dismissed EB-1C Case: Construction Services

U.S. Department of Homeland Security 
20 Mass Ave N.W., Rrn. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
@ 
-" 
Office: NEBRASKA SERVICE CENTER Date: 
LIN 06 253 50850 
 116 2008 
IN RE: 
Petition: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(C) 
IN 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. 5 103.5(a)(l)(i). 
Administrative Appeals Office 
DISCUSSION: 
 The employment based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The matter is now before the Administrative Appeals Office (AAO) on 
appeal. The AAO will dismiss the appeal. 
The petitioner was incorporated in the State of Florida on February 12, 2003, and claims to be 
engaged in construction services. It seeks to employ the beneficiary as its president pursuant to 
section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 153(b)(l)(C), as 
a multinational executive or manager. The petitioner claims that it is the subsidiary of Affordable 
Contracts Limited, located in Scotland. 
The director denied the petition, finding that the petitioner had failed to establish that the beneficiary 
would be employed in the United States in a primarily managerial or executive capacity. On appeal, 
counsel contends that the petitioner has sufficient staff at the U.S. office to support the beneficiary in 
a qualiQing managerial or executive position. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) 
 Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years 
preceding the time of the alien's application for classification and 
admission into the United States under this subparagraph, has 
been employed for at least 1 year by a firm or corporation or other 
legal entity or an affiliate or subsidiary thereof and who seeks to 
enter the United States in order to continue to render services to 
the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for the firm, corporation or other legal entity, or an affiliate 
or subsidiary of that entity, and are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. A United States employer may file a petition on Form I- 140 for classification 
of an alien under section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor 
certification is required for this classification. The prospective employer in the United States must 
furnish a job offer in the form of a statement that indicates that the alien is to be employed in the 
United States in a managerial or executive capacity. Such a statement must clearly describe the 
duties to be performed by the alien. See 8 C.F.R. $204.5(j)(5). 
The issue in this matter is whether the petitioner has established that the beneficiary will be 
employed in a managerial or executive capacity for the United States entity. 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or 
function for which the employee has authority. A first line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 8 1 10 1 (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. 
On Form 1-140, filed on August 11, 2006, the petitioner indicated that the beneficiary would be 
employed as its president. In a letter of support from the petitioner's former counsel, dated August 
8,2006, the beneficiary's duties were described as follows: 
9 Developing and creating new business markets, including soliciting new 
business and maintaining contacts with existing customers. 
9 Interviewing, selecting and supervising independent contractors for the 
business including[:] site supervisors, painters, general contractors, carpenters, 
etc. 
Creating, implementing and overseeing all internal company policies per US 
guidelines. 
9 Developing marketing strategies for the business enterprise including seeking 
out new advertising venues, etc. 
9 Developing and overseeing all internal human resource policies for the 
business per US labor laws including[:] working with accountants to 
determine rate of pay, and working with insurance agents to insure that all 
projects and workers are insured. 
Obtaining competent legal and accounting firms for the business enterprise. 
9 Insuring that all federal, state and local taxes are paid in a timely fashion. 
P Developing customer service policies for the business enterprise including 
follow up calls to insure that all jobs are completed properly and in a timely 
fashion, as well as receiving feedback from customers to determine what areas 
may need improvement. 
In a second letter of support from the petitioner dated July 1,2006, the petitioner expanded the list of 
the beneficiary's duties as follows: 
Developing and creating new business markets, including soliciting new 
business and maintaining contacts with existing customers. [The beneficiary] 
will spend approximately 30% of his time with these duties. 
Interviewing, selecting and 'supervising independent contractors for the 
business including[:] site supervisors, painters, general contractors, carpenters, 
etc. [The beneficiary] will spend approximately 15% of his time with these 
duties. 
Creating, implementing and overseeing all internal company policies per US 
guidelines. [The beneficiary] will spend approximately 5% of his time with 
these duties. 
Developing marketing strategies for the business enterprise including seeking 
out new advertising venues, etc. [The beneficiary] will spend approximately 
10% of his time with these duties. 
Developing and overseeing all internal human resource policies for the 
business per US labor laws including[:] working with accountants to 
determine rate of pay, and working with insurance agents to insure that all 
projects and workers are insured. [The beneficiary] will spend approximately 
15% of his time with these duties. 
Obtaining competent legal and accounting firms for the business enterprise. 
[The beneficiary] will spend approximately 1% of his time with these duties. 
Insuring that all federal, state and local taxes are paid in a timely fashion. 
[The beneficiary] will spend approximately 9% of his time with these duties. 
Developing customer service policies for the business enterprise including 
follow up calls to insure that all jobs are completed properly and in a timely 
fashion, as well as receiving feedback from customers to determine what areas 
may need improvement. [The beneficiary] will spend approximately 15% of 
his time with these duties. 
The petitioner also provided a list of the independent contractors it currently employs. The list 
included a total of fifteen contractors including site supervisors, carpenters, aluminum installers, 
masons and concrete finishers, painters, drywall installers, engineers, general contractors, plumbers, 
etc. The petitioner also submitted copies of its Forms 1099, Miscellaneous Income, issued to the 
contractors for 2005. The AAO notes however, that despite claiming to have fifteen contractors in 
its letter dated July 1, 2006, it provided documentation for only nine of these persons. Finally, the 
petitioner submitted copies of local newspaper articles and advertisements for the petitioner's 
business. 
The director found the initial evidence insufficient to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. Consequently, a 
request for evidence was issued on June 11,2007. In the request, the director required the petitioner 
to submit an organizational chart demonstrating the beneficiary's role in the organizational hierarchy 
of the petitioner. In addition, the director requested copies of the Form W-2, Wage and Tax 
Statement, issued to the beneficiary and to all other contractors or employees, as well as the 
petitioner's most recent Form 1120, U.S. Corporation Income Tax Return. 
In a response dated August 27, 2007, the petitioner addressed the director's requests. 
 The 
organizational-chart demonstrated that the beneficiary, as president, was at the top of the 
organizational hierarchy. Directly below the Repair" 
as a Site Supervisor. Finally, the chart indicated the 
 ten subordinate 
contractors andlor individuals. 
The petitioner also submitted a Form W-2 for the beneficiary for 2006, indicating that he received 
$37,500 in wages that year. The petitioner's Form 1 120, however, indicated that it paid no salaries 
or wages to any individuals that year. However, the amount of $37,500 was listed on Line 12 under 
"Compensation of Officers;" however, the corresponding Schedule E for this section was not 
completed. Finally, the petitioner submitted eleven 1099 forms for 2006. 
On October 19, 2007, the director denied the petition. The director noted that based on the 
organizational chart, it appeared that the beneficiary was responsible for all operational duties of the 
Page 6 
company, such as day-to-day marketing, accounting, financial and office management. Moreover, 
the director noted that the petitioner submitted no evidence to demonstrate that the beneficiary 
managed a subordinate staff of professionals. Finally, the director concluded that the record was 
insufficient to establish that the beneficiary was primarily a function manager. 
On appeal, newly-retained counsel for the petitioner alleges that the director's decision was 
erroneous. In support of this contention, counsel submits a twenty-two page brief which dissects the 
director's decision into "queries." Counsel specifically addresses each paragraph of the decision 
individually, and seeks to overcome the director's conclusions or refute the legal premises upon 
which the director based the decision. 
Upon review, the AAO concurs with the director's findings. When examining the executive or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the 
job duties. See 8 C.F.R. § 204.50)(5). The definitions of executive and managerial capacity each 
have two parts. 
 First, the petitioner must show that the beneficiary performs the high level 
responsibilities that are specified in the definitions. Second, the petitioner must prove that the 
beneficiary primarily performs these specified responsibilities and does not spend a majority of his 
or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 
144470 (9th Cir. July 30, 1991). 
In this matter, the petitioner and former counsel for the petition provided a detailed overview of the 
beneficiary's proposed position in the United States. The overview provided in the petitioner's letter 
dated July 1, 2006 further provided an approximately breakdown of time the beneficiary spent on 
each identified task. The AAO acknowledges that based on this description, it does appear that the 
beneficiary will engage in some high level responsibilities as contemplated by the definitions. 
However, the petitioner has failed to demonstrate that these duties will constitute a majority of the 
beneficiary's tasks. 
The director relied on the organizational chart as a basis for this conclusion. Before addressing the 
merits of the director's findings, the AAO will first review the organizational chart and the 
conflicting number of contractors claimed in the record. It is noted that in the letter dated July 1, 
2006, the petitioner claimed to employ the beneficiary and fifteen contractors. However, the 
petitioner's 1099 forms for 2005 indicate that it compensated a total of nine contractors for the year, 
as opposed to fifteen. Subsequently, the petitioner submitted its 1099 forms for 2006, which 
demonstrated that it compensated eleven contractors during that period. A petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 
(Cornrn. 1971). Therefore, since the petition in this matter was filed on August 1 1, 2006, the 
relevant documents to examine are the 2006 forms. 
However, the fact that the 2006 forms, which may or may not represent the staffing of the petitioner 
at the time of filing, mer contradict the claim that the petitioner employer fifteen contractors at the 
time of filing. Between the forms for 2005 and 2006, the petitioner failed to establish that it ever 
Page 7 
compensated more than eleven contractors in a calendar year. It is noted that, on appeal, counsel 
dismisses this issue by claiming that the total number of employees varies from year to year. While 
true, the petitioner likewise failed to demonstrate that it ever employed fifteen contractors as claimed 
on Form 1-140. Therefore, this unresolved discrepancy raises questions regarding the legitimacy of 
the petition. 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). 
Regardless, the issue that prompted the director to find the beneficiary ineligible for the 
classification sought stems from the organization hierarchy of the petitioner. Specifically, the 
beneficiary as president oversees a site manager, who in turn oversees contractors with various 
skills, whether they be carpenters, painters, etc. It appears that their services are rendered at specific 
sites where a contract is in place for a home improvement project or other related service. There is 
no mention in the record, however, of any office personnel to assist the beneficiary with 
administrative tasks, secretarial duties, marketing, or accounting, all of which are not considered 
managerial or executive functions. Thus, while the beneficiary did in fact provide a breakdown of 
the percentage of time he would devote to his high-level managerial duties, he did not account for 
these essential tasks crucial to the day-to-day operation of the business. Collectively, this brings into 
question how much of the beneficiary's time can actually be devoted to managerial or executive 
duties. 
Moreover, the breakdown of duties the petitioner provided for the beneficiary also claimed that 50% 
of his time would be devoted to tasks such as soliciting new business, maintaining contacts with 
customers, seeking out advertising, and obtaining customer feedback. These duties, which account 
for at least half of his time on the job, are not high-level duties as contemplated by the regulatory 
definitions. As stated in the statute, the beneficiary must be primarily performing duties that are 
managerial or executive. See sections 10 1 (a)(44)(A) and (B) of the Act. Furthermore, the petitioner 
bears the burden of documenting what portion of the beneficiary's duties will be managerial or 
executive and what proportion will be non-managerial or non-executive. Republic of Transkei v. 
INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Given the lack of managerial andlor executive duties 
identified in the petition, the record does not demonstrate that the beneficiary will function primarily 
as a manager and/or executive. 
As discussed by the director in the denial, an employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed 
in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Int'l., 19 I&N Dec. 593, 604 (Comrn. 1988). In this case, the AAO accepts the 
petitioner's contention that the beneficiary does not engage in actual construction work and instead 
designates contractors to complete the physical labor. However, this alone does not mean that all of 
the remaining business functions that the beneficiary is responsible for at the home office are 
primarily managerial or executive. On appeal, in response to "query 5," counsel argues that the 
beneficiary's primary functions involve high level tasks such as implementing company policies and 
developing marketing strategies. Moreover, counsel contends that the site supervisor is responsible 
for supervising the lower level employees, and thus the logical conclusion is that the beneficiary is 
engaged solely in upper level qualifying duties. Again, the AAO disagrees. 
Counsel contends that the beneficiary's position at the top of the organizational hierarchy inherently 
render him a manager or executive for the purposes of this visa classification. Moreover, counsel 
refutes that director's conclusion that the beneficiary is not overseeing a staff of professionals, and 
asserts that the contractors used by the petitioner have been in business for years and thus by virtue 
of their experience are deemed professionals. Although the beneficiary is not required to supervise 
personnel, if it is claimed that her duties involve supervising employees, the petitioner must establish 
that the subordinate employees are supervisory, professional, or managerial. See 5 10 1 (a)(44)(A)(ii) 
of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the 
field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 5 1 101(a)(32), states that "[tlhe term 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, 
and teachers in elementary or secondary schools, colleges, academies, or seminaries." The term 
"profession" contemplates knowledge or learning, not merely skill, of an advanced type in a given 
field gained by a prolonged course of specialized instruction and study of at least baccalaureate 
level, which is a realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 
I&N Dec. 8 17 (Comrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 1 1 I&N 
Dec. 686 (D.D. 1966). 
The petitioner did not provide the level of education required to perform the duties of its contractors 
or its site supervisor. Thus, the petitioner has not established that these employees possess or require 
a bachelor's degree, such that they could be classified as professionals. Counsel's contention that 
they are professionals by virtue of their experience is insufficient for purposes of this analysis. 
In conclusion, the petitioner has not explained how the services of the contracted employees obviate 
the need for the beneficiary to primarily conduct the petitioner's day-to-day business. While the 
contracted employees may in fact perform the physical labor, there is no explanation of 
documentation that the petitioner employs additional persons to perform the administrative and 
operational tasks of the petitioner's business. Therefore, absent evidence to the contrary, the AAO 
concludes that the beneficiary is primarily responsible for these tasks which would reasonably 
include marketing and selling the petitioner's services, advertising, providing estimates for home 
improvement projects, billing customers for services rendered, maintaining finances, and other 
operational, administrative and clerical tasks. As previously stated, an employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of 
the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int 'I., 19 I&N Dec. at 604. 
Page 9 
Finally, counsel argues on appeal that the director has misapplied Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). However, the issue in this matter is not whether 
documentation has been submitted in support of the petition. The issue in this matter is whether the 
documentation contained in the record independently and objectively supports the contentions of the 
petitioner. A petitioner may not simply claim a beneficiary is primarily performing managerial 
duties without clearly demonstrating that a staff is in place to perform all or most of the non- 
qualifying duties associated with the petitioner's business. In this case, while the petitioner has 
demonstrated that the beneficiary has numerous persons to perform the physical services of the 
company, the petitioner has failed to demonstrate that someone other than the beneficiary will 
answer the phones, process invoices, market the company's services, provide estimates, and manage 
the payroll and bank account. 
Counsel's statements on appeal ignore this key issue and fail to overcome the basis for the denial. 
Therefore, as correctly stated by the director, Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Without documentary evidence to support the claim, the 
assertions of counsel will not satisfjr the petitioner's burden of proof. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 
(BIA 1980). Accordingly, the appeal will be dismissed. 
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. Here, that burden has not been met. 
ORDER: The appeal is dismissed.