dismissed EB-1C Case: Construction

U.S. Department of Elomeland Security 
I 
 20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUB'LIC COW 
atiQing data deleted to 
paevent clearly unwarranted 
invatiiar of @ privacy 
U. S. Citizenship 
and Immigration 
Services 
J 
{** * 
ONT SERVICE CENTER 
 Date: My 1 5 2007 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Off~ce 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. 
Administrative ~~61s Office 
b 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of New York in February 2004, which claims to be 
engaged in the provision of construction services. It seeks to employ the beneficiary as its general manager. 
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. 5 1153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition on June 26, 2006, determining that the petitioner had not established that the 
beneficiary would be employed in a primarily managerial or executive capacity for the United States 
company. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. Counsel asserts that the beneficiary will perform primarily 
managerial duties, and will supervise a subordinate staff who will relieve him from performing the mundane 
tasks of the company. Counsel further contends that the director denied the petition, in part, based on the 
petitioner's failure to submit evidence that was never requested, in violation of the petitioner's due process 
rights. Counsel submits a brief and additional evidence in support of the appeal. 
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 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 
Page 3 
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. 
0 204.5(j)(5). 
The sole issue addressed by the director is whether the petitioner established that the beneficiary will be 
employed in a managerial or executive capacity for the United States entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment withn 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 l(a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), defines the term "executive capacity" as 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. 
Page 4 
The immigrant petition was filed on August 2, 2005. The petitioner stated on Form 1-140 that the U.S. 
company is engaged in "contracting," employs five employees, and seeks to hire the beneficiary as its general 
manager. In a letter dated July 27,2005, the petitioner provided the following description of the beneficiariy's 
proposed duties: 
Formulating policy decisions for the company 
Negotiations with customers, clients, suppliers and other entities including government 
authorities 
Provide direction to the company in consolation [sic] with the board of directors, financial 
management, acquisition of property including purchasing, etc. 
Independent decisions both operational and administrative concerning the well being and 
profitability of the company 
Hiring and firing of all staff including manageriallexecutive staff 
Expansion of business in future 
In addition, the petitioner's letter included the following description of how the beneficiary's time will be 
allocated on a weekly basis: 
Formulating the company's long and short-term business goals (10 hours). 
Researching the international market in order to develop import/sales strateges on a long and 
short-term basis (12 hours) 
Negotiating contracts and conducting follow-up with client through representatives who serve as 
liaison between General Manager and clients (6 hours) 
Determine customer's requirements as per the feedback from our representatives (6 hours) 
Communicating with suppliersldistributors to negotiate contract arrangements and with bank 
regarding necessary transfer of funds (3 hours) 
Interviewing, hiring, supervising and terminating of employees (3 hours) 
The petitioner submitted its New York Form NY-45-MN, Quarterly Combined Withholding, Wage Reporting 
and Unemployment Insurance Return for the first quarter of 2005, which lists three employees. The petitioner 
also submitted a payroll report, which shows that the company paid five employees in the months of April 
and May 2005. 
The director issued a request for additional evidence on March 2, 2006, advising the petitioner that the record 
did not establish that the beneficiary is to be employed in a position involving primarily managerial or 
executive duties. Accordingly, the director instructed the petitioner to submit: (1) a detailed description of the 
beneficiary's proposed duties including a breakdown of the number of hours he will spend on each duty on a 
weekly basis; (2) additional evidence showing the management and personnel structure of the U.S. company, 
including the number of subordinate supervisors, the job titles and duties of the employees managed, and the 
percentage of time the beneficiary will devote to manageriallexecutive and non-manageriallnon-executive 
duties; (3) a copy of its 2004 IRS Forms W-2 and W-3, along with copies of the company's 2005 pay roster; 
(4) copies of IRS Forms 941 for the second and third quarters of 2005; and (5) if the company has utilized 
Page 5 
contractors rather than employees to perform any functions, evidence documenting the number of contractors 
utilized and the duties performed. 
In a response dated May 20, 2006, the petitioner stated that the beneficiary is "the senior most manager level 
executive who is independently responsible for all of the USA Company which he manages through line 
managers and supervisors." The petitioner provided the following desclption of his duties: 
Formulating and implementation of [mlarketing and sales [pllans and policies (12 
hours). 
Establish sales [gloals and [mlarketing strategies (10 hours). 
Proposing and preparing [alnnual [bludget for all departments (2 hours). 
Negotiations with customers (8 hours). 
Hiring and [fliring of [mlanagerial and [slupervisory personnel (3 hours). 
Any other managerial/executive functions concerning marketing, including advertising, 
sales and import of material used for business (5 hours). 
The petitioner stated that there are three managers and supervisors working under the beneficiary's 
management, and that he devotes 100 percent of his time to performing "executive/managerial" duties. The 
petitioner submitted an organizational chart for the U.S. company which identifies the beneficiary as "general 
managerlmarketing," and indicates that he supervises a marketingkales manager, a finance manager, and an 
administration manager. The chart indicates that the marketindsales manager supervises an assistant 
manager, the finance manager supervises one bookkeeper and one accountant, and the administration manager 
supervises one secretary, one administrative assistant, and eight casual labor employees. Of these thirteen 
lower-level employees, only one is identified by name on the organizational chart. 
The petitioner stated that contract workers would perform "audit and accounting services" and "labor 
contracting." However, the petitioner did not respond to the director's specific request for evidence relating to 
the petitioner's use of contract employees. The petitioner submitted an interim balance sheet for the 2005 
calendar year, however, there is no indication that the petitioner paid any contract labor, other than "legal and 
professional expenses." 
The petitioner submitted the requested IRS Form 94 1, Employer's Quarterly Federal Tax Return, for the third 
quarter of 2005, which indicates that the petitioner employed three workers as of the date of filing. The 
petitioner's state quarterly wage report for the same quarter confirms that the beneficiary, the administration 
manager and the marketingkales manager were employed as August 2005. While the petitioner's earlier 
quarterly reports and Forms W-2 confirm that the assistant manager and finance manager were employed in 
the first and second quarters of 2005, there is no evidence that they worked for the U.S. company after June 
2005. 
Finally, the petitioner provided a statement which included the job duties of each of the company's claimed 
managerial/supervisory employees, including the beneficiary, whose duties were described as follows: 
General Manager: Direct and coordinate purchase, marketing and production activities to 
obtain efficiency and maximize profit. Plan and develop policies and goals for the company. 
Coordinate activities of marketinglsales and production divisions. Confer with designers to 
develop new designs. Direct and supervise marketing and production activities through 
managerial control. Supervise preparation of annual reports. Hire and fire all managerial staff 
including assistant managers. Prepare departmental budget. Negotiate with customers. Report 
to the President. 
The petitioner provided the following job description for the marketinghales manager position: 
Develop and control sales programs. Coordinate sales by establishing sales territories and 
goals. Assign territories amongst sales department staff. Analyze sales statistics to help 
formulate policy. Review market analysis to determine customer needs, volume potential 
price schedules etc. Advise customers in developing advertisement strategies. Prepare period 
sales reports. Conduct performance evaluation of staff in the sales department. Report to the 
General Manager. 
Finally, the petitioner provided the following job description for the administration manager position:' 
Coordinate all administrative functions of the Company. Prepare and maintain personnel 
records. Supervise preparation of payroll, disbursement of wages and pay. Supervise 
availability, functionality and maintenance of transportation, utilities, office equipment etc. 
Supervise maintenance of premises. 
The director denied the petition on June 26, 2006. The director concluded that the petitioner had failed to 
establish that the beneficiary would be employed by the U.S. company in a primarily managerial or executive 
capacity. The director noted a discrepancy between the number of employees identified on the petitioner's 
organizational chart, and the number of employees reported on the petitioner's quarterly tax return for the 
quarter in which the petition was filed, and further observed that only the beneficiary appears to have drawn a 
salary commensurate with a full-time position. The director further determined that as it is not clear how 
many employees the petitioner has, "it follows their titles and responsibilities can be called into question." 
The director further stated that the petitioner provided an overly-general position description for the 
beneficiary that failed to identify the specific managerial or executive duties to be performed, and thus it was 
not evident that the position is executive or managerial other than in position title. The director further stated 
that the petitioner failed to provide a breakdown of the number of hours devoted to each of the employees' job 
duties on a weekly basis, which the director stated was specifically requested. The director found that based 
1 
The AAO acknowledges that the petitioner provided a job description for the employee identified as the 
company's finance manager. However, as noted above, the petitioner has not submitted evidence to establish 
that this individual was employed after June 2005, or that the position was otherwise filled as of August 2005 
when the petition was filed. Accordingly, the description is not relevant to a determination of the beneficiary's 
eligibility as of the date of filing. 
Page 7 
on the information submitted the beneficiary's subordinates are not employed in managerial, professional or 
supervisory positions. 
Finally, the director concluded that the petitioner had not provided evidence that it employs any salespersons 
or other staff to provide the sales and services of the company, and therefore it appears likely that the 
beneficiary will perform or help perform these duties, and that he will be primarily engaged in non-qualifying 
duties for the purposes of this visa classification. 
Counsel for the petitioner filed the instant appeal on July 21, 2006, asserting on Form I-290B, Notice of 
Appeal, that the beneficiary does not perform non-qualifying duties to any significant degree, and that "the 
staff members perform the sales, services and other mundane activities of the company either through direct, 
- fulltime, permanent employment or as independent contractors." 
In an appellate brief dated August 13, 2006, counsel for the petitioner asserts that the director had no legal 
authority to require that the petitioner employ full-time employees or otherwise dictate the petitioner's 
employment practices and policies. Counsel asserts that the petitioner need only show that the employees 
relieve the beneficiary from performing the day-to-day duties associated with producing a product or 
providing a product or service. Counsel states that the petitioner's employees were required to complete a 
"comprehensive training process," prior to being offered full-time permanent positions. 
Counsel objects to the director's suggestion that the petitioner had been requested to provide detailed 
breakdowns of time allocated to various duties for the beneficiary's subordinates, noting that no such request 
was included in the request for evidence. Counsel asserts that had such a request been made, the petitioner 
"would have easily demonstrated that the sales and services duties listed in the denial notice are in fact 
performed by the subordinate employees . . . , not the beneficiary." Counsel contends that the director's denial 
of the petition based on the petitioner's failure to submit evidence that was not requested violates due process. 
Counsel states that the petitioner solicits sales through telemarketing, flyers and other forms of 
communication, and that these duties are performed through the company's sales and marketing manager, 
while the beneficiary "makes all final decisions with respect to projects on property renovation and decision 
whether to acquire property, whether it is a viable investment venture, and the extent of investment 
contributions." 
Counsel requests that the petition be approved, or that the matter be remanded to the director in order to allow 
the petitioner the opportunity to supplement the record with more detailed job descriptions for the 
beneficiary's subordinates, "and to show how the documents previously submitted as well as other documents 
not submitted can support that submission." 
Upon review of the record in this matter and for the reasons discussed herein, the petitioner has not established 
that the beneficiary would be employed in a primarily managerial or 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.F.R. fj 204.5(j)(5). The petitioner's description of the job 
Page 8 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
As noted by the director, the petitioner has failed to submit a detailed job description explaining the 
managerial or executive job duties the beneficiary performs on a day-to-day basis. Further, the petitioner has 
provided a total of three different accounts of the beneficiary's job duties, which further complicates the task 
of determining which, if any, actually provides an accurate representation of his role within the company. 
The petitioner initially indicated that the beneficiary devotes the largest portion of his time (12 hours per 
week) "researching the international market" to develop import and sales strategies. Given the petitioner's 
claim that it operates as a construction services provider for New York-city based customers, and not as an 
international import or sales company, this job duty is not credible. The petitioner further indicated that the 
beneficiary devotes an additional 12 hours per week negotiating contracts with customers, determining 
customer's requirements, and conducting follow-up with clients through "representatives who serve as a 
liaison" between the beneficiary and the clients. However, the petitioner does not claim to employ 
"representatives" and it is thus unclear who would relieve the beneficiary from performing the company's day- 
to-day sales and customer service tasks. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N Dec. 
158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Accordingly, since the initial description of the beneficiary's duties was insufficient to establish the 
beneficiary's employment in a managerial or executive capacity, the director reasonably requested a more 
detailed position description, and a clearer explanation as to how the beneficiary's time is allocated among 
managerial and non-managerial duties. The job description submitted in response to the director's request, 
and included in the petitioner's letter dated May 20, 2006, was almost entirely different from the initial job 
description. In response to the director's request, the petitioner indicated that the beneficiary devotes more 
than half of his time (22 hours per week) to establishing, formulating and implementing sales and marketing 
plans, goals and policies and an additional five hours per week performing "any other managerial/executive 
functions concerning marketing including advertising, sales and import of materials used for business." The 
petitioner provided no explanation for the change in the beneficiary's job responsibilities, nor did it indicate 
why the beneficiary would devote the majority of his time to managing marketing and sales functions when 
the company also claims to employ a marketing and sales manager. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Furthermore, the petitioner's response included a third description of the beneficiary's duties indicating his 
responsibility for directing and coordinating purchase, marketing and production activities, coordinating 
activities of marketinglsales and production divisions, conferring with designers to develop new designs, 
preparing departmental budgets, and supervising production activities. The petitioner does not claim to 
employ designers or to have a production division. 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). 
Page 9 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 9 103.2(b)(8). When responding to a request for evidence, a 
petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or its associated job responsibilities. The petitioner must 
establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248,249 (Reg. Comm. 1978). If 
significant changes are made to the initial request for approval, the petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. The information provided by 
the petitioner in its response to the director's request for further evidence did not clarify or provide more 
specificity to the original duties of the position, but rather added new generic duties to the job description. 
Therefore, the analysis of the beneficiary's duties will be based on the job description submitted with the 
initial petition. 
However, as discussed above, the job description submitted with the initial petition, which indicates that the 
beneficiary devotes nearly one third of his time to international market research and import and sales 
strategies, and works through "representatives," who are not actually employed by the company, is also not 
credible when considered in the context of the totality of the record, including the petitioner's claimed 
business activities and personnel structure. 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), afd, 905 F.2d 41 (2d. 
Cir. 1990). Therefore, the AAO is left with no detailed or credible description of the beneficiary's duties on 
which to base a determination regarding his claimed employment in a managerial capacity. If CIS fails to 
believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. fj 
1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). 
Although the director's decision gave the petitioner notice of the inadequacy of the job descriptions provided, 
counsel does not attempt to clarify the beneficiary's actual duties on appeal. Counsel simply states that the 
beneficiary "makes all final decisions with respect to projects on property renovation," and decides "whether 
to acquire property, whether it is a viable investment venture, and the extent of investment contributions." 
Rather than clarifying the beneficiary's duties, counsel has introduced new job duties related to property 
investment activities, which may or may not actually be carried out by the petitioning company. Prior to the 
appeal, the petitioner neither claimed nor presented evidence that the U.S. company is currently engaged in 
such activities. 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, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). According to the petitioner's balance sheet for the year 
ended on December 31, 2005, the U.S. company owns no property, which raises further doubts regarding 
counsel's claim that the beneficiary is responsible for property investment activities. 
With respect to the petitioner's balance sheet, the AAO further notes that although the petitioner claims to 
operate as a construction services provider, and has submitted invoices primarily for bricklaying and 
cementing services purportedly completed by the company, the petitioner's balance sheet indicates that the 
company's sole source of revenue is from "sale of merchandise" and shows that the company owns no 
Page 10 
equipment, which would appear to be a requirement for the type of work in which the petitioner claims to 
engage. Therefore, the AAO has reason to doubt that the petitioner has accurately or fully described the type 
of business operated by the company. The petitioner also claims to conduct its sales primarily through 
telemarketing, flyers and "other forms of communication" yet in response to the director's request for 
evidence, indicated that the company has no marketing materials. 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer 
seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. U.S., 345 F.3d 683, 694 (9th Cir., 2003). 
However, anytime a petition includes numerous errors and discrepancies, and the petitioner fails to resolve 
those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will raise 
serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the petitioner's 
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. at 591. In this case, the discrepancies catalogued above lead the AAO to 
conclude that the evidence of the beneficiary's employment capacity is not credible. Accordingly, the 
petitioner has not established the beneficiary's eligibility for the requested immigrant visa classification and 
for this reason alone, the appeal will be dismissed. Absent a detailed and accurate account of the nature of the 
petitioner's business and the beneficiary's role within that business, it is impossible to make a determination 
regarding the beneficiary's claimed employment capacity. 
On appeal, counsel focuses primarily on the director's statement that the petitioner had failed to provide 
detailed breakdowns of how the beneficiary's subordinates allocate their time among their various 
responsibilities. The AAO concurs with counsel's assertion that the director did not specifically request this 
evidence. The petitioner's failure to submit specific evidence that was never requested by the director cannot 
be used to discredit a petitioner's otherwise consistent claim. However, in this case, the lack of a detailed 
breakdown of the duties performed by the beneficiary's subordinates did not have a significant bearing on the 
director's decision. The AAO will nonetheless withdraw the director's comment that such evidence was ever 
requested. The petitioner's request that the petition be remanded for the sole purpose of allowing the petitioner 
to submit more detailed job descriptions for the beneficiary's subordinates will not be granted. The petitioner 
has had ample opportunity to supplement the record. 
A careful review of the adverse decision reveals that the director emphasized the lack of a detailed position 
description for the beneficiary, the discrepancy between the number of employees identified on the 
petitioner's organizational chart and the number of employees reported on the petitioner's quarterly tax returns 
for the quarter in which the petition was filed, and the lack of employees to perform the actual sales and 
services of the company. While counsel correctly states that the petitioner is not required to employ full-time 
employees, counsel does not address the discrepancies noted by the director with respect to the number of 
employees working for the petitioner at the time of filing. A review of the petitioner's quarterly wage reports, 
federal quarterly tax returns, and Forms W-2 for 2005 confirms that the only persons employed by the U.S. 
company at the date of filing were the beneficiary, the administration manager, and the marketindsales 
manager. There is no evidence supporting 'the petitioner's claim that the company continued to employ the 
finance manager or assistant manager after June 2005. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 
22 I&N Dec. at 165. Since no evidence has been submitted to clarify this discrepancy in the petitioner's 
claimed staffing levels, the AAO will assume that these employees were no longer employed by the petitioner 
when the petition was filed in August 2005. 
The petitioner also claims to employ "casual labor" on a contract basis and to utilize outside services for 
accounting and auditing purposes. While there is some evidence that the petitioner utilizes the services of a 
contracted accountant for some purposes, the record is devoid of any payments to contracted "casual labor," 
although the director specifically requested such evidence. The petitioner did not even acknowledge the 
director's instructions to provide evidence regarding contracted workers when responding to the director's 
request for evidence. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). As noted above, the petitioner's accountant- 
prepared balance sheet for the year ended on December 31, 2005 does not indicate any expenses paid to 
outside or contracted employees, other than legal and professional fees. Accordingly, it is reasonable to 
conclude that either the U.S. company is not actually providing construction contracting services as claimed 
by the petitioner, or these services are being provided by some or all of the petitioner's three confirmed 
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. 
A company's size alone, without talung into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. Section 101(a)(44)(C) of the 
Act, 8 U.S.C. 9 1101(a)(44)(C). Instead, a manager's or executive's duties must be the critical factor. 
However, as noted above, if CIS fails to believe that a fact stated in the petition is true, then that assertion 
may be rejected. Section 204(b) of the Act, 8 U.S.C. 9 1154(b); see also Systronics Corp. v. INS, 153 F. 
Supp. 2d 7, 15 (D.D.C. 2001). 
At the time of filing, the petitioner was a one-year-old company that claimed to be engaged in the provision of 
construction and property renovation services with a gross income of approximately $260,000. The evidence 
of record confirms that the petitioner employed the beneficiary as general manager, a marketing/sales 
manager, and an administration manager. The AAO notes that all of the employees have managerial titles. 
The petitioner did not submit evidence that it employed any subordinate staff members who would perform 
the actual day-to-day, non-managerial operations of the company, including marketing and selling the 
petitioner's services, performing day-to-day financial tasks, and providing the actual construction and property 
renovation services of the company. Based on the petitioner's representations, it does not appear that the 
reasonable needs of the petitioning company might plausibly be met by the services of the beneficiary as 
general manager and two additional managerial employees. If the petitioner is doing business as stated by the 
petitioner, it would reasonably require all three of its employees to devote a substantial portion of their time to 
the day-to-day non-managerial tasks associated with operating a construction services business. Regardless, 
the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of 
reviewing the claimed managerial or executive duties. The petitioner must still establish that the beneficiary 
is to be employed in the United States in a primarily managerial or executive capacity, pursuant to sections 
101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this essential 
element of eligibility. 
Page 12 
The statutory definition of "managerial capacity" allows for both "personnel managers" and "function 
managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. $ 1101(a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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)(A)(iv) of the Act; 8 C.F.R. $ 204.56)(2). If a beneficiary directly supervises other employees, the 
beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and 
take other personnel actions. Section 101(a)(44)(A)(iii) of the Act; 8 C.F.R. tj 204.56)(2). 
Here, while both of the beneficiary's confirmed subordinates have managerial job titles, the record does not 
support a conclusion that either employee supervises subordinate employees or performs managerial duties, or 
duties which require the services of a professional. 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. In the instant case, the petitioner has not 
established that a bachelor's degree is actually necessary to perform the administrative and sales work 
allegedly performed by the beneficiary's subordinates. 
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services 
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of his or her 
subordinate employees, the nature of the petitioner's business, the employment and remuneration of 
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a 
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates 
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate 
employees and inflated job titles are not probative and will not establish that an organization is sufficiently 
complex to support an executive or manager position. In the present matter, the totality of the record does not 
support a conclusion that the beneficiary's subordinates are supervisors, managers, or professionals. 
Nor does the record establish that the beneficiary will be employed as a function manager. While performing 
non-qualifying tasks necessary to produce a product or service will not automatically disqualify the 
beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the 
burden of establishing that the beneficiary is "primarily" performing managerial or executive duties. Section 
101(a)(44) of the Act. Whether the beneficiary is an "activity" or "function" manager turns in part on whether 
the petitioner has sustained its burden of proving that his duties are "primarily" managerial in nature. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. $ 11 0 I(a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. 3 204.56)(5). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. An employee who primarily performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. Boyang, 
Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this matter, the petitioner has not provided evidence 
that the beneficiary manages an essential function. As discussed above, absent a clear and credible 
breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine what 
proportion of his duties would be managerial, nor can it deduce whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section lOl(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B). 
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and 
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of 
managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad 
goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual 
will not be deemed an executive under the statute simply because they have an executive title or because they 
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide 
latitude in discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. While the beneficiary may 
exercise some discretion over the petitioning company as its general manager, the petitioner has neither 
claimed not presented evidence to establish that the beneficiary devotes the majority of his time to the goals 
and policies of the organization, rather than participating in the day-to-day operations. The petitioner's claim 
that the beneficiary devotes 100 percent of his time to "managerial/executive" duties is uncorroborated by 
documentary evidence. 
Although counsel argues that the petitioner's rights to procedural due process were violated, counsel has not 
shown that the director's application of USCIS regulations resulted in "substantial prejudice" to the petitioner. 
See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that an alien "must make an initial 
showing of substantial prejudice1' to prevail on a due process challenge). The respondents have fallen far short 
of meeting this standard. A review of the record and the adverse decision indicates that the director properly 
applied the statute and regulations to the petitioner's case. The petitioner's primary complaint is that the 
director denied the petition, in part, based on the petitioner's failure to provide evidence that was not 
requested. However, as noted above, there is no evidence that this was a significant factor in the denial of the 
petition. As previously discussed, the petitioner has not met its burden of proof and the denial was the proper 
result under the regulation. Accordingly, the petitioner's claim is without merit. 
As discussed above, the record as a whole suggests that the beneficiary and his subordinates perform the 
actual day-to-day tasks of operating the petitioner's property renovation business. The record does not 
demonstrate that the petitioner employs personnel to market, sell and perform its services, or that it outsources 
any of these basic operational functions to contracted staff. The petitioner's vague and inconsistent 
Page 14 
descriptions of the beneficiary's duties, discrepant evidence regarding the type of business operated by the 
petitioner, and the lack of sufficient personnel in the United States to perform the petitioner's services, 
preclude a determination that the beneficiary will be employed in a primarily managerial or executive 
capacity. Accordingly the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the petitioner was doing business 
for one year as of the date of filing on August 2, 2005. The regulation at 8 C.F.R. 5 204.5Cj)(3)(i)(D) requires 
that the petitioner submit evidence that the prospective United States employer has been doing business for at 
least one year. For the purpose of this visa classification, "doing business" means the regular, systematic and 
continuous provision of goods andlor services. 8 C.F.R. 9 204.5Cj)(2). Accordingly, the petitioner must 
establish that it has been doing business since August 2,2005. 
The record shows that the petitioner was incorporated in the State of New York on February 1 1,2004, and the 
beneficiary was granted L-1A classification in order to open the new office for a one-year period commencing 
on July 22, 2004. The beneficiary was granted an L-1 visa at the U.S. Consulate in Abu Dhabi on September 
24, 2004, and was admitted to the United States in L-1A status for the first time on November 15, 2004, less 
than nine months prior to the filing of the instant petition. The director requested documentary evidence of the 
petitioner's business activities for the previous year, and a copy of the petitioner's 2004 IRS Form 1120, U.S. 
Corporation Income Tax Return. The petitioner did not submit a copy of its 2004 tax return, or any evidence 
of business activities conducted prior to January 2005. The failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). The non- 
existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
5 103.2(b)(2)(i). 
Further, it appears that the bank account for the U.S. company was opened in November 2004 upon the 
beneficiary's arrival to the United States, so it is reasonable to assume, and has not been shown otherwise, that 
the company was not operational until November 2004 at the earliest, and was not doing business for one full 
year at the time the petition was filed. The director's statement that the petitioner established that the U.S. 
company had been doing business as required by the regulations is withdrawn, as the petitioner was not doing 
business for the required time period as of the date of filing. For this additional reason, the appeal will be 
dismissed. 
Beyond the decision of the director, the final issue to be discussed in the present matter is whether the 
petitioner has established that a qualifying relationship exists between the petitioner and the beneficiary's 
former overseas employer. To establish a "qualifying relationship" under the Act and the regulations, the 
petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same 
employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally 9 203(b)(l)(C) of the Act, 8 U.S.C. 5 1153(b)(l)(C); see also 8 C.F.R. 9 204.5Cj)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
Arab Emirates. In support of the immigrant petition, the petitioner submitted a copy of its certificate of 
incorporation dated February 11, 2004, indicating that the U.S. company is authorized to issue 200 shares of 
stock with no par value, and a copy of the company's stock certificate number one issuing 200 shares (100%) 
of its stock to the claimed parent company on February 15, 2004. The director subsequently requested a copy 
of the petitioner's stock ledger and copies of the minutes of the meetings of the parent company addressing the 
formation of the U.S. entity. In response, the petitioner submitted a different copy of its stock certificate 
number one, indicating that 200 shares were issued to the claimed parent company on February 27,2004. The 
petitioner submitted a copy of its shareholders register indicating the issuance of 200 shares of stock to the 
claimed parent company on February 27, 2005. The petitioner did not provide an explanation for the 
existence of two different stock certificates number one issued on different dates, nor did it clarify the 
discrepancy between the dates on the stock certificate and the date of stock issuance indicated in the 
company's stock ledger. 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 ofHo, 19 
I&N Dec. at 591-92. 
The petitioner also provided copies of two receipts for wire transfers from the Bank of Baroda in the United 
Arab Emirates, dated February 26,2005 and May 23,2005 respectively, showing that a total of $100,000 was 
transferred to the petitioner's Bank of America account. The beneficiary appears to be the originator of the 
transfer request. The petitioner indicated that this evidence demonstrates "proof of payment'' from the parent 
company. However, there is no evidence that the monies were transferred from the foreign entity's account, or 
that the funds were intended as payment for an ownership interest in the petitioning company, particularly 
considering that the petitioner was established more than one year prior to the claimed money transfer. 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. at 165. Although requested by the director, the 
petitioner has not submitted copies of its tax returns for the 2004 or 2005 years which may have assisted in 
corroborating the petitioner's claims regarding the ownership of its stock and the value of the issued stock. 
Overall, the inconsistencies and deficiencies in the evidence preclude the AAO from concluding that the 
foreign entity actually owns the petitioner. For this additional reason, the appeal will be dismissed. 
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). 
The AAO acknowledges that USCIS previously approved a new office L-1 petition and a petition requesting 
an extension of the beneficiary's L-1A status. It must be noted that many 1-140 immigrant petitions are denied 
after CIS approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the consequences of an approved 
petition, there is a significant difference between a nonimmigrant L-1A visa classification, which allows an 
alien to enter the United States temporarily, and an immigrant E-13 visa petition, which permits an alien to 
apply for permanent residence in the United States and, if granted, ultimately apply for naturalization as a 
United States citizen. Cf: $3 204 and 214 of the Act, 8 U.S.C. $3 1154 and 1184; see also 5 316 of the Act, 8 
U.S.C. tj 1427. Because CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant 
petitions, some nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 29-30; see also 8 C.F.R. 5 214.2(1)(14)(i)(requiring no supporting documentation to file a 
petition to extend an L-1A petition's validity). 
It must be emphasized that each petition filing is a separate proceeding with a separate record. See 8 C.F.R. § 
103.8(d). In making a determination of statutory eligibility, CIS is limited to the information contained in that 
individual record of proceeding. See 8 C.F.R. 8 103.2(b)(16)(ii). Despite any number of previously approved 
petitions, CIS does not have any authority to confer an immigration benefit when the petitioner fails to meet 
its burden of proof in a subsequent petition. See section 291 of the Act. 
 Based on the lack of required 
evidence of eligibility in the current record and inconsistencies catalogued above, the AAO finds that the 
director was justified in departing from the previous nonimmigrant petition approvals by denying the instant 
immigrant petition. 
If the previous nonimrnigrant petitions were approved based on the same unsupported and contradictory 
assertions that are contained in the current record, the approval would constitute material and gross error on 
the part of the director. The AAO is not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Corn. 1988). It would be absurd to suggest that 
CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomely, 
825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The director is instructed to review the prior nonimrnigrant L-1A nonimmigrant petition approvals for 
possible revocation, pursuant to 8 C.F.R. 5 214.2(1)(9). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.