dismissed EB-1C Case: Business Management

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdminisbative Appeals MS 2090 
Washington, DC 20529-2090 
identifying dct; r!n,!.:isd t-, 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: MN 1 6 2009 
LIN 07 110 52737 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
wn F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Texas corporation seeking to employ the beneficiary as its vice president. 
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 the determination that the petitioner failed to establish that 
it would employ the beneficiary in a primarily managerial or executive capacity. 
On appeal, counsel disputes the director's decision and submits a brief in support of her arguments. 
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)(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 fwnish 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 calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), provides: 
The term "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 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101 (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. 
In support of the Form 1-140, the petitioner submitted a letter dated February 22, 2007, which 
included the following percentage breakdown of the beneficiary's proposed U.S. position: 
Direct and coordinate marketing and business development activities of [the 
petitioner] (1 0%); 
Page 4 
Formulate and administer the [petitionerl's employment policies (1 0%); 
Establish and approve policies and objectives (1 0%); 
Approve our budget and investment projects, both of our Indian office and our 
U[.] S [.I office (1 0%); 
Approve hiring of professional services (1 0%); 
Responsible for planning, general administration, marketing-sales, purchasing, 
selling and leasing activities (5%); 
Oversee new investment activities, including reviewing proposals and exploring 
other retail trade, and investment opportunities in the U[.]S[.] (10%); 
Plan business objectives to develop business policies to coordinate functions and 
operations, and establish responsibilities and procedures for attaining objectives 
(1 0%); 
Direct and coordinate formulation of financial programs to provide funding for new 
or continuing operations to maximize returns on investments, and to increase 
productivity of [the] parent company and the U[.]S[.] business (10%); 
Oversee the financial and accounting activities of the U[.]S[.] enterprise, including 
budgeting, tax and regulatory matters (5%); 
Review and analyze activities, costs, operations, and forecast data to determine 
progress toward stated goals and objectives of the investments and future 
investments (5%); 
Discuss with employees about [sic] their achievements and discuss required 
changes in goals or objectives of the affiliate (5%); [sic] 
On February 21, 2008, the director issued a request for additional evidence (RFE). The director 
acknowledged the petitioner's submission of the above description of duties and asked that the 
petitioner describe the beneficiary's proposed employment in much greater detail, stating the specific 
tasks the beneficiary would perform on a daily basis and the percentage of time that would be 
allotted to each task. The petitioner also instructed the petitioner to provide an organizational chart 
illustrating its staffing levels and the beneficiary's position within the hierarchy. Lastly, the director 
asked the petitioner to provide its quarterly tax returns and unemployment compensation reports for 
all four quarters in 2006 and 2007, as well as all Form W-2 wage and tax statements it issued in 
2005,2006, and 2007. 
In response, the petitioner provided its organizational chart, showing a five tier structure with a 
single employee occupying each tier. The beneficiary is depicted as directly subordinate to the 
company president, which is the top-most position within the hierarchy. 
 The beneficiary's 
immediate subordinate is shown as the manager, who is depicted as overseeing the assistant 
manager. The position of clerk is shown as the position at the bottom of the hierarchy. The 
petitioner also provided a letter dated April 2, 2008 from counsel, who provided the following 
statement describing the beneficiary's proposed employment: 
[The beneficiary] will apply these management and leadership skills to [the 
petitioner] . . . . In this prospective position, [the beneficiary] will take control of one 
of [the petitionerl's operations. He will be supervising the work of three people, plus 
- - - - 
another three prospective employees in the near future. These employees include 
a floor manager, 
 an [alssistant, and a 
clerk. As a manager of [the petitioner], [the beneficiary] will be responsible for 
directing the business. He will be doing all of the duties listed above that he has 
performed back home. 
In light of counsel's reference to the beneficiary's foreign job duties, the AAO hereby restates the 
following description of the beneficiary's overseas employment: 
The beneficiary was in complete control of the operation of the business. He made 
the executive decisions with virtually no oversight from the business' owner. This 
means that he was ultimately in charge of the hotel budget. . . . [I]t was the 
beneficiary who approved expenditures and finalized policies that would cut costs. 
Examples of these cost cutting measures included hiring or firing employees, 
approving changes in advertising strategies . . . . Other examples included 
authorizing changes in equipmentlinventory suppliers, and public appearances at 
trade shows . . . . 
The petitioner did not provide a specific list of the beneficiary's proposed daily tasks accompanied 
by the requested time distribution or the quarterly tax returns, unemployment reports, and the Forms 
W-2 as requested in the WE. In terms of tax documentation, the petitioner provided only its 2006 
federal tax return showing no wages, salaries, or officer compensation paid in 2006. It is noted that 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. 5 103.2(b)(14). 
In a decision dated June 17,2008, the director denied the petition, finding that the petitioner failed to 
establish that the beneficiary would primarily perform tasks in a primarily managerial or executive 
capacity. The director noted that the petitioner failed to provide the requested quarterly reports and 
Form W-2 statements and therefore questioned whether the petitioner actually employed the three 
employees it claimed on its Form 1-140 and its organizational chart. 
On appeal, counsel asserts that the director's decision placed undue emphasis on the lack of 
documentation showing its remuneration of the claimed employees. Counsel cited a number of 
published and unpublished decisions, providing a brief synopsis of each case and focusing primarily 
on the respective holdings. However, counsel has furnished no evidence to establish that the facts 
of the instant petition are analogous to those in the cited decisions. Further, with regard to the 
unpublished cases, while 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on 
USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Counsel further argues that the petitioner is best served by using the least possible number of 
employees, as this will cut costs and yield greater profit. While the AAO appreciates counsel's 
costlbenefit business analysis, the petitioner's reasonable needs, which may be best served by a small 
support staff, do not override the petitioner's burden of having to establish that the primary portion of 
the beneficiary's time would be consumed with qualifying tasks. So long as the petitioner's staffing 
does not preclude the beneficiary from primarily focusing on qualifying tasks, the petitioner's small 
staff would not preclude a favorable outcome. 
In the present matter, however, the evidence of record does not establish that the petitioner's limited 
staffing either requires or would enable the employment of the beneficiary in a primarily managerial 
or executive capacity. While counsel objects to the director's focus on the petitioner's staffing, in 
reviewing the relevance of the number of employees a petitioner has, federal courts have generally 
agreed that U. S. Citizenship and Immigration Services (USCIS) "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to 
support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 13 13, 13 16 
(9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 
1991); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, 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 continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). 
Additionally, the petitioner failed to provide evidence that would establish just how many people the 
petitioner employed at the time the Form 1-140 was filed. Without the requisite documentation, the 
AAO is unable to determine the petitioner's overall ability to relieve the beneficiary from having to 
primarily perform non-qualifying tasks. 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 10 1 (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). 
 Thus, contrary to counsel's 
assertions, a petitioner's staffing is highly relevant to the petitioner's eligibility, as it may help in 
determining whether the petitioner has the capability of relieving the beneficiary from having to 
primarily perform operational functions. 
In light of the director's criticism of the petitioner's staffing size, counsel addresses the concept of 
function manager, pointing out that staff is not a prerequisite. However, any petitioner claiming that 
a beneficiary is managing an essential function must furnish a written job offer that clearly describes 
the duties to be performed, i.e., identify the function with specificity, articulate the essential nature 
of the function, and establish the proportion of the beneficiary's daily duties attributed to managing 
the essential function. 8 C.F.R.5 204.5(j)(5). In the present matter, the petitioner has not established 
that the beneficiary's proposed position fits the criteria for function manager. 
Page 7 
First, the petitioner failed to identify what essential function the beneficiary would be managing. 
Merely claiming that the beneficiary would head the petitioner's retail operation is not sufficient to 
establish a specific function. 
Second, with regard to the beneficiary's job description, the petitioner failed to address the director's 
explicit request for a more detailed account of the beneficiary's daily tasks. The director was clear in 
stating that the job description that was initially provided was insufficient in clarifying what specific 
tasks the beneficiary would perform on a day-to-day basis. Although counsel cited the precedent 
case law that established the significance of actual duties in revealing the true nature of the 
employment, she failed to apply the precedent to the facts in the present matter. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In the 
initial job description, the petitioner recited broad responsibilities and business objectives, such as 
directing and coordinating marketing, formulating policies, establishing policies, planning business 
objectives, overseeing investment activities, and directing and coordinating financial programs. 
However, none of these broad responsibilities identify the beneficiary's actual daily tasks. The 
petitioner failed to cite any specific marketing activities or discuss what it means to direct and 
coordinate these activities in the context of the petitioner's small retail operation. Similarly, the 
petitioner provided no examples of policies or objectives the beneficiary would establish, despite the 
fact that the terms policies and objectives were repeated continuously throughout the initial job 
description. In fact, the AAO fails to see how these cited responsibilities, which would allegedly 
consume 80% of the beneficiary's time, fit with the nature of the petitioner's business, which 
involves the operation of a retail outlet with no more than three employees at the time the Form I- 
140 was filed. 
In light of the petitioner's overall failure to identify a specific function or to specify the beneficiary's 
daily tasks, there is no way to gauge the proportion of the beneficiary's job duties that would be 
attributed to managing the function. Therefore, the petitioner has failed to establish that the 
beneficiary would be employed as a function manager. 
In summary, the record lacks two of the essential components that would allow the AAO to 
determine whether the beneficiary would be employed in a qualifying capacity. First, the petitioner 
has failed to comply with the provisions of 8 C.F.R. fj 204.56)(5), which require a detailed 
description of the duties to be performed under an approved petition. Second, the petitioner has 
failed to establish whom it employed at the time of filing the Form 1-140 such that USCIS can make 
a reasonable conclusion as to whether or not the petitioner has the staffing capability to relieve the 
beneficiary from having to primarily perform non-qualifying tasks. As such, the AAO has no basis 
upon which to withdraw the director's sound decision. 
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. tj 204.56)(3)(i)(A) 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 filing the Form 1-140. In the instant matter, the director specifically addressed this 
issue in the RFE by instructing the petitioner to provide a detailed analysis accompanied by a 
percentage breakdown of the time that was devoted to each of the beneficiary's specific tasks. 
However, the petitioner failed to provide the requested information. Although the petitioner 
provided a list of general job responsibilities in its initial support letter dated February 22, 2007, this 
information was properly deemed insufficient to make a determination as to the beneficiary's 
qualifying employment. Despite counsel's attempt to rectify this deficiency in the response to the 
WE, counsel failed to provide a specific breakdown of the tasks and the percentage of time that was 
devoted to each task. Therefore, the record lacks sufficient information to warrant the conclusion 
that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. tj 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. Again, the WE instructed the petitioner to 
provide evidence showing common ownership and control for the U.S. petitioner and the 
beneficiary's foreign employer. Although the petitioner had previously submitted evidence of its 
own ownership, the foreign entity's ownership was only discussed, without any supporting evidence 
to corroborate the claims that were made. Despite the fact that this issue was specifically addressed 
in the WE, counsel ignored the request and merely reaffirmed the petitioner's claim. However, 
going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Cornrn. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 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). Therefore, the petitioner has failed to establish that it has a 
qualifying relationship with the beneficiary's foreign employer as claimed. 
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), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
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. tj 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.