dismissed EB-1C Case: Business Services

(b)(6)
DATE: DEC 1 2 2014 OFFICE: NEBRA SKA SERVICE CENTER 
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 
FILE: 
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)(l)(C) 
ON BEHALF OF PETITIONER: 
IN STRUCTION S: 
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 law 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 I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://w ww.uscis.gov/forms for the latest information on fee, tiling location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not tile a motion directly with the AAO. 
Ron Roseno 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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 California corporation that claims to operate as a business services provider. It seeks to 
employ the beneficiary in the United States as its 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, concluding that the petitioner failed to establish that the beneficiary would be 
employed in the United States or that he was employed abroad in a qualifying managerial or executive 
capacity. 
I. TheLaw 
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 I-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. 
Section 10l(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 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 m 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. 
II. Procedural History 
The record shows that the petition was filed on July 9, 2013 and was accompanied, in part, by a supporting 
statement, dated June 24, 2013, signed by the beneficiary in his capacity as the petitioner's president. The 
beneficiary explained that while the petitioner was originally established for the development of oil and gas 
production, this project was deemed to be unprofitable and caused the petitioner to redirect its focus to 
providing "supporting services to other businesses," including call center services, marketing services, 
merchant services, and data processing and software development services. The supporting statement also 
included a description of the beneficiary's proposed position with the U. S. entity as well as the position the 
beneficiary formerly held during his employment with the petitioning entity. With regard to the former 
employment, the beneficiary stated that he directed the company's investment budget, developed new clients, 
and "analyzed, planned, and implemented operations to maximize returns on investments." The petitioner 
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also provided a description of the beneficiary's proposed employment, which the director included in the 
denial. As such, we need not restate this information in our current discussion. The petitioner provided other 
supporting evidence including corporate documents, tax returns, a printout out of the petitioner's information 
sheet describing the services it provides and the companies it subcontracts to provide the services, 
photographs of the petitioner's office space, and documents pertaining to the foreign entity. 
On January 16, 2014, the director issued a request for evidence (RFE), informing the petitioner that the record 
lacked sufficient evidence to establish that the beneficiary was employed abroad and would be employed in 
the United States in a managerial or executive capacity. The director instructed the petitioner to list the 
beneficiary's specific tasks with each entity and assign time constraints to individual tasks within the 
respective entities. The director also asked the petitioner to describe both entities' products and services and 
to include the administrative tasks necessary to produce the products or provide the services along with an 
explanation of who performs such operational tasks. Lastly, the director asked the petitioner to provide a 
payroll summary for the beneficiary and his subordinates as well as organizational charts corresponding with 
the beneficiary's foreign and U. S. employment, showing each entity's staffing structure, and listing all of the 
employees and contractors in the beneficiary's immediate division, department, or team. 
The response included a statement from counsel, dated January 31, 2014, who reiterated claims previously 
made with regard to the beneficiary's employment capacity with the foreign and U.S. entities. The petitioner 
also provided a statement from the beneficiary, dated January 24, 2014, which included the beneficiary's U. S. 
job description and job descriptions of the beneficiary's three subordinate employees -
We note that the petitioner did not provide the requested percentage 
breakdown indicating what portion of time the beneficiary would allocate to his assigned job duties. The 
petitioner provided its corresponding organizational chart depicting the beneficiary, his three subordinates, 
and the companies each individual is said to manage at the bottom tier of the hierarchy. With regard to the 
beneficiary's employment abroad, the petitioner provided a job description from the foreign entity's current 
director, who listed the beneficiary's former duties and responsibilities and indicated what percentage of time 
the beneficiary allocated to his assigned duties. The job description was accompanied by an organizational 
chart, which depicted the beneficiary at the top of an organization and four positions -one CFO, one financial 
analyst, one individual listed as "legal department," and one position titled "Business Marketing Relationship 
-all directly subordinate to the beneficiary. The petitioner also provided various business and tax documents, 
bank statements, and the beneficiary's travel itinerary. 
In a decision dated Marc� 3, 2014, the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary was employed abroad and would be employed in the United States in a 
qualifying managerial or executive capacity. The director found that the job descriptions offered with regard 
to the beneficiary's former and proposed positions were vague and of limited evidentiary value. The director 
also found that the record lacks sufficient evidence to establish that either of the beneficiary's employers have 
the staff necessary to allow the beneficiary to focus his time to performing primarily executive tasks. 
On appeal, counsel disputes the director's decision with regard to the beneficiary's proposed employment, 
contending that the petitioner "ignored factual evidence" and erroneously required the petitioner to establish 
that the beneficiary's proposed employment would be both in a managerial and an executive capacity. 
Counsel neither disputed nor addressed the director's conclusion with regard to the beneficiary's employment 
abroad. As a result of having failed· to address the beneficiary's employment abroad, we find that the 
petitioner effectively conceded to the conclusion as it specifically pertains to the beneficiary's former 
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employment and the petition must be denied based on the petitioner's failure to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity. We find that no further discussion of 
the beneficiary's employment abroad is necessary. Accordingly, the decision below will address the director's 
findings and counsel's assertions with regard to the beneficiary's proposed position with the petitioning entity. 
Upon review, and for the reasons stated below, we find that the petitioner has failed to establish that the 
beneficiary would be employed in a primarily managerial or an executive capacity. 
ill. Issue on Appeal 
As indicated above, the primary issue to be addressed below is whether the beneficiary's proposed 
employment with the U.S. entity would be within a qualifying managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the totality of 
the record, starting first with the description of the beneficiary's proposed job duties in his prospective 
position with the petitioning entity. See 8 C.F.R. § 204.50)(5). Published case law has determined that the 
duties themselves will reveal the true nature of the beneficiary's 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). We then consider the 
beneficiary's job description within the context of the petitioner's organizational structure, the duties of the 
beneficiary's subordinate employees, the presence of other employees who are available to relieve the 
beneficiary from having to primarily perform operational duties, the nature of the petitioner's business, and 
any other factors that may contribute to a comprehensive understanding of the beneficiary's actual duties and 
role within the petitioning entity. 
Turning to the job description provided in the beneficiary's January 24, 2014 statement, the beneficiary 
claimed that he does not have a fixed schedule and declined to provide the requested time allocations 
indicating what portion of his time he planned to spend performing each of his assigned tasks. As such, the 
job description provided fails to comply with the director's express RFE instructions and precludes us from 
gaining an understanding of highly relevant information about the proposed employment. Further, the 
beneficiary's job description does not clarify how meeting with the company's three employees allows the 
beneficiary to successfully direct the petitioner's "financial and budget activities," maximize investments, and 
improve the petitioner's efficiency, all of which the beneficiary listed among his assigned job duties. The 
beneficiary did not explain what issues would be addressed during meetings with his subordinates or how 
such information would impact the beneficiary's ability to direct budgets, maximize investments, and increase 
company efficiency. 
The beneficiary went on to state that he is responsible for analyzing company operations for the purpose of 
determining how to reduce costs, improve programs, or change company policies. The petitioner failed to 
clarify how performing such analysis would entail tasks and objectives that are different from those carried 
out and attained in the course of directing the company's budgets and finances. The beneficiary's claim that 
he is responsible for finding new ways to market the petitioner's products and services is both general and 
confusing when considered in light of the petitioner's overall business purpose, which the petitioner claimed is 
to hire companies to provide services addressing the specific needs of the petitioner's clients. First, it is 
unclear how marketing the petitioner's services can be deemed as a qualifying managerial-or executive level 
task. Second, the beneficiary's reference to the provision of products is inconsistent with the claim that the 
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petitioner is a provider of services. In fact, the petitioner did not specify which products it sells or provide 
any evidence to support this seemingly inconsistent claim. 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). 
Next, the petitioner claimed that the beneficiary would direct, plan, and implement policies and objectives in 
an effort to maximize returns on investments and increase productivity. However, this statement conveys no 
meaningful information about the beneficiary's specific tasks and primarily restates aspects of the statutory 
definition of executive capacity. See section 101(a)(44)(B)(ii) of the Act. Similarly, the petitioner vaguely 
stated that the beneficiary would direct activities concerning pricing, sales, and expansion of services, thus 
failing to explain what actual tasks he would perform. In other words, by broadly stating that the beneficiary 
would "direct" various activities, the petitioner failed to define the beneficiary's actual contributions with 
respect to the petitioner's pricing, sales, and expansion. Likewise, while the petitioner claimed that the 
beneficiary would "direct" investigations concerning customer complaints, the petitioner did not specify who, 
if not the beneficiary, would actually address and resolve those complaints. In other words, the petitioner did 
not establish that someone other than the beneficiary would carry out the underlying operational tasks of 
addressing customer complaints. In addition, the claim that the beneficiary would negotiate and approve 
contracts or agreements with contactors, distributors, or other entities is also vague, as it fails to convey 
substantive information as to the specific contractors and distributors the beneficiary deals with or the nature 
of the contracts and agreements he negotiates in the course of the petitioner's business. 
Although the beneficiary also indicated that he would be responsible for preparing budgets to be reviewed by 
financial advisers, the petitioner did not include a financial adviser position in its organizational hierarchy or 
provide any evidence to establish its use of financial advisers. 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 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
Further, the petitioner provided several questionable documents to support the claim that the beneficiary 
assesses the petitioner's investment opportunities. Namely, the petitioner provided several weekly 
assessments regarding potential investments on the letterhead of " All three assessments 
listed the beneficiary as the client contact on behalf of the petitioner and contained the name 
indicating that he was the individual who wrote the reports. Given that is listed on the 
petitioner's organizational chart as one of its three managers and was included in the petitioner's quarterly 
wager reports as one of its employees, it is unclear why his name appears on the assessments as the writer of 
all three reports, which indicates that he is in fact an employee of In addition, close 
review of the January 5, 2014 and January 14, 2014 reports shows printing abnormalities at the bottom left 
comer, where the company's name and address are printed, thus giving rise to question the validity of the 
reports and the information they contain. Supporting case law states that when doubt is cast on any aspect of 
the petitioner's proof, such doubt may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. /d. at 591. 
On appeal, counsel cites supporting case law, indicating that the governing standard of proof in this 
immigration proceeding is the preponderance of the evidence rather than the clear and convincing standard, as 
indicated in the director's decision. We find that counsel properly pointed out that the director's reference to 
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the clear and convincing standard of proof was incorrect. As supported by relevant case law, the applicable 
standard in this proceeding is the preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369, 
376 (AAO 2010). As such, the director's reference to an incorrect standard of proof is hereby withdrawn. 
Notwithstanding the director's erroneous reference, the previously described deficiencies pertaining to the 
beneficiary's deficient job description and the petitioner's submission of deficient supporting documents 
strongly indicate that the record supports the director's decision. Further, counsel erroneously references 
8 C.F.R. § 204.1(h) to support the assertion that the service provides the petitioner with an explanation of any 
evidentiary deficiencies and a request for additional evidence is incorrect. First, the referenced section does 
not exist in Title 8, Code of Federal Regulations. Second, the provisions that govern the issuance of notices 
of derogatory information and requests for additional evidence are found at 8 C.F.R. § 103.2(b)(8) and they 
do not require that the director issue any notice prior to the final notice of denial. Thus, counsel's implication 
that the director's decision is not "fair and reasonable" because it was not preceded by a notice of intent to 
deny is not supported by law or regulation. Moreover, as discussed above, the record shows that the director 
issued an RFE on January 16, 2014 and expressly notified the petitioner that the "evidence submitted is not 
sufficient." The director then proceeded to delineate the type of evidence the petitioner should submit in 
order to properly supplement the record with the information that is necessary to determine whether the 
petitioner meets the eligibility criteria. In light of these facts, it is unclear what error counsel claims the 
director committed. 
Lastly, counsel's citation of unpublished AAO cases in support of the appeal is not persuasive. While 
8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all US CI S employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
In summary, the record shows that the petitioner submitted potentially altered documents with questionable 
probative value to support one of its claims. This considerable deficiency leads us to doubt the reliability of 
the beneficiary's supporting statements and other supporting evidence submitted. Accordingly, based on 
deficiencies pertaining to the petitioner's credibility and in light of the petitioner's submission of deficient 
evidence pertaining to the beneficiary's employment with the foreign and U. S. entities, we find that the 
petitioner failed to establish that the beneficiary was employed abroad and would be employed in the United 
States in a qualifying managerial or executive capacity. 
IV. Beyond the Director's Decision 
In addition, while not previously addressed in the director's decision, the record indicates that the petitioner 
failed to provide evidence to establish that it has been and continues to do business on a regular, systematic, 
and continuous basis. See 8 C.F.R. § 204.50)(2). Despite statements on record indicating that the petitioner 
changed business direction and is currently operating as a service provider, the petitioner did not provide evidence 
to establish its business associations with clients or the entities that the petitioner has allegedly contracted to 
provide various business services to its clients. As previously indicated, the petitioner must provide documentary 
evidence in order to support its assertions. See Matter of Soffici, 22 I&N Dec. at 165. 
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), ajfd, 345 F.3d 683 
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(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
V. 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.