dismissed L-1A Case: Retirement Planning Services

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U.S.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 2 0529 .
U.S. Citizenship
and Immigration
Services
FILE: LIN 06 050 51732 Office: NEBRASKA SERVICE CENTER . Date: IQMR 0'7 ZOO?
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
Immigration and Nationality Act, 8 U.S.c. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER :
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case . Any further inquiry must be made to that office.
f ,d ~ ' .jRobert P. iemann , Chief
Administrative Appeals Office
www.uscis.gov
LIN 0605051732
Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrantvisa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed .
The petitioner , a Washington corporation, claims to provide a variety of retirement planning services and
consultations. - The . etitioner states that it is the arent company of the beneficiary's foreign employer , .
, located in India. · Accordingly , the UnitedStates
entity petinone itizens rp an mrrugranon . ervices (CIS) · to classify the beneficiary as a
nonimmigrant intracompany transferee (L-1A) pursuant to section 101(a)(l'5)(L) of the Immigration and
Nationality Act (the Act) , 8 V.S.c. § 1101(a)(l5)(L). The petitioner seeks to employ the beneficiary as
its vice president for a three-year period.
The director denied the petition on March 21, 2006, concluding that the record contains insufficient
evidence to demonstrate the following requirements: (1) that the beneficiary has been employed in a
primarily managerial or executive capacity by the foreign entity; and (2) that the beneficiary will be
employed in a primarily executive or managerial capacity by the U.S. company.
Counsel for the petitioner filed the instant appeal on April 21, 2006. On appeal , counsel for the petitioner
states that the beneficiary is indeed employed by the foreign company in an executive and managerial
position as the managing director of the company . Counsel further states that the beneficiary supervises a
professional subordinate staff of accountants , computer programmers , systems analysts ,
statisticians /actuaries , and a director. In addition , counsel states that the beneficiary will be employed in a
primarily managerial and executive capacity with the United States company . Counsel states that the .
beneficiary will supervise a professional subordinate staff to whom he will delegate non-managerial tasks
associated with his responsibilities . Counsel submits a brief and documentation in support of the appeal.
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, 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. § 214.2(1)(3) further states that an individual petition filed on Form i-~29 shall be
accompanied by:
(i)
(ii)
Evidence that the petitioner and the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (1)(I )(ii)(G) of this
section.
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 .
LIN 06 050 51732
Page 3
(iii) Ev idence 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'sprior 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.
The first issue to be addressed in this proceeding is whether the petitioner has established that the
beneficiary has been employed in a primarily managerial or executive capacity by the foreign entity.
Section 10I (a)(44)(A) of the Act, 8 V.S.c. § 1101 (a)(44)(A) , provides:
The term "managerial capacity" means an assignment within an organization in which the employee
primarily-
(i) manages the organization, or a department, subdivision.function , or component of the
organization;
(ii) supervises and controls the work of other supervisory , professional; or managerial
employees , or manages an essential function within the organization , or a department or
subdivision Ofthe 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 10I(a)(44)(B) of the Act, 8 V.S.c. § llOl(a)(44)(B) ,provides :
The term "executive capacity" means an assignment within an organization -in which the employee
primarily-
(i) directs the management of the organization or a major component or function of the
organization ;
(ii) establishes the goals and policies of the organization, component , or function;
LIN 06 050 51732
Page 4
(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 instant petition was filed on December 7, 2005. On the Form 1-129 , the petitioner indicated that the '
beneficiary 's duties for the -pastthree years were the following:
, Designed and developed in-house software applications, a company-specific database and a
website for the firm in addition to consulting on retirement plans and preparing actuarial
projections and reports.
In addition, the petitioner submitted the beneficiary 's resume which indicated that the beneficiary's position
since November 1999 has been as Vice President & Senior Pension Consultant for the United States
company. The beneficiary 's duties are described as the following:
• Design and development of software for ' Actuarial and retirement planning
calculations using C++ and Access .
• Co-ordinate with clients and develop customized software for , their 401(k)
administration
• Development software for Cafeteria and welfare plans using Access
• Create database to pay benefits for theretirement plan participants
• Manage day to day activity of the buy and sell of securities and the daily valuation
of the 401(k) plans.
• Manage the LAN and administer the net work [sic] for the company .
, I
• Developed the web site for our firm /
• Consult on Retirement Plan designs
• Prepare actuarial projections and reports using in house software
• Supervise 10 employees remotely from India
.'
On December 15, 2005, the director determined that the petitioner did not submit sufficient evidence to
process the petition. The director requested that the petitioner submit evidence establishing that for at least
one year in the last three years ofemployment with the foreign company has been a position in a managerial
or executive capacity. In addition , the director requested an organizational chart of the foreign company
which depicts the beneficiary 's position in relation to other employees, a description of the duties performed
'by the beneficiary, and the percentage breakdown of the time spent on each duty. ( ,
In a letter in response to the d irector's request, dated March 6, 2006, the petitioner submitted the following
job description of the duties performed by the beneficiary for the foreign company:
Beneficiary designs the software , and supervises the programmers and the testing process.
He is paid directlyby the subsidiary in India .
In addition , Beneficiary performs services for Petitioner remotely while in India through his
access to the company server. For example , he does plan design or review , maintains and
LIN 06 050 51732
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troubleshoots their computer network and their website , reviews most of the complicated
. calculations. If need be, Beneficiary calls the clients and consults with them . He also
oversees financial transactions, like the review of cash flow, and review billing targets by the
employees , decides on their pay scale , bonuses, etc. He interviews potential candidates if
they were under-signed President. "Beneficiary also reviews retirement plans for selected
high profile clients. He updated clients regarding the changes in ERISA (the Employees
Retirement Income Security Act) regulations. He designs the newsletters and marketing
materials as well.
* * *
Beneficiary has been the Managing Director of Subsidiary since 1999 and has continued to
function in that capacity even after Petition acquired Subsidiary in about October 2002.
Beneficiary has senior management and many professional employees reporting to him in
Subsidiary . Beneficiary provides guidance with regard to all operations such as financial ,
actuarial (which forms the basis of Subsidiary 's business) and to some extent , technical as
well.
* * *
Beneficiary 's current duties are being broken down in percentages. However , it is quite
impossible to give a precise percentage figure for each duty performed .
Design and review plans - 28%
Design and review plan documentation - 9 %
Develop software for various pension plan calculations - 22 %
Customize calculation-programs for actuarial-based applications - 18 %
Oversight of financial transactions - 5%
Marketing - 3%
Overall management of Subsidiary operations - 15%
In addition ,the petitioner submitted an organizational chart for the foreign company that indicates that the
beneficiary is the managing director who supervises the d irector, director/advisor, accountant , and senior
systems consultant ," who in turn supervises 3 programmers , 2 analysts , and one statistician/actuarial
consultant. The organizational chart only provides the name of the individual employed as the.director. The
petitioner did not submit a description ofthe duties performed by each employee of the foreign company.
The director denied the petition on March 21, 20060n the ground that the petitioner did not establish that
the beneficiary has been employed in a primarily managerial or executive capacity with the foreign
company. The director stated that the petitioner 's response indicated that "only 15% of the benefic iary 's
time was spent on overall management of its subsidiary 's operations while over three -fourths of his time
was spent on designing and reviewing plans , designing and reviewing plan documentation , developing
software ,and customi zing calculation programs." In addition , ~he director noted that the petitioner did
not submit any documentation evidencing a professional subordinate staff supervised bythe beneficiary.
LIN 0605051732
Page 6
On appeal , counsel for the petitioner asserts that the beneficiary is in fact employed in a managerial and
executive capacity, and the beneficiary supervises a staff of professional employees. Counsel states that
the beneficiary 's subordinate staff consists of accountants, computer programmers, systems analysts ,
statisticians/actuaries and directors which are all posit ions that are considered professional as they require
a bachelor's degree in order to perform the duties necessary for these positions. In addition, counsel
, . states that the beneficiary is not a first-line supervisor ' as the organizational chart indicated that the
beneficiary will supervise two layers of professional employees .
Counsel's assertions are not persuasive. Upon review, the petitioner has not establ ished that the
beneficiary has been employed by the foreign entity 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. § 214.2(l)(3)(iii).
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that
the beneficiary performs the high level responsibilitiesthat are specified in the definitions. Second , the
petitioner must prove that the beneficiary primaril y performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions . Champion World, Inc. v. INS~ 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991) .
In the instant matter , the job description submitted by the petitioner provides little insight into the true
nature of the tasks the beneficiary will perform. While the petitioner has provided a breakdown of the
percentage of time the beneficiary will spend on various duties , the petitioner has not articulated whether
each duty is managerial or executive. Thu s, the AAO must attempt to glean the nature of the
beneficiary 's proposed duties from the vague descriptions submitted.
The petitioner indicated in the letter in re sponse to the director's request for evidence , dated March 6 ,
2006, that the beneficiary spends a combined total of 37 percent of his time to "design and review plans"
and "design and review plan documentation." Thus, it appears that the beneficiary is providing the
service of the business by designing and reviewing plans, rather then supervising the work prepared by
subordinate employees. It appears the beneficiary will spend a majority of his time performing non­
managerial duties associated with designing plans. 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 'l01(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive duties) ; see a/so Matter of Church
Scientology Intn 'I.; 19 I&N Dec. 593, 604 (Comm. 1988) .
The petitioner further states that the beneficiary spends 22 percent of his time to "develop software for
various pension plan calculations." Again, it appears that the beneficiary is providing the service of the
business by developing the software for the company , rather then s~pervising the work prepared by
subordinate employees. It appears the beneficiary will spend a majority of his time performing non-
, managerial duties assoc iated with developing the software. Although the organizat ional chart indicates
that the foreign company employs a senior systems consultant and three programmers, the petitioner did
not submit a description of the duties performed by the individuals in these positions, nor do the position
descriptions submitted indicate that these tasks are delegated. The petitioner does not indicate that the
beneficiary is reviewing the software developed by the subordinate programmers, but instead specifically
· LIN 06 050 51732
Page 7
states that the beneficiary "develops" the software . Again, 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 Intn'l. , 19 I&N Dec. at 604. The information contained in the beneficiary's resume, which
describes the beneficiary 's role in database development, development of customized software, network
administration , web site development and other non -managerial technical duties supports such a
conclusion .
The petitioner also indicated that the beneficiary spends 18% of his time .to "customize calculation­
programs for' actuarial-based applications." Without additional clarification from the petitioner regarding
the managerial or executive duties involved, this duty also appears to be related to software development.
These duties have not been shown to be managerial or executive in nature . Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden "of proof in these \
proceedings. Matter of Sofflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
The pet itioner further states that the beneficiary spends 15 percent of his time "with the "overall
management of subsidiary operations." The regulations require that an indi vidual "primarily" perform
managerial or executive duties in order to qualify as a managerial or executive employee under the Act. ""
The word "primarily" is defined as "at first," "principally," or "chiefly." Webster's II New College
Dictionary 877 (2001). Where an individual is "principally" or "chiefly" performing the tasks necessary
to produce a product or to pro vide a service, that individual cannot also "principally" or "chiefly" perform
managerial or executive duties . In the instant matter, the petitioner indicated that.only 15 percent of the
beneficiary' s time is spent in supervising the subord inate staff and managing the company . Thus, it
appears that the beneficiary is not primarily perform ing managerial or executive duties for the foreign
company.
In addition, although the organizational chart for the foreign company indicates a director, a
director/advisor, a senior systems "consultant, an accountant, three programmers, two analysts and one
statistician/actuarial consultant, the petitioner did not submit any documentation evidencing that these
individuals are actually employed by the foreign company. The petitioner did not provide any financial
documents for the foreign entity which would show salaries paid to the employees , tax forms, or financial
statements, Again , going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter ofSofflci , 22 I&N Dec. at 165 . In
addition, in support of the initial petition, the petit ioner submitted an organizational chart for its corporate
group which indicated that the foreign entity has six employees, while the subsequent chart depicts ten
positions. The petitioner has not provided persuasive or consistent evidence of the staffing of the foreign
organization. " 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).
Although the benefic iary is not required to supervise personnel, if it is claimed that his duties involve
supervising einployees, the petitioner must establish that the subordinate employees are supervisory ,
LIN 06 050 51732
Page 8 .
professional , or managerial. See § 101(a)(44)(A)(ii ) of the Act. On appeal , counsel for the petitioner
~ . .
submits documentation to establish that the positions claimed to be supervised by .the beneficiary ,
including an accountant , computer programmers , a systems analyst , statistician/actuaries , and two
directors , are positions that are considered professional because they normally require an individual with
a bachelor's degree in that field in order to fill these positions. However , as discussed above, the
petitioner did not submit any documentation of the existence of these employees at the foreign company,
and did not submit any documentation of the duties performed by the beneficiary's subordinates at the
foreign company. Thus , it is impossible to detennine if the employees superv ised by the beneficiary are
in fact professional positions.
Furthermore, if the position offered to the beneficiary is executive in capacity, 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 management" and "establish the goals and policies" of that
organization . Inherent to the definition , the organ ization must have a subordinate level of managerial
employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and
policies of the organization rather than the day-to-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 . The 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 ." Id. A managerial or
executive employee must have authority over day-to-day operations beyond the level normally vested in a
. . first-line supervisor , unless the supervised employees are professionals. See Matter ofChurch Scientology
.International, 19 1&N Dec. 593 , 604 (Comm . 1988) . In the instant matter, the petitioner has not
presented evidence of the staff supervised by .the beneficiary and thus has not established that the
beneficiary is in a position of executive capacity with the foreign company.
Based upon the beneficiary's performance Of non-qualifying duties, and the lack of evidence of the
company's staffing levels, it cannot be concluded that the beneficiary has been employed by the foreign
entity in a managerial or executive capacity. Accordingly, the appeal will be dismissed .,
The second .issue to be addressed in this proceed ing is whether the petitioner has established that the
beneficiary will be employed in a primarily managerial or executive capacity in the Un ited States.
The nonimmigrant petition was filed on December 7, 2005. The Form 1-129 indicates that the beneficiary
will be employed in the position of vice president for the petitioner, which claimed to have seven employees.
In a support letter dated September 9, 2005, the beneficiary 's proposed duties in the U.S. are described as the
following:
- . . .
Beneficiary as Vice-President for Petitioner will be responsible for managing the Bellevue,
Washington office, consulting with clients and designing appropriate retirement plans. In
addition, he will supervise and manage all of the staff; recruit, hire and layoff staff as
needed. He will manage the finances of the Petitioner's office, market Petitioner 's services
to new clients, and perform any other necessary duties to run the office as it seems fit.
LIN 06 OSO Sl732
Page 9
In addition, the petitioner submitted an organizational chart of the u.s. entity. The chart indicates that the
president will supervise the beneficiary as vice president. The charts also indicates that the beneficiary will
supervise six employees located at the foreign company, 12 employees of a recently acquired company,_
••••••••••• and nine employees located at the U.S. office. The chart does not indicate the
name, job titles or job duties of the employees supervised bythe beneficiary.
In addition, the petitioner submitted an advertising brochure for the u.s. company which indicated that the
u.s. company is <l; "retirement plan consulting firm." The brochure lists 18 different services provided by the
U.S. company.
On December IS, 200S·, the director determined that the petitioner did not submit sufficient evidence to
process the petition. The director requested that the petitioner submit a breakdown of the percentage of time
the beneficiary will spend on executive duties and non-executive duties. In addition, the director requested a
list of the employees in the U.S. company that will perform the 18 services listed in the company's
advertisement brochure as mentioned above .
. In a. response to the director's request, dated March 6, 2006, the petitioner submitted the following
description ofthe duties the beneficiary will perform in the position of vice president for the U.S. company:
In the US, Beneficiary's duties would be to visit clients or referral sources in person to
improve the business. Petition has recently acquired their competitor
•••••. (hereinafter "I ) in November of200S. Beneficiary will be in charge.
of merging the two operations into one, involving organization of employees, integration of
the two computer network servers, data consolidation and delegation of work load. He will
hire and train a marketing person and a manager to do part of the day-to-day office .
operations. Now that the Petitioner has doubled in size and tripled in potential revenue,
Beneficiary will focus on consulting on actuarial-based retirement plans, designing such
plans and reviewing the work of other financial consultants who will all report to the
Beneficiary.
served a different demographic than Petitioner, so Beneficiary will have to become
knowledgeable as intimately as possible about several hundred new clients, financial goals
and needs. He will need to negotiate with banks for working capital management, lease of
additional office equipment, etc.
* * *
Regarding the services listed on Petitioner's brochure as submitted with the L-IA petition,
Beneficiary will be engaged with each task as described below. It is not possible to predict
precisely the percentage of time to be spent on each task and subject to business exigencies,
a best-judgment estimate is provided.
Plan design .. Beneficiary will do the plan design for most but not all of the clients, although
he will review all of the plan designs - IS%
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Page 10
Acquisition of plan documents and summary plan descriptions. This will be
consultants' job delegated by Beneficiary - 1 %
Document Review. Beneficiary will review plan documents before they are mailed to the
client and also while the documents are submitted to the US Internal Revenue Service for
approval- 1%
The review will typically include verification of the following:
that the document conforms to the original plan design ;
that the plan passes all the discrimination tests as defined by _
that the provis ions in the document also conforms to ••••
that the formulas and assumptions are all correct per IRS code regulations .
Plan installations, new plan. enrollment meetings, annual employer meetings, and
401(k) plan record keeping. Beneficiary would only review the problematic situations and
even then, only with the financial consultants and his manager are unable to solve the
problems by themselves - 10%
Profit sharing plan record keeping, money purchase plan record keeping, and cross
tested plan calculations and record keeping. Cross-tested profit sharing plans are
complicated and are a hybrid of actuarial calculations and defined contribution plans
involving discrimination testing . The most complicated plan designs plans will be reviewed
.. by Beneficiary particularly if testing is not successful. Beneficiary will then be responsible
for making an executi ve decision about the status of plan formulae -:- 24%
.Trust Accounting. Beneficiary will perform.occasional review - 4%
Actuarial and administration system design and implementation. Beneficiary will
perform a thorough review of actuarial calculations-based retirement plans such as target
benefit pension plans , cross-tested profit sharing plans, defined benefit pension plans or any
combination/hybrid of these plans. Beneficiary will do the init ial plan design , consult with
the client about the plan design, review plan documents, review discrimination tests,
evaluate funding problems or minimum funding requirements, IRS reporting etc. This is a
very complicated process and can only be properly executed 'an [sic] experienced person
with actuarial knowledge - 35%
Compliance Testing. Beneficiary will perform review only if complications arise - 2%
IRS/DOL filings. Beneficiary will perform occasional review - 2%
5500 reporting - 0 % :
Plan Terminations . Beneficiary will perform occasionalreviews except for defined benefit
or actuarial based plans - 2 %
Annual plan administration. Beneficiary will supervise performance of plan
administrators , actuaries, accountants , and financial/business and other consultants - 3% .
Benefit claim processing. These tasks will be performed by staff supervised overall by
Beneficiary - 1%
In addition to the above duties, Beneficiary will do a substantial amount of telephone and in­
person marketing with the referral sources , including CPAs , financial brokers , investment
consultants , financial planners , ERISA attorneys etc. He will prepare marketing materials,
brochures and website content for Petitioner .
'LIN 06 05051732
Page 11
The director denied the , petition on March 21 , 2006 on the ground that insufficient evidence was
submitted to demonstrate that the beneficiary will be employed in a primarily executive or managerial
capacity by the u.s. company. The director noted that a majority of the beneficiary's time will be spent
, in providing the services of the U .S. company; rather than supervising a subordinate staff who would
perform the non-qualifying tasks.
On appeal, coun sel for the petitioner states that the subordinate staff will prov ide the services ,of the
business. Counsel states that "petitioner has also indicated, if not directly then by almost direct
implication from the type of service rendered , that for most of the work itemized, certain types of staff
will do the work such as financial analysts/consultants and actuaries." In addition, counsel states that
since the u.s. company just acquired a new company, it is hard to articulate the specific staff that will
manage each duty. Counsel further states that the beneficiary will supervise professional employees.
Finally, counsel for the petitioner clarifies that the beneficiary will review the work done by a subordinate
staff.
Counsel's assertions are not persuasive . Upon review of the petition and evidence , the petitioner has not
est~blished that the beneficiary will be employed in a managerial or executive capacity. When examining the
executive or managerial capacity of the beneficiary, the AAO will look first tothe petitioner's description of
the job duties: See 8 C.F.R. § 214 .2(l)(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 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 prove 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).
Based on the current record, the AAO is unable to determine whether the claimed managerial duties
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non-
, managerial administrative or operational duties. An employee who "primarily" performs the tasks
necessary to produce a product or provide a service 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 International , 19' I & N Dec. at 604:
In the instant matter , the job description submitted by the petitioner provides little insight into the true
nature of the tasks the beneficiary will perform. While the petitioner has provided a breakdown of the
, percentage of time the beneficiary will spend on various duties , the petitioner has not articulated whether
each duty is managerial or executive. Thus , the AAo must attempt to glean the nature of the
beneficiary's proposed duties from the vague descriptions submitted .
The petitioner indicated in the letter in response to the director 's request for evidence, dated March 6,
2006, that the beneficiary will spend a total of 35 percent of his time to "initial plan design, consult with
client about the plan design, review plan documents, review discrimination texts, evaluate function
LIN 06 050 51732
Page 12
problems or minimum fund ing requirements , IRS reporting etc." Since the petitioner has not indicated a.
support staff that will prepare and design the plans , it appears that the beneficiary is providing the service
of the business by designing the review plans , rather then supervising the work prepared by subordinate
employees. It appears the beneficiary will spend the greatest portion of his time performing non­
managerial duties associated with designing and review plans functions. 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 ofChurch Sci entology Intn 'I., 19 I&N Dec: at 604.
On appeal, counsel for the petitioner asserts that even though the beneficiary will spend 35 percent of his
time in the design and implementation of plans as mentioned above, it does not mean that only the
beneficiary will be performing the function. Counsel states that "[the beneficiary] will perform a
thorough review of the actuarial calculations etc. but the work itself will have to be done by competent
professionals, namely actuaries/statisticians and financial analysts, etc." Counsel for the petitioner has
not explained why the .petitioner did not prev iously indicate that the subordinate staff will design the
plans, rather than the beneficiary himself, in the original petit ion andin response to the d irector's request
for evidence. On appeal , a petitioner cannot offer a new pos ition to the beneficiary, or materially change
a position's title , its level of authority within the organizational hierarchy, or the 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). A petitioner may not make material changes to a petition in an
effort to make a deficient petition conform to CIS requirements. See Matter ofIzummi , 22 I&N .Dec. 169,
176 (Assoc. Comm. 1998).
The petitioner further states that the beneficiary "will do a substantial amount of telephone and in-person
marketing with the referral sources" and the beneficiary will "prepare marketing materials, brochures and
website content for Petitioner." Without additional Clarification from the petitioner regarding the
managerial or executive duties involved, the AAO cannot distinguish this vague responsibility from
routine marketing and web design tasks. These duties have not been shown to be managerial or executive
in nature. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. MatterofSoffici, 22 I&N Dec. at 165.
Furthermore, although the organizational chart ind icates several positions subordinate to the beneficiary,
the petitioner has neither presented evidence to document the existence of these employees 'nor identified
the services these individuals provide. In addition, the petitioner indicated that the U.S . entity recently
acquired a new company which the beneficiary will supervise. However, the petitioner did not submit
any documentation to evidence that the U.S. entity acquired the company. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matt er ofSoffici , 22I&N Dec. at 165.
Although the beneficiary is not required to superv ise personnel, if it is claimed that his duties involve
supervising employees , the petitioner must establish that the subordinate employees are supervisory ,'
professional, or managerial. See § 101(a)(44)(A)(ii) oftheAct. According to the organizational chart for
the U.S. entity, it appears that the beneficiary will superv ise 27 employees , however, the petitioner did not
LIN 06 050 51732
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submit the names , titles and/or job duties of these individuals. In addition , the petitioner failed to provide
any documentation of the existence of these employees at the compa~y. Furthermore , the petitioner
claimed to employ only seven employees on Form 1-129 and initially indicated that the beneficiary would
manage the Bellevue , Washington office. Thus , it is impossible to determine if the beneficiary supervises
a staff of professional employees.
Furthermore, if the pos ition offered to the beneficiary is executive in capacity , 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. Sect ion 101(a)(44)(B) of the Act, 8 U.S.c. § 1l01(a)(44)(B). Under the statute , a
beneficiary must have the ability to "direct the 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 the beneficiary to direct and the beneficiary must primarily focus on the broad goals and "
policies of the organization rather than the day-to-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. The 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 ." Id. A managerial 01-"'
executive employee must have authority over day -to-day operations beyond thelevel normally vested in a
first-line supervisor , unless the supervised employees are professionals: See Matter ofChurch Scientology
International , 19 I&N Dec. '593, 604 (Comm, 1988). In the instant matter, the petitioner has not '
presented evidence of the staff supervised by the beneficiary and thus has not established that the
, beneficiary will hold a posit ion in an executive capacity w ith the U;S. entity.
, As discussed above , the beneficiary's job description included primarily non-qualifying duties associated
with the petitioner's day-to-day functions , and the petitioner has not identified nor submitted evidence of
,sufficient employees within the petitioner's organ ization, subordinate to the beneficiary, who would
relieve the beneficiary from performing routine duties inherent to operating the business. The fact that '
. the beneficiary has been given a managerial job title and general oversight authority over the business is
insufficient to elevate his position to that of an executive or manager as contemplated by the governing
statute and regulations.
Based upon the lack of a comprehensive job description , the beneficiary's apparent performance of many
non-managerial duties, and the lack of evidence of the company 's staffing levels , it cannot be concluded
that the beneficiary will be employed by the U.S. entity in a managerial or executive capacity. Therefore ,
the appeal will be dismissed .
The petition will be denied '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 V.S.c. § 1361. Here , that
burden has nor been met. Accordingly , the appeal will be dismissed .
ORDER: The appeal is dismissed.