dismissed EB-1C Case: Cellular Telephone Distribution

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PWLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERWCE CENTER Date: 
LIN 07 091 52339 
 NOV 3 0 2009 
IN RE: 
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. 5 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
7pen-y Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Texas corporation that claims to be engaged in the wholesale, retail sale and 
distribution of cellular telephones and accessories. The petitioner claims to be the wholly-owned 
subsidiary of 
 located in Karachi, Pakistan. It seeks to employ the beneficiary as its 
vice 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 denied the petition, concluding that the petitioner had not established that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive 
capacity, or that a qualifying relationship exists between the U.S. company and the foreign entity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner contends that the 
beneficiary would be employed by the U.S. company in an executive capacity. Counsel further 
claims that the petitioner was not afforded the opportunity to present additional evidence on the issue 
of whether a qualifying relationship exists between the U.S. company and the foreign entity. 
Counsel submits a brief but no further evidence on appeal. 
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 the firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and 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 that 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. See 8 C.F.R. 3 204.5(j)(5). 
The first issue in the present matter is whether the beneficiary would be employed in a primarily 
managerial or executive capacity in the United States. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
(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. 3 1 101(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 a letter dated January 28, 2007 submitted with the Form 1-140, Immigrant Petition for Alien 
Worker, the petitioner described the beneficiary's anticipated job responsibilities as vice president of 
the company as follows: 
[The beneficiary] would assist in determining and formulating the company's goals 
and policies; provide overall direction within the guidelines set by the company's 
board of directors; plan and coordinate operational activities and insure these 
activities are fulfilled; and attend business related seminars, sales presentations and 
shows. 
[He] would manage the daily business of the 4000-square foot facility in Dallas. His 
duties would include: research cellular phone products by various manufacturers and 
service providers such as T-Mobile, Sprint, AT&T and Cingular; correspond with 
domestic and foreign suppliers and vendors; research and negotiate potential lease 
agreements for new cellular phone store locations in various shopping malls; 
coordinate distribution-related activities with the company's retail offices located in 
Dallas, Texas and manage the daily activities of employees. He will oversee the 
finances of the company. 
In addition, [the beneficiary] will oversee the manufacture and export of woven 
garments, such as boxer shorts and socks, to the United States as well as marketing of 
these products. He will continue to investigate new markets in the United States, thus 
managing the marketing function of [the U.S. company]. As the vice president of 
[the company, the beneficiary] will have full negotiating authority regarding new 
contracts with U.S. Distributors for textile products manufactured in Pakistan. 
On August 20, 2007, the director issued a request for further evidence (RFE), in which he instructed 
the petitioner to submit: (1) a statement signed by an authorized official of the U.S. company 
describing the beneficiary's intended employment in the United States, stating the date of 
employment, job title, specific job duties, types of employees supervised, and the title and level of 
authority of the beneficiary's immediate supervisor; and (2) an organizational chart showing the 
beneficiary's position in the United States in relations to others in the company. 
In a letter dated September 16, 2007 responding to the RFE, the petitioner stated that the beneficiary 
started his position as the vice president of the U.S. company on April 1, 2006. The petitioner 
provided the following description of the beneficiary's duties: 
As the vice president of [the U.S. company, the beneficiary] is responsible for the 
management, marketing and development of the business operations of [the company 
and] directly reports to the President. 
[The beneficiary] devotes approximately forty percent (40%) of his time actively 
overseeing the business operations (Administration and Human Resources 
Management) on an executive level. He spends approximately twenty percent (20%) 
of his time in financial management; and approximately forty percent (40%) of his 
time in planning and coordinating the expansion of the business operations. 
As a vice president, he oversees two managers, the operations manager . . . and sales 
manager. In addition, he has two subordinates. 
He oversees the daily business operations of the company on an executive level. He 
plans and directs expansion of [the U.S. company's] business operations. [He] 
establishes marketing and sales goals for [the U.S. company]. 
The petitioner provided an organizational chart, which shows the beneficiary reporting directly to the 
president of the U.S. company. Below the beneficiary are an operations manager and a sales 
manager, each of whom supervises one sales associate. 
On January 7, 2008, the director denied the petition, concluding that the petitioner had not 
established that the beneficiary would be employed by the U.S. entity in a primarily managerial or 
executive capacity. The director found that the petitioner provided vague descriptions of the 
beneficiary's U.S. duties. Further, the director observed, the petitioner has not presented a detailed 
description of the subordinate employees' duties or their educational backgrounds. The director 
noted that the organizational chart does not include positions for administrative, human resources, 
warehouse, shippingheceiving, or financial management. The director observed that when a 
company has a limited number of employees, it becomes questionable whether the beneficiary is 
acting primarily in a managerial or executive capacity, and USCIS may reasonably conclude in such 
a case that the beneficiary will be performing a wide range of daily functions associated with 
running a business that are not managerial or executive in nature. The director found that based on 
the evidence provided, it cannot be concluded that the beneficiary would be employed by the U.S. 
entity in a primarily managerial or executive capacity. 
On the Form I-290B, Notice of Appeal, counsel contends that the beneficiary's duties in the U.S. 
company are "inherently executive in nature." Counsel claims that the beneficiary "is responsible 
for the planning, coordinating and implementing expansiodmarketing [sic] of the business," and that 
to accomplish this, he works through other employees within the organization as well as utilizes the 
professional services of accountants and attorneys as needed. In his appeal brief, counsel adds that 
the beneficiary assigns and delegates duties to the operations manager and the sales manager, and 
that the operations manager is the general manager of the company and perfonns the day-to-day 
operations of the company. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to 
establish that the beneficiary would be employed in a primarily executive or managerial capacity in 
the United States. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. $ 204.50')(5). The petitioner's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. In addition, it should be 
noted that the definitions of executive and managerial capacity each have two parts. First, the 
petitioner must show that the beneficiary performs the high-level responsibilities that are specified in 
the definitions. Second, the petitioner must prove that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority of his time on day-to-day functions. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's 
duties that fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the 
petitioner initially stated that, among other duties, the beneficiary would "assist in determining and 
formulating the company's goals and policies;" "provide overall direction within the guidelines set 
by the company's board of directors;" "plan and coordinate operational activities and insure these 
activities are fulfilled;" and "manage the daily business" of the Dallas facility. However, the 
petitioner did not define the company's goals, policies, or operational activities, or clarify what 
"managing the daily business" of the company entails. The petitioner's response to the WE failed to 
provide any further detail. The petitioner claimed that the beneficiary spends 40% of his time 
"overseeing the business operations," 20% on "financial management," and 40% on "planning and 
coordinating the expansion of the business operations." Again, the petitioner's general language 
sheds no light on what it is that the beneficiary actually does on a day-to-day basis. Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has 
failed to provide any detail or explanation of the beneficiary's activities in the course of his daily 
routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), afyd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner indicated that the beneficiary would "research cellular phone products by 
various manufacturers and service providers;" "correspond with domestic and foreign suppliers and 
vendors;" "research and negotiate potential lease agreements" for new store locations; and 
"coordinate distribution-related activities with the company's retail offices." Since the beneficiary 
would actually perform market and product research, negotiate contracts, and deal directly with 
supply and distribution contacts, he would be performing tasks that are necessary to provide the 
company's service or product, and such duties would not be considered managerial or executive in 
nature. Given the petitioner's vague breakdown of the beneficiary's duties, it cannot be determined 
what proportion of the beneficiary's time would actually be devoted to these non-qualifying tasks. 
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 Int'l., 19 I&N Dec. 593, 604 
(Comm. 1988). 
Beyond the required description of the job duties, the U.S. Citizenship and Immigration Services 
(USCIS) reviews the totality of the record when examining the claimed managerial or executive 
capacity of a beneficiary, including the petitioner's organizational structure, the duties of the 
beneficiary's subordinate employees, the presence of other employees to relieve the beneficiary from 
performing operational duties, the nature of the petitioner's business, and any other factors that will 
contribute to a complete understanding of a beneficiary's actual duties and role in a business. 
On appeal, counsel claims that the beneficiary's duties in the U.S. company are executive in nature. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101 (a)(44)(B) of the 
Act, 8 U.S.C. 5 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of managerial employees for the beneficiary to direct 
and the beneficiary must primarily focus on the broad goals and policies of the organization rather 
than the day-to-operations of the enterprise. An individual will not be deemed an executive under 
the statute simply because they have an executive title or because they "direct" the enterprise as the 
owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. 
Here, the petitioner claims that the beneficiary "oversee[s] the business operations . . . on an 
executive level," and specifically, "oversees two managers" and two other subordinates. Counsel 
also claims on appeal that the operations manager is actually the general manager of the company 
and performs the day-to-day operations of the company. However, the petitioner has failed to 
provide any information relating to the job duties of any employee of the U.S. company other than 
the beneficiary. Without that information, it cannot be determined whether the beneficiary actually 
has a subordinate level of managerial employees who would relieve him from having to perform 
non-qualifying duties and allow him to focus primarily on the broad goals and policies of the 
organization rather than its day-to-operations. 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 Intn 'l., 19 I&N Dec. 593,604 (Comrn. 1988). Further, without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 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 beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See § 101(a)(44)(A)(ii) of the Act. Here, although the 
petitioner indicated that two employees on the petitioner's staff bear the title of "manager," as 
discussed above, the petitioner has failed to provide any job description for these employees. Thus, 
the evidence is insufficient to establish that the beneficiary's subordinates are "supervisory or 
managerial" employees other than in position title. Further, the petitioner has not provided any 
evidence that would establish that these employees possess or require a bachelor's degree, such that 
they could be classified as professionals. Accordingly, the petitioner has not shown that the 
beneficiary's subordinate employees are supervisory, professional, or managerial, as required by 
section 10 1 (a)(44)(A)(ii) of the Act. 
In addition, although counsel claims on appeal that the petitioner "utilizes the professional services 
of accountants and attorneys as needed," the petitioner has neither presented evidence to document 
the existence of these employees nor identified the services these individuals provide. Additionally, 
the petitioner has not explained how the services of the contracted employees obviate the need for 
the beneficiary to primarily conduct the petitioner's business. Without documentary evidence to 
support its statements, the petitioner does not meet its 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. Cornm. 1972)). 
Finally, as required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive capacity, USCIS must take 
into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. In reviewing the relevance of the number of employees a petitioner 
has, federal courts have generally agreed that USCIS "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 13 13, 13 16 (9th Cir. 2006) (citing 
with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Suva, 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)). Furthermore, it is appropriate for USCIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel 
size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The petitioner claimed that it operates a 4,000-square-foot warehouse and two retail stores. Based 
on the petitioner's representations, it does not appear that the reasonable needs of the company might 
plausibly be met by the services of two "executives, "two "managers," and two sales associates. As 
the director noted, the evidence does not support the conclusion that the beneficiary would be 
relieved from purchasing, warehouse, financial, administrative tasks and other day-to-day 
operational tasks of the company. In any event, the reasonable needs of the petitioner serve only as a 
factor in evaluating the lack of staff in the context of reviewing the claimed managerial or executive 
duties. The petitioner must still establish that the beneficiary is to be employed in the United States 
in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the 
Act. As discussed above, the petitioner has not established this essential element of eligibility. 
In light of the above described deficiencies in the record, the AAO concurs with the director's 
conclusion that the record does not establish that the beneficiary would be employed in the United 
States in a primarily executive or managerial capacity. For that reason, the petition will be denied. 
The second issue in the present matter is whether the petitioner has established that it has a 
qualifying relationship with the beneficiary's overseas employer. To establish a "qualifying 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's 
foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a 
foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally § 203(b)(l)(C) 
of the Act, 8 U.S.C. § 1153(b)(l)(C). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
AfJiliate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) 
 One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
In its letter dated January 28, 2007, the petitioner indicated that it is a wholly-owned subsidiary of 
the foreign entity. The petitioner submitted its articles of incorporation, dated March 14, 2001, 
which state that the company has the authority to issue 1000 shares of common stock of "no par 
value." The petitioner also submitted a copy of the company's share certificate number 1, dated 
April 25,2001, certifying that '-' is the owner of 1,000 common shares, no par value, 
of the company. In addition, the petitioner submitted its tax returns for the years 2003 through 2005. 
Schedule K of the 2004 tax return identifies the owner of 100% of the company's stock as - 
Schedule K of the 2005 tax return identifies the owner of 100% of the 
'1' The petitioner's 2003 tax return identifies 
Pakistan as the country of the owner of 100% of the company's stock, but the name of the 
shareholder was not provided. 
In denying the petition, the director found that the petitioner has not clearly established that it has a 
qualifylng relationship with the foreign entity. The director acknowledged that the petitioner 
submitted its articles of incorporation and the single common stock certificate showing shares issued 
to the foreign entity. However, the director observed that the record contains no evidence that actual 
funds were committed or transferred by the claimed parent organization to pay for its ownership of 
the U.S. company. 
On appeal, counsel contends that there was no request in the RFE for evidence of funds committed 
by the foreign entity; therefore, the petitioner did not have a chance to explain and provide additional 
documents on that issue. However, counsel does not present any evidence or forward any arguments 
on appeal to support a conclusion that a qualifylng relationship exists between the U.S. and foreign 
entity. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to 
demonstrate that a qualifylng relationship exists between the U.S. and foreign entity. 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comrn. 1982). In the context of ths visa petition, ownership refers to 
the direct or indirect legal right of possession of the assets of an entity with full power and authority 
to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. 
at 595. 
As noted, the only evidence in the record of ownership of the U.S. company is the share certificate 
and disclosures regarding the company's ownership on the company's tax returns for 2003 through 
2005. As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone 
are not sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter 
of Siemens Medical Systems, Inc., supra. Here, the petitioner has not submitted any of the above- 
described supporting documentation. Without full disclosure of all relevant documents, USCIS is 
unable to determine the elements of ownership and control. 
While the company's tax returns for 2003 to 2005 confirm that the holder of 100% of the company's 
shares resided in Pakistan, only the 2004 tax return specifically identifies the foreign entity as the 
owner. Further, in order to establish eligibility for classification as a multinational manager or 
executive for immigrant visa purposes, the petitioner must establish that it maintains a qualifying 
relationship with the beneficiary's foreign employer, i.e., the foreign entity that employed the 
beneficiary must continue to exist and have a qualifylng relationship with the petitioner at the time 
the immigrant petition is filed. 8 C.F.R. 5 204.5(j)(3)(i)(C). Here, the petitioner has offered no 
evidence that the foreign entity continues to own 100% of the U.S. company, or that a qualifying 
relationship continues to exist between the two entities in some other configuration, at the time the 
petition was filed. Again, 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. at 165. 
Counsel contends on appeal that the director failed to request further evidence relating to the 
qualifylng relationship between the U.S. and foreign entities before denying the petition on that 
ground. The regulation at 8 C.F.R. § 103.2(b)(8) provides that if all required initial evidence does 
not demonstrate eligibility, USCIS may "in its discretion" request additional evidence. Thus, the 
director is not required to issue a request for further information in every potentially deniable case. 
Further, in visa petition proceedings, the burden is on the petitioner to establish eligibility for the 
benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove 
by a preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter 
of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); 
Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 1965). As discussed above, based on the record that was 
before the director, the petitioner has failed to meet its burden of establishing by a preponderance of 
evidence that the beneficiary would be employed in the United States in a managerial or executive 
capacity, or that there exists a qualifying relationship between the U.S. and foreign entity. 
Moreover, even if the AAO were to find that the director should have requested evidence before 
denying the petition, the director's error would be harmless. Because the director did not request 
evidence relating to the issue of qualifylng relationship prior to his decision, the petitioner had the 
opportunity to submit additional evidence to the AAO on appeal. Cj Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988). The petitioner did not avail itself of this opportunity. The petitioner has not 
supplemented the record with additional evidence on appeal, nor has the petitioner made any 
assertions to address the deficiencies in the record noted in the director's decision with respect to this 
issue. 
In light of the foregoing, the AAO finds that the petitioner has failed to establish that it has a 
qualifylng relationship with the beneficiary's overseas employer. For this additional reason, the 
petition will be denied. 
Beyond the decision of the director, the AAO finds the record is insufficient to establish that the 
beneficiary was employed abroad in a primarily executive or managerial capacity. 
In the Januar 28, 2007 letter, the petitioner indicated that the beneficiary became managing partner 
in the foreign entity, in 1977 and has continued in that role "until the present time." 
The petitioner stated that the beneficiary's responsibilities in that position were "to establish the 
overall goals and policies of the company; negotiate agreements and contracts for goods and 
merchandise with suppliers and vendors; maintain rapport with existing and potential clients; explore 
new business opportunities with Pakistan and abroad; hire and supervise staff; prepare and maintain 
the company's records and reports in compliance with all local and national Pakistani laws." 
In the RFE, the director requested (1) a signed statement from an authorized officer of the foreign 
employer describing the beneficiary's qualifying employment abroad, stating the date of 
employment, job title, specific job duties, types of employees supervised, and the title and level of 
authority of the beneficiary's immediate supervisor; and (2) an organizational chart showing the 
beneficiary's position in the United States in relations to others in the company. 
In its response to the RFE, the petitioner stated the following in regard to the beneficiary's duties 
overseas: 
[The beneficiary] was responsible for the planning and management of [the foreign 
entity.] 
 He established goals and policies for [the company.] 
 He maintained 
technical liaison with customers and vendors. 
He was also responsible for the marketing and business development of the company. 
He assessed financial sustainability of potential goods ands services for the business. 
He was the ultimate operational authority for [the foreign entity] as the managing 
partner and Chief Executive Officer and was also managing the company's budget 
and personnel. 
The time spent on each responsibility was as follows: Business Management (60%), 
Human resources management (lo%), business development 1 Sales and Marketing1 
client relationship (30%). 
[The beneficiary] had 4 subordinate managers, Engineering Manager, Technical Sales 
Manager, Sales and Marketing Manager and Office Manager, report[ing] directly to 
[him]. Additionally, he had supervised 4 employees working under their respective 
managers. 
As a Managing partner at [the foreign entity], [the beneficiary] had ultimate control 
and responsibility for [the foreign entity's] overall operations and oversaw the daily 
business operations of [the foreign entity] on an executive level. 
[The beneficiary] functioned at a senior level within the corporation as a Managing 
Partner of [the foreign entity]. [He] received general guidance from other partners 
and board of directors. [The beneficiary] kept the board of directors informed as 
needed regarding the performance of the business and other business related 
indicators. 
petitioner-submitted an organizational chart which depicts the beneficiary as managing partner of all 
three entities. With respect to the foreign entity, the chart shows a general manager under the 
beneficiary. Under the manager, there are three individuals listed under the headings "Personnel 
Dept.," "Accounts Dept.," and "Marketing Dept." 
 Under "Marketing Dept.," there are three 
individuals listed under the headings "Export/Import," "Shipping," and "Sales." 
While the director did not explicitly determine in his decision that the petitioner failed to 
demonstrate that the beneficiary was employed abroad in a managerial or executive capacity, the 
director noted that the descriptions of the beneficiary's overseas duties were vague. Further, the 
director noted that the petitioner did not submit a detailed description of the subordinate employees' 
duties or professional backgrounds, and the record does not establish that the beneficiary was 
primarily supervising professionals in the foreign entity. 
On appeal, counsel asserts that the beneficiary was the managing partner of the foreign entity, with 
100 employees under his management. Counsel contends that the organizational chart of the foreign 
entity clearly shows that the beneficiary's position abroad was executive in nature. 
Upon review, the AAO finds the record is insufficient to establish that the beneficiary was employed 
abroad in an executive or managerial capacity. 
Again, when examining the executive or managerial capacity of the beneficiary, the AAO will look 
first to the petitioner's description of the job duties. See 8 C.F.R. 8 204.5(j)(5). The petitioner's 
description of the job duties must clearly describe the duties to be performed by the beneficiary and 
indicate whether such duties are either in an executive or managerial capacity. Id. 
As was the case with the beneficiary's U.S. employment, the petitioner has provided a vague and 
nonspecific description of the beneficiary's duties overseas that fails to demonstrate what the 
beneficiary did on a day-to-day basis. For example, the petitioner stated in response to the RFE that 
the beneficiary was "responsible for the planning and management" of the foreign entity, 
"established goals and policies" for the company, was "responsible for the marketing and business 
development" of the company, was "the ultimate operational authority" for the company "and was 
also managing the company's budget and personnel." The petitioner claimed that the beneficiary 
spent 60% of his time on "business management," 10% on "human resources management," and 
30% on business development/sales and marketinglclient relationship." Again, the petitioner's 
general language sheds no light on what it was that the beneficiary actually did on a day-to-day 
basis. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The 
petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course 
of his daily routine. The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108. 
Further, in addition to showing that the beneficiary performed the high-level responsibilities that are 
specified in the definitions, the petitioner must prove that the beneficiaryprimarily performed these 
specified responsibilities and did not spend a majority of his or her time on day-to-day functions. 
Champion World, Inc. v. INS, 940 F.2d at 1533. The vagueness with which the petitioner described 
the beneficiary's responsibilities does not enable the AAO to determine which portion of the 
beneficiary's time was actually spent on which duties, and consequently, it cannot be determined 
whether the beneficiary functions primarily in an executive or managerial capacity. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the 
petitioner's business, and any other factors that will contribute to a complete understanding of a 
beneficiary's actual duties and role in a business. 
Here, the petitioner has presented an incomplete and inconsistent picture of the beneficiary's 
subordinate staff in the foreign entity. In the letter responding to the RFE, the petitioner claimed that 
the beneficiary had under his direct supervision four subordinate managers, including an engineering 
manager, a technical sales manager, a sale and marketing manager, and an office manager. 
Additionally, the petitioner claimed that there were four other employees working under their 
respective managers. The organizational chart for the foreign entity submitted at the same time, 
however, depicts an entirely different staff. The chart shows a general manager under the 
beneficiary, and under the general manager, there are three individuals listed under the headings 
"Personnel Dept.," "Accounts Dept.," and "Marketing Dept." Under "Marketing Dept.," there are 
three additional individuals listed under "Export/Import," "Shipping," and "Sales." In addition, 
counsel claims on appeal that the beneficiary had 100 employees under his management overseas. 
The petitioner has not provided any explanation for these inconsistent descriptions of the 
beneficiary's overseas staff. 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). Further, without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. at 1 ; Matter of Ramirez-Sanchez, 17 I&N Dec. 
at 506. 
Additionally, the petitioner did not provide any information relating to the job duties of the 
beneficiary's subordinates overseas. Without that information, it cannot be determined whether the 
beneficiary actually had a subordinate level of managerial employees who relieved him from having 
to perform non-qualifying duties and allowed him to focus primarily on the broad goals and policies 
of the organization rather than its day-to-operations. Again, an employee who primarily performs 
the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church of Scientology International, 19 I&N Dec. at 
604 (Comm. 1988). 
In light of these deficiencies in the evidence, the AAO finds that the petitioner has failed to establish 
that the beneficiary was employed abroad in an executive or managerial capacity as required by 
section 203(b)(l)(C) of the Act, 8 U.S.C. Ej 1153(b)(l)(C). For this additional reason, the petition 
will be denied. 
Finally, the AAO acknowledges that USCIS has previously approved an L-1A petition filed by the 
petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant petitions 
are denied after USCIS approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22; Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103. Examining the consequences of 
an approved petition, there is a significant difference between a nonimmigrant L-1A visa 
classification, which allows an alien to enter the United States temporarily, and an immigrant E-13 
visa petition, which permits an alien to apply for permanent residence in the United States and, if 
granted, ultimately apply for naturalization as a United States citizen. CJ $8 204 and 214 of the Act, 
8 U.S.C. $8 1 154 and 1 184; see also $ 3 16 of the Act, 8 U.S.C. Ej 1427. Because USCIS spends less 
time reviewing 1-1 29 nonimmigrant petitions than 1-140 immigrant petitions, some nonimrnigrant L- 
1 A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; 
see also 8 C.F.R. Ej 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend 
an L-1A petition's validity). Despite the previously approved petition, USCIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a 
subsequent petition. See section 29 1 of the Act. Based on the lack of required evidence of eligibility 
in the current record, the AAO finds that the director was justified in departing from the previous 
nonimmigrant petition approval by denying the instant petition. 
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), 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). 
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. Here, 
that burden has not been met. Accordingly, the director's decision will be affirmed and the petition 
will be denied. 
ORDER: The appeal is dismissed.