dismissed EB-1C Case: Accounting

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
OFFICE: NEBRASKA SERVICE CENTER 
LIN 07 194 52707 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 4 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
lo 
Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Delaware corporation that seeks to employ the beneficiary as its chief accountant. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive capacity; and 
2) the petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits an appellate brief as well as additional 
documents in support of his arguments. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The two primary issues in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
would be employed in the United States in a qualifying managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 9 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(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. 
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. !j 204.56)(5). In support of the Form 1-140, the 
petitioner submitted a letter dated June 10, 2007, claiming that the beneficiary is currently supervising a 
customer service executive at the New York office and five employees, including an accountant and four 
customer service executives, at the Chennai, India office. The petitioner also provided the following 
description of the beneficiary's proposed employment: 
[The beneficiary] has been and continues to be our most senior finance representative in the 
U[.]S[.], responsible for all accounting and finance matters of our U.S. company, business 
and operations. His primary responsibilities are to analyze and prepare long and short-term 
financial budgets for our operations and oversee all related financial matters. He is 
responsible for handling and overseeing all bookkeeping and accounting functions, including 
auditing accounts; providing treasury functions to maintain the highest investment rates and 
lowest finance costs; overseeing monthly and other reports on company's profit and loss, 
balance sheet, receivables, payables, cash flow statements, maintenance of ledger accounts; 
overseeing all agent partners' and inter company accounts; overseeing and complying with all 
appropriate statutory requirements of record keeping, taxation, returns and remittances; 
participating in decision making regarding company business; formulating annual budgets 
and exercising budgetary control; analyzing and reporting to senior management on any 
unusual events or factors at [the] U[.]S[.] operations, ensuring proper implementation of and 
compliance with all directives from senior management and corporate head office for the 
effective control of business, and the like. His responsibilities include managing all financial 
and related matters of our Air/Sea Freight and warehouse operations. This involves 
supervising billing and accounting staff to ensure accurate billings to overseas agents and 
prompt approval of vendor pricing information and negotiating contracts and rates. He 
prepares management reports, makes recommendations and oversees the implementation of 
new or revised policies on profitability, costs and strategic activities. [The beneficiary] is 
responsible for managing and ensuring that the quotations and billings are in compliance with 
our organization's policies and best business practices. 
With regard to the beneficiary's employment abroad, the petitioner stated that the beneficiary was promoted to 
the position of overseas account in 1999. The petitioner stated that the beneficiary was responsible for the 
Dubai entity's overseas accounting and financial matters, the company's accounts on non-freight issues, and 
the management of three accountants. 
On August 4, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, a list of the beneficiary's past and proposed job duties with a percentage of time assigned to 
each job duty. The petitioner was also asked to discuss the beneficiary's subordinates in each position and to 
include payroll records of the foreign and U.S. employers showing the salaries paid to the subordinates the 
beneficiary supervised abroad and those currently supervised at the U.S. office. Additionally, the petitioner 
was instructed to submit its own as well as the foreign entity's organizational charts, clearly depicting the 
beneficiary's position within each entity and illustrating each entity's staffing levels. 
In response, the petitioner provided the following time breakdown of the beneficiary's foreign employment: 
A. Supervise and meet with direct subordinates/accounting staff to review and supervise 
work performed and delegate work-5-7 hours 
B. Teleconference and other meetings with branch office accountants to review and 
supervise work and delegate work-5-7 hours 
Review and analyze data and prepare progress reports for senior management on weekly, 
monthly and long-term activities regarding departmental productivity and branch office 
productivity-2-3 hours 
Meet with [the] senior finance manager to discuss [the] status of department operations, 
personnel and budget-1 -2 hours 
Engage in top-level review of accounting staffs income, tax profit/loss returns and 
reports-1 -2 hours 
Review other financial work papers, prepared by staff, and spot complex legal and 
financial issues and ensure that staff address issues properly-5-7 hours 
Review and analyze agents transshipments tariffs and prepare management and related 
reports about tariffs-3-4 hours 
Review and analyze golden Gulf line financial statements to monitor profitability and 
efficiency of client and prepare management updates-4-5 hours 
Communicate and send reports to outside auditors-1-2 hours 
Prepare short-and long-term budget proposals-1 -2 hours 
Communicate progress to senior management and make recommendations regarding 
personnel issues, including the hiring and firing of personnel-1 hour 
The petitioner also provided the foreign entity's organizational chart, where the beneficiary was employed 
from June 2000 until October 2002. The chart illustrates a multi-tiered entity, which is divided into a sales 
and operations division and a finance division. The latter, where the beneficiary's position is depicted, shows 
a group finance controller as the head of the division with a finance manager as his direct subordinate and the 
beneficiary's position as the next position in the vertical hierarchy. The chart indicates that the beneficiary's 
subordinates include two accountants, one accounts assistant, and six branch accounts at the foreign entity's 
foreign locations. 
The petitioner also provided the following hourly breakdown of the beneficiary's proposed employment in the 
United States: 
a. Analyze and prepare long and short-term financial budgets for company operations and 
oversee all related financial matters. 3-4 Hours 
b. Handling and overseeing all bookkeeping and accounting functions, including monthly 
and other reports on the company's profit and loss, balance sheet, receivables, payables, 
cash flow statements, maintenance of ledger accounts. This includes reviewing reports 
prepared by subordinates (local and overseas), auditing accounts, meeting with 
subordinates to discuss and critique work, adjust workloads, give instructions, and 
monitor progress. 5-6 Hours 
c. Providing treasury functions to maintain the highest investment rates and lowest finance 
costs. 1-2 Hours 
d. Overseeing and complying with all appropriate statutory requirements of record keeping, 
taxation, returns and remittances, including researching and analyzing requirements, 
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reviewing tax returns and statements prepared by subordinates and providing advice, 
comments and instructions to subordinates. 2-3 Hours 
e. Participating in decision making regarding company business, including meeting with 
senior management, participating in regular meetings and conference calls with 
management in New York and overseas offices. 4-5 Hours 
f. 
 Formulating annual budgets and exercising budgetary control, including preparing 
proposed budgets based on data provided by subordinates and company, reviewing 
expenditures and using discretion to authorized or invalidate payments. 2-3 Hours. 
g. Analyzing and providing report[s] to senior management on any unusual events or factors 
at [the] U[.]S[.] operations, ensuring proper implementation of and compliance with all 
directives from senior management and corporate head office . . . . Includes reviewing 
reports and data, providing statistical analysis, preparing reports and updates to 
management and head office and making recommendations. 4-5 Hours 
h. Managing all financial and related matters of our AirISea Freight and warehouse 
operations. This includes reviewing financial reports prepared by subordinates, meeting 
with subordinates to discuss finances, obtain updates, issue instructions, adjust 
workloads, provide instructions, etc. 4-5 Hours 
i. 
 Supervising billing and accounting staff to ensure accurate billings to overseas agents and 
prompt approval of vendor invoices and charges and [to ensure] that pricing quotations 
and billings are in compliance with organization's policies and best business practices. 
Includes reviewing reports and billings, meetings, telephone conferences, email messages 
and other communications with subordinates. 3-4 Hours 
j. 
 Analyzing vendor pricing information and negotiating contracts and rates. This includes 
reviewing information and contracts; and negotiating with vendors, such as airline 
companies, with the authority to alter terms and conditions. 3-4 Hours 
k. Handle personnel issues, including resolution of complaints against subordinates, 
adjusting workloads, approving time-off, exercising authority to hire, discipline or 
terminate employment of staff. 3-4 Hours 
The petitioner also provided its organizational chart, which identified a vice president as head of the entire 
organization and depicted the beneficiary as the vice president's direct subordinate in the position of chief 
accountant/operations manager. The beneficiary's position is shown as having three subordinates, including 
the sea operations supervisor, the sales and marketing analyst, and the senior accountant, a position that is 
located in Toronto, Canada. It is noted that, although the director expressly asked the petitioner to provide 
proof of salaries of its employees, only the beneficiary's information was actually submitted. 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). 
In a decision dated October 31, 2008, the director denied the petition, pointing out discrepancies between 
documentation that was submitted in support of the petitioner's previously filed Form 1-140 and the current 
Form 1-140 that is being adjudicated in the present proceeding. Namely, the director observed an 
inconsistency between the foreign entity's organizational charts, where the chart that was submitted in support 
of the earlier petition shows the beneficiary with only one subordinate, while the chart submitted in support of 
the more recent Form 1-140 shows the beneficiary as having supervised two additional positions as well as 
branch accountants at offices located in six other countries. The charts also list the beneficiary's direct 
supervisor under different job titles with the first chart listing the supervisor as chief account and the second 
chart listing him as finance manager. 
Additionally, the director pointed out that while the foreign organizational chart shows the beneficiary as 
having three direct and six indirect subordinates, the petitioner's counsel as well as a separate document, 
which describes the beneficiary's foreign employment, both indicate that the beneficiary had only two direct 
subordinates. The director also found the petitioning entity consists of only three employees and therefore 
lacks an organizational complexity that would warrant the services of multiple managerial or executive 
employees, given that the 1-140 petition filed on behalf of the beneficiary's supervisor, also under the 
classification of a multinational manager or executive, had been previously approved. Although the director 
also comments on the beneficiary's salary as yet another indicator that the beneficiary's proposed position in 
the United States would not be within a managerial or executive capacity, the AAO hereby withdraws the 
director's comments, as salary is not an accurate indicator as to the nature of the job duties to be performed. 
On appeal, counsel argues that the director's decision was arbitrary and capricious and generally an abuse of 
discretion. In support of these arguments, counsel submits a brief in which he summarizes the director's 
adverse findings, thereby acknowledging the perceived discrepancies between documents filed in support of 
the initial Form 1-140 and those submitted in support of the current petition. Counsel contends that there is no 
inconsistency and firther explains that the organizational chart provided in support of the current petition is 
merely meant to clarify the hierarchy of the foreign entity's finance section, which includes an accountant by 
the name of - who has-since departed his employment with the foreign entity. 
However, without documentary evidence to support the claim, the 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 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Thus, counsel's explanation alone is inadequate. 
Moreover, even if an explanation from counsel were sufficient to overcome a factual inconsistency, the 
explanation provided herein does not address the root of the concern, which is that the more recent 
organizational chart pertaining to the foreign entity alters the hierarchy of the finance section where the 
beneficiary's position was situated. 
Counsel further asserts that the above described inconsistency is not with regard to a material fact that alters 
the beneficiary's job duties or responsibilities. This assertion, however, is also inaccurate, as the petitioner 
must provide correct information about the foreign entity's hierarchy so as to enable USCIS to determine 
exactly whom the beneficiary supervised during his employment abroad and whether the hierarchy at that 
time was sufficient to relieve the beneficiary from having to primarily perform non-qualifying tasks. While a 
description of the beneficiary's job duties is also germane when making a determination regarding the 
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petitioner's eligibility, the job description must be considered in light of information pertaining to the foreign 
entity's organizational hierarchy. Here, in light of the discrepancy discussed by the director, USCIS is unable 
to ascertain whether the foreign entity was adequately staffed to support the beneficiary in a primarily 
managerial or executive capacity. Furthermore, as the petitioner has not resolved a considerable factual 
inconsistency with regard to the beneficiary's foreign employment, the issue of the petitioner's questionable 
credibility further undermines its claims to eligibility. 
Therefore, bearing in mind that the petitioner has failed to resolve a critical inconsistency, any questions 
regarding the petitioner's credibility also affect the claims made regarding the beneficiary's proposed 
employment. It is noted that doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). Notwithstanding any doubts regarding the petitioner's 
credibility, the petitioner lacks sufficient evidence to establish that the U.S. entity either requires or can 
sustain the beneficiary in a managerial or executive capacity so that the primary portion of his time would be 
spent performing tasks of a qualifying nature. 
As pointed out by the director, it appears that the petitioner had only three employees at the time of filing, 
thus leading the AAO to question how the U.S. petitioner would relieve the beneficiary from actually 
providing accounting services, which while deemed professional, do not fall within the parameters of what is 
deemed to be within a managerial or executive capacity. First, the description of the beneficiary's prospective 
U.S. employment indicates the beneficiary would spend anywhere from 15-1 9 hours per week overseeing the 
activities of employees that are outside of the United States and who appear to be working for entities other 
than the petitioner. It is noted that any time spent performing any tasks, oversight or otherwise, for any entity 
other than the petitioner cannot be considered in determining whether the beneficiary's prospective 
employment with the petitioner would be within a qualifying capacity. Even if these specific tasks would 
normally be deemed managerial or executive with regard to the foreign entity, they would be deemed tasks 
necessary to provide a service and, thus, would be non-qualifying. It is noted that an employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Second, the job description containing the hourly breakdown includes numerous job duties, which, on their 
face, are non-qualifying. Specifically, the petitioner indicated that the beneficiary would prepare long- and 
short-term as well as annual budgets, provide investment services, preparing reports for senior management to 
review with regard to the U.S. petitioner's operations, and conduct contract and rate negotiations, which 
combined, would consume anywhere from 13-18 hours per week. However, these operational duties are 
consistent with those deemed as providing services for the U.S. entity and are therefore non-qualifling. 
When taken into consideration in tandem with the additional 15-19 hours spent providing management 
services to the foreign entity by overseeing personnel employed abroad, it appears that a majority of the 
beneficiary's time would be spent performing non-qualifying tasks. As stated above, 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. Id. Thus, all credibility issues aside, the 
petitioner has simply failed to establish that the primary portion of the beneficiary's time in the proffered 
position would be devoted to tasks within a qualifying managerial or executive capacity. 
In summary, the evidence of record is inconsistent as to the foreign entity's organizational hierarchy at the 
time of the beneficiary's period of employment. In light of the lack sufficient and reliable evidence, the AAO 
cannot conclude that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Additionally, per the above analysis, the record indicates that the beneficiary would spend the majority of his 
time with the U.S. entity providing professional accounting services, which, despite their professional nature, 
do not fall within the definition of qualifying manager or executive capacity. Therefore, on the basis of these 
two independent findings, the instant petition cannot be approve. 
Furthermore, the AAO finds that the record does not support a finding of eligibility based on at least one 
additional ground that was not previously addressed in the director's decision. Specifically, the record lacks 
sufficient evidence to establish that the petitioner has a qualifying relationship with the beneficiary's foreign 
employer as required by 8 C.F.R. 9 204.5(j)(3)(i)(C). 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
In the present matter, the petitioner claims to have an affiliate relationship with the beneficiary's foreign 
employer. The regulation at 8 C.F.R. tj 204.56)(2) states in pertinent part: 
AfJiliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
The petitioner claims that its affiliate relationship is based on the fact that the person who owns and controls 
its shares is the same person who has an ownership interest and "de jure" control of the foreign entity through 
proxy votes of the foreign entity's shares. See Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). However, 
while the record contains evidence 
 owns and controls the petitioning entity, 
there is insufficient evidence to establish 
 the foreign entity. Rather, the record 
shows that the foreign entity issued 300 shares to be shared by four shareholders. While - is one of 
the four shareholders, the record shows that he owns only 50 out of 300 shares and that 154, or the majority of 
the shares, are held by !- 
In response to the RFE, the petitioner claimed that the ma'ority shareholder executed a power of attorney, 
which transferred control of the foreign entity to , thus giving ownership and control 
over the U.S. and foreign entities. In the present matter, the only evidence submitted in support of this claim 
is the unsupported written statement of the foreign entity's group vice president of finance, who merely 
reiterated the petitioner's claim. 
As general evidence of a petitioner's claimed qualifying relationship, mere assertions are not sufficient to 
establish whether a stockholder maintains control of a corporate entity. The corporate stock certificate ledger, 
stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also 
be examined to determine the total number of shares issued, the exact number issued to the shareholder, and 
the subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning company 
must disclose all agreements relating to the voting of shares, the distribution of profit, the management and 
direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens 
Medical Systems, Inc., supra. Without full disclosure of all relevant documents, USCIS is unable to 
determine the elements of ownership and control. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Here, rather than providing evidence to corroborate its claim, such as a copy of the actual power of attorney 
that was purportedly transferred control of the foreign entity, the petitioner has provided a statement from the 
foreign entity's employee which cannot be deemed as sufficient corroborating evidence. Therefore, the record 
lacks sufficient evidence establishing common ownership and control of the beneficiary's foreign and 
proposed U.S. employers and on this additional basis this petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, this petition will be denied based on the additional ground of 
ineligibility discussed above. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 9 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.