dismissed L-1A Case: Stone Export

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 04 144 51030 Office: CALIFORNIA SERVICE CENTER Date: JUL 0 6 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
obert P. Wiemann hief 
7772 
lCie 
dministrative Appeals Office 
WAC 04 144 51030 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its CEOJmanager as an 
L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a California corporation that claims to 
export granite, stone, marble and slate products. It states that it is a subsidiary of :-~ 
located in Agra, India. The beneficiary was initially granted a one-year period in L-1A classification in order 
to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in a managerial or executive capacity for the United States entity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director 
erred in determining that the provided job description for the beneficiary was overly vague. Counsel provides 
more detailed job descriptions for the beneficiary and his claimed subordinate employees, and asserts that the 
additional evidence clearly establishes that the beneficiary will perform primarily managerial or executive 
duties. Counsel asserts that the beneficiary qualifies for the benefit sought as the senior employee within the 
petitioner's organizational structure, notwithstanding the company's small size. Counsel submits a brief and 
copies of previously submitted documents in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 
 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC 04 144 51030 
Page 3 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. $ 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The issue in the present matter is whether the petitioner established that the beneficiary will be employed by 
the United States entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. manages the organization, or a department, subdivision, function, or 
component of the organization; 
. . 
11. 
 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; 
. . . 
111. 
 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 
WAC 04 144 51030 
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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), 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; 
11. establishes the goals and policies of the organization, component, or 
function; 
. . . 
111. 
 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 nonirnmigrant petition was filed on April 23, 2004. The petitioner stated on Form 1-129 that it had three 
employees, and indicated that as the company's CEOIrnanager, the beneficiary is "fully responsible for the 
management of the branch company," and responsible for the "overall management of operations of the 
business." The petitioner did not submit a supporting letter describing the beneficiary's duties or information 
regarding the company's staffing levels or organizational structure. 
The director requested additional evidence on May 20, 2004, in part instructing the petitioner to submit: (1) a 
more detailed description of the beneficiary's duties in the United States, including the percentage of time he 
devotes to each of the listed duties; (2) the U.S. company's organizational chart, clearly identifying the 
beneficiary's position and listing all employees under his supervision by name and job title, and also including a 
brief description of the job duties, educational level, annual salarieslwages and immigration status of all 
employees; (3) a list of the U.S. company's employees including names, job titles, beginning and end dates of 
employment, and wages per week; (4) copies of the company's California Forms DE-6, Quarterly Wage Reports, 
for the last three quarters; (5) copies of the company's IRS Forms 941, Employer's Quarterly Federal Tax Return, 
for the last three quarters; and (6) copies of the company's payroll summary, and IRS Forms W-2 and W-3, 
evidencing wages paid to employees. 
The petitioner submitted a response received on August 1 1, 2004. The petitioner's response included a June 11, 
2004 letter in which it noted that the beneficiary was transferred to the United States to serve as CEOImanager of 
WAC 04 144 51030 
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the company and was subsequently promoted to the position of president. The petitioner provided the following 
job description: 
In the position of President, [the beneficiary] is responsible for determining and formulating 
policies and business strategies. Specifically, [the beneficiary] is charged with the following 
duties: 
Planning, directing, and coordinating operational activities at the highest level of 
management with the help of subordinate managers; 
Providing overall direction of private sector organizations; 
Supervising and controlling the work of other professional and managerial employees; 
Directing over the day-to-day operations of the company; and 
Authority over the firing, hiring and promoting all managerial and professional employees. 
[The beneficiary] also serves as the Chief Executive Officer on [the petitioner's] Board of 
Directors. This is an executive-level position involving responsibility and supervision of several 
critical functions for [the petitioner] These duties include extensive decision-making authority 
over policies, activities and monitoring the overall business progress, as well as setting policies 
for and directing the management of the organization. 
The petitioner submitted an organizational chart identifying the beneficiary as president supervising a "sales and 
secretary" employee, a "warehouse" employee, and an "accounts receivable and payables" employee. Although 
requested by the director, the petitioner did not provide information regarding the subordinate employees' job 
duties, educational background, dates of employment or salaries/wages, nor did the petitioner provide the 
requested breakdown of the percentage of time the beneficiary devotes to his various job duties. 
The petitioner submitted its California quarterly wage reports for the first quarter of 2004 and the last quarter of 
2003, but did not include the quarterly report for the second quarter of 2004, the quarter in which the petition was 
filed. The petitioner's records show that the company reported only three employees for the month of March 
2004. 
The director denied the petition on August 30, 2004, concluding that the petitioner did not establish that the 
beneficiary will be employed by the United States entity in a managerial or executive capacity. The director 
observed that the petitioner had failed to provide complete position descriptions for the beneficiary and his 
subordinates, which are needed to determine who is performing the non-qualifiing, operational duties of the 
business. The director noted that regardless of the degree of authority and discretion the beneficiary may exercise 
over the business, the petitioner has the burden of showing that the beneficiary's duties are primarily in a 
managerial or executive capacity. The director found that the submitted job description was too vague to convey 
an understanding of what the beneficiary does on a daily basis, and further determined that the petitioner had not 
established that the beneficiary will be primarily supervising a subordinate staff of professional, managerial or 
supervisory personnel. Finally, the director observed "the fact that an individual manages a small business does 
not necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity withn the meaning of section 10 1(a)(44) of the Act." 
WAC 04 144 51030 
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On appeal, counsel for the petitioner asserts that the beneficiary "is running the whole operation" of the 
petitioning company as "the leading decision maker," and objects to the director's statement that an individual 
who manages a small business is not necessarily eligible for this visa classification. Counsel provides job 
descriptions for the beneficiary's three claimed subordinate employees, and asserts that the director did not 
previously request information regarding the subordinates' duties. As counsel's brief is part of the record, 
these job descriptions will not be repeated here. 
Counsel also provides a more detailed job description for the beneficiary indicating that he performs the 
following duties: meet prospective buyers to demonstrate the range of products through catalogs and 
explanation of samples (10%); monitor customer preferences to determine focus of sales efforts (5%); direct 
and coordinate activities involving sales of manufactured granite and slate products (15%); determine the 
price of products to be quoted to buyers (5%); review and negotiate on the final contract price in consultation 
with the Indian parent company (10%); direct, coordinate and review activities in sales and service accounting 
and record keeping, and in receiving and shipping operations (10%); instruct sales person to fix sales 
meetings and video presentation (5%); instruct the warehouse employee on dispatch schedules (5%); review 
budgets and approve budget expenditures (5%); represent company at trade association meetings to promote 
products (5%); instruct the warehousing staff on arrival and shipping of new material (5%); interact with 
accounts department to control the receivables/payrnent schedules and instruct them on the procedures to be 
followed in preparation of the bills/invoices and remittances for the foreign suppliers (5%); prepare projected 
weekly/monthly/quarterly revenue flow chart and discuss with accounts staff and parent company; and visit 
construction sites to attend to customer complaints and interact with architects and construction managers to 
suggest the suitability of various products (10%). 
Counsel asserts that the detailed job descriptions provided for all employees on appeal establish that the 
beneficiary will be primarily directing the management of the organization, and that his duties are the high- 
level responsibilities contemplated by the statutory definitions. Counsel emphasizes that the majority of the 
beneficiary's time is spent on "directing and coordinating activities involving sales of manufactured granite 
and slate products." Counsel contends that Citizenship and Immigration Services must review the complexity 
of the organizational hierarchy and the beneficiary's position within it, but notes that "small entities with only 
several [tiers] of authorities and functions" have been considered by the AAO to be sufficiently complex to 
support an L-1A manager or executive. Counsel asserts that the petitioner's current hierarchy "would be 
sufficient to show that an executive or managerial position exists," noting that "only the most senior level 
employees within such small organizations will engage in planning, organizing, directing and controlling an 
organization's major functions through other employees." Counsel concludes that the beneficiary "should be 
considered as the most senior most employee of the organization to qualify for the position under this 
rationale." 
Counsel's assertions are not persuasive. The petitioner has not established that the beneficiary would be 
employed in a primarily managerial or executive capacity under the extended petition. 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. Here, the petitioner does not clarify whether the beneficiary will be 
primarily engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties 
WAC 04 144 51030 
Page 7 
under section 101(a)(44)(B) of the Act, and seems to suggest that he would qualify under either statutory 
definition. A petitioner must establish that a beneficiary meets each of the four criteria set forth in the 
statutory definition for executive and the statutory definition for manager if it is representing that the 
beneficiary is both an executive and a manager. At a minimum, the petitioner must demonstrate that the 
beneficiary's responsibilities will meet the requirements of one or the other capacity. 
In this case, prior to the director's decision, the petitioner failed to provide a detailed description of the 
beneficiary's duties as required by the regulations and as requested by the director in his request for evidence. 
See 8 C.F.R. 5 214.2(1)(14)(ii)(C). The petitioner provided no description of the beneficiary's duties with the 
initial petition filing. Accordingly, the director requested that the petitioner submit a detailed description of 
the beneficiary's duties and the percentage of time he allocates to each duty. The job description provided in 
response was brief and vague, and merely paraphrased the statutory definitions of managerial and executive 
capacity. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $5 1101(a)(44)(A) and (B). For example, 
the petitioner stated that the beneficiary would have authority to hire, fire, supervise and control ''all 
managerial and professional employees," exercise extensive "decision making authority," establish company 
policies, and "direct the management of the organization." Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
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 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108. Without a detailed description of the beneficiary's actual duties, the director could not conclude that 
the beneficiary would be serving in a primarily managerial or executive capacity. 
On appeal, counsel provides a more detailed description of the beneficiary's duties and attempts to offer 
further clarification regarding his duties and the percentage of time he devotes to qualifying managerial 
functions. However, 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. $9 103.2(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. tj 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO need not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need 
not consider the sufficiency of the evidence submitted on appeal as it relates to the beneficiary's job duties. 
WAC 04 144 51030 
Page 8 
The AAO notes, however, that the new position description offered on appeal does not establish that the 
beneficiary's duties will be primarily managerial or executive in nature. Counsel asserts that the majority of 
the beneficiary's time is spent "directing and coordinating" sales activities. However, the petitioner does not 
employ any workers who are responsible for performing the company's day-to-day sales activities. Although 
one of the beneficiary's claimed subordinates is designated as a "sales and secretary" employee, the job 
description provided for this employee does not include any sales tasks, nor do the petitioner's other claimed 
employees perform duties related to sales or marketing. It is therefore reasonable to assume, and has not been 
proven otherwise, that the beneficiary is performing all of the petitioner's sales and marketing activities, 
including all non-qualifying tasks associated with these functions. Such a conclusion is supported by the 
expanded job description provided on appeal, which indicates that the beneficiary performs a number of non- 
managerial, non-executive duties related to sales, marketing and post-sales service, including meeting with 
buyers to demonstrate products, monitoring customer preferences, representing the company at trade 
association meetings, and visiting customer sites to follow up on past-sales complaints and to assist customers 
in choosing the appropriate products. Based on the record of proceeding, the beneficiary's job duties are 
principally composed of non-qualifying sales and related operational duties that preclude him from 
functioning in a primarily managerial or executive role. 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'l., 19 I&N Dec. 593,604 (Comm. 1988). 
Counsel correctly states that the definitions of executive and managerial capacity have two parts. First, the 
petitioner must show that the beneficiary performs the high-level responsibilities that are specified in the 
definitions. Second, the petitioner must show that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion World, 
Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that 
a person not only has the requisite authority, but that a majority of his or her duties related to operational or 
policy management, not to the supervision of lower level employees, performance of the duties of another 
type of position, or other involvement in the operational activities of the company. In the instant matter, the 
petitioner has failed to show that non-qualifying duties will not constitute the majority of the beneficiary's 
time. 
Although the beneficiary is not required to supervise 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 5 101(a)(44)(A)(ii) of the Act. The petitioner claimed that the beneficiary 
will supervise managers and professionals and direct the company "with the help of subordinate managers." 
There is no evidence that any of the beneficiary's subordinate employees are employed as managers or 
supervisors. Rather, they perform clerical, secretarial, bookkeeping and routine inventory and warehouse- 
related duties. Though requested by the director, the petitioner did not provide the level of education required 
to perform the duties of its secretary, warehouse employee, or accounts payable and receivable employee. 
Any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. 5 103.2(b)(14). Thus, the petitioner has not established that these employees possess or 
require a bachelor's degree, such that they could be classified as professionals. The petitioner has not shown 
that the beneficiary's subordinates are employed in supervisory, professional, or managerial positions, as 
WAC 04 144 51030 
Page 9 
required by section 101(a)(44)(A)(ii) of the Act. Furthermore, although requested by the director, the 
petitioner has not submitted documentary evidence to substantiate the employment of the beneficiary's 
claimed subordinates as of the date the petition was filed. 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 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Counsel alternatively suggests that the beneficiary will serve in a managerial capacity based on the fact that 
the majority of his time is spent "directing and coordinating" the petitioner's sales function. 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. $ 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 detailed job description that identifies the fbnction with 
specificity, articulates the essential nature of the function, and establishes the proportion of the beneficiary's 
daily duties attributed to managing the essential function. 
 8 C.F.R. $ 214.2(1)(3)(ii). 
 In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. An employee who primarily performs the 
tasks necessary to produce a product or to provide services is not considered to be 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 (Cornm. 1988)). 
As discussed above, although the petitioner states that the beneficiary "directs and coordinates" the 
petitioner's sales activities, the petitioner has not submitted evidence to establish that the beneficiary 
primarily manages the petitioner's sales function. Rather, the petitioner's evidence suggests that the 
beneficiary will be directly responsible for performing all of the company's sales tasks, including all non- 
qualifying duties associated with this function. While performing non-qualifymg tasks necessary to produce a 
product or service will not automatically disqualify the beneficiary as long as those tasks are not the majority 
of the beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary is "primarily" 
performing managerial or executive duties. Section 101(a)(44) of the Act. Whether the beneficiary is an 
"activity" or "function" manager turns in part on whether the petitioner has sustained its burden of proving 
that his duties are "primarily" managerial. Here, the petitioner has not met this burden. 
Finally, the director correctly concluded that the petitioner had not substantiated its claim that the beneficiary 
would be employed in a primarily executive 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 
lOl(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 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-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. 
WAC 04 144 51030 
Page 10 
As the director observed, the petitioner had not presented sufficient evidence that the beneficiary had a 
subordinate staff sufficient to allow him to primarily focus on the company's broad goals and policies. 
Counsel correctly observes that a company's size alone, without talung into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 8 1101(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 5 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year 
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. 
Contrary to counsel's assertions, the fact that the beneficiary is the most senior employee within the 
petitioner's three- or four-person company and the only employee charged with any managerial duties is not 
sufficient to establish that he will serve in a primarily managerial or executive capacity for purposes of this 
visa classification. The reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. See 
sections 10 1 (a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44). The reasonable needs of the petitioner 
may justify a beneficiary who allocates 5 1 percent of his duties to managerial or executive tasks as opposed to 
90 percent, but those needs will not excuse a beneficiary who spends the majority of his or her time on non- 
qualifying duties. Here, the beneficiary has not established that the beneficiary will not be performing 
primarily non-qualifying duties. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a managerial or executive capacity under the extended petition. For this 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 denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.