dismissed EB-1C Case: Clothing

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
identifying data deleted to 
prevent cleari y llnwsnanted 
invasion of personal pnvacj 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: JAN 2 8 2010 
LIN 06 267 51768 
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. 8 103.5(a)(l)(i). 
V Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Florida corporation that 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. 
§ 11 53(b)(l)(C), as a multinational executive or manager. The director concluded that the petitioner 
failed to establish that it would employ the beneficiary in a managerial or executive capacity and 
denied the petition on that basis. 
On appeal, counsel disputes the director's findings, asserting that the job description provided in 
response to the request for evidence (RFE) was sufficient to enable U.S. Citizenship and 
Immigration Services (USCIS) to conclude that the petitioner would employ the beneficiary in a 
qualifying managerial or executive capacity. 
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 petitioner submitted sufficient evidence to 
establish that it would employ the beneficiary in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 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. $ 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 support of the Form 1-140, the petitioner submitted a letter dated August 11, 2006 stating that the 
beneficiary directs a marketing staff in the production of promotional material and manages daily 
business operations, including overseeing the design of a clothing line, traveling to production 
facilities, and overseeing the company's executive assistant, bookkeeper, sales representative, 
warehouse employee, clothes designer, and secretary. The petitioner also provided various federal 
tax documents all of which predate the filing of the Form 1-140 and are therefore irrelevant to the 
matter at hand, as they do not establish the petitioner's eligibility at the time of filing. See Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
On August 24,2007, the director issued the first of two RFEs, instructing the petitioner to provide its 
2006 federal tax return along with a 2006 IRS Form W-2, wage and tax statement, for the 
beneficiary and every other employee of the petitioner. The director also asked the petitioner to 
provide an organizational chart illustrating its corporate hierarchy and the beneficiary's position in 
relation to the other employees. Finally, the director instructed the petitioner to attach brief job 
descriptions and educational levels for the beneficiary's direct subordinates. 
In response, the petitioner provided the requested tax documents as well as the organizational chart 
and brief job descriptions for the beneficiary, the three employees with managerial position titles, the 
company's sales representative, and the bookkeeper. While the beneficiary's two latter positions are 
not depicted as being directly subordinate to the beneficiary, the instructions in the director's RFE 
expressly instruct the petitioner to provide a brief job description for each of the beneficiary's direct 
subordinates. Therefore, the AAO will assume that the positions listed in the petitioner's response 
are all directly subordinate to the beneficiary, despite the corporate hierarchy the petitioner provided 
in its organizational chart. 
On May 19, 2008, the director issued a second WE instructing the petitioner to provide a more in- 
depth description of the beneficiary's proposed daily job duties with an approximate percentage of 
time assigned to each job duty. Additionally, the director focused on the petitioner's claim that it had 
a warehouse facility that was operating at the time the Form 1-140 was filed. The director asked the 
petitioner to provide additional information, including the warehouse facility's hours of operation 
and an employee roster and schedule indicating which employees were scheduled to work at the 
warehouse facility during a two-week period. 
In response, the petitioner provided a letter from counsel dated August 6, 2008 in which the 
following percentage breakdown of job duties was provided: 
70% -- Manage the overall day-to-day operations of the business[. Tlhis includes: 
10% -- Plot strategies for the expansion of business in the U.S. 
15% -- Develop business objectives and time tables within which they are to 
be completed[.] 
5% -- [Clommunicate between the U.S. and Israeli company[.] 
10% -- [Mlakes managerial decisions to ensure achievement of the company's 
objectives[.] 
3% -- [Elnsure [the] company's compliance with labor and employee 
issues[.] 
2% -- [Hlandles all major personnel decisions in relations [sic] to its sales, 
marketing, and legal operations[.] 
10% -- [Rleview of accounting and sales reports to ensure corporate goals are 
met[.] 
10% -- Coordinate between operational and administrative tasks[.] 
5% -- [Hlandle all personnel decisions for the U.S. company[.] 
20% -- Directly supervises the [olperations [mlanager, [llogistics [mlanager and the 
[elxecutive [olffice [m]anager[.] 
5% -- Travel and meet with major suppliers, including travel to production facilities 
for oversight purposes, and travel to customers[.] 
5% -- Direct staff in the production of high quality company brochures and other 
products (creating a desirable product image is vital to the continued success 
of the product). 
With regard to the additional information concerning the petitioner's warehouse facility, counsel 
stated that the petitioner has relocated to a different location, which houses a showroom, a corporate 
office, and a warehouse. The petitioner also provided a work schedule for its main office during a 
two-week period in 2008. It is noted, however, that the work schedule does not identify any 
warehouse employees, a matter that was of particular concern to the director. Thus, the work 
schedule that is part of the petitioner's response does not explain which employees were available to 
assist with the warehouse-related responsibilities at the time of filing. 
In a decision dated October 29, 2008, the director denied the petition concluding that the petitioner 
failed to establish that the beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity. The director found that neither of the job descriptions submitted 
herein contained an adequate discussion of the beneficiary's daily tasks. The director specifically 
mentioned the petitioner's use of the term "handle," which the director found lacking in sufficient 
detail, as it failed to convey the specific actions the beneficiary would be expected to take with 
respect to his personnel-related responsibilities. The director also commented on the petitioner's 
failure to submit adequate supporting documentation to establish the number of employees that the 
petitioner employed at the time of filing. While the director acknowledged the petitioner's 
submission of the 2006 IRS Form W-2s, wage and tax statements, indicating ten employees, he 
determined that the salary information contained within the forms did not establish the employment 
of seven full-time staffers at the time of filing. 
On appeal, counsel asserts that the director placed undue emphasis on the petitioner's use of the term 
"handle" and argues that the director failed to acknowledge the petitioner's use of the term "major" to 
describe the level of importance of the personnel issues the beneficiary would "handle." However, 
the record of proceeding, the job description offered in response to the second WE in particular, 
does not support counsel's explanation, which in and of itself does not constitute evidence. See 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 
1983); Matter of Rarnirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). To clarify further, the 
petitioner's second description of the beneficiary's proposed employment states that 2% of the 
beneficiary's time would be attributed to handling major personnel issues, while another 5% of his 
time would be attributed to handling "all personnel decisions for the U.S. company[.]" Thus, 
contrary to counsel's assertion, the beneficiary's personnel-related responsibilities would not be 
limited to only those decisions that are considered "major," another term that has not been explained 
with sufficient clarity. 
Moreover, as the director properly pointed out, the petitioner's description provides no insight as to 
the beneficiary's precise role in relation to issues dealing with the petitioner's personnel. Given the 
claim that the beneficiary would be directly involved in all personnel matters, merely stating that the 
beneficiary has a great deal of discretionary authority is insufficient to establish the nature of the 
specific tasks the beneficiary would be expected to perform. Rather than addressing this deficiency 
on appeal, counsel merely contends that the director erred in his interpretation of the information the 
petitioner provided in response to the WE. As discussed above, counsel's assertion is incorrect and 
does not elaborate on an issue that is clearly in need of clarification. 
Counsel also asserts that such duties as plotting expansion strategies, developing business objectives 
and timetables, and communicating with the Israeli company are sufficiently detailed and require no 
further explanation. While the AAO agrees that no further explanation is required to explain the 
beneficiary's role concerning his communication with the Israeli company, there is no indication that 
this task can be deemed as qualifying. With regard to other responsibilities mentioned in the 
director's decision-plotting expansion strategies and developing business objectives and 
timetables-counsel's response to the director's valid criticism of the deficient job description is to 
simply disagree with the director rather than to provide information that the director clearly deems 
necessary in order to make the distinction between tasks that are qualifying and those that are not. 
For instance, in claiming that the beneficiary plots strategies to ensure the company's expansion, 
there is no indication as to who conducts the necessary market research that is presumably required 
to make the final decisions. This information is crucial as some underlying support tasks, such as 
conducting market research and other similar tasks, are not within a qualifying managerial or 
executive capacity. 
The petitioner's claim that the beneficiary would be responsible for developing objectives and 
timetables creates the same sort of problem in that there is an underlying implication that such a 
responsibility will entail various support tasks may not be deemed as qualifying. As there is no 
evidence that the petitioner employed anyone at the time of filing to provide the beneficiary with the 
underlying tasks that are necessary to enable the formulation of strategies for business expansion and 
the development of objectives and timetables, it is likely that the beneficiary himself would perform 
these non-qualifying tasks. The petitioner also claimed that 10% of the beneficiary's time would be 
spent making managerial decisions and another 3% would be spent ensuring compliance with labor 
and employee issues. However, these broad job responsibilities are similarly missing the requisite 
degree of detailed information to convey a meaningful understanding of what specific tasks the 
beneficiary would perform in meeting the broadly stated objectives. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. tj 204.5(j)(5). As pointed out above, this 
information is crucial, as the actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), af'd, 905 F.2d 41 (2d. Cir. 
1990). It is noted that 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 10 1 (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). Given the lack of a detailed description of the 
specific tasks that would primarily consume the beneficiary's time and in light of the express and 
implied non-qualifying tasks the beneficiary would perform, the AAO cannot conclude that the 
primary portion of the beneficiary's time would be spent within a qualifying managerial or executive 
capacity. 
Additionally, counsel addresses the director's determination that the beneficiary does not supervise 
professional employees, as two out of three of the positions that are depicted in the organizational 
chart as the beneficiary's subordinates do not require bachelor's degrees. Counsel asserts that the 
regulation at 8 C.F.R. "section 204.5(1)"' does not require that all of the beneficiary's subordinates be 
professional. While counsel's statement is factually correct, counsel fails to acknowledge the 
remaining portion of the provision cited in 8 C.F.R. 9 204.50)(2), which states that if the beneficiary 
supervises subordinates, such subordinates must be supervisory, professional, or managerial 
employees. Thus, contrary to the indication in the director's decision, the beneficiary's subordinates 
need not be professionals so long as they are supervisory or managerial. 
In the present matter, the petitioner's organizational chart indicates that the beneficiary has three 
subordinate employees. While all three employees have managerial position titles, the chart shows 
only two of the subordinates as managing other employees. Namely, the operations manager is 
shown as overseeing an outside sales representative and the executive office manager is shown as 
overseeing a bookkeeper. It is noted, however, that the job descriptions, which were submitted in 
response to the first RFE, do not support the way in which the beneficiary's subordinates were 
depicted in the organizational chart or the implication made via each employee's managerial position 
title. The executive office manager's job description indicates that the employee occupying the 
position is in charge of accounting, purchasing, cash flow, and the preparation of weekly reports. 
Nowhere in the job description did the petitioner mention tasks associated with the supervision or 
management of any subordinates. Even if the petitioner has a bookkeeper to carry out various 
accounting-related services, there is no indication, other than in the organizational chart, that the 
executive officer manager actually manages or supervises the bookkeeper. Similarly, despite the 
logistic manager's managerial position title, neither his job description nor the organizational chart 
actually supports the claim that the logistic manager is a managerial or supervisory employee. 
Lastly, while the organizational chart indicates that the operations manager manages a sales staff, the 
petitioner has not provided any evidence that a sales staff, contractual or in-house, actually existed at 
the time the petition was filed. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972)). Additionally, despite the claim that the petitioner requires a baccalaureate 
degree as a prerequisite for anyone filling the operations manager position, there is no evidence that 
a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry 
1 
 It is noted that the section of the regulations that counsel cites regarding the definition of managerial capacity is 
incorrect. The cbrrect section of the regulations is 8 C.F.R. 5 204.5Q)(2), which lists the four prerequisites for 
managerial capacity. See also section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. tj 1 10 l(a)(44)(A)(ii). 
into the occupation. See 8 C.F.R. 6 204.5(k)(2). Thus, in light of the above, the beneficiary's 
subordinates cannot be deemed as supervisory, professional, or managerial employees. 
In conclusion, the AAO finds that the petitioner has failed to establish that the beneficiary would 
manage supervisory, professional, or managerial employees. The petitioner also failed to provide 
critical information specifically identifying the tasks the beneficiary would perform in his proposed 
position. Therefore, the petitioner has failed to establish that the beneficiary would be employed in a 
qualifying managerial or executive capacity. On the basis of this conclusion, the instant petition 
cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
First, 8 C.F.R. 5 204.5(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 record lacks sufficient information about the beneficiary's employment, including 
a description of the beneficiary's foreign job duties. As previously stated, a detailed description of 
job duties is key to determining the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. at 1108. Without the necessary information, the AAO cannot conclude that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. 5 204.5(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; see also Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289 (Comm. 1982). In 
the context of this 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. 
In the present matter, the etitioner provided a stock certificate showing that it issued 200 of its 
shares to - However, the petitioner's 2004 and 2006 tax returns are inconsistent 
with the information in the stock certificate. Namely, the Schedule E in both tax returns identifies 
the beneficiary as owner of 100% of the petitioner's common stock, while item five in Schedule K of 
both tax returns, which are inconsistent with the stock certificate and Schedule E of the same tax 
returns, indicates that no individual, partnership or corporation owned 50% of more of the 
petitioner's stock at the end of either tax year. The AAO further observes that item seven of 
Schedule K in both tax returns states that no foreign person owned, either directly or indirectly, 25% 
or more of the petitioner's voting class stock. 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). The evidence 
submitted does not allow the AAO to determine which person or entity actually owns the U.S. 
Page 9 
petitioner. 
 As stated above, 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. Thus, despite the petitioner's claim that it is the foreign entity's affiliate, without 
the necessary documentary evidence establishing the ownership of each entity, the AAO cannot 
conclude that the petitioner and the beneficiary's foreign employer have the requisite qualifying 
relationship. 
The last issue to be addressed in this decision is whether the petitioner has met the requirements 
specified at 8 C.F.R. 5 204.5(j)(3)(i)(D), which states that the petitioner must establish that it has 
been doing business for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 
5 204.5(j)(2) states that doing business means "the regular, systematic, and continuous provision of 
goods andlor services by a firm, corporation, or other entity and does not include the mere presence of 
an agent or office." Although the petitioner has submitted various tax returns and other tax-related 
documents, these are not proper indicators of an entity that has been selling its products on a regular, 
systematic, and continuous basis since one year prior to the filing of the instant Form 1-140. 
Therefore, due to the lack of sufficient evidence, the AAO cannot conclude that the petitioner has 
met the provisions cited in 8 C.F.R. 5 204.5(j)(3)(i)(D). 
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). Accordingly, based on the 
additional grounds of ineligibility discussed above, this petition cannot be approved. 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.