dismissed L-1A Case: Wholesale Distribution

U.S. Department of Homeland Secnrity
20 Massachusetts Ave., N.W., Rrn. 3000
Washington, DC 20529
.U.S. Citizenship
and Immigration
Services
_UIIlT~ C.1'YI1J)'IW'
~ ~. ~
File: EAC 07 03551562 Office: VERMONT SERVICE CENTER Date:. DEC 21 .,
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:
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.
R~
Administrative Appeals Office
www.uscis.gov
EAC 07 03551562
Page 2
DISCUSSION: The Director, Vermont 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 filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act) , 8
U.S.C. § I 10I(a)(l5)(L) . ' The petitioner , a Texas corporation , is a wholesaler and distributor of metall ic
balloons . It claims to be a subsidiary of Convertidora Industrial S'A. de C.V ., located inGuadalajara , Mexico .
The petitioner seeks to employ the beneficiary as its logistic and distribution manager for a three-year period .
, ' .
The director denied the petitionconcluding that the petitioner failed to establish that the beneficiary would be
employed by the U.S . entity in a primarily managerial or executive capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to theAAO for review. On appeal , counsel for the petitioner asserts that the director
erroneously denied the petition based solely on a finding that the beneficiary's subordinates would not be
'managers or professionals . Counsel contends that the d irector tailed to consider the beneficiary's proposed
duties and the beneficiary's management of an essential function of the company . Finally , counsel asserts that
the director made incorrect assumptions regarding the beneficiary's subordinates and the nature of the
petitioner's business. Counsel submits a brief and additional evidence in support of the appeal. '
To establish eligibility for the L:,1 nonimmigrant visa classification , the petit ioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Spccifically. .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 with in 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 petitionfiled 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)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive , managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed. .
(iii) Evidence that. the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition .
(iv) Evidence that the alien 's prior year of employment' abroad was ina 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.
EAC 07 03551562
Page 3
The sole issue addressed by the director is whether the petitioner established that it will employ the
'beneficiary in a primarily managerial or executi ve capacity.
Section 101(a)(44)(A) of theAct , 8 U .S.c. § 1 10I(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 departmeQt, subdivision, funct ion, 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 discreti~n 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. § I 10I(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 discret ionary 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 November 20 , 2006. In an appended statement, -the petitioner
described the beneficiary's proposed duties as Logistic and Distribution Manager as follows:
[The beneficiary] will direct the warehousing, packaging , and shipp ing activities of the
Houston office . Specifically, [the beneficiary's] responsibilities will include : quality control;
supervising, hiring, and training of employees; safety and housekeeping; and receiving,
storing and shipping products on-time and accurately in order to continuously replenish
customer demand . In addition, he will be responsible for managing the entire warehouse
operations through team effort and maintaining department procedures and processes.
Further, [the beneficiary] will continuously review logistic flow in order to optimize
EAC 07 03551562
Page 4
warehouse operations, teams, and equipment and assume responsibility and decision-making
for warehouse procedures regarding the security of inventory and physical assets.
The petitioner identified the following specific responsibilities associated with this proposed role:
• Quality control ;
• Supervising , hiring and training of employees;
' . . , Safety and housekeeping ;
• Receivif.lg,storing, and shipping products on-time and accurately;
• Maintaining department proceduresandprocesses;
• Optimizing warehouse operations , teams, and equipment; and
• Assuming responsibility and decision-making for warehouse procedures regarding the
security of inventory and physical assets.
The petitioner indicated that the U :S. company had 13 employees as of the date of filing and provided a list of
employees by name and job title . The employees list included four warehouse employees, including a
coordinator and three assistants .
The director issued a request for additional evidence o~ December 19, 2006, which , in part, instructed the
petitioner to provide additional evidence to 'establish that the company will employ the beneficiary in a
primarily managerial or executive capacity. Specifically , the director requested: (1) a comprehensive
description of the beneficiary's duties and an explanation as to how the duties will be managerial or executive
in nature; (2) alist of all U .S. employees by name and position title accompanied by a complete position
description for each employee and a breakdown of the number of hours devoted to each of the employees' job
duties on a weekly basis; (3) copies of the petitioner's payroll records for the months of October and
November 2006; (4) copies ofthe petitioner's IRS Forms 941 , Employer's Quarterly Federal Tax Return , for
the first three quarters of2006 ; and (5) copies of IRS Forms W-2 and 1099 issued by the petitioner in 2005.
In a response dated March 15, 2007, counsel for the petitioner provided a list of duties in response to the
director's request for a "comprehensive description" of the beneficiary's proposed position. In response to the
request, counsel and the petitioner identified the proposed position as "warehouse and logistic manager"
rather than "logist ic and distribution manager ." The same l ist of duties was provided ina separate statement
that accompanied the petitioner's organizational chart , which indicates that the beneficiary will supervise the
warehouse coordinator and three warehouse assistants. The duties were described as follows .
• Manag ing the warehouse employees, ' including hiring, training and , firing (10
hours/week);
• Administering the safety program to comply with zero accidents policy and safety
regulations;
• Ensuring that all orders are shipped on timeon adaily basis (10 hours/week) ;
• Verifying and maintaining accurate inventory and shipping reports (10 hours /week);
• Controlling the budget, inventory , and materials for the warehouse (10 hours /week);
• Managing all packaging and shipping within the United ,States and international
destinations; and
• Identify ing production and shipping issues and recommending changes to improve
productivity, timeliness-and efficiency.
EAC 07 035 51562
Page S
The petitioner indicated that the warehouse coordinator is responsible for: assisting the warehouse and logistic
manager (20 hours per week); managing the schedule of the warehouse assistants and other warehouse
employees (10 hours per week) ; and informing the warehouse and logistic manager of any problems and
recommending solutions (10 hours per week). The petitioner stated that the three warehouse assistants are
responsible for counting inventories and stock availability (5 hours per week) ; handling products to be
shipped for customers (15 hours per week) ; processing purchase orders for customers (15 hours per week);
and handling related tas~ as needed (5 hours per week). _
The petitioner provided all requested IRS Forms W-2'and Forms 941 , aswell as its payroll .registers for the
months of October, November and December 2006. The .payroll registers confirm that the beneficiary's
proposed subordinates worked for the petitioner on a full-time basis at the time the petition was filed. A
review of the evidence submitted- shows that the three warehouse assistants were hired. during the first and
third quarters of 2006. .
The director denied the petition on March 22, 2007, concluding that the petitioner failed to establish that the
beneficiary would be employed in a primarily managerial or executive capacity : With respect to the .
beneficiary's subordinate employees , the director , relying on the petitioner's Form 941 for the third quarter of
2006 and on the petitioner's 2005 Forms W-2, determined that the three warehouse assistants "occupy
positions which can be deemed fungible at best and part-time at worst." The director determined that persons
working in a warehouse would not be required to possess college degrees and therefore could not be
considered professionals, and further concluded that the subordinate positions would not be managerial or
executive in nature. . . . ' ,
The director also observed ,that the petitioner's descriptions of the beneficiary's duties "identify general
managerial functions ," and do not specify exactly what the beneficiary will be doing .within the context of the
petitioner's current staffing structure. The director concluded that "as it is not clear who is actually providing
the goods and services of the United States operation to its customers/clients besides the beneficiary, it seems
likely that the beneficiary will perform or help to perform these duties." The director determined that the
beneficiary would provide services to the petitioner's clients rather than directing a facet of the organization.
On appeal , counsel for the petitioner states the director erroneously denied the petition based on his belief that
the beneficiary would not supervise managers or profes sional s, and provid~d no legal or factual' bases for his
conclusions. Counsel states that the director's decision suggests that he focused solely on whether the
beneficiaryqualified as a manager based on his supervision of managerial or professional employees , while. .
ignoring the rest of the regulatory criteria for "managerial capacity ." Counsel asserts that a managerial
employee may also manage an essential function within an organization, or a department or subdivision of the
• organization, and is not required to supervise managerial or professional employees.
. ,
Counsel also notes that federal regulations and legal precedents prohibit US. Citizenship and Immigration
Services from denying an L-l A petition based on the size of the employer or the number of employees to be
managed. Counsel cites unpublishedAAO decis ions and Mars Jewelers , Inc. v. INS, 702 F : Supp. 1570 , 1573
(N.D. Ga. 1988) in support of this claim. Counsel alleges that the director did not provide any evidence or
discussion t? support his conclusion that the beneficiary would be required to provide the goods and/or
services of the business , and contends that the director's conclusion that three of the beneficiary's subordinates
are part-time employees is based on "an erroneous ' and egregious interpretation" of the evidence submitted.
EAC 07 03551562
Page 6 .
Counsel attempts to clarify how the beneficiary will meet all elements of the statutory definition of
managerial capacity, in that he,will: manage the petitioning company; manage the essential function of the
company; have authority over personnel and functions ' at a senior level within the company; and exercise
discretion over day-to-day operations and functions for which he has authority. Counsel asserts that .the
beneficiary's proposed position also meets the statutory criteria of "executive capacity" pursuant to section
101(a)(44)(B) of the Act, and alleges that the d irector did not consider his eligibility under such criteria .
Finally , counsel asserts that the director did not look at the entirety of the job duties the beneficiary will
perform , nor consider whether the duties were , essential and controlling to the .function of the petitioner's'
business . Counsel alleges that the director applied an "imaginary sta~te and regulation" under which only a .
beneficiary who supervises professionals could qualify as a manager or executive.
Upon review of the petition and the evidence ; and for the reasons discussed herein, the petitioner has not
established that the beneficiary will be employed by the United States entity in a managerial or executive
capacity. The AAO agrees with counsel that certain comments made by the director , as discussed further
below , were flawed ; however, the AAO must concur with the director's ultimate conclusion that the petitioner
did not meet its burden of proof with respect to establish that the beneficiary's duties would be primarily
managerial or executive in nature .
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 execut ive or manager ial capacity . Id. The definitions of executive arid managerial capacity have
two separate requirements. 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
primaril y performs these specified responsibilities and does not spend a majority of his or her time on day-to­
day functions. Champion World, Inc. v. INS , 940 F.2d 1533 (Table) , 1991 WL 144470 (9th Cir. July 30 ,
1991).
The petitioner initially provided only a general overview of the beneficiary's proposed duties ' that failed to
establish what specific managerial or executive tasks he would .be performing as logistic and distribution
manager. For example, the beneficiary's responsibilities included such undefined tasks as "quality control,"
"safety and housekeeping ," "maintaining department processes and procedures ," "managing theeritire
warehouse operations, teams and equipment ," reviewing "logistic flow ," and "optimizing warehouse
operations." These duties convey little understanding as to what the beneficiary will do on a-day-to-day basis
in the proposed position, and did not clearly establish that the beneficiary's responsibilities or his level ' of
authority would be managerial or executive in nature.. 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. 1103 (E .n.N.y.
1989), affd , 905 F.2d 41 (2d . Cir. 1990). Furthermore , the beneficiary's responsibility for "receiving ; storing,
and shipping products on-time and accurately ," suggested that he would be directly performing certain routine
duties of his department, rather than primarily managing the warehousing , packaging and shipping function as
claimed by the petitioner.
Accordingly, the director reasonably requested a comprehensive description of the beneficiary's proposed
duties to expand upon the list of seven general duties initially submitted. In response, the petitioner assigned
EAC 07 035 51562
Page 7
the beneficiary a new positron title, and 'provided a new list of seven vague .duties, yet provided' no
explanation for these revisions . The response fell significantly short of the comprehensive description
requested by the director. Any failure to submit requested evidence that precludes a material line of inquiry
shall be grounds for denying ,the petition. 8 C.F.R.§ 103.2(b)(14). While the petitioner initially indicated
that the beneficiary would perform such potentially non-managerial duties as "quality control ," "safety and
housekeeping," and "receiving, storing and sh ipping products," these duties were absent from the revised
position description . Instead , the petitioner indicated that the beneficiary would "administer the safety
program," "manage all packaging and shipping ," and "ensure" that all orders are shipped on time on a daily
basis . The petitioner also added responsibility for controlling budgeting , inventory and materials , a duty
which was not included in- the initial position description . The initial description appeared to have the
beneficiary doing more of the actual work, while the second iteration of the job has the beneficiary managing
more of the work done in the petitioner's warehousing and shipping department.
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the
benefit sought has been established . 8 C.F.R. § 103.2(b)(8). When responding to a request for evidence, a
petitioner cannot offer a new position to the beneficiary , or materially change a position's title, its level of
authority within the organizational hierarchy, or its .associated job respons ibilities. The petitioner must
establish that the position offered to the beneficiary when the petition was filed merits classification as a
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm . 1978).
The information provided by the petitioner in its response to the director's request for further evidence did not
clarify or provide more specificity to the original duties of the position, but rather added new generic duties to
the job description . '
Regardless, neither position description clearly identifies what the beneficiary's primary tasks will be on a
day-to-daybasis. The petitioner did not clarify the managerial or executive duties associated with
"administering the safety program ," "ensuring that all orders are shipped ," "maintaining inventory and
shipping reports ," or "managing packaging and shipping ." 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 . at 1108 . Furthermore , although the
petitioner .attempted to indicate ' how the beneficiary's time would be allocated among his responsibilities ,
based on the petitioner's representations, he would devote all of his time to only four of the seven duties '
listed . The AAO cannot consider this a complete description of how the beneficiary's time would be allocated.
Overall , the petitioner provided two somewhat different job descriptions, two different job titles , and ari
incomplete account ' of how the beneficiary's time would be allocated among his various responsibilities.
Based on the current record, the AAO is unable to determine the actual duties to be performed by the
beneficiary, whether the clairr:ted managerial duties constitute the majority of the beneficiary's duties , or
whether the beneficiary would primarily perform non-managerial administrative or operational duties. The
petitioner's description of the beneficiary's job duties does not clearly ' establish what proportion of the
beneficiary's duties is managerial in nature , and what proportion is actually non-managerial. See Republic of
Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991).
While the director specifically addressed the inadequacy of the submitted position descriptions , neither
counsel nor the petitioner have offered additional evidence on appeal to clarify the beneficiary's actual duties.
EAC 07 03551562
Page 8
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Soffici, 22 I&N ·Dec. 158,.165 (Comm . 1998) (citing Matter
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)) . Counsel merely recites the statutory
requirements and insists that the beneficiary meets all criteria for both managerial and executive capacity.
Without documentary evidence to support the claim, the assertions of counsel wiII not satisfy the petitioner's
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena, 19
I&N Dec. 533 ,534 (BIA 1988) ; Matter ofLaureano , 19 I&N Dec. 1 (BIA ,1983); Matter ofRamirez-Sanchez,
17 I&N Dec. 503, 506 (BIA 1980).
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 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. § 1101(a)(44)(A)(i) and (ii). Personnel
managers are required to primarily supervise and control the work of other supervisory , professional, or
-rnanagerial 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 amanagerial capacity merelyby virtue of
the supervisor's supervisory duties unless the employees supervised are ' professiona1." Section
IOI(a)(44)(A)(iv) of the Act ; 8 C.P.R. § 214.2(l)(i)(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.P.R . § 214.2(l)(I)(ii)(B)(3).
, .
The petitioner does not claim ' that the beneficiary's four subordinate employees would be employed in a
professional or managerial capacity. While the warehouse coordinator is senior toth~ warehouse assistants,
the petitioner has made . little distinction between his duties and those to be performed by the beneficiary,
noting that this employee would spend at least half of his time "assisting" the beneficiary, which raises
questions as to whether there wouldbe overlap between their job duties. As the beneficiary's position appears
to be newly created, it is reasonable to assume that the warehouse coordinator is currently the senior
employee in. the warehouse department and likely performs many of the duties to be undertaken by the
beneficiary. The AAO concurs with the director that the beneficiary cannot be considered a "personnel
manager" based on the 'peti .tioner's' current staffing levels. However, as correctly noted by counsel, the
beneficiary does not have to supervise and control supervisory, managerial or professional personnel in order
to meet the statutory requirements for "managerial capacity."
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. § llQl(a)(44)(A)(ii). Theterm "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 position description that clearlydescribes 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.P.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. In this matter, the petitioner has not provided evidence that thebeneficiary manages
an essential function.
"
EAC 07 035 5J562
Page 9
On appeal counsel states that "an essential function of the company is to meet the consumers' demand by
packaging balloons according to customized requirements, making sure there is enough inventory to meet
.orders, and shipping to customer throughout the United States and worldwide." The fact that the beneficiary
will be the senior person within the petitioner's warehouse and logistics department does not automatically
establish that he should be deemed a function manager. Whether the beneficiary is a function manager turns
on whether the petitioner has sustained its burden of proving that his duties are "primarily" managerial. See
sections 101(a)(44)(A) of the Act. The actual duties themselves reveal the true nature of the employment.
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. As discussed above, the record contains little
information regarding the nature of the beneficiary's day-to-day job duties.
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of
the organization, may not be the determining factor in denying a visa to a multinational manager, or executive.
As.required by section 101(a)(44)(C) ofthe Act, if staffing levels are used as a factor in determining whether
an individual is acting in a managerial or executive capacity, USCIS 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 an 11-year-old wholesale distribution company with annual gross .
sales of nearly $14 million. The company's warehouse currently employs a coordinator who will primarily
assist the beneficiary and three assistants who process purchase orders, handle products for shipping and
periodically count inventories and stock availability. Based on the limited position descriptions provided for
the beneficiary and his proposed subordinates, it is not been demonstrated that the beneficiary's subordinates
would relieve him from involvement in the day-to-day duties of his department: It is not clear who on the
petitioner's staff would be responsible for interfacing with shipping and trucking companies to schedule pick­
ups and deliveries to and from the petitioner's warehouse, purchasing inventory to reple.nish stock, purchasing
warehouse supplies and equipment, quality control, and other tasks associated with the warehousing,
inventory and distribution requirements of the business. The AAO can not assume that these duties would be
assigned to the beneficiary's subordinates.
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 managerial or executive capacity, pursuant to
sections 101(a)(44)(A) and (B) of the Act. As discussed above, the petitioner has not established this
essential element of eligibility.
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
managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad
goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual
will not be deemed an executive under the statute simply because they have an executive title or because they
"direct" the enterprise as the owner or sole managerial employee. On appeal, counsel asserts that the
beneficiary's proposed position will be in an executive capacity, but offers no support for this claim. Upon
review, the AAO finds no evidence that the beneficiary's proposed role would be primarily focused on the
broad goals and policies of the organization. Without documentary evidence to support the claim, the
EAC 07 03551562
Page 10
assertions of counsel will .not satisfy the petitioner's burden of proof. The unsupported assertions of counsel
do not constitute evidence . Matter of Obaigbena , 19 I&N Dec. 533 , 534 (BrA 1988); Matter ofLaureano , 19
I&N Dec. 1 (BIA 1983) ; Matter ofRamirez-Sanch ez, 17 I&N Dec. 503 , 506 (BrA 1980).
On appeal, counsel cites Mars Jewelers , Inc. v. INS, 702 F. Supp. 1570 , 1573 (N'D. Ga. 1988). Counsel
asserts that in this matter; the District Court found that the terms manager and executive could not be limited
to persons who supervise a large number of employees or large enterprises . However , in contrast to the broad
precedential authority of the case law of a United States circuit court , the AAO is not bound to follow the
published decision of a United States district court in matters arising within the same district. See Matter ofK­
S-, 20 I&N Dec. 715 (BIA 1993) . Although the reason ing underlying a district judge's decision will be given
due consideration when it is properly before the AAO , the analysis does not have to be followed as a matter of
law. Id. at 719. The AAO has long interpreted the regulations and statute to prohibit discrimination against
.small or medium size businesses. However, the AAO has consistently required the petitioner to establish that
the beneficiary's position consists of primarily managerial and executive duties and that the .petitioner has
sufficient personnel to relieve . the beneficiary frOI,11 performing operational and administrative tasks. As
discussed above, the petitioner has not met this burden ..
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the
requirements of serving in a managerial and executive capacity for L-l classification even though he was the
sole employee. Counsel has furnished no e vidence to establish that the facts Of the instant petition are
analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO precedent
decisions are binding on all CIS employees in the administration of the Act , unpublished decisions are not
similarly binding .
Based on the foregoing d iscussion, the petitioner has not established that the beneficiary would be employed
in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed.
A remaining issue in this matter is whether the petitioner established that it is .doing business as defined in the
regulations. See 8 C.F .R. § 214.2(l)(l)(ii)(H) . .In his decision dated March 20, 2007, the director made
observations regarding photographs submitted by the petitioner at the time of filing which "depict no easily
identifiable individuals" working at the day-to-day functioning of the United States entity, and which depict
no customers. The d irector acknowledged in h is decision that the petitioner's evidence establishes that the
. U.S. company is actively doing business. However, based on the photographs , the director stated that "the
veracity of the instant petitioning entity as a functioning business entity for immigration purposes can be
called into question." .
On appeal , counsel for the petitioner objects to the director's findings and notes that the petitioner is a
wholesaler and therefore would never have customers ' present in its warehouse . Counsel submits new. .
photographs depicting various employees at work in the petitioner's warehouse and offices . .
Upon review , the pet itioner has .established that the 'U.S. company is do ing business .as defined in the
regulations . The petitioner has submitted substantial evidence of its business activities, including all evidence
that was requested in this regard in the director's request for evidence . The AAO notes that the photographs in
.question, while they do not show any employees at work at the time the photographs were taken, clearly
depict the petitioner's office arid warehouse premises and show what appears to be an active business . If the
director had specific questions regarding the photographs, then new photographs should have been requested
EAC 07 035 51562'
Page 11
prior to the decision. The director specifically acknowledged that the evidence submitted in response to the
request for evidence established that the company is doing business, and there was no basis for questioning
the petitioner's credibility in this regard based on the photographs. The director's comments regarding the
submitted photographs will be withdrawn.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 ofthe ACt, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER:· The appeal is dismissed.