dismissed EB-1C Case: Automotive Machining

prevent cl~2;"Y umvarranteo 
invasion of personal privac) 
PUBLIC copy 
DATE: FEB 1 5 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 
OFFICE: NEBRASKA SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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)(1)(i) requires that any motion must be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
C1Q@, ..... 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 an "automotive machining and industrial provider." It seeks to employ the 
beneficiary as its vice president. 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. § I I 53(b)(I)(C), as a multinational executive or manager. 
The director denied the petition based on the following grounds of ineligibility: (1) failure to 
establish that the beneficiary's employment abroad was within a qualifying managerial or executive 
capacity; and (2) failure to establish that the beneficiary's proposed employment with the U.S. entity 
would be within a qualifying managerial or executive capacity. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. On appeal, counsel for the petitioner contends that the beneficiary 
is in a managerial capacity and supervises the Overseas Sales Manager, Local Sales Manager and 
Contract Services Manager. Counsel also states that the beneficiary "does not perform labor," but 
"instead acts as a leader by supervising and managing his subordinates, which include the managers 
for three other departments within the company." Counsel further states that the majority of the 
revenue was "derived from export sales and not contract service," and therefore, the "service 
personnel performing the work were more than sufficient to deliver the 25% of the overall revenue 
[contract services]." Counsel also explained that the petitioner submitted an organizational chart of 
the petitioner for 2008 only, and it does not represent the employees hired in 2006 and 2007. Counsel 
further explains that the petitioner has high tum-over and for that reason, the employees of 2006 and 
2007 are not all the same as the employees listed on the organizational chart for 2008. 
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 ofthe 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 I 
year by a fmn 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 fmn, corporation or other legal entity, or an affiliate or 
Page 3 
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 two issues that will be addressed in this proceeding call for an analysis of the beneficiary's job 
duties. Specifically, the AAO will examine the record to determine whether the petitioner submitted 
sufficient evidence to establish that the beneficiary was employed abroad and would be employed in 
the United States in a qua1itying managerial or executive capacity. 
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 primari1y--
(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 ofthe 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. § 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primari1y--
(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 examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defmed job description, as the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 11 03, 11 08 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). USCIS reviews the totality 
of the record, which includes not only the beneficiary's job description, but also takes into account 
the nature of the petitioner's business, the employment and remuneration of employees, as well as the 
job descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a 
complete understanding of a beneficiary's actual role within a given entity. 
An analysis ofthe record does not lead to the conclusion that the beneficiary was employed abroad or 
would be employed in the United States in a qualifying managerial or executive capacity. With 
regard to both the foreign and proposed positions the petitioner provided a list of job duties 
performed by the beneficiary which included broadly stated job responsibilities. Due to the overly 
general information, the AAO is unable to gain a meaningful understanding of how much time the 
beneficiary spent performing qualifying tasks versus those that would be deemed non-qualifying. 
The petitioner explained that the beneficiary held the position of Director of Operations when he 
worked abroad with the parent company. According to an organizational chart submitted by the 
petitioner, the beneficiary supervised a production manager who in tum supervised an automotive 
forman [sic], industrial and machinery forman [sic], and a production control person who in tum 
supervised 14 employees. 
The petitioner also submitted a job description for the position of director of operations to include: 
Responsible for P & L and profitable operations including all aspects of production, 
sales, Service, personnel, capital equipment acquisition, purchasing, coordinating 
resources, Contract management, technical training and personnel development. 
1. Manages operational profit and loss 
2. Manages production, sales, service, capital, purchasing 
3. Responsible for alliances, partnerships and contracting 
4. Responsible for customer relationships in private and public sectors 
5. Responsible for account receivables and payables 
The petitioner provided a list of job duties that was not accompanied by a percentage breakdown. 
Due to the overly general and vague list of job duties, the AAO is unable to gain a meaningful 
Page 5 
understanding of how much time the beneficiary spent performing qualifYing tasks versus those that 
would be deemed non-qualifYing. 
In describing the beneficiary's position with the foreign parent company, the petitioner stated that the 
beneficiary would: "Manage operational profit and loss and production, sales, service, capital, 
purchasing." However, it is unclear which specific tasks actually fall within this broad category. 
Merely using the term "manage" to describe the beneficiary's function does not establish that the 
supervisory tasks the beneficiary performed are of a qualifYing nature, particularly when it appears 
that the beneficiary performed several non-qualifYing duties such as being responsible for 
partnerships and contracting and account receivables and payables. Without further information, it 
appears that the beneficiary was providing the services of the business rather than directing such 
activities through subordinate employees. An employee who "primarily" performs the tasks 
necessary to produce a product or provide a service 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). 
As noted above, the petitioner failed to clarifY the percentage of time the beneficiary spent on each 
duty, as requested by the director. Failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.F.R. § 1 03.2(b )(14). On appeal, counsel for 
the petitioner asserts that the beneficiary primarily performs executive and managerial duties, but the 
petitioner did not submit any documentation to confirm this assertion. 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). 
After reviewing the beneficiary'S job description with the foreign entity, the AAO cannot conclude 
that the primary portion of the beneficiary's time was spent performing tasks within a qualifYing 
managerial or executive capacity. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a managerial or executive capacity. 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. § 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly 
describe the duties to be performed by the beneficiary and indicate whether such duties are either in 
an executive or managerial capacity. Id. 
In a letter of support, dated May 12, 2006, the petitioner explained the duties performed by the 
beneficiary in the United States as Vice President as follows: 
• Procure sales, Operations, Purchasing, Finance, and recruiting of all personnel; 
• Supervise two sales people, 4 technicians, and one secretary; 
• Control overseas relationships for exporting; 
• Direct development of new marketing strategies to reach local, national, and 
international industries; 
Page 6 
• Assist clients in the design, development, and service of machinery to facilitate 
manufacturing; 
• Maintain regular communication with [the foreign company] regarding the 
production and expansion of new services; and 
• Makes decisions on all matters concerning the company's operations. 
In response to the director's request for evidence, the petitioner submitted a job description for the 
duties of general manager. The job description listed the "essential job functions" as follows: 
1. Manage all aspects 0 f [the petitioner's] operations. 
2. Manages strategic planning. 
3. Responsible for sales, service, production, quality, purchasing, fmance 
4. Responsible for exports, compliance, regulatory NCDMV conditions 
5. Responsible for coordinating with [the foreign company] in Chouiefat Lebanon 
The petitioner submitted an organizational chart that lists the President and CEO who in tum 
supervises the beneficiary as General Manager, who in tum supervises the Overseas Sales Manager, 
Local Sales Manager, and Service Manager. The Local Sales Manager supervises a sales 
representative. The Service Manager supervises two employees in the hydraulic shop and three 
employees in "Electro Mechanical." The chart indicates a total of 11 employees. 
The petitioner provided a list of job duties that was not accompanied by a percentage breakdown. 
Due to the overly general and vague list of job duties, the AAO is unable to gain a meaningful 
understanding of how much time the beneficiary spent performing qualifying tasks versus those that 
would be deemed non-qualifying. 
In describing the beneficiary's position in the United States, the petitioner stated that the beneficiary 
will "manage all aspects of [the petitioner's] organization," and "manage strategic planning," and be 
"responsible for sales, service, production, quality, purchasing, fmance." It is unclear which specific 
tasks actually fall within this broad category. Merely using the term "manage" to describe the 
beneficiary's function does not establish that the supervisory tasks the beneficiary will perform are of 
a qualifying nature. Without further information, it appears that the beneficiary will be providing the 
services of the business rather than directing such activities through subordinate employees. An 
employee who "primarily" performs the tasks necessary to produce a product or provide a service 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). 
The petitioner failed to submit the percentage of time the beneficiary will spend on each duty, as 
requested by the director. 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). On appeal, counsel for the 
petitioner asserts that the beneficiary primarily performs managerial duties, but the petitioner did not 
submit any documentation to confirm this assertion. 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 
Page 7 
1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). 
An analysis of the nature of the petitioner's business undermines the petitioner's assertion that the 
beneficiary is employed in a managerial or executive capacity. The Form 1-129, submitted on August 
14, 2006, stated that the petitioner employs 8 individuals. In addition, on the Form 1-129, the 
petitioner stated that the beneficiary "supervises two sales people, 4 technicians, and one secretary." 
As discussed in the director's decision, the petitioner also provided Forms 1099 for 2006 and 2007. 
According to the tax forms, the petitioner employed 8 individuals in 2006 but several of these 
employees were paid a small amount for the year. For example, six individuals were paid less than 
$5000.00 for the entire year, thus, it does not appear that they were employed full-time. Again, in 
2007, the Forms 1099 indicate that the petitioner employed 10 individuals but seven of these 
individuals were paid less than a full-time salary. The petitioner also submitted an organizational 
chart that indicated 11 employees. The petitioner also states on appeal that the beneficiary supervises 
three department managers, the Overseas Sales Manager, Local Sales Manager and Contract Services 
Manager. As noted by the director, the organizational chart and the Forms 1099 do not coincide with 
each other and thus, it is impossible to determine the true organizational hierarchy of the petitioner. 
On appeal, counsel for the petitioner does not discuss why several employees were paid a minimum 
amount in 2006 and 2007. Instead, counsel states only that the organizational chart only represents 
2008 which differs from 2006 and 2007 due to "high turnover." The original list of individuals 
supervised by the beneficiary is totally different from the subordinates listed on the organizational 
chart in 2008. The petitioner did not provide any corroborating evidence that the petitioner actually 
employs the individuals listed in the 2008 organizational chart. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The AAO must review the beneficiary's job duties at the time of filing the instant petition. The 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible 
under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). 
According to the Forms 1099 for 2006 and 2007, the petitioner paid a full-time salary to the 
beneficiary and two other individuals. The petitioner did not provide the job descriptions for the 
other two individuals so has not clarified their position with the petitioner. Thus, it appears that the 
petitioner had three full-time employees, including the beneficiary. Without further information of 
the duties performed by the other two employees, it appears from the record that the beneficiary may 
be performing several, if not all, of the fmance operations and business development activities, and 
all of the various operational tasks inherent in operating a business on a daily basis, such as 
purchasing inventory, paying bills, handling customer transactions, and negotiating contracts. Based 
on the record of proceeding, the beneficiary's job duties are principally composed of non-qualifying 
duties that preclude him from functioning in a primarily managerial or executive role. 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 Intn '/., 19 I&N Dec. at 604. 
Page 8 
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 a complete understanding of a beneficiary'S 
actual duties and role in a business. As discussed above, the petitioner has not identified employees 
within the petitioner's organization, subordinate to the beneficiary, who would relieve the beneficiary 
from performing routine duties inherent to operating the business. 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
was employed abroad and that he would be employed in the United States in a qualifying managerial 
or executive capacity. Based on these [mdings, the instant petition cannot be approved. 
Beyond the decision of the director, the petitioner has not established that a qualifying relationship 
exists with the beneficiary'S overseas employer. To establish a "qualifying relationship" under the 
Act and the regulations, the petitioner must show that the beneficiary'S foreign employer and the 
proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a 
"parent and subsidiary" or as "affiliates." See generally § 203(b)(1)(C) of the Act, 8 U.S.C. § 
1153(b)(1 )(C); see also 8 C.F.R. § 204.50)(2) (providing definitions of the terms "affiliate" and 
"subsidiary") . 
The petitioner submitted a document entitled, "Corporate Statement of Revocation of SElection," 
dated November 18, 2008. The document stated that the petitioner revokes the Subchapter Selection. 
By revoking the S election, the shareholders may change, thus possibly changing the fact that the 
foreign company owns the majority shares of the petitioner. Without further information of how the 
shares will be distributed, it is not clear if the petitioner has a qualifying relationship with the foreign 
company. 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)). 
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), affd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
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. § 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.