dismissed EB-1C Case: Automotive Services

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY 
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U.S. Citizenship 
and Immigration 
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Office: VERMONT SERVICE CENTER 
EAC 0.5 070 5 1229 
 Date: DEC 0 6 2006 
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. 8 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
-& 
Robert prwieinannr~hief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner was incorporated in Washington, D.C and is operating as an auto repair shop and cab company. 
It seeks to employ the beneficiary as its president. 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. fj 1153(b)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner failed to establish that the beneficiary would be employed in a managerial or 
executive capacity and denied the petition. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be ,made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or managhi. 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 established that the beneficiary would be 
employed in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages -an esssntial 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. -I 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--- 
(i) 
 directs the management of the organization or a major component or function 
of the organizathn; 
\ 
(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. 
In support of the Form 1-140, the petitioner submitted a letter dated.October 1, 2004 claiming that the 
beneficiary's employment in the United States would include overs'eeing the auto repair shop and cab 
company, including managing the staff, overseeing financial matters, addressing government authorities, and 
exercising discretionary authority. The petitioner also provided a chart illustrating the petitioner's 
organizational hierarchy. The chart indicates that the petitioner is the owner of SP & BS Corporation, which 
operates two businesses-an auto repair shop and a cab company. The petitioner indicated that the auto 
repair shop consists of the following: body and paint shop, which has one fulltime employee; a mechanical 
and electrical department, which has one full-time and one part-time employee; and a parts and accessories 
department, which has one full-time employee. The petitioner also indicated that its cab company owns three 
cabs and has independent contractors for an additional 44 cabs. The relationship between the petitioner and 
the independent contractors was not djscussed. 
On October 4,2005, the director issued a comprehensive request for additional evidence (WE) instructing the 
petitioner to provide further evidence and information. With respect to the beneficiary's proposed 
employment in the United States, the director requested the following documentation: 1) a detailed 
description of the beneficiary's proposed day-to-day duties with an hourly breakdown indicating how much of 
the beneficiary's time would be devoted to each of the listed duties- on a weekly basis; 2) evidence showing 
the petitioner's management and personnel structures; 3) the petitioner's 2004 tax documentation, including all 
Form W-2s issued, its Form W-3, complete Form 941s for the second two quarters of 2004, and its 2004 tax 
return. The petitioner was specifically instructed to provide evidence documenting claimed independent 
contractors. 
In response, the petitioner provided the following description of the beneficiary's proposed employment: 
The beneficiary oversees the skff conducting the day-to-day transactions of SP and BS 
Corporation including cash transactions, managedent, purchasing, billing, delivery, etc. 
Payments are received and bills are paid by .the office secretary. Records are to be 
maintained for the accountant. The checks to be issued are done by the beneficiary. 
Overseeing the day-to-day handling of dealing with the insurance companies which is done 
by the SP and BS secretary. Some time is utilized looking for the insurance matters of the 
cabs. Some affiliations coming in have to be informed to the insurance company. 
Accidents, if any, related to the cab company has [sic] to be dealt with. 
Overseeing the operations of the auto shop including cash flow projections, advertising and 
planning for expahsion. 
Planning being the prime aspect takes a significant amount of time. 
. 
Working with the accountant/consultant to refine the structure of [the petitioner] for 
maximum profitability. 
- 
Regarding the request for tax documentation, the petitioner provided its 2004 corporate tax return as well as 
the requested Form 941s. It did not, however, provide any W-2 wage and tax statements or its Form W-3. 
The petitioner also provided an additional organizational chart, which shows additional employees in the auto 
repair shop business. Specifically, it appears that the mechanical and electrical division has three 
commissioned mechanics and a company employed supervisor. The repair shop also appears to have added 
an upholstery department, which has two commissioned employees. 
With regard to the petitioner's taxi cab busjness, it appears to have nine less independent contractors than it 
had at the time the Form 1-140 was filed. @though the chart shows that the cab company owns its own cabs, 
it is unclear whether any changes have occurred. 
On February 13, 2006, the director denied the petition concluding that the petitioner failed to establish that the 
beneficiary would be employed in a qualifying capacity. In support of this conclusion the director made a 
number of findings. First, the director noted that the petitioner failed to submit W-2 wage and tax statements 
and the Form W-3, all of which were requested in the RFE. Second, the director found that the petitioner 
failed to submit sufficient evidence documenting the number of employees it had at the time of filing, which 
was also discussed in the RFE. The director noted that 'this lack of evidence precludes Citizenship and 
Immigration Services (CIS) from determining whether the petitioner had a sufficient staff to relieve the 
beneficiary from having to primarily perform non-qualifying tasks. Third, the director found that the 
petitioner failed to provide the hourly breakdown of duties for the beneficiary and for his subordinates. 
On appeal, counsel points out that the director made contradictory statements with regard to the petitioner's 
submission of its Form W-2s and further disputes the finding that the petitioner failed to submit the requested 
documentation. While the AAO acknowledges the director's contradictory statements, it is noted that 
counsel's claim that the requested documentation was submitted is not corroborated by the record of 
proceeding. The unsupported statements of counsel on appeal or in a motion are not evidence and thus are 
not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). The director's comment suggesting that the unsubmitted 
documents were actually submitted is hereby withdrawn. 
Counsel further asserts that the beneficiary's responsibilities within the petitioning entity meet each of the four 
prongs of the definition for executive capacity. see. section 101(a)(44)(B) of the Act. In support of this 
assertion, counsel discusses specific business decisions the beneficiary has made within his role as president 
of the petitioning entity. However, the beneficiary's discretionary authority and position within the 
petitioner's organizational hierarchy are not disputed. Counsel's statements suggest that discretionary 
authority and position within the petitioner's hierarchy are indicative of the performance of primarily 
qualifying tasks. This interpretation of the law is incorrect. In examining the executive or managerial 
capacity of the beneficiary, CIS will look first to the petitioner's description of the job duties. See 8 C.F.R. 
9 204.50)(5). The actual duties themselves 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). Accordingly, the director 
properly instructed the petitioner to provide a detailed description of the beneficiary's duties accompanied by 
an hourly breakdown of time to be spent performing such duties. 
On appeal, counsel expresses his dismay at the director's dissatisfaction with the descriptions provided and 
claims that the description provided in response to the RFE adequately illustrates the beneficiary's executive 
role within the petitioning organization. Counsel's statements, however, are without merit. The director's 
request properly specified the information and evidence sought. 
 Regardless of counsel's opinions as to 
whether the requested information was necessary, the fact remains that the petitioner failed to comply with 
the director's request. It is noted that failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). Thus, the director's finding was 
accurate and the conclusion based on such finding was warranted. Rather than comply with the director's 
specific request, the petitioner chose to provide a general overview of the beneficiary's responsibilities, which 
conveyed a heightened degree of discretion, but failed to provide a detailed account of the actual duties the 
beneficiary would perform on a weekly basis. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103. Merely 
stating that the beneficiary's job would entail overseeing staff who would perform the daily operational tasks 
is insufficient. 
Furthermore, 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 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In the instant matter, a 
significant portion of the petitioner's claim hinges on the existence 'of subordinate employees, who 
purportedly carry out the daily non-qualifying tasks. However, the petitioner has failed to provide adequate 
documentation to establish that it actually employs any of the claimed individuals, either directly or on a 
commission basis. The petitioner also provided a general and very,co.nfusing explanation of its relationship 
with the more than 35 individuals who are claimed to work for its taxi cab business as independent 
contractors. The petitioner's failure to provide documentation ta corroborate its somewhat confusing claims 
precludes a finding that the petitioner has an adequate suppart staff to relieve the beneficiary fiom having to 
primarily engage in non-qualifying tasks. 
While counsel properly states that the petitionerk overall purpose and stage of development must be 
considered along with the organizational structure, there are no circumstances under which the petitioner is 
relieved from having to meet its statutorily imposed buden of proof. In the instant matter, the petitioner's 
claim is simply lacking in basic documentary $evidence. The AAO does not find that the organizational 
structure proposed in the petitioner's organizational chart rendirs the petitioner ineligible. Rather, the AAO 
finds that the petitioner simply failed fo dogument the employees it has' claimed within its organizational 
structure. As such, the AAO cannot determine whom the petitione<employed at the time the Form 1-140 was 
filed and whether it had sufficient personnel to support the beneficiary's executive role. This documentation 
as well as a clear description of the beneficiary's duties and the duties of his subordinates are essential to 
establishing eligibility for the benefit sovht. 
Additionally, the AAO notes that the handwritten organizational chart submitted in response to the RFE 
indicated that additional employees were hirGd to work in the petitioner's auto repair shop. However, a 
petitioner must establish eligbility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set o? facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971). Therefore, any additional employees that were hired after the filing of the petition are 
irrelevant for the purpose of determining the petitioner's eligibility. 
Counsel is correct in pointing out the director's error in implyiqg that the beneficiary's subordinates must also 
be managerial or executive employees. Accordingly, the .improper statements are hereby withdrawn. 
Notwithstanding the erroneous comments, however, the director made proper findings with regard to the 
petitioner's failure to submit evidence and, based on such findings, rendered a proper conclusion with regard 
to the petitioner's overall eligibility. Therefore, as the petitioner has failed to establish that the beneficiary 
will be employed in a primarily managerial or executive position, this petition cannot be approved. 
Furthermore, the record supports a finding of ineligbility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. $ 204.56)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position for at least one out of the three years prior to entering 
the United States as a nonimmigrant. In the instant matter, the petitioner has failed to provide sufficient 
information about the specific duties performed by the beneficiary during his employment abroad. See 
8 C.F.R. 3 204.5Cj)(5). The petitioner's description of the beneficiary's position abroad included general job 
responsibilities rather than specific duties as requested in the RFE. Therefore, the AAO cannot determine 
whether the beneficiary primarily performed duties of a qualifying nature during his employment abroad. 
Second, 8 C.F.R. $ 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. In the instant matter, the petitioner claims to be a wholly 
owned subsidiary of the foreign entity. However, in an addendum to Schedule E of the petitioner's 2004 tax 
return, the petitioner indicated that the beneficiary owns 100% of its outstanding stock. The same claim is 
reiterated in the petitioner's 2004 franchise tax return, Schedule C. 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). In the instant matter, 
the petitioner has provided its stock certificate No. 2 indicating that 510,000 out of one million shares were 
issued to the foreign entity. However, this document cannot be deemed "objective evidence." See id. As 
general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
petitioner has submitted no other documentation, including evidence of funds contributed towards the 
purchase of the petitioner's stock, which would establish who, in fact, owns the majority of the petitioner's 
outstanding stock. Therefore, the petitioner has failed to provide sufficient evidence in support of its claim 
regarding its relationship with the beneficiary's foreign employer. 
As an alternative, the AAO has also conzidered the possibility that the petitioner may be an affiliate of the 
foreign entity, in light of the beneficiary's ownership interest in both entities. The regulation at 8 C.F.R. 
$ 204.56)(2) states in pertinent plrt: 
AfJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
In the instant matter, the petitioner has submitted documentation indicating that the beneficiary has a 30% 
interest in the foreign entity. However, accozding to the petitioner's tax documentation, the beneficiary owns 
100% of the outstanding shares of the U.S. entity. As such, the petitioner does not fit the definition of 
affiliate as defined above. 
An application or petition that fails to comp"ly 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), am, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligbility as discussed above, 
this petition cannot be approved. 
As a final note, counsel makes a brief reference to the petitioner's current approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $9 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 9 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant 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. 
CJ: $9 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also fj 316 of the Act, 8 U.S.C. fj 1427. 
In addition, the approval of a nonimmigrant petition in no way guarantees that CIS will approve an immigrant 
petition filed on behalf of the same beneficiary. CIS denies many 1-140 immigrant petitions after approving 
prior nonimmigrant 1-129 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 at 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
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 CIS 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 court 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. 5 1 (2001). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
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. fj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.