dismissed EB-1C Case: Diesel Machinery Repair

(b)(6)
DATE: SEP 2. 3 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigration Services 
Office of Admini strmive Appeals 
20 Massa c husetts Ave., N.W. , MS 2090 
Washingt
on, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE : 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) oftheimmigration 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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek 
to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
ild-r Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Louisiana engaged in the repair of 
heavy duty diesel machinery. The petitioner states that it is an affiliate of 
located in Peru. It seeks to employ the beneficiary as its general manager. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S .C. § 1153(b)(I)(C), as a multinational 
executive or manager. 
The director denied the petition, finding that the petitioner failed to establish that it will employ the 
beneficiary in a managerial or executive capacity. 
On appeal , counsel submits additional evidence related to the petitioner's operations in the United States, and 
the beneficiary 's proposed duties , and contends that the beneficiary will act in a managerial capacity as 
defined by the Act. 
I. The Law 
Section 203(b) of the Act states in pertinent pa11: 
(1) Priority Workers. --Visas shall first be made available ... to qualified immigrants who 
are alien s 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 State s 
under this s ubparagraph, has been employed for at least I year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
see ks 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 I-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor cenification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
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. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization 111 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, profe ss ional, 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 111 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 . 
I. The Issues on Appeal 
(b)(6)
NON-PRECEDENT DECiSION 
Page 4 
A. Employment with the petitioner in a managerial or executive capacity 
The sole issue addressed by the director was whether the petitioner had established that the beneficiary 
would be employed in a qualifying managerial or executive capacity in the United States. 
In denying the petition, the director noted that the petitioner's tax return documentation reflected that the 
petitioner did not have sufficient employees to relieve the beneficiary from performing the non-qualifying 
operational duties of the busine ss and to elevate the beneficiary's position above that of a first-line 
supervisor. The director also determined that the beneficiary's position description was overly vague. 
Finally, the director pointed to the petitioner's failure to submit sufficient duty descriptions for the 
beneficiary 's claimed subordinates, which were specifically requested by the director in a request for 
evidence (RFE). 
On appeal, counsel states that the petitioner 's lack of employees is due to an economic downturn in the 
region of Louisi ana where the petitioner is located. Counsel asserts that the petitioner will expand its number 
of employees and operations in the future following planned economic investment in the region by an 
independent large corporation called . . Counsel contends that the beneficiary direct s and controls an 
office manager who oversees subordinate employees handling the day-to-day operational duties of the 
business . Coun sel also submits additional evidence on appeal, including a more detailed duty description for 
the beneficiary , duty descriptions for the beneficiary 's claimed subordinates, and other evidence to support 
his claims that the petitioner can support the beneficiary in a managerial capacity. 
Counsel' s assertions are not persuasive. Upon review of the petition and the evidence, and for the reasons 
discussed herein , the petitioner has not established that it will employ the beneficiary in a qualifying 
managerial or executive capacity. 
In order to determine whether the beneficiary would be employed in a qualifying executive or managerial 
capacity, USCIS will look first to the petitioner's description of the job duties. See 8 C.P.R . § 204.5(j)(5). In 
suppot1 of the petition, the petition er failed to submit a detailed description of the beneficiary 's duti es in the 
United States. The petitioner indicated that the beneficiary would serve as the gener al manager of the 
petitioner's diesel repair shop , stated that it had two current employees, and indicated that the company 
currently has a service contract with to provide preventive maintenance and 
service to ' . The petitioner provided a copy of its 
Internal Revenue Service (IRS) Form 941 , Employer's Quarterly Fed eral Tax Return , for the first two 
quarter s of 2012 . The petitioner reported payment of $1,560.00 in wages to one employee in each quarter. 
The director issued a requ est for evidence (RFE), in which he instructed the petitioner to submit a definitive 
statement describing the beneficiary's duti es in the United States including his position title, his s pecifi c 
daily duties, and the percentage of time he spent on each duty. However, the petitioner failed to submit the 
requested duty descr iption to the director. Now, on appeal, the petitioner submits a more detailed U.S. duty 
description for the beneficiary, including the amount of time the beneficiary will devote to eac h task . 
(b)(6) NON-PRECEDENT DECISION 
Page 5 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit fUither information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.P.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.P.R. § 103.2(b)(l4). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opp01tunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec . 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have 
submitted the documents in response to the director's request for evidence. !d. Under the circumstances, the 
AAO need not and does not consider the sufficiency of the evidence submitted on appeal. 
The petitioner failed to submit a duty description for the beneficiary's proposed position, thereby precluding 
an essential line of inquiry in determining whether the beneficiary qualifies as an executive or manager 
consistent with the Act. The definitions of executive and managerial capacity have two parts . First , the 
petitioner must show that the beneficiary performs the high-level responsibilities that are specified in the 
definitions. Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion World, 
Inc. v. INS, 940 F.2d 1533 (Table) , 1991 WL 144470 (9th <;ir. July 30, 1991 ). As such, without a duty 
description for the beneficiary, users cannot determine that the beneficiary will primarily perform 
executive or managerial duties and the petitioner's claims fail on an evidentiary basis. The director properly 
denied the petition based on this evidentiary deficiency. 
Further, when examining the managerial or executive capacity of a beneficiary , USCIS reviews the totality of 
the record, beyond the beneficiary's duties, including the duties of his or her subordinate employees, the 
nature of the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. 
The petitioner asserts that it operates a repair shop providing maintenance and repair services to trucks and 
other heavy duty machinery. On the I-140 Immigrant Petition for an Alien Worker, the petitioner stated that 
it had two employees. The petitioner's IRS Form 1065 U.S Return of Partnership Income for 2011 indicated 
that it earned $81,168 in income in 2011. Further, IRS Form W -2 Wage and Income Statements from 2011 
reflect that the petitioner had one employee and paid her $1,300 in total wages in 2011. The petitioner also 
submitted IRS Form 941 Employer's Quarterly Federal Tax Return statements for the first and second 
qua1ters of 2012 indicating that the petitioner employed one employee and paid $1,560 in wages in each of 
the first two quarters of 2012. Additionally, the petitioner acknowledged that it was forced to close a party 
supply store it formerly operated , which the petitioner demonstrated had employed a number of sales 
representatives, and that it was unsuccessful at opening a planned medical supply store. 
In the RFE, the director requested that the petitioner submit an organizational chart showing the number of 
subordinate managers/supervisors or other employees reporting directly to the beneficiary, along with a brief 
description of their duties and their education levels. In response, the petitioner submitted two conflicting 
(b)(6) NON-PRECEDENT DECISION 
Page 6 
organizational charts. The first chatt reflected that the beneficiary had two subordinates, a salesperson 
working at the patty supply store and a mechanic presumably working at the mechanical repair shop. The 
other submitted organizational chart reflected that the beneficiary had two manager assistants reporting 
directly to him, along with subordinate employees reporting to the manager assistants, including two 
salespersons working at the patty supply store, and a mechanic and an assistant working for the mechanical 
repair shop. The petitioner provided no additional supporting evidence that the employees referenced in the 
provided organizational charts were currently employed by the petitioner, despite previously submitted tax 
documentation indicating that none of the aforementioned employees (apart from the beneficiary's wife in 
the position of manager assistant) worked for the petitioner in 201 1 or 2012. As noted, the petitioner also 
stated that it had a contract in place with a company called pursuant to which it 
provides mechanical maintenance on the company's diesel equipment. 
On appeal, counsel again explains that the petitioner's lack of operations and employees are due to an 
economic downturn in Louisiana, but that planned investment in the region by a company called will 
boost the economy of the region and allow "the petitioner's business to develop and attract more employees." 
Supporting the petitioner's lack of operations and employees, the petitioner submits a Louisiana Workforce 
Commission, Report of Change document stating that the petitioner "ceased operations" during the fourth 
quatter of 2012 and that it has not paid wages since June 2012. Additionally, an IRS Form 941 dated 
January 2, 2013 indicates that the petitioner is not currently paying wages and has not done so since June 
2012. Despite evidence that the petitioner is not doing business and that it has no current employees beyond 
the beneficiary, the petitioner submits an organizational chart indicating seven employees subordinate to the 
beneficiary, including an office manager, four subordinate "sales" employees, a cashier, and a 
mechanic/technician reporting to the office manager. The petitioner also now submits duty descriptions for 
these employees and employee evaluation forms it asserts were completed by the beneficiary for the 
employees reflected in the petitioner's must recent organizational chart. 
The petitioner has submitted evidence establishing that it operations are insufficient to support the 
beneficiary in a qualifying managerial or executive capacity. First, the petitioner was requested by the 
director to provide titles, duty descriptions, and education levels for the beneficiary's subordinates in the 
RFE. The petitioner failed to provide this evidence, but now submits it on appeal. Again, when a petitioner 
has been put on notice of a deficiency in the evidence and has been given an opportunity to respond to that 
deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 
I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner 
had wanted the submitted evidence to be considered, it should have submitted the documents in response to 
the director's request for evidence. !d. Under the circumstances, the AAO need not and does not consider the 
sufficiency of this evidence submitted on appeal. 
Regardless, even if considered, the petitioner's organizational chart on appeal is not supported by other 
evidence submitted on the record. In fact, the petitioner most recent tax documentation submitted on appeal 
states directly that the petitioner is not operating as a business and that it has no employees. Additionally, 
employer tax documentation from 2011 and from the first two quarters of 2012 indicates that the company 
had only one employee, the beneficiary's wife, during the 18 months preceding the filing of the petition. 
However, the petitioner now claims on appeal in the most recent organizational chart that it has at least six 
(b)(6) NON-PRECEDENT DECISION 
Page 7 
employees subordinate to the beneficiary. The organizational chart submitted on appeal also indicates that 
the petitioner employs a number of employees that formerly worked for the petitioner's party supply store 
that it states is now closed. Further, the petitioner 's most recent Loui siana Sales and Use tax documentation 
reflects that the petitioner has limit ed, or no operations, as it has claimed only $1,000 in revenue in the 
seco nd quarter of 2012 . Lastly, the employee evaluation forms submitted on appeal are for former 
employees who no longer worked for the petitioner at the time of their claimed evaluations. For instance, the 
petitioner provided evaluations for and Her- Office Assistant dated in 
2011; however the petition er has provided no evidence that it actually paid salaries or wage s to either 
individual in 2011. Rather, the evidence shows that the petitioner paid a total of $1,300 in wages to a single 
employee, , in 2011. 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) . In sum, the evidence submitted by the petitioner indicates that 
the petitioner has minimal or no current business operations or employees and that the petitioner thereby 
cannot supp011 the beneficiary in a managerial or executive capacity. 
Further, although the petitioner submits a contract to provide repair services for 
the petitioner states that the beneficiary acts as a consultant for this customer, and therefore he does not direct 
or manage others related to the provision of goods or services, but is providing such goods and services 
himself. As noted , the evidence presented does not establish the employment of any other supporting 
employees to perform these services beyond the beneficiary. An employee who "pr imarily" perform s 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 10l(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 
lnt 'l, 19 I&N Dec. 593 ,604 (Comm ' r 1988). 
The AAO acknowledges counsel's assertion that the economic downturn caused the current lack of 
operations and employees and that these operations will increase following anticipated investm ent in the 
region . However, qualification as an immigrant multinational executive or manager is not a prospective 
endeavor. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A 
visa petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a 
new set of facts. Matt er of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978). Additionally, eve n 
if such prospective evidence was considered, the petitioner has submitted insufficient supporting evidence to 
support its assertions regarding investment in the region and resulting growth in the business. The evidence 
submitted relevant to the petitioner's current operations establishes that the petitioner has I im ited to no 
operations, and no current employees. Therefore , the evidence submitted is not suffici ent to support a 
conclusion that the beneficiary will primarily employed in a man agerial or executive capacity. 
In conclusion, the petitioner has failed to submit a detailed duty description or sufficient evidence relevant to 
establish that its current organizational structure despite the director's specific request for this material 
evidence. Further, the evidence submitted by the petitioner demonstrates that it does not have sufficient 
operations or employees to support the beneficiary in a managerial or executive capacity. For this reason, the 
appeal must be dismissed. 
(b)(6) NON-PRECEDENT DECI SION 
Page 8 
B. Employment with the foreign employer in a managerial or executive capacity 
Beyond the deci sion of the director, the petitioner has not established that the beneficiary was employed in a 
qualifying mana gerial or executive capacity with the foreign employer in one of the three years prece ding his 
admission to th e United Stat es as a nonimmigrant. 
Again, in order to determine whether the beneficiary would be employed in a qualifying executive or 
manageri al capacity, U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's 
description of the job dutie s. See 8 C.F.R . § 204.5(j)(5). In support of the Form I-140, the petitioner 
submitted the following job duty descrip tion for the beneficiary's previous po sition with the foreign entity: 
[The beneficia ry] has successfully served as general manager of [the foreign employer], . 
. . since it has establishe·d in 1994, and it is believed that [the beneficiary] is uniquel y 
qualified to serve as general manager of [the petitioner]. As general manager, [the 
beneficiary] has been responsible for the overall performance of the company, he 
established and managed [the foreign employer] .. . he has directed and coordinated the 
manuf acturing , mark eting , and financing of the company. He oversees the hiring and 
training of employee s, he reviews financial statements to determine the financial status of 
the company. He formulates financial programs to obtain maximum returns of 
investments. 
In the RFE, the director requested that the petitioner submitted evidence to establish that the beneficiary 
primarily performed executive or managerial duties for the foreign employer. Specifically, the director asked 
that the petitioner submit a definitive statement from the foreign company describing the benefi c iary 's job 
duties, including the position title, specific daily duties, and the percentage of time spent of each duty. 
However , in res ponse to the director's request , the petitioner provided no fUither spec ifics regardin g the 
beneficiary's job dutie s with the foreign employer. Once again, failure to submit requested evidence that 
preclude s a material I ine of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103 .2(b )( 14 ). 
Also, as previously noted, the definitions of executive and managerial capacity have two parts. First, the 
petitioner must show that the bene fic iary performs the high-level responsibilities that are specified in the 
definitions . Second, the petitioner must prove that the ben eficiary primarily perform s these specified 
responsibilitie s and does not spend a majority of his or her time on day -to-day functions. Champion World, 
Inc. v. INS , 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
The foreign job duties provided in support of the petition are insufficient to establish that the beneficiary 
primarily performed exec utive or manag erial duties with the foreign employer. Rec iting the beneficiary 's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulation s require a 
detailed description of the beneficiary's daily job duties . The job descr iption offered by the petitioner is 
overly vague and provides little probative value as to the beneficiary's actual day-to-day activities. The 
petitioner indicat es that the beneficiary's duties included being responsible for the overall performance of the 
company, directing and coordinating manufacturing, marketing, and financing of the company, overseeing 
(b)(6) NON-PRECEDENT DECISION 
Page 9 
the hiring and training of employees, and formulating programs to obtain maximum return on investment. In 
each case, the petitioner has failed to provide details, specifics or supporting documentation to corroborate 
the vague responsibilities. Given that the petitioner asserts that the beneficiary worked for the foreign entity 
since 1994, it is reasonable to expect a detailed discussion of his specific duties and responsibilities along 
with examples of his managerial or executive authority . The petitioner has provided no evidence to 
differentiate the beneficiary's listed duties from those of any executive or manager in any industry. Specifics 
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. MatterofSoffici , 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). Conclusory assertions 
regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Asso ciates, Inc. v. Meissner, 
1997 WL 188942 at *5 (S.D.N.Y.). 
Therefore, the petitioner has not established that the related foreign entity employed the beneficiary in a 
qualifying managerial or executive capacity prior to his admission to the United States as a nonimmigrant. 
For this additional reason, the appeal must be dismissed. 
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 ), afj'd . 345 F. 3d 683 
(9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). 
III. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decisio!l. In visa petition proceedings , it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 
I&N Dec . 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.