dismissed EB-1C Case: Dental Equipment

U.S. Department of lfnmeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
~QeZkui r bi-b 1 esb., to U. S. Citizenship 
prevent dearly unwarsa- and Immigration 
of wmonal priw Services 
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. 8 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
& /.. pL'- 
obert P. W emann, Chief 
/ Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the 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 the instant immigrant visa petition 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. 
5 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of New Jersey that is 
engaged in the import and sales of dental equipment. The petitioner seeks to employ the beneficiary as its 
director. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, the petitioner suggests that the beneficiary would be employed as a manager of the United States 
entity. The petitioner submits a letter 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 the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 within 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 witlun 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. 5 1 10 1 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-malung; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the instant petition on June 20, 2005 noting the beneficiary's proposed employment as the 
United States company's director. In an addendum to the Form 1-140, the petitioner noted that the job duties 
associated with the beneficiary's proposed position would include managing the company, exercising 
responsibility over its personnel, operations, planning, and contractual agreements, "open[ing] 
distributorships," devising advertising and promotion strategies, promoting the company at trade shows, 
"develop[ing] a sales force," and selling the petitioner's equipment. 
On August 19, 2005, the director issued a Notice of Action requesting that the petitioner submit evidence of 
the beneficiary's proposed employment in a primarily managerial or executive capacity, including a 
"complete" description of the beneficiary's proposed position and the positions held by subordinate 
Page 4 
employees, an allocation of the amount of time each employee would devote to the tasks associated with each 
position, and evidence of the petitioner's staffing levels. 
The petitioner responded in a letter dated November 8, 2005, noting that the beneficiary would be employed 
as the company's president, in which he holds the following responsibilities: 
[Dlirects the management of the entire organization, and has sole authority to contract and 
commit funds on behalf of the company, such as incorporation, establishing bank accounts, 
purchasing equipment, and contracting for trade shows. 
The petitioner further noted its employment of a sales manager, and its use of three independent distributors 
located in Illinois, Connecticut, and California to ''sell, install and maintain the equipment in individual dental 
offices." The petitioner attached a proposed organizational chart of the United States entity, noting the 
beneficiary's position as "managing director." Attached payroll records ending the period of September 30, 
2005 identified the beneficiary as the sole employee from June 30, 2005 through September 30, 2005, and 
suggested that the employment of the petitioner's sales manager was terminated at the end of June 2005, the 
month during which the instant petition was filed. 
In a decision dated January 3, 2006, the director determined that the petitioner had not demonstrated that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director noted inconsistencies in the compensation claimed by the petitioner to have been paid to its 
petitioner's sales manager and distributors and the amounts reported on the petitioner's corporate income tax 
return. The director addressed the organizational chart provided by the petitioner, stating that the record 
"does not reflect that the company has grown to the point where the proposed staffing has been achieved." 
The director also stated that there was "insufficient evidence to demonstrate that the United States entity 
(petitioner) employs a subordinate staff of professional, managerial, or supervisory personnel," or that it 
would be "financially capable" to support its proposed staffing levels. The director concluded that the 
beneficiary's job duties would not be primarily managerial or executive in nature. Consequently, the director 
denied the petition. 
On appeal, the petitioner notes the beneficiary's employment as the "company manager," in which he 
primarily guides sales personnel, trains "technical support employees in the branches," manages the 
company's "orders system," and "[is] involved in the daily administration of the company and its branches." 
The petitioner explained that during its first two years of operation "emphasis was placed on increasing sales 
and post-sales service by opening new agencies and less on hiring direct employees for the company." The 
petitioner noted its use of outside professionals to perform its bookkeeping, accounting and legal issues, and 
that it anticipated hiring a sales manager and technical manager "in the near future." 
The petitioner also addresses the director's observation of inconsistencies in the compensation reflected on its 
income tax return, stating that the company's employees were paid lower salaries as a result of its need to 
invest more money in its marketing program. The petitioner further explained that its distributors, or 
"branches," were not paid commissions, but rather the petitioner sold its products to them at a price 
discounted from the invoice amount. The petitioner stated "this is not reflected in the company's balance 
sheet since sales to the branches are recorded in the balance sheet as regular sales to customers, and become 
part of the company's total sales." The petitioner submits its July 2005 through June 2006 profit and loss 
statement on appeal. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity 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. 5 204.56)(5). 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of 
the Act. A petitioner must clearly describe the duties to be performed by the beneficiary and indicate whether 
such duties are either in an executive or managerial capacity. The petitioner must demonstrate that the 
beneficiary's responsibilities will meet the requirements of one or the other capacity. Here, the petitioner 
identified the beneficiary as occupying the positions of "director," "manager," "president and general 
manager," and "managing director." Accompanying documentation portrayed the beneficiary's signature in 
the capacity as the company's president. The multiple job titles, as well as the brief job description, do not 
establish the capacity in which the petitioner is claiming to employ the beneficiary. 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). 
As noted, the limited job description offered by the petitioner fails to identify the specific managerial or 
executive job duties to be perfonned by the beneficiary. The petitioner's brief statements that the beneficiary 
would possess "responsibility for all management, hiring, operations, and planning," "develop advertising and 
promotion strateg[ies]," "promote [the petitioner's] products at trade shows," "develop a sales force," and "sell 
and service equipment," do not clearly describe the managerial or executive duties to be performed by the 
beneficiary. See 8 C.F.R. $ 204.56)(5). The AAO notes that following the director's request for a "complete 
position description," including a "breakdown of the number of hours devoted to [his] job duties," the 
petitioner submitted the same limited job description as that previously provided, thus failing to expound or 
clarify the specific managerial or executive job duties associated with the beneficiary's employment in the 
United States company. 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). 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. 1 103, 1 108 (E.D.N.Y. 1989), 
affd, 905 F.2d 41 (2d. Cir. 1990). 
Despite its brevity, the beneficiary's job description reveals that he would be responsible for all non- 
qualifying tasks of the petitioner's functions. For example, the beneficiary would personally handle the 
petitioner's dealings with financial institutions, would purchase the equipment sold by the petitioner, represent 
the petitioning entity at trade shows, "contract with distributors," facilitate the company's orders, sell and 
service the equipment sold by the petitioner, and devise its advertising programs. In addition, the 
beneficiary's responsibility of training sales and technical support personnel is not typically deemed to be 
managerial or executive in nature. See $5 101(a)(44)(A) and (B) of the Act. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be "primarily" 
employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Int 'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
This finding is bolstered by the fact that the beneficiary is the sole employee of the petitioning entity. As 
required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an 
individual is acting in a managerial or executive capacity, CIS must take into account the reasonable needs of 
the organization, in light of the overall purpose and stage of development of the organization. 
At the time of filing, the petitioner employed the beneficiary and a sales manager. Subsequent employee 
records, however, reveal that the sales manager's employment with the petitioning entity was terminated at the 
end of June 2005, approximately ten days after the instant filing. As a result, the beneficiary was clearly 
responsible for performing the above-noted non-qualifying operational functions of the petitioning entity. 
Moreover, although not specifically addressed by the petitioner, it is reasonable to conclude that the 
beneficiary was also personally responsible for maintaining the petitioner's inventory, which would include 
choosing the products sold by the petitioner. Furthermore, despite the petitioner's claim on appeal of using 
outside contractors for its bookkeeping and accounting, there is no documentary evidence in the record, such 
as contractual agreements, invoices or communications with independent contractors, demonstrating that at 
the time the petition was filed someone other than the beneficiary would perform these non-managerial and 
non-executive administrative tasks. Consequently, the petitioner has not established that its reasonable needs 
might plausibly be met by the services of the beneficiary. 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. 
The petitioner offered for review by the director its proposed organizational chart and anticipated staffing 
levels. The AAO notes, however, that a petitioner must establish eligibility at the time of filing; a petition 
cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Therefore, these documents will not be 
considered in the analysis of the beneficiary's employment capacity. 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
Beyond the decision of the director, an additional issue is whether a qualifying relationship existed between 
the foreign and United States entities at the time of filing the immigrant visa petition. 
The petitioner notes the existence of an affiliate relationship between the foreign and United States 
organizations, claiming that the beneficiary is the sole owner of both entities. With regard to the beneficiary's 
purported ownership of the foreign entity, the petitioner noted that "[tlhere are no copies of stock or share 
certificates for the Israeli entity," and submitted a letter from a certified public accountant, who stated that the 
beneficiary was the owner of 100 shares of the foreign entity's issued stock. The AAO notes that none of the 
documentation related to the foreign entity was translated for the record; therefore, the AAO cannot determine 
whether the evidence supports the petitioner's claims. See 8 C.F.R. 9 103.2(b)(3). Accordingly, the evidence 
is not probative and will not be accorded any weight in this proceeding. 
With respect to ownership of the United States entity, there is insufficient evidence demonstrating that the 
beneficiary is the sole shareholder of the corporation. The only documentary evidence in the record 
suggesting that the beneficiary wholly owns the petitioning entity is the petitioner's 2003 federal income tax 
return, which identified the beneficiary as owning 100 percent of the corporation. The petitioner did not 
submit stock certificates, the corporate stock certificate ledger, or stock certificate registry, all of which would 
confirm the petitioner's shareholders and the exact number of shares purportedly issued to the beneficiary or 
any additional stockholders. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Cra$' of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Absent 
additional evidence establishing the ownership of the foreign and petitioning entities, the AAO cannot 
conclude that an affiliate relationship exists between the two organizations. Accordingly, the petition will be 
denied for this additional reason. 
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 recognizes that Citizenship and Immigration Services (CIS) previously approved two L-1A 
nonimmigrant visa petitions filed by the petitioner on behalf of the beneficiary. It must be noted that many I- 
140 immigrant petitions are denied after CIS approves prior nonirnmigrant 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. 1 103 (E.D.N.Y. 1989). Examining the 
consequences of an approved petition, there is a significant difference between a nonimrnigrant 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: 85 204 and 214 of the Act, 8 U.S.C. §$ 1154 
and 1184; see also fj 316 of the Act, 8 U.S.C. 8 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. 
8 214,2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-IA petition's 
validity). Furthermore, 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. 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 fkom the prior nonimmigrant petition approvals 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. 8 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.