dismissed EB-1C Case: Automotive Sales And Food Industry

(b)(6)
DATE: 
APR 0 1 2013 
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, OC 20529-2090 
U.S. Citizenship 
.and Immigration 
Services · 
OFFICE: NEBRASKA SERVICE CENTER 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)(I)(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 AAO inappropriately applied the ·law in reaching its decision , or you have additional 
information that you wish to have considered , you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion , with a fee of $630 .The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Plea.se be aware that 8 C.F.R. § l03.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen . 
Thank you, · 
t4.--
f.Ron Rosenberg · 
Acting Chief, Administrative Appeals Office 
www.uscis.gov_ 
(b)(6)
Page2 
·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 California limited· liability company that seeks to employ the beneficiary as 
managing director. 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 A~t (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager . 
The petitioner states that it is engaged in sale and trade of automobiles and the .food industry, and 
indicates that it has three employees. In support of the Form 1-140 the petitioner submitted a 
letter from counsel dated April 28, 20 l1 which provided some of the beneficiary's expected 
duties with the U.S. company. The petitioner also provided evidence in the form of corporate 
and financial documents pettaining to the beneficiary's foreign employer. · 
The director reviewed the initial submission and determined that the petition did not warrant 
approval. Therefore, the director issued a request for evidence (RFE) on September 19, 2011 
. informing the petitioner of various deficiencies. The director requested evidence establishing the 
beneficiary's employment for at least one year abroad with the foreign company. The director 
·also requested: more detailed descriptions for the beneficiary's duties abroad and in the United 
States; organizational chmts, names and duty descriptions for the beneficiary's subordinates · 
abroad and in the United States; and evidence of wages and work schedules for all the . . 
petitioner's employees, 
In response to the RFE, the petitioner provided a variety of documents but failed to provide the 
requested information regarding the beneficiary's duties or organizational chatts reflecting the 
structure of either the foreign company or the U.S. petitioner. 
The director considered the petitioner's response but determined that the petitioner failed to 
establish that the beneficiary had been employed abroad or would be employed in the United 
States in a qualifying managerial or executive capacity. In a decision elated December 16, 2011 
the director stated that the petitioner failed to provide. adequate duty descriptions or 
organizational chatts. Further, the director concluded that the evidence the petitioner did provide 
indicated the beneficiary would be responsible for the mundane and routine duties required to 
operate a small business without adequate staff to assist him. 
On appeal, counsel for petitioner disagrees with the director's decision and asserts that all 
necessary supporting documents were already provided. Nevertheless, counsel encloses 
additional evidence including letters and other documents which were originally submitted in 
supp011 of the petitioner's previous L-1 A nonimmigrant petition filed on behalf of the 
beneficiary, as well as organizational charts for the foreign company and the .petitioner. 
During adjudication of the appeal, evidence came to light that the petitioner in this matter had a 
suspended corporate status in the State of California. Therefore, on January 8, 2013, the AAO 
notified the petitioner that a review of the petitioner's status at the business search website 
maintained by the California Secretary of State indicated that the petitioner was suspended . . 
(b)(6)
Pag~ 3 
within the State of Califomia. See Website of California · Secretan of State 
(last accessed March 22, 2013). 
In response to the AAO's Notice of Derogatory Information, counsel submits a letter dated 
February 4, 2013 statirig tha~ the petitioner, · formed in 2005·, was acquired or merged with 
another U.S. company named in September 2008. The petitioner submits a 
statement of information, Employer Identification Number notiCe, tax docui_Ilents and other 
documents relating to The petitioner did not submit a single document in 
support of counsel's claim that merged with or was acquired by 
Notably, this petition was filed on May 2, 2011 by the petitioner, rriore than 
two years after the petitioner's claimed merger or acquisition with 
According to the California Secretary of State website, filed with the ·state 
as a food establishment & restaurant on October 28, 2005 and is currently suspended. 
was· incorporated in California on June 17, 2008 . and. is currently listed as active. 
These businesses are legally separate and independent entities. The · petitioner claims a 
merger/acquisition but provides no explanation regarding its . current filing and absolutely no 
documentary evidence of a merger or acquisition. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22.J&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N. 
Dec. 190 (Reg. Comm'r 1972)). ' 
Nevertheless, the petitioner . asserts "the continuity of the Petitioner's operation has been 
uninterrupted. The mere change in name and subject matter does not alter the validity of the 
underlying Petition." The petition~r is mistaken, however. The beneficiary appears to be 
affiliated with both companies and .the petitioner is attempting to treat the two companies as 
interchangeable for the purpose of the instant appeal. However, the two companies are not 
interchangeable and is not the petitioner in this matter. 
Further, the evidence does not support counsel's assertion. According to the California Secretary 
of State website, the separate existence of a business entity will cease upon the fqing of a merger 
document reflecting the merger of one entity with another. Furthemiore, a business entity may 
not be merged with another while in a suspe!1ded or forfeited status. The ·petitioner is still 
identified as a separate entity which is suspended in the State of California. The petitioner 
submitted no documents such as a certificate of ownership, agreement of · merger, or officer 
certification of the surviving or merging business entities in order to establish a merger or 
acquisition of the petitioner by .. 
Further, in a recent letter dated April 28,2011, counsel asserts that the petitioner had been doing . 
business as for its first few years of operation, but then expanded into the 
automotiv,e industry and was now also doing business as . Counsel referenced 
the petitioner's profitable year in 2010 and reiterated that the petitioner was a California limited 
liability company. On appeal counsel continues to refer to the petitioner as a limited liability 
company while simultaneously claiming that the petitioner is now a corporation, 
Counsel urges consideration of an . abundance of documentatiov including tax returns, 
(b)(6).' 
Page4 
financial records, and other corporate . documents. A review of these documents Sh9WS that 
counsel is referring to . Counsel refers to the petitioner and . 
interchangeably. These assertions are confusing because counsel failed to provide any 
documentation showing the merger or acquisition of the petitioner by 
Rather, the petitioner merely submits documents reflecting . . in lieu of the 
. petitioner and baldly asserts that the companies are one and the same. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the p~titioner'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). 
The petitioner and . are separate and independent business entities having 
distinct Federal Employer Identification Numbers (EIN) as reflected in the record. The 
petitioner suggests that the two entities are affiliates, but does not provide evidence in support of 
this claim. Regardless, the beneficiary has been identified as a potential employee for the 
petitioner and not The petitioner's assertion that it has merged with 
as Of 2008 is not credible given that the petitioner filed this petition on behalf of 
the beneficiary in 2011 and failed to provide any documentationestablishing this merger and/or 
acquisition. 
Consequently, the AAO considers the suspended to·be the petitioner. Since 
the petitioning business is no longer an active business, no bona fide job offer exists and the 
request that a foreign worker be allowed to fill the positioil .listed in the petition has become 
moot. Moreover, any such. concealment of the true status of the organization by the petitioner 
seriously compromises the credibility of the remaining evidence in the record. 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). In any further filings, the petitioner would need to establish that 
it is in good standing or submit other proof that the business is not suspended and is currently in 
active status. 
The AAO fu~ther finds that coui1sel's assettion s that the director's findings were in error are not 
persuasive and thus fail to overcome the director 's adverse decision . . 
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 
(b)(6)
Page5 
. 
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 or 
managers who have previously worked for a firm , corporation or other legal entity, or an affiliate 
or subsidiary of that entity. and are coming to the. United States to work for the same entity, or its 
affiliate or subsidiary . . 
A Unit~d 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 ih the United 
States in a managerial or executive capacity. ·such a statement must clearly describe the duties to 
be performed by the alien. 
Section l01(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A) , provides: 
The tenn "managerial capacity" means an assignment within an organization 111 which the 
employee primarily--
,..-
(i) manages the organization, or: a department; subdivision; function. or 
component of the organization; 
I 
(ii) supervises . and controls the work of other supervisory, professional, or 
managerial employees, or manages an . essential function within the 
organization,or a depat1meilt 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. 
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; 
(b)(6)
Page6 
(ii) establishes the goals and policies· of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) rec~ives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
The director found that the record did not ·establish that the petitioner's claimed parent company 
employed the beneficiary in a mimagerial or executive capacity for at least one year of the three 
years prior to his admission to the United :States as a nonimmigrant. 
The petitioner submitted a vague and non-specific job description for the beneficiary's foreign 
position which failed to suffitiently describe what the beneficiary did on a day-to-day basis. 
Based on the evidence provided, it appears the beneficiary obtained permits in 2004 for the 
German restaurant and handled "[p]roduct management, marketing, daily operations and 
overseeing staff and services." A detailed duty description was not provided. Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daVy job duties. The petitioner has 
failed to provide any detail or explanation of the beneficiary's activities in the course of his daily 
routine. The actual duties themselves. will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner failed to provide additional information regarding the beneficiary's duties or the 
staffing of the foreign entity despite the director's specific request for evidence. 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)(l4). Only on appeal did the petitioner provide an undated organizational chart 
identifying the beneficiary's roles as one of two shareholders, one of three members on the board 
of directors, the Chief Executive Officer, and the president of the foreign company. The chart 
provided a list of eleven named employees, including the beneficiary, but no job titles or duty 
descriptions are included. . The petitioner provided no additional detail regarding the 
beneficiary's duties. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 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)). 
Therefore, the petitioner has failed to overcome the directo.fs adverse findings, and the appeal 
will be dismissed based on the petitioner's failure to establish that the foreign entity eqtployed 
the beneficiary in a qualifying managerial or executive capacity. 
The director also determined that ·the evidence did not establish that the beneficiary's 
employment with the petitioner would be in a qualifying managerial or executive capacity. 
· According to information provided on the Form .i-140 petition, the beneficiary would direct and 
manage "the qperation of the underlying business including hiring ·and firing the staff , ordering 
supplies and materials and entering into contracts and executing checks and other valuable or 
financial documents." In a letter, counsel asserted that .the beneficiary is "in charge of daily 
(b)(6)
Page 7 
operation of the entitJ:." Further, . counsel ·indicated that beneficiary "supervised and 
implemented the hiring and training of the ·staff, promulgating rules and procedures .to employ 
qualified workers. He has also poised (sic) his best to acquire all equipment and tools required 
for smooth operation of the entity." The petitioner offered no additional detail regarding the 
benefi~iary's proposed duties. 
The petitioner fmther states that it has three employees . including the beneficiary. Since the . . 
petitioner also asserted that it operates two separate businesses under two fictitious names, 
it is unclear how it is able to operate with only three 
employees. 
Furthermore, while petitioner claims to have three employees, it has failed to establish that the 
regular and current employment of anyone other than the beneficiary. The petitioner asse11s on 
appeal that the two individuals who received 2010 IRS Form 1099-MISCs are not independent 
contractors as determined by the director, but rather are regular employees. A review of the 
2010 IRS Form 1l20S, U.S. Income Tax Retum for an S Corporation, for 
shows a salary credited to the· beneficiary as an officer of the company. The return also reflects 
an additional $36,000 paid in commission to two individuals in the amount of $18,000 each on 
2010 Forms 1099-MISC. The AAO emphasizes that these individuals were paid by 
and not by the petitioner. Even if this company were the actual petitiOii.er, the 
·petitioner has not provided job titles or duty descriptions for these claimed employees. The 
petitioner was given another opportunity to provide this information in response to the director's 
RFE b~t it failed to do so. Again, 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)(l4). 
Therefore, based on the minimal evidence provided, the director found that the beneficiary 
would more likely than not be primarily performing the mundane and routine duties required in 
the operation of a small business. The director found that the petitioner did not meet its burden 
and the AAO concurs with this determination. The petitioner failed to establish that it presently 
employs sufficient subordinate employees to ensure the beneficiary could devote his time to 
primarily executive or managerial functions. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be 
the determining factor in denying a visa to a multinational manager or executive. See§ IOI(a)(44)(C) of 
the Act, 8 U.S.C. § ll0I(a)(44)(C). However, it is appropriate for USCIS to consider the siz~ of the 
petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non­
executive operations of the company, or a "shell company" that does not .conduct business in a 
regular and continuous inanner. See, e.g. Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be 
especially relevant when USCIS notes discrepancies in the record and fails to believe that the 
facts asserted are true. See Systronics, 153 F. Supp. 2d .at 15. Here, absent credible evidence of 
· the number of employees the petitioner employs and the duties they perform, the petitioner has 
not established that the company has sufficient staff to relieve the beneficiary from performing 
primarily non-qualifying duties, or that it has a reasonable· need for the beneficiary to allocate the 
majority of his time to managerial or executive tasks. 
(b)(6)
Page8 
Therefore, the petitioner failed to establish that the petitioner employed the beneficiary in a 
qualifying managerial or executive capacity and for this additional reason, the appeal will be 
dismissed. 
The petitioner noted that USCIS approved nonimmigrant petitions that had been filed on behalf 
. of the beneficiary. It must be noted that many I-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant 1-1.29 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 
2d 25 (D.D.C. 2003); 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. I 103 (E.D.N.Y. 1989). Examining the consequences of an approved 
petition, there is a significant difference between a nonimmigrant L-IA visa classification, which allows 
an alien to enter the United States temporarily, and an immigrant E-13 visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for 
naturalization as a United States citizen. Cf §§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see 
also§ 316 oftheAct, 8 U.S.C. § 1427. Because USCIS spends less time reviewing 1-129 nonimmigrant 
J)etitions than I-140 immigrant petitions, some nonimmigrant L-1 A petitions are simply approved in error. 
Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. § ·214.2(1)(14)(i)(requiring no 
supporting documentation to file a petition to extend an L-lA petition's validity). 
. I . 
Further, nonimmigrant petition filings and immigrant petition filings are separate proceedings with 
separate records and a separate burden of proof. See 8 C.F.R. § 103.8(d). In making a determination of 
statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. 
See 8 C.F.R. § 103.2(b)(l6)(ii). For the reasons discussed above, the evidence in the current record of 
proceeding fails to establish that the beneficiary and petitioner are eligible for the benefit sought. 
Accordingly, the petition will be denied and the appeal dismissed 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 r~rnains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.