dismissed EB-1C Case: Diamond Import

identifying data deleted to 
prevent clearly unwarranted 
invacior. nf wrqnni;i? ~rivacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: CALIFORNIA SERVICE CENTER Date: JAN 2 
WAC 04 062 51377 
IN RE: 
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. 
A obert [&@+ P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based 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 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), 9 1 153(b)(l)(C). 
The petitioner is a corporation organized under the laws of the State of California that is engaged in the 
purchase and import of diamonds for sale in the United States. The petitioner seeks to employ the beneficiary 
as its general manager. 
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's current counsel claims that Citizenship and Immigration Services' (CIS) 
misinterpretation of the Act and corresponding regulations, as well as its incorrect review of the petitioner's 
organizational chart and state quarterly wage reports, resulted in the erroneous denial of the immigrant 
petition. Counsel claims that the record demonstrates that the beneficiary's role in the United States entity 
would satisfy the statutory criteria of "executive capacity." Counsel submits a brief in support of the claims 
on 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 the instant matter 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. 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 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, hctions 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. 9 1 101(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 immigrant petition on December 30, 2003 noting the beneficiary's position as general 
manager in the four-person corporation. In an appended letter from the petitioner's counsel, dated December 
18, 2003, counsel provided the following job description for the beneficiary's proposed position: 
As General Manager, [the beneficiary] is and will be involved in establishing the company's 
long and short term goals, establishing and implementing company policies, planning the 
Page 4 
strategic management of the company to ensure it's [sic] long term goals are met, directing 
the business activities, supervising all financial aspects of the company, directing and 
coordinating formulation of financial programs to provide funding for the company, seeking 
new investment opportunities, and negotiating, reviewing and approving contracts. 
More specifically, the beneficiary's duties will be: 
Planning - 25%: [The beneficiary] is involved in developing the business mission, 
objectives and goals and policies of [the petitioning entity] and in determining how they 
will be accomplished. This involves overall strategizing from the broadest view to the 
narrowest view. He will develop and establish internal company policies and procedures 
to build a strong foundation for the company in the highly competitive market. 
Decision making 25%: [The beneficiary] has wide latitude in decision making in the 
following areas: 
Organizing - Establishing the internal organizational structure of the company, with 
particular focus on division, coordination, and control of tasks and the flow of 
information within the organization. 
Controlling - Establishing performance standards from the point of view of 
customers, measuring and reporting actual performance, comparing the two and 
taking corrective or preventive action as necessary. 
Enterprise Management - As General Manager, [the beneficiary] completely 
manages and directs the U.S. subsidiary. He will oversee and direct the expansion 
plans of the company, analyze market trends and ensure proper funding [is] available. 
Sales and Marketing - Developing various sales and marketing strategies to keep the 
company's sales growth on target by identifying and developing new markets, 
planning company visibility through sales campaigns. 
Coordinating with Parent Company 20% - [The beneficiary] is in a unique position to 
communicate with the parent company's officers in their native language. With his skills 
and first hand knowledge for over 10 years with the parent company, he is able to report 
directly on the demand for certain products and U.S. trends. 
Staff supervision 15% - see below 
Strategic Alliances and Contract Negotiations 15% - It is the duty of the General 
Manager to submit proposals that are advantageous to the company. These proposals 
could be in the form of mergers, acquisitions, territorial understanding or strategic 
alliances in the areas of sales, manufacture or design development. He will also negotiate 
contract terms with medium to large companies. 
Specifically, [the beneficiary] will spend approximately 70% of his time exercising his 
discretionary authority in managing professional staff members and client relations on behalf 
of [the petitioning entity] by conducting discussions with clients and the sales/managerial 
staff to identify client business problems and opportunities for the company to solve those 
problems through improved policies and operations. 
In addition to the development as indicated above, [the beneficiary] will spend approximately 
30% of his time developing and conducting information on the trends in the [dliamond 
industry in the U.S. market, discussing with the [elxecutives in India and formulating policies 
and procedures. 
Counsel stated that as the general manager, the beneficiary would supervise four subordinate employees - a 
manager, two sales representatives, and an administrative assistant - and noted that the petitioner utilized 
three consultants to determine trends in the jewelry industry. Counsel submitted an organizational chart that 
reflected the positions previously identified. 
The director issued a request for evidence, dated December 1, 2004, asking that the petitioner provide the 
following documentary evidence of beneficiary's role as a manager or executive in the United States entity: 
(1) a detailed description of the job duties performed by the beneficiary on a "typical day"; (2) the company's 
organizational chart describing its managerial hierarchy and staffing levels and identifying the beneficiary's 
subordinate employees; (3) a brief description of the job duties performed by the workers subordinate to the 
beneficiary and their levels of education; and (4) California Employment Development Department (EDD) 
Form DE-6, Quarterly Wage Report, for the fourth quarter of 2003 and the third quarter of 2004. 
Counsel responded in a letter dated December 2 1, 2004, describing the beneficiary's job duties in the position 
of president as both executive and managerial. Counsel stated that the beneficiary would perform the 
following "typical day" functions: (1) establishing the company's goals and policies, particularly in relation to 
sales reports, new accounts, and marketing strategies; (2) supervising sales and profitability functions; (3) 
implementing marketing strategies, programs and plans; (4) coordinating activities and operations between 
the foreign and United States companies; (5) developing internal financial policies and coordinating with the 
petitioner's attorneys and accountants; (6) supervising lower-level employees; (7) reviewing financial reports; 
and (8) maintaining the "overall management" of the company. Counsel also provided a statement explaining 
that the tasks performed by the beneficiary during a typical day would include planning and developing, 
directing legal affairs, marketing, and supervising financial matters. Counsel provided an allocation of the 
amount of time dedicated to each task. As counsel's statement is part of the record, it will not be repeated 
herein. 
Counsel also referenced the Occupational Outlook Handbook published by the U.S. Department of Labor, 
Bureau of Labor Statistics. Counsel noted, in particular, that, based on the Occupational Outlook Handbook, 
the general manager of a small company "often is responsible for purchasing, hiring, training, quality control, 
and day-to-day supervisory duties. 
In a decision dated May 30, 2005, the director concluded that the beneficiary would not be employed in the 
United States in a primarily managerial or executive capacity. The director noted that despite the 
beneficiary's title of "general manager," the beneficiary would not be performing primarily managerial or 
executive job duties. The director further noted a discrepancy in the employees identified on the petitioner's 
organizational chart and those reflected on its state quarterly wage report for the quarter ending September 30, 
2004. The director concluded that the nature of the petitioner's business would not require a general manager. 
The director also concluded that the beneficiary would not be supervising managerial employees as required 
Page 6 
by the regulations, or that the beneficiary would be employed as a functional manager. Consequently, the 
director denied the petition. 
In an appeal filed on June 27,2005, the petitioner's current counsel claims that CIS failed to properly interpret 
the Act, regulations and case law applicable to the beneficiary's classification as a multinational manager or 
executive. In a subsequently submitted appellate brief, counsel outlines job duties of the beneficiary similar 
to those stated in counsel's December 18, 2004 letter. Counsel challenges the director's finding that the 
beneficiary would be performing the petitioner's "routine operational activities," stating that instead, the 
beneficiary " is involved in directing the commercial affairs and interests of the [petitioner] [and] determining 
and formulating the policies and business goals." Counsel noted the following five job responsibilities of the 
beneficiary: 
Directing the subordinate management to establish responsibilities and procedures, to 
split assignments and to devise work schedules; 
Supervising and controlling the work of the subordinate management, sales and 
marketing professionals; 
Designating responsibilities to subordinate staff, and evaluating performance; 
Exercising discretion over the day-to-day operations, reviewing and ratifying business 
documents and funding plans; 
Negotiating final agreements and contracts involving existing and new business 
opportunities. 
Counsel notes that the size of the petitioner's staff may not be the sole basis for determining whether a 
beneficiary is employed as a manager or executive, and contends that the petitioner's staff "adequately 
fulfill[s] the staffing needs of the U.S. corporation." Counsel contends that, other than the petitioner's 
administrative assistant, each employee "ha[s] characteristics of employees with 'specialized knowledge'." 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed in the United States 
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. 9 204.56)(5). While the petitioner claims that the 
beneficiary primarily performs tasks typically considered to be managerial or executive, such as planning and 
making decisions for the United States business and exercising discretion in managing a professional staff, the 
petitioner's claims are not credible. According to the job description offered by the petitioner, the beneficiary 
would spend approximately 30 percent of his time performing such non-managerial and non-executive tasks 
as devising the company's marketing and sales strategies and sales campaigns, identifying and developing 
new sales markets, analyzing market trends, and evaluating customers' credit. Additionally, as a liaison 
between the foreign and United States offices, the beneficiary would devote 20 percent of his time to 
coordinating the companies' operations for the timely delivery of products, a responsibility not deemed to be 
managerial or executive in nature. See $9 101(a)(44)(A) and (B) of the Act. While this represents a 
cumulative amount of 50 percent of the beneficiary's time, the record does not demonstrate that the remainder 
of the beneficiary's time would be spent performing in a primarily managerial or executive capacity. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 8 101 (a)(44)(C) of the Act, 8 U.S.C. 4 1 101 (a)(44)(C). However, it is appropriate for CIS to consider the 
size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
The petitioner represents that the beneficiary would supervise three employees, including a manager, who 
would be responsible for the day-to-day functions of the business, including its sales. However, according to 
the wages reported on the petitioner's quarterly wage report for the quarter ending December 3 1, 2003'~ the 
manager, sales representative and administrative assistant were employed, at most, on a part-time basis.2 The 
AAO notes the quarterly report does not identify the employment of a second sales representative, as claimed 
by counsel in her December 18, 2003 letter. The petitioner has not addressed who would perform the non- 
qualifying functions of the business in the absence of its part-time workers if not the beneficiary. Of 
particular interest is the petitioner's claim of sales in the amount of approximately $1,130,000 on its 2003 
corporate tax return despite the employment of a part-time manager and sales representative. The role of the 
beneficiary as a sales representative of the petitioner is further confirmed by invoices for products purchased 
by the petitioner that bear the beneficiary's signature as the "customer or representative." An employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 
593, 604 (Comm. 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
Additionally, it does not appear that the petitioner employs workers who would perform several of the 
business' non-qualifying functions that the beneficiary is said to merely supervise and not personally perform. 
For example, the petitioner represented in its response to the director's request for evidence that the 
beneficiary would "[direct] the implementation of marketing strategies and programs." Yet, as discussed 
previously, the petitioner has not identified any workers who would be responsible for implementing and 
performing the business' marketing. Moreover, the beneficiary is said to be responsible for reviewing 
financial business reports, yet again, the record does not account for the preparation of the financial reports by 
lower-level employees. The AAO will not consider the job duties of the "sales and service manager," who 
was employed after the filing of the petition. 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. at 49. 
The record does not demonstrate that the petitioner employs a staff sufficient to support the beneficiary in a 
primarily managerial or executive position. 
I The AAO notes that the director incorrectly relied on the petitioner's state quarterly wage report ending 
September 30, 2004 when reviewing the petitioner's staffing levels. The proper analysis is of the petitioner's 
fourth quarter report for 2003, which is the period during which the immigrant petition was filed. 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). 
' This conclusion was derived by analyzing the wages paid to each employee over the three-month period, and 
is formed under the assumption that the petitioning entity operates on a forty-hour workweek. 
Page 8 
Counsel's unsupported statement on appeal that CIS failed to consider "certain corporate employees [who] are 
not located in the United States, but rather, are in India" is not probative of the beneficiary's proposed 
employment capacity. Counsel does not reference any foreign employees in his appellate brief who would be 
supervised or managed by the beneficiary while employed in the United States. 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). 
Furthermore, the record does not substantiate counsel's claim on appeal that the beneficiary would be 
primarily employed as a functional manager. The term "hction manager" applies generally when a 
beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible 
for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 
U.S.C. tj 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed, i.e. identify the function with specificity, articulate 
the essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. 8 C.F.R. tj 204.5Cj)(5). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related to the function. As discussed above, the beneficiary would be performing the essential 
functions of the petitioner's business, including its sales, marketing and operational functions, rather than 
managing employees who would perform the related tasks. As a result, the beneficiary cannot be deemed to 
be a functional manager. 
Based on the foregoing discussion, the petitioner has failed to demonstrate 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 the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. In her December 18, 2003 letter, counsel 
provided the limited statement that while employed overseas as the company's vice-president, the beneficiary 
set the company's long and short-term goals, "direct[ed] and coordinat[ed] business activities," "formulat[ed] 
and implement[ed] the company's service policies," and analyzed financial data. While the petitioner 
provided an organizational chart and list of workers employed by the foreign entity prior to the beneficiary's 
transfer, the record does not contain a comprehensive description of the managerial or executive job duties 
performed by the beneficiary. 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), affd, 905 F.2d 41 (2d. Cir. 1990). 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). 
Page 9 
The AAO recognizes that CIS has previously approved two L-1A nonimmigrant petitions filed for the benefit 
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. 
Cf: fjfj 204 and 214 of the Act, 8 U.S.C. fjfj 1154 and 1 184; see also fj 316 of the Act, 8 U.S.C. fj 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. § 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L-1A petition's validity). 
Moreover, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that CIS 
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). Due to the lack of required evidence in 
the present record, the AAO finds that the director was justified in departing from the previous nonimmigrant 
approval by denying the present 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. § 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.