dismissed EB-1C Case: Business

DATE:OEC 0 4 2012 
INRE: Petitioner: 
Beneficiary: 
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: NEBRASKA SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(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 law was inappropriately applied by us in reaching our 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 1-290B. Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request 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 that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
,,,"'ww.uscis.gov 
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 New York 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)(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(1 )(C), as a multinational 
executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated June 12,2008, which discussed the 
business purpose of the beneficiary'S foreign and U.S. employers as well as to the beneficiary's role within 
the petitioning entity since commencement of his employment in the United States. The petitioner also 
submitted a statement dated June 2, 2008 from a representative of the beneficiary's foreign employer, who 
provided a general description of the beneficiary'S employment abroad. Additionally, the petitioner provided 
supporting evidence in the form of tax, business, and corporate documents pertaining to both entities. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated March 31, 2010 informing the petitioner of 
various evidentiary deficiencies. Two of the issues addressed in the RFE concerned the beneficiary's 
employment with the foreign entity and U.S. petitioner. Specifically, the director instructed the petitioner to 
provide more detailed job descriptions pertaining to the beneficiary'S foreign and proposed employment, 
listing the actual daily tasks the beneficiary performed during the course of his employment abroad and those 
he would perform during the course of his proposed employment with the petitioner. The director asked the 
petitioner to assign time allocations to each of the listed duties and to provide each entity's organizational 
chart, depicting their respective staffing structures and the beneficiary's placement therein. Additionally, the 
director requested documentation, including the petitioner's four wage and withholding returns for 2008. 
Lastly, the director requested various documents in an effort to establish that the petitioner and the 
beneficiary have an employer-employee relationship. 
In response to the RFE, the petitioner provided a statement dated April 10, 2010, which included both 
entities' organizational charts and additional information regarding the beneficiary's employment with each 
entity. It is noted that the petitioner failed to formulate its response regarding the beneficiary's job duties in 
accordance with the RFE instructions, which asked the petitioner to list the beneficiary's foreign and 
proposed job duties and to assign specific time allocations to each daily task. 
After reviewing the petitioner's response, the director found that the job descriptions offered by the petitioner 
in its response statement were deficient in that the petitioner failed to list the beneficiary'S specific job duties 
with either entity or to assign time constraints to establish how the beneficiary allocated and would allocate 
his time in each position. The director also determined that the beneficiary owns the foreign and U.S. entities 
and that as a result of that ownership scheme the beneficiary does not have an employer-employee 
relationship with the petitioning entity. Based on these three adverse findings, the director concluded that the 
petitioner is ineligible for the immigration benefit sought herein and therefore issued a decision dated July 
26,2010 denying the petition. 
On appeal, counsel disputes the director's decision and provides evidence that establishes that the beneficiary 
is not a majority owner of either the foreign or U.S. entity. In light of evidence that shows that the 
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beneficiary is not an owner of the petitioning entity, the AAO withdraws the third finding that served as a 
basis for denial. 
Notwithstanding the AAO's withdrawal of one of the director's grounds for denial, the AAO nevertheless 
finds that counsel's assertions are unpersuasive and are therefore insufficient to overcome the director's two 
remaining adverse findings that pertain to the beneficiary's employment capacity in his foreign and proposed 
positions. The discussion below will provide an analysis of the relevant documentation and will explain the 
underlying reasoning for the AAO's decision. 
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 I 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 finn, 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 Fonn 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 two primary issues in this proceeding call for an analysis of the beneficiary's employment capacity in his 
past employment with the foreign entity and his proposed employment with the petitioner. Specifically, the 
AAO will examine the record to determine whether the petitioner submitted sufficient evidence to establish 
that the beneficiary was employed abroad and would be employed in the United States in a qualifYing 
managerial or executive capacity. 
Section 10 I (a)(44)(A) of the Act, 8 U.S.c. § I 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III which the 
employee primarily--
Page 4 
(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 achvlty 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 US.c. § 1101(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 ofthe organization. 
In examInIng the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's proposed job duties. See 8 C.F.R. § 204.50)(5). Published case 
law supports the pivotal role of a clearly defined job description, deeming the actual duties themselves as the 
factors that determine the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Additionally, the AAO finds that it is appropriate 
to consider other relevant factors, such as an entity's organizational hierarchy and overall staffing, which 
allow the AAO to gauge the extent to which that entity was or would be able to relieve the beneficiary from 
having to focus the primary portion of his time on the performance of non-qualifying operational tasks. 
After having reviewed the beneficiary's job descriptions, the AAO finds that the petitioner failed to 
demonstrate the qualifying nature of the beneficiary's foreign and proposed employment. 
-Page 5 
Turning to the information found in the petitioner's RFE response statement, the AAO finds that the 
information pertaining to the beneficiary's foreign employment provided no clarification of his duties, as the 
petitioner failed to properly clarifY when the beneficiary's foreign position was being discussed and when the 
discussion turned to the beneficiary's employment with the petitioning entity. The petitioner also failed to 
specifically list the beneficiary's individual job duties or to assign time constraints as previously asked. 
Instead, the petitioner provided a checklist of criteria that were used to select the beneficiary for his position 
with the U.S. entity without explaining how these criteria relate to the beneficiary's position abroad. Based 
on the assumption that the beneficiary met the criteria for the U.S. position, the petitioner appears to be 
indicating that in his employment with the petitioning entity the beneficiary developed a sales strategy to 
grow the business, exposed wholesalers and retailers to the petitioner's brand, developed relationships with 
new customers to increase sales, ensured premium product location and offered fair pricing to wholesalers 
and retailers, represented the petitioner's products in the market, executed marketing measures, formulated 
new product requirements, forecasted sales, and built and trained a sales team. However, it is not clear how 
this information is relevant in the present matter, as it does not determine that the beneficiary was employed 
abroad in a qualifYing managerial or executive capacity, nor does it establish that he would be employed in a 
qualifYing managerial or executive capacity in his proposed position with the U.S. petitioner. 
Regarding the beneficiary's foreign employment, the petitioner stated that the beneficiary came to the office 
in a timely manner and dealt with customers in the production of new design samples. As the petitioner did 
not assign time constraints to any of the beneficiary's tasks, it is not clear how much of his time abroad was 
spent performing this non-qualifying operational task, which is outside the purview of what is deemed to be a 
qualifying managerial or executive task. Although the petitioner went on to discuss the various approaches 
the beneficiary used to improve customer service and daily sales and production, the petitioner did not 
explain the frequency with which the beneficiary relied on any of the five listed approaches or how using one 
approach versus another effects the beneficiary's day-to-day job duties. 
With regard to the beneficiary's proposed employment, the petitioner similarly offered a deficient job 
description. Although the petitioner attempted to discuss the beneficiary'S role in the context of a business 
plan, it is unclear which specific components are the beneficiary's direct responsibilities and what specific 
job duties he would perform in meeting those responsibilities. While the formulation of goals and business 
objectives appears to be the beneficiary's continuing responsibility, his specific daily tasks remain unclear. 
Rather, the petitioner discusses which factors the beneficiary considers during the course of his work with the 
petitioning entity without specifying the beneficiary's actual role in meeting customer needs and reaching the 
target market. While it appears that "outbound marketing" and addressing customer complaints are both 
within the beneliciary's realm of responsibilities, it is noted that actually carrying out marketing tasks or 
providing customer service would be deemed as non-qualifying tasks rather than tasks performed within a 
managerial or executive capacity. 
Although counsel attempts to address the deficient job descriptions provided by the petitioner in its response 
to the RFE by supplementing the appeal with her own job descriptions and percentage breakdowns in 
accordance with the director's express RFE instructions, the AAO notes that the unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BlA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter oj" Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Without documentary evidence to support the claim, the assertions of counsel will not satisfY the petitioner's 
burden of proof. Moreover, even if mere statements from counsel could be deemed as evidence, the record 
Page 6 
shows that by virtue of having been issued an RFE with express instructions as to what information was 
being sought and the format of the response, the petitioner was put on notice of required evidence and given 
a reasonable opportunity to provide it for the record before the visa petition was adjudicated. The 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)(l4). The AAO will not accept evidence that is offered for the first time on appeal. See 
Matter of Soriano, 19 T&N Dec. 764 (BIA 1988); see also Matter o(Obaigbena, 19 I&N Dec. 533. Tfthe 
petitioner had wanted the submitted evidence to be considered, it should have provided counsels statement 
along with corroborating evidence in response to the director's request for evidence. Id. Under the 
circumstances, the AAO need not and does not consider the sufficiency of the supplemental job description 
that counsel has provided on appeal. 
As previously noted, a detailed description of actual daily job duties is crucial, as the duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The job 
descriptions provided with regard to the beneficiary's foreign and proposed employment were severely 
deficient in their lack of relevant and intelligible information. The AAO is therefore unable to conclude that 
the beneficiary was employed abroad and would be employed in the United States in a qualifying managerial 
or executive capacity. Based on these two grounds of ineligibility, the instant petition cannot be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.s.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.