dismissed L-1A Case: Watch Distribution

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
~PUBLIC COpy
u.S.Citizenship
and Immigration
Services
FILE: WAC0511051043 Office: CALIFORNIA SERVICE CENTER Date: 'JAN 312007
INRE: Petitioner:
Beneficiary:
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:
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.
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tf'RObertP. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 11051043
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 appeal will be
dismissed.
The petitioner is a California company and claims to be engaged in the import and distribution of
watches. The petitioner states that it is a wholly-owned subsidiary of Brilliant Watches Co., LLC located
in Dubai, the United Arab Emirates. Accordingly, the United States entity petitioned Citizenship and
Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-IA)
pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(l5)(L). The beneficiary was initially granted a one-year period of stay in L-IA status 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 in order to continue to fill the position of product development
manager for a two- year period.
The director denied the petition on August 5, 2005, concluding that the record contains insufficient
evidence to demonstrate that the beneficiary will be employed in a managerial or executive capacity. The
director suggested that it did not appear that any of the beneficiary's subordinates were professionals, and
thus the beneficiary will be primarily involved in performing the day-to-day services essential to
maintaining the business.
On appeal, counsel for the petitioner states that the beneficiary is employed in a managerial capacity and
asserts the director erred by denying the petition. Counsel asserts that the beneficiary manages an
essential function of the entire organization including both the foreign company and the U.S. company.
In addition, counsel asserts that the United States entity employs one account manager, one sales manager
and one assistant to the sales manager, who are professionals that relieve the beneficiary from performing
the day-to-day non-qualifying duties. Counsel submits a brief in support of the appeal and resubmits
documentation previously submitted.
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate
thereof in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) further 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.
WAC 05 11051043
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 him/her 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 to be addressed in this proceeding is whether the petitioner has established that the beneficiary
will be employed in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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;
(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), 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;
WAC 05 11051043
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(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 nonimmigrant petition was filed on March 10, 2005. The Form 1-129 indicates that the beneficiary will
be employed in the position of product development manager for the petitioner. In a letter of support dated
February 17,2005, the beneficiary's proposed duties in the U.S. are described as the following:
[The beneficiary] has occupied the highest managerial position of the [U.S. entity] since the
subsidiary was established. His responsibilities include developing the business in the
Americas and working with suppliers in Hong Kong, mainland China and Dubai to fine tune
and create the product line for sales throughout North and South America.
[The beneficiary] is currently responsible for directing all activities in the design and
development of all of our products between our American subsidiary, our corporate
headquarters and the manufacturers. [The beneficiary] will continue to occupy the highest
managerial position of the American subsidiary. He will continue to be responsible for
planning, formulating and implementing all administrative and operative policies and
procedures. Furthermore, [the beneficiary] will continue to set strategic planning and goals
for the subsidiary as well as establish strong sales growth in the America's.
The petitioner also submitted the U.S. company's IRS Form 1120, U.S. Corporation Income Tax Return, for
2004. The document indicates that in 2004, the petitioner paid $47,175 in wages and $48,100 in
compensation to the officers. In addition, the petitioner submitted the U.S. company's California Forms DE­
6, Employer's Quarterly Wage and Withholding Report for the quarters ended in December 2003, March
2004, June 2004, September 2004 and December 2004. The quarterly wage reports indicate that the United
States entity employed four employees, including the beneficiary, for most of the year and one additional
employee for the quarter ended in June 2004.
The director determined that the petitioner submitted insufficient evidence to process the petition. On
April 6, 2005, the director requested that the petitioner submit the following documentation: (1) a copy of
the United States company's organizational chart, including the name, job title, job duties, educational
level and annual salary of all employees supervised by the beneficiary; (2) copies of the U.S. company's
payroll summary, Form W-2 and W-3 evidencing wages paid to employees for 2003 and 2004; (3) copies
of the U.S. company's IRS Form 941, Employer's Federal Tax Return for all employees for the last four
quarters; and, (4) further evidence to establish that the beneficiary 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.
The petitioner submitted a response to the director's request for additional evidence on June 29, 2005.
Counsel for the petitioner indicated in a letter dated June 27, 2005 that the "Petitioner is a wholly-owned
subsidiary of [the foreign company] and is charged with the consolidated enterprise's Pan-American
operations. As such, it is a component of the enterprise's business." According to the organizational chart
submitted by the petitioner, it appears that the beneficiary is the "President of the Pan-American Operations/
WAC 05 11051043
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Group Product Development Manager" and he supervises a sales manager who in tum supervises a
saleswoman and a sales executive. It appears that the same individual fills the positions of "saleswoman" for
the U.S. company and "senior accountant" for the foreign company located in Dubai. In addition, the chart
indicates a second sales manager, four salesmen, a storekeeper, an "office boy" and a driver, who appear to be
employed by the foreign entity, although they are depicted as being under the beneficiary's ultimate
supervision. The submitted organizational chart is inconsistent with the letter of support submitted by the
petitioner dated June 20,2005. The letter by the managing director of the foreign company indicated that the
U.S. company employed an "office manager, sales associates and account manager." The chart does not
indicate that an office manager or an account manager are employed by the U.S. entity. It is incumbent upon
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92
(BIA 1988).
In addition, the petitioner submitted a list of duties performed by each employee of the U.S. company and the
foreign company, including their immigration status, educational level and salary. According to the list, the
beneficiary holds the position of President, Director of Pan-America Operations/Group Product Development
Manager. The beneficiary's proposed duties are described as the following:
1. OPERATION MANAGEMENT (time spent: 50%)
• Dictum: "Don't do different things, do things differently"
• Responsible for various aspects of operations for the US branch,
management of staff and guiding them to achieve their respective goals.
• Logistics and distributions management.
• Investigate and understand current American, Canadian, and Latin
American fashion trends and styles.
• Sales forecasting.
• Financial statements.
• Inventory control.
• Communicating with manufacturers around the world.
• International clientele relations.
2. MARKET RESEARCH & DEVELOPMENT (time spent: 500/0)
• Marketing activities like trade shows, exhibitions, etc.
• Study and analyze current trends of fashions in products, with respect to
various factors such as design, quality, appearance etc.
• Sales planning, forecasting and budgeting for a more beneficial turnover
and inventory management.
• Detailed market research, analysis of market and development of new sales
and marketing strategies in the US market.
• Exploring the potential of internet marketing.
• Administering sales growth
• Developing, planning and launching new products in the market.
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• Exploring the potential of various markets.
• Expanding sales to domestic and international markets at large.
• Pioneering new trends for a more competitive market.
The foreign company submitted a letter dated June 20, 2005 further discussing the beneficiary's duties as
product development manager for the u.s. entity as the following:
As reflected in the attached list of duties [see above], [the beneficiary] is currently
responsible for directing all activities in the design and development of all of our products
for our Pan-American component and reporting results to our corporate headquarters. [The
beneficiary] will continue to occupy the highest executive position of the Pan-American
component and subsidiary. [The beneficiary] has the authority to establish all goals and
policies for our Pan-American component, has wide latitude in discretionary decision­
making and only general supervision from me [managing director of foreign company] in
Dubai. Furthermore, [the beneficiary] will continue to set strategic planning goals for our
subsidiary. [The beneficiary] will continue to be responsible for planning, formulating and
implementing all growth to the Pan-American component of our operations.
We did not envision a large initial presence in American, because we do not have over­
whelming resources. Therefore, [the beneficiary] hired several subordinate employees
specifically an office manager, sales associates and accountant to conduct the daily activities
of the Pan-American component, so that he could focus on setting the policies and goals of
the component, and establish the short-term and long-term business plans. [The beneficiary]
works with salesmen in our Dubai office, he communicated with our manufacturers
concerning design trends, and establishes the policies of our Pan-American operations. [The
Beneficiary] reports those goals, plans and achievements to only me [managing director of
the foreign company]. [The beneficiary] has full autonomy because [the beneficiary]
understands the market at this point much better that any other executive.
The petitioner also submitted job descriptions for the two additional positions employed by the u.s.
company, the sales manager and the saleswoman. The sales manager is responsible for "day to day sales in
local market;" "assisting in sales planning;" "inventory management;" "assisting marketing development" and
"actively involved in launching new products." The position description for the employee indicated as
"saleswoman" on the chart is given the job title as "senior accountant and indoor sales" on the job description.
The senior accountant and indoor sales employee is responsible for the "supervision and general
administration;" "control of accounts receivable and payable;" "general accounting and bookkeeping;"
"preparation of financial statements and report to management;" and "supervising indoor sales."
The petitioner also submitted its California Forms DE-6, Quarterly Wage and Withholding Reports for
2003 and 2004, which confirms that the petitioner employed four employees for most of 2003 and 2004.
The four employees are indicated on the organizational chart as the beneficiary, the sales manager, the
sales executive and the saleswoman.
The director denied the petition on August 5, 2005 on the ground that the petitioner did not establish that
the beneficiary will be employed in a primarily managerial or executive capacity. The director observed
WAC 05 11051043
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that since the United States company consists of employees who do not appear to be professionals, it is
likely that the beneficiary will perform the duties required for the functions and day-to-day operations of
the business, rather than oversee the functions and/or the personnel that perform those duties. The
director cited from the petitioner's statements asserting that "the beneficiary manages the Pan-American
operations of the consolidated enterprises, which is an essential function within the consolidated
organization." The director stated that this argument is not convincing because the consolidated
enterprise is not the petitioner in the instant petition and will not be considered. The director stated that
"the claimed managerial duties of the beneficiary should be considered within the context of the
petitioning entity,
On appeal, counsel for the petitioner asserts that the beneficiary is employed in a primarily managerial
capacity for the entire organization, including both the foreign company and the U.S. company. In
addition, counsel for the petitioner asserts that the U.S. company employs a professional staff who
relieves the beneficiary from performing non-qualifying duties. Counsel for the petitioner reiterates the
job duties previously described for the beneficiary's position in the United States. Counsel further states
the following:
Here, [the beneficiary] acts as the sole executive officer, like the Managing Director of
Dubai, he employs an account manager to handle the approximately 300 wholesale
accounts now open, and he employs a sales manager who has an assistant to handle the
independent commissioned sales representatives. He also employs tax advisers and
accountants who prepare financial statements and tax returns. [The beneficiary] is the
sole executive of [the U.S. company] and directs its entire operations and expansion. He
employs only one sales manager, and one person who manages the accounts, know in the
business as an "account manager."
* * *
In light of organization's [sic] wholesale and distributor business, determining which
countries to target and sell in is perhaps with most important executive determination for
business expansion that could be made. The customers he contacts are the biggest
wholesalers in the world. The organization's business is to make sales, and to keep its
wholesalers satisfied. Therefore, on few occasions, [the beneficiary] has contacted large
accounts to ensure customer satisfaction. Finally, as the sole executive directing
business, [the beneficiary] is required to sign and certify financial statements and returns.
He vets [sic] the information and reports this information to the Managing Director in
Dubai.
On appeal, counsel asserts that the "director also states that salesmen have never been considered professional
positions." Counsel argues that it is "inappropriate and tantamount to saying that no industry which is
involved in sales is professional." In addition, counsel states that the director "focused only on the job titles
and not the duties and responsibilities before reaching the conclusion." Counsel asserts that the petitioner
submitted detailed information about three individuals employed by the U.S. entity who will relieve the
beneficiary from performing non-qualifying duties.
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Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not
established that the beneficiary would be employed in a managerial or executive capacity. When examining
the executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description
of the job duties. See 8 C.F.R. § 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 either in an
executive or managerial capacity. Id.
Here, while the beneficiary evidently exercises discretion over the day-to-day operations of the business,
the petitioner's description of his proposed duties suggests that the beneficiary's actual duties as of the
date of filing were and would continue to be providing the services of the business.
The beneficiary's proposed job description includes vague duties such as the beneficiary "is responsible
for directing all activities in the design and development of all of our products between our American
subsidiary, our corporate headquarters and the manufacturers;" "responsible for planning, formulating and
implementing all administrative and operative policies and procedures;" and "set strategic planning and
goals for the subsidiary as well as establish strong sales growth in the America's." Reciting the
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has failed to
provide any detail or explanation of the beneficiary's activities in the course of his daily routine. The
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
The job description also includes several non-qualifying duties such as the beneficiary will spend 50
percent of his time in operation management such as "responsible for investigating and understanding
current American, Canadian, and Latin American fashion trends and styles;" and responsible for "sales
forecasting; financial statements; inventory control; communicating with manufacturers around the world;
and international clientele relations." In addition, the beneficiary will spend 50 percent of his time on market
research and development which will include "marketing activities like trade shows, exhibitions, etc.;" "study
and analyze current trends of fashions in products, with respect to various factors such as design, quality,
appearance etc.;" "sales planning, forecasting and budgeting for a more beneficial turnover and inventory
management;" "detailed market research, analysis of market and development of new sales and marketing
strategies in the US market;" "exploring the potential of internet marketing;" and "developing, planning and
launching new products in the market." It appears that the beneficiary will be performing non-qualifying
duties associated with the petitioner's product and market research, sales promotion, purchasing and
inventory of the business rather then directing such activities through subordinate employees. An
employee who "primarily" performs the tasks necessary to produce a product or provide a service is not
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A)
and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive
duties); see also Matter ofChurch Scientology International, 19 I & N Dec. 593, 604 (Comm. 1988).
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has
sustained its burden of providing that his duties are "primarily'; managerial or executive. See sections
101(a)(44)(A) and (B) of the Act. The word "primarily" is defined as "at first," principally,' or "chiefly."
Webster's II New College Dictionary 877 (2001). Where an individual is "principally" or "chiefly"
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performing the tasks necessary to produce a product or to provide a service, that individual cannot also be
"principally" or "chiefly" perform managerial or executive duties.
As the United States company had only three other employees in total at the time of filing, one of which
appears to also be employed by the foreign company as a senior accountant, it is reasonable to assume,
and has not been proven otherwise, that the beneficiary is directly performing promotion, purchasing,
client relations, marketing and financial development, and all or many of the various operational tasks
inherent in operating a business on a daily basis, such as acquiring products, and maintaining inventory,
and performing market and product research, paying bills, and customer service. Based on the record of
proceeding, the beneficiary's job duties are principally composed of non-qualifying duties that preclude
him from functioning in a primarily managerial or executive role. Accordingly, the director reasonably
concluded that the beneficiary will be performing the day-to-day operations and directly be providing the
services of the business rather than directing such activities through subordinate employees.
On numerous occasions, the petitioner indicated that the U.S. company employs an account manager.
However, there is an inconsistency in the organizational chart that indicates an employee as
"saleswoman," and on the job descriptions that provides that same employee with the job title of "senior
accountant and indoor sales." In addition, it appears that the individual employed as "senior accountant
and indoor sales" employee is also employed by the foreign company as one of the two "senior
accountants" for the that company. The petitioner has not explained how this employee can perform the
duties as a senior accountant and indoor sales employee for a U.S. company while also performing the
duties as senior accountant for a company located in Dubai. It is incumbent upon the petitioner to resolve
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile
such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing
to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
As noted, the director based his decision partially on the size of the enterprise and the number of staff. As
required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether
an individual is acting in a managerial or executive capacity, CIS must take into account the reasonable
needs of the organization, in light of the overall purpose and stage of development of the organization.
At the time of filing, the petitioner was a three-year-old import and export company that claimed to have
a gross annual income of $2.3 million. The firm employed the beneficiary as product development
manager, one sales manager, one sales executive and one senior accountant who apparently also performs
some sales duties. Based on the petitioner's representations, it does not appear that the reasonable needs
of the petitioning company might plausibly be met by the services of the beneficiary as product
development manager and three additional employees. The petitioner has not identified any employees to
perform its purchasing, import, warehouse activities, and although the petitioner repeatedly referred to an
office manager, the record contains no evidence of such an employee, or any other employee to perform
the company's day-to-day administrative and clerical tasks. Collectively, the evidence raises serious
questions as to how much of the beneficiary's time could realistically be attributed to qualifying
managerial or executive duties. Regardless, the reasonable needs of the petitioner serve only as a factor
in evaluating the lack of staff in the context of reviewing the claimed managerial or executive duties. The
petitioner must still establish that the beneficiary is to be employed in the United States in a primarily
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managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed
above, the petitioner has not established this essential element of eligibility.
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather
the AAO must determine based on a totality of the record whether the description of the beneficiary's
duties represents a credible perspective of the beneficiary's role within the organizational hierarchy. The
record does not demonstrate that the beneficiary has a sufficient number of employees in the United
States employed full-time who could perform the non-managerial tasks associated with operating a multi­
million dollar business. The petitioner's general description of the beneficiary's duties and the lack of
sufficient personnel to perform these tasks make it impossible to conclude that the beneficiary would
plausibly perform primarily managerial or executive duties.
In addition, although the beneficiary is not required to supervise personnel, if it is claimed that he is
employed in a managerial capacity based on his supervision of 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 lOl(a)(32) of the Act, 8 U.S.C. § 1101(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 ofSea, 19 I&N Dec. 817 (Comm. 1988);
Matter ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 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 subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term
is defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary, for example, to perform the sales functions of the sales manager and sales executive,
or the bookkeeping responsibilities of the "senior accountant and indoor sales" employee, who are among
the beneficiary's subordinates.
Furthermore, on appeal, counsel for the petitioner indicates that the beneficiary manages an essential
function for the organization. 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
WAC 05 110 51043
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manages the function rather than performs the duties related to the function. An employee who primarily
performs the tasks necessary to produce a product or to provide services is not considered to be employed
in a managerial or executive capacity. Boyang, Ltd. v. I.NS., 67 F.3d 305 (Table), 1995 WL 576839 (9th
Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988)). In
this matter, the petitioner has not provided evidence that the beneficiary manages an essential function.
As discussed above, the totality of the record supports a conclusion that the beneficiary would be required
to perform primarily non-qualifying duties associated with the petitioner's day-to-day functions, as the
petitioner has not identified sufficient staff within the petitioner's organization, subordinate to the
beneficiary, who would relieve the beneficiary from performing routine duties inherent to operating the
business. The fact that the beneficiary has been given a managerial job title and general oversight
authority over the business is insufficient to elevate his position to that of a "function manager" as
contemplated by the governing statute and regulations. Again, the actual duties reveal the true nature of
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1103.
Finally, on appeal, counsel for the petitioner states that the U.S. company "employs a sales manager who
has an assistant to handle the independent commissioned sales representatives. He also employs tax
advisers and accountant who prepare financial statements and tax returns. H Although counsel states on
appeal that the petitioner has contractual employees in the areas of sales and accounting, the petitioner has
neither presented evidence to document the existence of these employees nor identified the services these
individuals provide. Additionally, the petitioner has not explained how the services of the contracted
employees would obviate the need for the beneficiary to primarily conduct the petitioner's business.
Without documentary evidence to support its statements, the petitioner does not meet its burden of proof
in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998).
Based upon the lack of a comprehensive job description, and the lack of evidence of the company's
staffing levels, it cannot be concluded that the beneficiary will be employed by the U.S. company in a
managerial or executive capacity. Based on the foregoing discussion, the appeal will be dismissed.
The prior approval of two nonimmigrant petitions filed by the petitioner on behalf of this beneficiary does
not preclude CIS from denying an extension of the original visa based on a reassessment of the
petitioner's or beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL
1240482 (5th Cir. 2004).
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and
contradictory assertions that are contained in the current record, the approvals would constitute material
and gross error on the part of the director. The AAO is not required to approve applications or petitions
where eligibility has not been demonstrated, merely because of prior approvals that may have been
erroneous. See, e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It
would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding precedent.
Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008
(1988).
In addition, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions
WAC0511051043
Page 12
on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). Based upon the lack of required evidence in the
current record, and due to the petitioner's failure to submit requested evidence, the AAO finds that the
director was justified in departing from the previous petition approvals and denying the instant request for
an extension of the beneficiary's status.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for the
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that
burden has not been met. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.