dismissed EB-1C Case: Automobile Sales

(b)(6)
DATE: DEC 2 3 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
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. § ll53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
j6o&f--
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment -based immigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Rhode Island limited liability company engaged in automobile sales. It seeks to employ 
the beneficiary as its president and CEO. 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. § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition , concluding that the petitioner failed to establi sh that it would employ the 
beneficiary in a qualifying managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that the director's decision failed to address all of the submitted 
evidence pertaining to the petitioner's personnel structure and failed to include any analysis of the 
beneficiary's job duties or the reasonable needs of the organization. 
I. The Law 
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 I-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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides : 
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The term "managerial capacity" means an assignment within an organization m 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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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. 
Additionally, with regard to the petitioner's initial filing requirements, the regulations at 8 C.P.R. 
§ 204.5U)(3)(i) state that the petitioner must provide the following evidence in support of the petition in order 
to establish eligibility : 
(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
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one year in a managerial or executive.capacity by a firm or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) The prospective United States employer has been doing business for at least one year. 
II. Procedural History 
The record shows that the petitioner filed the Form I-140 on June 10, 2013. The petitioner indicated that it 
was engaged in the business of auto sales and claimed a total of five employees at the time of filing. The 
petition was accompanied by a variety of supporting documents, including the petitioner's organizational 
chatt that depicted a board of directors at the top of the petitioner's hierarchy with the beneficiary at the level 
directly following the board. The chart identifies thirteen additional positions six of which - workshop, a 
CPA, a sales person, a detail/driver, a vehicle transporter, and a property maintenance employee- are depicted 
as the beneficiary's direct subordinates. The chart also shows a bookkeeper directly subordinate to the CPA, 
a second sales person subordinate to the first sales position , a cleaner subordinate to the property maintenance 
position, and a variety of four repair positions listed under the workshop position. Additionally, the 
petitioner submitted its corporate records, a lease agreement, evidence showing the beneficiary's partial 
ownership of the petitioning entity, the petitioner's tax and payroll records for 2012, and a supporting 
statement dated May 1, 2013, which included the beneficiary's position description. 
The petitioner indicated that the beneficiary is the sole decision-maker with the authority to bind the company 
contractually and make all decisions regarding personnel as well as other business matters, including 
acquiring new dealerships, selling the business, setting sales goals and making policies, seeking financing, 
allocating funds for cash reserves, expenditures, marketing, determining which automotive brands the 
petitioner will sell and deciding to add different product lines to the petitioner's inventory, and setting sales 
prices and discounts. Additionally, the petitioner indicated that the beneficiary would communicate with 
legal and financial advisors, negotiate lending terms with outside lenders in order to offer financing options to 
buyers, negotiate lines of credit to meet the petitioner's cash flow needs, and network with new and ex isting 
dealerships to negotiate possible resale agreements. The petitioner stated that the beneficiary repotts only to 
the board of directors. 
The director reviewed the petitioner's submissions and determined that the record did not support a favorable 
finding . Accordingly, the director issued a request for evidence (RFE) dated July 5, 2013, instructing the 
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petitioner to provide additional supporting documentation with regard to its claimed qualifying relationship 
with the beneficiary's former employer abroad. The RFE also contained instructions asking the petitioner to 
provide a flow chart depicting its permanent employees accompanied by a list of the employees' respective 
job titles and job duties. 
The RFE response included a statement dated August 15, 2013 in which the petitioner indicated that the 
director applied a heightened burden of proof rather than the preponderance of the evidence standard, which is 
applicable in this proceeding. The petitioner claimed and provided evidence to show its 50% ownership of 
the foreign entity and addressed the director's request with regard to the petitioner's staffing. The petitioner 
provided an organizational flow chart that depicted an updated organizational structure showing a general 
manager as the beneficiary's direct subordinate. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish that 
the beneficiary would be employed in a qualifying managerial or executive capacity and denied the petition in 
a decision dated September 5, 2013. The director focused primarily on the petitioner's organizational 
structure, observing that the number of employees shown in the petitioner's organizational chart was 
significantly greater than the number indicated in the petitioner's Form I-140 . 
III. Discussion 
As indicated above, the primary issue in this proceeding requires a review of the facts that pertain to the 
beneficiary's proposed employment within the petitioning entity. Although the director's analysis focused 
primarily on the petitioner 's organizational structure and the beneficiary's support staff, the AAO will provide 
a comprehensive discussion , which will include a review of the totality of the record , starting first with the 
description of the beneficiary's job duties. See 8 C.F.R. § 204.5(j)(5). A detailed job description is crucial, as 
the duties themselves will reveal the true nature of the beneficiary's foreign and proposed employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajfd, 905 F.2d 41 (2d. Cir. 1990). 
The beneficiary's job description can then be considered in light of other relevant factors, including (but not 
limited to) support personnel in terms of the number of employees available at the time of filing and their 
respective job descriptions, the nature of the business conducted by the entity in question, and any other 
relevant facts that may contribute to a comprehensive understanding of the beneficiary's actual role within the 
organization of the petitioning U.S. employer. Among these factors, a company's staffing is highly relevant 
and should be considered as a means of gauging which employees the beneficiary would directly oversee in 
his managerial or executive role and the extent to which the petitioner would be able to relieve the beneficiary 
from having to carry out the company's daily operational tasks. 
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. U.S. Citizenship and Immigration 
Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei 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). Furthermore , it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
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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). 
In the present matter, the beneficiary's job description does not establish that he would allocate his time 
primarily to carrying out tasks within a qualifying managerial or executive capacity. While the petitioner 
emphasizes the beneficiary's discretionary authority over the petitioner's personnel, business transactions, and 
finances, the job description provided is overly vague and does not convey a meaningful understanding of the 
specific tasks the beneficiary would perform on a daily basis. For instance, the petitioner claimed that the 
beneficiary would represent the company in all third party transactions. However, to the extent that the 
beneficiary would be charged with the task of meeting regulatory and licensing requirements, it appears that 
these responsibilities would require the beneficiary to carry out the petitioner's operational tasks that are 
necessary in order for the petitioner to engage in retail. Although the petitioner indicated that the beneficiary 
would set company goals and policies, it did not explain which of the beneficiary's specific daily tasks reflect 
his policy- and goal-setting role. Additionally, the petitioner did not explain how networking with dealerships 
and approaching lending institutions to secure financing reflect managerial or executive tasks. While a level 
of discretionary authority is implicit in approving certain business and banking transactions, it is unclear how 
actually performing the underlying negotiations fits the definition of managerial or executive capacity. 
It is further noted that the petitioner did not provide any information to establish who carries out the 
marketing tasks, which are clearly required to target the customers for the business. While the petitioner 
broadly stated that the beneficiary has "sole authority over the company marketing efforts," none of the 
employees identified within the petitioner's organizational flow chart have been identified as being 
responsible for carrying out the underlying marketing tasks. As indicated above, while the beneficiary's 
discretionary authority is clearly a key factor in assessing his managerial or executive role within the 
petitioning entity, the petitioner cannot meet either statutory definition unless it presents sufficient evidence to 
establish that the beneficiary's time would be primarily allocated to the performance of tasks that are within a 
qualifying managerial or executive capacity. 
Accordingly, the discussion must necessarily include due consideration of the petitioner's support staff, as the 
petitioner cannot claim that the beneficiary would primarily perform qualifying managerial or executive tasks 
unless it can establish that it employs or contracts sufficient personnel who can relieve the beneficiary from 
having to carry out the daily operational tasks that are required for the business to function. In the present 
matter, the petitioner failed to provide sufficient reliable evidence to establish that it had a sufficient support 
staff in place at the time of filing to relieve the beneficiary from having to devote his time primarily to the 
performance of non-qualifying tasks. First and foremost, the AAO notes that the petitioner indicated on the 
Form I-140 that it paid salaries and wages to a total of five employees and contractors at the time of filing. 
However, looking to the organizational chart that the petitioner provided in support of the petition, which is 
presumably a representation of the petitioner's staff at the time of filing, a total of fourteen positions were 
identified, even though the petitioner indicated that the only individuals to whom wages were paid included 
the bookkeeper, two sales people, a driver/lot person, and one driver. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
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Even if the other individuals listed in the chart were hired on an as-needed basis, the record lacks sufficient 
evidence to establish how often such individuals were hired or that they were hired at all. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Moreover, given that the beneficiary was the only 
employee who was available to manage the staff at the time the petition was filed, it is important for the 
petitioner to establish how much of the beneficiary's time would be spent overseeing a staff of non­
professional and non-supervisory subordinates, as only the supervision of managerial, supervisory, or 
professional employees would be deemed as fitting within the definition of managerial capacity. Section 
l0l(a)(44)(A)(ii) of the Act. 
While the petitioner provided an updated organizational chart in response to the RFE in order to establish that 
the company expanded enough to require the creation of a general manager position, this information is not 
relevant for the purpose of determining the petitioner's eligibility at the time of filing , which must be based 
on the facts and circumstances that existed when the petition was originally filed. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements . See 
Matter of Izummi, 22 I&N Dec . 169, 176 (Assoc . Comm'r 1998). If the petitioner relied heavily on 
contractors and subcontractors at the time the petition was filed, the record must include evidence to suppmt 
such a claim. 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). 
In sum, the deficient job description that the petitioner offered in support of the petition does not meet the 
regulatory criteria, which requires a detailed description of the beneficiary's actual job duties. See 8 C.P.R. 
§ 204.5(j)(5). Additionally, as discussed above, the record lacks sufficient evidence to establish that the 
petitioner had the organizational complexity at the time of filing to relieve the beneficiary from having to 
allocate his time primarily to overseeing a staff of non-professional subordinate contractors and employees 
and performing other operational tasks that would not fit the statutory criteria of managerial or executive 
capacity. Therefore, the petitioner failed to establish that it will employ the beneficiary in a qualifying 
managerial or executive capacity and the appeal will be dismissed. 
Lastly, the AAO will address counsel's references to the petitioner's current and prior approved L-1 
employment of the beneficiary. First and foremost, it is noted that each nonimmigrant and immigrant petition 
is a separate record of proceeding with a separate burden of proof. As such, each petition must stand on its 
own individual merits. USCIS is not required to assume the burden of searching through previously provided 
evidence submitted in support of other petitions to determine the approvability of the petition at hand in the 
present matter. The prior nonimmigrant approvals do not preclude USCIS from denying an extension 
petition. See e.g. Texas A&M Univ. v. Upchurch , 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) . The 
approval of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant petition 
filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior 
nonimmigrant I-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US 
v. US Dept. of Justice, 48 F. Supp . 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp . 1103 
(E.D.N.Y. 1989). 
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Furthermore, if the previous nonimmigrant petitions were approved based on assertions similar to those that 
are contained in the current record, the approval would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a cowt of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
IV. Conclusion 
In summary, the petition will be denied for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.