dismissed L-1A Case: Vegetable Oils And Fats

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PUBLIC COpy 
DATE: DEC 0 8 2011 Office: CALIFORNIA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Servin', 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.c. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.S(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~ 
1-Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 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 lOI(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § llOI(a)(l5)(L). The petitioner, states that it 
produces and markets vegetable oils and fats in the Americas. The petitioner claims to have a qualifying 
, located in Bogota, Colombia, and _ 
located in Mexico City, Mexico. The petitioner seeks to employ the beneficiary as the 
Director, U.S. Operations of its office in the United States. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will be 
primarily performing the duties of a manager or executive with the U.S. company. 
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 states that the director's 
erroneous decision "spends more time in the analysis of Petitioner's current employees' job duties and job 
titles than on Beneficiary's actual job duties and responsibilities in the [U.S.] and abroad." Counsel submits a 
brief and additional evidence on appeal. 
I. The Law 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101 (a)(l5)(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 (1)(1 )(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. 
Page 3 
(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 himlher 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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § llOl(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. § 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 
Page 4 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 
II. The Issue on Appeal 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed by the U.S. company in a primarily managerial or executive capacity. 
Facts and Procedural History 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on June 29, 2009. The petitioner 
indicated on the Form 1-129 that it produces and markets vegetable oils and fats in the Americas with two 
current employees and a gross annual income of $2,943,592. In support of the petition, the petitioner 
submitted a letter describing the duties of the beneficiary as follows: 
The U.S. position of Director, U.S. Operations is a managerial-level position which will be 
responsible for spearheading the identification and analysis of potential mergers and 
acquisitions to support the U.S. strategic initiatives of the parent company,_ 
As Director, U.S. Operations, [the beneficiary] will be responsible for[:] 
• [I]dentification and evaluation of merger and acquisition opportunities relating to joint 
venture operations in the [U.S.]; 
• [I]dentitification, evaluation/analysis and planning of acquisition opportunities to support 
_strategic objectives using his in-depth knowledge of current and long term 
strategic business plans; 
• [E]valuate potential merger and acquisition of business opportunities; 
• [W]ill be involved in the structuring/negotiation of transactions, if such opportunities are 
located, partnering with a variety of cross-functional areas in the company such as legal, 
corporate development and accounting; 
• [S]pearhead transitional due diligence to coordinate the process with a variety of external 
and internal contacts such as investment banks, consulting firms, financial sponsors and 
potential acquisitions, among others. 
• [P]repare a variety of internal and external documentation such as graphs, reports, charts 
and presentations relating to the merger and acquisition activities for _ 
management; 
• [E]ngage in maintaining post-acquisition integration planning as a result of successful 
merger and acquisition, including interacting with outside counsel as well as internal 
employees in tax, accounting and other cross-segment functions; 
(Bullets added.) 
Page 5 
Finally, [the beneficiary] will be the highest ranking Team employee in the U.S. and have 
supervisory responsibilities over all activities at the U.S. office including its two professional 
employees. Given the significant role and responsibilities as Director, U.S. Operations, [the 
beneficiary] will exercise significant discretion in his day-to-day responsibilities and report 
directly to the Executive Management 
The petitioner did not submit any additional information describing the duties of the beneficiary on a day-to­
day basis. 
The director issued a request for additional evidence ("RFE") on July 7, 2009, instructing the petitioner to 
submit, inter alia, the following: (1) indicate the total number of employees at U.S. location where the 
beneficiary will be employed; (2) a copy of the U.S. company's organizational chart clearly identifying the 
beneficiary's position and the employees he supervises by name and job title, including a brief description of 
job duties, educational level, annual salaries/wages and immigration status for all employees under the 
beneficiary's supervision; and (3) a more detailed description of the beneficiary's duties in the United States, 
specifically indicating the percentage of time the beneficiary spends on each of the listed duties. 
Counsel for the petitioner submitted a response to the RFE where she addressed the beneficiary's duties for 
the U.S. company. The response reiterated the exact duties listed above (submitted with the initial petition) 
and added the following sentence: "In the short term, it is anticipated that the beneficiary will devote 80% of 
his time to the expansion efforts as elaborated above and 20% of his time to overseeing the current U.S. 
operations including oversight of the office and existing employees." 
In response to the RFE, the petitioner submitted an organizational chart for the U.S. company, a list of 
employees for the U.S. company, and the U.S. company's quarterly wage reports for 2009. The quarterly 
wage reports indicated that the U.S. company employed the same two individuals throughout and did not hire 
additional subordinate staff for the beneficiary. 
The petitioner submitted an organizational chart for the U.S. company listing the beneficiary as Director, U.S. 
Operations, one named subordinate titled Business Development Manager, one vacant subordinate position 
titled Business Development Manager West Coast, one vacant subordinate position titled Business 
Development Manager East Coast, one vacant subordinate position titled Logistics and Operations Manager, 
and one named subordinate titled Logistics Coordinator. The petitioner also submitted a job description for 
the two named subordinate positions; however, the person named for the Logistics Coordinator position on 
the organizational chart is listed as a Customer Service Representative on another document and the job 
description provided is for a Customer Service Representative with a job category of "Customer Service: 
Transportation/Logistics. " 
The director denied the petition on July 31, 2009, concluding that the petitioner failed to establish that the 
beneficiary would be employed in a primarily managerial or executive position. 
Page 6 
In support of the appeal, counsel submits a brief in which she asserts that the beneficiary will be employed 
primarily in a qualifying managerial capacity. Counsel further asserts that "[t]he Service ... has failed to 
consider or analyze the duties of the beneficiary as a functional manager who will be engaged in merger and 
acquisition opportunities .... " 
On appeal, counsel describes the beneficiary's job duties as follows: 
As the Director, U.S. Operations, Beneficiary's primary job duties will be to oversee the 
growth and expansion of Petitioner's business opportunities in the United States which 
primarily involve the review of merger and acquisition opportunities in the United States, 
which includes acquisition of business related to Petitioner's global business of the 
manufacture, distribution, and sale of food products. As stated in the documents, Petitioner, 
through its parent company, has committed an initial budget of $50 million for such 
acquisition projects. As the Director, U.S. Operations, Beneficiary will be in charge of the 
identification of potential merger and acquisition candidates, exploration of joint ventures and 
establishment of additional subsidiary companies. Beneficiary will be the main point of 
contact in these discussions, and will be engaged in high-level negotiations and discussions 
with potential business partners, as well as overseeing all financial, legal and due diligence 
aspects of said business expansion. In this position, Beneficiary will have the authority to 
commit Petitioner to such long-term strategic acquisitions and will be the highest ranking 
employee of Petitioner in the United States. Beneficiary will report directly to the Board of 
Directors of Petitioner and/or Petitioner's parent company in Colombia. 
* * * 
Beneficiary, as the highest ranking employee of Petitioner and as an Officer and Director of 
Petitioner ... while not directly involved in lower level hiring will, from a strategic and 
corporate planning perspective, be involved in approving the hiring of other executive and 
managerial level employees. As set forth in the organization chart, beneficiary will oversee 
and approve the hiring of other Business Development Manager who will then be charged 
with staffing their respective departments. This is a normal managerial and executive 
function within any successful organization and the beneficiary will both directly hire and fire 
employees and function at a senior-level within the organization. 
* * * 
Beneficiary is clearly a functional manager in that: 
• Beneficiary will be the highest-ranking officer of Petitioner's business, responsible for 
overseeing a budget of $50 million for merger and acquisition activities, as well as 
approving strategic business development and marketing plans. 
Page 7 
• Beneficiary will have a wide latitude and discretionary authority, and report directly to 
the Board of Directors of Petitioner and to Petitioner's parent company in Colombia. 
The Beneficiary is also an executive as demonstrated by the following: 
I. The Beneficiary directs the management of the organization or a major component or 
function of the organization. 
2. Beneficiary establishes the goals and policies of the organization, component or function. 
3. Beneficiary will exercise wide latitude and discretionary decision making. 
4. Beneficiary will receive only general supervision or direction from higher level 
executives, the board of directors or stockholders of the organization. 
Counsel also submits photocopies of the same evidence submitted with the initial petition and another set of 
photocopies of the same evidence submitted in response to the RFE. Neither counsel nor the petitioner has 
submitted any new evidence on appeal. 
Discussion 
Upon review, and for the reasons stated herein, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(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 
in either an executive or a managerial capacity. Id. Beyond the required description of the job duties, U.S. 
Citizenship and Immigration Services (US CIS) 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. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary will be 
employed in a primarily managerial or executive capacity. The AAO does not doubt that the beneficiary will 
have the appropriate level of authority over the petitioner's business as its director. However, 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 show 
that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or 
her time on day-to-day operational functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 
144470 (9th Cir. July 30, 1991). The fact that the beneficiary owns or manages a business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of sections 101(a)(l5)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 
Page 8 
1987) (noting that section 101(a)(l5)(L) of the Act does not include any and every type of "manager" or 
"executive"). 
In the instant matter, the petitioner and counsel provided the same statements of the beneficiary's job duties in 
the initial petition and in response to the RFE. The percentage breakdown provided by counsel in response to 
the RFE did not provide any detail on the beneficiary's daily activities; it merely stated, "the beneficiary will 
devote 80% of his time to the expansion efforts ... and 20% of his time to overseeing the current U.S. 
operations including oversight of the office and existing employees." Counsel then provided additional 
statements on appeal describing the beneficiary's job duties in very broad terms, noting that he will "oversee 
the growth and expansion of Petitioner's business opportunities in the United States," "be involved in 
approving the hiring of other executive and managerial level employees," "have a wide latitude and 
discretionary authority and report directly to the Board of Directors of Petitioner and petitioner's parent 
company in Colombia," and "be in charge of all U.S. operations for Petitioner's business." Some of the duties 
listed by counsel on appeal merely paraphrase the statutory definition of managerial capacity and executive 
capacity. See section 101(a)(44)(A) and (B) of the Act. 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 P. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 P. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
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. § 1l01(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
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 
101(a)(44)(A)(iv) of the Act; 8 c.P.R. § 214.2(l)(l)(ii)(B)(2). Therefore, although the beneficiary is not 
required to supervise personnel, if the petitioner claims that his duties involve supervising 
employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.c. § 1l01(a)(32), states that "[t]he term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.c. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by a subordinate employee. The possession of a 
Page 9 
bachelor's degree by a subordinate employee does not automatically lead to the conclusion that an employee 
is employed in a professional capacity as that term is defined above. 
The organizational chart submitted by the petitioner shows two named subordinates and three pending hires. 
One of the named subordinates is the Business Development Manager; the job description for that position 
does not specifically require a college level degree, it simply states, "education level required: food science or 
related field" and a minimum of 10 years of related business experience (although counsel specifies on appeal 
that a bachelor's degree is required). The other named subordinate is the Logistics Coordinator who is titled 
the Customer Service Representative on other submitted documents; the job description for the Customer 
Service Representative states, "education level required: high school diploma, preferably with a BAIBS in 
Business, Logistics or a related field" and a minimum of three years of related business experience. The 
petitioner has not demonstrated that the beneficiary, as a personnel manager, will be primarily supervising a 
subordinate staff of professional, managerial, or supervisory personnel as the petitioner states that oversight of 
employees accounts for no more than 20 percent of his time. See section 101(a)(44)(A)(ii) of the Act. 
Additionally, the petitioner has not established that it employs a staff that will relieve the beneficiary from 
performing non-qualifying duties so that the beneficiary may primarily engage in managerial duties. Further, 
regardless of the beneficiary's position title, the record is not persuasive that the beneficiary will function at a 
senior level within an organizational hierarchy. Even though the enterprise is in a preliminary stage of 
organizational development and awaiting the approval of this petition in order to expand its business, the 
petitioner is not relieved from meeting the statutory requirements. 
On appeal, counsel claims that the beneficiary manages the essential function of expanding U.S. operations. 
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. § 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 written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. § 214.2(l)(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 "primarily" employed in a managerial or executive capacity. See 
sections 101 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties; see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). Here, the petitioner claims that the beneficiary will manage the essential function of expanding 
business in the United States; however, the petitioner failed to provide a detailed breakdown of the 
beneficiary's job duties to satisfy such a claim. The petitioner failed to articulate the beneficiary's duties as a 
function manager and failed to provide a breakdown indicating the amount of time the beneficiary spends on 
duties that would clearly demonstrate he manages the essential function of expanding business in the United 
States. 
Page 10 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101 (a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
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. 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. The beneficiary in this matter has 
not been shown to be employed in a primarily executive capacity. The petitioner failed to demonstrate that 
the beneficiary's duties will primarily focus on the broad goals and policies of the organization rather than 
require him to focus on day-to-day operations. The petitioner has failed to articulate how the beneficiary's 
subordinates will relieve him from performing non-qualifying administrative and operational duties. 
The AAO notes 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 § 101(a)(44)(C) of the Act, 8 U.S.c. § 1101(a)(44)(C). In reviewing the relevance of the number of 
employees a petitioner has, however, 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. U.S. Citizenship and Immigration Services 469 F. 3d 1313,1316 (9th Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sa va, 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). 
Here, the petitioner indicates that the beneficiary has two subordinates, a business development manager and 
a customer service representative. Although the petitioner submitted job details for each position, it is unclear 
how these subordinates will relieve the beneficiary from performing other non-qualifying administrative and 
operational duties associated with the day-to-day operations of the U.S. company. The petitioner indicates 
that it will hire additional employees in the future; however, the petitioner must establish eligibility at the time 
of filing the nonimmigrant visa petition. A visa petition may not be approved based on speculation of future 
eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm'r. 1971). 
Page 11 
The beneficiary in this matter has not been shown to be employed in a primarily managerial or executive 
capacity or as a function manager. The AAO will uphold the director's determination that the petitioner has 
not established that the beneficiary will be employed in a primarily managerial or executive capacity. 
Accordingly, the appeal will be dismissed. 
III. Additional Considerations 
The AAO notes that the beneficiary had an H-lB classification petition filed in his behalf by the petitioner on 
September 2, 2009 that was approved on September 8, 2009. On July 29, 2010, counsel for the petitioner 
submitted a request to withdraw said petition because the beneficiary "will no longer be employed by [the 
petitioner] as of July 30, 2010." The AAO notes that, based on this additional information, it cannot be 
concluded that the petitioner currently intends to employ the beneficiary in the proffered position. 
IV. Conclusion 
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. 
ORDER: The appeal is dismissed.