dismissed EB-1C Case: Business

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
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OFFICE: NEBRASKA SERVICE CENTER Date: APR 2 4 2009 
IN RE: 
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. 5 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. 
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 1-290B, 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)(I)(i). 
Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a sole proprietorship that seeks to employ the beneficiary as its proprietor/owner. 
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 denied the petition based on the determination that the petitioner failed to establish that 
it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel contends that the director failed to apply the relevant law in making his 
determination and asserts that the beneficiary would be employed in an executive capacity. 
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 hish 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 calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
Page 3 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (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 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 1 101 (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. 
In support of the Form 1-140, the petitioner submitted a letter dated October 23, 2007, stating that it 
wishes to employ the beneficiary in the capacity of the company's owner and sole proprietor, who 
would ensure the company's growth and successful expansion of operations, including an increase in 
the company's clientele. 
On January 14, 2008, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide the petitioner's organizational chart illustrating its staffing levels and 
identifying its employees by name and position title as well as a detailed description of the 
beneficiary's proposed employment, including specific job duties to be performed by the beneficiary. 
In response, the beneficiary submitted a letter dated April 2, 2008, which included the following 
statement regarding the beneficiary's proposed employment: 
[A]s a new and developing business in the U[.]S[.]A[.], my duties will focus more on 
managing the development of the business and its development into specific markets 
and product mixes. As sole owner and chief executive, I have ultimate hiring and 
firing authority over employees and agents, and have discretion over all things 
pertaining to the operation of the business including, management, sales, purchases, 
marketing and financial aspects. As owner, I determine what products to offer to 
customers, negotiate contracts on behalf of the business, and manage the course of the 
business itself. . . . 
Although a copy of the petitioner's organizational chart was also requested, the beneficiary failed to 
provide this document. 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. fj 103.2(b)(14). 
On April 22, 2008, the director issued a decision denying the petition based on the finding that the 
petitioner failed to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. The director noted that the beneficiary is the U.S. 
company's sole employee, as no evidence has been submitted to establish the employment of the 
sales agents that were claimed at Part 5, No. 2 of the Form 1-140. The director found that, given the 
lack of support staff to assist the beneficiary, the bulk of the non-qualifying tasks must be performed 
by the beneficiary. 
On appeal, counsel submits a letter dated July 7, 2008, in which he continues to assert that the 
beneficiary would be employed in a qualifying executive capacity. Counsel emphasizes the 
beneficiary's position as the sole owner of the U.S. entity. Counsel argues that the director failed to 
take into account the need for the beneficiary's executive skills in the relatively new U.S. business. 
Although counsel claims that "creative methods" are being employed to get the work done, e.g., the 
use of agents rather than employees, no documentation has been submitted to support his claim. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
 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 ofRamirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
In summary, the AAO finds that counsel's arguments in support of the appeal are not persuasive. 
First, as stated above, the claim that agents are used in the course of business to relieve the 
beneficiary from having to perform primarily non-qualifying tasks has not been supported with 
documentary evidence. See Matter of Soflci, 22 I&N Dec. 165. Second, the record shows an 
Page 5 
overall lack of a detailed description of the beneficiary's proposed job duties. The AAO notes that in 
examining the executive or managerial capacity of the beneficiary, U.S. Citizenship and Immigration 
Services (USCIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 
5 204.50)(5). In the instant case, the description of the beneficiary's job duties is too general and 
therefore fails to convey an understanding of exactly what the beneficiary will be doing on a daily 
basis and how his proposed duties fit the definition of managerial or executive capacity. For 
instance, the beneficiary claims that he will manage the development of the business. However, 
developing business is a general concept and is a goal for many managers and executives. Merely 
expressing this business goal does not inform USCIS of the underlying steps the beneficiary would 
take on a daily basis to ensure that the goal is ultimately met. Additionally, the beneficiary claimed 
that he would hire and fire personnel. However, the petitioner must establish eligibility at the time 
of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). In the present matter, at the time the petition was 
filed, the beneficiary was the sole employee of the U.S. company, as no evidence has been submitted 
to establish the company's use of contractors or agents to perform non-qualifying operational tasks. 
The AAO notes that in reviewing the relevance of the number of employees a petitioner has, federal 
courts have generally agreed that USCIS "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. 
v. US. Citizenship and Immigration Services, 469 F.3d 1313, 13 16 (9th Cir. 2006) (citing with 
approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 199 1); Fedin Bros. Co. v. Sava, 
905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003). Furthermore, it is appropriate for USCIS 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 Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). As previously stated, the 
current U.S. entity lacks a support staff to relieve the beneficiary from primarily performing non- 
qualifying tasks. It is therefore reasonable for USCIS to conclude that the primary portion of the 
beneficiary's time would be spent performing those tasks himself. However, an employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 
101 (a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988). 
In light of the petitioner's failure to provide a detailed description of the beneficiary's proposed 
duties and the overall lack of a support staff, the AAO finds that the petitioner has failed to establish 
that the beneficiary's proposed employment would primarily involve the performance of tasks within 
a qualifying managerial or executive capacity. For this initial reason this petition cannot be 
approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
Page 6 
First, 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 nonimmigrant to work for the same employer. In the 
instant matter, the director specifically addressed this issue in the RFE by instructing the petitioner to 
provide a detailed analysis of the beneficiary's daily activities during his employment abroad. 
However, as with the response regarding the beneficiary's proposed position with the U.S. company, 
the petitioner's response regarding the beneficiary's position abroad was just as general, lacking 
sufficient information about the job duties that consumed the primary portion of the beneficiary's 
time during his employment with the foreign entity. Accordingly, based on the information 
provided, the AAO cannot conclude that the beneficiary as employed abroad in a qualifying 
managerial or executive capacity. 
Second, 8 C.F.R. 5 204.50)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. In the present matter, the petitioner claims that 
both the U.S. and foreign entities are wholly owned by the beneficiary. However, the petitioner has 
failed to provide evidence to support this claim. As previously stated, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). That being said, the fact that 
the petitioner is a sole proprietorship is also problematic. In fact, as a matter of law, the beneficiary 
is ineligible for the classification sought. It is fundamental to this nonimmigrant classification that 
there be a United States entity to employ the beneficiary. In order to meet the definition of 
"qualifying organization," there must be a United States employer. See 8 C.F.R. 
214.2(1)(1)(ii)(G)(2). The petition includes evidence, including an IRS Form 1040 with Schedule C, 
that demonstrates that the beneficiary is doing business as a sole proprietorship. A sole 
proprietorship is a business in which one person operates the business in his or her personal capacity. 
Black's Law Dictionary 1398 (7th Ed. 1999). Unlike a corporation, a sole proprietorship does not 
exist as an entity apart from the individual proprietor. See Matter of United Investment Group, 19 
I&N Dec. 248, 250 (Comm. 1984). As in the present matter, if the petitioner is actually the 
individual beneficiary doing business as a sole proprietorship, with no authorized branch office of 
the foreign employer or separate legal entity in the United States, there is no U.S. entity to employ 
the beneficiary and therefore no qualifying organization. 
Lastly, by virtue of the beneficiary's claimed ownership of the U.S. petitioner, it appears more likely 
than not that the beneficiary will not be an "employee" of the United States operation. As explained 
in 8 C.F.R. 5 204.50)(5), the petitioner must establish that the beneficiary will be "employed" in an 
executive or managerial capacity. It is noted that "employer," "employee," and "employed" are not 
specifically defined for purposes of the Act even though these terms are used repeatedly in the context 
of addressing the multinational executive and managerial immigrant classification. Section 
203(b)(l)(C), 8 U.S.C. 5 1153(b)(l)(C), requires beneficiaries to have been "employed" abroad and to 
render services to the same "employer" in the United States. Further, section 101(a)(44), 8 U.S.C. 4 
1 101 (a)(44), defines both managerial and executive capacity as an assignment within an organization in 
which an "employee" performs certain enumerated qualifying duties. Finally, the specific definition of 
"managerial capacity" in section 10 1 (a)(44)(A), 8 U.S.C. 5 1 101 (a)(44)(A), refers repeatedly to the 
supervision and control of other "employees." Neither the legacy Immigration and Naturalization 
Service nor USCIS has defined the terms "employee," "employer," or "employed" by regulation for 
purposes of the multinational executive and managerial immigration classification. See, e.g., 8 
C.F.R. 5 204.5 and 8 C.F.R. § 214.2(1). Therefore, for purposes of this immigrant classification, these 
terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) ofAgency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at § 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Page 8 
a 
 Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is ultimately owned and controlled by the beneficiary, who purports to assume 
a role as the petitioner's principal. There is no evidence that anyone other than the beneficiary 
himself is in a position to exercise any control over the work to be performed by the beneficiary. As 
such, it appears the beneficiary is the employer for all practical purposes. He will control the 
organization; set the rules governing his work; and share in all profits and losses. 
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 
grounds 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. fj 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.