dismissed EB-1C Case: Beauty Services

identifying data deleted to 
prevent ckarly unw-tad 
bv8sirn of wnaJ privw 
U.S. Department of ZIomelsnd Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
SRC 04 235 52228 
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. 8 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER. 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. AH documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
F 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
9 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Texas that is 
operating a beauty shop. The petitioner seeks to employ the beneficiary as its president. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
Counsel for the petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded it to the AAO for review. On appeal, counsel addresses portions of the record, which counsel 
acknowledges may have caused confusion in the director's review of the record. Counsel contends that 
despite the "confusing evidence," the beneficiary's proposed employment satisfies the statutory definitions of 
"managerial capacity" and "executive capa*." 
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 Stats 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 the 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 United States employer may file a petition on Foq 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 issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 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 essential hction within the organization, or a departrrient or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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 hction 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. $ 1 101(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 
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. 
The petitioner filed the instant immigrant visa petition on September 2, 2004, noting the beneficiary's 
proposed employment as the president of its six-person company. In an appended letter, dated August 16, 
2004, the petitioner provided the following job description: 
In this capacity of president and Executive Director, [the beneficiary] is responsible for the 
overall direction and operation of the company. She is involved in all facets of the business, 
including new hires of the management staff strategy. She establishes our financial relations 
and is responsible for all tax and other required reports. She reports directly to our parent 
company. She reviews business opportunities and is in charge of the company's expansion 
plans. 
The petitioner submitted an organizational chart' identifying the beneficiary as president, as well as a 
subordinate staff consisting of the following positicyls: vice-president, manager, hair stylist, massage 
therapist, faciafist, beautician, and manicurelpedicure specialist. 
The director issued a request for evidence on May 16, 2005 asking that the petitioner provide evidence of its 
staffing levels, including the position titles, job duties, and educational levels of all employees, as well as 
Internal Revenue Service (IRS) Form W-2, Wage and Tax Statement, for the years 1999 and 2000. The AAO 
notes that as the visa petition was filed in September 2004, it is unclear why the director requested IRS forms 
from four years prior to the filing. 
Counsel for the petitioner responded in a letter dated August 10, 2005. In an attached letter, dated August 4, 
2005, the petitioner noted the following job description for the beneficiary as president of the company: 
Responsibilities include defining the objectives of the company and directing the overall 
operations of the U.S. [cfompany; Recruiting and terminating managerial and subordinate 
employees where the need arises; Liasing [sic] with [gfeneral [mlanager to oversea [sic] the 
daily activities of the company; Responsible for initiating and implementing expansion plans 
for the company as well as establishing and maintaining budgets, meeting profitability levels, 
and ensuring the overall growth of the company. 
The petitioner addressed the beneficiary's subordinate- staff, noting the following positions, which vary 
slightly from those outlined above: general manager, beauty supply and gift shop assistant manager, beauty 
director/specialist, senior stylist, beauty therapist, and skin care specialist. The petitioner provided a brief 
description of the job duties performed by each employee. The petitioner also submitted copies of IRS Form 
W-2 issued to its employees in 2004. 
1 
 While the petitioner's organizational chart identifies three businesses that the beneficiary would direct - 
"Hena Beauty Spot," a gift and jewelry shop, and a construction and investments company - counsel states on 
appeal that the only business operated by the petitioner is the beauty salon. The record reveals, however, a 
lease agreement executed by the petitioner on April 25, 2003 to operate a.gi& and jewelry shop from three 
locations in the Houston Flea Market. The record also contains invoices reflecting sales made by the 
petitioner. The record undermines counsel's claim that the gift and jewelry shop is a "proposed venture" of 
the petitioner's. 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). If the petitioner was operating the business at the time of filing, it has not 
documented who would perform the related administrative functions of the business, particularly its sales. 
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 (Comrn. 1998) (citing Matter 
of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The director issued a decision dated August 26, 2005, in which she concluded that the petitioner had not 
established that the beneficiary would be employed by the United States entity in a primarily managerial or 
executive capacity. The director noted discrepancies in the staffing levels presented by the petitioner on its 
organizational chart and the employees identified on the Forms W-2 issued in 2004. The director noted that 
the inconsistencies in the record "do not present a clear picture-of the U.S. company's overall operations," 
particularly with respect to those employees who would perform the administrative tasks of the bu~iness.~ 
The director also stated that the petitioner "imposed that the executive position of president require a master's 
degree," and noted that the petitioner had not submitted evidence that the beneficiary completed a master's 
program. The director concluded that the beneficiary did not meet the petitioner's requirements for the 
proposed position. Consequently, the director denied the immigrant visa petition. 
On appeal, counsel for the petitioner notes that at the time of filing, the petitioner employed six workers, and 
attaches an organizational reflecting its staffing levels in September 2004. Counsel states: 
The beneficiary meets the definition of managerlekecutive by listing her duties which state 
she is responsible [for] the overall pection of the' [clompany. In addition[,] she directly 
oversees the [gleneral manager who in turn oversees the daily activities of the company. The 
beneficiary is responsible for functioning at a high level of responsibilities by initiating 
expansion plans, establishing budgets and ensuring the overall growth of the company. 
The beneficiary does not perform the tasks necessary to produce a product or to provide 
services. The company employs 2 shop manager, assistant manager, stylists and a beauty 
therapist to perform [the] daily activities-of the company. Therefore, the beneficiary does 
meet the definition of manager/executive. 
Counsel also addresses the director's reference to whether the beneficiary possesses a master's degree. 
Counsel states that the petitioner "has not imposed such requirements for the position of president," and states 
that the petitioner provided the information regarding the beneficiary's master's degree "upon request of 
[Citizenship and Immigration Services (CIS)] to provide a list of employees and their educational levels." 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive'duties under section 10 1 (a)(44)(B) of 
the Act. Throughout the record, counsel identifies the beneficiary as a "manager/executive." A petitioner 
may not claim to employ a beneficiary as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. If the petitioner chooses to represent. the beneficiary as both an executive and a 
manager, it must establish that the beneficiary meets each of the four criteria set forth in the statutory 
definition for executive and the statutory definition for manager. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look to the 
petitioner's description of the job duties. See 8 C.FR § 204.56)(5). A petitioner must clearly describe the 
The director's findings are partially based on the representation by the petitioner that it would be operating 
three separate businesses. 
duties to be performed by the beneficiary and indicate whether such duties are either in an executive or 
managerial capacity. The limited record does not substantiate the petitioner's claim that the beneficiary would 
be employed as either a manager or an executive. In both its August 16,2004 and August 4,2005 letters, the 
petitioner submitted vague job responsibilities held by the beneficiary, such as directing the overall operation 
and "daily activities" of the company, hiring and terminating employees, establishing "financial relations," 
reviewing business opportunities, determining expansion opportunities, and ensuring the company's growth. 
Counsel submits an equally vague job description on appeal, noting that'the beneficiary would perform "high 
level" responsibilities of the company, oversee its activities, and monitor its expansion. The petitioner has 
not enumerated the specific managerial or executive job duties to be performed by the beneficiary on a daily 
basis as the company's president. 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 daily job 
duties. The petitioner has failed to answer a critical question in this case: What does the beneficiary primarily 
do on a daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Counsel clarifies on appeal that the beneficiary's position of president does not require that the beneficiary 
hold a master's degree. Rather, counsel explains the evidence was presented following the director's request 
for educational levels. The AAO notes, however, that if the petitioner is relying on the beneficiary's 
purported completion of a master's program as evidence of her employment as a manager or executive, the 
record does not contain sufficient evidence, such as the beneficiary's transcripts and diploma. Without 
documentary evidence to support the claim, the assertions of counsel will not satis@ 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 ofRarnirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
Moreover, as noted by the director, the inconsistencies in the petitioner's staffing levels preclude a finding that 
the beneficiary would be employed in a primarily managerial or executive capacity. As required by section 
101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, CIS must take into account the reasonableheeds of the organization, in 
light of the overall purpose and stage of development of the organization. However, it is appropriate for CIS 
to consider the size 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 
manner. See, e.g. Systronics COT. v. INS, 153 F. Supp. 2d 7, 1 5 @.D.C. 200 1). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
In the instant matter, the petitioner initially represented its organizational hierarchy as being comprised of the 
beneficiary as president, as well as a vice-president, manager, 'hair stylist, massage therapist, facialist, 
beautician, and manicurelpedicure specialist. However, in its ~igust 4, 2005 response and on appeal, the 
petitioner presents conflicting evidence, such as different position titles from those originally identified and a 
revised organizational chart. In particular, the petitioner eliminated the position of vice-president and 
changed the titles of the subordinate positions to general manager, assistant manager, beauty 
director/specialist, senior stylist, beauty therapist, and skin care specialist. The AAO notes that the employee 
initially represented as the company's vice-president is not identified on subsequent organizational charts as 
an employee of the petitioner. Additionally, the position of skin care specialist was eliminated from the 
organizational chart submitted on appeal. The petitioner's response to the director's request for evidence fails 
to clarify or enhance the description of the beneficiary's role in the United States organization. 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 AAO notes that a petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to CIS requirements. See Matter of lzummi, 22 I&N Dec. 169, 176 (Assoc. Comrn. 
1998). Furthermore, it is unclear why the petitioner's beauty director-specialist would receive a salary of 
approximately $6,000 more than her supervisor, the beauty supply and gift shop assistant manager. 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). As a result of these inconsistencies, the AAO cannot determine the petitioner's true staffing 
levels, or conclude whether the petitioner's reasonable needs are met through the employment of the 
beneficiary and her purported six-person staff. 
7 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
 \ 
3 
Beyond the decision of the director, the petitioner has not established that the beneficiary was employed by 
the foreign entity in a primarily managerial or executive capacity. In its August 16,2004 letter, the petitioner 
identified the beneficiary as the foreign company's managing director, during which she "was in charge of the 
operation of the company, including [the] hiring[,] training[,] supervising[,] and discharging of all 
employees," "handled contract negotiations," and oversaw the company's finances and annual budget. The 
petitioner also noted in its August 4, 2005 response to the director's request for evidence that the beneficiary 
oversaw the work of four of the company's department heads, set goals and policies, hired and fired 
subordinates, "review[ed] production statistics 1: ] pricing guidelines . . . financials, sales, gross receipts, and 
employee assessment," and reviewed store efficiency. The brief statements offered as evidence of the 
beneficiary's employment in a primarily managerial or executive capacity are not sufficient to classifjr the 
beneficiary as a manager or executive of the foreign entity. Despite the director's request for a "definitive 
statement" of the beneficiary's position in the foreign company, including the percentage of time the 
beneficiary devoted to each task, the petitioner neglected to present an outline of specific day-to-day 
managerial or executive tasks performed by the beneficiary. Again, the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
afd, 905 F.2d 41 (2d. Cir. 1990). The AAO notes that a petitioner's 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). 
Absent a more detailed job description of the beneficiary's employment in the foreign entity, the AAO cannot 
conclude that the beneficiary was employed in a primarily managerial or executive capacity. For this reason, 
the petition will be denied. 
An additional issue not addressed by the director is whether the petitioner was doing business in the United 
States for at least one year prior to instant filing as required in the regulation at section 204.50)(3)(i)(D). As 
the instant immigrant visa petition was filed on September 2, 2004, the relevant period in question is from 
September 2, 2003 through the date of filing. The majority of the invoices and receipts submitted by the 
petitioner as evidence of its business operations in the United States are dated several months prior to 
September 2003. The petitioner did not submit any invoices or sales receipts dated between October 2003 
and September 2004. 
 Additionally, the documentation provided pertains predominantly to items and 
equipment purchased by the petitioner in anticipation of commencing operations, and does not identify 
services actually rendered to customers by the petitioner as a beauty salon. The AAO recognizes that the 
petitioner's 2003 and 2004 tax returns reflect taxable income realized by the petitioner during these years, 
however, the petitioner has not presented documentary evidence to corroborate that it was doing business in 
the United States during the year prior to the instant filing. 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). Additionally, if CIS fails to 
believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. $ 
1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The 
petitioner has failed to document that it had been doing business in the United States for at least one year prior 
to the filing of the immigrant visa petition. For this additional reason, the petition will be denied. 
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), afyd. 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 AA0 reviews 
appeals on a de novo basis). 
The AAO recognizes the beneficiary's previously approved L-1A nonimmigrant petitions. It must be noted 
that many 1-140 immigrant petitions are denied after CIS approves prior nonimmigrant 1-129 L-1 petitions. 
See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. USDept. of Justice, 
48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Examining the consequences of an approved petition, there is a significant difference between a 
nonimmigrant L-1A 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: $8 204 and 214 of the Act, 8 
U.S.C. $5 1154 and 1184; see also $ 316 of the Act, 8 U.S.C. 4 1427. Because CIS spends less time 
reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant L-1A 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. 8 
214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-1A petition's validity). 
Furthermore, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of prmc each petition must stand on its own individual merits. The approval of a nonimmigrant 
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same 
beneficiary. Based on the lack of evidence of eligibility in the current record, the director was justified in 
departing from the approval of the prior nonirnmigrant petitions and denying the immigrant petition. 
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. 3 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.