dismissed EB-1C Case: Business Management

(b)(6)
DATE: OFFICE: TEXAS SERVICE CENTER 
JUN 1 6 2014 
INRE: Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S . Citi zenship and Immigrati on Services 
Admini strative Appeals Offic e (AAO) 
20 Massachusetts Ave. N.W ., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigr ant 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)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current Jaw or policy to 
your case or if you seek to present new facts for consideration , you may file a motion to reconsider or a 
motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form l-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenbe 
Chief, Administra · 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
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 /general manager. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant purs uant 
to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act) , 8 U.S.C. § 1153(b)(1)(C) , as a 
multinational executive or manager. 
I. The Law 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C) : 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render service s to the 
same empl oyer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statut e is specific in limiting this provision to only thos e e xecutives and manager s who 
have previously worked for a firm, corporation or other legal entity, or an affili ate 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 certi fication 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. 
Additionally, section 204(c) of the Act prohibits approvals of immigrant visa petitions under the following 
circumstances: 
Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien 
has previously been accorded, or has sought to be accorded, an immediate relative or 
preference statu s as the spouse of a citizen of the United States or the spouse of an alien 
lawfully admitted for permanent residence, by reason of a marriage det ermined by the 
Attorney Gener al to have been entered into for the purpose of evading the immigration laws 
or (2) the Attorn ey General has determined that the alien has attempted or conspired to enter 
into a marriage for the purpose of evading the immigration laws. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
In correspondence with the above statutory provisions, the regulation at 8 C.F.R . § 204.2(a)(1) states the 
following in pertinent part: 
(ii) Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval of a visa 
petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for 
the purpose of evading the immigration laws. The director will deny a petition for immigrant 
visa classification filed on behalf of any alien for whom there is substantial and probativ e 
evidence of such an attempt or conspiracy, regardless of whether that alien received a benefit 
through the attempt or conspiracy. Although it is not necessary that the alien have been 
convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or 
conspiracy must be cont ained in the alien's file. 
II. Procedural History 
The record shows that the petitioner filed a Form I-140 on October 29, 2012. The petition was accompanied 
by supporting evidence addressing the petitioner's and the beneficiary's eligibility for the immigration benefit 
sought herein. 
On August 13, 2013, the director issued a notice of intent to deny (NOID). The director determined that the 
beneficiary was ineligible for immigration benefits under section 203(b) of the Act based on the provisions 
cited in section 204(c) of the Act and the regulation at 8 C.F.R. § 204.2(a)(1), which have the cumulative 
effect of prohibiting the filing of an I-140 immigrant petition, among others, on behalf of an alien who 
attempted to obtain an immigration benefit by means of entering into a fraudulent marriage. Th e director 
informed the petitioner that the record contains evidence of a statement made by the beneficiary on July 24, 
1990 during an application for a Border Crossing Card, in which the beneficiary admitted to having entered 
into a sham marriage and filed a fraudulent Form I-130, Petition for Alien Rel ative, for the purpose of 
obtaining an immigrant visa. 
Although the director allowed the petitioner the opportunity to explain, rebut, or present information on 
behalf of the beneficiary in order to overcome the adverse finding, the record indicates that the petitioner 
failed to respond to the NOID. Accordingly, in a decision dated Octob er 21, 2013, the director denied the 
petition, concluding that the petitioner failed to provide evidence to establish that the beneficiary is eligible 
for the immigration benefit sought. 
Counsel, on behalf of the petitioner , filed an appeal seeking to overcome the director's decision. 
III. Issue on Appeal 
The primary issue in this proceeding is whether the petitioner established that the beneficiary is eligible for 
the immigration benefit sought herein, despite the petitioner's failure to respond to the NOID , which cited a 
valid basis for finding inelig ibility . Failure to submit requested evidence that preclude s a materia l line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b )(14 ). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
As previously indicated, the record contains evidence that the beneficiary admitted to having entered into a 
fraudulent marriage for the purpose of obtaining an immigration benefit. When informed of the derogatory 
evidence through the issuance of a NOID, the petitioner failed to respond and now, with the assistance of 
counsel, submits an appellate brief disputing the very ground for denial that was previously cited. 
Where, as here, a petitioner has been put on. notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
app eal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered , it should have submitted 
the documents in response to the director's request for evidence. !d. Under the circumstances, the AAO need 
not and does not consider the sufficiency of the evidence submitted on appeal. Consequently, the appeal will 
be dismissed. 
Additionally, even if the petitioner had been able to overcome the derogatory evidence regarding the 
beneficiary's fraudulent marriage, the petitioner's Form I-140 did not merit approval based on merits of the 
supporting evidence, which fails to establish that the petitioner meets the statutory criteria under section 
203(b)(1)(C) of the Act. Namely, the record lacks sufficient evidence to establish that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. The petitioner's supporting evidence 
includes the foreign entity's organizational charts - both current and for 2009 - accompanied by employee 
lists and employee job descriptions, three of which- "perfil gerente de operaciones," "perfil gerente de cuenta 
estibadores," and "gerente de seguridad" -were not accompanied by English language translations and thus 
will not be deemed probative or be accorded any weight in this proceeding. See 8 C.F.R. § 103.2(b )(3) . In 
addition to the lack of a translation for the position titled "perfil gerente de operaciones," the employee -
-was named in the 2009 chart as occupying the position of "GTE De Cuenta" and in 
the current chart this same individual was identified in the position of "Gerente de Trafico." Thus both 
organizational charts are at odds with the information provided in the separate job description where the same 
individual was identified by an entirely different position title. The record also includes a job description, 
along with the corresponding English language translation, for an accountant - a position the petitioner 
indicates was occupied by However, neither the position of accountant nor the 
individual whom the job description indicated as occupying that position was included in the foreign entity's 
current or prior organizational chart. 
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). Furthermore, doubt cast on any aspect of the petitioner's proof may , of course , lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
!d. at 591. Based on the inconsistencies discussed in the above paragraph, we cannot determine the reliability 
of the organizational charts or the remaining job descriptions the petitioner provided with regard to the 
foreign entity and the benefici ary's employment therein. Given that this information is relevant to the overall 
issue of the beneficiary's employment capacity during his employment with the foreign entity, the petitioner's 
submission of inconsistent evidence precludes us from being able to determine whether the beneficiary's 
employment abroad was in a qualifying managerial or executive capacity . 
Next, the regulation at 8 C.F.R. § 204.5G)(2) defines a multinational entity as the qualifying entity, or its 
affiliate, or subsidiary that conducts business in two or more countries, one of which is the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
Although the petitioner 
provided the foreign entity's business documents showing that the latter company was 
doing business in 2007, 2008, and 2009, the petitioner filed the Form 1-140 in October 2012. The record does 
not have any evidence documenting the foreign entity's business activities at or near the time of filing. 
Lastly, the record lacks sufficient evidence to establish that the beneficiary's proposed position with the 
petitioning entity would be within a qualifying managerial or executive capacity. In examining the executive 
or managerial capacity of the beneficiary, USCIS will look first to the petitioner's description of the job 
duties. See 8 C.F.R. § 204.50)(5) . While no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary 
would perform are only incidental to the 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 (Corum. 1988). 
In the matter at hand, the beneficiary's job description indicates that an undefined portion of the beneficiary's 
time would be allocated to non-qualifying tasks, including negotiating with suppliers and clients, making 
presentations to help sell the services offered by the petitioner , preparing schedules and routes , and 
conducting market research. The record does not establish what portion of the beneficiary's time would be 
allocated to these non-qualifying tasks versus tasks that are within a qualifying managerial or executive 
capacity. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Corum. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Corum. 1972)). Without the relevant 
evidence, we cannot conclude that the primary portion of the beneficiary's time would be spent performing 
tasks within a qualifying capacity. 
In light of the various evidentiary deficiencies described above, the record fails to establish that the petitioner 
meets the statutory and regulatory eligibility criteria and the petition would therefore warrant denial based on 
these grounds, even if the petitioner had overcome the derogatory evidence concerning the beneficiary's 
-admission of marriage fraud. 
IV. Conclusion 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.