dismissed EB-1C Case: Cosmetics

PUBLIC COpy 
DATE: DEC 0 9 Z01l 
INRE: 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 
OFFICE: NEBRASKA SERVICE CENTER FILE:_ 
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. § 1153(b)(l)(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. § 103.5. 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. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~q.;-
C Perry Rhew 
... Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner subsequently filed a motion to reopen with the Nebraska Service Center. The director reopened the 
matter and affirmed the prior decision. The matter is now before the Administrative Appeals Office (AAO) 
on appeal. The appeal will be dismissed. 
The petitioner claims to be a corporation that seeks to employ the beneficiary as its cosmetic visual standard 
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that the 
beneficiary was employed abroad in a managerial or executive capacity. 
On appeal counsel challenges the basis for denial, asserting that the beneficiary was not a first-line manager 
and asserts that the beneficiary supervised the work of other supervisory employees. 
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 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)(1)(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 primary issue in this proceeding is whether the petitioner was employed abroad III a qualifying 
managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 V.S.c. § 1101(a)(44)(A), provides: 
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The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 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 ofthe 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 support of the Form 1-140, the petitioner's submitted a statement on the 
petitioner's behalf. Although acknowledged the beneficiary's prior employment with the foreign 
entity, he did not provide any information about the beneficiary's position or the duties he performed. 
Accordingly, on March 17, 2009, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide a detailed description of the beneficiary's employment abroad listing the beneficiary's 
specific daily tasks and an estimated percentage of time the beneficiary allocated to each job duty. The 
petitioner was also asked to provide the foreign entity's organizational chart that corresponds with the time 
period during which the beneficiary was employed abroad. The director asked that the organizational chart 
include a comprehensive illustration of the foreign entity's organizational hierarchy, including names of all 
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the departments and teams as well as the names and detailed job descriptions of the beneficiary's immediate 
supervisor and subordinate employees. The director was clear in instructing the petitioner to make sure to 
adequately illustrate the beneficiary's position with respect to others in the organization. 
In response, the petitioner provided another statement from _ the petitioner's _ 
operations. In his April 27, 2009 statement, _stated that the beneficiary assumed his position as 
visual standard manager in the beginning of the 200 I calendar year. He further asserted that the beneficiary 
reported directly to the foreign entity's quality assurance manager and aSSignediiies onsibilities to and 
received input from subordinate quality inspectors who functioned under his control. stated that in 
May 2001 the beneficiary came to the United States as a B-1 business visitor for the purpose of observing the 
assembly process in the United States and to assess the petitioner's production and assembly processes. _ 
_ did not state how long the beneficiary remained in the United States before he returned to Poland to 
resume his position as visual standard manager. 
The petitioner failed to provide a detailed description of the beneficiary's specific job duties with their 
respective time allocations; nor did the petitioner provide the requested organizational chart illustrating the 
foreign entity's organizational hierarchy at the time of the beneficiary's employment abroad. 
Accordingly, in a decision dated October 27, 2009 the director denied the petition, concluding that the 
petitioner failed to provide sufficient evidence to establish that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. The director determined that the statement _ provided 
in response to the RFE lacked the requested information regarding the beneficiary'S employment abroad. 
The director responded to the denial by filing a motion to reopen in which counsel explained that the 
petitioner was unable to obtain the requested information from the foreign entity within the allowed time 
limitation. Counsel asked the director to review newly submitted documentation obtained from "a qualified 
official" of the foreign entity. The November 23,2009 letter to which counsel referred was written by" 
~ the foreign entity's vice president, who stated that in his position as visual standard manager the 
beneficiary reported directly to the company's quality assurance manager. _ stated that the 
beneficiary exercised control and assured that there was consistency in the quality and appearance of the 
foreign entity's final products. He stated that the beneficiary assumed his managerial position abroad in May 
2001 and remained in that position until September 2002 when he departed Poland to assume a position with 
the U.S. petitioner. The beneficiary'S position abroad was described as managerial and the beneficiary was 
described as someone who allocated responsibilities to various subordinate inspectors and based on feedback 
the beneficiary obtained from those inspectors, he would then interact with engineering and production 
managers to ensure that the set aesthetic standards would continually be met. 
The petitioner also provided an illustration of the foreign entity's quality department where the beneficiary'S 
position was located. The chart shows a management board at the top of the foreign entity's organization, the 
quality director as the direct subordinate of the board, and four positions, including that of the beneficiary, as 
the quality director's direct subordinates. Lastly, at the bottom of the hierarchy, the chart shows six quality 
inspectors as the beneficiary'S direct subordinates. No other pertinent documentation was submitted. 
Accordingly, in a decision dated January 25,2010, the director reviewed the petitioner'S record in its entirety, 
including the newly submitted documents, and concluded that the petitioner failed to overcome the adverse 
findings that were issued in the original denial. The director noted that the petitioner failed to establish that 
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the inspectors whom the beneficiary supervised were managerial, professional, or supervisory employees and 
further determined that the evidence submitted shows that the beneficiary was a first-line supervisor. 
On appeal, counsel asserts that the beneficiary was not employed as a first-line supervisor and that the 
director's determinations to the contrary are therefore erroneous. Counsel contends that the beneficiary's 
subordinates were supervisory, professional, or managerial employees and that the director's prior adverse 
decisions were premised on erroneous findings of fact. Counsel further states that each of the six quality 
inspectors controlled and directed "at least a dozen or more actual production workers." 
The AAO finds that counsel's assertions are unpersuasive and fail to overcome the ground cited as the basis 
for the director's adverse decision. 
The AAO notes that 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 ofObaigbena, 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). In the present matter, not only does the 
record lack any evidence to support counsel's assertions, but neither the statements that were previously 
submitted by _ and nor the organizational chart that was submitted in support of the 
motion corroborated the claims that counsel is currently making on appeal. A petitioner may not make 
material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See 
Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
In the present matter, the petitioner repeatedly provided the same deficient statements regarding the 
beneficiary's foreign employment and when an organizational chart was finally submitted it contained no 
information that would support the new claims counsel is now making on appeal. The AAO further notes 
that, despite the director's express request asking the petitioner to provide a detailed description of the 
specific job duties the beneficiary was performing during his employment abroad and an explanation of the 
percentage of time the beneficiary spent performing each of his assigned tasks, the petitioner has continually 
failed to submit this crucial information. Reciting the beneficiary'S vague job responsibilities or broadly-cast 
business objectives, as has been done in the present matter, is not sufficient. The actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990). It is further noted that failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103 .2(b )(14). 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. The fact that the beneficiary assumed a 
managerial position title and supervised the work of others does not establish that the beneficiary was 
employed in a primarily managerial or executive capacity. As noted above, the petitioner did not establish 
what specific job duties the beneficiary performed; nor did the petitioner establish that the employees the 
beneficiary supervised were themselves supervisory, professional, or managerial employees. Therefore, the 
AAO cannot conclude, based on the evidence submitted, that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. For this reason, the petition may not be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
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First, 8 C.F.R. § 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying relationship 
with the beneficiary's foreign employer. 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 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. 
In the present matter, the petitioner claims to be a subsidiary of the foreign entity that previously employed 
the beneficiary, thus indicating that the petitioning entity is owned, in whole or in part, by the foreign entity. 
Merely 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)). As the record lacks evidence 
establishing that the petitioner is similarly owned and controlled as the beneficiary's foreign employer, the 
AAO finds that the petitioner has failed to establish that a qualifying relationship exists. 
Second, 8 C.F.R. § 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. § 204.5(j)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods and/or services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." The record in the 
present matter lacks evidence to establish that the petitioner was doing business for one year prior to filing the 
petition or that it is currently doing business. Although it appears that the petitioner is relying heavily on its 
previously approved L-1 employment of the beneficiary, the prior approval cannot take the place of the 
evidence that is required to meet the regulatory provisions. 
Each nonimmigrant and immigrant petition is a separate record of proceeding with a separate burden of proof; 
each petition must stand on its own individual merits. uscrs is not required to assume the burden of 
searching through previously provided evidence submitted in support of other petitions to determine the 
approvability of the petition at hand in the present matter. The approval of a nonimmigrant petition in no way 
guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS 
denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-l petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; 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. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported 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 r&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that uscrs 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
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 
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Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afJ'd, 345 FJd 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 FJd 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). As discussed above, the petitioner has failed to provide evidence establishing 
that it meets the regulatory requirements described at 8 C.F.R. §§ 204.5(j)(3)(i)(C) and (D). Based on these 
additional grounds of ineligibility, 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.