dismissed EB-1C Case: Business Management

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rrn. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
(tT 092007Date:Office: VERMONT SERVICE CENTER
identifyingdatadeletedto
preventclearlyunwarraatal
invasionofpersonalpriV8CJ
PUBLICCOpy
EAC 05 245 52642
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. § 1153(b)(1)(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.
~ef
Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The preference visa petition was denied by the Director, Vennont Service Center. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner was incorporated in the Commonwealth of Virginia and seeks to employ the beneficiary as its
director and chief executive officer. 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. § l153(b)(1)(C), as a multinational executive or manager. The director detennined that the
beneficiary would not be employed in a managerial or executive capacity by the U.S. petitioner and denied
the Fonn 1-140.
On appeal, counsel disputes the director's conclusions and submits a brief in support of his 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 finn or
corporation or other legal entity or an affiliate or subsidiary thereof and who
seeks to enter the United States in order to continue to render services to the
same employer or to a subsidiary or affiliate thereof in a capacity that is
managerial or executive.
The language of the statute is specific in limiting this provision to only those executives and managers who
have previously worked for a finn, corporation or other legal entity, or an affiliate or subsidiary of that entity,
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary.
A United States employer may file a petition on 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 fonn 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 perfonned by the alien.
The primary issue in this proceeding is whether the beneficiary would be employed in a capacity that is
managerial or executive.
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 m 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 IOl(a)(44)(B) of the Act, 8 V.S.c. § llOl(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 August 29,2005 in which the petitioner
stated that the beneficiary's position in the United States would involve managing and overseeing all business
activities including personnel, finances, contracts and tax planning. No further information was provided.
Accordingly, on May 26, 2006, the director issued a request for additional evidence (RFE) instructing the
petitioner to provide further information and documentation to assist Citizenship and Immigration Services
(CIS) in determining the beneficiary's employment capacity in the proposed position in the United States.
Namely, the petitioner was asked to provide a list of the beneficiary's specific job duties accompanied by a
breakdown of the number of hours that would be assigned to each duty. The petitioner was also instructed to
provide its latest quarterly tax return and to discuss who is operating its business, how many individuals it
employs, the duties performed by each employee, and the educational requirements for each position within
the petitioner's business.
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In response, the petitioner submitted a letter dated May 19, 2006 stating that the beneficiary "continues to
serve [the petitioner] in an executive managerial capacity." The petitioner also stated that the beneficiary's
responsibilities include "identifying, negotiating and executing business purchase contracts, new leases,
equipment purchase and export, financial oversight, taxes, accounting and legal affairs." The petitioner
claimed that the daily operational tasks are performed primarily by other employees whom the beneficiary
oversees. While instructed to provide a list of duties and their respective hourly allotments, the petitioner
instead provided the following percentage breakdown of the beneficiary's general job responsibilities:
Directs~ manages and oversees all existing business of [the petitioner] (30%-40%), including
personnel hiring, finances and taxes. Also negotiates and transacts export opportunities of
printing press machines (10%); and examines, negotiates and executes new business
acquisition and expansion opportunities (40%). Also[, the beneficiary] performs advertising
and marketing activities, and coordinates legal affairs (10%-20%).
In ~ decision dated August 21, 2006, the director denied the petition noting that the petitioner's staffing
composition and its description of the beneficiary's proposed employment fail to establish that the petitioner is
able to employ the beneficiary in a managerial or executive capacity. The director discussed the seemingly
overlapping tasks performed by the store's senior associate and the general manager. The director concluded
that the petitioner failed to specify which of the beneficiary's duties would entitle him to classification as a
multinational manager or executive.
On appeal, counsel contends that the beneficiary would maintain "absolute managerial oversight of all
personnel" as well as all business-related matters, including all contract execution and allocation of funds.
However, establishing that the beneficiary has a high degree of discretionary authority is only one of several
components that are necessary in order to meet the statutory definition of a managerial or executive capacity
position. See sections 101(a)(44)(A) and (B) of the Act, respectively. It is foreseeable for a beneficiary
operating within certain business settings to oversee business operations and to actually perform the necessary
operational tasks on a daily basis .. However, 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). Therefore, in examining the executive or managerial capacity of the
beneficiary, CIS will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5).
CIS is justified in placing high value on the description of a beneficiary's proposed duties, 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).
In the present matter, the petitioner failed to comply with the director's explicit instructions that the
beneficiary's specific job duties and their respective time breakdowns be provided to explain what duties the
beneficiary actually performs on a daily basis and which of those duties consume the primary portion of his
time. For instance, the petitioner allotted 30-40% of the beneficiary's time to directing, managing, and
overseeing the business. While these overly broad responsibilities suggest that the beneficiary is in charge of
the petitioner's business operations, they provide no insight as to the specific tasks the beneficiary performs or
the means by which he meets these responsibilities. Specifics are clearly an important indication of whether a
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would
simply be a matter of reiterating the regulations. Id. Alternately, while the petitioner more specifically stated
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that the beneficiary negotiates export opportunities, seeks out and negotiates new business ventures, and
performs marketing and advertising duties, these job duties, which cumulatively comprise at least 60% of the
beneficiary's time, cannot be deemed managerial or executive, but rather are examples of the types of daily
operational tasks that a bona fide multinational manager or executive would not primarily perform.
The petitioner's claim that its support staff relieves the beneficiary from having to primarily perform non­
qualifying tasks is not persuasive. First, as discussed above, the petitioner has provided a job description that
attributes mostly non-qualifying tasks to the beneficiary's position. Second, the petitioner has failed to
'provide sufficient evidence to establish that the five employees identified in the response to the RFE were
actually employed at the time the Form 1-140 was filed. Although the director did not specifically instruct the
petitioner to provide its quarterly tax return for the third quarter of 2005 during which the Form 1-140 was
filed, precedent case law has determined that the petitioner must establish eligibility at the time of filing; 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). In the present matter, the petitioner
claimed four employees in Part 5, Item 2 of its Form 1-140 and identified a total of five employees in the
response to the RFE. However, the petitioner's quarterly tax return for the third quarter of 2005, which
counsel has provided on appeal, indicates that the petitioner had only three employees during the relevant
time period surrounding the filing of the Form 1-140. Furthermore, the petitioner has provided no evidence to
establish which of the cited positions were actually filled during the relevant time period. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972». Although the petitioner submitted its corporate tax return
for 2005 showing that salaries and wages were paid, this document does not establish which employees were
employed by the petitioner's organization as of September 2005, nor does it allow the AAO to verify whether
such employees were working the number of hours claimed by the petitioner.
The fact that counsel asserts that the petitioner was adequately staffed with employees to handle the daily
operational tasks is not sufficient, as the unsupported assertions of counsel do not constitute evidence. Matter
ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). While the AAO considers the size of the petitioner's
support staff with the understanding that this factor ought not be the sole basis for adverse findings, in
reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that
CIS "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 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.c.
Cir. 1991); Fedin Bros. Co. v. Sava, 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). In the present matter, the petitioner has failed to provide
documentation establishing just whom it employed during the relevant time period.
Accordingly, pursuant to a thorough review of both the relevant information regarding the beneficiary's
proposed job duties and the evidence provided to determine the petitioner's available support staff at the time
the Form 1-140was filed, the AAO cannot conclude that the petitioner was able to employ the beneficiary in a
managerial or executive capacity such that the primary portion of his time would be consumed with
qualifying managerial or executive duties. For this reason, the petition may not be approved.
, .
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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 only
information addressing the beneficiary's duties abroad is found in a letter dated August 5, 2003 in which the
foreign entity's managing director stated, "[The beneficiary's] responsibilities [abroad] include[d] managing
the production, marketing, sales and all financial dealings." Based on this brief and vague description, the
AAO cannot determine the nature of the duties the beneficiary primarily performed on a daily basis.
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. In the present matter, the petitioner claimed to be a
subsidiary of Kalinga Offset Pvt., Ltd. In support of this claim, the petitioner provided two stock certificates.
Stock certificate no. 1 shows the foreign entity as owner of 5,100 out ofa possible 10,000 shares of stock;
stock certificate no. 2 identifies the beneficiary and his wife as the joint owners of the remaining 4,900 shares.
However, Schedule K of the petitioner's corporate tax return for 2005 indicates that the beneficiary and his
wife each own 50% of the petitioner's stock. The tax return does not cite- Pvt., Ltd. as one of
the petitioner's shareholders. 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 ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988). The AAO notes that the inconsistency cited above has neither been
acknowledged nor resolved by the petitioner.
Additionally, the AAO notes the petitioner's submission of U.S. Income Tax Returns for an S Corporation
(Form 1120S). To qualify as a subchapter S corporation, a corporation's shareholders must be individuals,
estates, certain trusts, or certain tax-exempt organizations, and the corporation may not have any foreign
corporate shareholders. See Internal Revenue Code, § 1361(b)(1999). A corporation is not eligible to elect S
corporation status if a foreign corporation owns it in any part. Accordingly, since the petitioner would not be
eligible to elect S-corporation status with a foreign parent corporation, it appears that the U.S. entity is owned
by one or more individuals residing within the United States rather than by a foreign entity or, alternately, by
foreign individuals. This conflicting information has not been resolved and, as such, it cannot be found that a
qualifying relationship exists between the petitioner and the beneficiary's foreign employer.
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 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, affd, 345 F.3d 683.
, .
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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 V.S.c. § 1361. The petitioner has not
sustained that burden.
ORDER: The appeal is dismissed.