dismissed EB-1C Case: Corporate Management

identifYing data deleted to 
prev~nt clearly unwarranted 
UlV8Slon of personal . pnvacy 
PfJBLlC COpy 
FILE: OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
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 
Date: MAR 0 4 2011 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case, Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § !O3.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § !03.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscIs.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Delaware corporation seeks to employ the beneficiary as its chief operating officer. 
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. § 1 1 53(b)(I)(C), as a 
multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: I) the petitioner failed to 
establish that the beneficiary was an employee of the petitioning entity, or of its foreign affiliate or subsidiary, 
prior to his entering the United States; and 2) the petitioner failed to establish that the beneficiary would be 
employed in the United States in a managerial or executive capacity. On appeal, counsel disputes both 
grounds for denial and submits a brief in support of her assertions. 
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 ofthe 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 I year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(I)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first issue in this proceeding is whether the beneficiary was an employee of the petitioning entity prior to 
entering the United States to work for the petitioner in the proposed position. In his decision dated June I, 
2009, the director determined that he was not. After reviewing the record in its entirety, the AAO concurs 
with the director's finding. 
Page 3 
In support ofthe Form 1-140, s vice president of administration, submitted a letter 
stated that the beneficiary was employed abroad as a 
The director subsequently issued a request for evidence (RFE) in which he 
dated July 17,2008 on the p~llllu'n~r 
director of the petitioning entity. 
asked the petitioner a series of questions in an attempt to determine whether the beneficiary was an employee 
of the foreign entity. 
In response, the petitioner provided a letter from counsel dated April 20, 2009. Counsel claimed that the 
beneficiary owns only 25% of the petitioning entity, is subject to the control of the board of directors, and has 
been treate~loyee for all intents and purposes. The petitioner also provided a letter dated April IS, 
2009 from_, the petitioner's chief technology officer, on behalf of the petitioner. _also 
assured the director that the beneficiary is subject to the control of the petitioner's board of directors and is 
only a minority shareholder. stated that the petitioner has always intended for the beneficiary to be 
an employee and explained that the beneficiary was paid as a consultant due to the tax benefits offered in 
South Africa. Additionally, the petitioner submitted the independent consulting agreement entered into on 
September 29, 2005 by the beneficiary and the petitioning entity 
In a decision dated June 1, 2009, the director denied the petition, pointing to section ten of the agreement, 
which states that the beneficiary entered the agreement in the capacity of "an independent Consultant and not 
as an agent, partner, joint venturer, representative or employee of the Company or any of its affiliates and 
shall have no authority to bind or commit Company by or to any contract or otherwise." The director further 
noted that the beneficiary did not become an employee of the petitioning entity until March I, 2007. 
On appeal, counsel refers to an unpublished decision in which the AAO listed a variety of factors that are 
considered in order to determine the extent to which an employer has control over an individual and whether 
that individual can be deemed an employee. Counsel asserts that proper application of the AAO's prior 
decision will lead to the conclusion that the beneficiary had the requisite employer-employee relationship 
with the petitioner during his employment abroad. Counsel points to the original support letter from Mr. 
Lurie, which was submitted in support of the petition, as well as the petitioner's Articles of Incorporation, 
where the beneficiary was named as one of the petitioner's five mem bers of the board of directors. 
Counsel's arguments, however, are insufficient to overcome the director's conclusion, which was primarily 
based on the express language of an agreement that was entered into by the beneficiary and the petitioning 
entity in which the petitioner indicated that it did not intend to use the beneficiary's services abroad in the 
capacity of a company employee, but rather in the capacity of an independent consultant. The very fact that 
the petitioner is now disputing the express terms of the contract has resulted in a factual inconsistency, which 
the petitioner can only resolve by submitting independent objective evidence. See Matter of Ho, 19 I&N Dec. 
582,591-92 (BIA 1988). Moreover, the AAO notes that, in general, 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». Therefore, even if the AAO were to disregard the consulting agreement 
and to consider only the petitioner's claim that the beneficiary provided his services abroad as an employee of 
the petitioning entity, the claim alone would be insufficient without corroborating evidence. The AAO 
cannot, however, consider only the petitioner's claims when there is documentation on record, i.e., the 
express language of the consulting agreement, which directly contradicts those claims. The very fact that the 
consulting agreement clearly defines the capacity in which the beneficiary's services were being retained 
creates the presumption that the beneficiary was not an employee of the petitioning entity prior to the 
Page 4 
expiration of the agreement. While the AAO acknowledges that the petitioner may rebut the presumption that 
was created by the terms of the consulting agreement, a rebuttal can only succeed in overcoming that 
presumption if it includes supporting documentary evidence. Here, such evidence was not submitted. 
Furthennore, section 203(b)(I)(C), 8 U.S.C. § 1153(b)(I)(C), requires beneficiaries to have been "employed" 
abroad and to render services to the same "employer" in the United States in a managerial or executive capacity. 
Section IOI(a)(44), 8 U.S.C. § 1 10 1 (a)(44), defines both managerial and executive capacity as an assignment 
within an organization in which an "employee" perfonns certain enumerated qualitying duties. Finally, the 
specific definition of "managerial capacity" in section 10 1 (a)(44)(A), 8 U.S.c. § 1 10 1 (a)(44)(A), refers repeatedly 
to the supervision and control of other "employees." While neither the legacy Immigration and Naturalization 
Service nor U.S. Citizenship and Immigration Services (USCIS) has defined the tenns "employee," 
"employer," or "employed" by regulation for purposes of the multinational executive and managerial 
immigration classification, the Supreme Court of the United States has detennined that where a federal statute 
fails to clearly define the tenn "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) (hereinafter "Darden") (quoting Community for 
Creative Non-Violence v. Reid, 490 U.S. 730 (1989». That definition is as follows: 
In detenn ining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which the 
product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the duration 
of the relationship between the parties; whether the hiring party has the right to assign 
additional projects to the hired party; the extent of the hired party's discretion over when and 
how long to work; the method of payment; the hired party's role in hiring and paying 
assistants; whether the work is part of the regular business of the hiring party; whether the 
hiring party is in business; the provision of employee benefits; and the tax treatment of the 
hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency § 220(2) (1958); Clackamas 
GastroenterologyAssociates, P.e. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the common­
law test contains "no shorthand fonnula or magic phrase that can be applied to find the answer, ... all of the 
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968). 
Within the context of immigrant petitions seeking to classity the beneficiary as a multinational manager or 
executive, when a worker is also a partner, officer, member of a board of directors, or a major shareholder, the 
worker may only be defined as an "employee" if he or she is subject to the organization's "control." See 
Clackamas Gastroenterology Associates, P.e. v. Wells, 538 U.S. 440, 449-450 (2003); see also New 
Compliance Manual at § 2-III(A)(1)(d). Factors to be addressed in detennining whether a worker, who is 
also an owner of the organization, is an employee include: 
• Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
• Whether and, if so, to what extent the organization supervises the individual's work. 
• Whether the individual reports to someone higher in the organization. 
• Whether and, if so, to what extent the individual is able to influence the organization. 
• Whether the parties intended that the individual be an employee, as expressed in 
written agreements or contracts. 
• Whether the individual shares in the profits, losses, and liabilities of the organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the beneficiary 
was an "employee" who was employed abroad by the petitioner in a managerial or executive capacity. In 
reviewing section 2.2 of the consultant agreement, which discusses the scope of the services provided by the 
beneficiary, the AAO observes that the consultant, i.e., the beneficiary, retained the authority to detennine 
when and where he would provide his services. The same section indicates that, while the beneficiary was 
subject to the covenant not to compete specified at section seven of the agreement, the beneficiary's services 
were not exclusive to the petitioner, thus indicating that the beneficiary was free to provide services elsewhere 
during the same time that he was providing services to the petitioner. After having considered these 
conditions together with the language found in section ten of the agreement, where the petitioner stated its 
intent to retain the beneficiary's services as a consultant rather than an employee of the company, the AAO 
finds that the beneficiary did not have an employer-employee relationship with the petitioning entity during 
the requisite one-year time period within the three years prior to the beneficiary's entry to the United States to 
be employed by the petitioning entity. On the basis of this initial conclusion, the instant petition cannot be 
approved. 
The second issue in this proceeding is whether the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.c. § I 10 1 (a)(44)(A), provides: 
The tenn "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 
Page 6 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § I 10 I (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In the petitioner's initial support letter executed by_ the company's vice president of administration, 
the beneficiary's proposed employment was described as being both in a managerial and an executive 
capacity. _provided the following description of the beneficiary's proposed position: 
[The beneficiary 1 devises strategies and formulates technological and economic policies and 
goals in collaboration with other top executives to ensure that company objectives are met. 
He also oversees the commercialization of [the petitioner]'s proprietary processes for 
upgrading low-rank coal . . .. [He 1 directs the operations of [the petitioner 1 to ensure that 
day-to-day activities are conducted in accordance with company policies. Furthermore, he 
hires and oversees executives who in turn direct the activities of [the petitioner],s various 
departments such as Technology, Strategy, Legal Services, and Administration/Accounting. 
[The beneficiary 1 also oversees budgets to ensure that programs are carried out as planned 
and to ensure the accuracy of financial reporting. 
Additional supporting evidence included the petitioner's organizational chart in which the beneficiary and. 
_ were identified as the two highest ranking officials in the company in the positions of chief operating 
officer and president, respectively. The chart shows the beneficiary overseeing the positions of technology 
vice president, strategy vice president, vice president of legal, and an accounting/administration employee. 
The remainder of the chart consists of engineers, technicians, craftsmen, and construction personnel provided 
The technology vice president is shown as the employee in charge of overseeing the 
The petitioner also provided a copy of its 2007 tax retum, the beneficiary's IRS 2007 Form W-2, and the 
petitioner's quarterly wage statements for the last two quarters of 2007 and for the first two quarters of 2008. 
Page 7 
These documents indicate that the beneficiary was the petitioner's sole employee during the reporting periods 
that directly preceded the filing of the Form 1-140, 
In the RFE, the director expressly instructed the petitioner to provide a more detailed description of the 
beneficiary's proposed employment, including a list of the beneficiary's proposed job duties and an 
approximate percentage of time that would be allocated to each item listed, The petitioner was asked to 
identify the individuals who would be under the beneficiary's supervision, including their job titles and 
position descriptions, and to submit its quarterly wage statements for the last two quarters in 2008, 
In response_ letter dated April 15, 2009 included a percentage breakdown, which listed four key 
areas of concentration: supervising strategic planning for 15% of the time, supervising marketing and 
capitalization for 20% of the time, overseeing day-to-day b~rations for 25% of the time, and 
supervising technical work for the remaining 40% of the time, _ indicated that supervising strategic 
planning would include providing strategic direction, developing a plan for capital structure, and evaluating 
the U,S, market for business development; supervising marketing and capitalization would include 
researching and developing relationships with research partners, overseeing the implementation of a 
marketing plan, and developing business relationships; overseeing business operations would include advising 
and assisting with personnel and financial matters; and supervising technical work would include overseeing a 
feasibility study, the petitioner's ongoing current projects, and the work of the Hazen Research employees, 
The petitioner also provided the requested wage reports, which show that the beneficiary was the petitioner's 
only employee at the time the Form 1-140 was filed. 
In the June 1,2009 denial of the petitioner's Form 1-140, the director determined that the petitioner failed to 
establish that the beneficiary's proposed employment would be within a qualifying managerial or executive 
capacity. While the director acknowledged the petitioner's use of subcontractors who provide directorial and 
other services, he found that the petitioner lacks employees other than the beneficiary himself to perform the 
daily operational tasks that are deemed as being outside of a managerial or executive capacity. 
On appeal, counsel asserts that the director's conclusion is unjustified and points out that the beneficiary "is 
involved in extremely important and highly complex work" that has international significance. Counsel also 
points out that the beneficiary has assumed a leadership role in forging and overseeing contractual 
relationships with engineering firms and supervising two top-level subordinates-the chief technology officer 
and the treasurer/chief operating officer. 
Counsel's statements, however, contain information that is inconsistent with evidence and information that 
was previously provided. Specifically, while counsel claims that one of the beneficiary's subordinates would 
be the chief operating officer, the AAO notes that this is the position title that was identified at part 6, item 1 
of the petitioner's Form 1-140 as the position that is being offered to the beneficiary. Additionally, the 
petitioner's quarterly wage statements indicate that the beneficiary has been and continues to be the 
petitioner's only employee. Thus, counsel's claim that the beneficiary would supervise two high-ranking 
officials is directly contradicted by the documentation presented by the petitioner. 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); see also Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988), establishing the petitioner's 
burden to resolve any inconsistencies in the record by independent objective evidence. Although a 
detennination of the beneficiary's managerial or executive capacity is not limited to an analysis of the 
petitioner's organizational hierarchy, federal courts have generally agreed that USCIS "may properly consider 
an organization's small size as one factor in assessing whether its operations are substantial enough to support 
a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) 
(citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. 
Sava, 905 F.2d 41,42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 
(D.D.C. 2003). Thus, while the AAO will consider other factors in detennining whether the proposed 
employment falls within the parameters of what is deemed as being within a managerial or executive 
capacity, the overall lack of evidence of an adequate support staff cannot be overlooked. The petitioner 
cannot establish that the beneficiary primarily perfonns tasks within a qualifYing managerial or executive 
capacity without establishing its ability to relieve the beneficiary from having to perfonn the petitioner's daily 
operational tasks. In the absence of an adequate support staff, the AAO is left without an understanding as to 
who, if not the beneficiary, would perfonn the non-qualifYing job duties. As stated previously, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. 
Additionally, the AAO notes the significant role of the beneficiary's job description in detennining whether 
the proposed employment qualifies under the definition of managerial or executive capacity. See 8 C.F.R. 
§ 204.5(j)(5). In the present matter, the percentage breakdown that the petitioner provided in response to the 
director's RFE was vague in describing specific job duties and failed to convey a meaningful understanding 
of the tasks that the beneficiary would perfonn on a daily basis. The AAO notes that reciting the beneficiary'S 
vague job responsibilities or broadly-cast business objectives is not sufficient. Published case law supports 
USCIS's emphasis on a detailed description of job duties, finding that the actual duties themselves will reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N Y. 1989), 
ajj'd, 905 F.2d 41 (2d. Cir. 1990). Generally stating that the beneficiary's time would be allocated to 
overseeing the petitioner's daily business operations and reviewing personnel and financial matters does not 
provide necessary information about the beneficiary's specific daily tasks. In other words, what specific 
activities does the beneficiary carry out in the process of overseeing personnel and financial matters? 
Moreover, with the lack of documentation establishing the existence of a support staff, the AAO is entirely 
unclear as to what personnel matters the beneficiary would be reviewing. 
The petitioner was equally vague in providing information about the specific tasks associated with the 
beneficiary'S oversight of the feasibility study and the petitioner's contractors and ongoing projects. The 
information provided does not explain how the beneficiary would carry out his oversight role. It is noted that 
an employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perfonn the enumerated managerial or executive duties); see 
also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). When the petitioner 
fails to delineate the specific tasks that would be attributed to the beneficiary'S proposed employment, USCIS 
is left without any means to determine that the primary portion of the beneficiary'S time would be allocated to 
the performance of tasks within a qualifying managerial or executive capacity. Furthennore, when this 
considerable deficiency is reviewed in light of insufficient documentation establishing the existence of 
support personnel, a favorable detennination cannot be made. Accordingly, as the petitioner has failed to 
provide the requisite evidence and infonnation to support its claims, the AAO cannot affinnatively conclude 
that the beneficiary would primarily perform managerial or executive duties. 
Furthennore, the record indicates that the petitioner cannot be deemed a multinational entity. The regulation 
at 8 C.F.R. § 204.5(j)(2) indicates that the tenn multinational applies to the qualifYing entity, or its affiliate, or 
subsidiary, which conducts business in two or more countries, one of which is the United States. In the 
present matter, although the record shows that the petitioner operated abroad through the beneficiary, who 
conducted business on behalf of the beneficiary as an independent consultant, there is no indication that the 
petitioner, or its affiliate or subsidiary, continued to conduct business abroad after the beneficiary came to 
work directly for the petitioner in the United States. As such, the AAO cannot conclude that the petitioner is 
currently operating as a multinational entity. 
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 Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.