dismissed L-1A Case: Shoe Business

identifying data deleted to 
prevent clcx-5 - mwmanted 
invasion of privacy 
PUBLIC COPY 
U.S. Department of ltforneland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 05 252 53 162 Office: TEXAS SERVICE CENTER Date: JAN 0 8 2007 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 10 1 (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. 
Robert P. Wiemann, Chief 
'Administrative Appeals Office 
SRC 05 252 53 162 
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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 4 1 10 1 (a)(15)(L). The petitioner is a limited liability company 
organized under the laws of the State of Florida and is engaged in the shoe business. The petitioner 
claims that it is the subsidiary of ~td., located in Israel. The petitioner seeks to employ the 
beneficiary in the position of import manager for a one-year period. 
The director denied the petition concluding that there is insufficient evidence to demonstrate: (1) that the 
beneficiary will serve in a primarily managerial or executive capacity in the United States; 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 on November 4, 2005. 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 beneficiary will in fact hold a managerial position as the beneficiary will supervise all 
import operations for the U.S. entity. Counsel further states that the director's decision contains a 
misstatement of fact with respect to the number of employees supervised by the beneficiary while 
employed by the foreign entity. Counsel submits a brief in support of the appeal. 
To establish eligibility under section 101 (a)(15)(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) fbrther 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 
SRC 05 252 53 162 
Page 3 
prior education, training, and employment qualifies himiher 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 will be employed in a primarily managerial or executive capacity by the U.S. entity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. tj 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
prirnarily- 
(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 withn 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. tj 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment withn 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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
SRC 05 252 53 162 
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The nonimmigrant petition was filed on September 16, 2005. The Form 1-129 indicates that the beneficiary 
will be employed in the position of import manager. In a document titled "Exhibit 'B' to I 129 L," the 
beneficiary's proposed duties in the United States are described as the following: 
As a manager of [the U.S. entity], [the beneficiary] will be responsible for fully 
implementing our business plan. She will begin her functions by establishing market 
penetration through the development of existing contacts in the United States and abroad. 
She will work to establish channels of import, supplies and dishbutions and through our 
Florida offices. She will recommend hiring personnel to help her with the import division, 
production sales and distnbution and establish overall goals and policies for their 
performance of her duties. She will be responsible for all aspects of import, export as well 
as establishing banlung relations and lines of credit with the financial institutions with regard 
to her import, export duties. She will seek our [sic] increase ow production from the 
supplier abroad, and look to establish new relationship with new supplier through attending 
multinational trade shows all over the work in order to maximize our market share, 
negotiating leases, arranging for inventory and coordinating the functions of all subordinate 
personnel. To supervise broker relationships, and oversee the customs instrument. 
In addition, the petitioner submitted a job agreement dated August 18, 2005, that fmher described the duties 
to be performed by the beneficiary as the following: 
1. Supervise all aspects of our company's imports. 
2. Supervise all supplier bank transfers including currency exchange rates. 
3. Manage all supplier shipments. 
4. Supervise brokerrelationships. 
5. Oversee the customs instruments. 
The petitioner stated on Form 1-1 29 that the company had four employees as of the date of filing. The record 
contains the petitioner's Florida Form UCT-6, Employer's Quarterly Wage Report, which confirms the 
employment of the employees later identified as the bookkeeper, internal sales, and sales manager, and one 
other individual during the second quarter of 2005. 
On September 26, 2005, the director requested additional evidence to establish that the beneficiary will be 
performing the duties of a manager or executive with the U.S. company. Specifically, the director requested 
that the petitioner submit evidence to establish that the beneficiary qualifies under the criteria stated for 
managerial capacity. In addition, the director requested an organizational chart of the U.S. entity including 
the names, job titles and a detailed job description for each employee. 
In its response dated September 28, 2005, the petitioner submitted an affidavit from the Chief Financial 
Officer of the U.S. entity confirming that the U.S. entity offered the position of Supervisor of Imports to the 
beneficiary. The petitioner also submitted a "master employee job description 2005" for all of the employees 
currently employed by the U.S. entity. In ths master list, the petitioner repeated the same job description for 
the beneficiary's proposed position as was previously submitted with the orignal petition. 
SRC 05 252 53 162 
Page 5 
In addition, the petitioner submitted an organizational chart for the U.S. entity. The chart indicates that the 
chief financial officer will supervise the beneficiary as the supervisor of imports. The chart further shows that 
the beneficiary will supervise an executive assistant, a bookkeeper, and the company liaison of the foreign 
company. The chart does not provide the name of the employee who fills the position of company liaison, 
nor does it explain the job duties of that position. According to the brief job descriptions provided for the 
executive assistant and the bookkeeper, it appears that these positions will oversee the administrative tasks 
and bookkeeping functions respectively. The organizational chart identified a total of 18 positions within the 
U.S. company. 
The director denied the petition on October 5, 2005 asserting that the petitioner did not submit sufficient 
evidence to establish that the beneficiary will be employed in a primarily executive or managerial capacity. 
The director further suggested that the petitioner did not provide evidence of subordinate employees who 
would relieve the beneficiary from performing the tasks necessary to produce a product or to provide 
services. 
On appeal, counsel for the petitioner states that the beneficiary is a key employee who is crucial for the 
success of the U.S. entity. Specifically, counsel for the petitioner states the following: 
Please take notice that the main purpose of [the beneficiary's] job is to supervise for the 
share holders in Israel, the operation of in [sic] the U.S.A. 
As of today the main share holder of the U.S. Corporation is the Israeli company that up 
to now didn't send any supervisors or representative. 
Now for the first time they send an experience [sic] manager from Israel (who has 
worked in Israel as a manager for over twelve months) to their U.S. Corporation to do 
what she did in Israel to supervise the import (all the business activity in the U.S.A. based 
on import of goods) there is not manufacturing in the U.S.A. Thus the beneficiary is a 
crucial employee and the most important a trusted one. 
More over the main reason for her being send [sic] to the U.S.A. is to be the eyes, ears, 
and hands of the main share holder (51%) which is the Israeli company ([the foreign 
company]). [The beneficiary] will have full power to recommend to the main share 
holder and controller of the corporation to hire and fire employees including the CFO and 
the President of the U.S.A. Corporation. 
All of the capacity of as a manager [sic] will be done through " 
P 
Ltd. company 
Liaison" (Israeli company owns 51%) in her function and posi ion as main trusted 
executive will be to supervise the smooth operations of all of the U.S.A. corporation job 
and the management as of who to hire and fire. 
She will be the highest hearsay in the U.S.A. Company regarding in whom to hire or fire 
from the U.S.A. Corporation. All that will be through her being the main manager for the 
SRC 05 252 53 162 
Page 6 
main shore [sic] holder in order for her to be fully busy she was assigned in the interim to 
do what she did in Israel to be the import and export manager in the U.S.A. Corporation. 
However the main goal for the main share holder of the U.S.A. Corporation is to have 
their employee [the beneficiary] the head of the U.S.A. Corporation. 
Moreover [the beneficiary's] first task in the U.S.A. is two [sic] hire two employees to 
help her manage her tasks and her job as supervisor of the imports and supervision of the 
U.S. operation for the main share holder ([the foreign company]). She will train these 
two employee to the best standard of the work that she was trained to do in Israel and 
they will be the ones to do the most of "Non-Managerial operations of the company". 
[The beneficiary's] job title doesn't do justice with her actual function as the main 
manager trustee of the biggest share holder in Israel. She will function as the lead 
director with regard to final say (after consulting with the Israeli company in her Liaison 
meeting) with regard to the operation of the U.S.A. Company. 
In addition, the petitioner submits an affidavit from the chief financial officer of the U.S. company 
describing the duties the beneficiary would perform in the United States. The chief financial officer states 
that the beneficiary will supervise and manage the import division and the U.S. company and is 
authorized to "hire two more employees to be underneath her to perform the day by day duties of this 
division." In addition, he asserts that the beneficiary will have the "highest power in our U.S. Company 
because of her ability to hire or fire (after she gets an approval from the main share holder in Israel) any 
employee in the U.S. including the CFO and President of the company." 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a 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 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). 
The beneficiary's position description is too general and broad to establish that the preponderance of her 
duties is managerial or executive in nature. The beneficiary's job description includes vague duties such 
as the beneficiary will "supervise all aspects of our company's imports"; "oversee the customs instruments"; 
be "responsible for hlly implementing our business plan"; "establishing market penetration through the 
SRC 05 252 53 162 
Page 7 
development of existing contacts in the United States and abroad"; and "will work to establish channels of 
import, supplies and distribution and through our Florida offices." Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The description also includes several non-qualifying duties such as the beneficiary will "be responsible for 
all aspects of import, export as will as establishing barhng relations and lines of credit with the financial 
institutions with regard to her import, export duties," and the beneficiary will "look to establish new 
relationship with new supplier through attending multinational trade shows all over the work in order to 
maximize ow market share, negotiating leases, arranging for inventory and coordinating the functions of all 
subordinate personnel," and "supervise broker relationships, and oversee the customs instrument." Without 
further explanation, these duties suggest that the beneficiary would be directly involved in the company's 
finance functions, marketing, inventory, and import activities rather than supervising others who perform 
non-managerial duties related to these 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 lOl(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'l., 19 I&N Dec. 593, 604 (Cornm. 1988). 
Furthermore, the director specifically requested that the petitioner provide a detailed job description and 
convincing evidence that the beneficiary will be employed in a managerial capacity. The petitioner did 
not submit the requested job description and did not submit additional evidence that the beneficiary will 
hold a position of managerial or executive capacity, as requested by the director. Instead, the petitioner 
reiterated the job duties described in the original job description. 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). 
The petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for 
the record before the visa petition was adjudicated. For this reason alone, the appeal will be dismissed. 
In addition, the Form 1-1 29 states that the beneficiary will fill the position of Import Manager. However, the 
petitioner later submitted an affidavit from the Chief Financial Officer of the U.S. entity stating that the 
beneficiary will fill the position of Supervisor of Imports. 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). 
Furthermore, on appeal, counsel for the petitioner states that the beneficiary will hire two individuals upon 
the beneficiary's entry into the United States and "they will be the ones to do the most of 'Non-Managerial 
operations of the company." 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). 
SRC 05 252 53 162 
Page 8 
On appeal, counsel for the petitioner further asserts that the beneficiary's ''job title doesn't do justice with 
her actual function as the main manager" and notes that it is the intent of the foreign entity for the 
beneficiary to be "the head of the U.S.A. Corporation," and exercise "the highest power of any employee 
in the U.S." The AAO noted that the position descriptions submitted in support of the petition and in 
response to the request for evidence, as well as the petitioner's organizational chart, clearly show that the 
scope of the beneficiary's responsibilities is limited to import functions. 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, 59 1-92 (BIA 1988). 
On appeal, 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 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 of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Comm. 1998). 
The record shows that as of the date of filing, the petitioner stated that the beneficiary will control and 
direct subordinate managerial staff. According to the organizational chart, the beneficiary will supervise 
an executive assistant, one bookkeeper and a "company liaison." According to the most recent 
Employer's Quarterly Report for Florida, Form UCT-6, submitted by the petitioner, the employee who is 
in the position of bookkeeper is not listed on the quarterly report for the period ended in July 2005. The 
petitioner has not explained why this employee is not listed on the Employer's Quarterly Report 
submitted by the petitioner. 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). 
Furthermore, the petitioner did not submit the name or job description of the employee who fills the 
position of "company liaison." Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Thus, the executive assistant is the only position subordinate to the beneficiary that can 
be confirmed as employed by the company at the time of filing. 
Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 10 1 (a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 10 1 (a)(32) of the Act, 8 U.S.C. 5 1 10 1 (a)(32), states that " [tlhe term profession shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." The tern "profession" 
SRC 05 252 53 162 
Page 9 
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by a 
prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic 
prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 8 17 (Comm. 1988); 
Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree 
held by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term 
is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary, for example, to perform the administrative work of the executive assistant, who is the 
beneficiary's subordinate employee. Thus, the petitioner has not shown that the beneficiary's subordinate 
employees are supervisory, professional, or managerial, as required by section 10 1 (a)(44)(A)(ii) of the 
Act. 
Although the beneficiary will supervise an executive assistant, it appears that the beneficiary will be 
performing a majority of the import operations such as market research, financial development, and 
several operational tasks inherent in operating a company on a daily basis, such as acquiring new 
business, maintaining inventory, handling export and import of products, negotiating contracts, and 
human resources 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 of Church Scientology Int 'I., 19 I&N Dec. 
593, 604 (Comm. 1988). Based on the foregoing discussion, there is insufficient evidence to establish 
that the beneficiary would be employed by the petitioner in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner indicates that the beneficiary is a "main manager" and a "crucial 
employee" of the U.S. company. The term "function manager" applies generally when a beneficiary does 
not supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. tj 
1 101 (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 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 the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. tj 2 14.2(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 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 (Comrn. 1988)). In 
this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
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 any other employees within 
the petitioner's organization, 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 
SRC 05 252 53 162 
Page 10 
a managerial job title and general oversight authority over the business is insufficient to elevate her 
position to that of a "function manager" as contemplated by the governing statute and regulations. 
In the instant matter, the petitioner has not established that it will employ the beneficiary in a 
predominantly managerial or executive position after one year of operation. Accordingly, the appeal will 
be dismissed. 
The second issue to be addressed is whether the beneficiary has been employed in a primarily managerial 
or executive capacity for the foreign entity. 
The nonimmigrant petition was filed on September 16, 2005. In a support letter, the petitioner indicated that 
the beneficiary was employed by the foreign company in the position of Supervisor of Imports since August 
2004. The petitioner described the duties performed by the beneficiary in this position as the following: 
1. Supervise all aspects of our company's imports. 
2. Supervise all supplier bank transfers including currency exchange rates. 
3. Manage all supplier shipments. 
4. Supervise broker relationships. 
5. Oversee the customs instruments. 
The petitioner also submitted the organizational chart of the foreign company that indicated the beneficiary as 
the import manager who supervised two employees with the title of "import." 
On September 26, 2005, the director issued a notice requesting additional information of the beneficiary's 
employment abroad with the parent company. Specifically, the director requested the petitioner to submit 
convincing evidence that the beneficiary was employed in a managerial or executive capacity with the foreign 
company. In addition, the director requested information as to the employees supervised by the beneficiary, 
including their job titles and their specific job duties. 
In the response, the petitioner submitted an affidavit from a manager of the foreign company stating that the 
beneficiary served the foreign company as an import manager. The affidavit stated that the beneficiary 
supervised two employees. The petitioner did not provide the job titles of the beneficiary's subordinates but 
did provide a brief job description. One employee's duties were described as "direct contact with all of 
overseas suppliers; open line of credits to suppliers; and direct contact with custom brokers." The second 
employee's duties were described as "control all oversea shipments; boolung shipments with the steamship 
line; and bonded (warehouse) control." 
The petitioner did not submit evidence that the beneficiary was employed in a managerial or executive 
capacity with the foreign entity as requested by the director. In addition, the petitioner provided a very vague 
explanation of the duties performed by the beneficiary's two subordinates. The regulation states that the 
petitioner shall submit additional evidence as the director, in his or her discretion, may deem necessary. 
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. $8 103.2(b)(8) 
and (12). The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). 
SRC 05 252 53 162 
Page 11 
The director denied the petition and stated that the petitioner has not established that the beneficiary was 
employed in a managerial or executive capacity with the foreign company. The petitioner also noted that the 
beneficiary had only one subordinate with the title of "store employee." 
On appeal, counsel for the petitioner states, "in the attachment the services claim that the beneficiary 'was 
over one person with the foreign entity.' This position is called 'store employee' on the chart. However, ths 
is wrongly quoted from the chart, the chart shows clearly that [the beneficiary] is 'import manager' and she is 
in charge on two employees and not one." 
Counsel's general objections, without specifically identifying any errors on the part of the director or 
providing new evidence to support that the beneficiary was employed by the foreign entity in a position of 
managerial or executive capacity, are simply insufficient to overcome the well-founded and logical 
conclusions the director reached based on the evidence submitted by the petitioner. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I & N Dec. at 165. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
On review, the petitioner'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. 8 214.2(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to 
be performed and indicate whether such duties are in a managerial or executive 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). 
The petitioner provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states vague 
duties such as "supervise all aspects of our company's imports," "manage all supplier shipments," 
"supervise broker relationships," and "oversee the customs instruments." Reciting the beneficiary's vague 
job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of her daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The 
petitioner's descriptions of the beneficiary's position do not identify the actual duties to be performed, 
such that they could be classified as managerial or executive in nature. 
The job description also includes non-qualifyng duties such as the beneficiary "supervise[d] all supplier 
bank transfers including currency exchange rates." It appears that the beneficiary has been providing the 
services of the business rather then directing such activities through subordinate employees. An 
SRC 05 252 53 162 
Page 12 
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. 593, 604 (Comm. 1988). 
In the instant matter, the petitioner did not submit a detailed job description of the duties performed by the 
beneficiary at the foreign company and thus AAO cannot determine if the beneficiary was employed by 
the foreign entity in a managerial or executive capacity. 
 Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. at 165. 
In addition, although the beneficiary is not required to supervise personnel, if it is claimed that her duties 
involve supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. The petitioner claims that 
the beneficiary supervises two employees in "import." In evaluating whether the beneficiary manages 
professional employees, the AAO must evaluate whether the subordinate positions require a baccalaureate 
degree as a minimum for entry into the field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 5 
1101(a)(32), states that "[tlhe term profession shall include but not be limited to architects, engineers, 
lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or 
seminaries." The term "profession" contemplates knowledge or learning, not merely skill, of an advanced 
type in a given field gained by a prolonged course of specialized instruction and study of at least 
baccalaureate level, which is a realistic prerequisite to entry into the particular field of endeavor. Matter 
of Sea, 19 I&N Dec. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 
I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree 
held by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term 
is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is 
actually necessary to perform the administrative functions of the subordinates supervised by the 
beneficiary. 
Based upon the lack of a comprehensive job description, and the lack of evidence of the company's 
staffing levels, particularly with respect to the beneficiary's subordinates, it cannot be concluded that the 
beneficiary has been employed by the foreign entity in a managerial of executive capacity. For this 
additional reason, 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 U.S.C. 5 1361. Here, that 
burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.