dismissed EB-1C Case: Clothing Retail

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COPY U.S. Citizenship 
and Immigration 
identifying data deleted to Services 
prevent clearly unwarranted 
invasion of personal privacy 
EAC 05 139 53027 
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 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 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Delaware corporation operating as a clothing retailer. 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. 
8 1153(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 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 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 employed by the U.S. petitioner in a 
qualifying managerial or executive capacity. 
Section lOl(a)(44)(A) of the Act, 8 U.S.C. 5 1 10 l(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 10 1 (a)(44)(B) of the Act, 8 U.S.C. tj 1 10 l(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 March 26, 2005, which included the 
following statement of the beneficiary's proposed responsibilities: 
Hire and supervise sales and marketing related employees, defining goals and developing 
marketing strategies, maintaining regular contact with existing and potential buyers, 
participate in exhibitions, negotiate and finalize contracts with buyers, study and analyze 
market trend[s] and coordinate with the principal in India. Thus, [the beneficiary] will be the 
sole [sic] [in clharge of [the petitioner's] marketing operations and will exercise full 
managerial control and highest level of discretion on business matters. [He] will continue to 
perform the above-mentioned duties upon obtaining permanent resident status in the United 
States. 
Page 4 
On January 12, 2006, Citizenship and Immigration Services (CIS) issued a request for additional evidence 
(RFE) addressing, in part, the issue of the beneficiary's proposed employment in the United States. The RFE 
instructed the petitioner to provide the following documentation to assist CIS in determining the beneficiary's 
employment capacity in his proposed position with the U.S. entity: 1) a detailed description and hourly 
breakdown of the beneficiary's proposed day-to-day duties on a weekly basis; 2) the position titles and job 
duties of the beneficiary's subordinates; and 3) the petitioner's 2005 quarterly tax returns for the first two 
quarters and a copy of the petitioner's 2005 payroll roster. 
In response, the petitioner provided percentage breakdowns for the duties and responsibilities assigned to a 
general manager, the sales staff, a sales associate, an accountant, and a secretary. The petitioner did not 
explain why the sales associate was discussed separately from the sales staff. The petitioner also submitted its 
first quarter wage report for 2005 in which three employees were identified. As the petitioner failed to name 
the employees occupying the position titles included in the percentage breakdown, it is unclear which 
positions were occupied by the individuals named in the quarterly wage report. While the request for an 
hourly breakdown of the beneficiary's assigned duties was acknowledged, the petitioner responded that the 
beneficiary's job duties "are all interlinked to each other" and did not provide the requested information. The 
petitioner also failed to provide its quarterly tax return and wage report for the second quarter of 2005. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. tj 103.2(b)(14). 
On June 7, 2006, the director denied the petition concluding that the petitioner failed to establish that it would 
employ the beneficiary in a qualifying managerial or executive capacity. The director discussed the lack of 
evidence to support the petitioner's claimed employment of four people and specifically noted the petitioner's 
failure to comply with a request for the petitioner's most recent W-2 wage and tax statements. While the 
AAO generally agrees with the director's finding, a review of the RFE indicates that the petitioner was not 
asked to provide its most recently issued W-2s. Rather, the petitioner was instructed to provide the W-2s 
issued in 2004, which would address the issue of staffing during the time period prior to the date the Form I- 
140 was filed. Therefore, the director's comment is inaccurate and is hereby withdrawn. Furthermore, since a 
petitioner must establish eligibility at the time of filing, its staffing levels prior to the filing of the Form 1-140 
are not relevant for the purpose of establishing the petitioner's eligibility. See Matter of Katigbak, 14 I&N 
Dec. 45,49 (Comm. 1971). 
Additionally, the director commented on the job duties of the petitioner's support personnel, noting that the 
subordinates are not clearly shown to be performing duties of a managerial or executive nature and instead are 
performing daily operational tasks. However, the definitions of managerial and executive capacity contained 
in sections 101 (a)(44)(A) and (B) of the Act, respectively, apply to the beneficiary of the present petition and 
not to his subordinate employees. Based on the director's reasoning, no beneficiary would qualify as a 
manager or executive if the organization's ultimate, lower tier subordinate was not a professional, managerial, 
or supervisory employee, regardless of how many layers of management lay between the beneficiary and the 
non-professional employee. According to the director, each tier of management would be disqualified as the 
first-line supervisor of non-professional staff. As the petitioner is under no statutory or regulatory obligation 
to establish that the beneficiary's subordinates would also be managerial or executive employees as defined by 
the Act, the director's statement suggests an erroneous interpretation of portions of the act and is hereby 
withdrawn. 
Nevertheless, the director properly concluded that the petitioner failed to provide an adequate breakdown of 
duties describing the beneficiary's proposed employment in the United States and properly found an overall 
lack of evidence establishing a sufficient support staff to relieve the beneficiary fiom having to primarily 
engage in the daily non-qualifying tasks. These accurate findings served as the primary basis for the director's 
denial. 
On appeal, counsel asserts that the petitioner has provided sufficient documentation to establish that the 
beneficiary would be a function manager charged with directing the company's purchasing and marketing 
activities. Counsel focuses on the beneficiary's discretionary authority in making critical business decisions 
and setting the company's long- and short-term goals. However, a petitioner claiming that the beneficiary is 
managing an essential function must furnish a written job offer that clearly describes the duties to be 
performed, i.e., identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 
8 C.F.R. fj 204.56)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
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. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientoloay International, 19 I&N Dec. 593, 604 
(Comm. 1988)). In the present matter, the petitioner has declined to provide detailed information about the 
duties to be performed by the beneficiary in his proposed position. Instead, the petitioner has relied entirely 
on the general statement of responsibilities provided initially in support of the Form 1-140. Neither the 
petitioner nor its counsel specify the actual duties the beneficiary would perform in managing the purchasing 
and marketing activities as indicated on appeal. 
Moreover, in claiming that the beneficiary would oversee at least two of the petitioner's essential functions, 
the petitioner must establish the existence of a support staff that actually performs the duties related to the 
function managed. Thus, the claim that the beneficiary would manage the fbnctions of purchasing and 
marketing requires a staff to perform the purchasing and marketing related duties. However based on the 
breakdown of job duties provided in response to the RFE, no one within the petitioner's support staff has been 
assigned purchasing or marketing duties, thereby leading to the inevitable conclusion that the beneficiary 
must be directly involved in performing these duties himself. As the petitioner has failed to provide the 
requested hourly breakdown of the beneficiary's duties, the AAO is precluded from making an informed 
determination as to the number of hours the beneficiary would spend on non-qualifying duties. Without 
sufficient information indicating how much of the beneficiary's time would be spent performing non- 
qualifying duties, the AAO cannot conclude that a majority of the beneficiary's time would be spent 
performing duties within a qualifying capacity. 
Counsel also cites the case of National Hand Tool Corp. v. Pasquarell in which the court affirmed the 
underlying denial of a sixth preference visa petition based on the determination that the beneficiary would 
primarily perform the duties related to an essential function. 
 889 F.2d 1472 (5" Cir. 1989). 
 Counsel 
apparently cites this case in an effort to distinguish the beneficiary in the present matter fkom the beneficiary 
whose duties were deemed to be primarily of a non-qualifying nature. Counsel's argument, however, lacks 
merit. As previously stated, the petitioner has failed to identify the specific duties to be performed by the 
beneficiary, which precludes the AAO from making an affirmative determination like the one made in 
National Hand Tool Corp. v. Pasquarell. Id. Furthermore, the very fact that the petitioner has failed to 
provide relevant information that is crucial to the question of the petitioner's eligibility suggests that a 
favorable determination is not warranted. Additionally, counsel's claim that the beneficiary would supervise 
professional employees confuses the prior claim that the beneficiary would manage an essential function. The 
term "knction manager" was designed to accommodate a manager that does not generally supervise 
employees, but rather monitors the various aspects of the function as it is performed by others and relies on 
these individuals to actually perform the duties necessary to carry out the essential function managed. The 
petitioner's claim that the beneficiary would manage others is inconsistent with the claim that the beneficiary 
would act in the role of a function manager and suggests counsel's lack of understanding of the difference 
between the role of a function manager versus the role of a personnel manager. Additionally, contrary to 
counsel's assertions, factors such as the beneficiary's broad discretionary authority and the amount of the 
petitioner's income do not override the lack of an adequate description of the beneficiary's job duties and the 
lack of an adequate support staff to cany out the petitioner's daily operational tasks. 
Finally, the petitioner has supplemented the record with a copy of its Form 94 1 quarterly tax return for the 
first two quarters of 2005 and the corresponding wage reports for the same quarters. The AAO notes that the 
RFE previously instructed the petitioner to submit the quarterly tax returns for the first two quarters of 2005. 
However, the petitioner only complied with a portion of that request by submitting the quarterly tax return for 
the first quarter. The regulation states that the petitioner shall submit additional evidence as the director, in 
his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established, as of the time the 
petition is filed. See 8 C.F.R. $4 103.2(b)(8) and (12). As previously stated, the failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
$ 103.2(b)(14). Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has 
been given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first 
time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N 
Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have 
submitted the documents in response to the director's request for evidence. Id. Under the circumstances, the 
AAO need not and does not consider the sufficiency of the evidence submitted on appeal. 
Furthermore, with regard to the quarterly tax return and wage report for the first quarter of 2005, the 
petitioner previously provided this documentation in support of the Form 1-140. However, on appeal the 
quarterly tax return and wage statement accounting for the same tax period contained information 
significantly different fi-om the documentation originally submitted. Specifically, the originally submitted 
quarterly tax return for 2005 indicated that the petitioner had three employees in its payroll. The 
corresponding wage report for the same period identified those three employees and their respective salaries. 
The quarterly tax return submitted on appeal indicates that the petitioner had four paid employees and 
identifies one additional employee in the corresponding wage report for the same quarter. Additionally, while 
the wage reports have three employees in common, the wage report initially submitted indicates that each of 
the three employees' respective salaries was greater than the one indicated in the wage report submitted on 
appeal. 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, 59 1-92 (BIA 1988). In the present matter, the petitioner has failed to resolve or even acknowledge the 
factual inconsistency presented by the unreliable documentation submitted in support of its claim. Doubt cast 
on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency 
of the remaining evidence offered in support of the visa petition. Id. The director previously voiced his 
concern regarding the petitioner's submission of unexecuted tax documentation. The director's concerns over 
the validity of this documentation are further justified by the petitioner's more recent submission of a tax 
document that directly contradicts information provided in the same document submitted at an earlier time. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary would 
be employed in a primarily managerial or executive capacity. The fact that an individual manages a small 
business does not necessarily establish eligibility for classification as a multinational managerial or executive 
within the meaning of section 101(a)(44) of the Act. Rather, the petitioner must provide further explanation 
of the beneficiary's specific job duties and the job duties of others in order to establish that the support staff 
employed at the time the Form 1-140 was filed was sufficient to relieve the beneficiary from having to 
perform primarily non-quali@ing tasks. In the present matter, the petitioner failed to provide an adequate 
description of the beneficiary's job duties and has further supplemented the record with inconsistent 
documentation causing the AAO to question the authenticity and veracity of the documentation submitted and 
the petitioner's overall credibility. Therefore, the AAO cannot conclude that the beneficiary would be 
employed in a qualifying managerial or executive capacity. For this reason, the petition may not be approved. 
Furthermore, the record warrants a finding of ineligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. fj 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying relationship 
with the beneficiary's foreign employer. 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 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). As such, the director may reasonably 
inquire beyond the issuance of paper stock certificates into the means by which stock ownership was 
acquired. Evidence of this nature may include documentation of monies, property, or other consideration 
furnished to the entity in exchange for stock ownership. 
In the present matter, the petitioner claims to be a subsidiary of the beneficiary's foreign employer. In support 
of this claim, the petitioner has provided its Articles of Incorporation indicating that the petitioner is 
authorized to issue 200 shares of its stock with no par value and a stock certificate dated July 14,2002 issuing 
all 200 shares of the petitioner's stock to the beneficiary's claimed foreign employer. Although the director 
did not specifically instruct the petitioner to provide evidence of monetary consideration in exchange for 
stock ownership, this issue is generally addressed in Schedule L, item 22(b) of the corporate tax return. In the 
present matter, there is no indication in the petitioner's 2003 tax return that any monetary consideration was 
received and retained in exchange for issuance of stock. 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)). Additionally, the petitioner has submitted a contract showing that it retained the services of 
an accountant. The contract identifies the beneficiary as the president and holder of 100% of the petitioner's 
equity, thereby indicating that the beneficiary, rather than the company that employed him abroad, is the 
petitioner's owner. As previously stated, the petitioner must 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, at 
591-92. As the petitioner has failed to provide consistent and reliable evidence to establish the foreign entity's 
payment for its claimed ownership of the petitioner's stock, a qualifiing relationship has not been established. 
Second, the regulation at 8 C.F.R. $ 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the present matter, the petitioner has provided documentation which the AAO has found to be lacking in 
credibility. Therefore, the quarterly wage reports that seemingly establish the petitioner's payment of the 
beneficiary's proffered wage have little to no probative value in establishing the petitioner's ability to pay. 
The record lacks other reliable documentation showing that the petitioner has satisfied the requirements cited 
in 8 C.F.R. tj 204.5(g)(2). 
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 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility as 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. tj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.