dismissed EB-1C Case: Car Care Services

U.5. Department of IIomeland Security 
20 Mass Ave , N W , Rm 3000 
Wash~ngton, DC 20529 
PUBLIC copy 
identifying data deleted to 
prevent dearly unwarranted 
invasion of personal privacy 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: FLORIDA SERVICE CENTERDate: 0 1 2007 
SRC 06 110 52599 
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. 8 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. 
Robe 
Administrative Appeals Office 
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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 Florida corporation claiming to be operating as a multi-facility car-care service provider. It 
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)(l)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner failed to establish that the beneficiary would be employed in a managerial or 
executive capacity and denied the petition. 
On appeal, counsel disputes the director's conclusions 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 subpartigraphs (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 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 beneficiary would be employed by the U.S. petitioner 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 in which the 
employee primarily-- 
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Page 3 
(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)(~) of the Act, 8 U.S.C. 3 1101(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 15, 2006, which included the 
following percentage breakdown with regard to the beneficiary's proposed position: 
Oversee and direct both operations. (30%) 
Budget and finance. (10%) 
Establish and implement goals and policies. (5%) 
Ensure compliance with all government occupational safety and health regulations. (2.5%) 
Quality assessment/assurance. Ensure customer satisfaction. (7.5%) 
Page 4 
Supervise managerial staff. (20%) 
Hirelfire managerial staff. (2.5%) 
Approveldisapprove hiringlfiring of non-managerial staff. (2.5%) 
Oversee banking deposits and payments made by [the] [alssistant [gleneral [mlanager. 
(5 %) 
Approveldisapprove contracts with vendors, repairmen, and suppliers. (2.5%) 
Conduct daily inspections of both business premises. Discuss discrepancies with [the] 
[alssistant [gleneral [mlanager as necessary. (5%) 
Approveldisapprove the ordering of materials andfor equipment by [the] [alssistant 
[gleneral [mlanager. (2.5%) 
Report tolmaintain contact with [the] foreign company. (5%). 
The petitioner also stated that there are nine managers and employees and three subcontractors under the 
beneficiary's direction for a total of twelve employees. The petitioner provided an organizational chart to 
illustrate its internal staffing hierarchy. The chart shows the beneficiary at the top of the hierarchy with the 
assistant general managerlstaff supervisor as his direct subordinate. The general manager's subordinates 
include a functional manager of marketing services at retail gold sales, an administrative managerlhead stylist 
of one beauty salon, and a head stylist of another beauty salon. No subordinates were identified in association 
with the functional manager. 
On June 30, 2006, the director issued a request for additional evidence (WE) instructing the petitioner to 
provide, in part, a dated and signed statement fiom the petitioner describing the beneficiary's proposed duties 
' 
in greater detail specifying the duties and functions the beneficiary would be expected to perform. 
In response, the petitioner provided a letter fiom counsel dated September 15, 2006. ~es~ite' the RFE's 
indication that the prior submission did not contain all of the necessary information, counsel merely repeated 
the percentage breakdown that was previously provided in support of the Form 1-140. Counsel further stated 
that the beneficiary is not a licensed beautician and, therefore, he does not perform any services offered by the 
salons he operates or deal directly with any of the salon customers. Counsel claimed that the beneficiary 
oversees. and directs the operations of three businesses. An organizational chart similar to the one previously 
provided was submitted to show the changes that have occurred since the filing of the Form 1-140. The chart 
shows that one of the petitioner's businesses was replaced with another. The two beauty salons remain active. 
The petitioner also provided copies of the W-2 statements issued to six employees in 2005 as well as the 
corresponding W-3 statement to show the total amount of wages paid. 
On December 14, 2006, the director denied the petition concluding that eligibility had not been established. 
First, the director commented on the differences between the organizational chart initially submitted and the 
one provided in response to the RFE. The MO notes that the director specifically indicated in the RFE that 
the petitioner must submit information reflecting the current staffing level, thus implying that the requested 
Page 5 
information need not address the staffing at the time the Form 1-140 was filed. As such, the director's 
suggestion that the differences between the two organizational charts are equivalent to some sort of 
impropriety is erroneous and is hereby withdrawn. That being said, a 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 ofklatigbak, 14 I&N Dec. 45, 49 (Cornrn. 1971). Thus, while 
information about the petitioner's current staffing is relevant with regard to the issue of the petitioner's 
continued eligibility, it does not address the issue of whether the petitioner established eligibility in the first 
place, as this can only be done by reviewing the staffing levels that existed at the time the Form 1-140 was 
filed. 
Next, the director reviewed the information provided with regard to,the beneficiary's proposed responsibilities 
and cited 8 C.F.R. § 204.5Cj)(3)(i), which states, in part, that the Form 1-140 must be accompanied by a 
statement from an authorized official of the U.S. petitioner, which establishes the beneficiary's qualifying 
duties abroad, the petitioner's qualifying relationship with the beneficiary's foreign employer, and the 
petitioner's business activity prior to filing the Form 1-140.' The director noted that the petitioner's 
submission of a statement from counsel suggests a failure to comply with the cited regulation as well as with 
the RFE's specific instruction that the statement addressing the beneficiary's proposed duties must be signed 
by the petitioner. While the AAO agrees that the petitioner failed to follow the director's instructions as laid 
out in the WE, the suggestion that the petitioner has also failed to comply with the cited regulation is 
erroneous, as 8 C.F.R. 5 204.56)(3)(i) only specifies the manner of submission of evidence that is initially 
(presented with the Form 1-140; it does not address a petitioner's response to an ~FE or make any reference to 
a specific manner in which a petitioner's response to an RFE must be ~ubmitted.~ 
Notwithstanding the director's incorrect or incomplete citation, the director properly concluded that the 
petitioner did not comply with the RFE, which specifically noted that the description of duties previously 
submitted was not sufficient and that a more detailed description of duties was therefore necessary. As 
previously noted in this decision, instead of expanding on the job description initially provided by the 
petitioner, counsel restated, verbatim, the percentage breakdown without providing further information to 
convey a comprehensive understanding of what job duties the beneficiary would perform on a daily basis. 
See 8 C.F.R. 5 204.56)(5). The actual duties themselves reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989); afd, 905 F.2d 41 (2d. Cir. 1990). In the 
present matter, the description of duties provided by the petitioner lacks the information that is necessary in 
order to make an accurate determination as to the beneficiary's employment capacity. More specifically, the 
petitioner has stated that 30% of the beneficiary's time would be allotted to overseeing and directing "both 
operations." With regard to that statement, first, it is unclear what the petitioner means by "both," as the 
organizational charts provided in support of the Form 1-140 and in response to the RFE show that the 
1 
 Although the director generally cited 8 C.F.R. 8 204.56)(3), she only referenced a cited section fiom 8 C.F.R. 
5 204.5U)(3)(i) and, thus, it is fairly clear that she was only referring to the subsection and not to section 8 C.F.R. 
 i 
(j 204.50)(3) as a whole. 
Regardless, the AAO notes that an authorized representative, which may be the petitioner's attorney or some other 
individual representing the petitioner in this immigration matter, is separate and distinct from the petitioner's authorized 
official. It is clear that the director's intent here is to ensure that the description of the beneficiary's proposed job duties 
is generated by the petitioner itself, rather than by counsel, whose representation of the petitioner is limited to specific 
subject matter. As such, the director's right to request this relevant evidence and to specify its source was permitted by 
8 C.F.R. (j 204.50)(3)(ii). 
Page 6 
petitioner consists of three different business operations. 
 Second, no specific duties are associated with 
overseeing and directing the petitioner's business operations. Similarly, while the petitioner allotted another 
10% of the beneficiary's time to budget and finance and 20% to supervising managerial staff (for a total of 
30%), the petitioner did not identify any specific duties to explain the means by which the beneficiary meets 
these responsibilities within the context of the petitioner's business operations. Rather, these responsibilities, 
which together would comprise approximately 60% of the beneficiary's time, are so general that they may be 
applied to any number of positions within any given business setting. 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. 
On appeal, counsel focuses on the petitioner's organizational hierarchy, which she says is comprised of 13 
managers and employees distributed among three different business operations. However, an entity's 
organizational hierarchy by itself can neither render the petitioner ineligible nor can it establish the 
petitioner's eligibility to classify the beneficiary as a multinational manager or executive. See section 
101(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C). Rather, the question of the petitioner's eligibility, or 
lack thereof, rests in large part on a thorough analysis of the beneficiary's proposed job duties. See 8.C.F.R. $ 
204.5Cj)(5). In the instant matter, counsel does not address this deficiency in her appellate brief. As such, the 
AAO cannot affirmatively conclude that the beneficiary would primarily perform managerial or executive 
duties. 
Furthermore, with regard to claims concerning the petitioner's organizational hierarchy, 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 (Comm. 1998) (citing Matter:of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 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). Although the petitioner 
, 
 provided a-number of W-2 wage and tax statements for 2005, similar documentation was not provided for the 
2006 tax year during which the Form 1-140 was filed. As stated previously, eligibility must be established as 
of the date the petition is filed, which in the present matter took place on February 21, 2006. See Matter of 
. 
 Katigbak, 14 I&N Dec. at 49. The record currently lacks documentation establishing whom the petitioner 
employed during the relevant time period. Therefore, not only has the petitioner provided a job description 
that fails to identify the primary portion of the beneficiary's tasks with the requisite amount of specificity, but 
the petitioner has also failed to provide sufficient corroborating evidence to support the staffing hierarchy 
illustrated in the organizational chart submitted in support of the, Form 1-140. As such, it also cannot be 
determined whether the beneficiary would be adequately relieved from having to primarily perform the non- 
qualifying, operational duties necessary for the petitioner's operations. 
Accordingly, based on the evidence furnished, it cannot be found that the beneficiary would be employed 
primarily in a qualifying managerial or executive capacity. For this reason, the petition may not be approved. 
With regard to the adverse findings based on the name change of the foreign entity, counsel properly points 
out on appeal and the record supports her assertions that the RFE clearly instructed the petitioner to submit 
the foreign entity's organizational chart as it existed at the time the ,Form 1-140 was filed. Given that the 
foreign entity's name change had not yet occurred at that time, the director's comment suggesting impropriety 
on the part of the petitioner in that regard is without proper basis and is hereby withdrawn. 
Page 7 
>, 
Notwithstanding the director's comment, however, 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. 8 204.56)(3)(i)(C) states that the petitioner must establish that it has a qualifying relationship 
with the beneficiary's foreign employer. The petitioner's claim that it is 51% owned by the foreign entity is 
inconsistent with Schedule K of the petitioner's 2005 tax return. Specifically, in Schedule K, line 5, the 
petitioner indicated that no one had an ownership interest of more than 50%, while in line 7, the petitioner 
indicated that 100% of its ownership interests belong to a foreign person. Although an attachment was 
provided, the section of the attachments that pertained to Schedule K and that could have identified the 
petitioner's owners was left blank. These inconsistent findings are furthered by the fact that Schedule L has 
.no value listed for the amount of outstanding stock that has been sold. 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). 
Second, 8 C.F.R. 8 204.56)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 8 204.56)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods and/or services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." Despite the petitioner's 
claim that it operates two beauty salons and a third retail operation, the record lacks documentation to establish 
that the petitioner was either involved in on-going business transactions during the one-year period prior to filing 
the Form 1-140 or that it currently engages in business transactions. Merely submitting evidence to show that the 
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 petitioner has met the licensing requirements that would allow it to do business does not establish that the 
petitioner has and continues to engage in "the regular, systematic, and continuous provision of goods and/or 
services." 8 C.F.R. $ 204.56)(2). As previously stated, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. at 165. 
An application or petition that fails to comply with the technical requii-ements 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. 8 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.