dismissed EB-1C Case: Aviation

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
FILE: OFFICE: TEXAS SERVICE CENTER Date: FEB 0 1 2040 
SRC 07 266 54298 
IN RE: Petitioner: 
Beneficiary: 
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. 3 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
U 
Perry Rhew 
Chief, Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Florida corporation that 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. 
5 1 153(b)(l)(C), as a multinational executive or manager. 
The director found that the petitioner failed to establish that it would employ the beneficiary in a 
managerial or executive capacity and denied the Form 1-140 on that basis. On appeal, counsel 
disputes the director's finding and submits a brief with additional evidence. 
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 manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United States 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
The primary issue in this proceeding is whether the petitioner established that the beneficiary would 
be employed in the United States in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. fj 1 101 (a)(44)(A), provides: 
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The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (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 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. 
In support of the Form 1-140, the beneficiary, on behalf of the petitioner, submitted a letter dated 
May 30, 2007, stating that the petitioning entity had six employees at the time of filing. The same 
information was provided in Part 5, No. 2 of the petitioner's Form 1-140. The support letter offered 
the following percentage breakdown of the beneficiary's proposed U.S. employment: 
40% Supervise managers and supervisors responsible for planning: [the 
beneficiary] will supervise managers, making important decisions, and report 
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to the board of directors, far away from the day-to-day duties. This is one of 
the most important responsibilities as the President. He will supervise all the 
mangers and supervisors in general activities; he will be responsible for 
guide[ing] and direct[ing] the managers or professionals who work for the 
company, to the achievement of our goals, in order to get excellent results in 
the success of the company such as the statistics, budget proposals, 
administrative results to compete and exceed other businesses in customer 
service, quality, and total satisfaction of our members and the general state 
and governmental institutions. 
Directly supervise the General Manager: This manager will be the closest 
manager to the president. The president will give the instructions and 
directions directly to the General Manager who, together with him, will be in 
charge of the direction of all departments. They will work together in the 
supervision of all the business develops [sic] and financial activities that our 
company involves [sic] in order to achieve our goals. 
Supervise Flight Scheduling Manager: [the beneficiary] will give 
instructions to the Flight Scheduling Manager. He will supervise the 
department in managing all aspects of the operational activities while 
providing the tools necessary to deliver high levels of service to their 
clientele. He will control the manager's performance; he also will develop and 
establish the logistic[s] in the domestic and international flights [sic] 
arrangements. 
Directly supervise the Operational Manager: [the beneficiary] will apply 
all his professional skills in order to guide and advice [sic] this manager in the 
development of job assignments in the operational area, by helping overseeing 
and developing the coordination of operational activities within the region. 
Responsible for supervising Administrative Manager: Supervise [the] 
administrative manager of the company planned [sic] and supervise the use of 
materials and [hluman resources. He will give the instructions and directions 
to the Administrative Manager who will be responsible of [sic] executing the 
General Manager['s] directions of salaries approval, promotions, and 
demotions, selecting, hiring and reducing personnel under high standard skills 
[sic]. Control and supervise the sales numbers, sales projects, statistics and 
proposals to compete and exceed business in customer service, quality values, 
costs, and total satisfaction. 
10% Responsible for managing all personnel and staff: [the beneficiary] will act 
as the head of the corporation. Every activity has to pass by his hands before 
being approved. He also will be responsible for the approval of salaries, 
promotions, removals, selecting, hiring, and reducing personnel under high 
standard skills. 
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10% Directly [sic] Management and Supervision of the quality of job 
assignments: [the beneficiary] will guide and advice [sic] the managers and 
supervisors in the development of job assignments and approve excellent 
quality results . . . . 
10% Management and supervision of all financing reports: [the beneficiary] 
will direct and guide the financial department in all of its activities, by 
offering his professional advice for improving our sales. Some of the 
activities that he supervises are the costs, budget proposals to customers, the 
accountant projects evolution, monthly revenues, monthly office expenses, 
and functions in financing and accounting results, projects and reviews in 
order to provide higher customer satisfaction. 
10% Be responsible for controlling the organizational site of the business: [the 
beneficiary] will be in charge of the Miami [olffice premises wherein he will 
be the managerial guide to the success of all our activities including the 
supervision of the corporate organization and the well flowing of the different 
departments of our company. 
5% Redirect and apply new standard policies: [the beneficiary] will be an 
essential part in the renewal of the policies of our company and he will also 
apply all his executive knowledge in order to find the perfect way to reach our 
goals by providing the right tools of confidence, career advancement 
opportunities and appropriate training to the Miami personnel in charge. 
10% Present monthly potential possibilities to the Board of Directors: [the 
beneficiary] will prepare some presentations to the board of directors in order 
to make a brief review of all our advances and goals . . . and all the new work 
proposals of new businesses that can be developed . . . . 
5% Supervise monthly sales figures and personnel: [the beneficiary] will be 
aware of all the improvements as well as all the personnel of the company is 
[sic] involved in, until assignments are finalized and successfully closed in a 
quality manner. 
The petitioner also stated that 85% of the beneficiary's time would be spent on "supervision and 
direction managerial control duties" and another 15% would be spent on "managerial supervision 
duties." No clear distinction was made as to which job duties apply to either of those categories. 
Lastly, the petitioner claimed to have seven "direct and indirect employees," including four 
managers as the direct employees, an accountant and an attorney as the two professional employees, 
and one indirect employee (whose job title was not disclosed) to assist the managers. The 
beneficiary repeatedly stated that he planned to be removed from the petitioner's day-to-day 
activities, which would be taken on by the subordinate employees. The supporting evidence also 
included the petitioner's organizational chart, which depicted the beneficiary at the top of the 
organizational hierarchy with the general manager as his direct subordinate along with an accountant 
and an attorney as the peripheral employees hired on an as needed basis. The chart indicates that the 
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general manager oversees the work of the flight scheduling manager and his assistant, an 
administrative manager, and an operational manager. 
On April 22,2008, the director issued a notice requesting additional evidence (RFE), including 2007 
Forms W-2 for the petitioner's employees as evidence of its current staffing levels as well as a 
detailed breakdown of the job duties and responsibilities for each of the petitioner's paid employees. 
In response, the beneficiary provided a letter dated May 19, 2008 in which he stated that he 
supervises seven employees total, including four managerial employees at the petitioning company 
and three managerial employees at a related company. The beneficiary restated the prior claim that 
85% of his time would be spent on managerial control duties and another 15% would be spent on 
managerial supervision duties. Again, however, no clear distinction was made as to the specific job 
duties that fall under either category. Also submitted were a number of the petitioner's quarterly 
federal tax returns, including the quarterly return for the 2007 third quarter during which the 
petitioner's Form 1-140 was filed. It is noted that according to this document, the petitioner had only 
two employees during the relevant time period. 
On July 24, 2008, the director issued a decision denying the petitioner's Form 1-140. The director 
noted that while the beneficiary claimed six employees under his direct or indirect control, no 
evidence was provided to establish the wages being paid to the claimed employees. The director 
also observed the petitioner's failure to comply with the request for employee Form W-2 statements 
for 2007 and, after reviewing the petitioner's personal tax return for 2007 and comparing that with 
the figures in the petitioner's 2007 corporate tax return, concluded that the petitioner failed to 
provide corroborating evidence to show that any of the beneficiary's claimed subordinates were paid 
a bona fide wage at the time of filing. The director went on to discuss the beneficiary's deficient job 
description, which focused heavily on personnel management but failed' to provide specific 
information about any qualifying-level tasks. 
On appeal, the beneficiary provides a letter dated August 22,2008 in which he discusses his key role 
as the founder and president of the U.S. entity. Counsel argues that in issuing adverse findings 
regarding the lack of a full-time support staff, the director failed to take into account that what may 
have appeared as part-time salaries for support personnel was really a reflection of only a portion of 
the salaries paid in 2007. Counsel explains that this change was put into place when a decision was 
made to "give more operative power to the petitioner." However, counsel fails to fully explain what 
is meant by "operative power" or what the petitioner's status of operation was prior to the alleged 
alteration. 
With regard to counsel's claim that the petitioner's employees were paid full-time salaries during 
only a portion of 2007, 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 the present matter, counsel's 
claim is not supported by corroborating evidence establishing exactly when the alleged change went 
into effect and whether it took place prior to the filing of the Form 1-140. See Matter of Katigbak, 14 
I&N Dec. 45,49 (Cornrn. 1971), establishing that a petitioner must establish eligibility at the time of 
filing. Therefore, the petitioner must establish that its staffing at the time of filing was sufficient to 
support the beneficiary in a qualifying managerial or executive position. It appears that the director's 
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purpose in discussing the wages of the support staff was to point out that a limited part-time staff 
may not be sufficient to relieve the beneficiary from having to primarily perform non-qualifying 
tasks. That being said, the AAO finds it noteworthy to point out that the petitioner's third quarterly 
federal tax return for 2007 shows that only two employees were paid wages during the time period in 
which the filing of the Form 1-140 took place. Therefore, it appears that there is a significant 
inconsistency between the petitioner's claim in the 1-140 itself, which indicates that six people were 
employed at the time of filing, the petitioner's response to the RFE in which the beneficiary claimed 
to have supervised seven employees at the time of filing, and the quarterly tax return indicating that 
only two employees were employed at the time of filing. 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). The 
fact that the petitioner failed to provide evidence resolving this inconsistency and establishing 
exactly whom it employed at the time of filing gives rise to doubt as to whether the petitioner was 
adequately staffed at the time of filing such that it was able to relieve the beneficiary from having to 
primarily perform non-qualifying tasks. It is noted that both statute and case law have clearly 
established that an employee who "primarily" performs the tasks necessary to produce a product or 
to provide services is not considered to be "primarily" employed in a managerial or executive 
capacity. See sections 10 1 (a)(44)(A) and (B) 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). 
Additionally, counsel asserts that the director failed to take into account all of the employees 
working for the petitioner's U.S. affiliate, arguing that the personnel employed by 
is also under the beneficiary's supervision. Counsel's 
unpersuasive and fails to properly focus on the petitioner and the beneficiary's proffered position 
with the petitioning entity. While the beneficiary may supervise employees who work for an 
affiliated entity, his supervisory duties for any entity other than the petitioner are not part of the 
position being offered in the Form 1-140 that is currently being adjudicated. Therefore, the 
beneficiary's possible job duties with the other entity are irrelevant for the purpose of determining 
the beneficiary's eligibility in the present matter. 
Lastly, 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. 9 204.5(i)(5). In the present matter, 
counsel failed to address the director's valid criticism of the beneficiary's deficient job description 
that was provided by the petitioner in support of the Form 1-140. The director properly focused on 
the generalities that fail to reveal what actual tasks the beneficiary would be performing in his 
proposed position. While the petitioner generally indicates that the beneficiary's discretionary 
authority fits the definition of managerial or executive capacity, these definitions are meant to serve 
only as guidelines to be applied to a specific list of duties, as it is the actual duties themselves that 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 11 03, 1 108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Here, the petitioner provides a lengthy 
discussion where the same idea, i.e., the beneficiary's role as supervisor over employees and 
company policies, is repeatedly restated without any context establishing how these generalities 
apply to the petitioner's air transportation services business. For example, the petitioner previously 
stated that 40% of the beneficiary's time would be devoted to supervising the following employees: 
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managers and supervisors, the general manager, the flight schedule manager, the operational 
manager, and the administrative manager. The only point that the petitioner manages to make with 
any degree of clarity is that the beneficiary will have discretion as to the tasks these managers would 
perform. However, it is entirely unclear what specific daily tasks the beneficiary would perform in 
his supervisory role. The remaining portion of the job description is equally devoid of substance as 
it again focuses on the beneficiary's supervisory role without any further explanation as to the means 
by which the supervision would be implemented. 
In summary, the record lacks adequate documentation establishing whom the petitioner employed at 
the time the Form 1-140 was filed or what specific job duties the beneficiary would perform within 
the organizational hierarchy that was in place at the time of such filing. Without these crucial 
elements, the AAO finds that the petitioner failed to establish that it would employ the beneficiary in 
a qualifying managerial or executive capacity at the time the Form I- 140 was filed. 
Furthermore, the record does not support a finding of eligibility based on at least one additional 
ground that was not previously addressed in the director's decision. Namely, 8 C.F.R. 
$ 204.5(j)(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 his 
entry to the United States as a nonirnrnigrant to work for the same employer. In the instant matter, 
the record is equally lacking in sufficient information about the beneficiary's job duties abroad as it 
is regarding the beneficiary's proposed position with the U.S. entity. Thus, the AAO cannot 
conclude with any degree of certainty that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity. 
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), afd, 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 
ground of ineligibility discussed above, this petition cannot be approved. 
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, afd, 
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. $ 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.