dismissed L-1A Case: Telecommunications

US. Department of Homeland Secudw ' 
data deleted U.S. Citizenship and Immigration Services 
OjBce ojAdmlnlstratrve Appeals. MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
File: EAC 08 2 1 1 5 1378 Office: VERMONT SERVICE CENTER Date: 
IN RE: 
MAR 1 7 2010 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 8 103.5(a)(l)(i). 
U 
Perry Rhew 
Chief, Administrative Appeals Office 
EAC 08 21 1 51378 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition and 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 employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 10 1(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a Florida limited liability company, states that it operates a 
telecommunications company. It claims to be an affiliate of., located in 
Caracas, Venezuela. The beneficiary was previously granted L-1A classification for a period of one year, 
from May 15, 2007 until May 14, 2008, in order to open a new office in the United States. The petitioner 
now seeks to employ the beneficiary as its managing memberldirector for a period of two years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. In denying the petition, the 
director observed that the petitioner failed to submit evidence to corroborate its claimed organizational 
structure. 
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 
failed to consider that the beneficiary directs the management of a major function within the organization and 
emphasizes that the beneficiary "directs the function of telecommunications." Counsel further contends that 
the director failed to take into account the reasonable needs of the organization in light of its overall purpose 
and stage of development, and ignored evidence that the petitioner utilizes the services of third parties for the 
provision of services related to telecommunications. 
Counsel indicated on the Form I-290B, Notice of Appeal or Motion, that he would forward a brief andlor 
additional evidence to the AAO within 30 days of filing the appeal. Counsel filed the appeal on December 22, 
2008. As of this date, no brief or additional evidence has been submitted, and the record of proceeding will be 
considered complete. * 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(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. 5 214.2(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. 
EAC 08 21 1 51378 
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(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himker 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. 8 214.2(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 managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
Section 101(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-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
EAC 08 21 1 51378 
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(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. § 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily-- 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on July 29, 2008. In a letter dated July 
16,2008, the petitioner stated: 
[The petitioner] wishes to continue to employ [the beneficiary] to continue to oversee the 
performance of the company and will provide necessary leadership and direction to assure 
establishment and success of our company and continue to oversee the generating of sales and 
rentals of their equipment and services. [The beneficiary] will continue to supervise the 
EAC 08 21 1 51378 
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establishment of the company and will oversee the initial tasks, such as procuring necessary 
equipment to manage daily and long-term responsibilities along with hiring and training 
personnel. 
He will also continue to provide [the foreign entity] with cost-analysis tests including actual and 
projected expenses and sales. Additionally, he will be responsible for communicating with [the 
foreign entity] providing them with an overview of the business productivity and needs. He will 
provide advice and recommend the necessary operating modifications and strategies if need be to 
incorporate for overall success. [The beneficiary] will be also be accountable for creating a 
scope of work and a manner/procedure in which each tasks will be carried out. Establishing and 
maintaining business relationship will be essential as well to the success of [the foreign entity]. 
The petitioner stated that the U.S. company's "main purpose is to operate, buy, sell, rent, or repair any voice, 
video, and data communication services and/or equipment and to provide connectivity services through satellite 
to the southamerican [sic] continent." The petitioner stated that it is providing services in El Salvador, Nicaragua, 
Venezuela, Guyana, Nassau, St. Kitts, Colombia, St. Vincent and the Dominican Republic, with additional 
projects underway. The petitioner stated on Form 1-129 that the company had five employees as of the date of 
filing. 
The director issued a request for additional evidence on August 12, 2008, in which he requested, inter alia: (1) 
evidence of the staffing of the U.S. company, including the number of employees, the duties performed by each 
employee and the management and personnel structure of the company; (2) copies of the company's IRS Forms 
941, Employer's Quarterly Federal Tax Return, for the first and second quarters of 2008; and, (3), if applicable, 
evidence documenting the number of contractors the petitioner utilizes and the duties they perform. 
In a letter dated November 4, 2008, counsel for the petitioner described the staffing of the U.S. company as 
follows: 
[The petitioner] currently employs four (4) employees in various capacities. The Company 
employs a director of business development, a sales director and out sources two positions. One 
of the "out sourced" positions is the technical support professional. He is "on call" 24x7 if it 
becomes necessary for him to resolve a technical issue. The Company also "out sources" some 
sales activities to Jeva Consulting. Jeva Consulting specializes in sales and channel development 
in Latin America. 
The petitioner further stated that it "out sources its telecommunications'' to Hughes Network Systems, LLC which 
"provides telecommunication infrastructure and service to [the U.S. company]." 
With respect to the beneficiary's duties, the petitioner cited to the statutory definition of executive capacity, and 
emphasized that the number of employees supervised is not determinative. Counsel further stated: 
As the President of [the foreign entity] and the Chief Executive of [the petitioner], the 
beneficiary receives no supervision or direction from higher level executives of the foreign 
EAC 08 21 1 51378 
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entity. He also exercises wide latitude in discretionary decision-making for the same reason. The 
beneficiary also establishes goals and policies for both organizations. He also directs the 
management of the organization. 
As evidence of wages paid to its employees, the petitioner submitted copies of its IRS Forms 941, Employer's 
Quarterly Federal Tax Return, and Florida Forms UCT-6, Employer's Quarterly Re ort, for the first three quarters 
of 2008. According to these documents, the petitioner has one payroll employee, -who the 
petitioner identified as the company's business development and strategic planning director. The petitioner 
indicated that is "responsible for creating, directing and overseeing the organization's marketing and 
sales policies, objectives and initiatives." The petitioner provided a copy of resume, and further 
specified her responsibilities as: 
Arrange the initial operation structure of the company defining roles and responsibilities 
within the organization and identifLing the process flow. 
Implementation of the company's business strategy 
Lead and oversee strategic business opportunities and potential in-country partners 
Development and execution of marketing plan including all product development 
related issues 
Support and lead the main sales efforts 
The petitioner identified as its regional sales manager and submitted his position description, but 
did not provide evidence of wages or any other remuneration paid to The petitioner also submitted 
a resume for who lists a Canadian address and states that he has been responsible for providing 
"business consultation" for the petitioning company since April 2007, performing "cold calling," and traveling to 
customer premises for presentations, price negotiations, sales closing and contract signings. The petitioner did not 
submit evidence of any wages or other payments to - 
petitioning company]" which provides detailed descriptions and proposed salaries for the positions of strategic 
planning and marketing director, network operations director, financial director, project manager, marketing and 
sales manager, technical director, sales associate, and administrative assistant. Finally, the petitioner submitted a 
copy of the contract for the purchase and sale of satellite communications equipment between the petitioner and 
The director denied the petition on November 19, 2008, concluding that the petitioner failed to establish that the 
beneficiary would be employed in the United States in a primarily managerial or executive capacity. In denying 
the petition, the director noted that, while the petitioner stated on Form 1-129 that it has five employees, its IRS 
Forms 941 indicate that the company has only one employee. The director acknowledged that the petitioner 
submitted job descriptions and resumes, but emphasized that there was no documentary evidence corroborating 
the employment of the claimed workers. The director determined that the evidence failed to demonstrate who 
relieves the beneficiary from performing the routine, non-managerial duties associated with the petitioner's 
business, and was therefore insufficient to establish that he would be employed in a primarily managerial or 
executive capacity. 
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On appeal, counsel for the petitioner asserts that the director "erred as a matter of fact by failing to consider that 
the beneficiary directs the management of a major function within the organization." Specially, counsel states that 
the beneficiary "directs the function of telecommunications." Counsel emphasizes that the petitioner operates an 
operational and sales facility which outsources most operational tasks to third-party contractors. Counsel further 
contends that the director failed to take into account the reasonable needs of the organization, and placed undue 
emphasis on the number of employees supervised by the beneficiary. Finally, counsel asserts that the director 
failed to consider evidence of the petitioner's contracts with third parties for the provision of services related to 
the telecommunications hnction managed by the beneficiary. 
Upon review, and for the reasons stated herein, the AAO concurs with the director's determination that the 
petitioner failed to establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
When examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the proposed 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 that will be performed by the beneficiary and 
indicate whether such duties will be either in an executive or managerial capacity. Id. 
Here, the petitioner has failed to provide a detailed description of the beneficiary's duties. The petitioner's 
initial description was general and provided little insight into what the beneficiary actually does on a day-to- 
day basis as the U.S. company's director and managing member. For example, the petitioner stated that the 
beneficiary will "oversee the performance of the company," "provide necessary leadership and direction," 
"supervise the establishment of the company," "manage daily and long-term responsibilities," and "oversee 
the generating of sales and rentals." 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 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). 
Although the petitioner addressed the beneficiary's role in its response to the RFE, it merely paraphrased the 
statutory definition of executive capacity, noting that the beneficiary "receives no supervision or direction 
from higher level executives of the foreign entity," "exercises wide latitude in discretionary decision-making," 
"directs the management of the organization," and "establishes the goals 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. at 1 108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y .). 
The definitions of executive and managerial capacity each 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). Here, while the AAO does not doubt that the beneficiary 
exercises the requisite authority over the U.S. company as one of its partners, the record contains no evidence 
of what constitutes his day-to-day duties, such that they could be classified as primarily managerial or 
EAC 08 21 1 51378 
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executive in nature. Therefore, the AAO is unable to determine whether the claimed managerial or executive 
duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non- 
managerial administrative or operational duties. The petitioner's description of the beneficiary's job duties 
does not establish what proportion of the beneficiary's duties is managerial or executive in nature, and what 
proportion is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. Here, 
without a detailed description of the beneficiary's duties, the director reasonably looked to the petitioner's 
staffing levels and use of independent contractors to determine whether the company employs sufficient staff 
to relieve the beneficiary from primarily participating in non-qualifying duties. 
As noted by the director, the evidence of record does not corroborate the petitioner's claimed staffing levels. 
The petitioner indicated on Form 1-129 that it has five employees. The company's state and federal quarterly 
tax returns indicate that the company has one payroll employee, the business development and strategic 
planning director. While the petitioner claims to directly employ a sales director, it has not clearly identified 
who fills this role or provided evidence of payments made to this employee. The petitioner claims that it 
utilizes the services of an unidentified outsourced "technical support professional" and outsources some sales 
activities to "Jeva Consulting" but again offers no documentary evidence to corroborate these assertions, such 
as contracts, invoices, or evidence of payments made to the claimed service providers. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec, 190 (Reg. Comm. 1972)). The regulation at 8 C.F.R. 5 214.2(1)(14)(ii)(D) 
specifically requires the petitioner to submit 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. The petitioner cannot satisfy this requirement by submitting resumes and position descriptions in 
lieu of the "evidence of wages paid to employees" explicitly required in the regulations. 
Finally, while the petitioner indicated that provides "telecommunication infrastructure 
and service" to the U.S. company, and provided a copy of its contract with the director specifically 
requested that the petitioner "submit evidence documenting the number of contractors utilized and the duties 
performed." The petitioner has not explained how the unspecified services provided under the terms of this 
contract,, which appear to be limited to technical support of network operations, would obviate the need for 
the beneficiary to participate in other aspects of the petitioner's day-to-day operational and administrative 
functions. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. 3 103.2(b)(14). 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
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managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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 
10 1 (a)(44)(A)(iv) of the Act; 8 C.F .R. 5 2 14.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other 
employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those 
actions, and take other personnel actions. 8 C.F.R. 5 2 14.2(1)(1)(ii)(B)(3). 
As discussed above, the petitioner has established that the beneficiary would be supervising one employee, 
the business development and strategic planning director. Upon review of this employee's duties and 
educational qualifications, it does appear that she is employed in a professional capacity. However, due to the 
petitioner's failure to clearly define the beneficiary's duties and the amount of time he would devote to 
specific tasks, the AAO cannot conclude that he qualifies as a personnel manager based on his supervision of 
a single professional employee within a two-person organization. The petitioner must still establish that his 
duties as a whole are primarily managerial or executive in nature. 
Counsel claims for the first time on appeal that the beneficiary will serve as a "function manager" based on 
his management of the "telecommunications 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. 5 1101(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 
position description that clearly explains the duties to be performed in managing the essential function, i.e. 
identifies the function 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. See 8 C.F.R. 5 
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. It is the 
petitioner's obligation to establish that the day-to-day non-managerial tasks of the function managed are 
performed by someone other than the beneficiary. 
Counsel has not identified with any specificity what the "telecommunications function" encompasses or what 
duties the beneficiary performs to manage this function. Given that the petitioner is a telecommunications 
company, the claim that the beneficiary manages this function is tantamount to a conclusory assertion that the 
beneficiary will manage the company. The AAO cannot accept vague assertions regarding the beneficiary's 
employment capacity and speculate as to what qualifying duties he may perform. As discussed, infra, the 
petitioner has not provided any detailed description of the beneficiary's job duties, nor has it provided a 
credible claim regarding the amount of time the beneficiary will devote to managerial versus non-managerial 
duties. The fact that the beneficiary manages a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
section lOl(a)(lS)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). The petitioner has neither 
adequately articulated nor substantiated a claim that the beneficiary qualifies as a function manager. 
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 
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person's authority to direct the organization. Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (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. lnherent to the definition, the organization must have a subordinate level of 
managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-operations of the enterprise. An individual will 
not be deemed an executive under the statute simply because they have an executive title or because they 
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide 
latitude in discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. While the beneficiary will 
exercise discretion over the petitioning company, the petitioner has neither claimed not presented evidence to 
establish that the beneficiary will devote the majority of his time to focusing on the goals and policies of the 
organization. As discussed above, the petitioner cannot establish that the beneficiary is employed in an 
executive capacity merely by repeating the statutory definition. Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. at 1 103. 
Counsel correctly emphasizes on appeal 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 5 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 101(a)(44)(C). However, in reviewing the 
relevance of the number of employees a petitioner has, federal courts have generally agreed that USCIS "may 
properly consider an organization's small size as one factor in assessing whether its operations are substantial 
enough to support a manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 13 13, 
1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); 
Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25,29 (D.D.C. 2003)). 
It is appropriate for USCIS 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 USCIS notes discrepancies in the record and fails to 
believe that the facts asserted are true. Id. 
Here, the petitioner has failed to submit evidence to corroborate its claimed staffing levels and use of third- 
party contractors and service providers to perform the day-to-day non-managerial functions of the business. It 
has not been established how the single documented employee will relieve the beneficiary from participating 
in the day-to-day non-managerial operational and administrative duties inherent to operating the petitioner's 
business. Collectively, the evidence brings into question how much of the beneficiary's time will actually be 
devoted to managerial or executive duties upon his transfer to the United States. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services or other non-managerial 
duties is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
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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). 
While the petitioner has submitted a list of eight "occupational titles for primary positions" to be filled within 
the U.S. company and may intend to fill these positions in the future, the evidence of record indicates that 
only one of these proposed positions was filled at the time the petition was filed. 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). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
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. 
ORDER: The appeal is dismissed.