dismissed EB-1C Case: Aluminum Industry

identifying data deleted to 
pl"eVent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
DATE: OFFICE: TEXAS SERVICE CENTER 
MAR 1 9 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE:_ 
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. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
, . 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Texas. It seeks to employ the 
beneficiary as its general manager. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. The director questioned the petitioner's ability 
to relieve the beneficiary from having to primarily perform non-qualifying operational tasks in light of the 
staffmg reduction that the petitioner experienced since the filing of the Form 1-140. 
On appeal, counsel disputes the director's decision and explains that an office fire resulted in the petitioner 
having to provide requested information that was contained within lost or damaged documents. Additionally, 
the petitioner provides a separate statement explaining the reason for the staff reduction, which took place 
after the petition was filed. 
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)(1)(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 primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
-Page 3 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fIre or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A fIrst-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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 ofthe organization. 
In support of the Form 1-140, CEO of the petitioner's parent company, submitted a letter 
dated December 8, 2008 in which he stated that the benefIciary will be responsible for the company's day-to­
day operations. _further stated that the benefIciary will ensure that fInancial targets are met, 
determine the company's staffIng needs and maintain hiring and fIring authority, supervise project managers, 
develop and implement the company's expansion strategy, interact with decision-makers in the aluminum 
industry, identify new business opportunities, analyze project proposals to determine feasibility and 
profItability, negotiate large-scale contracts, review fInancial statements and sales reports, and work with the 
parent entity to develop long-range objectives for the petitioner. 
Page 4 
On June 20, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, supplemental information regarding the petitioner's organizational hierarchy at the time of 
filing, including the job titles and job duties of the petitioner's employees and quarterly payroll documents for 
the last quarter in 2008 and all available quarters in 2009 showing the names and salaries of the petitioner's 
employees. In discussing the job duties of the company employees, the petitioner was asked to explain how 
the employees enable the beneficiary to be employed in a qualifying managerial or executive capacity. 
The petitioner's response included the requested quarterly tax reports and the company's April 2009 
organizational chart, which depicted a multi-tiered structure with the beneficiary at the top of the hierarchy 
followed by a chief engineer, a project manager, a secretary, a bookkeeper, a sales and service employee, and 
a purchasing manager. The chief engineer and project manager are both depicted in managerial roles with the 
former supervising three mechanical engineers and one electrical engineer and the latter supervising an 
installation supervisor and an assembly foreman. The lowest tier consists of a shipping and receiving clerk 
whose position is depicted as subordinate to the purchasing manager. 
The petitioner's response also included job descriptions for the positions depicted in the organizational chart 
as well as the beneficiary'S role with respect to each of his direct subordinates. With regard to the chief 
engineer, the beneficiary'S role includes providing general instruction regarding performance goals and 
objectives for the engineering department, hiring and firing employees, and terminating services provided by 
contractors. With regard to the project manager, the beneficiary's role is one of oversight with the ultimate 
goal being to ensure that the petitioner's international goals are met through its international projects. The 
beneficiary also prepares budgets and oversees expenditures, and uses the project manager's feedback to 
evaluate the feasibility of future projects. 
The beneficiary'S role with respect to the purchasing and shipping functions includes providing budget 
guidelines for purchasing equipment, materials, and inventory. With regard to sales and services, the 
beneficiary's responsibilities include developing and implementing expansion strategies for international 
sales, maintaining relationships with key decision-makers in the aluminum industry to attract new clientele 
and expand the scope of the existing clients, helping to develop pricing for saw systems with the goal of 
retaining clients, determining the demographic and location to target as well as the size of the marketing 
investment, and resolving customer issues that cannot be resolved by the sales and service employee. Lastly, 
with regard to bookkeeping, the beneficiary will provide general instruction, review and analyze financial 
reports, budgets, and sales performance reports prepared by the bookkeeper, set sales goals, determine cost 
reduction needs, make investment decisions, and establish accounting procedures for sales invoices and 
receiving payments. 
In a decision dated November 23,2009, the director denied the petition concluding that the evidence of record 
does not establish that the beneficiary would be employed in a qualifying managerial or executive capacity. 
The director pointed to a discrepancy between the Form 1-140, where the petitioner claimed fourteen 
employees, and the petitioner's 2009 first quarterly wage report, which indicated that the petitioner had only 
twelve employees in April 2009 when the petition was filed. The petitioner also discussed the staffing 
attrition the petitioner underwent since the filing of the petition and questioned the petitioner's ability to 
employ the beneficiary in a qualifying capacity after having experienced a considerable reduction in 
personnel. 
Page 5 
On appeal, counsel disputes the director's decision and explains that the office flre that took place in June of 
2009 at the petitioner's place of business resulted in the petitioner having to rely on incomplete and damaged 
records when providing a response to the RFE. The AAO notes, however, that no evidence was provided to 
support counsel's statements with regard to the office flre. 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). 
Moreover, the AAO notes that the office flre, which counsel claims took place in June 2009, would not 
account for the discrepancy between the Form 1-140, which was fIled in April 2009, and the relevant quarterly 
wage report with regard to the number of employees. As properly pointed out by the director, the petitioner 
did not provide the complete quarterly wage report for the second quarter of 2009 to enable a comparison of 
the individuals listed in the report and those identifled in the organizational chart. Therefore, it is unclear 
which twelve employees the petitioner employed at the time of flling. 
With regard to the decrease in the petitioner's staffing size after the fIling of the petition, counsel states that 
the petitioner experienced a flnancial downturn, which ultimately resulted in the petitioner fIling for Chapter 
Eleven reorganization. Counsel claims that the petitioner was required to take certain remedial actions, 
including substituting contract workers for a number of the petitioner's in-house employees. Again, the AAO 
reminds counsel that her statements alone are not deemed as evidence of the claims being made. If in fact 
contract workers have taken the place of various in-house employees, such claims must be documented to 
show that contract workers were hired. The petitioner must also provide further information to establish 
exactly which in-house employees have been replaced with contractors. As previously stated, the 
unsupported assertions of counsel do not constitute evidence. Id. 
Although a separate statement was provided by the petitioner's CEO, who indicated that the petitioner 
retained the chief mechanical engineer, an electrical engineer, a project engineer, and a part-time bookkeeper, 
the updated organizational hierarchy that the petitioner provided in support of the appeal shows that the 
project engineer is actually paid by the parent company. It is therefore unclear how the petitioner can prove 
that an individual who is being compensated by an entirely separate entity is performing services for the 
petitioner and carrying out necessary operational tasks so that the beneflciary would be relieved from having 
to do so. USCIS cannot allow a petitioner to claim employees of a foreign affiliate as part of the u.s. entity's 
organization, because any petitioner could bolster its claim to eligibility merely by relying on artiflcial 
hierarchical tiers that are created when individuals who do not actually work for the petitioning entity are 
claimed as members of its staff. From a policy standpoint, this approach is unreasonable as it would preclude 
USCIS from being able to assess a petitioner's true stafflng capability and, instead, would allow the petitioner 
to create the illusion of a complex organizational hierarchy by relying on the existing staff of the foreign 
afflliate. 
The record lacks sufflcient documentation to allow the AAO to conclude that the petitioner achieved and 
maintained a level of organizational complexity wherein the beneflciary would be relieved from having to 
allocate the primary portion of his time to tasks of a non-qualifying nature. Additionally, while the petitioner 
discussed the beneflciary's role in the company with respect to individuals who were included in the 
organizational chart that was initially submitted in support of the petition, it is clear that the beneflciary's role 
would have undoubtedly changed when it experienced more than a 50% reduction in its workforce. As 
discussed in the director's decision, although the petitioner was staffed with twelve employees at the time the 
petition was fIled, the record lacks sufflcient documentation establishing precisely which positions were 
Page 6 
filled. Despite the beneficiary's role at the top of the petitioner's hierarchy, the fact that the petitioner has not 
clarified who was employed when the petition was filed precludes the AAO from being able to ascertain the 
extent to which the petitioner was able to sustain the beneficiary in a managerial or executive capacity at the 
time of filing the petition. 
Moreover, regardless of what the petitioner's capabilities may have been at the time of filing, a significant 
workforce reduction that took place after the time of filing the petition would have undoubtedly led to a 
significant change to the beneficiary's job duties. It is important to note that while the petitioner has the initial 
burden of establishing eligibility at the time of filing, the petitioner's burden is not discharged until the 
immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 
1984). Thus, even if the petitioner were able to provide sufficient documentation to establish that its 
organizational hierarchy at the time of filing was adequate for the purpose of employing the beneficiary in a 
managerial or executive capacity, the petitioner's claim to eligibility would be significantly undermined by 
any change in circumstances where the change alters the beneficiary's role within the organization or 
otherwise renders the petitioner unable to relieve the beneficiary from having to primarily perform tasks 
within a qualifying managerial or executive capacity. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
would be required to perform ate only incidental to hislher proposed position. 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 10 1 (a)(44)(A) and (B) ofthe 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). 
The AAO finds that the petitioner has not met its burden of establishing that it was initially able to employ the 
beneficiary in a managerial or executive capacity at the time of filing. The significant organizational changes 
that resulted from the petitioner's financial difficulties make it even more unlikely that the petitioner was able 
to maintain eligibility. While it is possible that the petitioner's decision to reorganize under Chapter Eleven 
may lead to yet another change in circumstances such that the petitioner may ultimately gain the capability to 
employ the beneficiary in a qualifying managerial or executive capacity and thus become eligible at some 
future date, the fact remains that in order for the instant petition to be approved, the petitioner must establish 
that it was eligible for such immigrant classification at the time the petition was filed and continuing until the 
beneficiary'S adjustment of status. 
When examining the managerial or executive capacity of a beneficiary, USCIS reviews the totality of the 
record, including descriptions of a beneficiary'S duties and his or her subordinate employees, the nature of the 
petitioner's business, the employment and remuneration of employees, and any other facts contributing to a 
complete understanding of a beneficiary'S actual role in a business. A review of the record does not establish 
that the petitioner was and continues to be able to employ the beneficiary in a primarily managerial or 
executive capacity. 
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. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.