordinates 
report to an administration manager and to a finance director, not to the Beneficiary. 
Based on these deficiencies, we cannot determine that the Beneficiary would primarily manage an 
essential function, rather than performing many of the day-to-day operational and administrative 
tasks associated with that function. 
For similar reasons, the Petitioner has not established that the Beneficiary would be employed in an 
executive capacity, The statutory definition of the term "executive capacity" focuses on a person's 
elevated position within a complex organizational hierarchy, including major components or 
functions of the organization, and that person ' s authority to direct the organization. Section 
101(a)(44)(B) of the Act. Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization . Inherent to the definition, 
the organization must have a subordinate level of managerial employees for a beneficiary to direct 
and they must primarily focus on the broad goals and policies of the organization rather than the 
day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as the 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives , 
the board of directors, or stockholders of the organization. " Jd. Here, while the Beneficiary likely 
establishes the goals and policies for the company 's financial department, for the reasons already 
9 
(b)(6)
Matter of KRS-. LLC 
discussed the record does not establish that he will primarily focus on these higher-level activities 
rather than on the day-to-day financial, accounting and administration activities of the company. 
We acknowledge that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa petition for classification as a 
multinational manager or executive. See section l01(a)(44)(C) of the Act, 8 U .S.C. 
§ 1101(a)(44)(C). However, it is appropriate for USCIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as the absence of employees who would 
perform the non-managerial or non-executive operations of the company , or a "shell company " that 
does not conduct business in a regular and continuous manner. See, e.g, Family Inc. v. USCIS, 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The Petitioner is an oil and gas industry material and equipment supplier with four documented 
employees, including a company controller, a finance administrator, an administrative assistant, and 
a supply chain manager, with several vacancies for procurement positions , a commercial and sales 
manager, and a bid process manager. The submitted evidence suggests that the Petitioner's affiliate , 
which appears to be engaged in the same line of business, employs procurement , 
inventory and logistics, and warehouse staff that the Petitioner lacks, the Petitioner has not provided 
supporting evidence showing how or to what extent the companies and their staff work together to 
carry out both companies' operations. While we acknowledge that the Petitioner submitted an 
unaudited financial statement showing that its revenue increased from $223,000 in 2014 to over $7 
million in 2015, it is unclear how the Petitioner achieved those sales with the four employees it has 
on staff, or how work is distributed within the company and between the group companies. 
The Petitioner cites Nat '! Hand Tool Corp. v. Pasquarell , 889 F.2d 1472, n.5 (5th Cir. 1989) and 
Mars Jewelers , Inc. v. INS, 702 F~ Supp. 1570, 1574 (N.D. Ga. 1988) to stand for the proposition 
that the small size of a petitioner will not, by itself, undermine a finding that a beneficiary will act in 
a primarily managerial or executive capacity. First, we note that the Petitioner has not furnished 
evidence to establish that the facts of the instant petition are analogous to those in Nat 'I Hand Tool 
Corp., where the Fifth Circuit Court of Appeals decided in favor of the former Immigration and 
Naturalization Service (INS), or Mars Jewelers , Inc., where the district court found in favor of the 
plaintiff. With respect to Mars Jewelers, we are not bound to follow the published decision of aU .S. 
district court in matters arising within the same .district. Matter of K-S-, 20 I&N Dec. 715 (BIA 
1993). Although the reasoning underlying a district judge ' s decision will be given due consideration 
when it is properly before us, the analysis does not have to be followed as a matter of law. !d. at 
719. 
In both Nat 'l Hand Tool Corp. and Mars Jewelers, Inc., the courts emphasized that the former INS 
.should not place undue emphasis on the size of a petitioner's business operations in its review of a 
foreign national's claimed managerial or executive capacity. We have long interpreted the 
regulations and statute to prohibit discrimination against small or medium-size businesses. 
However , consistent with both the statute and the holding of Nat '! Hand Tool Corp., the Petitioner is 
required to establish that the Beneficiary 's position consists of primaril_y managerial or executive 
10 
Matter of KRS-, LLC 
duties and that it will have sufficient personnel to relieve the Beneficiary from performing 
operational and/or administrative tasks. Like the court in Nat'! Hand Tool Corp., 889 F.2d at 1472, 
n.5., we emphasize that our holding is based on the conclusion that the Petitioner did not submit 
sufficient evidence in support of its claim that the Beneficiary will perform primarily managerial or 
executive duties or document his claimed role within the wider group of companies and does not rest 
on the size of the Petitioner. 
Based on the deficiencies discussed above, the Petitioner has not established that the Beneficiary 
will be employed in a managerial or executive capacity under the extended petition. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reason. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. 
Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of KRS-, LLC, ID# 181149 (AAO Feb. 28, 2017) 
11