dismissed EB-1C Case: Business

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvacy 
PUBLlCCOPY 
DATE: AUG 2 9 2012 
INRE: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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. § I I 53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
...... 
Page 2 
DISCUSSION: The preference visa petition was initially approved by the Director, Texas Service Center. 
On further review of the record, the director determined that the petitioner was not eligible for the benefit 
sought. Accordingly, the director properly served the petitioner with a notice of his intention to revoke the 
approval of the preference visa petition, and his reasons therefore. The director ultimately revoked the 
approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner is a Florida corporation, which claimed to have seven employees at the time of filing and 
currently 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)(I)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 11S3(b)(l)(C), as a multinational executive or manager. 
Despite the initial approval of the petition, the director subsequently conducted a more thorough review of the 
petitioner's submissions and determined that the petitioner provided fraudulent evidence. In light of this 
discovery, the director concluded that the petitioner failed to establish that it has the ability to pay the 
beneficiary'S proffered wage or that it has the need to employ the beneficiary as a multinational manager or 
executive. The director also found that the petitioner's Form 1-140 was signed by an individual who was not 
an employee of the petitioner, thus implying that the Form 1-140 was not properly filed. The director therefore 
issued a notice dated November 3,2010, informing the petitioner of his intent to revoke the approval of the 
petition. 
The petitioner responded to the notice of intent (NaIR) providing a statement dated November 29,2010 from 
its representative, who asked the director to review the state and federal wage and tax documents that were 
submitted along with the supporting statement. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to provide 
sufficient credible evidence to overcome the adverse findings that were previously issued in the NaIR. The 
director therefore issued a decision dated February 15, 2011 revoking the approval of the petition. 
On appeal, the petitioner's legal representative contends that the petitioner's prior attorney, ••••••• 
was negligent in advising the petitioner and alleges tha~ may have falsified the signature of an 
individual who was not authorized to sign the Form 1-140 on the petitioner's behalf. The representative 
further asserts that the beneficiary has been paid the proffered wage from the date of filing through 2010 and 
asserts that the director placed too much emphasis on the petitioner's small staffing size. The representative 
claims that the beneficiary would be employed in both a managerial and an executive capacity and explains 
that the beneficiary used his discretionary authority to terminate two out of five of the petitioner's employees 
in order to transition through a harsh economic climate. 
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 (e): 
* * * 
Page 3 
(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 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 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. 
As a preliminary matter, the AAO observes that the director's adverse finding with regard to the petitioner's 
ability to pay was based primarily on the determination that the petitioner submitted fraudulent documents in 
support of the petition. Namely, the director focused heavily on factual discrepancies between information 
provided by the State of Florida Department of Revenue and the wage records the petitioner itself supplied as 
supporting evidence. A review of the Depart of Revenue's quarterly records of wages paid by the petitioner 
shows that the petitioner paid wages to no more than two employees at any time throughout 2007 and, with 
the exception of the 2008 fourth quarter during which the petitioner paid wages to two employees, the 
beneficiary was the petitioner's sole employee during the three remaining quarters in 2008. To the contrary, 
the wage records the petitioner supplied in support of the Form 1-140 showed that the petitioner consistently 
claimed five employees throughout all four quarters in 2007 and during the first two quarters in 2008, 
followed by a claim of three employees during the 2008 third quarter. 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). 
Although the quarterly tax returns the petitioner submitted in response to the NOIR were different from those 
the petitioner originally submitted in support of the Form 1-140 in the sense that the more recently submitted 
documents more closely resembled the information that was contained in the wage records that were issued 
by Florida's Department of Revenue, the AAO notes that the petitioner's earlier submission of unreliable and 
non-credible documentation gives the AAO just cause to reevaluate the reliability and sufficiency of the 
remaining evidence offered in support of this visa petition. See id. at 591. Despite recent claims by the 
petitioner's current representative alleging that_ the petitioner's prior counsel, was responsible for 
any wrong-doing, including the submission of inaccurate wage documents, the AAO questions the 
petitioner's role in perpetuating the fraud in light of information provided by the petitioner in its originally 
submitted organizational chart, which named a total of five employees as of November 2008, when according 
to Florida's Department of Revenue records, the petitioner paid wages to only three employees at that time. 
-Page 4 
Furthermore, any appeal or motion based upon a claim of ineffective assistance of counsel requires: (I) that 
the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the 
agreement that was entered into with counsel with respect to the actions to be taken and what representations 
counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is 
being impugned be informed of the allegations leveled against him or her and be given an opportunity to 
respond, and (3) that the appeal or motion reflect whether a complaint has been filed with appropriate 
disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, 
why not. Matter oJLozada, 19 I&N Dec. 637 (BIA 1988), ajJ'd, 857 F.2d 10 (1st Cir. 1988). In the present 
matter, while the beneficiary submitted a statement dated March I, 20 II, which was received by the Florida 
Bar, lodging a complaint against the petitioner's prior counsel, there is no evidence that the petitioner has 
satisfied the first two prongs of the criteria set forth above. Therefore, the AAO finds that the petitioner will 
not overcome the deficiencies cited herein based on its allegations of ineffective assistance of counsel. 
Turning now to the issue of the petitioner's ability to pay the beneficiary's proffered wage, 8 C.F.R. 
§ 204.5(g)(2) states the following, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer has 
the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time 
the priority date is established and continuing until the beneficiary obtains lawful permanent 
residence. Evidence of this ability shall be either in the form of copies of annual reports, federal 
tax returns, or audited fmancial statements. 
In reviewing the reliable and objective documentation supplied by Florida's Department of Revenue, the 
record indicates that the petitioner had the ability to pay the beneficiary's proffered wage through the second 
quarter of 2009. However, as indicated above, the petitioner must continue to demonstrate its ability to pay 
until the beneficiary obtains lawful permanent residence. Although the petitioner has submitted a copy of its 
20\ 0 tax return indicating that it paid $36,000 in salaries in wages, thus suggesting that the beneficiary continued 
to be paid the approximate amount of the proffered wage throughout 2010, the fact that the tax return is based on 
evidence that the petitioner itself supplied gives the AAO cause to doubt the adequacy and reliability of the 
document itself See Matter oJHo, 19 I&N Dec. at 591. The AAO therefore finds that the petitioner has failed 
to demonstrate that it meets all the criteria set forth at 8 C.F.R. § 204.5(g)(2). 
Next, with regard to the proper execution of the Form 1-140, the regulation at 8 C.F.R. § 103.2(a)(I) states, in 
part, the following: 
Every application, petition, appeal, motion, request, or other document submitted on the form 
prescribed by this chapter shall be executed and filed in accordance with the instructions on 
the form, such instructions (including where an application or petition should be filed) being 
hereby incorporated into the particular section of the regulations in this chapter requiring its 
submission. 
The AAO notes that the Form 1-140 filing instructions expressly state the following: 
If the petitioner is a corporation or other legal entity, only an individual who is an officer of 
an employee ofthe entity who has knowledge of the facts alleged in the petition, and who has 
authority to sign documents on behalf of the entity, may sign the petition.
l 
As properly noted by the director, the individual who signed the Form 1-140 in the present matter does not fit 
the criteria expressly stated in the Form 1-140 filing instructions. Although the petitioner's representative 
claims that the petitioner's prior counsel was responsible for this deficiency, the petitioner failed to 
adequately substantiate its claim of ineffective assistance of counsel. Accordingly, the AAO rejects the 
representative's claim and finds that the Form 1-140 in the present matter was improperly executed as it does 
not meet basic regulatory filing requirements. 8 C.F.R. § I 03.2(a)(1). 
Lastly, the petitioner's representative contends that the director placed undue emphasis on the petitioner's 
small staffing size, asserting that personnel size does not adversely impact the petitioner's ability to employ 
the beneficiary in a qualifying managerial and executive capacity. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § IIOI(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization lU 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 10I(a)(44)(B) ofthe Act, 8 U.S.C. § I 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization lU which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
1 Form 1-140 Instructions (Rev. 4/08/11) page 6. 
Page 6 
(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. 
With regard to the director's focus on the petitioner's limited staffing size, the AAO notes that in reviewing 
the relevance of the number of employees a petitioner has, federal courts have generally agreed that USC IS 
"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 1313,1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991); 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). While the petitioner's description of the job duties is a key factor 
which must be considered in determining the beneficiary's managerial or executive capacity, the AAO finds 
that it is appropriate to consider the petitioner's organizational hierarchy, which shows the complexity of a 
given entity and the beneficiary'S placement in relation to other employees, as well as the petitioner's overall 
staffmg, which allows the AAO to gauge the extent to which the petitioner is able to relieve the beneficiary 
from having to focus the primary portion of his time on the performance of non-qualifYing operational tasks. 
The record indicates that the petitioner's staff was comprised of three employees (including the beneficiary) 
at the time of filing the petition. The petitioner has not provided any objective and reliable evidence to 
establish exactly which positions, aside from the beneficiary's, were filled at the time of filing the petition or 
how the petitioner was capable of relieving the beneficiary from having to allocate the primary portion of his 
time to the performance of non-qualifYing tasks with its limited staffing and lack of organizational 
complexity. 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 CraflofCalifornia, 14 I&NDec. 190 (Reg. Comm. 1972)). 
Section 205 of the Act, 8 U.S.c. § 1155, states: "The Attorney General may, at any time, for what he deems to 
be good and sufficient cause, revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. at 590 (citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
Page 7 
In proceedings to revoke the approval of a visa petition, the burden of proof to establish eligibility for the 
benefit sought is on the petitioner. Id. at 589; Matter of Cheung, 12 I&N Dec. 715 (BIA 1968); see also 
Matter of Brantigan, 11 I&N Dec. 493 (BlA 1966). The Board's decision in Matter of Ho further clarified 
that, by itself, the director's realization that a petition was incorrectly approved is good and sufficient cause 
for the issuance of a notice of intent to revoke an immigrant petition. Matter ~f Ho, supra at 590. 
The petitioner failed to submit sufficient reliable evidence to repair its credibility and overcome the adverse 
findings by the director in the revocation notice. Therefore, the AAO finds that the petitioner failed to 
establish eligibility and the director's decision to revoke approval of the petitioner's visa petition will be 
affirmed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 V.S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.