MATTER OFF-, INC.

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 28, 2016

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner, an importer and wholesaler of fruits and vegetables, seeks to extend the Beneficiary's temporary employment as its general manager under the L-1A nonimmigrant classification for intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). The L-1A classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee to the United States to work temporarily in an executive or managerial capacity.

The Director, California Service Center, denied the petition. The Director concluded that the Petitioner did not establish that the Beneficiary would be employed in a managerial or executive capacity under the extended petition.

In its appeal, the Petitioner submits additional evidence and states that the Director erred in concluding that the Beneficiary primarily performs non-qualifying duties, asserting that the Beneficiary spends more than half of her time performing qualifying managerial or executive duties, such as overseeing the expansion of the company and training its managers.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year within three years preceding the Beneficiary's application for admission into the United States. Section 101(a)(15)(L) of the Act. 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. Id.

The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, Petition for a Nonimmigrant Worker, shall be accompanied by:

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(i) Evidence that the petitioner and the organization which employed or will employ the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) ofthis 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 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 regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a new office, may be extended by filing a new Form I-129, accompanied by the following:

(A) Evidence that the United States and foreign entities are still qualifying organizations as defined in paragraph (l)(l)(ii)(G) ofthis section;

(B) Evidence that the United States entity has been doing business as defined in paragraph (l)(l)(ii)(H) of this section for the previous year;

(C) A statement of the duties performed by the beneficiary for the previous year and the duties the beneficiary will perform under the extended petition;

(D) A statement describing the staffing of the new operation, including the number of employees and types of positions held accompanied by evidence of wages paid to employees when the beneficiary will be employed in a management or executive capacity; and

(E) Evidence ofthe financial status ofthe United States operation.

II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY

The Director denied the petition based on a finding that the Petitioner did not establish that the Beneficiary would be employed in a managerial or executive capacity under the extended petition.

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Section 101(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)

(ii)

(iii)

(iv)

manages the organization, or a department, subdivision, function, or component of the organization;

supervises and controls the work of other supervisory, professional, or managerial erri.ployees, or manages an essential function within the organization, or a department or subdivision of the organization;

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

exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

Further, "[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." !d.

Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as "an assignment within an organization in which the employee primarily":

(i) directs the management of the organization or a major component or function of the organization;

(ii) establishes the goals and policies of the organization, component, or function;

(iii) exercises wide latitude in discretionary decision-making; and

(iv) receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

Finally, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development ofthe organization. See section 101(a)(44)(C) ofthe Act. ·

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A. Evidence of Record

The Petitioner filed the Form I-129 on December 11, 2015. On the Form I-129, the Petitioner indicated that it has six employees in the United States and a gross annual income of $500,000. The Beneficiary was previously granted L-1A status for a one-year period commencing on December 20, 2014.

In the Form I -129, the Petitioner stated that the Beneficiary is responsible for managing the company and "planning and organizing its resources," including handling major accounts in the United States. The Petitioner indicated that the Beneficiary supervises an executive manager who oversees sales managers and account executives in charge of "accounting and logistics." It further explained that the Beneficiary is in charg~ of the company's marketing campaigns, including a $60,000 advertising project.

In an accompanying support letter, the Petitioner · stated that the Beneficiary's former foreign employer is an exporter of avocados from Mexico and that the petitioning company was established in California to expand the company's U.S. sales. The Petitioner indicated that it has also partnered with another company to globalize its distribution, including exporting avocados to China. It explained that the Beneficiary is a key employee who "brings together the sales team" and who was tasked with launching the Petitioner's operations, including "writing policy manuals and company's goals," "hiring managers [and] contracting professional services," and "determining sales strategies." The Petitioner stated that the Beneficiary would be responsible for "staffing, training, and scheduling personnel, procurement of licensing and certifications, supervision of equipment acquisitions, quality control, and the coordination of distribution with [the] parenting company."

The Petitioner submitted the Beneficiary's resume which included additional duties for the Beneficiary, noting that she was responsible for coordinating the design and installation of an exhibition booth at a trade show in CA, participating in seminars and trade shows, building contact networks, leading teams, managing employee performance, and setting developmental plans.

(

The Petitioner also provided the following duty description for the Beneficiary:

The General Manager is responsible for day-to-day activities of directing controlling and coordinating all phases of the Importing, Distribution and Marketing operations in the U.S.

1- 30% She will plans [sic], direct, and coordinate the import, distribution activities and customer satisfaction of avocados to

which currently generates an annual gross income for Mexican filial of about US $30 million. She makes sure distribution proceeds smoothly and promptly to comply with customer's requirements. She will ensure strategies, goals and objectives are

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communicated to line managers and key personnel in ·all areas within the logistical structure of the company. She .will daily supervise all documents (sales orders/purchase orders) issued by our parent company through our shared data entry system making sure all transactions are profitable and within company standards. She will ensure USA customers satisfaction in case there are complaints or delays in their productions. She will oversee co-distribution project with for s~le of avocados to China with [sic] is projected started November 2015. She keeps updated with import fees and U.S. customs rules to ensure compliance with law.

2- 30% She will oversee $60,000 marketing project with She will design and

implement market research statistics, initiate market segmentation and develop and oversee the production of marketing campaigns and materials. As member of she will direct the presentation at the annual marketing event (ie. 2014) and participation in other events nationally and internationally.

3- 20% She will hire, train and supervise a staff of account executives for development of new markets. She will train staff to develop and oversee logistics activities related to eCommerce, order-filling, shipping, payments and returns using company's developed software, so they can independently manage their accounts.

r4- 10% Liaison between parent company and the U.S, office to ensure timely and accurate deliveries in an efficient and cost effective manner. She will work closely with other managers to implement the company's policies and goals. She will collaborate with Board, and designs, sales and product development departments of parent company to develop new sales strategies, quality assurance and product developments.

5- 10% She will oversee Executive Manager. She will monitor compliance with company's standards and implement quality-control programs. Assist in the selection, supervision, and development of subordinate personnel and contracted professionals. Proactively improve process functioning and strive for enhanced levels of efficiency. Ensure the safeguard and security of Company assets.

The Petitioner submitted an organizational chart indicating that the Beneficiary reports to the I

Director of the company and that she oversees a west region sales manager and an executive manager. The chart reflected that the west region sales manager supervises an east region sales manager who in tum oversees a customer service employee. The chart further indicated that the executive manager oversees "outsourced" accounting and accounts payable and receivable functions.

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The Petitioner submitted a business plan dated September 2014 indicating thauhe company would begin with two employees, the Beneficiary and the executive manager, the latter of which would be responsible for "Logistics, AIR, AlP, and general office administration." It further noted that the Beneficiary would begin importing for its client and "work on acquiring new accounts." The Petitioner provided a "Permit to Import Plants and Plant Products" dated September 4, 2014, for the import of avocados which lists the Beneficiary as the permittee.

( The Petitioner submitted its California quarterly wage report for the second quarter of 2015 reflecting that it employed three individuals: the Beneficiary, the west regional sales manager, and the executive manager. The Petitioner also provided untranslated marketing materials from its claim~d advertising contractor.

The Director later issued a request for evidence (RFE) referencing the Petitioner's organizational chart and noting that it reflected six employees while the Petitioner's tax documentation indicated that it had only three employees. As such, the Director requested that the Petitioner submit its last four state quarterly wage reports and a comprehensive organizational chart reflecting the names, job titles, duties, and salaries for each employee.

In a response letter, the Petitioner provided the names, titles, and salaries for each of its asserted seven employees as of April 2016. The ,Petitioner stated that the Beneficiary reports to the director and chief executive officer, who is responsible for "devising strategies to meet [the] company's goals" and the "ultimate decision maker." The Petitioner submitted the following duty description for the Beneficiary as "general manager & new business developer":

Reporting only to the Director and CEO, she has established the rules and administration guidelines of the company. She is responsible for day-to-day activities of directing, controlling and coordinating all phases of the distribution and marketing operations in the U.S. She is the top executive to review all projects to ensure . compliance with international certificates such as

for organic produce, and with plan in order to comply with all standards of safety in the handling of food products. The

is an international certification issued after the establishment is evaluated in three areas. She designs and implements market research statistics, initiate market segmentation and develops and oversees the production of marketing campaigns to generate more clientele. She searches for prospective markets, detects buyers and investigates their credit reputation. She has increased the company's annual sales to $2.5 million. She monitors compl~ance with company's standards and implement quality control programs. She generates the Price List for the col)lmerce of our .produces. Since the produce price varies at least twice a Wt?ek, this list must be updated timely according the variables. She studies and compares prices in national and international market and in farms to establish prices that are competitive but profitable. The price is mainly based on supply. So she develops rules and procedures to buy fruits and vegetables, and

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contract the price to avoid losses. She hires her subordinates and assist[ s] in the selection of subcontractors. She directly supervises three employees: Sales Manager, Customer Sales Representative and the Executive Manager. She indirectly supervises two other employees assisting the Sales Manager and Executive Manager in the supervision of their subordinates.

The Petitioner submitted an organizational chart indicating that the Beneficiary supervises the sales manager and west region representative, the customer service employee, and the executive manager. The chart further reflected that the sales manager and west region representative oversees the east region representative and that the executive manager supervises the account payable and receivable employee and an outsourced accounting function.

In its letter, the Petitioner explained that the sales manager and west region sales representative is responsible for negotiating details and payments, assisting in the hiring and training of sales representatives, identifying prospective clients, preparing sales contracts and order forms, resolving problems, providing support, submitting new business to the Beneficiary for approval, and performing other administrative duties. The Petitioner stated that the east region sales representative performs duties similar to the asserted supervisor in the west and that the customer service executive is responsible for resolving or escalating billing and service complaints, following up on orders abroad, coordinating with carriers, and proposing solutions to the Beneficiary. The Petitioner stated that the executive manager is responsible for logistics and finances, selecting and providing information to an engineering systems company, following the plans and strategies set by the Beneficiary, and handling company payroll. Lastly, the Petitioner indicated that an accounts payable and receivable representative is tasked with preparing periodical profit and loss statements, paying bills, and receiving and dealing with invoices.

The Petitioner provided a 2015 IRS Form 1120, U.S. Corporation Income Tax Return indicating that it earned $2,545,324 and paid $175,361 in salaries during that year. The Petitioner submitted its California state quarterly wage report for the first quarter of 2016 reflecting payments to the following employees: the director and CEO ($13,184), the sales manager ($16,152), the account receivable employee ($2000), the east region representative ($2400), the customer service employee ($4800), the Beneficiary ($16,152), and one additional employee ($2400). The Petitioner also provided state quarterly wage reports for the second and third quarters of 2015 indicating that it had three employees, but submitted no wage report for the fourth quarter of2015.

In denying the petition, the Director pointed to the discrepancy between the Petitioner's organizational chart and Petitioner's payroll records and the limited staff of the organization. The Director found that it, was likely that the Beneficiary was primarily engaged in non-qualifying operational duties. The Director further stated that the Petitioner had questionably modified its

. organizational structure in response to the RFE.

In its appeal, the Petitioner asserts that the Beneficiary is not primarily focused on operational tasks, but overseeing "global expansion," training managers, and supervising an advertising company in its

Matter ofF-, Inc.

formulation of a promotional campaign for the company. The Petitioner notes that the company has eight employees and significant revenue, and that it has substantiated these employees with supporting payroll evidence. The Petitioner states that it need only demonstrate that the Beneficiary spends more than half of her time on qualifying duties and contends that it has established this despite her focus on some "administrative tasks."

B. Analysis

Upon review of the petition and the evidence of record, including materials submitted in support of the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed in a managerial or executive capacity.

When examining the executive or managerial capacity of the Beneficiary, we will look 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 in either an executive or a managerial capacity. !d.

The definitions of executive and managerial capacity each have two parts. First, the Petitioner must show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublishedtable decision). Second, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. The fact that the Beneficiary owns or manages a business does not necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 1987) (noting that section 101(a)(15)(L) of the Act does not include any and every type of"manager" or "executive").

In the instant matter, the Petitioner has submitted duty descriptions for the Beneficiary indicating that she would most likely devote a majority of her time to non-qualifying operational tasks. For instance, the descriptions refer to her performance of several duties that cannot be classified as managerial, including responsibility for all sales and purchase orders, assuring that all transactions are profitable, en&uring that all customers are satisfied, presenting and setting up a promotional booth at a marketing event, ensuring that all deliveries are timely, coordinating all phases of distribution, assuring all produce complies with safety standards, designing and implementing market research, investigating the credit of new customers, and generating price lists. Indeed, the original duty description for the Beneficiary suggests that the Beneficiary devotes 30% of her time directing and coordinating all distribution and sale of produce and another 30% overseeing a potential marketing project with an independent contractor, but only 10% overseeing the executive manager and 20% hiring and supervising account executives. In other words," the description does not reflect that she would devote her time primarily to managerial or executive level tasks. As noted, an employee who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a managerial or executive capacity. See,

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e.g., sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); Matter ofChurch Scientology Int'l., 19 I&N Dec. 593, 604 (Comm'r 1988).

In contrast, the Petitioner provides little detail regarding the Beneficiary's claimed qualifying tasks, such as what "strategies, goals and objectives" she set and communicated to "line managers," the nature of the $60,000 marketing project that would require 30% of her time, staff she trained, sales strategies or "quality assurance and product developments" she instituted, and company standards and quality control program she assures compliance with. Further, the Petitioner asserts that the Beneficiary is responsible for growing the Petitioner's business in Chinese and other global markets, but submits insufficient supporting evidence to substantiate this claim. In fact, the detail provided with respect to non-qualifying operational tasks greatly outweighs that provided with respect to the Beneficiary asserted qualifying tasks. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter of Treasure Craft of Cal., 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Specifics are clearly an important indication of whether a beneficiary's duties involve specialized knowledge, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F .2d 41 (2d. Cir. 1990).

Beyond the required description of the job duties, USCIS reviews the totality of the record when examining the claimed managerial or executive capacity of a beneficiary, including the Petitioner's organizational structure, the duties of the Beneficiary's subordinate employees, the presence of other employees to relieve the Beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors that will contribute to understanding the Beneficiary's actual duties and role in a business.

In its appeal, the Petitioner poi.IJ.ts to the hierarchy of the organization, its revenue, and size and suggests that these factors support a finding that the Beneficiary will act in a managerial capacity. The statutory definition of "managerial capacity" allows for both "personnel managers" and "function managers." See sections 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 managerial employees. Contrary to the common understanding of the word "manager," the statute plainly states that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory dlities unless the employees supervised are professiona1."1 Section 101(a)(44)(A) of the Act; 8

1 In evaluating whether the Beneficiary manages professional employees, we 'must evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. Cf 8 C.F.R. § 204.5(k)(2) (defining "profession" to mean "any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation"). Section 10l(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."

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C.F.R. § 214.2(l)(l)(ii)(B)(2). If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F.R. § 214.2(l)(l)(ii)(B)(3).

Here, the Petitioner did not submit its state quarterly wage report from the fourth quarter of 2015, as requested by the Director, the quarter most relevant to assessing the Beneficiary's eligibility as of the date of the filing of the petition on December 11,2015. 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). Without this information, we cannot determine which employees were actually working for the company at the time of filing or at what point the Petitioner's staff increased from three employees to the six employees claimed on the Form I-129. Further, the Petitioner provides two different organizational charts, one of which appears to depict the staffing and structure of the company as of April2016. As such, we will focus on the chart submitted in support of the petition. A visa petition may not be approved based on speculation of future eligibility or after a petitioner or beneficiary becomes eligible under a new set of facts. See, e.g, Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971).

In support of the petition, the Petitioner provided an organizational chart indicating that the Beneficiary supervised the general manager/business development employee, who in tum oversaw the west region sale manager and the executive manager. The chart further reflected that the west region sales manager supervised the east region sales manager who oversees the customer service employee, while the executive manager supervises outsourced and accounts payable and receivable functions. However, the submitted evidence does not substantiate that the Beneficiary's subordinates act as managers or supervisors. The duty descriptions of the west region sales manager, the east region sales manager, and the executive manager do not mention the supervision of subordinates. Further, the Petitioner's state tax documentation from the first quarter of 2016 reflects that the east region representative and the accounting executive and accounts payable employees are paid only part time salaries, indicating that their asserted managers would not devote a great deal of their time to supervising employees.2 In the alternative, the Petitioner has not demonstrated that any of the Beneficiary's subordinates are professionals performing duties that require a bachelor's degree. See section 101(a)(44)(A)(ii) ofthe Act.

Moreover, the Petitioner has not demonstrated that the Beneficiary's duties primarily focus on the management of the organization and the supervision of qualifying managerial, professional, or supervisory employees. Although the Beneficiary's job description references her supervision of two employees, including two asserted managers who supervise subordinate employees or contractors, the Petitioner has not corroborated her supervision of other managers or professionals with supporting evidence. Indeed, as noted, the Beneficiary's duties indicate that she would perform a number of non-managerial duties necessary for the Petitioner's routine operations.

2 The submitted CA state quarterly wage report for the first quarter of 2016 indicates that the Petitioner paid the east region representative $2400 during that quarter, or the equivalent of $9,600 per year, and the accounting executive

· $2000, or approximately $8000 per year.

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Further, the duties of the Beneficiary's subordinates indicate that she will delegate little of the day­to-day tasks to these employees, as these employees will regularly coordinate with the Beneficiary on customer complaints, selecting contractors, approving new clients, and nearly all of the company's day-to-day operations. In addition, although the Petitioner also contends that the Beneficiary would spend a significant amount of time supervising a marketing contractor, it has provided no evidence such as contracts or invoices to corroborate this relationship or the contractors she supervises pursuant to this relationship. Likewise, the Petitioner indicates that it has an outsourced accounting function, but does not corroborate this relationship with documentary evidence. In sum, the Petitioner has not submitted sufficient evidence that the Beneficiary's subordinate employees will relieve her from performing non-qualifying operational and administrative duties at the U.S. company or that she will be employed primarily as a personnel manager. 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'r 1998) (quoting Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)).

The Petitioner has not established, in the alternative, that the Beneficiary would be employed primarily as a "function manager." 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 position description that describes the duties to be performed in managing the essential function, i.e., identifies the function with specificity, articulates the essential nature of the function, and establishes the proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 C.P.R. § 214.2(1)(3)(ii). In addition, a 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. Here, the Petitioner did not indicate that the Beneficiary. would qualify as a function manager. The Petitioner did not describe an essential function to be managed by the Beneficiary or provide a breakdown of the Beneficiary's job duties to support such a claim.

The statutory definition of the term "executive capacity" focuses on a person's elevated position within an organizational hierarchy, including major components or functions of the organization, and that perso:p'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. The beneficiary must also exercise "wide latitude in

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discretionary decision making" and receive only "general supervision or direction from higher level executives, the board of directors, or stockholders of the organization." !d. While the definition of "executive capacity" does not require the petitioner to establish that the beneficiary supervises a subordinate staff comprised of managers, supervisors and professionals, it is the petitioner's burden to establish that someone other than the beneficiary carries out the day-to-day, non-executive functions of the organization. Here, the Petitioner did not demonstrate that the Beneficiary's duties will primarily focus on the broad goals and policies of the organization rather than on its day-to-day operations.

We note that a company's size alone, without taking into account the reasonable needs of the organization, may not be the determining factor in denying a visa to a multinational manager or executive. See§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that USCIS "may properly consider an organization's small size as one factor in assessing whether its operations are substantial enough to support a manager." Family Inc. v. US. Citizenship and Immigration Services 469 F. 3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). It is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the absence of employees who would perform the non-managerial or non-executive operations of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g, Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).

On appeal, the Petitioner contends that it has established that the Beneficiary will devote more than half of her time to qualifying duties. However, as we discussed in detail previously, the Petitioner has not provided sufficient evidence to indicate that the Beneficiary will primarily perform managerial or executive tasks, but instead provided duty descriptions for the Beneficiary and her subordinates, suggesting that she would allocate a majority of her time to non-qualifying operational tasks. Further, the pro~ided evid~nce does not reflect that the Beneficiary has sufficient subordinate employees to carry out the routine tasks associated with the Petitioner's intended business without the significant involvement of the Beneficiary, such as arranging for the shipment of produce, handling all purchase orders, setting up promotional booths and attending other marketing events, coordinating distribution, assuring compliance with safety standards, dealing with customs issues, performing market research, processing new customers, and processing payments. In fact, the Beneficiary's duty description makes reference to all of these non-qualifying operational duties .

.. Although the Petitioner now provides evidence on appeal that it now employs eight individuals, at the time of the petition, the evidence indicated that it employed four employees subordinate to the Beneficiary, and supporting evidence reflected that two of these were engaged on a part-time basis. Therefore, the evidence does not demonstrate that the Petitioner's organizational structure, as of the date of filing, was sufficient to support the Beneficiary in a managerial or executive capacity whereby she was relieved from primarily performing non-qualifying operational duties. An

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employee who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology Int'l, 19 I&N at Dec. 593, 604. Again, a visa petition may not be approved based on speculation of future eligibility or after a petitioner or beneficiary becomes eligible under a new set of facts. See, e.g., Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978); Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm'r 1971).

Further, in the present matter, the regulations require USCIS to examine the organizational structure and staffing levels of the petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(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 USCIS 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 managerial or executive capacity.

Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that the Beneficiary will be employed in a managerial or executive capacity under the extended petition.

III. CONCLUSION

In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden.

ORDER: The appeal is dismissed.

Cite as Matter ofF-, Inc., ID# 58879 (AAO Oct. 28, 2016)

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