dismissed L-1A Case: Resort Management

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 05 17 1 5 12 18 Office: TEXAS SERVICE CENTER Date: 
 UtC 2 : 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 101(a)(15)(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 orignally decided your case. Any further inquiry must be made to that office. 
L- 
Robert P. Wiemann, 
dl 
Administrative Appeals Office 
SRC 05 171 51218 
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DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. 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 extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)( 1 5)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petition 
titioner claims that it is the affiliate of fiam nd 
located in the United Kingdom. The beneficiary was initially granted a one-year period of 
stay to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay for 
two additional years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that beneficiary is 
employed in a managerial capacity in that he manages both a function of the petitioning organization and 
supervises and controls the work of supervisory employees. Counsel asserts that the director placed undue 
emphasis on the petitioner's small staff size and failed to consider the reasonable needs of the petitioning 
company. Counsel emphasizes that given the nature and scope of the petitioner's business, the company has 
sufficient employees to relieve the beneficiary from performing non-qualifying duties. Counsel submits a 
brief and additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
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(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 himher 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. 3 214.2(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 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(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 of the financial status of the United States operation. 
The primary issue in the present matter is whether the petitioner established that the beneficiary will be 
employed by the United States entity in a primarily managerial capacity. The petitioner does not claim that 
the beneficiary will be employed in an executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 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, 
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functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
The nonirnmigrant visa petition was filed on May 31, 2005. In a letter dated May 26, 2005, the petitioner 
described the beneficiary's duties as follows: 
[The beneficiary] is the President of the U.S. corporation. He has overall executive 
responsibilities and oversees the day-to-day operations of his staff. He liaises with trades 
people, travel agents, and local businesses in order to further develop and attract business to 
the resort. [The beneficiary] is also charged with hiring administration staff, other personnel, 
including hiring and firing, and he will be responsible for overseeing budget, finance, and 
marketing. [The beneficiary] manages a staff of four, which includes the company's on-site 
General Manager, Front Desk Operative and two Housekeepers for the resort. The staffing 
level is deliberately kept at this level to match customer needs and ensure business efficiency. 
As the President [the beneficiary] is ultimately responsible for developing strategic marketing 
plans to enhance the resort's viability and growth. 
The petitioner submitted a copy of its Florida Form UCT-6, Employer's Quarterly Report, for the first quarter 
of 2005, which shows that the company employed two workers as of March 31, 2005. The two employees 
received quarterly salaries of $1,568.00 and $2,272.00, respectively. 
On July 1, 2005, the director issued a request for additional evidence to establish that the beneficiary will be 
employed by the U.S. company in a managerial or executive capacity under the extended petition. The 
director noted that although the petitioner claimed to have four employees, the Form UCT-6 for the first 
quarter of 2005 identified only two employees. The director therefore requested evidence of the petitioner's 
current staffing level, and position titles and duties of all employees. The director also requested the 
petitioner's organizational chart, and instructed the petitioner to "explain how the beneficiary will not engage 
in the day to day operations of the business, and he will be primarily be engaged in managerial or executive 
duties or managing a function." Finally, the director requested evidence that the beneficiary is managing 
other managers and professionals. 
In a response dated September 27, 2005, counsel for the petitioner provided the following description of the 
beneficiary's duties: 
As President of [the petitioner], [the beneficiary] maintains overall responsibility for the 
success or failure of the resort. As the top-tier manager of the organization, [the beneficiary] 
sets the goals and polices for the company, monitors the company's profitability margins and 
is engaged in strategy planning for the purchase of a second hotel. As the President of [the 
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petitioner], [the beneficiary] oversees the activities of two Front Desk managers, who in turn 
supervise the activities of the housekeeping staff (as detailed below). He provides ongoing 
guidance to his management team, and provides instruction on how to resolve customer 
complaints. 
In addition to managing his direct staff, [the beneficiary] has been responsible for 
interviewing, hiring, overseeing and coordinating the activities of several contractors 
(construction contractors and designers), as the resort has recently concluded a major 
remodeling project to upgrade the property. [The beneficiary] also monitors and coordinates 
service contractors in the areas of pool service, pest control, landscaping, advertising, 
cleaning services, and online booking agents, and liaises with state agencies to ensure 
ongoing licensure and compliance for the resort. 
As an experienced manager, [the beneficiary's] primary goal is to analyze the operations of 
the company and provide strategc direction to enhance profitability. 
The petitioner further stated that the beneficiary relies on two front desk managers to handle the day-to-day 
activities of the motel, and determined that the most effective way to manage the property was to divide the 
daily responsibilities between the two managers, who in turn supervise the petitioner's housekeeping staff. 
The petitioner described the duties of the fi-ont desk managers as follows: 
Supervise daily activities of housekeeping staff; 
Monitor records of room assignments and availability; 
Respond to guest inquiries regarding hotel services and policies and provide information 
about local restaurants, shopping, entertainment, and travel; 
Transfer incoming calls to guests' rooms and take messages when they are out; 
Take reservations by telephone and greet guests when they arrive, check guests in, 
assign [tlheir rooms, and issue room keys; 
Responsible for computing guests' bills and posting charges to guests' accounts for their 
rooms, phone calls, and food; 
Prepare the bill at checkout, explain charges, and collect payment; 
Prepare daily availability and rate summaries for County Chamber of Commerce; and 
Respond to ''Prospect List" received weekly from the Clearwater Beach Chamber of 
Commerce and the Clearwater Chamber of Commerce. 
The petitioner stated that the beneficiary is responsible for reviewing the work of the front desk managers and 
"maintains final authority on major company decisions (including personnel hiringlfiring decisions, service 
policies, advertising and publicity strategies)." The petitioner indicated that it employs two housekeepers on a 
contract basis, who are responsible for maintaining the cleanliness of the guest rooms, changing sheets and 
towels, laundry, and cleaning pool decks, walkways and trash bins. The petitioner provided evidence of 
payments to its contracted staff, along with its Florida Form UCT-6 for the second quarter of 2005, which 
confirms the employment of both front desk managers, who earned salaries of $1,248 and $2,600 
respectively. 
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The director denied the petition on November 17, 2005, concluding that the petitioner had failed to establish 
that the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director observed that the petitioner had not demonstrated that the beneficiary has a sufficient 
support staff to relieve him from performing non-qualifying duties associated with the day-to-day operations 
of the business. The director further noted that the evidence submitted failed to establish that the beneficiary 
would supervise managerial or professional employees. 
On appeal, counsel for the petitioner asserts that the beneficiary is employed in a primarily managerial 
capacity and objects to the director's determination that the beneficiary is required to participate in the non- 
managerial day-to-day activities of the petitioner's resort. Counsel asserts that the beneficiary directs the 
management staff, sets the company's goals and policies, oversees and coordinates the activities of several 
contractors, monitors the company's financial health, and "plans strategically for the purchasing [ofJ 
additional properties." 
With respect to the petitioner's staffing levels, counsel emphasizes that the beneficiary made a strategic 
decision to downsize the resort's staff, noting that the two front desk managers, one of whom lives on-site, are 
able to resolve problems or emergencies 24 hours per day and run the day-to-day operations of the resort. 
Counsel asserts that the beneficiary's subordinates perform the duties of "hotel managers" and "front office 
managers" as described in the U.S. Department of Labor's Occupational Outlook Handbook. 
Counsel emphasizes that Citizenship and Immigration Services (CIS), in considering the petitioner's staffing 
levels, is required to consider the petitioner's use of independent contractors and must consider the reasonable 
needs of the organization in light of its overall purpose and stage of development. Counsel references 
hospitality industry publications in support of her assertion that the petitioner's staffing levels are well within 
industry standards. Counsel further cites unpublished AAO decisions to stand for the proposition that an 
employee who supervises a small staff, or even no staff, can be employed in a managerial or executive 
capacity. 
Counsel asserts that the beneficiary supervises both a function of the organization and a component within the 
organization, in that he is responsible for managing the company's real property acquisition activities, as well 
as the overall management of the petitioner's resort. Counsel emphasizes that these responsibilities represent 
the "essence of the U.S. entity." In addition, counsel asserts that the director failed to consider that the 
beneficiary's immediate subordinates are employed in a supervisory capacity, thus further supporting a 
finding that he himself is a manager pursuant to section 101(a)(44)(A)(ii) of the Act. 
Counsel also states that the beneficiary exercises discretion over personnel actions, and functions at a senior 
level within the petitioner's organizational hierarchy "by budgeting, financing, and marketing, engaging in 
strategic planning for the purchase of additional properties, and analyzing the operations to provide direction 
in enhancing profitability." 
Upon review, counsel's assertions are not persuasive. 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)(). 
 The petitioner's description of the job duties must clearly describe the duties to be 
SRC 05 171 51218 
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performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. 
While the petitioner has clarified that it seeks to employ the beneficiary in a managerial capacity, the evidence 
submitted is insufficient to establish that the beneficiary's actual duties are primarily managerial in nature. 
The petitioner and counsel have provided vague and non-specific job descriptions that fail to demonstrate 
what the beneficiary does on a day-to-day basis. For example, the petitioner initially stated that the 
beneficiary will "oversee the day-to-day operations," "be responsible for overseeing budget, finance and 
marketing," and develop "strategic marketing plans." The petitioner did not, however, articulate the specific 
managerial tasks associated with overseeing the company's day-to-day operations, or indicate whether the 
beneficiary performs all of the beneficiary's finance and marketing tasks, or directs subordinate staff to do so. 
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 has 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), up, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, the petitioner indicated that the beneficiary is responsible for liaising with "trades people, travel 
agents and local businesses in order to further develop and attract business to the resort." These duties suggest 
that the beneficiary himself is responsible for the company's marketing and promotional activities, which do 
not fall traditionally fall under the statutory definition of managerial capacity. 
As the petitioner's initial evidence was insufficient to establish the beneficiary's employment in a primarily 
managerial capacity, the director reasonably requested additional evidence in order to clarify how the 
beneficiary will not engage in the day-to-day operation of the business, but rather will perform primarily 
qualifying managerial duties. The petitioner's response to the director's request did not assist in identifying 
the beneficiary's actual duties, such that they could be classified as managerial in nature. The petitioner added 
that the beneficiary is responsible for setting "goals and policies," monitoring profitability margins, "strategy 
planning for the purchase of a second motel," coordinating the activities of service providers such as pool 
cleaning and pest control providers, analyzing the operations of the company, and providing "strategc 
direction." Again, these descriptions suggest that the beneficiary is responsible for the overall operations of 
the business, but fail to address what tasks he actually performs on a day-to-day basis. Specifics are clearly 
an important indication of whether a beneficiary's duties are primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afJ"d, 905 F.2d 41 (2d. Cir. 1990). The petitioner has not 
disclosed its "goals and policies" or its plans for purchasing a second motel, nor has it identified the specific 
managerial duties entailed by "providing strategic direction" or "analyzing the operations." While the final 
decision to purchase an additional motel would be considered a managerial or executive duty, the planning 
and research leading to such a decision would not necessarily require the beneficiary's services in a 
managerial capacity. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
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(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on them. This failure of documentation is important because some of the beneficiary's 
stated responsibilities, as discussed above, do not fall directly under traditional managerial duties as defined 
in the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily performing the 
duties of a manager. See, e.g. IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
Counsel contends on appeal that the beneficiary qualifies for an extension of his L-1A status in a managerial 
capacity based on his management of supervisory personnel, and based on his management of an "essential 
function." The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(i) and (ii). 
Personnel managers are required to primarily supervise and control the work of 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 professionals. Section 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F.R. 3 2 14.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 5 214.2(1)(1)(ii)(B)(3). 
Here, the petitioner claims that the beneficiary will oversee two supervisory personnel, both of whom hold the 
position of "front desk manager" for the petitioner's resort. Specifically the petitioner claims that these 
employees are responsible for supervising the work of the company's two contracted housekeeping personnel. 
However, the AAO notes that the petitioner originally identified the beneficiary's subordinates as "general 
manager'' and "front desk operative," and subsequently designated both employees as "front desk managers." 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591- 
92 (BIA 1988). 
Further, a review of the job descriptions for the front desk managers shows that they are primarily responsible 
for room reservations, guest inquiries and services, answering telephones, assisting customers with check-in 
and check-out and preparing daily reports. Based on the evidence presented, the record does not establish that 
the front desk managers are primarily serving the petitioner in a supervisory capacity over the hotel's 
housekeeping staff. Rather, their duties are more akin to those of a front desk clerk. Moreover, even if the 
petitioner's front desk staff are employed in a supervisory capacity, the record does not establish the 
proportion of time the beneficiary devotes to supervisory duties and the AAO cannot conclude that this is his 
primary responsibility. The petitioner indicates that the beneficiary is also responsible for budgeting and 
finance activities, marketing and promotion tasks, liaising with suppliers, scheduling the work of outside 
service providers, and performing planning associated with future acquisitions, duties which do not appear to 
involve supervision of the hotel's front desk staff. The petitioner has not established that the beneficiary 
qualifies as a manager pursuant to section 101 (a)(44)(A)(ii) of the Act on the basis of his supervisory duties. 
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Counsel correctly observes that a company's size alone, without talung into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 101 (a)(44)(C) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(C). However, it is appropriate for CIS to consider the 
size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, 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. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). Furthermore, the regulations provide strict 
evidentiary requirements for the extension of a "new office" petition and require CIS to examine the 
organizational structure and staffing levels of the petitioner. 
 See 8 C.F.R. 4 214.2(1)(14)(ii)(D). 
 The 
regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the "new office" operation 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. 
In this case, an analysis of the reasonable needs of the corporation in conjunction with its overall purpose and 
stage of development undermines the petitioner's claim that the beneficiary would be employed in a primarily 
managerial or executive capacity. While company size cannot be the sole basis for denying a petition, that 
element can nevertheless be considered, particularly in light of other such pertinent factors as the nature of the 
petitioner's business, which, together, can be used as indicators which help determine whether a beneficiary 
can remain focused on managerial or executive duties or whether that person is needed, in large part to assist 
in the company's day-to-day operations. 
The petitioner in the instant matter operates a small resort with fifteen rental units and also offers water sport 
rentals. At the time of filing the petitioner employed the beneficiary as president, two front desk managers, 
and two contracted housekeepers. A review of the petitioner's quarterly wage reports suggests that one, or 
possibly both, of the front desk managers are employed on a part-time basis. During the quarter in which the 
petition was filed, one front desk manager earned wages of only $1,248, or $96.00 per week, while the other 
employee earned $2,600, or an average of $200.00 per week. The record shows that the petitioner's 
housekeepers are paid an hourly wage of $1 1.00. Since the petitioner claims that the front desk employees 
supervise the housekeeping staff, it is reasonable to assume that they earn an hourly wage of at least $1 1.00. 
Therefore, based on the wages paid to the two fiont desk managers, neither of them was employed on a full- 
time basis as of the date the petition was filed, notwithstanding the petitioner's claim that the petitioner's 
employees were available to respond to guests needs 24 hours daily. 
Moreover, as acknowledged by the petitioner, the company did employ as many as six employees during the 
first year of operations, with its quarterly payroll reaching approximately $12,000 in the third quarter of 2004. 
Although the petitioner indicated that the beneficiary made the decision to "reassign" duties of the former 
employees to the two current front office staff, the petitioner has not persuasively explained how the 
petitioner reduced its monthly payroll by more than two-thirds, without assigning some non-managerial tasks 
to the beneficiary. The AAO acknowledges counsel's assertion that the decision to downsize the petitioner's 
staffing levels was an appropriate business decision designed to increase the company's profits. However, the 
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petitioner still has the burden to establish that someone other than the beneficiary is available to perform the 
day-to-day operational and administrative tasks of the petitioner's business. 
The petitioner reasonably requires staff to perform a number of routine operational duties associated with 
operating a resort, including handling guest reservations and inquiries, staffing the front desk during regular 
business hours and after-hours, to check guests in and out of rooms, to maintain the cleanliness of rooms and 
facilities, to order hotel and office supplies, to make arrangements with outside service providers, to perform 
bookkeeping duties, to market and promote the motel to potential customers, and to perform administrative 
and clerical duties associated with operating any business. Upon review, it does not appear that these non- 
managerial duties could be performed entirely by the petitioner's front desk staff, at least one of whom is 
employed on a part-time basis, and two contracted housekeepers. Rather, the evidence submitted shows that 
the beneficiary has subordinate staff to perform housekeeping tasks, and a portion of the resort's day-to-day 
front desk operations. Accordingly, it is reasonable to conclude, and has not been shown otherwise, that 
many of the non-managerial tasks associated with operating a resort on a day-to-day basis would necessarily 
be performed by the beneficiary. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that the 
beneficiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
sections 101(a)(44)(A) and (B) or the Act. An employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology Int 'I., 19 I&N Dec. 593, 
604 (Comm. 1988). 
On appeal, counsel asserts that the beneficiary manages the essential function of "real property acquisition" 
for the petitioning company. 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, 8 U.S.C. 5 
1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner claims 
that the beneficiary is managing an essential function, the petitioner must furnish a detailed position 
description that clearly describes the duties to be performed in managing the essential function, i.e. identifies 
the function with specificity, articulates the essential nature of the function, and establishes the proportion of 
the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 9 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" 
employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 
576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornrn. 
1988)). In this matter, the petitioner has not provided evidence that the beneficiary manages an essential 
function. Other than ambiguously referring to the beneficiary's responsibility for acquiring an additional hotel 
property, neither the petitioner nor counsel have clarified the beneficiary's day-to-day tasks associated with 
this responsibility, nor provided an explanation as to how much of his time is allocated to the claimed 
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"essential function." Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Beyond the required description of the job duties, CIS reviews the totality of the record when examining the 
claimed managerial or executive capacity of a beneficiary, including the petitioner'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 petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. The 
fact that the beneficiary owns and 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 section 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Counsel's 
assertion that the beneficiary works primarily through subordinate employees and does not perform non- 
managerial duties necessary to provide the services of the company is not supported in the record. 
Counsel refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. While 8 C.F.R. 9 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
The definitions 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). The test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties are related to operational or policy management, not to the 
supervision of non-professional employees or the performance of the duties of another type of non-managerial 
or non-executive position. While the beneficiary in this matter evidently exercises discretion over the 
petitioner's business as its president and shareholder, the petitioner has failed to show that his actual duties on 
a day-to-day basis will be primarily managerial in nature. Accordingly, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.