dismissed L-1A Case: Promotional Products

U.S. Citizenship 
and Immigration 
Services 
In Re: 08229621 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 19, 2020 
Form I-129, Nonimmigrant Petition for an Intracompany Transferee 
The Petitioner, a promotional product sales business, seeks to temporarily employ the Beneficiary as a 
chief of marketing and sales under the L-1 A nonimmigrant classification for intracompany transferees. 
Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The 
L-1 A 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 of the California Service Center denied the petition on the grounds that the Petitioner did 
not establish that the Beneficiary had been employed abroad in a managerial or executive capacity and 
would be employed in a managerial or executive capacity in the United States within one year of the 
petition's approval to meet the requirements for a new office petition. 
The matter is now before us on appeal. The Petitioner asserts that the evidence of record establishes 
that the Beneficiary has been employed abroad in an executive capacity and will be employed in the 
United States in a managerial or executive capacity within one year of the petition's approval. 
In visa petition proceedings it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act. 8 U.S.C. § 1361. Upon de nova review, we will dismiss the 
appeal because the Petitioner has not established that the Beneficiary will be employed in the United 
States in a managerial or executive capacity within one year of the petition's approval. As this is a 
fundamental element of eligibility and the Petitioner has not satisfied this element, we will reserve the 
remaining issue relating to the Beneficiary's employment abroad. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-IA nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary "in a capacity that is managerial, executive, or involves specialized 
knowledge" for one continuous year within three years preceding the beneficiary's application for 
admission into the United States . Section 101(a)(15)(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 or executive capacity . Id. The petitioner 
must also establish that the beneficiary's prior education, training, and employment qualify him or her 
to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
As defined in section 10l(a)(44)(A) of the Act, the term "managerial capacity" means an assignment 
within an organization in which the employee primarily -
(i) Manages the organization, or a department, subdivision, function, or component of the 
organization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) If another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as promotion 
and leave authorization) or, if no other employee is directly supervised, functions at a 
senior level within the organizational 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. 
As defined in section 10l(a)(44)(B) of the Act, the term "executive capacity" means 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. 
Section 101(a)(44)(C) of the Act farther provides that: 
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] shall 
take into account the reasonable needs of the organization, component, or function in 
light of the overall purpose and stage of development of the organization, component, 
or function. An individual shall not be considered to be acting in a managerial or 
executive capacity ( as previously defined) merely on the basis of the number of 
employees that the individual supervises or has supervised or directs or has directed. 
To be eligible for L-lA nonimmigrant visa classification as a manager or an executive, a petitioner 
must show that the beneficiary will perform the high-level responsibilities set forth in the statutory 
definitions at sections 10l(a)(44)(A)(i)-(iv) and 10l(a)(44)(B)(i)-(iv) of the Act, each of which has 
four parts. If the record does not establish that the offered position meets all four elements of the 
pertinent statutory definition, we cannot conclude that it is a qualifying managerial or executive 
position. If a petitioner establishes that the offered position meets all four elements of the applicable 
statutory definition, it must prove that the beneficiary will be primarily engaged in managerial or 
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executive duties, as opposed to ordinary operational act1v1t1es alongside the petitioner's other 
employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006). In determining whether 
a beneficiary's duties will be primarily managerial or executive, we consider the petitioner's 
description of the job duties, the company's organizational structure, the duties of the beneficiary's 
subordinate employees, the presence of other employees to relieve the beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding the beneficiary's actual duties and role in the business. 
II. ANALYSIS 
The Petitioner, established in I I 2019, is an affiliate of~-------------~ 
D based in I I China. The Petitioner is a supplier of promotional products 
featuring custom imprinted dog leashes, collars, and lanyards, but also including writing instruments, 
tech items, magnets, key tags, and drinkware, which are sourced from its Chinese affiliate and its own 
manufacturing facility iJ I California, and sold to distributors in the United States for sale to 
end users. I I has employed the Beneficiary as its director of marketing and sales in China 
since April 2015, and now wishes to reassign him to its U.S. affiliate to serve as chief of marketing 
and sales. 
A. Employment in the United States 
The Director determined that the record did not establish that the new U.S. office would support a 
primarily managerial or executive position within one year of the petition's approval. On appeal the 
Petitioner asserts that the Director's analysis was faulty, submits some additional documentation, and 
claims that the Beneficiary will be employed in either a managerial or an executive capacity by the 
U.S. entity within one year of the petition's approval. The Petitioner does not clarify whether the 
Beneficiary will be primarily engaged in managerial duties under section 10l(a)(44)(A) of the Act, or 
primarily executive duties under section 101(a)(44)(B) of the Act. The Petitioner must clearly describe 
the duties to be performed by the Beneficiary and indicate whether such duties are either in an 
executive or managerial capacity. The Petitioner must demonstrate that the Beneficiary's 
responsibilities will meet the requirements of one or the other capacity. 
1. New Office Requirements 
As previously indicated, a petitioner seeking to employ a beneficiary as manager or executive of a 
new office must establish that the new office will support such a position within one year of the 
approval of the petition. When a new business is established and commences operations, the 
regulations recognize that a designated manager or executive responsible for setting up operations will 
be engaged in a variety of activities not normally performed by employees at the executive or 
managerial level and that often the foll range of managerial responsibility cannot be performed. In 
order to qualify for L-1 nonimmigrant classification during the first year of operations, the regulations 
require a petitioner to disclose the proposed nature of the business and the size of the U.S. investment, 
and establish that the proposed enterprise will support an executive or managerial position within one 
year of the approval of the petition. See 8 C.F.R. § 214.2(1)(3)(v)(C). This evidence should 
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves 
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away from the developmental stage to foll operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
2. Petitioner's Organizational Structure 
An organizational chart submitted with the petition identified ten positions in the new U.S. office, 
including a president, a COO, three departmental heads ( of marketing and sales, finance, and 
production and shipping), and five subordinate positions in the departments of marketing and sales 
(three) and of production and shipping (two). Three of the ten positions (the President, COO, and 
head of the finance department) were filled at the time the petition was filed in May 2019. The other 
seven positions were projected to be filled by February 2020. They included the Beneficiary's 
proposed position as chief of marketing and sales and three subordinate positions in the department -
including two directly subordinate positions of marketing executive and programmer/web designer 
and a third position - graphic artist - subordinate to the programmer/web designer. 
3. Job Duties of the Proposed Position 
In examining whether the Beneficiary's employment in the United States will be in a managerial or 
executive capacity, we will first examine the Petitioner's description of the job duties. See 8 C.F.R. 
§ 214.2(1)(3)(ii). In the petition the Beneficiary's proposed duties as chief of marketing and sales in 
the United States were described as follows: 
Manage marketing and advertising campaigns; 
Set up plan of implementation for marketing and sales; 
Direct the hiring and training of marketing staff; 
Set up software design and implementation; 
Design web products; 
Advise on pricing strategies; 
Establish distribution networks; 
Negotiate contracts and pricing agreements with marketing platforms. 
A more detailed description of the Beneficiary's proposed duties was provided in letters from the 
Chinese affiliate's chief executive officer submitted with the petition and by the Petitioner's chief 
operating officer (COO) submitted in response to the Director's request for evidence (RFE). The 
duties were arranged in three broad categories and associated sub-categories, with percentages of time 
allocated to the respective duties. So presented, the Beneficiary's proposed duties read as follows: 
Directing the Operations of the Marketing and Sales Department - 40% 
• Develop weekly, bi-weekly, monthly quarterly, half-yearly and yearly reports to 
distribute to Chief Financial Officer, Chief Operations Officer, President, and Chief 
Production Officer. This job duty consists of the following sub-duties: 10% 
o Compile sales report from subordinates' daily check-ins with information about 
incoming orders, pricing, new clients, and product inventory. 
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o Compile business reports after careful analysis of current trends in the industry, 
client reviews, incoming sales, and production distribution. Include business 
theories to continue improving company performance and increase efficiency. 
• Coordinate or participate in promotional activities or trade shows, working with 
developers, advertisers, or production managers, to market products or services. This 
job duty consists of the following sub-duties: 10% 
o Ensure that raw promotional materials are ready for use in any promotional 
event or trade show by coordinating requirements with graphic department; 
inventory stock; instructing future subordinates to place orders ( custom, 
specialty or otherwise); and verifying receipt of materials. 
o Plan meetings and trade shows by guiding and overseeing the identification, 
assembly and coordination ofrequirements; develop schedules and assignments 
accordingly; establish contacts; and coordinate mailing lists and email 
campaigns. 
o Keep up to date on industry changes and trends by participating in educational 
opportunities; reading trade publications; and attending online SAGE seminars 
to be able to run market and sales department according to updates in the 
industry. 
o Plan and organize promotional presentations with subordinates and oversee 
development of sample promotional products and advertising materials. 
• Work with developers, advertisers, or production managers to market products or 
services. This job duty consists of the following sub-duties: 5% 
o Assemble and analyze sales forecasts from subordinates to provide guidelines 
on implementing marketing and advertising campaigns accordingly. 
o Prepare market and advertising strategies based on product demand, market 
trends, seasonality, events, and holidays to keep company competitive. 
o Direct and oversee subordinates work with developers in implementing and 
updating web and mobile application-based systems compatible with both iOS 
and android technologies. 
• Consult with buying personnel to gain advice regarding the types of products or 
services which are expected to be in demand. This job duty consists of the following 
sub-duties: 5% 
o Have subordinates research competitive products, and identify and evaluate 
product characteristics, market share, pricing, and competitive advertising 
tactics such as price comparison, better quality materials, etc. 
o Maintain research databases for future use. 
o Lead and engage in brainstorm sessions with market and sales subordinates to 
determine how best to market and develop new products based on research 
results and suggestions from buying personnel. 
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• Consult with Operations Manager to discuss production capacity at a given time in 
order to ensure that the sales correspond. This job duty consists of the following sub­
duties: 5% 
o Have subordinates track product line sales and costs by analyzing and entering 
sales, expenses, and new business data including cheaper product costs from 
other suppliers while maintaining quality control for new inventory. 
o Review departmental marketing reports from staff. 
o Collect, analyze, and summarize sales data from marketing staff to ensure no 
errors have been made with regard to orders or quotation requests. 
o Meet and discuss reports with operations manager to provide guidelines on what 
future production capacity should look like. 
• Identify and develop new markets for the company. This job duty consists of the 
following sub-duties: 5%. 
o Have future marketing executive produce viability report on opening new 
locations and/or expanding existing business to include new products or 
services. 
o Monitor budgets by comparing and analyzing actual results with plans and 
forecasts. 
Implementation and Future Plan of Expansion- 35% 
• Identify, develop, and evaluate the most suitable marketing strategy based on market 
characteristics, objectives set by [ the CEO of the Chinese affiliate] and cost and markup 
factors. This job duty consists of the following sub-duties: 15% 
o Work with marketing executive and web designer on determining current 
market characteristics and adjust existing strategies accordingly to best serve 
the company's goals to acquire regular monthly orders, national business 
relations, and improving inter-company policies. 
o Have marketing executive prepare cost and mark-up factors report based on 
cost analysis and target pricing for competitiveness. 
• Recommend organizational processes and policy changes at staff meetings. This job 
duty consists of the following sub-duties: 5% 
o Create organizational process based on efficiency, digitizing certain aspects of 
the company, and providing insight on policy changes that will improve 
customer relations and product development. 
o Based on department's market research, suggest updates to existing order 
management system to make it easier for clients to track orders. 
• Respond to queries by Managing Members and Superiors regarding the performance 
in sales and relaying whether his set plan for future targets can be met in the time set. 
This job duty consists of the following sub-duties. 5% 
o Provide subordinates with instructions to meet managing members' target plans 
for product distribution. 
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o Create timeline for subordinates to follow for when each step should be 
completed, from incoming order to shipping to end user. 
o Oversee and manage step-by-step plans to reach targets and review final 
products to determine whether target has been reached. 
• Analyze operations to evaluate the performance of the company and its sales to 
determine areas to maximize returns and increase productivity of the sales and 
marketing team. This job duty consists of the following sub-duties: 5% 
o Review sales data, market trends, forecasts, account analyses, and new product 
information, and set guidelines for department based on findings. 
o Monitor budgets to ensure cost analyses are in line with target plans and future 
forecasts for the company. 
o Have marketing executive and web designer draw up reports on department 
performance indicating problem areas and production issues to be able to adjust 
plans for the department accordingly. 
• Participate in key decisions as a member of the Senior Management team. This job 
duty consists of the following sub-duties: 5% 
o Provide information on competition in the industry and assist in setting 
strategies to remain a viable, yet competitive, company by reviewing profit 
margins, competitive pricing, and department's efficiency. 
o Set guidelines for pricing management and percentage of optimum pricing to 
determine company growth and expansion paths. 
o Provide direction to other senior managers on how to maintain and increase sale 
productivity. 
Pricing and Contract Negotiation- 25% 
• Negotiate and approve contracts with vendors or distributors to manage product 
distribution channels, establishing distribution networks or developing distribution 
strategies. This job duty consists of the following sub-duties: 15% 
o Negotiate contracts with distributors to use products in marketing or 
promotional campaigns at trade shows or expos. 
o Finalize and approve vendor and distributor products. 
o Manage distribution channels for manufactured products to ensure transition 
from production to end user. 
o Oversee management of established distribution networks to ensure receipt of 
inventory and delivery of product to end user. 
o Guide marketing executive on tracking product through distribution channel 
and network to ensure it is delivered timely to end user. 
• Ensure that all pro forma invoices are issued and that the team is replying to all queries 
by customers. This job duty consists of the following sub-duties: 5% 
o Final approval of all pro forma invoices confirming that the details on the 
proposed invoice match the purchase order. 
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o Provide department with guidelines on how to respond to customer queries. 
o Oversee responses to custom quotation inquiries and provide specific 
guidelines for how to do custom quotations. Approve final quotation before it 
is sent to clients. 
• Determine price and monetary policies for products. This job duty consists of the 
following sub-duties: 5% 
o Research on competition prices for similar products, factory pricing of raw 
materials, and shipping costs to determine best product pricing. 
o Ensure final pricing and company monetary policies keep the company 
competitive and viable. 
4. Job Duties of Subordinate Positions 
As previously discussed, the Petitioner's organizational chart identified two positions in the marketing 
and sales department directly subordinate the Beneficiary's position-including a marketing executive 
and a programmer/web designer - as well as a third position - graphic artist - subordinate to the 
programmer/web designer. The letter from the Petitioner's COO submitted in response to the RFE 
listed the job duties of all three positions, and the percentage of time allocated to each duty, as follows: 
Marketing Executive: 
• Develop sales and performance reports to submit to [the Beneficiary] for review to ensure 
department is meeting all target orders each month: 20% 
• Conduct in depth research on markets in different geographical areas nationwide regarding 
competitive pricing, different advertising methods used by similar companies, and market 
trends to assist [the Beneficiary] in developing the most suitable marketing strategy for 
company products: 20% 
• Implement [ the Beneficiary]' s marketing and sales strategies within the department and 
report to him directly should any obstacles or delays be encountered for final instruction 
on how to correct said errors: 10% 
• Write up daily order reports to keep track of all orders coming in, increases in order size, 
varying types of orders ( custom or standard), and types of clients requesting orders and 
submit them to [the Beneficiary] for review: 10% 
• Review operational records and reports to project sales and determine profitability, then 
report final findings to [the Beneficiary]: 5% 
• Develop all pro forma invoices before final approval from [ the Beneficiary]: 10% 
• Prepare report detailing department progress, contracts and new sales of products or 
services to submit to [the Beneficiary] along with a report detailing possible reasons for 
increase or decrease of sales in any given time period: 10% 
• Assist [the Beneficiary] with coordinating promotional activities with clients: 5% 
• Manage department responses to customer inquiries per [the Beneficiary]'s instructions, 
particularly for custom quotations, and track orders through distribution channels and 
networks to ensure timely delivery to clients: 10% 
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Programmer/Web Designer: 
• Design, build and maintain company websites based on instruction from [the Beneficiary] 
regarding audience the company wants to target and products that should be highlighted 
on the website: 20% 
• Review Graphic Artist's conceptual designs for company website and provide them to [the 
Beneficiary] for final review and approval to ensure designs are satisfactory: 15% 
• Confer with [the Beneficiary] to prioritize needs for programming and website design, 
resolve any conflicts that arise regarding web design and website maintenance, and choose 
best solutions if obstacles are encountered: 10% 
• Design and implement website security measures: 5% 
• Identify and maintain links from other websites such as Chinese affiliate's for maximum 
efficiency. Link other website to company website as instructed to do so by [the 
Beneficiary]: 5% 
• Develop web site design with assistance from Graphic Artist and ensure that design is in 
line with current advertising strategies based on seasonality, special events, holidays, etc. 
that the company is targeting: 10% 
• Ensure that website design follows key components of a well-designed site including 
friendly user experience, search engine optimized, and conversion optimization: 10% 
• Provide [ the Beneficiary] with final design proofs for final approval: 10% 
• Ensure that content on company website is up to date and properly maintained consistently: 
10% 
• Manage consistent revision of website to ensure that clients are seeing the most recent 
promotions, product designs, and advertising: 5% 
Graphic Artist: 
• Conduct market research on what graphic designs have been used by competing 
companies, current trends in virtual design adaptation of products for website and email 
advertising, and draft report for [the Beneficiary] to prepare guidelines on best direction to 
take for product designs: 25% 
• Gather information and guidelines from [the Beneficiary] to begin planning conceptual 
designs for new and existing products to include in all aspects of email and website 
advertising: 10% 
• Illustrate concepts by designing rough layout of art and copy regarding arrangement size, 
type size and style, and other related aesthetic concepts: 25% 
• Obtain initial approval of concept designs from Programmer/Web Designer by submitting 
rough layout for approval: 10% 
• Prepare final layout of concept design with any changes noted by Programmer/Web 
Designer: 15% 
• Assist Programmer/Web Designer with overall website design for promotional events, 
holidays, seasonality, that the company is focusing on: 15% 
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5. Director's Decision 
In his decision the Director determined that the Beneficiary's two direct subordinates would primarily 
be performing routine day-to-day functions of the new office, not managerial duties, and that the 
Beneficiary would be personally overseeing the work of his three subordinate employees rather than 
directing the management of the Petitioner's marketing and sales department. As such the 
Beneficiary's position as chief of marketing and sales would not meet all of the definitional elements 
of "executive capacity" at section 10l(a)(44)(B) of the Act. The Director also determined that the 
Beneficiary'sA proposed position did not meet all of the definitional elements of "managerial 
capacity" at section 10l(a)(44)(A) of the Act. None of the job descriptions for the three subordinate 
positions in the marketing and sales department indicated that any of the three positions required a 
specific baccalaureate degree, as required to be considered professional positions. Therefore, the 
Beneficiary would not be supervising and controlling the work of other supervisory, professional, or 
managerial employees, and would at most be a first-line supervisor of employees performing daily 
operational tasks of the business. The Director concluded that the record did not establish how the 
Beneficiary would be relieved from performing primarily day-to-day operational tasks for the new 
office, with its prospective staff of 10 employees, or how the new office would be able to support an 
executive or managerial position within one year of the petition's approval. 
6. Petitioner's Appeal 
On appeal the Petitioner claims that the Beneficiary's employment in the United States will meet the 
definitional requirements of both managerial and executive capacity within one year of the petition's 
approval through his oversight of the U.S. business's "essential function" of marketing and sales. 
Specifically, the Petitioner asserts that the Beneficiary will manage this essential function within the 
meaning of section 10l(a)(44)(A)(ii) of the Act, and that he will direct the management of the function 
within the meaning of section 10l(a)(44)(B)(i) of the Act. 1 Thus, the Petitioner has shifted its 
characterization of the Beneficiary's employment in a managerial or executive capacity from the 
management or executive oversight of subordinate employees to the management or executive 
oversight of a specific and essential function of the business. 
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 10l(a)(44)(A)(ii) of the Act. If a petitioner claims that a 
beneficiary will manage an essential function, it must clearly describe the duties to be performed in 
managing the essential function. In addition, the petitioner must demonstrate that "(l) the function is 
a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the 
beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at 
a senior level within the organizational hierarchy or with respect to the function managed; and (5) the 
1 A petitioner claiming that a beneficiary will perform as a "hybrid" manager/executive will not meet its burden of proof 
unless it has demonstrated that the beneficiary will primarily engage in either managerial or executive capacity duties. See 
section I0l(a)(44)(A)-(B) of the Act. While in some instances there may be duties that could qualify as both managerial 
and executive in nature, it is the petitioner's burden to establish that the beneficiary's duties meet each element set forth 
in the statutory definition for either managerial or executive capacity. A petition may not be approved if the evidence of 
record does not establish that the beneficiary will be primarily employed in either a managerial or executive capacity. 
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beneficiary will exercise discretion over the function's day-to-day operations." Matter of G-, Inc., 
Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
In claiming that the Beneficiary will be employed in a managerial capacity, the Petitioner asserts that 
the Beneficiary will manage the essential function of marketing and sales through his supervision and 
management of tasks performed by his subordinate departmental employees and his consultation with 
the chief of the production and shipping department. Because the Beneficiary will allegedly manage 
an essential function, the Petitioner asserts that it does not need to show that the Beneficiary will 
supervise and control the work of other supervisory, professional, or managerial personnel (under 
section 10l(a)(44)(A)(ii) of the Act). Nevertheless, the Petitioner contends that all three subordinate 
positions in the marketing and sales department are occupations that typically require a bachelor's 
degree and should therefore be considered professional positions. Contrary to the Director's 
determination, therefore, the Petitioner asserts that the Beneficiary will supervise and control 
professional employees, as well as an essential function of the organization, and will also have the 
authority to hire and fire subordinate employees and exercise discretion over the day-to-day operations 
of the marketing and sales function, thus meeting all of the definitional requirements of "managerial 
capacity" employment. 
In claiming that the Beneficiary will be employed in an executive capacity, the Petitioner asserts that 
the Beneficiary will direct the management of the marketing and sales function of the U.S. business 
through his direct and indirect subordinates - the marketing executive, the programmer/web designer, 
and the graphic artist. Contrary to the Director's determination, the Petitioner asserts that the 
marketing executive and the programmer/web designer will not primarily be performing daily 
operational tasks necessary to produce a product or provide services, but instead will primarily be 
managing the marketing and sales as well as the programming and website design functions of one of 
the Petitioner's major components - its marketing and sales department. According to the Petitioner, 
therefore, the Beneficiary will be directing the management of a major component and function of the 
U.S. company, and will also meet the other definitional requirements of "executive capacity" 
employment because he will establish the goals and policies of the marketing and sales function to be 
implemented by his subordinate employees, exercise wide latitude in discretionary decision-making 
with foll authority to hire and fire subordinate employees, and receive only general supervision from 
the COO. 
The Petitioner asserts that since the Director took its staffing level into consideration by indicating 
that the prospective 10-person office could not support an executive or managerial position within a 
year, the Director should have also considered the reasonable needs of the organization, component, 
or function in light of the organization's overall purpose and stage of development, as required in 
section 10l(a)(44)(C) of the Act. The Petitioner points to its business plan, an updated version of 
which is submitted on appeal, as addressing the reasonable needs of the new U.S. company and 
establishing the need for an employee performing primarily executive or managerial duties within one 
year of the petition's approval. The updated business plan confirms that the Petitioner's product line 
will feature an inventory of dog leashes, dog collars, and lanyards with associated clips and clas~ 
that these products will be sourced from its Chinese affiliate and a U.S. manufacturing facility inLJ 
I I California, and that the products will be sold to distributors in the United States, primarily in 
midwestern and western states. Startup costs for the U.S. business are not projected to be high since 
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much of the office equipment and imprinting machinery had been provided by one of the Petitioner's 
co-owners. The business plan projects sales of around $500,000 in the first year, $700,000 in the 
second year, and $900,000 in the third year. In accordance with the Petitioner's organizational chart, 
the business plan also confirms the prospective hiring of seven employees by February 2020 to 
supplement the three already in place. As stated by the Petitioner, the business plan highlights the 
following key steps for the U.S. business over the next year of operation: 
1. We intend to focus on Midwest and West Coast distributors ... [and] focus on the quality 
and durability of our imprinting process, guaranteeing their quality so that distributors can 
ensure their clients that their message will be around for a while. 
2. All advertising will be disseminated through Advertising Specialist Institute publications. 
3. Because many specialty advertising distributors are wary of doing business with suppliers 
whom they believe to be "dealing direct," all direct inquiries will be directed to a distributor 
with whom we already have a business relationship. 
4. Our main marketing program will revolve around the placement of our full line, full color 
catalog and price list . . . we will introduce [new] products to the advertising specialty 
industry through postcards featuring the product on one side and our mailing address on 
the other ... [The Petitioner] will also hire industry experienced sales reps of the highest 
caliber ... They will not be expected to close sales, but will be expected to represent our 
products in a competitive atmosphere. 
5. Our pricing strategy is to be competitive within the various product categories, but not to 
rely on the selling price to overshadow the other advantages of doing business with the 
company. 
6. . .. Our in-house sales department will be calling on some of the larger West Coast 
distributors. We have hired a consultant who has had ongoing business relationships with 
many of these distributors over the last 24 years and we are counting on him to help us 
meet our sales objectives right from the start. 
The information in the updated business plan does not appreciably add to our knowledge about the 
Petitioner's fledgling business operation and its staffing needs during the first year. Earlier in these 
proceedings the Petitioner submitted evidence that the U.S. business was at least operational, including 
its commercial lease agreement,2 the first month's rental payment, photos of the premises, projected 
startup costs over the first year, a $50,000 capital contribution from one of the co-owners, bank account 
statements, and some purchase orders during the first several months of operation. This 
documentation provides little basis, however, to draw any conclusion about the future prospects of the 
U.S. business. The evidence of record is insufficient to demonstrate a realistic expectation that the 
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full 
operations, and that it will have an actual need for an executive or a manager who will primarily 
perform qualifying duties by the end of the one-year period. See generally 8 C.F.R. § 214.2(1)(3)(v). 
2 The lease agreement describes the leased premises as: "Approx. 500-800 square feet of storage space located on 2nd 
floor of warehouse, Office facilities as required, Printing and shipping area as required." 
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Even if we agree with the Petitioner that marketing and sales is a clearly defined activity and a core 
function of the U.S. business, which would meet the first two elements of "essential function" in 
Matter of G-, the evidence ofrecord does not indicate that the Beneficiary will primarily manage rather 
than perform this function, as required in the third element of "essential function." Matter of G. The 
job duties of the Beneficiary and his two direct subordinates, as described in these proceedings, 
indicate that the marketing executive and the programmer/web designer will provide assistance to the 
chief of marketing and sales in the forms of market research, operational support, record-keeping, and 
information technology services, and that the chief of marketing and sales will exercise some 
managerial tasks vis-a-vis these two employees. This assistance, however, will not relieve the chief 
of marketing and sales from performing many day-to-day operational tasks of the business, as 
indicated in the job duties described by the Chinese affiliate's CEO and the Petitioner's COO. Thus, 
the record does not show that the Beneficiary will primarily "manage" the marketing and sales 
function, as required to meet the definitional requirement of managerial capacity employment at 
section 10l(a)(44)(A)(ii) of the Act. 
Nor do the prospective job duties of the subordinate employees in the marketing and sales department 
indicate that the Beneficiary, as head of the department, will meet all the definitional requirements of 
employment in an executive capacity. Despite the Petitioner's claim that the marketing executive and 
the programmer/web designer are managerial positions, and that the Beneficiary as chief of marketing 
and sales will therefore "direct the management" of the marketing and sales function, the job duties of 
the marketing executive and programmer/web designer clearly indicate that neither position is 
primarily managerial in nature. The marketing executive has no subordinate(s) and the job duties of 
the position, as detailed in the COO's letter, are devoid of managerial tasks. The programmer/web 
designer does have one subordinate - the graphic designer - but only two of the programmer/web 
designer's duties totaling 25% of his time (as detailed in the COO's letter) involve management duties 
vis-a-vis the graphic designer. 3 Thus, the programmer/web designer's duties are not primarily 
managerial. Both the marketing executive and the programmer/web designer, therefore, will mainly 
perform daily operational tasks of the business, not managerial tasks. Since neither of the positions 
directly subordinate to the chief of marketing and sales is a managerial position, the Beneficiary will 
not "direct the management" of the Petitioner's marketing and sales function, as required to meet the 
definitional requirement of executive capacity employment at section 101(a)(44)(B)(i) of the Act. 
The Petitioner's claim that the Beneficiary will be employed in a managerial or executive capacity in 
the United States is further undermined by some documentation submitted in support of the appeal. 
The Petitioner submits excerpts from the website of the Occupational Outlook Handbook (OOH), U.S. 
Bureau of Labor Statistics, providing information about the occupations of marketing managers and 
computer programmers. This documentation was submitted as evidence that these two occupations 
typically require a bachelor's degree, the educational threshold of a "professional" as defined in the 
regulation at 8 C.F.R. § 204.5(1)(2), and to demonstrate that the Petitioner's analogous positions of 
marketing executive and programmer/web designer will therefore be professional positions. The OOH 
3 The two managerial duties are (1) reviewing the Graphic Artist's conceptual designs for company website and providing 
them to the Beneficiary for final review and approval to ensure the designs are satisfactory (15%), and (2) developing the 
web site design with assistance from the Graphic Artist and ensuring that design is in line with cunent advertising strategies 
based on seasonality, special events, holidays, etc. that the company is targeting (I 0%). 
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information also indicates that in 2018 the median pay for marketing managers was $132,620 per year 
and for computer programmers was $84,280 per year. These figures are considerably higher than the 
the salary the Petitioner intends to pay its chief of marketing and sales. The Form I-129 petition 
indicates that the chief of marketing and sales will be paid $5,000 per month, which works out to 
$60,000 per year. The letter from the Petitioner's COO submitted in response to the RFE indicates 
that the Beneficiary's U.S. salary would be even lower - $24,000 per year. Thus, the Petitioner has 
provided two widely divergent figures for the Beneficiary's salary, both of which are far below the 
median salaries for two occupational positions subordinate to the Beneficiary on the Petitioner's 
organizational chart. 
It is incumbent upon a petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Attempts to explain or reconcile such inconsistencies will not suffice without competent 
evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Doubt cast on any aspect of the petitioner's evidence also reflects on the reliability of the petitioner's 
remaining evidence. See id. 
The Petitioner has not resolved the inconsistencies discussed above. It has not explained the two 
different salaries it provided for the chief of marketing and sales position and why the figures are so 
far apart. Nor has it explained why the chief of marketing and sales position, which is superior to the 
marketing executive and programmer/web designer positions on the organizational chart, would be 
paid at a level vastly below the median salaries of those subordinate occupational categories. 4 
Moreover, the comparatively low salary figures proposed for the chief of marketing and sales position 
raise crucial questions as to whether the job duties have been inflated and whether the Beneficiary will 
actually exercise high-level managerial or executive functions, or act at a senior level within the 
organization, as asserted by the Petitioner. The low and discrepant salary figures cast further doubt 
on the Petitioner's claim that the Beneficiary will actually be employed in a managerial or executive 
capacity. 
Finally, the Petitioner has not specified in this proceeding whether it is claiming managerial or 
executive capacity for the Beneficiary's prospective employment in the United States. It is the 
Petitioner's burden to establish that the Beneficiary will be employed in either a managerial capacity 
or in an executive capacity, and to specify which one. As previously stated, the Petitioner bears the 
burden of proof in visa petition proceedings to establish eligibility for the immigration benefit it seeks. 
Section 291 of the Act. 8 U.S.C. § 1361. The Petitioner has not met its burden in this case. 
B. Employment Abroad 
As previously indicated, because the Petitioner has failed to establish that the Beneficiary will be 
employed in a managerial or executive capacity in the United States, which is a fundamental element 
of eligibility for the immigration benefit sought in this proceeding, we reserve the issue of the 
Beneficiary's employment abroad in a managerial or executive capacity. 
4 The Petitioner does not indicate the salaries of its own marketing executive and programmer/web designer. 
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III. CONCLUSION 
In accord with the foregoing analysis, we conclude that the Petitioner has not established that the 
Beneficiary will be employed in a managerial or executive capacity in the United States within one 
year of the petition's approval. The appeal will be dismissed for this reason. 
ORDER: The appeal is dismissed. 
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