dismissed EB-1C Case: Car Care Services

identifying ckrta deleted to 
prevent clearly m- 
invasion of e 
U.S. Department of fIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
Date: AUG O 1 2008 
SRC 07 05 1 5 1495 
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 1 153(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. 
Administrative Appeals Office 
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 General Manager. 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. 9 1 153(b)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner failed to establish that it would employ the beneficiary in a managerial or 
executive capacity and denied the petition. 
On appeal, counsel asserts that the petitioner's Form 1-140 contained erroneous information and provides a 
brief disputing the director's conclusion regarding the petitioner's eligibility. 
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 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 performing in a capacity that is 
primarily managerial or executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
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, hnctions 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 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 December 5, 2006, which includes the 
following list of the beneficiary's duties and responsibilities in his position as general manager: 
* 
 Seeking new items at better rates and negotiating payment terms. Analyzing and seeking 
new business ventures and opportunities, projects, costs [sic] analysis, meeting and 
negotiating with new clients. . . . 
Soliciting new business, project costs analysis, reviewing and submitting bids, meeting and 
negotiating terms of agreements and obtaining credit arrangements . . . . 
- - 
Page 4 
Costs [sic] analysis and quality assurance of movies [sic] as well as negotiating payment 
terms and commitment as to approximate delivery schedules with others [sic] 
vendors/suppliers . 
Oversee[ing the] management of the company and the implementation of corporate goals 
and strategies within [the] budget for the attainment of long[-] and short[-]terms [sic] goals. 
Sales opportunity analysis including developing of the sale[s] plan. 
Supervise personnel. [Being i]n charge of hiring, firing and applying disciplinary measures 
as [the] situation arises. Prepare and analyze internal reports. This includes identifying 
time frames for employees' task and preparing times [sic] sheets for the payroll, [and] 
analyzing employee's [sic] performance[.] [The beneficiary] has several years of 
experience as a professional involved in the administration and operational fields, including 
the management of the parent company in Ecuador. 
The petitioner also provided an organizational chart showing the beneficiary as the highest-ranking employee 
within the U.S. and foreign entities. In the U.S. entity, the beneficiary has two subordinate employees, 
including an office manager and a warehouse assistant. The petitioner indicated that it contracts third parties 
to maintain its fish tanks and to provide air freight and customs services. 
On May 22, 2007, the director issued a notice, informing the petitioner that the evidence submitted thus far 
does not establish that the beneficiary's U.S. employment is in a qualifying managerial or executive capacity. 
In response, the petitioner submitted a letter dated June 18, 2007 in which a number of documents were listed 
(and submitted) for the purpose of establishing the beneficiary's managerial or executive role within the U.S. 
entity. The supporting documents establish that the beneficiary has discretionary authority to make binding 
agreements on behalf of the petitioner and to act as the petitioner's representative when dealing with banlong 
institutions, clients, and service providers. It is noted, however, that neither the beneficiary's rank within the 
petitioner's hierarchy nor his heightened degree of discretionary authority is sufficient to establish that his 
prospective employment will be within a qualifying managerial or executive capacity. 
On August 17, 2007, the director denied the petition, finding that the petitioner has not established that it can 
relieve the beneficiary from having to spend the primary portion of his time performing nonqualifying job 
duties. The director specifically noted that the petitioner's Form 1-140 indicates that the petitioner has no 
gross or net income. 
On appeal, counsel asserts that the non-attorney individual who filled out the Form 1-140 provided incorrect 
information about the petitioner's income. Counsel refers to the petitioner's partnership tax returns as proof 
that the information contained in the Form 1-140 is inaccurate. While the additional documentation does 
indicate that the information provided in the Form 1-140 with regard to the petitioner's gross and net income is 
inaccurate, the evidence of record does not corroborate counsel's claim as to the reason for the inaccuracy. 
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). In the present matter, the Form 1-140 is signed and dated by an individual whom the 
petitioner's organizational chart depicts as the office manager. Such signature certifies, under penalty of 
Page 5 
perjury, that the information provided in the Form 1-140 is true and correct. Despite counsel's claim that the 
petitioner was assisted by a third party in filling out the Form 1-140, Part 9 of the petition does not contain the 
signature of an attorney or representative. However, even if the form were to have been completed by 
someone other than an employee of the petitioner, the individual signing on behalf of the petitioner as the 
petitioner's representative is under an obligation to ensure that the information provided is accurate. The fact 
that the petition was signed with the inaccurate information contained therein, suggests that it may contain 
other inaccurate information as well, causing the AAO to question the reliability of the petition as a whole. 
Additionally, counsel asserts that the petitioner's use of independent contractors is built into its business plan. 
Counsel further explains that the beneficiary intended to use contract labor to relieve the petitioner of the cost 
of full-time employees. However, the record does not establish which duties were assigned to independent 
contractors, nor does the record contain documentation to establish the petitioner's use of independent 
contractors. While the AAO acknowledges that the primary concern is determining the beneficiary's 
proposed job duties, in order to determine that the beneficiary will be employed in a qualifying capacity, the 
petitioner must establish that it is able to relieve the beneficiary from having to primarily perform daily 
operational tasks. The lack of specific information regarding the petitioner's use of independent contractors 
precludes the AAO from being able to determine whether the petitioner has the capability to employ the 
beneficiary in a qualifying capacity. 
Lastly, counsel contends that the job description attributed to the beneficiary is indicative of someone who 
handles the planning and growth of the company and while the beneficiary knows of the company's day-to- 
day activities, he is not the one responsible for performing them. Rather, counsel refers to other employees 
and indicates that they are the ones who perform the nonqualifying tasks on a daily basis. However, neither 
the evidence of record nor the beneficiary's job description supports counsel's statements. See supra. In the 
present matter, the petitioner provided a vague description primarily consisting of the beneficiary's job 
responsibilities, rather than the actual tasks the beneficiary would perform on a daily basis. 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. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, a number of the responsibilities indicate that the beneficiary would perform daily operational 
tasks, including seehng new inventory and negotiating payment terms, soliciting new business and 
negotiating contract terms, preparing reports that the beneficiary himself would then analyze, and overseeing 
personnel whom the petitioner has not established as being supervisory, managerial, or professional 
employees. Although counsel refers to an unpublished decision in which the AAO determined that the 
beneficiary met the requirements of serving in a managerial and executive capacity for L-1 classification even 
though he was the sole employee, counsel has furnished no evidence to establish that the facts of the instant 
petition are analogous to those in the unpublished decision. Moreover, while 8 C.F.R. $ 103,3(c) provides 
that AAO precedent decisions are binding on all Citizenship and Immigration Services employees in the 
administration of the Act, unpublished decisions are not similarly binding. ~urthermoie, the referenced 
unpublished decision pertains to L-1 classification and not an offer of permanent employment. 
Despite counsel's assertion that the beneficiary would not be responsible for day-to-day functions, there is 
little evidence that the petitioner has anyone but the beneficiary available to sell its inventory and deal with 
new and prospective clients, all of which are key to generating income. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" 
Page 6 
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). The record in the present matter does not 
establish that the beneficiary would primarily perform duties within a qualifying managerial or executive 
capacity within the meaning of section 101(a)(44) of the Act. For this reason, the petition may not be 
approved. 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not previously addressed in the director's decision. Specifically, 8 C.F.R. tj 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 petitioner provided a very general ove~ew of the 
beneficiary's broad job responsibilities during his employment abroad. The AAO cannot make any 
conclusions as to the beneficiary's past job capacity based on the minimal information provided. The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 
1 108. As such, the petition must be denied for this additional reason. 
Lastly, given the petitioner's description of its business organization and the beneficiary's proposed 
relationship to this business, it appears more likely than not that the beneficiary will not be an "employee" of 
the United States operation. As required by 8 C.F.R. 5 204.5Cj)(3)(C), the petitioner must establish that the 
prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or 
corporation or other legal entity by which the alien was employed overseas. See 8 C.F.R. fj 204.5(j)(2) for 
definitions of affiliate and subsidiary. It is noted that "employer" and "employed" are not specifically defined 
for purposes of the Act even though these terms are used repeatedly in the context of addressing the current 
employment-based immigrant classification. However, section 10 1 (a)(44), 8 U.S.C. 5 1 10 1 (a)(44), defines both 
managerial and executive capacity as an assignment withn an organization in which an "employee" performs 
certain enumerated qualifying duties. 
Furthermore, the Supreme Court of the United States has determined that where a federal statute fails to 
clearly define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." Nationwide 
Mutual Ins. Co. v. Darden, 503 U.S. 3 18, 322-323 (1992) (hereinafter "Darden") (quoting Community for 
Creative Non- Violence v. Reid, 490 U.S. 730 (1989)). That definition is as follows: 
In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which the 
product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the duration 
of the relationship between the parties; whether the hiring party has the right to assign 
additional projects to the hired party; the extent of the hired party's discretion over when and 
how long to work; the method of payment; the hired party's role in hiring and paying 
assistants; whether the work is part of the regular business of the hiring party; whether the 
hiring party is in business; the provision of employee benefits; and the tax treatment of the 
hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 8 22012) (1958); Clackamas 
Page 7 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the common- 
law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the 
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. ofAmerica, 390 U.S. 254, 258 (1 968). 
Within the context of immigrant petitions seehng to classify the beneficiary as a multinational manager or 
executive, when a worker is also a partner, officer, member of a board of directors, or a major shareholder, the 
worker may only be defined as an "employee" if he or she is subject to the organization's "control." See 
Clackamas, 538 U.S. at 449-450; see also New Compliance Manual at fj 2-III(A)(l)(d). Factors to be 
addressed in determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and regulations of the 
individual's work. 
Whether and, if so, to what extent the organization supervises the individual's work. 
Whether the individual reports to someone higher in the organization. 
a 
 Whether and, if so, to what extent the individual is able to influence the organization. 
Whether the parties intended that the individual be an employee, as expressed in written 
agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the beneficiary 
will be an "employee" employed in a managerial or executive capacity. The petitioner is a limited liability 
company, which is ultimately owned and controlled by the beneficiary, who purports to assume a role as the 
petitioner's principal. There is no evidence that any other individual has an ownership interest or is in a 
position to exercise any control over the work to be performed by the beneficiary. 
In view of the above, it appears that the beneficiary will be a proprietor of this business and will not be an 
"employee" as defined above. It has not been established that the beneficiary will be "controlled" by the 
petitioner or that the beneficiary's employment could be terminated. To the contrary, the beneficiary is the 
petitioner for all practical purposes. He will control the organization; he cannot be fired; he will report to no 
one; he will set the rules governing his work; and he will share in all profits and losses. Therefore, based on 
the tests outlined above, the petitioner has not established that the beneficiary will be "employed" as an 
"employee. " 
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 
Page 8 
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 AAOfs enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 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. $ 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.