dismissed EB-1C Case: Business Management

identifYing data deleted to 
prev~nt dearly unwarranted 
invasIOn of personal privacy 
PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
JUL 1 1 2011 
IN RE: 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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(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. The 
specific requirements for filing such a request can be found at 8 C.F,R, § 103.5. 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 $630, Please be aware that 8 C,F,R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
-Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Texas 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. § I IS3(b)(1)(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. The denial was largely based on the findings of 
the USCIS Fraud Detection and National Security Database (FDNS) investigation during which numerous 
anomalies were discovered regarding information that the petitioner provided in support of its Form 1-140. 
On appeal, counsel disputes the director's decision and addresses various adverse findings that the director 
cited in support of his adverse decision. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 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)( I )(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 primary issue in this proceeding is whether the petitioner provided sufficient and credible evidence to 
establish that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. 
Page 3 
Section 101(a)(44)(A) ofthe Act, 8 U.S.c. § 1 101 (a)(44)(A), provides: 
The tenn "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 10 1 (a)(44)(B) of the Act, 8 U.S.c. § 1 10 1 (a)(44)(B), provides: 
The tenn "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 an attachment to the Fonn 1-140 the petitioner stated that the beneficiary's proposed position would include 
hiring and firing managers; supervising subordinate employees; reviewing and analyzing sales data; 
establishing and implementing policies; reviewing financial reports, budgets, and expense reports; managing 
the company; and overseeing marketing campaigns developed by subordinate managers. 
On August 12, 2005, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a copy of its organizational chart complete with employee names and job titles as well as their 
Page 4 
respective job descriptions. The petitioner was also asked to describe the beneficiary's specific daily job 
duties and the percentage of time that would be allocated to each job duty. 
In response, the petitioner submitted a letter dated November 4, 2005 in which the petitioner included the 
following breakdown of the beneficiary's proposed position: 
The [b]eneficiary will be employed as the [p]resident of the [p]etitioner ... and will continue 
to be responsible for performing the following duties: hiring and firing managers, and twenty 
percent (20%) of his time supervising subordinate employees; ten percent (10%) for 
overseeing preparation of sales and inventory reports, and reviewing & analyzing sales data; 
ten percent (10%) negotiating lease agreements, fuel supply agreements, ATM machine 
contracts, pay phone contracts, store vending machine contracts and service contracts; twenty 
percent (20%) for establishing and implementing policies to manage and achieve marketing 
goals; twenty percent (20%) for reviewing financial reports, and reviewing budgets and 
expense reports prepared by subordinate employees; ten percent (10%) for managing the 
company, and overseeing marketing campaign developed by subordinate managers; and ten 
percent (10%) for locating additional retail locations for the [p]etitioner. 
The petitioner also identified six employees, including the beneficiary as the petitioner's president, one 
operations manager, one assistant manager, and three cashiers as part of the organizational hierarchy at the 
time the response letter was issued. The petitioner's organizational chart reiterates this information, showing 
the beneficiary at the top of the hierarchy, the operations manager as his direct subordinate, an assistant 
manager as the direct subordinate of the operations manager, and the three cashiers as the assistant manager's 
subordinates. 
The petitioner also provided documents addressing a number of other Issues, including the petitioner's 
qualifying relationship with the beneficiary'S foreign employer. 
In a decision dated July 17, 2009, the director denied the petition concluding that the petitioner failed to 
submit evidence that is both credible and reliable to establish that the beneficiary would be employed in the 
position of president and that his time would be primarily allocated to job duties within a qualifying capacity. 
The director specifically addressed the contents of a service memorandum in which FDNS discussed the 
petitioner's tax and corporate documents as well as various anomalies between these documents and the 
petitioner's claim regarding the beneficiary'S position with the U.S. entity. The director also questioned why, 
sold its mini mart to the petitioner as claimed, the Texas Secretary of State records 
an active corporation after the date of the asset purchase agreement. The director 
role as president was misinterpreted and questioned the reliability of the 
asset purchase agreement dated May I, 2003 in which the petitioner was identified as the purchaser of a 
minimart belonging to _ Therefore, in addition to finding the petitioner statutorily ineligible, the 
director issued a finding offraud based on the FDNS memorandum. 
On appeal, counsel for the petitioner attempts to explain an inconsistency between the petitioner'S state 
corporate documents, where the beneficiary was identified as the petitioner's vice president, and the 
petitioner's supporting documents, where the beneficiary was referred to as the company president. Counsel 
claims that while the beneficiary was initially the president of the petitioning entity at the time of the entity's 
incorporation, his position title changed after he sold 490 shares of the petitioner's stock t<ll ••••••• 
--Page 5 
who was later appointed as the company's president. Counsel explains that the beneficiary did not notifY 
either the immigration attorney or USCIS of this change in position titles. 
Additionally, with regard to_ active corporate status after its sale of assets to the petitioning entity in 
May 2003, counsel claims that_has filed corporate tax returns showing zero income and zero revenues 
"for the last several years." In support of this explanation, the petitioner provided Inayat's uncertified 
corporate tax returns for 2003-2005 and for 2007 and 2008. 
The AAO finds that counsel's explanations are not sufficient to overcome the director's adverse findings. 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). Precedent case law establishes that the unsupported assertions of counsel do not constitute 
independent objective evidence and are therefore insufficient to resolve the above described inconsistency. 
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). 
In the present matter, although the petitioner provided_ tax returns to support counsel's claim that the 
entity had been claiming zero income and revenues from 2004 going forward, none of the tax returns were 
certified and the tax returns from 2003-2005 were not signed either by the preparer of the document or by an 
officer _ As a certified tax return establishes that the entity had actually filed the tax returns as 
claimed, the AAO cannot overlook the fact that the petitioner has presented uncertified documents despite the 
fact that its credibility is being questioned due to other unresolved anomalies that the petitioner itself helped 
to create. The AAO therefore rejects the uncertified, and in some cases unsigned, tax returns as probative 
evidence and will give these documents no evidentiary weight. It is noted that doubt cast on any aspect of the 
petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence 
offered in support of the visa petition. Matter ofHo, 19 I&N Dec. at 591. 
The AAO further notes that even if the record were void of anomalies such as the ones described above, the 
submitted evidence nevertheless falls far short of establishing that the beneficiary would be employed in a 
qualifYing managerial or executive capacity. 
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.F.R. § 204.50)(5). The AAO will then consider this 
information in light of the petitioner's organizational hierarchy, the beneficiary'S position therein, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. In the present matter, the record lacks a comprehensive description of the beneficiary'S day-to-day 
tasks and does not adequately establish how the staffing hierarchy that was in place at the time the petition 
was filed would have been sufficient to support the beneficiary in a managerial or executive capacity. 
In reviewing the beneficiary'S job description, the record shows that the director was not satisfied with the 
description that was originally submitted and thus issued an RFE in order to elicit further information with 
specific details describing the beneficiary's daily job duties. Although the petitioner acknowledged the RFE 
instructions, the contents of the response containing the job description failed to address the director's express 
concerns regarding the beneficiary's job description. Rather than listing the beneficiary's specific job duties 
and assigning a percentage of time to each task, the petitioner merely provided a percentage breakdown and 
Page 6 
applied it to the same job description that was initially submitted. No additional infonnation was provided to 
further describe the beneficiary's proposed employment. 
After reviewing the submitted job description, the AAO finds that the director properly assessed the 
infonnation as lacking in sufficient detail. The AAO further notes that the percentage breakdown the 
petitioner provided in response to the RFE does not support the type of organizational hierarchy that was in 
existence at the time the petition was filed. Specifically, the petitioner indicated that 20% of the beneficiary's 
time would be spent hiring and firing managerial personnel. However, the petitioner's organizational chart 
shows that the petitioner employed no more than two managerial employees at the time of filing and both 
were located at a single retail location. While the petitioner may be justified in allocating such a considerable 
portion of the beneficiary's time to hiring and firing managerial personnel in the context of a more complex 
organizational hierarchy and a more prominent management structure, the petitioner's single retail store does 
not justify or support the petitioner's claimed allocation oftime. Furthennore, any portion of the 20% that the 
beneficiary would spend supervising other company employees would not be deemed as qualifying 
employment as there is no evidence to indicate that cashiers in a minimart are professional employees. 
Similarly, the AAO finds that the petitioner failed to justify its allocation of 20% of the beneficiary's time to 
establishing and implementing policies to achieve marketing goals. The petitioner provided no specific 
infonnation to establish specifically what tasks the beneficiary would carry out on a daily basis that could be 
classified as "establishing and implementing policies" nor were any specific policies actually defined. That 
being said, the petitioner's claim that the beneficiary would merely oversee other employees in the 
development of a marketing campaign also lacks credibility due to the lack of marketing employees within 
the petitioner's organizational hierarchy. Neither the position titles nor the job descriptions of any of the 
petitioner's employees denote any marketing-related tasks, thus leaving the AAO to question who, if not the 
beneficiary, would be available to carry out these non-qualifying operational job duties. As marketing 
oversight would allegedly consume 10% of the beneficiary's time, the lack of marketing-related personnel to 
execute marketing tasks would fall squarely within the beneficiary's set of responsibilities. 
Additionally, the AAO notes that such duties as negotiating leasing agreements as well as contracts for fuel 
supply, A TM machines, pay phones, vending machines, and various other supplies and services would fall 
within the category of daily operational tasks and would therefore not be deemed as qualifying managerial or 
executive tasks. This would indicate that, in addition to the questionable time allocations discussed above, 
the beneficiary would allocate another 10% of his time to perform ing tasks that are outside the realm of what 
is deemed as managerial or executive. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to his/her proposed position. An employee who "primarily" perfonns 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 IOI(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perfonn the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In the present matter, a critical analysis of the nature of the petitioner's business undennines the assertion that 
the subordinate employees would relieve the beneficiary from perfonning non-qualifying duties. Rather, 
based on the record of proceeding, it appears that at the time of filing the Fonn 1-140 the petitioner lacked the 
Page 7 
organizational complexity to ensure that the beneficiary's proposed employment would be principally 
composed of qualifying job duties in a primarily managerial or executive role. Therefore, regardless of the 
unresolved anomalies concerning the beneficiary's position title and its asset purchase from another 
corporation, the record indicates that the beneficiary would not primarily perform tasks within a qualifying 
capacity and therefore does not merit classification as a multinational manager or executive. 
Furthermore, while not addressed in the director's discussion, the AAO finds that the petitioner failed to 
establish that the beneficiary was employed abroad for one year during the relevant three-year period. The 
regulation at 8 C.P.R. § 204.5Gl(3)(i) states, in part, the following: 
A) If the alien is outside the United States, in the three years preceding the filing of the 
petition the alien has been employed outside the United States for at least one year in 
a managerial or executive capacity by a firm or corporation, or other legal entity, or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity[.] 
The clear language of the statute indicates that the relevant three year period is that "preceding the time of the 
alien's application for classification and admission into the United States under this subparagraph." 
§ 203(b)(1)(C) of the Act, 8 U.S.c. § 1153(b)(1)(C). The statute, however, is silent with regard to aliens who 
have already been admitted to the United States in a nonimmigrant classification. In promulgating the 
regulations on section 203(b)(l)(C) of the Act, the legacy Immigration and Naturalization Service (INS) 
concluded that it was not the intent of Congress to exclude L-I A multinational managers or executives who 
had already been transferred to the United States from this employment-based immigrant classification. 
Specifically, INS stated the following with regard to the interpretation of the Congressional intent behind the 
relevant statutory provisions: 
The Service does not feel that Congress intended that nonimmigrant managers or executives 
who have already been transferred to the United States should be excluded from this 
classification. Therefore, the regulation provides that an alien who has been a manager or 
executive for one year overseas, during the three years preceding admission as a 
nonimmigrant manager or executive for a qualifying entity, would qualify. 
56 Fed. Reg. 30703, 30705 (July 5, 1991). 
In other words, for those aliens who are currently in the United States in L-IA status, the relevant time period 
mentioned in the statute should be the three-year period preceding the time of the alien's application and 
admission as (or change of status to) an L-IA multinational managerial or executive classification. 
In the instant matter, the record shows that the beneficiary departed his home country of India and entered the 
United States in August 200 I as a B-2 nonimmigrant visitor for pleasure. The record further shows that the 
entity that has petitioned to employ the beneficiary was not established until May 2002, more than eight 
-Page 8 
months after the beneficiary's arrival to the United States, and the beneficiary was not approved for an L-I 
nonimmigrant visa until July 30, 2002, nearly one year after his arrival in the United States. Thus it cannot be 
concluded that the beneficiary entered the United States for the purpose of "working for the same employer or 
a subsidiary or affiliate of the firm or corporation, or other legal entity by which the alien was employed 
overseas. I! 
Accordingly, the beneficiary does not fit the criterion described in 8 C.F.R. § 204.5(j)(3)(i)(B) and must have 
his period of employment abroad analyzed under the criterion described at 8 C.F.R. § 204.5(j)(3)(i)(A), which 
states that the relevant three-year time period is that which falls within the three years prior to the filing of the 
instant petition. As the instant petition was filed on September 20, 2004 and it is well established that the 
beneficiary was present in the United States since prior to September 20, 200 I, it cannot be concluded that the 
beneficiary was employed abroad during the relevant three-year time period, regardless of whether or not the 
petitioner is able to provide evidence of the beneficiary's qualifying employment abroad.' 
Lastly, in its own independent review of the record, the AAO observed additional anomalies that were not 
specifically discussed in the director's decision. Namely, the AAO finds that the petitioner's claim indicating 
that it obtained loans in order to fund its purchase o~ is lacking in credibility. The AAO 
bases its finding primarily on inconsistencies in the documentation that was submitted to smlnor! 
To explain more precisely, based on the asset purchase agreement in was 
named as the seller and the petitioning entity was named as the buyer, the closing date of the sale was to take 
place on May I, 2003 at which time the petitioner was to pay $25,000 with a promissory note to be executed 
in the . On appeal, counsel claims that the petitioner obtained a loan of 
$18,775 from and an additional sum of $20,000 
_ in order indicated in the asset purchase agreement. However, of 
the checks issued by neither was issued to the petitioning 
entity and both checks were issued on two separate dates in June 2003. In light of the dates on these checks, 
it is factually impossible for the petitioner to have used the borrowed funds for a May I, 2003 closing date. 
Moreover, as neither check was actually issued to the petitioner, but rather to the beneficiary himself, 
counsel's claim is further undermined. 
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. US., 345 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. 
In the present matter, this additional discrepancy further detracts from the credibility of counsel's explanation 
and from the validity of the petitioner's claim as a whole. 
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.O. Cal. 2001), afJ'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
, The AAO further notes that the foreign entity's payroll documents from August 200 I going forward do not list the 
beneficiary as one of its employees. 
Page 9 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.