dismissed EB-1C Case: Construction

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rrn. 3000 
Washington, DC 20529 
PUBLIC COPY 
 U. S. Citizenship 
and Immigration 
Services ' 
FILE: Office: TEXAS SERVICE CENTER Date: OEC 0 6 m6 
SRC03 23651961 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Immigrant Petit~on 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. 4 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
d--2- 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
\ 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner was incorporated in the State of Florida and is engaged in the business of selling and installing 
Isolated Concrete ~orms.' 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. $ 1153(b)(l)(C), as a multinational executive or 
manager. The director denied the petition based on three indep,endent grounds of ineligibility: 
 1) the 
petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; 2) the petitioner failed to establish that the beneficiary would be employed in the United States in a 
managerial or executive capacity; and 3) the record lacks sdfficient evidence establishing the petitioner's 
ability to pay the beneficiary's proffered wage. . 
On appeal, counsel disputes the director's findings and submits a brief in support of his arguments. 
Section 203(b) of the Act states in pertinent,part: 
(1) Priority Workers. -- Visas shall fiyt be made available . . . to qualified immigrants who 
are aliens described in any of the folloying subparagraphs (A) through (C): 
(C) Certain Multinational Executives-and Managers. -- An alien is described 
in this subparagraph 'if the alien, in be 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 oider to continue to render services to the 
I ' 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 prov~sion 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 ihe same entity, or its affiliate or subsidiary. 
A United States eAployer may file a petition on Form 1-140 fo~ 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 fJnited States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be ptrformed by the alien. 
? 
' It should be noted that, according the Florida Department of State, Division of Corporations, the petitioner has been 
administratively dissolved due to its failure to satisfy the state's annual report requirements. Therefore, regardless of 
whether the petitioner's annual report issues in Florida can be easily remedied or not, it,raises the critical issue of the 
company's continued existence as a legal entity in the United States. See Fla. Stat. 607.1421 (2006). 
The first two issues in this proceeding call for an analysis of the beneficiary's employment capacity. The first 
issue is whether the beneficiary was employed abroad in a primarily managerial or executive capacity, and the 
second issue is whether the petitioner established that it would primarily employ the beneficiary in a 
managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. - 8 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 organiiation; 
(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 
i 
(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 
professiopal. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C.4 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. 
The ;record shows that the petitioner filed a Form 1-140 on August 28, 2003. The petitioner provided the 
following job description in Part 6 of the Form 1-140: 
- Page 4 
His duties include establishing and executing marketing, financial and strategic plans for the 
U.S. [clompany. 
 The [;]resident' establishes the overall goals and policies of the 
organization. He supervises and.conh-01s the budget and strategic plans. He possesses the 
executive decision-making authority and the majority of his duties relates [sic] to operational 
and policy management of the U..S. operation. 
In a separate letter dated August 4, 2003, the beneficiary, in his capacity as president of the petitioning entity, 
stated that 100% of his duties would involve,'executive decision-malung authority and would be related to 
operation and management functions. He further stated that the petitioner has six employees as well as 
independent contractors and subcontractors. 
On October 20, 2003, the director issued a request forjnitial evidence (RE). The following documentation 
was requested and addressed the issue of the benefiqary's employment abroad and in the United States: 1) 
evidence of each company's staffing lqvels, the names, position titles, and duties of each company's 
employees; 2) a detailed description of th$ beneficiary's day-to-day duties with a percentage of time assigned 
to each duty in order to indicate how mpch of the beneficiary's time has been and would be devoted to each of 
the listed duties; 3) the petitioner's ta,x documentation establishing salaries paid to employees of the petitioner; 
and 4) copies of all contracts and agreements that establish the petitioner was provided with employees. 
\ 
In response, the petitioner provided the following documents: 
1. 
 Its own 2002 federal taxreturn. 
2. 
 A number of W-2 wage an4 tax statements issued by 4~ 
and u . in 2002. 
3. Personnel service agreements with Central Leasing and showing the 
existence of a contractual relationship in which each company agreed to provide the- 
petitioner with requested personnel. 
 Both agreements indicate That the companies 
providing the personnel would issue the necessary W-2s. 
Although the director specifically requested that the petitioner provide quarterly, tax returns and documents 
determining the petitioner's employees at the time period that included the date the Form 1-140 was filed, the 
petitioner failed to do so. The petitioner also failed to provlde job descriptions for any of the beneficiary's 
subordinates either abroad or in his position in the United States. 
The petitioner provided the following description of the beneficiaryls position abroad: 
[The beneficiary] spends 100% of his time on executive dpties. His executive experience, 
professional education and administrative expertise in running a business are essential to the 
success of the Canadian [clompany. As [vlice [plresident and [gleneral [mlanager of the 
Canadian [clompany, [the beneficiary] reports directly to the [plresident of the Canadian 
[clorporation. He directs and controls the operation and procedural functions of the various 
departments, e[.]g[.]: [sic] sales, marketing, and accounting departments. He is also involved 
in discretionary decision-malung authority and the majority of his duties relate to operation 
and management functions of the company. He supervises and controls the budget, strategic 
-= Page 5 
plans and financial analysis of the Canadian company. As [vlice [plresident and [gleneral 
[mlanager, he also directs the company'~.compliance with contractual agreements. 
The petitioner provided the following description of the beneficiary's proposed duties in the United States: 
[The beneficiary] spends 100% of ps time on executive duties. 
 As [plresident of the 
[clompany his duties include establishing and executing the marketing, financial and strategic 
plans for the [clompany. He establishes the overall goals and policies of the organization. 
He will perform executive decision making authority, and the majority of his duties relates 
[sic] to operational and policy management of the [c]ompany. The [plresident's executive 
experience, professional education, and administrative expertise in running a business are 
essential to the success of the [clompany. A; the [clompany's revenues increase, the 
[plresident's salary will also increase. 
It is noted that the petitioner failed to provide the requested percentage breakdowns of the specific duties the 
beneficiary performed abroad and would perform as 
 of his proposed position in the United States. 
On July 27, 2004 and again on August 3 1, 2004, the director issued a request for evidence (WE) informing 
4 
the petitioner that additional documentation would be necessary in order to determine the petitioner's 
eligibility for the immigration benefit sought on behalf bf the beneficiary. 
In a letter dated October 29, 2004, the beneficiary, on behalf of the petitioner, stated that the petitioner's prior 
attorney was no longer representing the petitioner in the'present matter. The beneficiary stated that he was in 
the process of finding new counsel who would assiit in 'responding to the director's WE. It is noted, 
however, that there is no evidence indicating that the petitioner subsequently suppleniented the record with 
any of the information requested in the RFE. 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). 
On February 25, '2005, the director denied the petition basing the denial, in part, on the conclusion that the 
petitioner faded to establish the beneficiary's employment abroad'and in the United States in primarily 
managerial or executive capacities. While the AAO concurs with the director's conclusion, her reference to 
the petitioner's tax documentation reflecting dates prior to the filing of the Form 1-140 are not relevant and 
should not have been referenced in reaching the proper conclusion. Even if documentation shows that the 
petitioner was statutorily ineligible to classify the beneficiary as a multinational manager or executive in 2000 
or 2002, the petitioner's eligibility must be based on facts in existence at the time of filing the Form 1-140. 
See Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
On appeal, counsel discusses the petitioner's failure to properly respond to the RFE, claiming that the 
petitioner was unable to secure counsel to assist in providing the necessary information. However, the record 
clearly shows that ,the beneficiary was aware of the RFE prior to the expiration of the 12-week response 
period. Moreover, the director did not issue a denial for nearly four months after the petitioner's October 29, 
2004 response to the RFE. Thus; the record shows that the petitioner was aware of the RFE and could have 
submitted further evidence or information within that four-month time period with or without the assistance 
of counsel; the petitioner's failure to act cannot be verlooked.'See 8 C.F.R. fj 103.2(b)(14). 
Additionally, the director's RFE was formulated with plain yet specific language, which clearly described the 
h 
information necessary for proper adjudication of the petitioner'? eligibility. A significant portion of the 
request dealt directly with the beneficiary's own job duties. Counsel's claim that the petitioner required the 
assistance of counsel to provide information regarding the beneficiary's own job duties, lacks merit and 
credibility. Accordingly, 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). Under the circumstances, the AAO need not and does not consider the 
sufficiency of the additionil information submitte'd ob appeal with regard to the beneficiary's foreign and U.S. 
job duties. 
In examining the executive or managerial capacity of the benefielary, CIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. 5 204.56)(5). .In the instant matter, the record lacks sufficient 
information regarding the specific job duties the beneficiary performed abroad and would perform in the 
United States on a daily basis. Specifics are clearly an important indication of whether a beneficiary's duties 
are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter 
of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 
F.2d 41 (2d. Cir. 1990). Without the necessary information, which was specifically requested in the director's 
requests, the AAO cannot gauge the beneficiary's position withsin either hierarchy, his role with respect to 
subordinate employees, the identities of the beneficiary's subordinates within the foreign and U.S. entities, or 
the beneficiary's supervisory duties at least with respect to individuals directly employed by the foreign and 
U:S. entitles. The AAO cannot conclude based on the documentation provided that the beneficiary's 
employment abroad or his proposed employment in the United States primarily involve qualifying duties 
within managerial or executive capacities. Based on A these two separate grounds for ineligibility, this petition 
cannot be approved. 
The remaining issue in the proceeding is whether the petitioner has established lts ability to pay the 
beneficiary's proffered wage\. 
\ 
The regulation at 8 C.F.R. 5 204.5(g)(a 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 evldence 
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 permapent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
\ 
In the instant matter, the Form 1-140 was filed in August of 2003. As such, the petitioner must establish its 
ability to pay as of that date. Although the director requested documentation of the petitioner's ability to pay 
in the initial notice dated October 20,2003, it is'clear that any 2003 tax documentation belonging either to the 
petitioner or the beneficiary would not have been made available as the 2003 tax year had not ended at the 
time the notice was issued. However, the director's second request for inforniation was issued in July of 2004 
and re-sent in August of 2004, at which time the necessary~documentation should have been available. In 
fact, the latest RFE specifically notes the need for more ,fecent documentation than what was previously 
i' 
i 
i 
submitted in order to determine that the petitboner met the requirements specified in 8 C.F.R. 8 204.5(g)(2). 
However, as previously stated, the petition&r failed to respond to the director's most recent request for 
evidence. Accordingly, the director's concRsion that the petitioner failed to establish its ability to pay is 
correct. Going on record without supportiGg 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 Crafr of California, 14$ I&N Dec. 190 (Reg. Comm. 1972)). 
Notwithstanding the AAO's concurrence~with the director's overall conclusion, the director improperly relied 
on irrelevant evidence in reaching her Pecision. As previously implied, the documentation submitted in 
response to the director's initla1 request conceded the 2002 tax year. However, the Form 1-140 was filed the 
following year. As such, the director improperly cited and relied on the tax documentation pertaining to the 
year prior to the filing of the Form 1-140. :while this was admittedly the only documentation available at the 
time the denial was issued, it cannot be used either to corroborate or to refute the petitioner's claim with 
regard to ~ts ability to pay. Despite counsel's flawed analysis, the record contams no evidence establishing the 
petitioner's prior payment or its ability to pay the beneficiary's proffered wage. Accordingly, based on this 
third ground of ineligibility, this petifion cannot be approved. 
When the AAO denies a petition dn multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to a11 of the AAO's enumerated grounds. 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). 
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. 
- 
/