dismissed L-1A Case: Telecommunications

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. A3042 
Washington, DC 20529 
File: WAC 02 133 51527 Office: CALIFPNIA SER~TF?J!?&ENTJ# Date: 
Petition: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN 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. 
dministrative Appeals Office 
WAC 02 133 51527 
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 nonirnmigrant petition seeking to extend the employment of its president as an L-1A 
nonirnmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of New York 
that is primarily engaged in selling international pre-paid telephone cards and telephone lines. The petitioner 
claims that it is the subsidiary of I.P.S. Inc., located in Tokyo, Japan. The beneficiary was initially granted a 
one-year period of stay to open a new office in the United States, and was subsequently granted an extension 
of stay. The petitioner now seeks to extend the beneficiary's stay for an additional two-year period. 
The director denied the petition concluding that the petitioner provided insufficient evidence to demonstrate 
that the beneficiary will continue to be employed in the United States in a managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director's 
decision contained "mere accusations and false assumptions to support their reasons to deny the petition." 
Counsel contends that the petitioner submitted sufficient evidence to establish that the beneficiary has been 
and will continue to be employed in an executive capacity, and suggests that the director applied an 
inappropriate standard of evidence. In support of these assertions, counsel submits a brief and additional 
evidence. 
To establish eligibility for the L-1 nonirnrnigrant 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. 3 214.2(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 (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledg~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 02 133 51527 
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 issue in the present matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
WAC 02 133 51527 
Page 4 
In a letter submitted with the petition, dated February 10, 2002, the petitioner described the beneficiary's job 
duties as follows: 
[The beneficiary] will continue to ensure that [the petitioning organization], the U.S. branch 
office, is fully operational and the company's expansion efforts will prove to be successful in 
the U.S. market. As the president of [the petitioning organization], [the beneficiary's] duties 
and responsibilities will include planning, developing, establishing and modifying new 
policies and objectives of IPS, INC, our Japanese parent company. 
[The beneficiary's] specific responsibilities are to promote and develop business and trade in 
the consumer field in the United States, facilitate the supply and demand factor of products, 
set corporate goals and policies, management of all financial, budget and personnel 
operations. He will oversee recruitment and training of personnel, warehouse operations, 
budget allocation and control and contract negotiations with suppliers and distributors. Our 
aim is to establish responsibilities and procedures to achieve smooth flow of operations. 
In addition, [the beneficiary] will continue to plan and develop public relations policies 
designed to further improve our branch office's public image, as well as relations with the 
clients, employees, and the public. 
[The beneficiary] will direct and coordinate the formulation of procedures to increase 
efficiency of operations and to increase profits. He will review financial statements to 
determine progress and status in attaining profitability. He will revise objectives and plans 
accordance [sic] with current conditions. 
[The beneficiary] will also evaluate the work performance of employees of our branch office. 
He will look for compliance with established policies and objectives of our company and the 
contributions of the employees in attaining our objectives. 
[The beneficiary] will ensure that the qualify of service provided to clients of our U.S. branch 
office, [the petitioning organization], is in strict adherence to the standards set by our 
Japanese parent corporation, IPS, INC. 
On the 1-129 Petition, the petitioner indicated that it has seven employees in the United States. In support of 
the petition, the petitioner submitted an organizational chart showing that the beneficiary supervises a 
clerk/secretary, a technical support manager, a saleslmarketing manager (who is shown to supervise local 
sales staff in New York), and the managerbos Angeles office (who is shown to supervise 
Angeles.) The organizational chart also reflects that the beneficiary indirectly supervises 
"Philippines Customer Service," and "Brazil Customer Services." 
WAC 02 133 51527 
Page 5 
On June 26, 2002, the director requested additional evidence.' Specifically, the director requested: (1) an 
original letter explaining the need for the beneficiary's L-1 nonirnrnigrant extension; (2) balance sheets and 
statements of income and expenses showing the foreign entity's financial position; (3) the foreign company's 
bank statements for the last twelve months; (4) the total number of employees at the U.S. location where the 
beneficiary will be employed; (5) a copy of the U.S. company's line and block organizational chart describing 
its managerial hierarchy and staffing levels. The director specified that the chart should include the names of 
all executives, managers, supervisors, and number of employees within each department or subdivision; 
clearly identify the beneficiary's position in the chart; list all employees under the beneficiary's supervision 
by name and job title; and include a brief description of job duties, educational level, annual salaries/wages 
and immigration status for all employees under the beneficiary's supervision. 
In response, the petitioner submitted a letter from the petitioner, dated July 20, 2002, stating: 
[The beneficiary's] position has been an executive/managerial position within the organization. 
He will initially recruit three (3) qualified U.S. workers to fill positions of different division [s] of 
the company. Thereafter, [the beneficiary] will hire an Administration Director to recruit other 
employees for different positions. 
The petitioner also provided a list of three employees: a sales manager, whose salary is listed as $40,000, a 
resident of New York; a sales assistant manager, whose salary is listed as $24,000, a resident of California; 
and an accountant, whose salary is listed as $18,000, also a resident of California. The petitioner states that 
the accountant has a Bachelor's degree in accounting from the Philippines. The other two employees are 
claimed to have at least some college-level education. The petitioner submitted no supporting evidence to 
document employment of these individuals. 
The petitioner did not provide a job description for its accountant. The other two employees were claimed to 
have the following duties: 
Sales manager - negotiate with telephone carrier company which is like quest, mci [sic]. 
[Alrrange between Philippine staff in Philippine and their client. 
Sales assistant manager - negotiate with Asian grocery store, restaurant of phonecard dealer, 
support to his client, trouble shooting with his client and assist of [sales manager]. 
In addition, the petitioner submitted an organizational chart depicting an entirely different structure for the 
company, with responsibility for accounts, sales development and technology divided among three "sections." 
The chart lists additional staff, including a financial analyst, a clerklsecretary, a systems engineer, technical 
- -- 
I The AAO notes that the request for evidence issued on June 26, 2002 was more than one page in length. 
However, only one page is included in the record. Upon review of the petitioner's response to the request for 
evidence, it appears that the petitioner responded only to the first page of the request. It is therefore possible 
that the petitioner received an incomplete request for evidence. The AAO will take this into consideration in 
reviewing evidence submitted for the first time on appeal. 
WAC 02 133 51527 
Page 6 
support staff, and sales representatives. No employee names were indicated on this chart. Finally, the 
petitioner submitted a new group organizational chart, showing that all three of the above-mentioned 
"sections" report to the president of the parent company in Japan. 
On December 12, 2002, the director denied the petition. The director noted the inconsistencies in the record 
regarding the number of individuals employed by the petitioner, and the petitioner's failure to provide the 
2 
requested Forms DE-6, Quarterly Wage Report and Federal income tax returns. The director detennined 
that, "from the evidence submitted, it appears that at the end of the one year period,3 the petitioner failed to 
establish that the beneficiary supervises any other executives or managers or that the business has expanded to 
a point where it will support an executive position." The director further noted that the evidence submitted 
indicates that the beneficiary will be involved in "substantially all aspects of the actual day to day duties 
rather than directing activities through managers, executives, or professionals." The director concluded that 
the submitted evidence was insufficient to demonstrate that the beneficiary has been or will be functioning 
primarily in a managerial or executive capacity.4 
On appeal, counsel for the petitioner asserts that Citizenship and Immigration Services' (CIS) decision 
"contained mere accusations and false assumptions to support their reasons to deny the petition where in fact 
such decision was only grounded by citing "the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner." Counsel further contends that the petitioner has met its burden of proof by 
providing "conclusive evidence" which indicates that the beneficiary has performed and will continue to 
perform in an executive capacity as the petitioner's president. Counsel provides a more detailed overview of 
the operations of the petitioner's group and states that the petitioner "has expanded to a point where it will 
support and is in need of an executive position to direct its operations." In addition, counsel states that the 
Nonetheless, [the petitioning organization] directs and manages the Philippine office." 
Counsel for the petitioner includes in his letter the same job description for the beneficiary already quoted in 
full above, and submits that these duties "are not substantial aspects of the day to day duties involved in the 
2 The AAO notes that there is no request for the petitioner's Forms DE-6 and federal income tax returns in 
the record of proceedings as presently constituted. Since it appears the petitioner received an incomplete copy 
of the request for evidence, the AAO will consider the petitioner's 2001 Form 1120, which is submitted for 
the first time on appeal. 
The AAO notes for the record that the instant petition was not filed as an extension request for a new office 
under 8 C.F.R. 3 214.2(1)(14)(ii) as suggested by this statement by the director. The petitioner had been active 
for over three years at the time the petition was filed and the beneficiary was previously granted an extension 
of stay. 
4 In his decision, the director stated "Title 8 CFR 204.5(g)(2) requires that the petitioner establish that it has 
the ability to pay the wages of the beneficiary and its employees since the filing date of the visa petition." The 
cited regulation applies only to petitioners in immigrant proceedings and has no bearing on the instant 
petition. Accordingly, the director's statement is withdrawn. 
WAC 02 133 51527 
Page 7 
operations of the company. The daily operation of [the petitioning organization] is in the area of distribution 
of the company's products. The [petitioning organization], it being a marketing platform of the foreign 
company, I.P.S. Japan, is primarily involved in finding potential marketing scheme in distributing the 
products of the mother organization, one of which are telephone prepaid cards." Counsel goes on to state that 
"it is the brainchild of [the beneficiary] to utilize 'distribution channels' to assure that the actual day to day 
operation of the company is met. As of 2002, there exists sixteen (16) various distribution points from 
different states." Counsel attaches copies of order invoices and consignment agreements dated 2000 and 2001 
issued by the petitioner for the sale of pre-paid calling cards. 
Counsel for the petitioner asserts that the beneficiary employs three professionals and oversees sixteen 
distributors, and also attaches the petitioner's "W-2 tape list" for 2001. The AAO notes that the list includes 
only the beneficiary, who received wages of $44,000; the employee previously identified as the accountant, 
who received $3,920 in 2001 despite petitioner's previous claim that his annual salary is $18,000; and the 
employee previously identified as the sales manager, who received $28,594.49 in 2001, despite the 
petitioner's previous claim that he earns an annual salary of $40,000. The record contains no evidence of 
payments to the "assistant manager" mentioned by counsel. 
In his brief, counsel provides the following job descriptions for the beneficiary's subordinates: 
Sales Manager - Directly oversees the distributors; reports directly to president; seeks the overall 
approval of the president in management actions; negotiate with telephone carrier company; arranges 
the transaction between the Philippine and USA company. 
Assistant Manager - Assists the manager in his duties; negotiates with other potential distributors; 
Accountant - Arranges the finances of the company; directly reports to the president. 
Counsel submits that employing three professionals is no indication that the petitioner "is not capacitated to 
support an executive position" and further submits that "the complexity of the global operations of the 
company, and that the U.S. Companys [sic] is a significant component of the global operations of the whole 
organization are adequate basis to provide the need for an executive position." Counsel contends that the 
beneficiary, in his discretion, "deems that the company can smoothly operate with only three (3) 
professionals" and states that CIS had no basis for denying the petition based on the number of employees, 
since "directing the management of the organization is not directing activities of managers, other executives 
and professionals, as the Service asserts." 
On appeal, counsel notes the discretion exercised by the beneficiary in initiating transactions in the 
Philippines, and notes that "because of the huge potentiality of this particular market, [the beneficiary] also 
directs and oversees the Philippine Operations," referring to the petitioner's claimed affiliate, PIMS. Counsel 
states that the director of the Philippine branch reports directly to the beneficiary and provides him with 
relevant documentation regarding the status of local operations, employees and shipping. In support of this 
assertion, counsel attaches a contract signed between the petitioner and PIMS, a list of PIMS' employees, and 
various other documents in support of this assertion. The agreement indicates that the petitioner will conduct 
WAC 02 133 51527 
Page 8 
telephone service business in the Philippines and that PIMS "will perform in-bound and out-bound 
teleshopping business in behalf of IPS USA for Filipinos living in USA." As additional evidence of the 
beneficiary's discretionary authority, counsel notes that the beneficiary is in the process of hiring a market 
research analyst and submits copies of employment ads placed by the petitioner. 
Finally, counsel states that "[the beneficiary] is the president of the company and his ways and methods of 
managing his area of responsibility must not be questioned and must be respected." Counsel cites Mindseye 
v. Ilchert, C-987-2062-WWS (N.D. Cal. March 4, 1988), in support of this assertion. In addition, counsel 
questions the standard of proof applied by the director in making his decision in this case. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
214.2(1)(3)() The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. In the instant petition, the petitioner identifies the beneficiary's position as that of an executive 
under section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B). 
On review, the petitioner has provided only 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 
that the beneficiary "will direct and coordinate the formulation of procedures to increase efficiency of 
operations," "facilitate the supply and demand factor of products," and "set corporate goals and policies" and 
that his "vital task is to penetrate the competitive market of the industry." The petitioner did not, however, 
define the beneficiary's goals, policies or clarify who actually performs the primary function of the 
organization, which the petitioner claims is marketing. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Cornm. 1972)). Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co. Ltd. 
v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(B) of the Act, 8 U.S.C. 3 
1101(a)(44)(B). For instance, on appeal, counsel for the petitioner states that the beneficiary (I) primarily 
directs the management of the organization and the major component or function of the organization; (2) 
heads the organization in establishing its goals and policies; (3) exercises wide latitude in discretionary 
decision-making; and (4) occupies the highest position and receives only general supervision or direction. 
However, 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. at 1108 (E.D.N.Y. 1989); Avyr Associates, Inc. v. 
Meisner, 1997 WL 188942 at "5 (S.D.N.Y.). Further, the AAO notes that the petitioner stated in its letter 
dated February 10, 2002 that the Board of Directors of the Japanese parent company "exercises complete 
control over the U.S. branch and determines its goals and policies." This statement by the petitioner, 
particularly in light of the petitioner's failure to define the beneficiary's job duties in concrete, quantifiable 
WAC 02 133 51527 
Page 9 
terms, raises questions regarding the extent of the beneficiary's claimed discretionary authority to establish 
the goals and policies of the organization. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See section 101(a)(44)(C), 8 U.S.C. 5 1101(a)(44)(C). Counsel contends that "[the beneficiary] is the 
president of the company and his ways and methods of managing his area of responsibility must not be 
questioned and must be respected." In support of this assertion, counsel cites an unpublished decision of a 
federal district court in California. Counsel asserts that in this matter, CIS conceded that it "may not question 
the approach of a company in meeting its need." The record does not support counsel's claim, as counsel has 
not provided a copy of the court's decision. The 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). 
Furthermore, in contrast to the broad precedential authority of the case law of a United States circuit court, the 
AAO is not bound to follow the published decision of a United States district court in cases arising within the 
same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO; however, the analysis does not 
have to be followed as a matter of law. Id. at 719. In addition, as the published decisions of the district courts 
are not binding on the AAO outside of that particular proceeding, the unpublished decision of a district court 
would necessarily have even less persuasive value. 
Moreover, contrary to counsel's assertions that the beneficiary's "methods of managing his area of 
responsibility must not be questioned," it is appropriate for CIS to consider the size of the petitioning 
company in conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. Id. In the instant case, the 
petitioner has entered into the record numerous contradictory and unsupported statements and documents 
regarding its staffing levels. 
At the time of filing, the petitioner was a three-year old company engaged primarily in selling long distance 
international and domestic pre-paid telephone cards and telephone lines that claimed to have annual income of 
$315,818 and seven employees as of March 2002. With the initial submission, the petitioner submitted only 
an undated "W-2 tape list" which does indeed list seven employees, including the beneficiary. As noted 
above, the organizational chart submitted showed that the beneficiary supervised a clerklsecretary, a technical 
support manager, a saleslmarketing manager, who in turn supervised local sales staff in New York, and a 
Manager, Los Angeles office, in Los Angeles. The chart also shows that the 
beneficiary indirectly hilippines Customer Service" and "Brazil Customer 
Services." No further levels was provided. 
WAC 02 133 51527 
Page 10 
In response to the director's June 2002 request for additional information regarding the petitioner's staffing 
levels, the petitioner submitted a statement indicating that the beneficiary supervises three employees, a sales 
manager, an accountant and a sales assistant manager. Only one of these employees, the sales manager, 
appears on the "W-2 tape list" submitted with the petition. Although the petitioner indicates this employee's 
salary as $40,000, the only evidence submitted by the petitioner shows that the sales manager was paid 
$14,789.40. In its letter dated July 20, 2002, the petitioner stated that the beneficiary "will initially recruit 
three (3) qualified U.S. workers to fill positions of different division [sic] of the company. Thereafter, [the 
beneficiary] will hire an Administration Director to recruit other employees for different position." With this 
submission, the petitioner included a different organizational chart depicting the division of the company into 
three "sections": an "account section" headed by the beneficiary as President/Financial Manager and 
supervising a financial analyst and a clerk/secretary; a "technology section" consisting of a system engineer 
and technical support staff; and a "sales development section," headed by a sales manager with two sales 
representatives. It is not clear from the record if this chart was meant to reflect the petitioner's current 
organization or if it is a proposed chart related to the "different divisions" referenced in the petitioner's letter. 
On appeal, counsel asserts that the beneficiary manages three professionals, oversees sixteen distributors, and 
oversees the parent company's Philippine branch office. In his brief, counsel lists the same three employees 
identified in the petitioner's response to the director's request for evidence, and provides a different undated 
"W-2 tape list," claimed to be for 2001, showing the beneficiary and two other employees. The sales manager 
received a salary of $28,594.49 and the accountant received only $3,920, suggested that his services were 
only part-time. The assistant sales manager is not listed. The AAO notes that the sum of the wages reported in 
this "tape list" do not match the salaries and wages reported on the company's 2001 Form 1120, and that the 
beneficiary's wages are variously reported as $44,000 on the tape list, $48,000 on the petitioner's Form 1120, 
and $56,000 on the beneficiary's 2001 Form W-2. No explanation is provided for these discrepancies. 
Counsel also provides on appeal evidence of the petitioner's relationships with distributors of pre-paid phone 
cards and with its Philippine affiliate. However, counsel does not explain how these documents support 
counsel's claim that the beneficiary exercises discretionary authority in the oversight of the distributors' or the 
affiliate's operations. In fact, all corporate organizational charts submitted for the petitioner's group show that 
the Philippine company reports directly to the president of the parent company in Japan. Without probative 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The 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). 
In view of the inconsistent and unsupported statements made by the petitioner, and the lack of supporting 
evidence, the AAO must conclude that at the time of filing, the petitioner employed the beneficiary, a sales 
manager and a part-time accountant who appears to have received a total of $5,720 in wages in the two years 
preceding the filing of the instant petition. 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 evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). The director also noted in his decision that the petitioner listed a New 
York residential address for the sales manager as of August 2002, while the company claims it is based in 
WAC 02 133 51527 
Page 11 
California. If the sales manager is based in New York, the beneficiary would be the sole employee located in 
the company's Los Angeles office. 
The petitioner states that the sales manager's responsibilities include directly overseeing distributors, 
negotiating with telephone carrier companies and arranging the transactions between the Philippines and the 
petitioner. As these duties do not appear to encompass the whole of the day-to-day operations of the 
company, and since there is no probative evidence the petitioner employs other full-time employees, the 
beneficiary must be directly involved in marketing, which is claimed to be the organization's primary 
purpose, as well as the company's daily financial activities, clerical or administrative tasks, and other routine, 
non-executive duties. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a re-evaluation 
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of 
Ho, 19 I&N Dec. at 591. If the beneficiary is performing the marketing function, the AAO notes that 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. Matter of Church Scientology International, 
19 I&N Dec. 593,604 (Comm. 1988). 
Furthermore, the petitioner's multiple descriptions of its organizational structure suggest that it is trying to 
materially change the beneficiary's level of authority within the organizational hierarchy. However, 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 confirm to CIS requirements. See Matter of lzurnrni, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
Finally, on appeal counsel suggests that the director applied an inappropriate standard of proof in the instant 
proceeding, relying on an excerpt from the INS Adjudicator's Field Manual which states that strict rules of 
evidence used in criminal proceedings do not apply in administrative proceedings, and further states that "the 
service need not prove ineligibility." See INS Adj. Field Manual 10.3. However, the AAO does not find that 
an inappropriate standard was applied in the instant matter. In visa petition proceedings, the burden is on the 
petitioner to establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 
1966). The petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the 
benefit sought. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 
(BIA 1988); Matter of Soo Hoo, 11 I&N Dec. 15 1 (BIA 1965). 
The record as presently constituted is not persuasive in demonstrating that the beneficiary has been or will be 
employed in a primarily managerial or executive capacity. The petitioner indicates that it plans to hire 
additional professionals and other employees in the future. However, the petitioner must establish eligibility 
at the time of filing the nonirnrnigrant 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. 
The record does not establish that a majority of the beneficiary's duties have been or will be primarily directing 
the management of the organization or establishing its goals and policies. The record indicates that a 
preponderance of the beneficiary's duties have been and will be directly providing the services of the business. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
WAC 02 133 5 1527 
Page 12 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology International, 19 
I&N Dec. at 604. For this reason the appeal will be dismissed. 
Beyond the decision of the director, on Schedule K of the petitioner's 2001 Form 1120 federal tax return it 
declares that it is not a subsidiary or in an affiliated group, and no individual or corporation directly or indirectly 
owns more than 50% or more of the corporation's voting stock. Schedule E of Form 1120 indicates that the 
beneficiary owns 40% of the company's stock. This document directly contradicts the claim on the petition form 
that it is a wholly-owned subsidiary of the foreign entity. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice. 
Matter of Ho, 19 I&N Dec. 582 (BIA 1988). Consequently, there is insufficient evidence to establish that the 
petitioner maintains a qualifying relationship with a foreign entity pursuant to 8 C.F.R. 3 214.2(1)(l)(ii)(G). For 
this additional reason, the petition cannot be approved. 
Finally, the AAO notes that the petitioner submitted with the petition and on appeal a corporate profile for the 
IPS group, which appears to have been prepared in 2001. The company profile lists a single company, 
"Dolphincall USA, Inc." operating in the United States. The Los Angeles address listed for this company is 
the address on record for the petitioner. The beneficiary was previously employed in the petitioner's New 
York office and is now claimed to work in the Los Angeles office, although the petitioner made no statements 
regarding the date of establishment of the new office, or the date of the beneficiary's transfer. The petitioner 
makes no specific reference o the AAO can only speculate as to whether this is a 
trade name for the petitioner, a successor-m-interest, or a completely separate company. The absence of the 
petitioner's name from the latest corporate profile also raises questions regarding the ownership of the 
company and the beneficiary's continued employment with the petitioner. As the appeal will be dismissed 
based on the grounds stated above, this issue need not be examined further. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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. § 1361. Here that burden has not been met. Accordingly, the 
decision of the director is affirmed and the petition is denied. 
ORDER: The appeal is dismissed.