dismissed L-1A Case: Publishing

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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: EAC 0503152508 Office: VERMONT SERVicE CENTER Date: NOV/2'i7,200S
INRE: Petitioner:
Beneficiary:
Petition: Petition fora Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(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 .
. :Ebert P. Wiemann, Chief .
/uministrative Appeals Office
www.uscls.gov
EAC 05 031 52508
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa and
affinned her decision on-a subsequent motion . 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 exte~d the employment of its general manager as an
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(L). The petitioner, a Puerto Rico corporation, states that it
is engaged in the editing , production, distribution, and commercialization of textbooks. The petitioner claims
that it is the subsidiary of Editorial Escuelas del Futuro S.A., located in Bogota, Colombia. The beneficiary
was initially approved for L-IA status in the United States for aone-year period, and the petitioner now seeks
to employ the beneficiary for three additional years.
The director denied the petition on February 10,,,2005,concluding that the petitioner did not establish that the
beneficiary will be employed in the United States in a primarily managerial or executive capacity under the
extended petition.
The petitioner subsequently filed an appeal on March 25, 2005. The director , finding that the appeal 'was
untimely filed, treated the appeal as a motion to reconsider, and affirmed his previous decision to deny the
petition in a decision dated June 2 ;'2005. ' ,
The petitioner filed the instant appeal on July 23, 2005 . On appeal, counsel for the petitioner asserts the
director erred in confusing the duties of the beneficiary with those of his subordinate within the U.S .
company . Counsel further contends that the director failed to take into account the reasonable needs of the
petitioner in light of its overall purpose and stage of development. Counsel asserts that a review of the totality
, .
of the record establishes the beneficiary's employment in a qualifyin~ 'managerial or executive capacity.
Cou~sel submits a brief in support of the appeal. '
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the' Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
, continuous year with in 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 regulat~on at 8 C.F.R. § 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 employthe
alien are qualifying organizations as defined in paragraph (1)(l)(ii)(O) 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.
EAC 05031'52508
Page 3
(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.
.j
(iv) Evide~ce that the 'alien 's prior year of employment abroadwas 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 l?erform 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 regulationat 8 C.F.R. §214.2(1)(l4)(ii) also provides that avisa petition, which involved the opening ofa
, new office, may be extended by filing a new Form 1-129, accompanied by the 'following: '
.
(A)
(B)
(C)
(D) ,
(E)
, , '
Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (1)(1)(ii)(G) 'of this section; ,
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;'
A statement of the duties performed by the beneficiary for the previous year and the
duties the .beneficiary will perform under the extended petition ;
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
Evidence of the financial status of the United States operation.
The issue in the present matter is whether the petitioner established that the beneficiary will be employed by
'the United States entity i~ a primarily managerialor executive capacity, '
Section 101(a)(44)(A) of the Act , 8 U.S.c. § 1101(a)(44)(A) , defines the term "manage~ialcapacity" 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 w ithin the organization , or a department
or subdivision of the organization;
I,
EAC 05 031 52508
Page 4' '
(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.
Section 101(a)(44)(B) of the Act , 8 U.S.c. § 1101(a)(44)(B) , defines the term "executive capacity" as an
assignrri~nt within an organization in which the employee primarily:
(i)
(ii)
(iii)
(iv)
directs the management of the cirganizationor a major component or function of the
organiza tion;
establishes the goals and policies of the organization, component, or function;, .
exercises wide latitude in discretionary decision making; and
receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The nonimmigrant petition was ' filed on November 15, 2004. The petitioner stated on Form 1-129 that the
U.S. company has five employees, and indicated that the beneficiary performs the following duties:
As General Manager [the beneficiary] will have overall responsibilities forthe destiny of the .
U.S. Corporation. He will be the most senior level person in the organization responsible for
expanding , organizing , directing and developing future -ventures in the Island. Specifically,
[the beneficiary] will have the following duties to perform: Plan , direct, and coordinate the
operations of the newly .created company. Duties and responsibilities include formulating
policies , managing daily operations , and planning the use of materials and human resources.
The director issued a request for additional evidence on November 22, 2004. In part, the director instructed
the petitioner to submit: (1) a complete position description for all employees in the United States, including
one for the beneficiary's position, including a breakdown of the number of hours devoted to each of the
employees' job duties on a weekly basis; (2) evidence to establish the duties performed by the beneficiary in
the past year and the duties to be performed under the extended petition ; (3) an organizational chart for the
U.S . company; (4) copies of IRS Forms 941 , 'Employer's Quarterly Federal Tax .Retum, for the second and
third quarters of 2004; (5) a copy of the petitioner's October 2004 payroll ; and (6) evidence documenting the
number of contractors utilized by the company and the duties they perform , if applicable.
EAC 05 031 52508
Page 5 .
. In a response dated January '13, 2005, the foreign entity's general manager indicated that the beneficiary
devotes 100 percent of his time to "expanding , organizing , directing and developing future ventures in the
Island 'of Puerto Rico." The foreign entity further explained:
. . . I . .' "
[The beneficiary's] duties and responsibilities performed during the.past year , and the duties
that he will J:>e performing if the petition is extended , are as follows: .
• Starting from an organized , controlled and developed plan of activities which allows a'
possession of the products of [the petitioner] in the international market. . ~ studies were .
performed regarding the potential behavior of the different private clients and officers in
each one ofthe projected countries, according to historic jnformation data and the need
of texts of [the company], emphasizing the fulfillment of objectives in each country.
• In order to develop these functions, we began with the formation of a team of
collabonitors , this is how we interviewed and hired in Puerto Rico the Manager of
Promotions and Sales ... and hir~d two persons to initiate the promotions and sale of the
. . .~ .
scholar texts in the different school s in the Island . Once organized the team work, the
instructions were given. rthe sales and promotion activit ies were planned for the school
season in Puerto Rico.
• In the legal and regulatory aspect , all the documentation was gather [sic] in order to
register the corporation in the . Department of State, withwhich we could begin to bid
with anygovernm~ntal entity. "' . '
• We looked for, located and leased a local for the operations ofthe corporation .
• We made mar~et investigations , designing polls directed to the private , schools to
determine the needs in regards to school texts. Also we performed investigations
regard ing new products to be elaborated and hire[d]authors in the specifi c .subject . . ..
• We visited and spoke to the directors of the Department of Education in the areas of
Spanish, Mathematics, Social Studies, Art, and others, to determine the present" needs
regarding school texts; once we made a balance of these needs, models were elaborated
, for each area-adjusted to the corresponding .cu~iculums and they were presented to each '
one of the interested clients .
• From the ' modelselaborated and as a re sult of a well-performed investigation, the
Department of Education of the Commonwealth of Puerto Rico, in the Spanish area ,
.acquire the services ' "Caligrafia Sacapuntas del K and 6" in .the amount of $5 ,~00 each
for a total of 36,400 units with a sales price of $253,312.50. .
• In the editing area, :mailUscripts from authors are revise, the .outline to follow is also
. revise in order to be in compliance with the programs and chronologyof the delivery of
the material.
• In the promotions and sales areas ; we visit with the promotions and sales personnel to
analyze how isthe work in each route , to evaluate the projects, verify the proposed goals
and in what percentage of compliance we are.
• in the administrative are [sic], ' we meet ~ith the CPA to analyze . and evaluate the
financial statements , projections , cas~ flow, and program the fiscal obligations.
EAC 05 031 52508
Page 6
If [the beneficiary's] visa is extended, he will continue to plan the work of monthly and
annual promotions , will continue planning the work with the Department of Education, will .
continue to plan the work with authors , will continue evaluating promotional work , will
continue evaluating the work at the Department of Education, and will continue evaluating
the work with the authors .
The petitioner submitted an organizational chart indicating that th/beneficiary supervises the promotion and .
sales manager, who in tum supervises two promotion and sales employees .'The company also employs a
secretary and utilizes the services of an outside accountant. The petitioner submitted evidence to corroborate
the employment of the workers identified on the organizational chart.
The petitioner described the Promotion and Sales Manager's duties as follows:
.Promotion and Sales Manager
• Detailed elaboration of budgets at a general level in order to develop a sales and
promotions policy according to the market requirements in Pu~rto Rico, 5 % of the time
• Implement policies of samples that may enter the market and rationalize the recourse.
3% of the time
• Guide the promotion and sales policies in ·accordance with the latest marketing and
advertising strategies, taking into account the competitors and educational policy. 40/(> of
time.
• Organ ize capacitation [sic] seminars in sales so that the sales personnel have a better
control of the product. 2% of the time.
• Design workshops for the management of the different public and private school]s] ... .
5% of the time.
. • Report to the President of the corporation the results obtainedin the execution of the
sales budget. 3% of the time.
• Participate in meetings with the department of edition and production. 2% of the time.
• .Respond to ,. the President of the corporation, in all duties expressed above. 6% of the
. time.
• Accompany the sales promotion personnel in their daily duties. 70 % of the time.
The petitioner further stated that its two sales and promotion employees devote 80 percent of their time to '
visiting schools and promoting textbooks to teachers, and their remaining time familiarizing themselves with
the, company's textbooks , planning routes, studying competitors' textbooks , managing 'merchandise ,
documentation and monies related to sales , collecting pending invoices , and reporting to the sales and
promotion manager. Finally , the petitioner indicated that the secretary is responsible for reception duties,
telephone calls, filing , typing and other clerical duties .
The director denied the petition on February 10 ,2005 , concluding that the petitioner had not established that
the beneficiary will be employed in ' a primarily managerial or executive capacity. The director found that the
beneficiary would not manage a subordinate staff of managerial, supervisory or professional employees who
would relieve him from performing primarily non-qualifying duties required for the daily operation 'of the
EAC 05 031 52508
Page 7
company. The director acknowledged that one of the beneficiary's subordinates possesses a managerial job
title , but noted that the petitioner indicated that this employee would spend the majority of his time
accompanying the promotion and sales employees in their daily sales routines. The director also found
insufficient evidence to establish that the beneficiary manages an essential function of the organization.
The petitioner subsequently filed a late appeal on March 25 , 2005, which the director treated as a motion to
reopen or reconsider. The director dismissed the motion and affirmed his pre vious decision on June 2 , 2005,
without further discussion of the merits of the petition .
The petitioner filed the instant appeal on June 23, 2005. On appeal, counsel for the petitioner asserts that the
director "erred in mixing the duties of the Promotion and Sales Manager with those of the beneficiary as
General Manager of the enterprise ." Counsel asserts that the beneficiary has direct control of the management
of the company, establishes its goals and policies , has wide latitude in discretionary decision making, has the
authority to hire and fire professional and clerical staff, develops and manages the company's finances and
budget, and performs these duties under the general supervision of the board of directors of the petitioner's
parent company. Counsel emphasizes that the beneficiary's "primary function" is to "provide comprehensive
leadership and integrate diverse operational functions in such areas as marketing , sales, project management,
internal (office) management , definitions of operating procedures and practices, (e.g. editing, printing and
production of educational texts)."
Counsel further asserts that section 101(a)(44)(C) mandates that U .S. Citizenship and Immigration Services
(USCIS) consider the reasonable needs of the organization and its stage of development when reaching a
determination regarding a beneficiary's employment in a managerial or executive capacity. Counsel cites an
unpublished AAO decision in support of his assertion that the size of a company is not a determinative factor
for L-IA petitions. Counsel concludes that a review of the totality of the record and consideration of the
reasonable needs of the petitioner should result in a determinat ion that the beneficiary will be employed in a
qualifying managerial or executive capacity.
Upon review of the petition arid the supporting evidence, the petitioner has not established that the beneficiary
will be employed in a qualifying managerial or executive capacity under the extended petition . 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. Furthermore , the definit ions of executive and managerial capacity have
two parts. First, the petitioner must show that the beneficiary performs the high-level responsibilities that are
specified in the definitions. Second, the petitioner must show that the beneficiary primarily performs these
specified responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30 , 1991).
In this matter, the position descriptions pro vided, considered within the context of the totality of the.record, .
do not sufficiently demonstrate that the beneficiary's tasks will be primarily the high-level respon sibilities
that are specified in the definitions of managerial and executive capacity . See section 101(a)(44)(A) of the
Act, 8 U .S.c. § llOl(a)(44)(A) . While the beneficiary evidently exerc ises discretion over the day -to-day
EAC 05 031 52508
Page 8
operations of the company; the record does not establish that his duties will be primarily managerial or
executive in nature.
The petitioner has provided a vague and nonspecific description of the beneficiary 's duties that .fails to
demonstrate what the beneficiary does on a day-to-day basis. For example , the petitioner initially stated that
the beneficiary "is responsible for expanding , organizing, directing and developing future ventures ," and will
. "plan, direct and coordinate the operations." The petitioner did not, however, explain what specific tasks are
involved in "expanding, organizing , directing and developing " business opportunities such that this
responsibility could be considered primarily managerial or executive in nature. Nor can the AAO speculate as
to the managerial or executive job 'duties to be performed by the benefic iary in connection with the "daily
operations" the beneficiary will manage and supervise. Reciting the beneficiary's vague job responsibilities or
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the
beneficiary's daily job duties . The petitioner failed to provide any detail or explanation of the beneficiary's
activities in 'the course of his daily routine. The actual duties themselves will reveal the true nature of the
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 , 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d-.
Cir. 1990).
Based on the petitioner's failure to provide an adequate position description in support of the petit ion, the
director reasonably requested a detailed description of the beneficiary's position and a breakdown of the
number of hours the beneficiary devotes to his duties on a weekly basis. While the petitioner provided a
.lengthier position description in response to the director's request, it failed to clarify how the beneficiary
allocates his time among his various responsibilities . The petitioner's assertion that the beneficiary devotes
100 percent of his time to "expanding, organizing , directing.and developing future ventures" does not assist in
establishing that the beneficiary's actual duties are primarily managerial or executive in nature. Failure to
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition.
8 C.F.R. § 103.2(b)(14). .
Here, the petitioner's failure to document what proportion of the beneficiary's duties would be managerial
functions and what proportion would be non-managerial is particularly critical, as .the lengthier position
description subm itted in response to the director 's request for evidence confirms that the beneficiary performs
a number of duties which do not fall under the statutory definitions of managerial or executive capacity. The
job description is ambiguously written , but suggests that the beneficiary himself is responsible for meeting
with customers to determine their needs, elaborating models for the petitioner's products , customizing
guidelines for texts according to each customer's requirements , and reviewing and revising manuscripts.
None of these duties have been assigned to the benefic iary's subordinates, and it is therefore reasonable to
assume that the beneficiary is directly involved in requirements gathering, product planning and product
development activities.rather than managing or supervising these functions through a subordinate staff. The
petitioner also referenced "market investigations" performed by the beneficiary within the scope of. the
company's product development activities. .As the pet itioner has declined to clarify how the beneficiary
allocates his time on a weekly basis, the record does not establish that these non-qualifying duties were
secondary to the managerial functions performed by the beneficiary. An employee who "primarily" performs
the tasks necessary to produce a product or to provide service s is not considered to be "primarily" employed
in a managerial or executive capac ity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
..
EAC 05 031 52508
Page 9
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology
Int'/. , 19 I&N Dec. 593 , 604 (Comm. 1988).
The petitioner has not submitted additional evidence on appeal to clarify the beneficiary's job duties. Instead ,
counsel merely paraphrases the statutory definition of executive capacity, and asserts that the beneficiary has
direct control of the management of the company, establishes its goals and policies, has wide latitude in
discretionary decision making, and exercises his responsibilities under the direction of the foreign entity's
board of directors . See section 101 (a)(44)(B) of the Act. Conclusory assertions regarding the beneficiary's
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not
satisfy the petitioner's burden of proof. Fedin Bros. Co ., Ltd. v. Sava, 724 F. Supp. at 1108;Aryr Associates,
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N .Y.).
Based on the current record; the AAO is unable to determine whether the claimed managerial duties constitute
the majority of the beneficiary's duties, or whether the beneficiary primarily performs non-manager ial
operational and administrative duties associated with the development of the petitioner's product. Again ,
although specificaIIy 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).
The AAO acknowledges counsel's assertion that the director confused the beneficiary's duties with the duties
of the promotion and sales manager. Upon review of the director's decision , there is no indication of any such
confusion. The director did consider the stated duties of the promotion and sales manager and the petitioner's
other employees in order to determine whether the beneficiary would be primarily managing a staff of
managerial, supervisory or professional personnel ; however , the director did not attribute the duties of any of
these employees to the beneficiary. The statutory definition of "managerial capacity" aIIows for both
"personnel managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S .C. §
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 professiona1." 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.§ 214.2(1)(1)(ii)(B)(3) .
Upon review, it appears that the beneficiary will have the authority to hire and fire employees , and that he will
devote some portion of his time to managing one supervisory employee, the promotion' and sales manager.
The petitioner appears to employ a sufficient subordinate staff to perform the majority of day-to-day work
associated with the sales and promotion of the company's products. However , the petitioner has not
established that supervision of this staff is the beneficiary's primary function , and the berieficiary wiII not be
considered to be employed in a qualifying capacity based on his supervisory duties alone .
Counsel correctly asserts on appeal that, pursuant to section . 101(a)(44)(C) of the Act, 8 U.S .C.
§ 1101(a)(44)(C), if staffing levels are used as a factor in determining whether an individual is acting in a
..
EAC 05 031 52508
Page 10
managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in
light of the overall purpose and stage of development of the organization. In the present matter; however, the
regulations provide strict evidentiary requirements for the extension of a "new office" petition and require CIS
to examine the organizat ional structure and staffing levels of the petitioner . See 8 C.F.R.
§2l4.2(1)(l4)(ii )(D). The regulation at 8 C.F.R . § 2l4.2(1)(3)(v)(C) allowsthe "new office" operat ion one
year within the date of approval of the petition to support an executive or managerial position. There is no
provision in CIS regulations that allows for an extension of this one-year period. If the business does not
have 'sufficient staffing after one year to relieve the beneficiary from primarily performing operational and
administrative tasks, the petitioner is ineligible by regulation for an extension.
At the time of filing, the petitioner was a one-year-old company engaged In editing, producing and
distributing textbooks customized to the needs of public and private schools in Puerto Rico. The petitioner
employs the. beneficiary as general manager , a secretary to perform clerical work, and three employees to
promote and sell the petitioner's products . As discussed above, the beneficiary himself appears to be solely
responsible for the operational tasks associated with researching the :market and developing the product
according to the customers' needs , including gathering customer requirements , and active involvement in .
reviewing and revising textbooks. These are the basic operational tasks necessary to produce the petitioner's
product and have not been shown to be managerial in nature. The petitioner has also failed to identify who
would perform the day-to-day financial and administrative tasks of the company, if not thebeneficiary . Based
on the evidence submitted, it cannot be concluded that the petitioner employs sufficient employees who
would relieve the beneficiary from performing theday-to-day administrative and operational functions of the
petitioner 's businesses. Rather , based on the evidence submitted, it is evident that the petitioner has
employees to sell its products , while all other functions would necessarily be performed by the beneficiary
rather than managed by him through subordinate personnel. Regardless , the reasonable needs of the petitioner
will not supersede the requirement that the beneficiary be pr imarily employedin a managerial or executive
capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S .C. § 1101(a)(44). As
discussed above, the petitioner has not established this essential element of eligibility.
The AAO does not dispute that small companies require leaders or individuals who plan , formulate, direct,
mana ge, oversee and coordinate .activities ; however the petitioner must establi sh with specificity that the
beneficiary 's duties comprise primarily managerial or exe cutive responsibilities and not routineoperational or
administrative tasks. The fact that the beneficiary manages a business , regardless of its size, does not
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive
capacity within the meaning of sections 101(a)(1 5)(L)' of the Act. See 52 Fed . Reg. 5738 , 5739 (Feb. 26 ,
1987) . The record does not establish that the petitioner , at the end of the first year of operations, had
sufficient staff to relieve the beneficiary from .non-managerial tasks associated with the research, design and
development of its products. Considered in conjunction with the petitioner's failure to provide the requested
comprehensive description of the beneficiary's job duties and a meaningful account of how his time is
allocated , the totality of the record does not support the petitioner's claim that the beneficiary performs
primar ily managerial or executive tasks .
. Although the petitioner emphasizes that additional staff will be added in the near future , the petitioner must
establish eligibil ity at the time of filing the non immigrant visa petition. A visa petition may not be approved
· .
' •. Ii'
EAC 05 031 52508
Page 11
based on speculation of future eligibility or after the petitioner or bene ficiary becomes eligible under a new
set of facts. See Matter ofMich elin Tire Corp ., 17 I&N Dec. 248 (Reg. Comm . 1978); Matter ofKatigbak, 14
I&N Dec. 45 , 49 (Comm . 1971). Based on the evidence furni shed, it cannot be found that the beneficiary will
be'employed primarily in a managerial capacity. For this reason, the appeal will be dismissed.
In visa petition proceed ings, the burden of proving eligibility for the b enefit sought remains entirely
with the petitioner. Section 291 of the Act , 8 U.S.c. § 1361. Here , that burden has not been met.·
ORDER: The appeal is dismissed.