dismissed EB-1C Case: Construction Materials

(b)(6)
Date: JAN 2 8 2014 Office: 
INRE: Petitioner: 
Beneficiary : 
NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case . 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
Ron Rosenberg 
(() Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner claims to be a limited liability company formed under the laws of the State of California on 
December 9, 2005 . It seeks to employ the beneficiary as President. Accordingly, the petitioner endeavors to 
classify the beneficiary as an employment-based immigrant pursuant to section 203(b )( 1 )(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 petttton based on two independent and alternative grounds, concluding that the 
petitioner failed to establish: (1) that the beneficiary was and will be employed in a primarily managerial or 
executive capacity with either the employer abroad or the U.S. petitioner; and (2) that the beneficiary was an 
"employee" of the foreign entity because the foreign entity is a sole proprietorship owned by the beneficiary. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that the beneficiary has been and is employed 
in an executive capacity in the foreign and U.S. entities, and that the foreign entity can be an "employer," 
notwithstanding it is also a sole proprietorship . Counsel submits a brief and additional evidence in support of 
the appeal. 
The AAO provided the petitioner with a notice of derogatory information (NO I) notifying the petitioner that, 
according to the records at the California Secretary of State's public website, the petitioner is in "cancelled" 
status. In response to the NDI, counsel for the petitioner acknowledges that "the LLC status of the petitioning 
company has been in fact canceled , " but asserts that " I 00% of the assets would be transferred to 
which by operation of law is a successor-in-interest and a partnership of the former members." 
I. The Law 
Section 203(b) of the Act states in pertinent part: 
(I) 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 apd 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. 
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The regulation at 8 C.F.R. § 204.5U) states: 
(1) A United States employer may file a petition on Form I-140 for classification of an alien 
under section 203(b)(l)(C) of the Act as a multinational executive or manager. 
(2) Definitions. As used in this section: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent 
or individual , or 
(B) One of two legal entities owned and controlled by the same group of individuals , 
each individual owning and controlling approximately the same shar e or proportion 
of each entity . 
* * * 
Doing business means the regular, systematic , and continuous provision of goods and /or services 
by a firm, corporation , or other entity and does not include the mere presence of an agent or 
office. 
Executive capacity means an assignment within an organization in which the employee primarily : 
(A) Directs the management of the organization or a major component or 
function ofthe organization ; 
(B) Establishes the goals and policies of the organization, component, or 
function; 
(C) Exercises wide latitude in discretionary decision-making ; and 
(D) Receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders ofthe organization. 
Managerial capacity means an assignment within an organization m which the employee 
primarily : 
(A) Manages the organization , or a department , subdivision, function, or 
component of the organization; 
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NON-PRECEDENT DECISION 
(B) 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; 
(C) 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 
(D) 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. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is in 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. 
II. Statement of Facts and Procedural History 
The petitioner filed the Form 1-140, Immigrant Petition for Alien Worker , listing its company name as 
On the Form I-140, the petitioner indicated that it was a wholesale/retail business established in 
2005, and employed "4-5 employees/indep. contractors. " 
In a letter submitted with the initial petition, the petitioner reaffirmed that it, . was formed on 
December 9, 2005, under the laws of the state of California. The petitioner asserted that in April 2008, it 
acquired 50% of another business, a retail dealer in hard and soft surface floor and wall 
coverings operating since 1978. 
The petitioner asserted that it is a subsidiary of the beneficiary's former employer, (the 
foreign entity) , in that the foreign entity owns a 75% controlling interest in the U.S. petitioner. The petitioner 
asserted that owns the remaining 25% of the U.S. entity. The petitioner asserted that the 
foreign entity is a sole proprietorship, 100% owned by the beneficiary. The petitioner described the foreign 
entity's business activities as engaging in wholesale and retail distribution of construction materials, including 
tiles, floor coverings, and bathroom and kitchen appliances. 
(b)(6)
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With respect to the U.S. entity's business activities , the petitioner submitted, inter alia: 
l. The petitioner 's Limited Liability Company Articles of Organization, filed with the State of 
California on December 9, 2005 ; 
2. Several invoices issued by the petitioner to various customers ; 
3. The petitioner's 2007 IRS Form 1065, U.S. Return of Partnership Income, indicating that the 
petitioner has two partners: who owns 25%; and the beneficiary , who owns 
75%. 
4. Purchase Agreement, dated April 29, 2008, stating that the petitioner purchased the rights to be 
50% owner of which has been in business since 1978 and employs three 
employees; 
5. Fictitious Business Name Statement, filed on April 17, 2008 with the Recorder /County Clerk, 
County of registering the fictitious business name of This document 
indicates that the business is conducted by a general partnership between and the 
beneficiary , and that its first day of business was December 1, 1988; 
6. Several invoices issued by to various customers; and 
7. IRS Form Schedule C (Form 1040), Profit or Loss from Business (Sole Proprietorship) , filed by 
',in 2007 and 2006 confirming his ownership of 
With respect to the qualifying relationship between the petitioner and the foreign entity, the petitioner 
submitted: 
I. Certificate of Interest number 1 issued by the petitioner, ~- · ·- _ .. - -___, to the foreign entity for 
75% interest, dated December 20, 2005; and 
2. Certificate of Interest number 2 issued by the petitioner, : 
25% interest, dated December 20, 2005. 
------------------------~ 
for 
The director issued a request for evidence (RFE) instructing the petitioner to submit , inter alia: a more 
detailed description of the beneficiary's job duties abroad and in the United States; evidence of employment 
of all employees depicted in the foreign entity ' s organizational chart; a detailed organizational chart for the 
U.S. entity ; the petitioner's state quarterly withholding returns for all four quarters of 2008; and the 
petitioner's 2008 federal tax return. 
After considering the petitioner ' s response, the director denied the petition based on two independent and 
alternative grounds, concluding that the petitioner failed to establish : (1) that the beneficiary was and will be 
employed in a primarily managerial or executive capacity with either the employer abroad or the U.S. 
petitioner; and (2) that the beneficiary was an "employee " of the foreign entity because the foreign entity is a 
sole proprietorship owned by the beneficiary. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal , counsel asserts that the beneficiary has been and is employed 
(b)(6)
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Page 6 
in an executive capacity in the foreign and U.S. entities, and that the foreign sole proprietorship can be an 
"employer." 
In support of the appeal , counsel submits the Partnership Agreement between the petitioner and 
dated April 29, 2008, which states that the petitioner purchased the right to be the 50% owner of 
The Partnership Agreement specified the following division of labor: the beneficiary as President; 
as Administrative 
Assistant. Counsel also submits the foreign entity's payroll records as of September 2005, reflecting the 
following employees: J 
The AAO provided the petitioner with a notice of derogatory information (NDI) notifYing the petitioner that, 
according to the records at the California Secretary of State's public website, the petitioner is in "cancelled " 
status. The AAO advised the petitioner that the petitioner 's "cancelled" status raised questions as to whether 
the petition has become moot, as well as other questions pertaining to the petitioner ' s eligibility for the 
requested visa, such as whether it continues to exist as an importing employer, whether the petitioner maintains a 
qualifYing relationship, and whether it is authorized to conduct business in a regular and systematic manner. See 
section 203(b)(l)(C) of the Act; see also 8 C.F.R. § 204.5(j)(2). The AAO allowed the petitioner 30 days in 
which to provide a certificate of good standing or other proof that the petitioning business has not been 
cancelled and is currently in active status. 
In response to the NDI, counsel for the petitioner acknowledges that "the LLC status of the petitioning 
company has been in fact canceled ," but asserts that "pursuant to the Agreement of Dissolution and Winding­
Up of -- ·· ~ _ ---~ __ -, the members provided that 100% of the assets would be transferred to-~- - - __ , 
which by operation of law is a successor-in-interest and a partnership of the former members- the foreign 
entity and Counsel asserts that, in essence, the petitioning company was converted from 
a LLC to a general partnership, and asserts that "[a] partnership is an entity distinct from its partners." 
Counsel further asserts that the petitioner "continues to exist as a business entity and is currently in active 
status." Counsel cites to Sherron Associates Loan Fund Mars Hotel LLC v. Saucier, No. 28238-4-III, 20 I 0 
Wash. App. LEXIS 1800 (Wash. Ct. App. Aug . 5, 2010) and the USCIS Memorandum , D. Neufeld , Acting 
Associate Director , Domestic Operations "Successor-in-Interest Determinations in Adjudication of Form 1-
140 Petitions." 
In response to the NDI, counsel submits, inter alia, the following: 
1. Agreement of Dissolution and Winding-Up of , dated December 27, 2007, 
. entered into between the beneficiary on behalf of the foreign entity and 
providing that the members agree to liquidate an,d dissolve the company and "shall have the 
authority to wind up the Company 's business, including full power and authority to: (a) Transfer 
all the Company's assets and essential rights to to enable it to continue the Company's 
business in the same manner"; 
2. Business license of effectiv e February 27, 2013; and 
3. Recent invoices issued by 
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III. Analysis 
A. Successor in Interest Claims 
As an initial matter , beyond the decision of the director, the AAO finds that the petitioner does not qualify as 
a United States employer that has a qualifying relationship with the foreign entity as a subsidiary or affiliate . 
See Section 203(b )( 1 )(C) of the Act (requiring the beneficiary to render services to the same employer or a 
subsidiary or affiliate thereof); 8 C.F.R. § 204.5(j)(3) (requiring a United States employer to file the Form 1-
140, and defining the terms "affiliate," "subsidiary" and "doing business" as requiring the petitioner to be a 
legal entity). 
At issue here is the cancellation and dissolution of the petitioner as a limited liability company (LLC) in 2007, 
in the State of California, prior to filing this petition. The petitioner does not dispute the fact that the 
petitioner's LLC status has been cancelled. The fact that the petitioner voluntarily dissolved as an LLC in 
December 2007 raises questions as to why the petitioner still listed its name on the Form I-140 as" 
LLC" and represented itself as an LLC formed in the State of California in the initial documentation 
submitted with the Form I-140. The petitioner did not acknowledge the dissolution of the LLC until the AAO 
issued the NDI, and did so without explaining why it failed to disclose this fact at the time of filing. 1 
In response to the NDI, the petitioner claims that it still exists as a legal business entity in the form of a 
general partnership. Specifically, counsel asserts that "pursuant to the Agreement of Dissolution and 
Winding-Up of . the members provided that 100% of the assets would be transferred to 
which by operation of law is a successor-in-interest and a partnership of the former members- the 
foreign entity and Counsel asserts that, in essence , the petitioning company was 
converted from a LLC to a general partnership, and asserts that "[a] partnership is an entity distinct from its 
partners." 
With reference to business entities, the term "successor-in-interest" is defined as "a corporation that, through 
amalgamation, consolidation, or other assumption of interests, is vested with the rights and duties of an earlier 
corporation." Black's Law Dictionary , 1569 (9th Ed, 2009). Policy and precedent allow USCIS to reaffirm 
the validity of a previously approved labor certification or 1-140 petition in successor-in-interest scenarios, 
e.g., when a prior entity has been bought out, merged , or had a significant change in ownership. See Matter of 
Dial Auto Repair Shop, Inc., 19 I&N Dec . 481 (Comm'r 1986); see also, Neufeld, "Successor-in-Interest 
Determinations in Adjudication of Form I-140 Petitions," at 2. 
In Dial Auto Repair Shop, the Commissioner stated that if the successor petitioner's "claim of having, 
assumed all of [predecessor's] rights, duties, obligations, etc., is found to be untrue, then grounds would exist 
for invalidation of the labor certification . . . . Conversely, if the claim is found to be true, and it is 
1 When asserting a successor-in-interest claim, the successor petitioner most often files the Form 1-140 since 
the predecessor entity is frequently dissolved or cancelled, as in the present case. See, e.g. Matter of Dial 
Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm 'r 1986). Even if the petition were approved on behalf of a 
dissolved or cancelled business entity, the approval would be immediately subject to automatic revocation 
based on the termination ofthe employer 's business. 8 C.F.R. § 205.1(a)(iii)(D). 
(b)(6)
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Page 8 
determined that an actual successorship exists , the petition could be approved if eligibility is otherwise shown 
. ... " 19 I&N Dec. at 482-83. 
According to USCIS policy and the Dial Auto Repair Shop precedent decision, the factors to consider when 
making such determinations are: 
I. The job opportunity offered by the successor must be the same as the job opportunity 
originally offered on the labor certification; 
2. The successor bears the burden of proof to establish eligibility in all respects, including 
the provision of required evidence from the predecessor entity, such as evidence of the 
predecessor's ability to pay the proffered wage, as of the date of filing of the labor 
certification with DOL; and 
3. For a valid successor-in-interest relationship to exist between the successor and the 
predecessor that filed the labor certification, the petitioner must fully describe and document 
the transfer and assumption of the ownership of the predecessor by the successor. 
Memo at 3. 
While the successor-in-interest evaluation most frequently arises in the context of Department of Labor 
(DOL) labor certifications and the related 1-140 visa petitions , there is nothing to bar a petitioner from making 
a similar claim in the context of an 1-140 petition filed under section 203(b)(l)(C) of the Act. In such a 
petition, the AAO would expect the petitioner to demonstrate that: 
1. The managerial or executive job opportunity offered by the successor remains the same as 
that originally offered; 
2. The successor satisfies the burden of proof by establishing eligibility in all respects , 
including the successor's maintenance of a qualifying relationship with the beneficiary's 
overseas employer; and 
3. The petitioner must fully describe and document the transfer and assumption of the 
ownership of the predeces sor by the successor . 
In the present matter , the petitioner failed to provide any credible documentary evidence to support its 
successor-in-interest claims. Counsel has not established that the former members of have 
entered into a legal partnership named 
cancelled petitioning organization , 
· · which can be considered a successor-in-interest of the 
Foremost, counsel submits no partnershi agreement or any other evidence to establish that a partnership was 
formed between the foreign entity and under the laws of the State of California or any other 
state in the United States . Going on record without supp01ting documentary evidence is not sufficient for 
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Page 9 
purposes of meeting the burden of proof in these proceedings . Matter of So.ffici, 22 l&N Dec. 158, 165 
(Comm ' r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg . Comm ' r 1972)). 
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, 191&N Dec . 1 (BIA 1983); Matter of Ramirez-Sanchez , 
17 J&N Dec. 503, 506 (BJA 1980). 
Further , counsel cites to no statute , regulation, code, or case law to support the assertion that the dissolution of 
the petitioner's LLC status resulted in the formation of a general partnership "by operation of law." To the 
contrary, the case cited by counsel , Sherron Associates Loan Fund Mars Hotel LLC v. Saucier, 2010 Wash. 
App. LEXIS 1800, held that the assets of a cancelled LLC pass to the owners of the LLC, subject to creditor 
claims. This case does not support counsel's claim that a cancelled LLC results in the formation of a general 
partnership by operation of law. Instead, Cal. Corp. Code § 17353 (2013) confirms that the remaining assets 
of a dissolved limited liability company pass to the members of the limited liability company (except as 
otherwise provided in the articles of organization or written operating agreement , and after all liabilities and 
debts are paid and provided for). 
Therefore , assuming that the petitioner ' s articles of organization or written operating agreement did not 
otherwise provide and that all liabilities and debts were paid and provided for, the petitioner 's dissolution as a 
LLC resulted in the remaining assets being transferred to the individual members , not in the creation of a 
general partnership "by operation of law." A favorable successor-in-interest finding requires more than the 
passing of the predecessor's assets to the former members or owners, it requires an actual successor entity. 
Absent evidence of a legal partnership entered into by the foreign entity and the record 
reflects that the petitioner in this case remains the dissolved or cancelled LLC? 
Finally, assuming arguendo that the foreign entity and entered into a legal partnership 
named the petitioner failed to establish that can be considered a "successor-in-interest" 
according to the · "Successor-in-Interest Determinations in Adjudication of Form 1-140 
Petitions." Here, the petitioner did not fully describe and document the transfer and assumption of the 
2 
The fact that the petitioner remains the dissolved or cancelled LLC compounds the already confused record 
regarding the claimed qualifYing relationship with the beneficiary's overseas employer. In the original 
petition , the cancelled petitioner claimed that it was the subsidiary of the overseas employer, 
In support of this claim , the petitioner submitted two "Certificates of Interest" for 
representing as the 75% owner. However, the petitioner also submitted its 2007 IRS 
Form 1065, U.S. Return of Partnership Income, along with two Schedule K-1 s, which represent the 
beneficiary as the 75% owner and not the foreign business . 
If accepted as valid, the "Certificates of Interest " and the tax return are clearly conflicting. However , given 
the subsequent revelation that the petitioning LLC had already been cancelled and wound up, the evidence 
submitted to demonstrate a qualifYing relationship must be deemed to lack any probative value . 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. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). 
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NON-PRECEDENT DECISION 
Page 10 
ownership of The Agreement for Dissolution and Winding Up of 
LLC merely states that the members "shall have the authority to wind up the Company's business, including 
full power and authority to: (a) Transfer all the Company ' s assets and essential rights to 
to enable it 
to continue the Company's business in the same manner." The agreement does not establish that 
LLC, actually transferred the company's assets, 
essential rights, and ownership to Solid Tile. 
At best, the assets of the dissolved petitioner have passed to the former members, the foreign entity and 
Magdolna Fischer. However , a foreign entity with no location in the United States is not an employer and, 
therefore, cannot offer permanent employment in the United States to an alien. Only a U.S.-based branch 
office, affiliate, or subsidiary of a foreign organization may file such a petition. Matter Of A. Dow Steam 
Specialities, Ltd., 19 I&N Dec . 389 (Comm'r 1986); see also Matter of Penner, 18 I&N Dec. 49, 54 (Comm'r 
1982). Furthermore, a nonimmigrant alien is not competent to offer permanent employment to an alien 
beneficiary for the purpose of obtaining an immigrant visa for the beneficiary under section 203(b)(l)(C) of 
the Act. See Matter of Thornhill, 18 I&N Dec. 34 (Comm'r 1981). 
Upon review, the LLC petitioner in this matter has been cancelled and administratively dissolved; it does not 
maintain standing to file this petition as an employer. First-preference immigrant status under section 
203(b )(1 )(C) of the Act requires that the beneficiary have a permanent employment offer from the petitioner. 
For this reason, the petition may not be approved. 
B. Beneficiary's employment capacity abroad 
Upon review of the evidence, the petitioner has also failed to establish that the beneficiary was employed 
abroad in an executive capacity. Sec. I 0 l(a)( 44)(8) of the Act. The petitioner does not assert that the 
beneficiary will be employed in a managerial capacity. Therefore, the AAO will only analyze the 
beneficiary ' s employment in an executive capacity. 
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.P.R. § 204.50)(5). 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. 
In the instant matter, the petitioner described the beneficiary's job duties in very broad and duplicative terms. 
For instance, in describing the beneficiary's duties abroad, the petitioner asserted that the beneficiary ' s duties 
consisted of being "[i]n charge of business development and directing and planning the growth and 
development of the company," "establishing, developing and implementing financial, administrative and 
operational policies and objectives ," "[directing] and [coordinating] the formulation of financial, sales and 
marketing programs to provide funding and strategic support for new and continuing operations," "[assessing] 
international markets for potential growth and expansion ," "[developing] and [overseeing] implementation of 
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product management strategies " and "[overseeing] and [directing] the company's operations, exercising wide 
latitude in discretion." 
The petitioner's description does not clearly identify the executive duties to be performed with respect to the 
actual operation of the company, and instead merely paraphrase the statutory definition of executive capacity. 
See section l01(a)(44)(B) of the Act. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp . 1103, 1108 (E.D.N.Y. 
1989), a.ffd, 905 F. 2d 41 (2d . Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N .Y.). 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 . Conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient. 
While the petitioner separately listed the beneficiary 's day-to-day tasks within each broad category of duties, 
the listed day-to-day tasks were also too vague and duplicative as to give any meaningful insight into the 
beneficiary actual day-to-day duties. Notably , the petitioner listed the beneficiary 's job duty of meeting with 
various employees and outside firms as eight separate day-to-day tasks , and his duty of delegating unspecified 
duties as two separate day-to-day tasks. The petitioner 's description fails to provide any meaningful detail or 
explanation of the beneficiary's actual day-to-day duties 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 1108. 
Thus, while most of the duties generally described by the petitioner would generally fall under the definiti on 
of executive capacity, the lack of specificity raises questions as to the beneficiary's actual responsibilities. 
Overall , the position description alone is insufficient to establish that the beneficiary's duties were primarily in 
an executive capacity. Accordingly, the totality of the record must be considered in analyzing the 
beneficiary's employment capacity . 
In the instant matter , the petitioner failed to provide credible and accurate evidence of the foreign entity 's 
staffing and organizational structure. According to the organizational chart, the foreign entity employed nine 
employees (including the beneficiary and two commission-based salesmen) , plus an unspecified number of 
independent contractors for warehouse staff and one market research analyst who worked on a project basis. 
However, the petitioner failed to submit evidence consistent with the staffing depicted in the organizational 
chart. The petitioner submitted payroll evidence dated September 2007 reflecting that the foreign entity 
employed only four employees: ' The 
petitioner submitted no payroll evidence or other evidence of employment compensation to 
and the two commission-based salesmen. The petitioner also submitted no evidence of 
3 While the petitioner also submitted the foreign entity's payroll records as of September 2005, these records 
were submitted on appeal for the first time, and therefore will not be considered . The petitioner was put on 
notice of required evidence and given a reasonable opportunity to provide it for the record before the visa 
petition was adjudicated . The petitioner failed to submit the requested evidence and submits it for the first 
time on appeal. See Matter of Soriano, 19 J&N Dec. 764 (BJA 1988); Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). Even if the AAO were to consider this evidence , it does not appear to give an accurate 
depiction of the foreign entity ' s staffing as of the time the beneficiary was last employed by the foreign entity 
in January 2007. 
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payment to its claimed independent contractors, including the entire warehouse staff and the market research 
analyst. The AAO notes for the record that _ _ is depicted as the CFO in both the foreign and U.S. 
entities. The petitioner submitted no explanation for how L could be concurrently employed by 
both the foreign and U.S. entities. 
Notably, the director's RFE specifically instructed the petitioner to submit evidence of employment of all 
employees depicted in the foreign entity's organizational chart, as well as evidence showing payment to any 
individual who was not a direct employee. The petitioner failed to submit such evidence or any explanation 
for why such evidence was not available. The failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § I 03.2(b )(14). 
The petitioner submitted an excerpt from a Collaboration Agreement between the foreign entity and 
TT ~- stating that the parties "are agreeing in the field of market research and market 
acquisition. [The foreign entity] agrees to give an 8% commission to , as well as will provide 
continuous furnishing of materials and will defer payment with monthly invoicing." The petitioner also 
submitted a letter from · verifying that the foreign entity and . Marketing company have 
an independent contractor relationship since 2008, in which . provides 
marketing services in exchange for an 8% discount on merchandise. These documents do not constitute 
credible evidence that - . is an independent contractor of the foreign entity as a 
market research analyst. The documents only vaguely state that will provide "marketing 
services." They do not detail . ·- · contracted duties, payment/compensation, or any other 
specific terms of the agreement other than the foreign entity's provision of an 8% commission in the form of 
merchandise discount given to The provision of a discount on merchandise does not evidence an 
independent contractor relationship. 
Similarly, the petitioner submitted an excerpt from a Collaboration Agreement between the foreign entity and 
indicating that the foreign entity will be a reseller , and 
will be a wholesaler. The petitioner also submitted letters 
from verifying that the foreign entity and have 
independent contractor relationships, in which the companies receive a contractor's discount off purchased 
merchandise. These documents also do not constitute evidence that the above entities or individuals are 
independent contractors of the foreign entity. The relationship of the foreign entity and 
as a reseller-wholesaler, and the provision of a contractor's discount to the 
various companies or individuals, do not evidence an independent contractor relationship. Furthermore, the 
petitioner does not claim any of the above entities or individuals to be the contracted "warehouse staff' 
depicted on the organizational chart. 
Based on the above, the petitioner failed to submit credible, accurate evidence of the foreign entity's actual 
staffing and organizational structure. As the director discussed, since the beneficiary's time reportedly 
consisted largely of meeting with these claimed employees and independent contractors and delegating duties 
to them, the petitioner's failure to establish the foreign entity's staffing raises questions as to the accuracy of 
the petitioner's description of the beneficiary's duties. Furthermore, without credible, accurate evidence of 
(b)(6)
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Page 13 
the foreign entity ' s staff and independent contractors, the petitioner failed to establish that the petitioner had a 
sufficient organizational structure to relieve the beneficiary from performing non-qualifying duties. 
As such, the petitioner failed to establish that the beneficiary spent the majority of his time performing 
qualifying duties within the foreign entity. 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 10l(a)(44)(A) and (B) ofthe Act (requiring that one "primarily " perform the 
enumerated managerial or executive duties) ; see also Matter of Church Scientology Int'l., 19 l&N Dec. 593, 
604 (Comm ' r 1988). 
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 l&N Dec. 582, 591-
92 (BIA 1988). 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 ofthe visa petition./d. 
Based on the above, the petitioner failed to establish that the beneficiary was employed abroad in an executive 
capacity. For this reason , the appeal must be dismissed. 
C. Employment capacity in the United States 
Upon review of the evidence, the petitioner has also failed to establish that the beneficiary will be employed 
in the United States in an executive capacity . Sec. 10l(a)(44)(B) of the Act. The petitioner does not assert 
that the beneficiary will be employed in a managerial capacity. Therefore , the AAO will only analyze the 
beneficiary's employment in an executive capacity. 
Similar to the petitioner's description ofthe beneficiary's job duties abroad, the petitioner's description of the 
beneficiary ' s job duties in the United States is overly broad and duplicative . The petitioner asserted that the 
beneficiary performs duties such as "[p]lans , develops and establishes financial, administrative and 
operational policies and objective s," "[d]irects and coordinates the formulation of financial , sales and 
administrative areas, " "[e]stablishes responsibilities and procedures for attaining sales and market expansion 
objectives, " and "[o]versees the company ' s day-to-day operations , exercising wide latitude in discretion." 
His day-to-day duties also largely consist of meetings with various employees and delegating unspecified 
duties. 
Again , the petitioner's description does not clearly identify the executive duties to be performed with respect 
to the actual operation of the company , and instead merely paraphrases the statutory definition of executive 
capacity. See section I 0 I (a)( 44)(B) of the Act. Merely repeating the language of the statute or regulations 
does not satisfY the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp . at 1108. 
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. Id. 
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The petitioner seeks to rely upon its claimed 50% acquisition of an existing business, The 
petitioner indicated on its combined organizational chart that it and employ six employees 
(including the beneficiary), in addition to an accountant who is an independent contractor and nine 
subcontractors. However , as with the foreign entity, the petitioner failed to submit credible , accurate 
evidence of the U.S. entity's actual staffing and organizational structure. The petitioner's state quarterly wage 
and withholding report for the quarter ending on September 30, 2008 reflects that the company employed two 
employees at the time the instant petition was filed: the beneficiary and · state 
quarterly wage and withholding report for the quarter ending on September 30, 2008 reflects that the 
company employed only one employee at the time of filing: either 
Accordingly, the state quarterly wage and withholding reports indicate that the petitioner 
employed a total of three staff members , including the beneficiary, and not the claimed six employees. 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 . Matter of Ho, 19 I&N Dec . at 
591. 
The petitioner submitted no evidence of wages paid to 
all claimed employees, as depicted by the organizational chart. 
The petitioner also submitted no evidence to establish that it utilizes the services of 
Accountant, as an independent contractor or the nine claimed subcontractors. 
On the Form 1-140, the petitioner indicated that it was a wholesale/retail business established in 2005, and 
currently employs "4-5 employees/indep. contractors ." The purchase agreement indicated that 
has three employees. In total, this claimed staffing of 7-8 employees is inconsistent with the staffing depicted 
in the combined organizational chart as well as in the state quarterly wage and withholding reports. 
The AAO finds that the submitted evidence of the petitioner ' s staffing is not credible. If USCIS fails to 
believe that a fact stated in the petition is true, USCIS may reject that fact. Section 204(b) of the Act, 8 
U.S.C. § 1154(b); see also Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir.l989); Lu-Ann Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, I 0 (D.D.C.I988); Systronics Cmp. v. INS, 153 F. Supp. 2d 7, 15 (D.D .C. 200 I) . 
Without credible, accurate evidence of the U.S. petitioner 's staff and organizational structure, the accuracy of 
the petitioner 's description of the beneficiary's duties is questionable. Furthermore, without such evidence, 
the petitioner failed to establish that the petitioner had a sufficient organizational structure to relieve the 
beneficiary from performing non-qualifying duties . As such, the petitioner failed to establish that the 
beneficiary spends the majority of his time performing qualifying duties. Again, 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 I Ol(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., 19l&N Dec. at 604 . 
Based on the above, the petitioner failed to establish that the beneficiary will be employed in the United 
States in an executive capacity. For this additional reason, the appeal must be dismissed. 
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D. Beneficiary 's Status as an "employee " with Foreign Entity 
Upon review , the AAO will reserve the issue of whether the beneficiary was an employee of the sole 
proprietorship foreign entity. Section 203(b)(J )(C) of the Act requires the beneficiary to have been 
"employed" abroad for at least one year in the three years preceding the time of the alien's application for 
classification and admission into the United States . 
The question of whether the beneficiary was an employee of the foreign sole proprietorship may be a question 
of foreign law. On appeal, counsel cites instead to the U.S. Internal Revenue Services' treatment of single 
member LLC's as sole proprietorships , as well as sole proprietorship retirement plans. In immigration 
proceedings , the law of a foreign country is a question of fact which must be proven if the petitioner relies on 
it to establish eligibility for an immigration benefit. Matter of Annang, 14 l&N Dec. 502 (BIA 1973). 
While USCIS has not defined the terms "employee," "employer ," or "employed" by regulation for purposes of 
the multinational executive and managerial immigration classification, the Supreme Court of the United 
States has determined that where a federal statute fails to clearly 
define the term "employee," courts should 
conclude "that Congress intended to describe the conventional master-servant relationship as understood by 
common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden , 503 U.S. 318, 322-323 (1992) 
(quoting Community for Creative Non-Violen ce v. Reid, 490 U.S. 730 (1989)). 
In the present case, the beneficiary claims to be the owner and sole proprietor of the foreign business. Unlike 
a corporation, a sole proprietorship does not exist as an entity apart from the individual owner . Matter of 
United Investment Group, 19 I&N Dec. 248 (Comm ' r 1984). A sole proprietorship is a business in which one 
individual personally owns all of the assets, personally owes all the liabilities, and operates the business in his 
or her personal capacity. Black's Law Dictionary , 1520 (9th Ed. 2009). 
As the appeal will be dismissed on the previously cited grounds , the AAO will reserve the point of law. 
However, without reaching the question of the beneficiary's employer-employee relationship with his own 
sole-proprietorship , it is noted that the regulations require the submission of evidence to establish that the 
foreign sole proprietorship continues to do business. 8 C.F.R. § 204.5(j)(2) . The presence of the sole 
proprietor beneficiary in the United States, along the meager evidence of the overseas company 's business 
activities, raises the question of whether the foreign business continues to do business abroad in a regular , 
systematic, and continuous manner. 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision . In visa petition proceedings, it is the petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U .S.C. § 1361; Matter of Otiende, 26 I&N Dec. 
127, 128 (BIA 20 I 3). Here, that burden has not been met. 
ORDER: The appeal is dismissed.