dismissed EB-1C Case: Business Management

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration S ervice ~ 
Office of Administrative Appeals 
20 Massachus etts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE : AUG 0 1 2013 OFFICE: TEXAS SERVICE CENTER FILE: 
INRE : 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. § ll53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclo sed please find the decision of the Admini strative Appeal s Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish 
agency polic y t hrough non-preced ent decision s. If you believe the AAO incorrectl y applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to recon sider 
or a motion to reopen, respectively . Any motion must be filed on a Notice of Appe al or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C .P.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
~;;~ 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the preference visa pet1t10n and 
dismissed the petitioner's subsequent motion to reopen and reconsider. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Texas corporation seeking to employ the beneficiary as its operations director. 
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 . § 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: 1) the petitioner 
failed to establish that it maintains a qualifying relationship with the beneficiary's foreign employer; 
2) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity; and 3) the petitioner failed to establish that it would employ the 
beneficiary in the United States in a managerial or executive capacity. The director dismissed the 
petitioner's subsequent motion to reopen and reconsider without disturbing the original decision 
On appeal, counsel for the petitioner submits a legal brief asserting that the director's original 
decision dated September 19, 2012 and the subsequent decision on motion were in enor. 
I. The Law 
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. 
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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. 
II. Qualifying Relationship 
The first issue to be addressed is whether the petitioner established a qualifying relationship with 
the beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show 
that the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally § 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.P.R. § 204.50)(2) 
(providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.P.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
In the instant matter, the petitioner claims that both the U.S. and foreign entities are "entirely 
controlled by the same persons and are therefore wholly affiliated companies." Specifically, the 
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petitioner's October 27, 2011 letter in support of the petition, and additional evidence of record, 
establishes the shares of the foreign employer are held as follows: 
Table 1: Ownership of Foreign Company ( 
I 40% 
I 40% 
I 8% 
I 8% 
I 4% 
With respect to the U.S. company, the petitioner stated that in 1984 the family acquired all of 
the petitioner's outstanding stock from its previous owners. The petitioner asserted that the 
ownership of its stock at the time the petition was filed was as follows: 
Table 2: Ownership of Petitioning Company 
The petitioner stated that the two companies "are entirely controlled by the same persons and are 
therefore wholly affiliated companies." 
As evidence of the petitioner 's ownership, the petitioner submitted copies of the following 
documents: 
• Articles of Incorporation filed October 24, 1977, indicating that the petitioner is 
authorized to issue 800,000 shares of common stock with a par value of $1.00. 
• Stock certificate no. 1 for 2,500 shares issued to on November 2, 
1977. The reverse side of the certificate indicates that sold and transferred 
all 2,500 shares to on February 24, 1984. 
• Stock certificate no. 2 for 2,500 shares issued to on November 2, 1977. The 
reverse side of the certificate indicates that sold and transferred all 2,500 
shares to. on February 24, 1984. 
• Buy Sell Agreement executed on February 24, 1984 in which 
agreed to sell all outstanding shares of the petitioning company to for a 
purchase price of $179,577.30. 
• Corporate Stock Redemption Agreement dated October 15, 1999 which identifies the 
stockholders as of that date as: (1,900 shares, Certificate No. 3); 
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Alva (800 shares, Certificate No. 5) and (800 shares, Certificate 
No.6). 
• Stock Certificates Nos. 3, 4, 5 and 6 indicating the issuance of shares to the 
individuals named in the Corporate Stock Redemption Agreement in the amounts 
stated therein. All four certificates are dated February 2, 2000. 
• IRS Form 1120, U.S. Corporation Income Tax Return, for 2009 which identifies 
~ - ... - as a direct foreign shareholder of the 
petitioning company, holding a 30% ownership interest. 
The AAO notes that the petitioner's initial evidence contained several unexplained inconsistencies 
and omissions. First, the petitioner did not provide evidence that was issued 
5,000 shares of the company's stock at the time of purchasing all outstanding shares from the 
previous owners in February 1984. The petitioner did not provide evidence of the transfer on the 
corporate books or stock ledger and did not provide a stock certificate reflecting the transfer of 5000 
shares of stock to 
Instead, the petitioner submitted a copy of a stock certificate no. 3 issued to for 1,800 
shares 16 years after his purported purchase of 5,000 shares from the original owners. Fmther, the 
stock certificates numbered 3 through 6 bear no resemblance in style and format to the first two 
stock certificates issued in 1977. 
There is also a discrepancy between the information provided on these later stock certificates and 
the information provided in the Corporate Stock Redemption Agreement dated October 15, 1999. 
The redemption agreement indicates that stock certificates had already been issued to 
However, each of the stock 
certificates numbered 3 through 6 indicates on its face that it was issued on February 2, 2000, 
several months after the agreement was signed. 
Further, the petitioner failed to submit evidence to corroborate the actual transfer of shares to each 
individual shareholder. There is no evidence to establish the consideration paid or traded in 
exchange for the transfers nor is it clear exactly when the transfers were made . The agreement 
merely indicates that the four stockholders already own the shares attributed to them in the 
agreement, but, as noted, this information is contradicted by the dates on the stock certificates. 
Finally, notwithstanding the ownership structure claimed by the petitioner in the petition and 
represented on stock certificates number three through six, the petitioner's Form 1120 U.S. 
Corporation Income Tax Return for 2009 and Form 5472 Information Return of a 25% Foreign­
Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business reflect a 
single 30% foreign shareholder, specifically who is not named as a 
shareholder elsewhere in the record. 
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 
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the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). 
On February 16, 2012 the director issued a request for evidence (RFE). The director acknowledged 
the petitioner's claim that it has a qualifying 
affiliate relationship with the foreign entity, but noted 
that the names of stockholders and the percentages owned are not the same. The director requested 
additional evidence to establish a qualifying relationship, including all stock certificates, stock 
ledger, proof of stock purchase (such as copies of the original wire transfers from the parent 
company, cancelled checks, deposit receipts, and bank statements) , meeting minutes, Articles of 
Incorporation, or other documentation to establish ownership and control. 
In response to the RFE, the petitioner provided two new letters and the petitioner's 2010 IRS Form 
1120, U.S. Corporation Income Tax Return. In one letter dated May 7, 2012, the petitioner asserted 
that the petitioner and foreign entity were controlled at all times by the family and stated "the 
same three individuals own and have owned for all relevant years 88% of (the 
Mexican hotel)" and "84% of Petitioner." This statement is consistent with the ownership structure 
described at the time of filing. 
The petitioner also submitted a letter dated May 4, 2012, designated as an "Officer's Statement" 
from the petitioner's corporate secretary, The Officer's Statement explains the 
current ownership of petitioner's stock, and it is as it appears in Table 2 and the initial petition . He 
notes that the held 100% of the petitioner's stock from 1984 until 1999, 
when he distributed shares among three of his children, and states that the same ownership structure 
has been in place since that time. 
However, the information provided in the petitioner's 2010 IRS Form 1120 introduced additional 
inconsistencies in the record regarding the current ownership of the company. Specifically, the 
Form 1120 at Part II, Schedule G reflects stock ownership by the following individuals: 
Table 3: Petitioner's shareholders according to IRS Form 1120 for 2010 
I 30% 
I 30% 
I 5% 
I 5% 
I_ 30% 
The director denied the petition on September 12, 2012, concluding that the petitioner had not 
established that it has a qualifying relationship with the foreign entity. Based on inconsistencies 
between the petitioner's statements and the stockholder information reported on the petitioner's 
corporate tax return, the director determined that the petitioner's actual stock ownership could not be 
determined. 
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Further, the director found that even if the petitioner could prove that the same three individuals 
collectively owned a majority of both the petitioning company's stock and the foreign company's 
stock, the two companies would still not have established an affiliation because the two entities are 
not "owned and controlled by the same group of individuals, each individual owning and 
controlling approximately the same share or portion of the entity." See 8 C.F.R . § 
204.5(j)(2)(defining "affiliate") . 
In a motion to reopen and to reconsider the matter, the petitioner reasserted the share holdings of the 
foreign company as previously stated in Table 1. Contrary to the original petition, however, the 
petitioner asserted that the information reported in the petitioner's 2010 Form 1120 accurately 
describes the company's current ownership, which the petitioner further described as follows: 
Table 4: Petitioner's ownership as November 2009 
30% 1 ,500 shares 
I 30% 1,500 shares 
I 30% 1 ,500 shares 
I 5% 250 shares 
I 5% 250 shares 
In support of the assertion, the petitioner submitted corporate minutes dated November 28, 2009 
which it claims establishe s the current stock holdings as reflected in the petitioner's 2010 Form 
1120. Based on this evidence the petitioner asserted that the two companies are "owned and 
controlled by the same group of three individuals, each individual owning and controlling 
approximately the same share or portion of the entity:" Specifically, the petitioner asserted that the 
same three members of the family own and control 88% of the foreign company and 90% of 
the petitioner, and as immediate family members they have voted in unison and thus, should be 
recognized as a group. The petitioner further asserted that in other areas of law, immediate family 
members are automatically considered part of the same voting block under attribution rules relating 
to control issues. 
The director dismissed the motion and emphasized that USCIS cannot accept a combination of 
individual shareholders as a single entity so that the group may claim majority ownership unless the 
group members have been shown to be legally bound together as a unit within the company by 
voting agreements or proxies . The director further found that the petitioner failed to explain why it 
submitted for the first time on motion a different explanation regarding the ownership of the 
petitioning company and found that this discrepancy had not been adequately resolved. 
On appeal, the petitioner asserts that the director erred in determining that the high percentage of 
common ownership of the petitioning company and the foreign company by the same members of a 
single family did not establish a qualifying affiliate relationship. Further, the petitioner contends 
that ownership of the petitioner's stock is not in question stating: 
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NON-PRECEDENT DECISION 
[T]here was a minor earlier mistake describing the ownership of Petitioner, the U.S. 
ownership was precisely confirmed in Petitioner's Notice of Appeal on October 17, 
2012. The November 7, 2012 Denial Notice simply does not take into account the 
documentation provided but rather continues to rely on or focus on the eiToneous 
Officer's Statement provided back in May 2012 as one of its reasons for denial. 
However, the petitioner did not specifically recognize the "minor earlier mistake" in its October 17, 
2012 brief. Rather , the petitioner claimed its stock is held as shown in Table 4 above and in 
conformity with the 2010 tax return, and not as asserted in the petitioner ' s initial letter and the 
petitioner's two letters from May 2012. The petitioner relied upon "corporate minutes" dated 
November 28, 2009 and the 2010 tax return, both of which predate the filing of the petition and the 
petitioner's letter. The petitioner has not explained why it repeatedly submitted information which 
it now claims was already inaccurate and outdated when the petition was filed. 
On appeal, counsel asserts that the corporate minutes and the petitioner's 2010 tax return 
reflect how 
the shares have been held since November 28, 2009 and that the previously submitted Officer's 
Statement was wrong. Coun sel fails to explain why the petitioner' s initial letter drafted in October 
2011 and other letter drafted in May 2012 were also wrong. Rather counsel states "it is clear that 
the original petition simply did not take into account the small ownership change that occulTed in 
2009." Counsel notes that the change was reflected in the 
tax returns and confirmed in the 2009 
corporate consent action. Thus, counsel concludes "the issue of ownership is 'not in doubt' and 
there was ample evidence provided to coiTect the mistake made in the Officer's statement." 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy 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 of Ramire z-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The director found and the AAO agrees that the petitioner failed to adequately establish clear 
ownership or resolve inconsistencies regarding the actual stock ownership of the petitioning 
company and for this reason alone, the petitioner has failed to establish eligibility . 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593; see also Matter of Siemens Medical Systems , Inc., 19 I&N Dec. 362 (BIA 1986); Matter 
of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to 
the direct or indirect legal right of possession of the assets of an entity with full power and authority 
to control; control means the direct or indirect legal right and authority to direct the establishment, 
management , and operations of an entity . Matter of Church Scientolog y International , 19 I&N Dec. 
at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a 
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corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting actual control of the entity. See 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362. Without full disclosure of all relevant 
documents, USCIS is unable to determine the elements of ownership and control. 
In this matter, the petitioner claimed that initially held 5,000 of the 
petitioner's shares from 1984 until 1999 but the petitioner failed to provide evidence to support the 
claim. Although the petitioner submitted a "Buy Sell Agreement" signed in 1984 between the 
original stock holders and it failed to provide a stock certificate 
reflecting the purchase and transfer of 5,000 shares of stock to . 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'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The petitioner further asserted that transferred some of his stock to his 
family members in 1999. The Corporate Stock Redemption Agreement dated October 15, 1999 was 
submitted in support of the assertion stating the stockholders, as identified in Table 2, were 
"presently active in the management of the corporation." As evidence of the claim, the petitioner 
submitted four stock certificates issued in accordance with the stock ownership claimed in the 
October 15, 1999 Corporate Agreement; however, the certificates were not issued until February 2, 
2000. Notably, stock certificate number three issued 1900 shares to . yet 
according to the petitioner he already owned 5000 shares. The petitioner failed to explain the 
inconsistency. 
Despite the director's RFE, the petitioner failed to provide any additional evidence to clarify the 
matter but instead provided a 2010 U.S. Federal Tax Return, corporate 
minutes and letters from the 
petitioner which contradicted the evidence itself and contradicted the petition as originally 
submitted. 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). 
In support of the motion to reopen and to reconsider to decision, the petitioner asserts that two 
corporate documents and the 2010 Federal Tax return are sufficient documentation to establish 
ownership of the petitioning company. However, the petitioner's assertions in the original petition 
conflict with the claimed ownership in the corporate minutes and the petitioner failed to adequately 
explain the discrepancy. Not only did the petitioning company fail to provide adequate 
documentation to establish ownership of the petitioning company, such as copies of stock 
certificates issued in 2009, but the evidence it did provide served only to contradict and confuse the 
issue 
further. A few errors or minor discrepancies are not reason to question the credibility of an 
alien or an employer seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. U.S., 345 
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F.3d 683, 694 (9th Cir., 2003). However, anytime a petitiOn includes numerous errors and 
discrepancies, and the petitioner fails to resolve those errors and discrepancies 
after USCIS provides 
an opportunity to do so, those inconsistencies will raise serious concerns about the veracity of the 
petitioner's assertions. Doubt cast on any aspect of the petitioner's proof may undermine 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). In this case, the discrepancies catalogued above lead the 
AAO to conclude that the evidence of the petitioner's ownership is not credible . 
Assuming, arguendo, that the petitioner had submitted probative evidence to support its claims that 
the same three members of the family own a majority interest in both the foreign entity and 
the U.S. entity, the petitioner still has not established a qualifying relationship. The foreign entity is 
owned by five individuals and the U.S. company is owned by either four or five individuals. While 
the two companies appear to have three shareholders in common, they are not owned by the same 
group of individuals . USCIS cannot accept a combination of individual shareholders as a single 
entity, so that the group may claim majority ownership, unless the group members have been shown 
to be legally bound together as a unit within the company by voting agreements or proxies. 
Although counsel claims that the petitioning company and the foreign company are both majority 
owned and controlled by "the family," this familial relationship does not constitute a 
qualifying relationship under the regulations. See Ore v. Clinton, 675 F.Supp.2d 217, 226 (D.C. 
Mass. 2009) (finding that the petitioner and the foreign company did not qualify as "affiliates" 
within the precise definition set out in the regulations at 8 C.P.R. § 214.2(l)(l)(ii)(L)(l), despite 
petitioner's claims that the two companies "are owned and controlled by the same individuals, 
specifically the family"). 
Absent documentary evidence such as voting proxies or agreements to vote in concert so as to 
establish a controlling interest, the petitioner cannot establish that the same legal entity or 
individuals control both entities. Thus, the companies are not affiliates as both companies are not 
owned and controlled by the same individuals. 
Based on the evidence submitted, the petitioner has not established that a qualifying relationship 
exists between the U.S. and foreign organizations. Accordingly, the appeal will be dismissed. 
III. Managerial or Executive Capacity 
The next issue to be addressed is whether the petitioner established that the beneficiary has been 
employed abroad, and would be employed by the petitioner, in a qualifying managerial or executive 
capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which 
the employee primarily--
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(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. § 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 of the organization. 
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.P.R. § 204.5(j)(5). It is appropriate to consider 
this information in light of the petitioner's organizational hierarchy, the beneficiary's position, and 
the petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily 
operational tasks. 
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A. Employment in the United States 
The petitioner operates a 40-room full-service hotel and initially claimed to have seven full-time 
employees . The petitioner 
seeks to employ the beneficiary in the position of Operations Director. 
Looking first to the job description provided for this position, the description provided was 
inadequate and lacked a thorough description of the specific job duties the beneficiary would 
perform on a daily basis . A detailed job description is essential for the purpose of determining 
eligibility, as the actual duties themselves reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990); see 
also 8 C.P.R. § 204.5(j)(5). 
Based on the petitioner's failure to provide the required detailed description of the beneficiary's 
duties, it has not established what actual job duties the beneficiary would perform on a daily basis 
and whether the predominant portion of her time would be allocated to the performance of 
qualifying tasks in a managerial or executive capacity. For instance, in an October 27, 2011 letter, 
the petitioner stated that the beneficiary had been in the U.S. position since July 2004 serving as 
Operations Director and the sole executive level employee. The beneficiary was to oversee the 
general manager and indirectly oversee the assistant manager. The petitioner indicated that the 
assistant manager is responsible for the hotel's day to day operating functions and lower level staff 
including clerks and contractors. The petitioner provided a general description of beneficiary's 
responsibilities covering three broad areas and stated that the position is "primarily composed of the 
traditional and varied duties of a Chief Financial Officer, Compliance Officer and 
Treasurer/Controller." The petitioner noted "the position also possesses some executive powers 
especially in terms of certain financial and regulatory aspects." 
The director issued an RFE for additional evidence to establish that the beneficiary would be 
employed in a qualifying managerial or executive capacity. Specifically, the director requested the 
beneficiary's position title, all daily specific duties, percentage of time spent on specific duties, and 
an organizational chart showing the number of subordinate managers/supervisors or other 
employees who report directly to the beneficiary and a brief description of their duties and 
education level. The director also requested wage and earnings statements for all employees, 
evidence of payments to contractors, if any, and evidence that the beneficiary will manage a 
function, if applicable. 
In response to the RFE, the petitioner provided a letter primarily reiterating the previous description 
and allocating a percentage of time to each of the beneficiary's four general areas of responsibility. 
The letter failed to describe the specific duties the beneficiary would perform on a daily basis. The 
petitioner provided an organizational chart depicting seven subordinate positions. Specifically, the 
operations director occupied the top of the hierarchy with a subordinate general manager and an 
assistant general manager reporting to the general manager. A front desk manger, night driver, 
housekeeper and a maintenance position were identified as direct reports to the assistant general 
manager. The petitioner failed to provide duty descriptions, names of employees , education levels, 
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or contractors employed, if any. The petitioner provided IRS Forms 941 Employer's Quarterly 
Federal Tax Return for the fourth quarter of 2011, reporting the employment of five individuals. 
The petitioner also submitted copies of its IRS Form W-3 and Forms W-2, Wage and Tax 
Statement, for 2011. The Form W-3 indicates that the petitioner paid a total of six employees in 
2011. 
The director denied the petition concluding that the petitioner failed to establish staffing levels 
sufficient to relieve the beneficiary from performing primarily non-qualifying duties. 
On motion the petitioner stated "the fact that several of the employees may be part-time (based on 
low wages) is not disputed by Petitioner." Furthermore, the petitioner stated "there are lower-level 
managers and employees under Beneficiary and a hotel of Petitioner's size does in fact have 
important functions that are managed by the Beneficiary." 
In support of the motion and among other documentation, the petitioner provided an undated 
"updated" organizational chart which includes employee names with their positions though no 
additional duty information was provided. The petitioner also re-submitted its IRS Forms W-3 and 
W-2 for 2011. The evidence shows that the beneficiary and the general manager each earned 
$50,000 or more. The remaining four employees were paid as follows: the "night driver" earned 
$15,542.32, the housekeeper earned $5,713.90, the assistant general manager earned $3,250 and the 
front desk manager earned $1,370. The persons identified on the new organizational chart as front 
desk clerk and attendant did not receive wages in 2011. 
The director found that the petitioner failed to overcome the director's findings with respect to the 
beneficiary's employment capacity in the United States. 
On appeal, counsel for the petitioner submits a legal brief asserting that the petitioner has sufficient 
staff to operate the business on a day-to-day basis. Counsel asserts that the part-time employees can 
and do perform duties on a staggered basis, thus providing the petitioner with adequate staffing and 
relieving the beneficiary from performing non-qualifying duties. Counsel contends that the general 
manager and at least one part-time employee are available "during much of the viable business hour 
times," and that the general manager, rather than the beneficiary, may perform duties normally 
performed by the part-time staff, as necessary. Counsel emphasizes that many business 
organizations utilize part-time employees. 
Upon review, the AAO concurs with the director's finding that the petitioner has failed to establish 
how the beneficiary would primarily engage in qualifying managerial or executive duties in the 
absence of a sufficient support staff. The petitioner unequivocally stated in its letter dated October 
27, 2011 that the petitioner "currently employs seven (7) full-time employees" and it further stated 
that "many functions of the hotel are handled through sub-contractors and seasonal employment." 
The petitioner has since conceded that it has only two-full time employees, including the 
beneficiary, and four part-time staff, and it has provided no explanation for its initial claims of a 
larger full-time staff. It is incumbent upon the petitioner to resolve any inconsistencies in the record 
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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). Further, the record contains no evidence 
of any payments to contractors or seasonal workers, and the petitioner has consistently failed to 
provide any position descriptions for the beneficiary' s subordinates. 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). 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See § 10l(a)(44)(C) of the 
Act, 8 U.S.C. § 110l(a)(44)(C). If staffing levels are used as a factor in determining whether an 
individual is acting in a managerial or executive capacity, users must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. However, 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 continuou s manner. See, e.g. 
Family Inc. v. USCIS, 469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 
15 (D.D.C. 2001) . The size of a company may be especially relevant when USCIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. See Systronics, 153 F. 
Supp. 2d at 15. 
At the time of filing, the petitioner was operating a hotel with 40 guest rooms. It employed, at most, 
a full-time operations director, a full-time general manager, a "night driver" whose duties have not 
been described, a part-time front desk manager, a part-time assistant general manager, and a part­
time housekeeper. Based on the petitioner's quarterly wage reports , one of these six workers was not 
paid during the quarter in which the petition was filed, and the part-time employees worked 
extremely limited hours. For example, the front-desk manager, who was originally claimed to be a 
full-time employee, earned only $1,340 in 2011. The petitioner did not submit evidence to establish 
that it employed subordinate staff members who would perform the actual day-to-day, non­
managerial operations of the company, such as consistently staffing the front desk, cleaning guest 
rooms, ordering supplies, or responding to customer inquiries and requests. The petitioner's staffing 
levels must be considered in light of the nature of the type of business it operates. A staff 
comprised of one full-time employees and several part-time employees may be sufficient to support 
a qualifying position in a business that is open only 40 hours per week, but a full-service hotel 
reasonably has greater staffing needs due to its extended operating hours and the type of service it 
provides. 
Based on the petitioner's representations, it does not appear that the reasonable needs of the 
petitioning company might plausibly be met by the services of the beneficiary as operations 
director, a general manager, and four part-time employees which include two additional 
"managers." Counsel's explanation that the petitioner's few part-time employees work "staggered" 
hours in order to relieve the beneficiary and general manager from performing non-qualifying duties 
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is not persuasive. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy 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 of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The 
petitioner has not provided the requested position descriptions for any of its staff and counsel's 
claims remain uncorroborated. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of 
staff in the context of reviewing the claimed managerial or executive duties. The matter is even 
more unclear because the petitioner failed to establish the duties the beneficiary would perform on a 
day-to-day basis. The petitioner must establish that the beneficiary is to be employed in the United 
States in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) 
or the Act. As discussed above, the petitioner has not established this essential element of 
eligibility. 
Accordingly, the appeal will be dismissed, as the petitioner has not established that the beneficiary 
would be employed in the United States in a primarily managerial or executive capacity, as required 
by section 203(b)(l)(C) of the Act. 
B. Employment Abroad 
The petitioner indicates that the foreign entity employed the beneficiary in the position of general 
manager. The foreign entity is described as a 150-room hotel offering a full-service restaurant and 
bar, 24-hour room service, laundry and dry cleaning, and other guest services. 
Once again, looking first to the job description, the AAO concurs with the director that the 
petitioner failed to provide a thorough description of the specific job duties the beneficiary 
performed on a daily basis. A detailed job description is essential for the purpose of determining 
eligibility, as the actual duties themselves reveal 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); see 
also 8 C.P.R. § 204.5(j)(5). 
As part of the initial petition, the petitioner's October 27, 2011 letter explained that the beneficiary 
had been employed with the foreign employer as general manager from 1995 until July 1994 when 
she was transferred to the U.S. The petitioner stated that the beneficiary oversaw all hotel 
departments and had a 50 employee staff. The petitioner provided a bullet list of ten general areas 
of responsibility but failed to explain specific tasks or describe how the beneficiary spent her time 
on a daily basis. 
The director issued an RFE for additional evidence to establish that the beneficiary had been 
employed in a qualifying capacity. Specifically, the director requested the beneficiary's position 
title, all daily specific duties, percentage of time spent on specific duties, and an organizational 
chart showing the number of subordinate managers/supervisors or other employees who reported 
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directly to the beneficiary and a brief description of their duties and education level. The director 
also requested wage and earnings statements for all employees, evidence of payment to contractors, 
if any, and evidence that the beneficiary managed a function, if applicable. 
In response to the RFE the petitioner prepared another letter dated May 4, 2012 which asserted that 
the beneficiary was supported by a 35 employee staff which included seven managers , two 
supervisors, an executive secretary and an executive housekeeper. Once again the petitioner failed 
to provide specific duties performed by the beneficiary on a daily basis but did provide a general 
description outlining five different areas of responsibility . For instance, the petitioner stated that the 
beneficiary devoted up to 25% of her time to operational and fiscal matters which included non­
qualifying tasks such as report preparation and presentation. Another 25% of her time was spent 
dealing with compliance, regulatory, and licensing matters including non-qualifying duties such as 
the "preparation of regular reports and submissions to various governmental and local Mexican 
agencies, responding to correspondence and on-site audits." Oversight and coordination of staff 
and management accounted for 30% of her time. The beneficiary was responsible for non­
qualifying duties involving all marketing and sales functions and activities, accounting for up to 
10% of her time. The final 10% of time was devoted to "various other management functions" and 
"various other administrative functions." The petitioner failed to provide an organizational chart or 
any information regarding the foreign employer's other employees. 
Further, the petitioner initially claimed the beneficiary had a staff of 50 but subsequently lowered it 
to 35 without an explanation to account for the change. 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). 
On motion, the petitioner provided for the first time the previously requested employee position 
titles, position descriptions and educational requirements but no actual employee names or evidence 
of wages paid to employees. The director had specifically requested this information in the RFE 
and the petitioner failed to take the opportunity to provide it. 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). If the petitioner had wanted the submitted evidence to be considered, it should have 
submitted the documents in response to the director's request for evidence. The director properly 
excluded this evidence from consideration on motion. 
The petitioner included another undated document reflecting a similar inadequate and non-specific 
list of general duties performed by the beneficiary . 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 provide any 
detail or explanation of the beneficiary's activities in the course of his daily routine. The actual 
duties themselve s will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. at 1108, affd, 905 F.2d 41 (2d. Cir. 1990). 
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Accordingly, the appeal will be dismissed, as the petitioner has not established that the beneficiary 
was employed with the foreign company in a primarily managerial or executive capacity, as 
required by section 203(b)(l)(C) of the Act. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.