dismissed L-1A Case: Wholesale Trade

' lliid~' &n ooleredto
preventclearly unwsrranted
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Massachus etts Ave., N ~ W., Rrn. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
1­7
File: EAC07071.52607 Office: VERMONT SERVICE CENTER Date: DECO 42007
INRE: Petitioner :
Beneficiary :
Petition:
. . .
Petition fora Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L)ofthe Immigration
and Nationality Act, 8 U .S.c. § ·110l (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 offic~ that originally decided your case. Any further inquiry must be made to that office .
. . . ~ .
. . ~
. Ro ert . iemann , Chief
Administrative Appeals Office
www.uscis.gov
EA:C 07 071 52607
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 AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager as an
L-1A nonimmigrant intracompany transferee pursuant to section 101 (a)(15)(L) , of the Immigration and
Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(L) . The petitioner, a California corporation, operates ,as an
importer and wholesaler of lighters and power accessories ; The petitioner claims to be a subsidiary of
The beneficiary was previously granted L-IA classification
in order to open a new office in the United States. The petitioner now seeks to extend the beneficiary's stay
for two additional years.
The director denied the petition concluding that the petitioner did not establish that the beneficiary .would be
employed -in a prim~rily managerial or executive capacity under the extended petition.
The petitioner subsequently filed an appeal. ' , The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review . ' On appeal , counsel for the petitioner asserts that the director
abused her discretion in concluding that the beneficiary performs primarily non-managerial duties and by
assuming that the beneficiary does not manage other managers or professionals. Counsel asserts that the
beneficiary will be employed in a primarily managerial or executive capacity. Couns~l submits a brief and
additional evidence in support of the appeal.
The regulation at 8 C .F.R. §214.2(l)(3) states that an individual petition filed on Form 1-129 shall be
, accompanied by:
1
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(I)(ii)(G) of this section.
(ii) Evidence th~t the alien will be employed in an executive, managerial, or specialized
knowledge capacity , including a detailed description of the services 'to be performed.
J , (iii) Evidence that the alien has at least one continuous, year of full ' time employment
, abroad witha 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 qualifieshim/her to perform the intended
se~ices in the United States; however, the work in the United States neednotbe the
same work which the alien performed abroad .
The regulation at 8C.F.R . §214.2(l)(14)(ii) also provides that a visa petition , which involved theopening of a
", ' new office , may be extended by filing a new Form 'I-129, accompanied by the following: '
EAC 07 071 52607
Page 3
CA)
(B)
(C)
(D)
(E)
·Evidence that the United States and foreign entities are.still-qualifying organizations
as defined in paragraph (l)(1)(ii)(G) of this section;
Evidence that the United ·States . entity has been .doing business as defined III
paragraph (l)(1)(ii)(H) of this section for the previous year ;
A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended pet ~tion;
· A statement describing the staffing of the new operation, including the number of
employees a~d types of positions held accompanied by' evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
· capacity; and
Evidence of the financial status ofthe Unit~d States operation .
The sole issue addressed by the director is whether petitioner established that .the beneficiary ' would , be
employed in a managerial or executive capacity under the extended p~tition . .
Section lOl(a)(44)(A) of the Act, 8 U.S .c. .§ 1101(a)(44)(A) , defines the term "managerial capacity" as an
assignment within an organization in which the employee ' primarily :
(i) manages the organization , or a department , subdivi sion , function , Or component of
the organization ; . . .
(ii) supervises and coritrols 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 emplo yee or other employees are directly 'supervised , has the authority to .
hire and fire or ' recommend t1;lose as well as other personnel actionsfsuch -as
· promotion 'and leave authorization), or if no other employee is directly supervised ,
· functions at a senior level within the organizational hierarchy or with respe~t to the
function managed ; and "
(iv) . ~~ercises ' discretion over the day to day operations 'of .the activity or function for
which the employee has authority. A first line supervisor is riot considered to be
. acting in a managerial capacity merely by virtue of the sup.ervisor'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 "executi ve capacity" as an
assignment within an organization in which the employee primarily: . ' . . '
-.
EAC 07 071 52607
PageA
(i) directs the management of the organiZat ~on 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 discretionarydecision making; arid
(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 January 16,2007, ,In a letter dated December 26,2006, counsel for
the petitioner indicated that the beneficiary would perform the following duties as general manager of the
,U.S. company: .
1. He will determine company's policies and establish business goals. With business nature
in mind , he will take into consideration ' the company's marketing capability, financial
capability and human resource . He will also consider competitors' advantages 'and
disadvantages of marketing and financial capabilities and human resource. Furthermore ,
he will take into consideration the social and economic en vironment here in the United
States. Based upon all the above, he will determine and formulate the company's
policies: product policy , pricing policy, distribution policy , promotion policy, financial
policy and human resource policy. 'And he will set forth the company's business goals ,
including market share and revenue and profit.
2. He will ' direct the subordinate management. He will assign authorities and '
, responsibilities to the .subordinate management.They will establish their own objectives ,
working procedures and evaluation 'systems. He will review marketing and financial
reports to ensure 'that the company's objectives are achieved . He will also analyze
operations to evaluate company's performance and to determine areas ofcost reduction
and program improvement. 'He will direct financial and . budget activities to fund
operations and increase efficiency. He ~ill demand periodical written reports and routine
oral reports from the subordinate management. ' '
3. He will exerc ise his discretionary authority indecision-making . If the marketing
environment greatly changes, he will make resolution to change the company's business
.orientation or adjust the business goals. HeW-illalso decide on the adjustment of product
policy, pricing policy , distribution policy, promotion policy, financial policy and human
resource policy . .
4. He will periodically report to the parent company in China . He will report about 'the .'
performance of the US subsidiary and business opportunities here in the United States. .
. . . I
Also, he will receive information and instructions fromthe parent company. " .. '
EAC 07071 52607
Page 5
The petitioner stated on Form 1-129 that the U.S. company had four employees as of the date of filing. The
petitioner's' quarterly wage reports and tax returns through the third quarter of 2006 confirmed the
employment of three employees, including the beneficiary.
On January 23; 2007 , the director issued a request for additional evid~nce. The director instructed the
petitioner to submit: (1) a comprefiensive description of the beneficiary's duties and an explanation as to how
they will be managerial ()r executive in nature ; (2) names , position titles , and complete position descriptions
for all U.S. employees , to include a breakdown of the number of hours devoted to each employee's job duties
, on a weekly basis ; (3) payroll records for the m6nths' of November 'and December 2006; (4) copies of IRS
Forms W-2 and 1099 issued in 2006; and (5) a copy of the petitioner's IRS Form 941 for the fourth quarter of
2006.
In a response dated April 12, 2007,.counsel stated that the beneficiary will serve as the petitioner's president,
and as such "is the number one executive o{the company and manages other managers and,executives."
In an attached statement, the petitioner provided the following description of the beneficiary's duties :
(1) Develop and formulate the policies, plans and objectives of the company.
(2) Design and formulate the 'fiscal policies of-the company.
(3) Direct and manage the overall operation of the company with discretionary decision­
making power over all aspects of company's operation in~luding authority over the,
, personnel matters of the company and report only to the board of directors .
(4) Supervise mid-level 'managers who are in charge of directing and managing the daily
operation of each of divisions, and supervise the performance of professionals such as
sales specialists and accounting specialists .
(5) Plan and design all the new bu siness and ne~ investments.
The petitioner indicated that the beneficiary manages a sales manager, who possesses a master's degree and is
' responsible for: (I) preparing an annual marketing plan and developing sales and marketing strategy ; (2)
managing daily sales , contactingcustomers and taking orders; (3) arranging ail shipping and receiving ; (4). . . .
soliciting and evaluating new customers ; (5) developing e-business and updating the c~inpany website.and
(6) planning and attending busines s trade shows. '
The petitioner stated that 'the beneficiary also supervises an accounting assistant who possesses a "college
degree" and is responsible for basic accounting transactions, preparing sales invoices and payment checks,
bookkeeping, controlling inventories, managing accounts payable and receivable, and recruiting office and
warehouse temporary workers, .Finally, 'the petitioner indicated that it employs a "2007. newly hired"
warehouse manager who supervises shipping/receiving, follows up on orders and shipments with customers
and the factory, manages physical inventory , 'maintains a database , supervises warehouse . workers , and ,
arranges ,transportation/trucking.
The ' petIt IOner also provided an organizational chart, which shows that the sales manager supervises
independent sales 'representatives from Teichman Marketing , Christen Company and Momentum Marketing,
EAC 07 071 52607
Page 6
while the warehouse manager supervises "temporary labor from Labor Ready ." , The chart also identifies
employees to be hired in 2007 , which include an office manager , two sales assistants , and three additional
independent sales representatives. Counsel stated in his letter dated April 12, 2007 that the petitioner 'intends
to hire ten employees and 20 independent sales representatives in the coming year.
The petitioner provided copies ~f its Forms W-2 and 941 confirmingthat the benefic iary, thesales manager
and the accounting 'assistant were employed on a full-time basis as of December 31, 2006. The petitioner did
not provide copies of IRS Forms 1099 or other evidence of payments to the claimed contract labor and
independent sales representatives, nor did it provide evidence of wages paid to the warehouse manager, whose
exact hire date has .not been identified. The petitioner did provide a copy of its IRS Form 1120, U.S.
,Corporation Income Tax Return, for 2006, which did not indicate any commission payments or payments to
contractors during the year preceding the filing of the petition.
The director denied the petition on April 24 , 2007; concludirig that the petitioner had not established that the
beneficiary would be employed in a managerial or executive capacity tinder the extended petition . The
.director found that the duties outlined for .the beneficiary do not specify what he would be doing within the '
context of the petitioner's 'current staffing arrangement, 'and observed that ,the petitioner had not explained
why the beneficiary 's job title was changed from "general manager" to "president" subsequent to the filing of
the petition . The director ,also noted a discrepancy between the organizational chart and the number of
employees reported on the petitioner's quarterly payroll records' . The director acknowledged the petitioner's
claim that two of its employees have college degrees but found insufficient evidence to establish that they ,
w~rk in professional positions . The director also determined that while one employee holds the title of "sales
manager ," he appears to be performing the routine sales duties of the company, not performing managerial or
. . . I ' .
supervisory duties.
The director acknowledgedthat the petitioner achieved sales of $838,077 in 2006 and questioned whether a
single sales employee could plausibly relieve the beneficiary from involvement in the sales function. The
director concluded that the beneficiary would not be relieved from primarily performing non-qualifying duties
,for the U.S. company. . '
On appeal , counsel 'for the petitioner asserts that the beneficiary i~ employed in a .primarily managerial
capacity as he operates at a senior level with in the petitioner's organizational hierarchy and exercises
discretion over the company's functions . Counsel emphasizes that the petitioner has hired "a number of
employees" and ach ieved significant sales during ,'its first year of operations . Counsel contends that the
director did not consider the petitioner's ' staffing levels in ' light of, its overall ,purpose , and stage of
development. Counsel emphasizes that while the company's staff size is small ; it has hired three independent
contractors as sales agents "to handle its marketing ,and sales," and three staffing companies to provide
laborers and other workers for short terms. Counsel asserts that the U.S. ,company is stillrelativelynew and '
I 'The director concluded that the petitioner's accounting assistant was employed on a pan-time basis during
2006, based on her gross wages 'of $9,000 for the year. A review of all of the payroll documentation submitted
shows that this employee was hired mid-year in 2006 and did in fact earn wages commensurate with full-tim'e
employment. '
EAC 07 071 52667'
'Page 7
will hire additional employees as it expands. Counsel concludes that the director erred in assuming that the
beneficiary would perform primarily non-managerial duties , and in concluding that the beneficiary will not
. supervise other managers and professionals.'
'Counsel also refers to an unpublished AAO decision in which toe AAO approved an L-IA petition for a
general manager of a.small international trading company , and provides a copy of the.decision for the record . .
Upon review , counsel's assertionsare not persuasive.The petitioner has not established that the beneficiary
.would be employed in a primarily managerial ' or executive capacity under the extended petition. When
examining the executive or managerial capacity of the beneficiary, the AAO wilLlook first to the petitioner's
description of the job duties. See 8 C.F.R. § 214.2(1)(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 . !d.
. . ." ' . .
The petitioner 's initial description of the beneficiary'sduties was vague and general and failed to convey any
understanding of what tasks the .beneficiary performs on a day-to-day basis. For example, the pet itioner
indicated that 'the beneficiary determines. .formulates and adjusts , as necessary the company's policies and '
goals regarding products, pri~ing, distribution, promotion , finances and human resources; The AAO
acknowledges that responsibility for establishing a company's goals and policies is typically considered an
executive-level responsibility. See section 101(a)(44)(B) of the Act. However, the petitioner did not describe
the policies developed , the amount of time the beneficiary allocates to policy-making , or enumerate the
specific tasks he performs to develop and implement policies . Specifics are clearly an important indication of
whether a benefic iary's duties are primaril y' 'executive or managerial in nature , otherwise meeting the
definitions would simpl y be a matter of reiterating the ,regulations . .Fedin Bros. Co ., Ltd. v . .Sava, 724 F. '
Supp. 1103 (E.D.N.Y: 1989), affd , 905 F.2d 41 (2d . Cir. 1990),'
The petitioner further indicated that the beneficiary "reviews [the] company's business reports to ensure that
the company's objectives are ' achieved," "analyzes, operat ions to evaluate company 's performance," and
"considers the social and economic environment" in developing policies and goals. The petitioner did not,
however, explain the types of reports the benefic iaryreviews , or indicate who performs non-managerial duties
. associated with collecting data or preparing reports , Nor d id the petitioner explain what specific tasks the
beneficiary performs to "analyze operations" or indicate who performs research regarding the U .S. "social
and economic environment. 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 fa iled 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.
Upon review of the vague job description submitted.jhe director requested a comprehensive de scription of
the beneficiary's dut ies. The pet itioner's responsedidnot assist in establishing .the nature of the beneficiary 's
actual duties and the 'amount of time he allocates to managerial or executive duties. .Rather, the petitioner
inexplicably changed the beneficiary's job title from "general manager" to "president" and submitted an even
less detailed description.unuch of which merely'parapm:ased the statutory definitions of managerial and
EAC 07 071 52607
Page 8
executive capacity. See sections 101(a)(M)(l\) imd (B) of the Act. Specifics are clearly . an important
indication ofwhether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting
the definitions would simply be a matter ofreiterating the regulations. Fedin Bros. Co., Ltd. v ..Sava, 724 F . .
Supp. 1103 . The petitioner's statements that the beneficiary will "deve~op and formulate the policies , plans
and objectives of the company," "direct and manage the overall operation of the company," and exercise
. "discretionary decision-making power" over the company, fall significantly short of satisfying the director's
request for a "comprehensive description" of the , beneficiary's duties . 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).
Furthermore, the petitioner's statement that the beneficiary will supervise "mid-level managers" who manage
their own "divisions" appears to be speculative at best. The only "manager" employed by the petitioner at the
time of filing was a sales manager whose actual duties including taking orders ~nd soliciting customers, rather
.than managing a division ofthe company and lower-level personnel. . . .
The definitions of executive and 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 primarily performs these specified responsibilities and
does not spend a majority of his or her time on day-to-day functions. Champion World, Inc .v. INS, 940 F.2d
1533 (Table), 1991 WL.14M70 (9th Cir. July 30, 1991). .
Overall , the record suggests that the beneficiary exercises the appropriate level of authority over the U.S.
company and.performs some duties which would be .considered managerial or executive in natura However, .
based on the current record, the AAO is unable to determine whether the claimed managerial and executive
duties constitute the majority of the beneficiary's 'duties, or whether the beneficiary ,is primarily 'engaged,'in
non-qualifying administrative ' or operational .duties . Moreover, the 'director specifically requested a
breakdown of the number of hours devoted to each employee's job duties on a weekly basis. The petitioner's
description of the beneficiary's job duties does not 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. C ir. 1991). "
Although the 'director specifically addressed the' deficiencies of the position description submitted for the
. beneficiary, counsel does not address the director's findings or the beneficiary's actual job duties on appeal.
Instead, counsel reiterates that the beneficiary is .employed ina primarily managerial or executive capacity
because he "operates at a senior level within the organizational hierarchy" and "exercises discretion over the
day-to-day-operations ." Without documentary evidence to support the claimthe assertions of counsel will not , '
satisfythe petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence.
Matter of Obaigbena , 19 I&N Dec. 533 , 534 (BIA 1988); Matter ofLaureano, 19I&N Dec . 1 (InA 1983);
Matt er ofRamirez-Sanchez , 17' I&N Dec. 503, 506 (BIA 1980). The record remains devoid of any detailed
description of the beneficiary's actual duties.
On appeal, counsel asserts that the director erred by finding that the beneficiary would not supervise managers
or professionals. Although the beneficiary is not required to supervise personnel , if it is claimed that he is a
EAC 07 071 52607
Page 9
manager because 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 wheth~r the beneficiarymanages professional employees /the AAO must evaluate whether the
subordinate positions require a baccalaureate degree a s a minimum for entry into the field of endeavor.
Section 101(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, eng ineers, lawyers, physicians , surgeons, and teachers in elementary or 'secondary
schools, colleges , academies, or seminaries." The termv'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 ofShih , 11 I&N Dec. 686 (D.D. 1966) .
Th~iefore , the AAO must focus on the level of education 'required by the position , rather than the degree held
by the subordinate employee. The possession of abachelor'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 indicates that account assistant has a "college degree" while
the sales manager has either a master of science or an M.B .A. The petitioner has not identified whether either
employee completed studies in a specific specialty relevant to their respective positions. Regardless, the
descriptions of the subordinates' duties, considered in light of the nature ,of the petitioner's business as an
importer and distributor 'of ligh~ers , .does not establish that the . beneficiary 's ' ~ ub ord i n ate s would be
performing in a profe ssional capacity.
, ': -
. ,
Nor has the petitioner shoWn that any of these emplo yees supervise subordinate staff members or manage a
clearly defined 'department or function of 'the petitioner , such that they could be classified as managers or
supervisors. Although the petitioner's organizational chart for the sales manager suggests that he supervises
contracted or commissioned sales agents, the petitioner's description of this position does not indicate any,
supervisory authority. Furthermore, the job description includes such routine tasks as contacting customers,
taking orders, arranging shipping and receiving and solicit ing new customers. . Moreover , the record does not
establish that the company actually utilized the services 'of the independent sales representatives id~ntified on
,the organizational chart. The petitioner declined,to respond to the director 's request for evidence of payments
to contract employees .. and the petitioner's 2006 corporate tax returnsuggests that no such payments were ,
made through December 3i,2006, approximately two week s before the petition was filed. 'The petitioner also
,chiims to employ a warehouse manager who -supervises temporary. laborers, but the petitioner has not
,submitted documentary evidence to corroborate the employment of either the manager or the contract labor.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of Soffici, 22I&N Dec. 158, 165 (Comm. 1998) (citing Matter
ofTreasure Craft ofCalifornia, 14 I&N Dec.. 19.0 (Reg. Comm. 1972)). , The petitioner has not shown that the
beneficiary's subordinate employees are .supervisors , professionals or managers , as required' by section
, 101(a)(41)(A)(i'i) of the Act " ,
, Counsel further argues that the director did not take into consideration the reasonable needs of the petitioning
entity in determining whether the beneficiary would be employed in a primarily managerial or executive
\ -,
" , "
EAC, 07 071 52607
Page 10 .
capacity. As required by section 101(a)(44)(C) of the Act, if staffing levels are used asa 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. In the present matter , however, the regulations provide strict evidentiary requirements for
the extension of a "new office" petition and require USCIS to exam'irie the organizational structure and
staffing levels of the petitioner. See 8 C.F.R. § 214.2(l)(l4)(ii)(D) . , The reguhition at. 8 C.F.R. §
214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of the petition to
support an executive or managerial position. There is no provision in CIS regulations that allows for an
extension of this one-year period. If the business does not have sufficient staffing after one year to relieve the
beneficiary from primarily performing operational and administrative tasks; the petitioner is ineligible by
regulation for an extension. In the instant matter , the petitioner has not reached the point that it can employ
the beneficiary in a predominantly managerial or executive position.
The petitioner is a one-year-old company operating as an importer and wholesaler of lighters manufactured in '
China . It achieved -grosssalesof $838 ,077 in 2006 . The petitioner claims to employ a total of four employees ,
three independent sales representatives, and temporary warehouse labor. However , the documentary evidence
submitted by the ,petitioner corroborates the employment of only the beneficiary, the sales manager and the
accounting assistant. The AAO acknowledges that it is possible that the warehouse manager was hired·during ,
the first few weeks of 2007; however, the petitioner has had ample opportunity to pro vide 'evidence of his
employment, particularly as the director specifically addressed this deficiency in her decision. The director
also specifically addressed ,the petitioner's apparent lack .of warehouse space, based on the photographs
submitted by the petitioner. Counsel does not address the director 's comments on appeal. The AAO must
conclude that the pet itioner did not employ the warehouse manager at the time the petition was filed.
o ' • • •
As 'an import and wholesale company, the petit ioner reasonably requires employees toperfonn market
research, to market, advertise and sell its products in the United States, to discuss .orders with customers ,to
respond to product inquiries , to coordinate shipments with the Chinese manufacturer and monitor production
and delivery schedules, to interface with international freight forwarders, import/export agents, and domestic
.trucking and distribution companies, to monitor inventory, to receive deliveries, to coordinate warehouse
operations, to perform day-to-day functions associated with the company's finances and administration , and
to perform various other non-managerial, non-executive duties associated with the,operation of an import arid
wholesale business . Based on the record of proceeding , the petitioner has not establi shed that the petitioner's '
current subordinate staff of two people would relieve the beneficiary from engaging in the day-to-day non­
managerial functions 'of the company. Considering the nature of the petitioner 's business, its organizational
structure ; and the volume of sales it is conducting , it is reasonable to conclude that the beneficiary is required
toperform some portion of the company 's day-to-day functions in order to meet the company 's reasonable
needs.
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be '
"primarily" employed in a -managerial or executive ' capacity as required by the ,statute . See ,sections
101(a)(44)(A) and (B) of the Act , 8 U.S .C. §§ 1101(a)(44)(A) and (B) . As discussed above, the petitioner has
, ,
not established this essential element of eligibility due ,to its failure to provide a detailed description of the
beneficiary's duties.
EAC 07 071 52607
Page 11
Although the d irector clearly noted the lack of employees to relieve the beneficiary from performing non-
. qualifying duties, counsel does not address the director's findings on appeal or otherwise attempt to clarify
who would relieve the beneficiary from performing ' these tasks. Instead , counsel insists that the
undocumented independent sales representati ves 'and temporary labor , along with the beneficiary's
subordinates , perform all the non-qualifying duties of the company. .Again, the unsupported assertions of
counsel do not constitute evidence . Matter of Obaigbena, .19 I&N Dec. 533, 534 (BIA 1988) ; Matter of
Laureano, 19 I&N D~c. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
Collectively, the lack 'of specifics in the beneficiary's .job -description and the absence of subordinates to
perform many of the duties that are reasonably required in the daily operation of this type of business raises
questions as to how much of the beneficiary's time can actually be devoted to'manager ial or executive duties.
As stated in the statute, the beneficiary must be primarily performing duties that are managerial or e xecutive.
See sections 101(a)(44)(A) and (B) of the Act: Furthermore, as noted abo ve, the petitioner bears the burden
of documenting what portion of the benefi ciary's duties will be managerial or executive and what proportion
will be non-managerial or non-executive. Republic ofTranskeiv. INS, 923 F.2d at 177. .Given the lack of
these percentages, the petitioner 's job description does not demonstrate that the . beneficiary will function
primarily as a manager or execut ive. While the petitioner indicates that it intends to hire additional staff in the
future, the petitioner must establish eligibility at the time of filing the nonimmigrant visa petition . A visa
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new
set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978).
Counsel further refers toan unpublished decis ion in which the AAO determined that the beneficiary met the
requirements of serving in a managerial and e xecutive capacity for L-l classification even, though he was the
sole ,employee. Counsel has furnished no evidence 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 employee's in the administration of the Act, unpublished decisions are not
similarly binding: .
Based on the evidence of record, it cannot be found that the beneficiary will be employed priinarily in a
qualifying managerial or executive capacity under the extend~d petition. For this reason ; the appeal will be
dismissed.' . ' . .
In visa petition proceedings , the burden of proving eligibility for the benefit sought remains entirely with the
petitioner . Section 291 of the Act, 8 U.S.c. § 1361..Here, that burden has .not been met.
ORDER: The appeal is dismissed.