dismissed L-1A Case: Restaurant

PUBLIC 
identifying dsta deleted to 
vent d&y unwananted 
Euia ofpnso~ privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 06 1 15 5 1888 Office: TEXAS SERVICE CENTER Date: 1 5 2007 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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 originally decided your case. Any further inquiry must be made to that office. 
6 
~obert P. Wiernann, ehief 
Administrative Appeals Office 
SRC 06 115 51888 
Page 2 
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 employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 9 1101(a)(15)(L). The petitioner is a Texas corporati 
 eration of a 
restaurant. The petitioner states that it is an affiliate of 
 located in 
Caracas, Venezuela. The petitioner seeks to employ the beneficiary as its operations manager for a three-year 
period. The petitioner indicates that the beneficiary has been in the United States as a B-2 nonimmigrant 
visitor since September 19,2003, and therefore also seeks a change and extension of status on her behalf. 
The director denied the petition concluding that the petitioner did not establish: (1) that the beneficiary will be 
employed by the U.S. entity in a primarily managerial or executive capacity; or (2) that the beneficiary has 
been employed by the foreign entity in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the evidence 
previously submitted establishes that the beneficiary has been and would be employed in a managerial 
capacity. Counsel suggests that the director placed undue emphasis on the size of the foreign and U.S. entities 
without taking into consideration the overall purpose and stage of development of the companies. Counsel 
submits a brief and documentary 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. 
(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 
SRC 06 115 51888 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the United States entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 9 1 10 1 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner filed the nonimmigrant petition on February 28, 2006 and indicated on Form 1-129 that the 
beneficiary would serve as the operations manager of the U.S. company. The petitioner stated that it operates 
a restaurant with four employees. On Form 1-129, the petitioner described the beneficiary's proposed duties as 
follows: 
SRC 06 115 51888 
Page 4 
Plan, direct, or coordinate the operations of companies or public and private sector 
organization. Duties and responsibilities include formulating policies, managing daily 
operations, and planning the use of materials and human resources, but are too diverse and 
general in nature to be classified in any one functional area of management or administration, 
such as personnel, purchasing, or administrative services. 
The petitioner, in a letter dated February 25, 2006, also provided the following description of the beneficiary's 
proposed duties: 
As an Operations Manager, [the beneficiary] will be responsible for the company's overall 
management and expanding the Company's business in the United States. Her duties will 
include both, managing and directing the development of the company at the managerial 
level, and managing all professional and non professional employees in charge of the 
business progress. [The petitioner] is expected to provide services and to grow within the US 
market and reach an estimated sales value in excess of $1 Million between 2006 and 2009. 
Her duties shall also include planning and directing market strategy as per the Company's 
business plan; planning, directing and implementing the Company's business plan and 
profitability goals; managing and directing the Company's annual budget; authority to hire 
and fire all employees. Currently the Company has four employees in addition to [the 
beneficiary] who will serve as the Operations Manager. In general, [the beneficiary] will 
develop the Company's operations completely and have full discretionary authority over the 
day-to-day operations. 
The petitioner submitted an organizational chart for the U.S. company which depicts the beneficiary's 
proposed position, and shows that she will report to the company president, and supervise an accounting and 
administration employee, one driver, one cashier, and one cook. According to the evidence of record, the 
petitioner operates a 'restaurant, which appears to be a regional chain. The petitioner 
submitted advertisements and menus indicating that the restaurant is open for business at least ten hours daily, 
and offers dine-in, carry-out, delivery and catering options. 
On April 21, 2006, the director issued a request for additional evidence, advising that the job description 
submitted was too general and vague to establish that the beneficiary would be employed in a managerial or 
executive capacity. Accordingly the director requested that the petitioner: (1) clearly state the duties and 
responsibilities of the beneficiary's position within the context of the petitioner's business; (2) indicate the 
number of employees who will report to the beneficiary and include a brief description of their job duties and 
educational background; and (3) explain how the beneficiary will not engage in the day-to-day operations of 
the business, and how she will be primarily engaged in managerial or executive duties. The director also 
requested copies of the petitioner's quarterly wage reports for all employees from January 2005 to the present. 
In a response dated July 19, 2006, the petitioner submitted the following expanded description of the 
beneficiary's proposed duties as operations manager of the U.S. company: 
A. Administration and Business Managing: Direct and coordinate activities of business 
concerned with the production, pricing, sales, andlor distribution of products. Review 
SRC 06 115 51888 
Page 5 
financial statements, sales and activity reports, and other performance data to measure 
productivity and goals achievement and to determine areas needing cost reduction and 
program improvement. Determine goods and services to be sold, and set prices and credit 
terms, based on forecasts of customer demand. (40%) 
B. Supervising Em~loyees: Manage employees, preparing work schedules and assigning 
specific duties. Establish and implement departmental policies, goals, objectives and 
procedures, conferring with board members, organization officials, and staff members as 
necessary. (20%) 
C. General Supervision: Oversee activities directly related to making products or providing 
services. (20%) 
D. Training: Determine staffing requirements, and interview, hire and train new employees, 
or oversee those personnel processes (10%) 
E. Coordinate Marketing Strategies (10%) 
The petitioner stated that the beneficiary's direct subordinates will include: (1) a store manager, who 
supervises sales and day-to-day operations, manages drivers/cashiers/cooks, places orders with suppliers, and 
ensures quality of the petitioner's products; and (2) an accounting/administration employee, who is 
responsible for general accounting, tax records, tax payment, state and federal government relationships, and 
accounts payable. The petitioner also indicated that the U.S. company employs one cashier, one cook, and 
two drivers, and provided brief job descriptions for each employee. The petitioner also provided the dates of 
employment for each employee, and indicated that the store manager and two drivers were hired in July 2006, 
the accounting/administration employee was hired in March 2006, while the other employees were working 
for the petitioner at the time the petition was filed. 
The petitioner also submitted copies of partially completed, un-dated Forms 1-9, Employment Eligibility 
Verification, for most employees, not including the accounting employee; copies of educational credentials 
for the beneficiary's two direct subordinates; a July 15, 2006 pay stub for the petitioner's cashier, who worked 
18 hours over a two-week period; a July 15, 2006 pay stub for the cook, who worked approximately 15 hours 
over a two-week period; a June 15, 2006 pay stub for a driver, who worked roughly 11 hours in a two-week 
period; and a July 15, 2006 pay stub for the other dnver, who worked 40 hours in a two-week period. The 
petitioner did not include evidence of any payments to the store manager or to the accounting/administration 
employee. The petitioner provided copies of IRS Forms 941, Employer's Quarterly Federal Tax Return, for 
," the company which formerly operated the pizza restaurant purchased by 
the petitioner, for all four quarters of 2005. The petitioner did not include copies of any IRS Forms 941 filed 
by the beneficiary's proposed U.S. employer, Cortical Systems, Inc. 
The director denied the petition on October 4, 2006, concluding that the petitioner had failed to establish that 
the U.S. company would employ the beneficiary in a primarily managerial or executive capacity. The director 
suggested that the petitioner had merely asserted that the beneficiary will be employed as a manager, but had 
failed to submit evidence to corroborate those claims. 
Counsel for the petitioner filed the instant appeal on November 2,2006. On appeal, counsel reiterates the job 
description submitted in response to the request for evidence and re-submits the petitioner's organizational 
chart. Counsel emphasizes that the beneficiary will supervise six employees, including two professionals and 
the store manager. Citing Mars Jewelers, Inc. v. INS, 702 F. Supp. 1570 (N.D. Ga. 1988) and National Hand 
SRC 06 115 51888 
Page 6 
Tool Corp. v. Pasquarell, 889 F.2d. 1472, n.5 (5" Cir. 1989) in support of his assertion that the statute was 
not intended to limit managers or executives to persons who supervise a large number of persons or large 
enterprise. Counsel also cites an unpublished AAO decision to stand for the proposition that a person may be 
a manager or executive even if helshe is the sole employee of a company where the company utilizes outside 
independent contractors, or where the business is complex. 
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. 
3 214.2(1)(3)(). 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. 
The petitioner has submitted a vague and nonspecific job description that fails to convey any understanding of 
the beneficiary's duties within the context of the petitioner's business. The petitioner's initial description of 
the beneficiary's duties consisted entirely of ambiguous statements including the beneficiary's responsibility 
for "the Company's overall management and expansion," "managing and directing the development of the 
company at a managerial level," and "managing and directing the Company's annual budget." 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 her daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Accordingly, the director advised the petitioner that the submitted job description was too broad to establish 
the beneficiary's employment in a managerial or executive capacity and requested a clear statement of the 
beneficiary's duties and responsibilities. The petitioner's response did not assist in establishing the 
beneficiary's actual duties or her proposed employment in a qualifying capacity, as the description submitted 
was equally vague, and not entirely credible when considered in the context of the nature of the petitioner's 
business. The petitioner operates a pizza restaurant that is part of a franchise or chain with a standard menu, 
therefore raising doubts regarding the beneficiary's responsibility to "determine goods and services to be sold, 
set prices and credit terms," to "coordinate activities . . . concerned with production, pricing, sales andlor 
distribution," or to "establish departmental policies" for an organization with no defined departments. Given 
the disconnect between the stated duties and the type of business operated, the AAO is left to question the 
validity of the petitioner's claim and the remainder of the beneficiary's claimed duties. Doubt cast on any 
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
The petitioner's response to the director's request for evidence failed to clearly describe the beneficiary's role 
in managing or overseeing the day-to-day operations of the petitioner's restaurant. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 3 
103.2(b)(14). For this additional reason, the petition may not be approved. 
Although the beneficiary is not required to supervise personnel, if it is claimed that her managerial duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 3 101(a)(44)(A)(ii) of the Act. 
 On appeal, the petitioner claims that the 
beneficiary's direct subordinates, a store manager and an accounting/administration employee, are both 
SRC 06 115 51888 
Page 7 
professionals, while the store manager is also a managerial or supervisory employee. However, the record 
contains no evidence of wages paid to these employees, nor does the petitioner indicate that they were 
employed by the U.S. company as of February 2006, when the petition was filed. Rather, at the time the 
petition was filed, it appears that the beneficiary would have supervised, at most, a part-time cashier, a part- 
time driver, and a part-time cook, none of whom are claimed to be employed as professionals, managers or 
supervisors. Thus, the petitioner has not shown that the beneficiary's subordinate employees are supervisory, 
professional, or managerial, as required by section 101(a)(44)(A)(ii) of the Act. The petitioner must establish 
eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future 
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
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 
evidence must substantiate that the duties of the beneficiary and his or her subordinates correspond to their 
placement in an organization's structural hierarchy; artificial tiers of subordinate employees and inflated job 
titles are not probative and will not establish that an organization is sufficiently complex to support an 
executive or manager position. An individual whose primary duties are those of a first-line supervisor will 
not be considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties 
unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. 
At the time of filing, the petitioner indicated that the beneficiary would be supervising one cashier, one driver, 
one cook, and an accounting and administration employee, with no intervening level of supervisory 
personnel. The record contains no documentary evidence to substantiate the petitioner's claims that these 
employees were working for the petitioner when the petition was filed, as the petitioner did not provide the 
requested quarterly wage reports or any other payroll records for February 2006. Again, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofici, 22 I&N Dec. at 165. Even if the AAO accepts the petitioner's assertion 
that these employees were working for the petitioner at the time the petition was filed, as noted above, the 
evidence does not support the conclusion that the beneficiary would be employed in a supervisory position 
that is higher than a first-line supervisor of non-professional employees. Pursuant to section 
10 1 (a)(44)(A)(iv) of the Act, the beneficiary's position does not qualify as primarily managerial under the 
statutory definitions. 
The AAO acknowledges the petitioner's claim that the company hired a store manager, a cook, and two new 
drivers subsequent to the filing of the petition. The minimal evidence submitted indicates that the cashier, 
cook and drivers were employed on a part-time basis in June and July 2006, working between 6 and 20 hours 
per week. The record is devoid of evidence of any wages paid to the claimed store manager. Regardless, the 
petitioner must establish eligibility at the time of filing the nonimrnigrant visa petition, and the purpose of the 
request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has 
been established, as of the time the petition is filed. See 8 C.F.R. $9 103.2(b)(8) and (12). As previously 
discussed, a visa petition may not be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
SRC 06 115 51888 
Page 8 
Finally, even if the petitioner employed every employee depicted on its most recent organizational chart, the 
record does not support a conclusion that a store manager, a part-time cook, a part-time cashier and two part- 
time drivers could reasonably relieve the beneficiary from performing non-qualifying duties associated with 
operating a restaurant that, according to an advertisement submitted, is open daily for a total of 78 hours per 
week. 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. $ 1101(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. 2001). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
Based on the petitioner's description of its business, it is reasonable to assume that it requires at least one 
cook, one driver, one cashier, and one store manager or supervisor working in the restaurant during its 
operating hours in order to handle the basic functions of preparing, selling and delivering food to customers. 
At the time of filing, the petitioner employed, at most, a president whose involvement in the business has not 
been described, as well as a cashier, a cook and driver who appear to have been employed on a part-time 
basis. Accordingly, it is evident that given the proposed staffing levels, the beneficiary and her subordinates 
would all be required to participate in the routine day-to-day activities of operating the restaurant in order for 
it to remain open during operating hours. Further, given the minimal staffing levels and the nature of the 
business, it is reasonable to assume, and has not been shown to be otherwise, that these would be the 
beneficiary's primary duties. 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 (Cornrn. 1988). 
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or medium 
size businesses. However, the AAO has also long required the petitioner to establish that the beneficiary's 
position consists of primarily managerial and executive duties and that the petitioner has sufficient personnel 
to relieve the beneficiary fi-om performing operational and administrative tasks. Moreover, to establish that 
the reasonable needs of the organization justify the beneficiary's job duties, the petitioner must specifically 
articulate why those needs are reasonable in light of its overall purpose and stage of development. In the 
present matter, the petitioner has not established the basic eligibility requirement in this matter, that the 
beneficiary would be primarily performing managerial or executive duties. 
Counsel cites National Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, n.2 (5th Cir. 1989), and Mars Jewelers, 
Inc. v. INS, 702 F.Supp. 1570, 1573 (N.D. Ga. 1988), to stand for the proposition that the small size of a 
petitioner will not, by itself, undermine a finding that a beneficiary will act in a primarily managerial or 
executive capacity. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in National Hand Tool Corp. v. Pasquarell or Mars Jewelers, Inc. v. INS. It is noted that 
both of the cases cited by counsel relate to immigrant visa petitions, and not the extension of a "new office" 
nonimmigrant visa. As the new office extension regulations call for a review of the petitioner's business 
SRC 06 115 51888 
Page 9 
activities and staffing after one year, the cases cited by counsel are distinguishable based on the applicable 
regulations. See 8 C.F.R. 5 214.2(1)(14)(ii). Additionally, in contrast to the broad precedential authority of 
the case law of a United States circuit court, the AAO is not bound to follow the published decision of a 
United States district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 
(BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration 
when it is properly before the AAO, the analysis does not have to be followed as a matter of law. Id. at 719. 
As counsel has not discussed the facts of any of the cited matters, they will not be considered in this 
proceeding. 
Counsel further 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. 5 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
As noted above, the petitioner's description of the beneficiary's duties cannot be read or considered in the 
abstract, rather the AAO must determine based on a totality of the record whether the description of the 
beneficiary's duties represents a credible perspective of the beneficiary's role within the organizational 
hierarchy. The record does not demonstrate that the petitioner has a sufficient number of employees in the 
United States employed full-time who could provide the day-to-day services required to operate a restaurant. 
The lack of subordinate staff, considered with the beneficiary's overly general position description, support a 
conclusion that the beneficiary would not be employed in a primarily managerial or executive capacity, other 
than in position title. Accordingly, the appeal will be dismissed. 
The second issue addressed by the director is whether the beneficiary was employed by the foreign entity in a 
primarily managerial or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3)(iv). 
The petitioner indicated on Form 1-129 that the beneficiary has been employed as events manager for the 
foreign entity since January 2000, with no interruptions in employment. The petitioner stated in its letter 
dated February 25, 2006 that the beneficiary's current duties as event manager for the foreign entity include 
the following: 
Determine the demand for products and services offered by a firm and its competitors and 
identify potential customers. Develop pricing strategies with the goal of maximizing the 
firm's profits or share of the market while ensuring the firm's customers are satisfied. Oversee 
product development or monitor trends that indicate the need for new products and services. 
Her duties include managing and directing a team of 6+ employees, including professional 
employees with full authority to hire and fire such employees, managed and directed annual 
budgets, managing and directing negotiation of all contractual matters. In general, [the 
beneficiary] had developed [the foreign entity's] operations and has had full discretionary 
authority over such day-to-day operations. 
The petitioner submitted an organizational chart for the foreign entity, which indicates that the beneficiary 
holds the position of events manager ("gerente eventos"), reports to the executive vice president, and does not 
SRC 06 115 51888 
Page 10 
supervise any subordinate employees. The chart shows that the foreign entity employs a total of eight 
employees. The petitioner also submitted what appear to be year-end payroll records for the foreign entity, for 
the years 2000 through 2005, on which the beneficiary is identified as event manager, as well as the 
beneficiary's monthly pay receipts for January and December of the years 2000 through 2005. 
The petitioner stated that the foreign entity is engaged in "import, export, purchase, sales, distribution, 
represent [sic] and consign [sic] any type of legal products and services." The petitioner also submitted a 
business overview of the foreign entity, summarizing the company's history, management and activities. The 
AAO notes that the beneficiary is not identified as a member of the foreign entity's management team in this 
document. 
In the request for evidence issued on April 21, 2006, the director requested that the petitioner submit a 
definitive statement describing the foreign employment of the beneficiary, including her position title, a list of 
all duties, the percentage of time spent on each duty, and the number of subordinate managers, supervisors or 
other employees who report directly to her, with a brief description of their job duties. 
In response, the petitioner stated that the beneficiary is employed by the foreign entity as its "commercial 
manager" and indicated that the beneficiary performs the following duties: 
Administration and Business Managing: Direct and coordinate activities to determine 
the demand for products and services offered by a firm and its competitors and identify 
potential customers. Develop pricing strategies with the goal of maximizing the firm's 
profits or share of the market while ensuring the firm's customers are satisfied. Oversee 
product development or monitor trends that indicate the need for new products and 
services. (20%) 
Supervising Employees: Establish and implement departmental policies, goals, 
objectives, and procedure, conferring with board members, organization officials, and 
staff members as necessary. (20%) 
General Supervision: Oversee activities directly related to making products or 
providing services. (20%) 
Training: Determine staffing requirements, and interview, hire and train new 
employees, or oversee those personnel processes. 
Coordinate Marketing Strategies (30%) 
The petitioner stated that the beneficiary supervises two branch managers, but did not provide job descriptions 
for these employees as requested by the director. The petitioner re-submitted the fc 
organizational chart, which indicates that the branch managers report to 
director of the foreign entity, rather than to the beneficiary. 
xeim entity's 
Finally, the petitioner submitted copies of the beneficiary's monthly pay stubs issued by the foreign entity 
dating from January 2005 through June 2006. 
The director denied the petition on October 4, 2006, concluding that the petitioner failed to establish that the 
beneficiary was employed in a primarily managerial or executive capacity. The director noted that 
notwithstanding the petitioner's claim that the beneficiary supervises two employees, the foreign company's 
SRC 06 115 51888 
Page 11 
organizational chart shows that she has no subordinates, and indicates that her claimed subordinates report to 
a different individual. The director found the description of the beneficiary's duties abroad insufficient to 
demonstrate that she is employed in a managerial or executive capacity with the foreign entity. 
On appeal, counsel for the petitioner re-iterates the beneficiary's job duties and asserts that her position as 
"Commercial/Event Manager" was at a managerial level within the foreign organization. The petitioner 
asserts that the beneficiary supervised two professional employees who manage subdivisions of the foreign 
company. Counsel further states: "Although there was no line drawn on the organizational chart to illustrate 
such subordination, it was mentioned on the definite [sic] statement and detailed desct-i tion of the foreign 
employment submitted with the WE response, that Mr. 
subordinated to the beneficiary." The petitioner submits a re 
Mr.-were 
a1 chart t at is 1 entica to that 
previously submitted, but now includes a hand-drawn line indicating that the beneficiary supervises the two 
branch managers. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that foreign entity 
employed the beneficiary in a primarily managerial or executive capacity. When examining the executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the job duties. 
See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to 
be performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. 
The petitioner has not adequately described the beneficiary's role as "events manager" for the foreign entity, 
nor clearly explained the business activities of the foreign company, which appears to be engaged in logistics 
and transportation services. In response to the director's request for evidence, the petitioner changed the 
beneficiary's job title from "events manager" to "commercial manager" without providing any explanation for 
the change. The purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). When responding to a request 
for evidence, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or its associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg. Comm. 1978). 
Further, the petitioner submitted a vague, generalized job description that essentially mirrors the insufficient 
job description provided for her proposed employment in the U.S., which, as discussed above, has been found 
to be insufficient to establish the beneficiary's employment in a primarily managerial or executive capacity. 
For example, the petitioner described the beneficiary's duties as: "establishes and implements departmental 
policies, goals, objectives, and procedures"; "oversee activities directly related to making products or 
providing services"; "coordinating marketing strategies"; "direct and coordinate activities of business to 
determine the demand for products and services offered by a firm and its competitors"; and "oversee product 
development." However, the director specifically requested a detailed description of the beneficiary's day-to- 
day duties. The fact that the petitioner submitted essentially the same job description for an "events manager" 
position within an international logistics company and an "operations manager" position within a restaurant 
raises questions as to the credibility of the listed job duties. Regardless, 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 
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of the beneficiary's activities in the course of her daily routine. 
 The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1 108. 
Without a detailed position description, the director reasonably looked to the foreign entity's staffing levels to 
determine whether the record as a whole supports the petitioner's assertion that the beneficiary has been 
employed by the foreign entity in a managerial or executive capacity. As noted by the director, the petitioner 
stated that the beneficiary supervises two branch managers, but did not provide a job description for these 
positions as requested by the director, and there is thus no evidence to support the petitioner's assertion that 
they are professional employees and managers of subdivisions. Any failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
Furthermore, the petitioner twice submitted an organizational chart for the foreign entity that clearly indicates 
that both branch managers report to the director general of the foreign entity, not to the beneficiary. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). On appeal, the petitioner submits a revised organizational chart with a hand-drawn line between the 
beneficiary's position and the branch managers' positions, although the chart still indicates that these 
employees report to the director general. The revised organizational chart submitted on appeal cannot be 
considered independent and objective evidence. Necessarily, independent and objective evidence would be 
evidence that is contemporaneous with the event to be proven and existent at the time of the director's notice. 
The petitioner has not persuasively established that the beneficiary supervised any subordinate employees 
while employed by the foreign entity. 
Nor does the record establish that the beneficiary was employed as a function manager with the foreign entity. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 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 
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. 5 214.2(1)(3)(ii). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related to the function. 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 (Comm. 1988)). In this matter, the petitioner has not 
provided evidence that the beneficiary manages an essential function. 
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. In the 
case of a function manager, where no subordinates are directly supervised, these other factors may include the 
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beneficiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the beneficiary's authority and its impact on the petitioner's operations, the indirect supervision 
of employees within the scope of the function managed, and the value of the budgets, products, or services 
that the beneficiary manages. As discussed above, the petitioner has neither described the beneficiary's 
duties, or the nature of the foreign entity's business, in sufficient detail to establish that she is primarily 
engaged in the management of an essential function with the foreign entity, nor has the petitioner identified a 
specific function managed by the beneficiary. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N 
Dec. at 165. 
Based on the foregoing discussion, the petitioner has failed to establish that the beneficiary was employed by 
the foreign entity in a primarily managerial or executive capacity. For this additional reason, the appeal will 
be dismissed. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been 
employed by the foreign entity on a full time basis for one continuous year within the three years preceding 
the filing of the petition, as required by 8 C.F.R. $ 214.2(1)(3)(iii). 
The petition was filed on February 28, 2006. The petitioner indicated on Form 1-129 that the beneficiary has 
been employed as events manager for the foreign entity since January 2000, with no interruptions in 
employment. However, the petitioner indicates that the beneficiary was last admitted to the United States on 
September 19, 2003, more than 29 months prior to the filing of the petition. USCIS records confirm that the 
beneficiary had applied for and received five extensions of her B-2 nonimmigrant status since her last 
admission to the United States. 
The regulation at 8 C.F.R. $ 2 14.2(1)(l)(ii)(A) defines "intracompany transferee" as: 
An alien who, within three years preceding the time of his or her application for admission 
into the United States, has been employed abroad continuously for one year by a firm or 
corporation or other legal entity or parent, branch, affiliate or subsidiary thereof, and who 
seeks to enter the United States temporarily in order to render his or her services to a branch 
of the same employer or a parent, affiliate, or subsidiary thereof in a capacity that is 
managerial, executive or involves specialized knowledge. Periods spent in the United States 
in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof 
and brief trips to the United States for business or pleasure shall not be interruptive of the 
one year of continuous employment abroad but such periods shall not be counted toward 
fulJillment of that requirement. 
Emphasis added. 
While the petitioner has submitted pay stubs which ostensibly indicate that the foreign entity has continued to 
pay the beneficiary's salary up to the present time, any payments she received from the foreign entity while 
residing in the United States as a visitor over a period of two and one half years cannot be considered 
qualifying full-time employment with the foreign entity. Further, a 29-month stay in the United States goes 
beyond what could be deemed a "brief visit to the United States for business or pleasure." The AAO 
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therefore finds that the beneficiary's period of stay in the United States since September 2003 has in fact 
interrupted her employment with the foreign entity, such that she cannot be considered to have one year of 
qualifying employment within the required three-year time frame. For this additional reason, the petition 
cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.