dismissed EB-1C Case: Cosmetics

identifS.ing data deleted to 
prevent clearly unwarranted 
invasion of pemnai privacy 
PUBLIC COPY 
U.S. Department of Efomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: VERMONT SERVICE CENTER Date: 
UG 2 9 L..U6 
EAC 05 142 52159 
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. 9 1153(b)(l)(C) 
ON 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. 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the instant employment-based visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the 
appeal. 
The petitioner filed an immigrant visa petition seeking to classify the beneficiary as a multinational manager 
or executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
ij 1153(b)(l)(C). The petitioner is a limited liability company organized under the laws of the State of 
Delaware that is operating as a cosmetics retailer and day spa. The petitioner seeks to employ the beneficiary 
as its regional make-up artist. 
The director denied the petition concluding that the petitioner had not demonstrated that a qualifying 
relationship existed between the foreign and United States entities at the time of filing the immigrant visa 
petition. 
On appeal, counsel for the petitioner contends that the foreign and United States organizations "are related 
entities," and that the beneficiary qualifies for the requested immigrant visa classification. Counsel submits a 
brief and documentary 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 or 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 
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 issue in this proceeding is whether a qualifying relationship existed between the foreign and United 
States entities at the time of filing the immigrant visa petition. 
The regulation at 8 C.F.R. tj 204.56)(2) states in pertinent part: 
AfJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each entity; 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is in the United States. 
Doing business means the regular, systematic, and continuous provision of goods andlor 
services by a firm, corporation, or other entity and does not include the mere presence of an 
agent or office. 
The petitioner filed the instant petition on April 15, 2005. In appending documentation, including an April 1, 
2005 letter from the petitioning entity, the petitioner claimed to possess an indirect qualifying relationship 
with the beneficiary's foreign employer, an organization located in Canada. The petitioner stated that the two 
entities are "related," as "[the foreign entity] is a wholly owned subsidiary of E.A. Salons, Inc., which, in-turn, 
is an affiliate of [the petitioning entity]." 
In a notice dated July 12, 2005, the director noted that the petitioner's initial April 1, 2005 letter "is the sole 
supporting documentation submitted with your petition." The director asked that the petitioner submit 
documentary evidence to establish the existence of a qualifying relationship between the United States entity 
and the beneficiary's foreign employer at the time the petition was filed. 
Counsel for the petitioner responded in a letter, dated October 6, 2005, stating that "[bloth [the petitioner] and 
[the foreign entity] are wholly-owned subsidiaries of - [(EAS- 
Holdings])." As evidence of the purported qualifying relationship, counsel submitted the foreign entity's 
articles of incorporation, articles of amendment, and an October 22, 1996 stock certificate naming EAS- 
Holdings as the holder of one share of the foreign entity's issued stock. Counsel also provided a copy of a 
"declaration" that had been submitted in connection with the L-1A nonimmigrant petition previously filed by 
Page 4 
the petitioner on behalf of the beneficiary. In the attached declaration, the petitioner's vice-president of 
human resources attested to the purported existence of a qualifying relationship between the foreign and 
United States entities based on an understanding "that [the foreign entity] is a wholly-owned subsidiary of 
E.A. Salons, Inc., which, in turn is an affiliate of [the petitioner]." 
The director issued a decision, dated November 23, 2005, concluding that the petitioner had not demonstrated 
the existence of a qualifying relationship between the foreign and United States entities at the time of filing. 
The director addressed the documentary evidence submitted by the petitioner, specifically noting that 
Citizenship and Immigration Services' (CIS) prior approval of an L-1A nonimmigrant petition is not 
"acceptable proof of a qualifying relationship." The director also noted insufficiency in the 2004 corporate 
income tax return for EAS-Holdings, which the petitioner had submitted in its October 6,2005 response. The 
director noted that the "edited" tax return was not signed or dated, and stated "inasmuch as no supporting 
schedules were included, and an annual report was not provided, it is impossible to glean primary evidence of 
a qualifying relationship based upon what has been submitted." Consequently, the director denied the 
petition. 
Counsel for the petitioner filed an appeal on December 27, 2005 claiming the existence of a qualifying 
relationship between the foreign and United States entities. In her December 23,2005 appellate brief, counsel 
states that the two entities are "related," as the foreign entity, which counsel noted "has been inactive since 
November 1999," was owned entirely by the petitioning entity. Counsel further claims "EAS-Holdings owns 
100% of [the petitioner], which owns 100% of [the foreign entity], which is now inactive." 
Counsel addresses the 2004 tax return for EAS-Holdings previously submitted by petitioner, which the 
director claimed did not demonstrate the claimed corporate relationship, and explains that "[slince [the 
foreign entity] is currently inactive, [the foreign entity] does not appear as a subsidiary today on EAS- 
Holdings' Tax Return." Counsel submits copies of EAS-Holdings' 1999 payroll journals for the foreign 
entity, claiming they are evidence of a relationship between EAS-Holdings and the foreign entity. 
Counsel also submits two organizational charts and a "list of subsidiaries" reflecting the relationship between 
the entities named herein. Based on the organizational chart bearing the date "02 24 05" and the "list of 
subsidiaries," the petitioner was established on May 5, 2000. Both organizational charts submitted on appeal 
reflect the beneficiary's foreign employer as a subsidiary of the petitioning entity and identify it as being 
"dormant." The petitioner is identified as a subsidiary of EAS-Holdings. In an appended declaration from the 
petitioner, the company's vice-president/controller notes his familiarity with the claimed parent-subsidiary 
relationship between the petitioner and the foreign entity, also noting the foreign entity, while now inactive, is 
entirely owned by the petitioner. 
Upon review, the petitioner has not demonstrated the existence of a qualifying relationship between the 
foreign and United States entities at the time of filing the petition. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
Page 5 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-365. Without full 
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
The AAO first notes inconsistencies in the qualifying relationship claimed by the petitioner to exist between 
the foreign and United States entities. In its initial filing, the petitioner describes an indirect affiliate 
relationship between the foreign and United States companies, stating that the foreign entity is a wholly 
owned subsidiary of an affiliate of the petitioning entity, both of which are owned by EAS-Holdings. In 
contrast, in her October 6, 2005 letter, counsel for the petitioner stated that both the petitioner and the foreign 
entity "are wholly-owned subsidiaries" of EAS-Holdings, and, as evidence, submitted a stock certificate 
naming EAS-Holdings the owner of one share of the foreign entity's1 issued stock. On appeal, counsel 
suggests yet a different qualifying relationship, stating, "EAS-Holdings owns 100% of [the petitioning entity], 
which owns 100% of [the foreign entity], which is now inactive." The three different scenarios presented by 
the petitioner with respect to the purported relationship between the foreign and United States entities inhibits 
the AAO's review and analysis of the instant issue as it is not clear how the petitioner is claiming to be related 
to the foreign entity. 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). 
Nonetheless, the petitioner has not presented evidence in the form of stock certificates or stock certificate 
registries establishing any of the above-noted qualifying relationships. For example, with respect to the 
purported indirect affiliate relationship between the foreign and United States entities, the petitioner did not 
demonstrate through concrete documentary evidence that EAS-Holdings wholly owns the petitioning entity or 
E.A. Salons, Inc. Nor did the petitioner submit evidence establishing a parent-subsidiary relationship between 
the United States company and foreign entity, as claimed by the petitioner on appeal. The petitioner's failure 
to provide documentary evidence of this particular scenario is especially important as the foreign entity was 
The stock certificate specifically names fit as the owner of stock issued 
by "E.A. Salons Canada, Ltd." The record contains articles of amendment changing the original name of the 
- 
foreign entity, "1033657 Ontario Limited," to and finally "E.A. Salons 
Canada Ltd." In the April 1, 2005 letter submitted with the immigrant visa vetition and on the organizational 
charts provided on appkal, the foreign entity is identified as - The AAO 
notes that in both the October 6, 2005 and December 23, 2005 letters, counsel incorrectly references the 
Page 6 
established almost four years prior to the petitioner', which is claimed to be the sole shareholder of the foreign 
entity. The record does not reflect the manner in which the petitioner obtained its purported stock ownership 
in the foreign entity, such as through a transfer from a former stockholder or alternatively, directly from the 
foreign entity. In fact, the only stock certificate provided by the petitioner suggests that the foreign entity is 
owned by EAS-Holdings, thereby contradicting counsel's claim on appeal that the petitioner "owns 100% of 
[the foreign entity]." 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)). The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503 (BIA 1980). 
The documentary evidence submitted by counsel on appeal is not sufficient to corroborate the petitioner's 
claim of a qualifying relationship. The two organizational charts, the list of subsidiaries, and declaration 
suggest that the petitioning entity wholly owns the foreign organization. As addressed above, proof of a 
qualifying relationship should include stock certificates, as well as the corporate stock certificate ledger, stock 
certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings. As a result, 
the organizational charts and list of subsidiaries, which were prepared by the petitioner in connection with the 
instant immigration proceeding and are not any of the above-named corporate documents, are not sufficient to 
establish the claimed ownership. In addition, as the declaration from the petitioner's vice president-controller 
does not comport with the petitioner's initial claim of a qualifying relationship and is otherwise unsupported 
by the record, it will not be accorded any weight in this proceeding. The petitioner is obligated to clarify the 
inconsistent and conflicting testimony by independent and objective evidence. Matter of Ho, 19 I&N Dec. at 
591-92. 
Finally, the fact that the foreign entity ceased doing business in November 1999 and has since been "dormant" 
and "inactive" precludes a finding that the two companies had a qualifying relationship as of the date of filing. 
In order to establish eligibility for classification as a multinational manager or executive for immigrant visa 
purposes, the petitioner must establish that it maintains a qualifying relationship with the beneficiary's foreign 
employer; the foreign corporation or other legal entity that employed the beneficiary must continue to exist 
and have a qualifying relationship with the petitioner at the time the immigrant petition is filed. 8 C.F.R. 
9 204.50)(3)(i)(C). A multinational manager or executive is one 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." Section 203(b)(l)(C) of the Act, 8 U.S.C. 5 1153(b)(l)(C). 
Although the regulations at 8 C.F.R. fj 204.50)(3)(i)(B) reference beneficiaries who are already employed by 
the petitioner as nonimmigrants, the fact that the beneficiary is currently in the United States in L-1A 
classification does not exempt the petitioner from its burden to establish the existence of an ongoing 
qualifying relationship with the beneficiary's previous foreign employer as of the date the petition is filed. 
Rather, the regulation at 8 C.F.R. 4 204.50)(3)(i)(B) simply allows CIS to look beyond the three-year period 
immediately preceding the filing of the 1-140 petition in order to determine whether the beneficiary has the 
The organizational chart and "list of subsidiaries" submitted by the petitioner on appeal reflect that the 
petitioning entity was established on May 5, 2000, whereas the foreign entity was formed on October 22, 
1996. 
Page 7 
requisite one year of qualifying employment abroad. To construe the regulation as creating an exception that 
allows L-1A beneficiaries to qualify as multinational managers without a qualifying relationship between the 
United States and foreign entities would contravene the plain language of the statute. The petitioner must 
establish eligibility at the time of filing the immigrant visa petition. Matter of Katigbak, 14 I&N Dec. 45,49 
(Comm. 1971). 
In this case, any qualifying relationship that may have existed between the petitioner and the beneficiary's 
foreign employer was severed when the foreign company ceased its operations in November 1999. The 
beneficiary's employment in the foreign entity is not considered employment with a qualifying entity for the 
purposes of this immigrant visa classification, and it cannot be found that the beneficiary is seeking "to 
continue to render services to the same employer or to a subsidiary or affiliate thereof." 
Based on the foregoing discussion, the petitioner has not demonstrated that a qualifying relationship existed 
between the foreign and United States entities at the time of filing. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not demonstrated that the beneficiary was employed by 
the foreign entity or would be employed by the United States company in a primarily managerial or executive 
capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function withn the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level withn the 
organizational hierarchy or with respect to the hnction 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 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-making; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner identified the beneficiary as holding the position of national make-up director in the foreign 
entity and regional make-up artist in the United States company. In her October 6, 2005 response to the 
director's request for evidence, counsel claimed that both positions are primarily managerial in nature. 
The petitioner has not demonstrated that the beneficiary was employed by the foreign entity or would be 
employed by the United States company in a primarily managerial capacity.3 Specifically, the list of job 
duties referenced by counsel in her October 6, 2005 letter is limited, in that it does not identify the specific 
managerial or executive job duties performed by the beneficiary on a daily basis or those that the beneficiary 
would perform in his position as regional make-up artist. For example, the petitioner did not identify what 
"day-to-day operations of the retail, make-up and skin care treatment areas" the beneficiary managed. Nor 
did the petitioner explain the organizational hierarchy or operational functions of the foreign or petitioning 
entities or the "retail, make-up and skin-care treatment areas" so as to corroborate the petitioner's claim that 
the beneficiary occupied a primarily managerial or executive position with respect to these "areas." Counsel's 
additional statement that the beneficiary "[glenerally oversaw the activities of subordinate managers, assistant 
managers, stylists, receptionists, estheticians, massage therapists, colorists and assistants" does not provide 
clarification of the beneficiary's purported role as a manager. Also, without a comprehensive description of 
the associated managerial or executive tasks, counsel's blanket statement that the beneficiary "essentially 
designed and set the image and style for the entire company," does not demonstrate how the beneficiary was 
or would be employed in a primarily managerial or executive capacity. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question in this 
case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
afyd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, the petitioner has not explained why the beneficiary's responsibilities of making appearances as a 
guest artist and motivational guest speaker, "[l]aunching new products," and ensuring the receipt of "timelines 
and training materials" to regional offices should be considered managerial or executive in nature, as claimed 
by counsel in her October 6, 2005 letter. Furthermore, counsel's emphasizes the national and regional effect 
that the beneficiary had on the foreign entity as evidence that he was employed in a primarily managerial 
capacity. Counsel's reliance on the beneficiary's regional and national impact, however, without a detailed 
description of how his specific job duties satisfied the statutory definitions of managerial or executive 
Counsel stated in her October 6, 2005 letter that the job duties associated with each position "are essentially 
the same." Therefore, the beneficiary's employment capacity in each position will be considered under the 
same discussion herein. 
Page 9 
capacity, is not sufficient to establish the beneficiary's former employment as a manager or executive. See 
101(a)(44)(A) and (B) of the Act. 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). As a result, the AAO 
cannot conclude that the beneficiary was or would be employed in a primarily managerial or executive 
capacity. For this additional reason, the petition will be denied. 
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), afyd. 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 recognizes that CIS previously approved an L-1A nonimmigrant petition filed by the petitioner on 
behalf of the beneficiary. 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. Suva, 
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. 
CJ: tjtj 204 and 214 of the Act, 8 U.S.C. fjtj 1154 and 1184; see also tj 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. fj 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to 
extend an L-1A petition's validity). Furthermore, each nonirnmigrant and immigrant petition is a separate 
record of proceeding with a separate burden of prooc each petition must stand on its own individual merits. 
The approval of a nonimmigrant petition in no way guarantees that CIS will approve an immigrant petition 
filed on behalf of the same beneficiary. Based on the lack of evidence of eligibility in the current record, the 
director was justified in departing from the prior nonimrnigrant petition approval and denying the immigrant 
petition. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.