dismissed EB-1C Case: Business Management

PUBLIC COpy 
DATE: DEC 1 2 2011 
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: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § I I 53(b)(1)(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 I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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 Maryland 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. 
The director denied the petition based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's decision and points out that U.S. Citizenship and Immigration 
Services (USCIS) approved an L-IA nonimmigrant petition that was filed by the petitioner on behalf of the 
same beneficiary. Counsel's statements will be addressed in the discussion below. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(1 )(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 submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
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The term "managerial capacity" means an assignment within an organization III which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, counsel, on behalf of the petitioner, submitted a statement dated June 19,2009 
in which he stated that the beneficiary's job responsibilities in his proposed employment with the petitioning 
entity would include supervising the business affairs by making all personnel decisions for the petitioner and 
policy decisions for the parent entity, expanding the U.S. entity, developing marketing strategy, negotiating 
deals, signing contracts, managing cash flow, and analyzing and evaluating the current market trends. The 
AAO further notes that at Part 5, Item 2 of the Form 1-140 the petitioner indicated that it had two employees 
at the time of filing. 
On September 4, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, a list of the beneficiary'S specific daily job duties accompanied by the percentage of time the 
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beneficiary would allocate to each of his proposed tasks. Although the director acknowledged that a small 
staff may not necessarily preclude the beneficiary from being employed in a qualifying capacity, he asked the 
petitioner to further explain how the company's small staffing size would allow the beneficiary to focus the 
primary portion of his time on the performance of managerial- or executive-level tasks. The director also 
asked the petitioner to state how many employees the beneficiary would oversee and those employees' job 
titles, job duties, and educational levels where applicable. 
In response, counsel provided a statement dated October 2, 2009 stating that the petitioner currently has three 
employees-two performing "labor work" and the third performing daily office work. Counsel explained that 
the beneficiary primarily performs tasks within a qualifying capacity because the office worker relieves him 
from having to carry out "routine office work." Lastly, the petitioner provided the following job description 
with a percentage breakdown: 
• Supervise all business affairs, hiring [and] firing of employees[,] and making policy decisions 
for the parent company[.] 25%-The beneficiary manages the entire operations of the 
company .... 
• Secure the growth of the USA company under his management, develop market strategy[.] 
25% . . .. [The beneficiary] develops innovative marketing strategy to secure growth of the 
company. 
• Negotiate deals, sign contract[s], manage cash flow, make personnel related decisions such as 
hire [sic] and fire [sic] of personnel, employee benefits and managers of [the] parent company 
regarding current American market and analyze and evaluate market trends[.] 50%-The 
beneficiary devotes fair share of his time in expanding the operations under his control. He 
needs to negotiate deals with its [sic] clients in US. He manages the cash flow and analyzes 
the market trend. 
On November 19, 2009 the director issued a decision denying the petitioner's Form 1-140. The director 
determined that the petitioner provided a deficient description of the beneficiary'S proposed employment and 
thus failed to establish that the beneficiary would be employed in the United States in a qualifying managerial 
or executive capacity. 
On appeal, counsel asserts that the director's decision was erroneous and points out USCIS's approval of the 
petitioner's previously filed L-IA petition on behalf of the same beneficiary. 
The AAO finds that counsel's reliance on a previously approved nonimmigrant petition is misplaced and will 
not serve as a basis for withdrawing the director's decision in the present matter. First, the AAO notes that 
each nonimmigrant and immigrant petition is a separate record of proceedings with a separate burden of proof 
and as such, each petition must stand on its own individual merits. USCIS is not required to assume the 
burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. Any prior nonimmigrant approvals 
do not preclude USCIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556,2004 WL 1240482 (5th Cir. 2004). Similarly, the approval of a nonimmigrant petition in no way 
guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS 
denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-l petitions. See, e.g., Q 
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Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 
(D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Next, counsel provides a supplemental job description in an attempt to establish that the beneficiary meets the 
statutory criteria. Counsel states that 20% of the beneficiary's time will be allocated to supervising business 
affairs and making policy decisions for the U.S. and parent entities and another 20% will be allocated to 
securing growth of the U.S. entity, developing marketing strategy, negotiating deals, signing contracts, and 
managing cash flow. Counsel stated that 10% of the beneficiary's time would be allocated to each of the 
following: (1) making personnel decisions including hiring and firing personnel and determining employee 
benefits; (2) analyzing the American market and evaluating future market trends; (3) exercising authority over 
budget and contractual matters; (4) presiding over all organizational meetings, reporting to the parent 
company, and serving as the liaison between the U.S. petitioner and the foreign entity; and (5) providing 
direction to the company by consulting with the board of directors and financial management and by 
procuring CPA services and soliciting contracts. 
It is noted that in examining the executive or managerial capacity of the beneficiary, the AAO will look first 
to the petitioner's description of the proposed job duties. See 8 C.F.R. § 204.5(j)(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. 
Neither the job descriptions counsel has provided nor the organizational structure of the petitioner at the time 
of filing establishes that the beneficiary would be employed in the United States in a qualifying managerial or 
executive capacity. In fact, a number of the elements counsel included in the most recent job description are 
incongruent with the petitioner's organizational structure at the time the petition was filed. Despite the fact 
that the petitioner claimed that it has two laborers and one office worker to carry out its non-qualifying tasks, 
the petitioner's Form 1-140 indicates that the petitioner had a total of two employees at the time the petition 
was filed. Based on the facts presented, the beneficiary was presumably one of the petitioner's employees at 
the time of filing and possibly one laborer was the other employee. Given this information, it is unclear how 
a single subordinate employee was capable of relieving the beneficiary from having to allocate the primary 
portion of his time to the performance of non-qualifying tasks at the time the Form 1-140 was filed. 
Additionally, the AAO finds that the beneficiary'S job descriptions are deficient in that they fail to provide 
credible and detailed information about the actual tasks the beneficiary would have been performing at the 
time of filing. Namely, the petitioner failed to establish what specific tasks the beneficiary would perform in 
supervising business affairs or what policy decisions the beneficiary would make. The record is similarly 
lacking in specific information about the job duties involved in securing the growth of the petitioning entity. 
That being said, developing marketing strategy and negotiating deals are both operational duties that cannot 
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be classified as managerial or executive tasks. Although counsel allocated 10% of the beneficiary's time­
which is approximately 4 hours of a 40-hour work week-to personnel-related matters, the fact that the 
beneficiary had only one subordinate employee at the time of filing casts doubt as to the reliability of 
counsel's time allocation in this and in other portions of the job description. In addition to the questionable 
claim regarding the amount of time to be spent on personnel matters, counsel also states that 10% of the 
beneficiary's time would be allocated to presiding over organizational meetings and acting as liaison between 
the U.S. and foreign entities. Given the fact that the petitioner's entire organization at the time of filing was 
comprised of two employees, one of whom was the beneficiary himself, it is unclear how organizational 
meetings could possibly have been held for four hours a week with such a diminished personnel structure. 
Furthermore, since the beneficiary is claimed to be the owner of both the U.S. and foreign entities, it is 
unrealistic to claim that he would spend any time at all reporting to the parent company about the petitioner's 
activities in the United States if the beneficiary is aware of and is in fact the cause of such activities by virtue 
of being the head of the U.S. petitioner. Counsel's claim that some portion of the beneficiary's time would 
be spent "in consultation with the board of directors" is unpersuasive, given that no information was provided 
to establish that anyone other than the beneficiary himself holds a board position. 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 any evidence to substantiate the claims made by counsel in his descriptions of 
the beneficiary's proposed employment. Thus, the AAO finds that the director was correct in concluding that 
the petitioner failed to provide an adequate description of the beneficiary's job duties. Moreover, given the 
lack of personnel in the petitioner's organization at the time of filing, the AAO questions how the petitioner 
would have been able to relieve the beneficiary from having to allocate the primary portion of his time to 
performing non-qualifying tasks. The petitioner's own account indicates that an office worker was not hired 
until after the Form 1-140 was filed. It is therefore reasonable for the AAO to conclude that the beneficiary 
was the only employee available to carry out the petitioner's daily operational tasks at the time of filing. It is 
noted that the burden is on the petitioner to establish eligibility at the time of filing. 8 C.F .R. § § 103 .2(b)( 1). 
A petition cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Thus, even if the petitioner were to 
argue that the additional personnel relieved the beneficiary from having to primarily perform non-qualifying 
tasks, such information would be irrelevant for the purpose of determining the petitioner's eligibility at the 
time of filing. 
In summary, the AAO finds that the record as presently constituted is not persuasive in demonstrating that the 
beneficiary would be employed in a primarily managerial or executive capacity. The fact that an individual 
manages a small business does not necessarily establish eligibility for immigrant classification under the 
definitions of managerial or executive capacity within the meaning of section 101(a)(44) of the Act. The 
record does not establish that a majority of the beneficiary'S duties will be primarily directing the management 
of the organization or overseeing the organization's managerial, professional, or supervisory personnel. 
Rather, the record indicates that at the time of filing, a preponderance of the beneficiary'S duties would have 
been to directly provide the services of the business, regardless of whether such services were qualifying or 
not. 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 
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perform are only incidental to his proposed position. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). In the present matter, the evidence furnished strongly 
indicates that the beneficiary would not be employed primarily in a qualifying managerial or executive 
capacity. For this reason, the petition may not be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. § 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position for at least one out of the three years prior to his entry 
to the United States as a nonimmigrant to work for the same employer. In the instant matter, the information 
provided about the beneficiary'S employment abroad consists of general statements that fail to properly 
delineate the beneficiary'S specific job duties. Without this relevant and crucial information, the AAO cannot 
conclude that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. § 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. 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 Scientology International, 19 I&N Dec. at 595. 
In the RFE the director expressly instructed the petitioner to provide evidence showing common ownership 
and control for the u.s. petitioner and the beneficiary's foreign employer. The director specifically asked for 
documentation showing monetary exchange to establish that the petitioner was compensated for the issuance 
of its stock as well as the petitioner's stock ledger disclosing the total shares issued and the individual(s) to 
whom those shares were issued. The petitioner was told that stock purchase agreements, corporate by-laws or 
other legal documents governing stock purchase may also be submitted. 
Although counsel acknowledged the director's request, the documentation provided in response consisted of a 
statement regarding the foreign entity's ownership and the petitioner's claims made in a federal tax return 
with regard to its own ownership. Neither document is sufficient to establish that the beneficiary's U.S. and 
foreign employers share common ownership and control. Therefore, the petitioner has failed to establish the 
existence of the requisite qualifying relationship. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
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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. § 13 61. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.