dismissed L-1A Case: Retail

MATTER OF A-R-T-US LLC 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 22,2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a retailer of health, wellness, and lifestyle products, seeks to temporarily employ the 
Beneficiary as chief executive officer of its new office under the L-1A nonimmigrant classification 
for intracompany transferees. See Immigration and Nationality Act (the Act) section 10l(a)(l5)(L), 
8 U.S.C. § 1101(a)(l5)(L). The L-lA classification allows a corporation or other legal entity 
(including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to 
work temporarily in a managerial or executive capacity. 
The Director, Vermont Service Center, denied the petition. The Director concluded that the 
Petitioner did not submit sufficient evidence to support the claim that it would have the ability to 
employ the Beneficiary in the United States in an executive capacity within one year of approval of 
the petition. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Director did not properly assess the supporting documents, which the Petitioner 
claims substantiate that the Beneficiary "will be able to perform essential functions" and "direct and 
oversee all management ofthe company." 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. /d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, shall be accompanied by: 
Matter of A-R-T-US LLC 
(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) ofthis section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that the 
alien's prior education, training, and employment qualifies him/her to perform 
the intended services in the United States;" however, the work in the United 
States need not be the same work which the alien performed abroad. 
In addition, the regulation at 8 C.F.R. § 214.2(1)(3)(v) states that if the petition indicates that the 
beneficiary is coming to the United States as a manager or executive to open or to be employed in a 
new office, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(8) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment involved executive or managerial 
authority over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability ofthe 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure ofthe foreign entity. 
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Matter of A-R-T-US LLC 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The primary issue to be addressed in this decision is whether the Petitioner· submitted sufficient 
probative evidence to establish that it would support the Beneficiary in a managerial or executive 
capacity within one year of the approval of the petition. The Petitioner originally claimed that the 
Beneficiary will be employed in an executive capacity. On appeal, the Petitioner altered its claim to 
ir~dude managerial capacity. Therefore, our analysis will assess whether the Beneficiary will be 
employed in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. 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 
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Matter of A-R-T-US LLC 
(iv) receives only general supervision or direction from higher-level executives, 
the board of directors, or stockholders of the organization. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) of the Act. 
The Petitioner filed the Form 1-129 on March 28, 2016. In support of the petition, the Petitioner 
provided a cover letter that the Beneficiary signed in his capacity as the Petitioner's CEO. The 
Beneficiary stated that he would be employed in an executive capacity, which would involve 
planning, developing, and establishing policies, reviewing activity and financial reports, assessing 
performances of "executive and managerial personnel," developing goals and objectives, overseeing 
operational costs, looking into new markets and gauge the needs of potential customers, and carrying 
out "any other functions required to foster and promote business operations." 
The Petitioner also submitted a business plan, which includes a proposed organizational chart, 
financial projections, and personnel forecasts. The organizational chart depicts the Beneficiary at 
the top of the hierarchy, supported by an assistant/data entry employee, technicians, and a sales 
manager at the second tier of the hierarchy, and sales positions at the bottom tier. Based on the total 
funds allocated to each position, as provided on page 25 of the business plan, the Petitioner's 
$250,000 in first-year payroll expenses would include six sales people, each earning $20,000 
annually. Apportioned monthly over the course of 12 months, the sales payroll expense would be 
approximately $1667 per sales person. However, the Petitioner's monthly personnel forecast on 
page 31 of the business plan shows that the monthly expense for six sales people would vary, 
starting with $1409 during the first month of operation increasing monthly over the course of 12 
months. The Petitioner did not explain why the monthly payroll expense for sales people is expected 
to vary, given that the personnel forecast projects six sales people during each of the 12 months of 
the first operating year. 
The business plan also includes revenue projections indicating that the Petitioner would generate 
revenues totaling $600,000 and would make a total of 3,000 sales presentations during its first year 
of operation. However, the Petitioner did not provide a basis for these predictions. The Petitioner 
also did not clarify the significance of the number "4" in the row representing "Presentations/Sales" 
for each of the first five years of operation. If the Petitioner projected that 3,000 sales presentations 
would be made, it is unclear why only four of those presentations would result in sales or how the 
information in the "Presentations/Sales" row is distinguished from the row titled "Product Sales 
(Average)," which shows a consistent increase from 750 units during the first year of operation to 
1 ,800 units in its fifth year. 
The Petitioner also provided IRS Form W-2s it issued to nine people in 2015, showing wages 
ranging from $52.82 to $4,400. The Petitioner did not provide additional information disclosing 
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Matter of A-R-T-US LLC 
what positions these individuals held, what duties they performed, or their respective dates of 
employment. 
The Director issued a request for evidence (RFE), informing the Petitioner that the record lacked 
sufficient evidence to establish that the Petitioner would have the ability to support the Beneficiary 
in a managerial or executive capacity within one year of the petition's approval. The Director stated 
that the Petitioner did not demonstrate that it would employ a staff capable of relieving the 
Beneficiary from having to perform primarily nonmanagerial or nonexecutive job duties. 
In response, the Petitioner stated that the Beneficiary operates in an executive capacity and is subject 
to limited direction from his business partner. In a separate letter, the Petitioner stated that the 
Beneficiary will direct the management of the organization, exercise decision-making authority, and 
"perform essential functions ... while leading the growth and development of the [Petitioner]." The 
Petitioner also provided the following list of the Beneficiary's proposed job duties: 
• Overseeing the development of the U.S. office; 
• Controlling the company's budget and capital allocation expenses; 
• Approving the hiring and firing of company employees; 
• As the US team begins to scale up, it will be the primary responsibility of the CEO to 
build the best team possible, and to create an environment and culture where the 
company can be successful. On the recruiting side this includes building a pipeline of 
prospective candidates, interviewing candidates, and then successfully closing them. 
On the team building side, this would include ... 1:1 feedback to [the] company's 
employees. 
• Directing the company's operations and strategy by hiring the right people and 
creating a marketing plan which will include targeting new markets and customer 
base; 
• Setting and communicating company goals and objectives to employees ... ; 
• Developing sales training programs for sales team with the assistance of the Sales 
Manager; 
• Attend important customer meetings, investor management (both updating existing 
investors and meeting new ones), and speaking opportunities at industry networking 
events. As customer traction picks up, [the Beneficiary] will spend more time with 
potential strategic customers. 
• Manage and supervise the work of subordinate management once they are recruited; 
• Overseeing sales of company's products to new and existing clients as performed by 
salespeople; 
• Negotiating new contracts with distributors and customers; 
• Overseeing customer satisfaction; 
• Reviewing reports from the sales manager/customer service manager/marketing 
manager/ office manager; and 
• Supervising Sales Team meetings to review orders for new and existing customers. 
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Matter of A-R-T-US LLC 
• Assure product quality and organizational stability through development and 
implementation of standards and controls, systems and procedures, and regular 
evaluation. 
• Promote programs and services that are produced in .a cost-effective manner, 
employing economy while maintaining an acceptable level of quality. 
• Oversee the fiscal activities of the organization including budgeting, reporting and 
audit. 
The Petitioner did not specify what tasks would be involved in overseeing its company development, 
product sales, customer satisfaction, and fiscal activities; nor did the Petitioner specify any 
standards, controls, or procedures to establish how the Beneficiary would ensure quality control. 
The Petitioner also did not establish that attending customer meetings or negotiating contracts with 
distributors and clients are tasks that fall within the definition of managerial or executive capacity. 
In addition, the Petitioner provided an organizational chart depicting a significantly different staffing 
structure than the one provided in the original chart, which was included in the Petitioner's business 
plan. Specifically, while both charts similarly show the Beneficiary at the top of the hierarchy, the 
second chart submitted with the RFE response, which was dated one month after filing, lists six new 
positions - a marketing manager, an office manager, a marketing/public relations specialist, a 
customer service manager, an accounting manager, and a customer service agent - none of which 
were previously included in the Petitioner's originally submitted organizational chart. The new chart 
also shows four fewer sales people as compared to the original chart. 
The Petitioner did not clarify or reconcile the significant differences between the two charts or 
discuss how the changed organizational hierarchy would affect the Petitioner's projected payroll 
expenses, its revenues, or its sales, which may foreseeably decrease given the diminished number of 
sales people as reflected in the new chart. The Petitioner also did not address the originally 
submitted Form W-2s or explain their relevance in terms of the organizational hierarchies that were 
depicted in the two charts discussed above, particularly given that the Petitioner claimed only one 
employee when filing the instant petition. 
The Director ultimately denied the petition, concluding that the Petitioner's submissions were not 
sufficient to establish that the Petitioner would support the Beneficiary in an executive capacity, as 
the Petitioner originally claimed. 
On appeal, the Petitioner alters the original claim, which focused on the Beneficiary's prospective 
employment in an executive capacity, to include portions of the definition of managerial capacity. 
Namely, the Petitioner now contends that the Beneficiary's job duties will be "related to the 
management of the sales and marketing function" and further states that the Beneficiary's 
responsibilities will include supervising and controlling the work of professional subordinates and 
hiring and firing his subordinates. See section 101(a)(44)(A)(ii) ofthe Act. 
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Matter of A-R-T-US LLC 
When exammmg the managerial capacity of the Beneficiary, we 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 performed by the Beneficiary and indicate whether such 
duties are in a managerial capacity. !d. 
I 
The definition of managerial capacity has two parts. First, the Petitioner must show that the 
Beneficiary performs and will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary is and will be primarily engaged in managerial duties, as opposed to ordinary 
operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 
F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In addition, it is important to note that when a new business is established and commences 
operations, the regulations recognize that a designated manager responsible for or assisting with the 
set-up of operations will be engaged in a variety of activities not normally performed by employees 
at the managerial level and that often the full range of managerial responsibility cannot be 
performed. In order to qualify for L-1 nonimmigrant classification during the first year of 
operations, the regulations require the petitioner to disclose the business plans and the size of the 
United States investment, and thereby establish that the proposed enterprise will support a 
managerial position within one year of the approval ofthe petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). 
This evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly 
expand as it moves away from the developmental stage to full operations, where there would be an 
actual need for a manager who will primarily perform qualifying duties. 
In the instant matter, we considered both the job duties and the financial and personnel projections as 
put forth in the Petitioner's business plan and its subsequently submitted supporting documents. 
After having conducted our review of the petition and the evidence of record, including materials 
submitted in support of the appeal, we conclude that the Petitioner has not established that the 
Beneficiary will be employed in the United States in a managerial or an executive capacity within 
one year of approval of the petition. 
As discussed above, the Petitioner's various descriptions ofthe Beneficiary's proposed job duties are 
deficient in their overall lack of specific job duties and their failure to establish that the Beneficiary 
would eventually allocate his time primarily to the performance of tasks of a managerial or executive 
nature. 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, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F .2d 41 (2d. Cir. 1990). While we acknowledge that the Beneficiary is not expected to 
perform primarily in a managerial or executive capacity during the Petitioner's first year of 
operation, it is nevertheless critical to discuss the Beneficiary's actual role and specify the job duties 
he would perform during that first year as this information helps us to understand how the 
Beneficiary would ensure that the Petitioner progresses beyond the new office stage of operation. 
Here, while the Petitioner provides various general statements, which address the role that the 
Matter of A-R-T-US LLC 
Beneficiary would eventually assume once the Petitioner moves to its next operational phase, it is 
unclear how, i.e., what specific tasks the Beneficiary would carry out, to ensure that the Petitioner 
will progress to that next phase of operation. 
We also considered the Petitioner's projected organizational hierarchy, which is similarly 
instrumental in explaining how the Petitioner's staff would work together to relieve the Beneficiary 
from having to allocate his time primarily to operational and/or administrative tasks after its first 
year of operation. As discussed above, the inconsistent information that the Petitioner provided with 
regard to its organizational hierarchy and staffing composition significantly hinders our ability to 
assess the Petitioner's capability in supporting the Beneficiary in a managerial or executive capacity 
by relieving him from having to primarily carry out nonmanagerial or nonexecutive job duties. We 
note that the original organizational chart indicates that the Beneficiary would directly oversee an 
assistant/data entry employee, a sales manager, and technicians, whereas the chart the Petitioner 
submitted in response to the RFE indicates that the Beneficiary's direct subordinates would now 
include several new positions, such as a marketing manager and an office manager. Further, the 
sales manager, which was depicted in both organizational charts, would now occupy a position in the 
third tier of the organizational hierarchy, thus indicating that the Beneficiary would not directly 
oversee the sales manager as originally claimed. The Petitioner has not resolved these 
inconsistencies with independent, objective evidence pointing to where the truth lies. See, Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). As noted previously, the Petitioner also has not 
addressed how a diminished sales staff, as depicted in the second organizational chart, would allow 
the Petitioner to meet the gross income projections that were put forth in the business plan, whose 
personnel projections were entirely inconsistent with that chart; nor did the Petitioner provide any 
information as to the payroll expenses associated with the second organizational chart, as the 
projections in the Petitioner's business plan were based on an entirely different staffing composition. 
If USCIS finds reason to believe that an assertion stated in the petition is not true, USC IS may reject 
that assertion. See, e.g., Section 204(b) of the Act, 8 U.S.C. § 1154(b); An~tekhai v. INS, 876 F.2d 
1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Lastly, the Petitioner did not explain why it changed its original claim, which focused on the 
Beneficiary's role in an executive capacity, to include managerial capacity, incorporating elements 
of a personnel manager and function manager into its new claim. While the Petitioner is not 
precluded from establishing that the Beneficiary meets all four elements of both managerial and 
executive capacity, we note that the Petitioner cannot meet the statutory requirements by picking and 
choosing portions of each without meeting all four elements of either definition. Here, the Petitioner 
has not established that the Beneficiary will meet either the definition of managerial capacity or the 
definition of executive capacity within one year of approval of the petition. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
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Matter of A-R-T-US LLC 
management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of managerial employees for a beneficiary to direct 
and a beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the 
statute simply because they have an executive title or because they "direct" the enterprise as the 
owner or sole managerial employee. A beneficiary must also exercise "wide latitude in discretionary 
decision making" and receive only "general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization." !d. 
In the present matter, the Petitioner provided inconsistent information regarding its organizational 
structure, thereby precluding a meaningful understanding of who the Beneficiary's projected 
subordinates would be and whether the Petitioner would have the staffing capacity to elevate the 
Beneficiary to an executive level. While no beneficiary is required to allocate 100% of his time to 
executive-level tasks, each petitioner must establish that the non-qualifying tasks its beneficiary 
would perform at the end of the new office period are only incidental to the proposed position. 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 also, 
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm'r 1988). 
Despite the Petitioner's claim that the Beneficiary would direct the management of the organization 
and enjoy a high level of discretionary authority over the Petitioner's business activities, these 
factors alone are not sufficient to establish that the Petitioner would ultimately have the ability to 
relieve the Beneficiary from having to primarily perform nonexecutive tasks. 
The evidence of record is similarly insufficient to establish that the Beneficiary would be employed 
in a managerial capacity in the role of a personnel or a function manager. First, the Petitioner 
conflates the distinct objectives of a personnel manager, whose primary focus is primarily to 
supervise and control the work of other supervisory, professional, or managerial employees, with 
those of a function manager, which is a term that applies generally when a beneficiary does not 
primarily 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) ofthe Act. 
In light of the inconsistent organizational charts the Petitioner submitted, we are unable to determine 
whether the Beneficiary would assume the role of a personnel or a function manager. Merely 
claiming that the Beneficiary would oversee the work of professional employees is not sufficient to 
establish that the Beneficiary would be a personnel manager, particularly when the Petitioner offered 
inconsistent organizational charts to show specifically whom the Beneficiary would manage. See 
section 10l(a)(44)(A)(iv) of the Act. A petitioner's unsupported statements are of very limited 
weight and normally will be insufficient to carry its burden of proof. See Matter of Sojjici, 22 I&N 
Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)); see also Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). The Petitioner 
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Matter of A-R-T-US LLC 
must support its assertions with relevant, probative, and credible evidence. See Matter ofChawathe, 
25 I&N Dec. at 376. While the Petitioner provided nine Form W-2s for 2015, it did not explain their 
relevance or indicate whether it currently employs or plans to employ any of the individuals to 
whom the W -2s were issued. Further, given the two distinct staffing structures that the Petitioner 
depicted as a result of having submitted two inconsistent organizational charts, the credibility of the 
offered evidence is suspect. Doubt cast on any aspect of the Petitioner's proof may 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. at 591. · 
The Petitioner's function manager claim is equally questionable in light of the inconsistencies 
discussed above and the lack of sufficient information as to the specific function the Beneficiary 
would manage. As indicated above, the term "function manager" applies generally when a 
beneficiary does not primarily supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101 (a)( 44 )(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If 
a petitioner claims that the beneficiary will manage an essential function, a petitioner must furnish a 
written job offer that clearly describes the duties to be performed in managing the essential function, 
i.e., identify the function with specificity, articulate the essential nature of the function, and establish 
the proportion of a beneficiary's daily duties attributed to managing the essential function. See 
8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of a beneficiary's daily duties 
must demonstrate that the beneficiary will manage the function rather than performs the duties 
related to the function. 
In this matter, the Petitioner claims that the Beneficiary's job duties will be "related to the 
management of the sales and marketing function." However, the job description the Petitioner 
offered in its RFE response does not support this claim, which the Petitioner first made on appeal. 
Rather, the job description indicates that the Beneficiary would focus not only on the Petitioner's 
sales and marketing, but that he would also be involved in various aspects of human resources, such 
as hiring and firing employees and helping to create sales training programs, as well as operational 
and administrative functions, such as contract negotiation, budget allocation and financial concerns, 
and customer satisfaction. The management of an organization's essential function necessarily 
limits a beneficiary's involvement to managing tasks that are specifically associated with that 
function; this concept is inconsistent with the role of the Beneficiary in the present matter, who, 
based on the Petitioner's earlier claims, would be involved in all aspects of the Petitioner's operation 
and as such would not have the limited role of managing a specific component or function within the 
petitioning organization. Moreover, the Petitioner must establish that the Beneficiary would manage 
the function and not perform the underlying duties related to that function. Given that the Petitioner 
did not provide consistent evidence demonstrating that it would have a staffing hierarchy capable of 
relieving the Beneficiary from having to primarily perform key operational tasks of the organization 
after its first year of operation, the Petitioner has not established that the Beneficiary would assume 
the role of a function manager. 
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Matter of A-R-T-US LLC 
In sum, the totality of the evidence, which includes the Petitioner's business plan, its projected 
staffing, and the Beneficiary's proposed job duties, precludes the finding that the Beneficiary would 
be employed in a managerial or executive capacity within one year off this petition's approval and 
on the basis of this conclusion the instant petition cannot be approved. 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above reason. In visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains with the petitioner. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 2013). 'Here, 
that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of A-R-T-US LLC, ID# 63513 (AAO Nov. 22, 2016) 
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