dismissed EB-1C Case: Electrical Services

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
0 FILE: Office: CALIFORNIA SERVICE CENTER JAN Date: I 1,2005 
IN RE: Petitioner: 
Beneficiary: 
1 
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. !$ 1 153(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. 
obert P. Wiemann, Director 
dministrative Appeals Office 
.i 
DISCUSSION: The Director, California Service Center, denied the employment-based petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of California in May 1999. It offers electrical services. 
It seeks to employ the beneficiary as its president. 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)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner had not established that: (1) the beneficiary had been employed for 
the foreign entity in a managerial or executive capacity; or (2) the beneficiary would be employed in a 
primarily managerial or executive capacity for the United States entity. 
On appeal, counsel for the petitioner asserts the director erred in his decision and submits a brief in response 
to the director's decision. 
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 Iimiting this provision to only those executives and 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 that 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. See 8 C.F.R. 
0 204.5(j)(5). 
The first issue in this proceeding is whether the beneficiary had been employed in a managerial or executive 
capacity for the foreign entity prior to entering the United States as a nonimmigrant. 
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, fimction, or 
component of the organization; 
. . 
11. 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; 
. . . 
111. 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 hnction 
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 10 1(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
I. directs the management of the organization or a major component or finction 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
111. 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. 
Page 4 
In a December 23, 2002 letter appended to the petition, the petitioner stated that the beneficiary had 
experience developing and establishing the operations of its parent company and that the beneficiary had an 
engineering background and field experience. 
On April 22, 2003, the director requested: (1) the foreign company's organizational chart describing its 
managerial hierarchy and staffing levels, identifying the beneficiary's position on the chart and all employees 
under the beneficiary's supervision by name, job title, and job duties; (2) a more detailed description of the 
beneficiary's duties with the foreign entity including the percentage of time the beneficiary spent on the listed 
duties; and (3) the foreign entity's payroll records pertaining to the beneficiary. 
In a July 10, 2003 response, the petitioner indicated that the beneficiary was not on the foreign entity's 
payroll, but as the sole proprietor of the foreign company the beneficiary received business profits as his 
compensation. The petitioner stated that the beneficiary had been and "continues to be directly responsible 
for guiding the business towards the objectives, which he sets, through planning and developing of business 
strategies." The petitioner indicated: 
The beneficiary spent 35 to 40 percent of his time reviewing and assessing market research 
and consulting with horticulturalists about expanding lines of flowers and plants. 
The beneficiary spent 15 percent of his time on personnel matters, including staff~ng levels, 
compensation, and promotion of full-time permanent employees as well as the numerous 
contractors hired seasonally to assist in cultivating, harvesting and shipping the business's 
product line. 
The beneficiary spent 10 percent of his time negotiating lines of credit with banking 
institutions. 
The beneficiary spent 35 percent of his time overseeing the development of domestic and 
foreign retail and wholesale customers that includes meetings, final contract negotiations, 
which includes price setting. 
The beneficiary spent the remaining portion of his time reviewing horticultural reports 
needed to negotiate with suppliers of seeds and saplings. 
The foreign entity's organizational chart identified the beneficiary as the sole proprietor. The chart also 
identified a general manager who it claimed ensured that the foremen and their crews planted, harvested, and 
shipped on time and budget and who also oversaw the day-to-day office management. The petitioner claimed 
the foreign entity's two foremen supervised three to five agricultural workers and oversaw completion of 
contracts. The organizational chart also indicated that independent horticulturalists prepared reports on plants 
and flowers including recommendations for planting, cultivating, and harvesting. 
The director determined, based on the foreign entity's organizational chart, that the foreign entity employed 
three permanent employees and up to ten temporary workers. The director questioned whether the 
Page 5 
beneficiary participated in the management of the foreign entity as he received business profits rather than a 
salary. The director determined that the petitioner had only shown that the beneficiary had financial 
involvement in the foreign entity but had not established that the beneficiary had been employed in a 
managerial or executive capacity for the foreign entity. 
On appeal, counsel asserts that the director failed to consider the description of the beneficiary's job duties for 
the foreign entity that had been submitted in response to the request for evidence. Counsel claims that the 
description of the beneficiary's executive and managerial responsibilities is supported by the foreign entity's 
organizational chart. Counsel questions the director's conclusion that the beneficiary was simply the owner of 
the company and did not participate in the day-to-day management of the foreign entity. Counsel concludes 
that the beneficiary "manages and directs" the foreign entity by overseeing a general manager, two foremen, 
and numerous independent contractors. 
Counsel also submits letters Erom two of the foreign entity's employees, the foreign entity's accountant, and a 
customer. The individual identified as the foreign entity's general manager stated in his December 16, 2001 
letter that he had been employed for the foreign entity between 1997 and 1999 as a foreman. He also noted 
that the beneficiary "was coming and going during the day, while managing his business, purchasing supplies 
and conducting sales negotiations." He also noted that the beneficiary chose suppliers, distributors, and did 
all the hiring. An individual not identified on the foreign entity's organizational chart stated in a December 
12, 2001 letter that the foreign entity employed him in the year 1997 and that the beneficiary was his 
supervisor. The writer also observed that the beneficiary decided where and how many flowers would be 
shipped, took care of supplies, and took care of delivering flowers to the warehouse. A third letter, dated 
December 18, 2001, indicated that the beneficiary had purchased flower plants from the writer's company to 
the date of the letter and noted that the beneficiary made the orders, negotiated prices and paid for the plants 
purchased. A fourth letter dated May 1999, indicated that the beneficiary was a flower grower and had a 
signed contract to export flowers from the exporting season in " 199 1-92 and 1989-9 and forward." 
Counsel's assertions are not persuasive. The petitioner's description of the beneficiary's duties for the foreign 
entity is general. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 
(2d. Cir. 1990). The petitioner indicated that the beneficiary spent 35 to 40 percent of his time reviewing and 
assessing market research and consulting with horticulturalists and another 35 percent of his time overseeing 
the development of domestic and foreign retail and wholesale customers. These statements are too general to 
determine whether the beneficiary's duties were primarily managerial or executive. However, the foreign 
entity's prior employees and individuals associated with third party companies indicated that the beneficiary 
actually spent his time purchasing supplies and flower plants, conducting sales negotiations, delivering 
flowers to the warehouse and taking care of shipping. The actual duties themselves reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. These duties are indicative of the 
beneficiary primarily performing the foreign entity's operational and administrative services. 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 Chuvch Scientology International, 19 I&N Dec. 
593, 604 (Comm. 1988). The petitioner has provided evidence that indicated the beneficiary was a "hands 
on" owner who performed the foreign entity's operational tasks, except for the actual labor of growing 
flowers. The petitioner has not established that the beneficiary was employed in a qualifying managerial or 
executive capacity for the foreign company. 
The second issue in this proceeding is whether the petitioner established that the beneficiary would be 
employed in an executive or managerial capacity for the petitioner. 
In the December 23, 2002 letter appended to the petition, the petitioner stated: "At our company, we feel it is 
imperative to have a person physically present in the United States to explore new markets, enter into sales 
contracts, service old and new customers, and to oversee and maintain quality control, maintain personalized 
services for total customer satisfaction, and quick decisions for the ever changing electronic contracting 
service industry." The petitioner described the beneficiary's job duties as: 
[The beneficiary] is responsible for the effective coordination of the office activities. His job 
duties in the company are planning, developing and establishing policies and objectives of the 
business organization, building up the cost effective business model, reviewing the financial 
statements and formulating different monetary programs for funding the company operations 
and maximize investment returns. He has set up an internal administrative network for 
smooth operations of the daily affairs, in which is [sic] attention is not needed. He is placing 
the systems to attain the best efficiencies and productivity of the resources. He exercises total 
authority to engage in all personnel matters including hiring, firing and promoting of our 
professional staff. 
In addition, [the beneficiary] makes all key decisions like supervising the office lease, 
implementing marketing strategies, evaluation of the customer business profile to determine 
risks involved and hiring additional professionals per the growing business requirements. 
[The beneficiary] oversees our team of electricians, our estimating team and our service 
departments. Due to the complex nature of the job duties assigned to each group leader under 
the guidance of [the beneficiary], our company aims to meet the long-term goals within the 
defined financial and operational parameters, delivering quality and long lasting benefits to 
our customers. 
The petitioner also described the company's future business plans and its expectation to hire personnel as the 
company grew. 
On April 22, 2003, the director requested a more detailed description of the beneficiary's duties including the 
percentage of time the beneficiary spends in the listed duties. The director also requested the petitioner's 
organizational chart describing its managerial hierarchy and staffing levels and the beneficiary's position on 
the chart and all employees under the beneficiary's supervision by name, job title, and description of job 
duties. The director further requested the petitioner's California Forms DE-6, Employer's Quarterly Report, 
for the last eight quarters. 
In response, the petitioner provided its organizational chart listing the beneficiary as presidedmanager. The 
petitioner indicated the beneficiary had final authority over purchasing, major customer relations and sales, 
and reviewing reports and authorizations. The chart depicted an office manager and a project supervisor 
directly under the beneficiary's supervision. The chart also showed a project manager under the supervision 
of the project supervisor, two foremen under the supervision of the project manager, and two electrical 
technicians reporting to the foremen. The petitioner stated that the project supervisor provides daily needs 
and certain customer relations, the project manager assigns projects and oversees work orders, the foremen 
are responsible for their work and their helpers, and the electrical technicians work was self-explanatory. 
The petitioner provided its California Forms DE-6 in its response to the director's request for evidence. The 
California Form DE-6 for the first quarter of 2003 confirmed the employment of the individuals identified on 
the organizational chart as the petitioner's project supervisor, project manager, one of the foremen, and an 
electrical technician. The California Form DE-6 also listed two individuals who were not identified on the 
petitioner's organizational chart. One of the two unidentified individuals apparently worked for the petitioner 
temporarily. 
The director, in an inarticulate decision containing numerous grammatical errors, determined that the 
petitioner's description of the beneficiary's duties paraphrased portions of the statutory definitions of 
managerial and executive capacity. The director noted that the petitioner had not provided detail regarding 
the beneficiary's actual duties and the percentage of time devoted to those duties. The director compared the 
organizational chart and the petitioner's California Form DE-6 and determined that the petitioner had only 
identified four employees and that the beneficiary would at best be employed as a first-line supervisor of 
non-professional employees. The director determined that the record did not contain sufficient information to 
demonstrate that the beneficiary would be employed in a managerial or executive capacity. 
On appeal, counsel for the petitioner asserts that: (1) the petition was filed in the fourth quarter of 2002' and 
that the petitioner's California Form DE-6 for that period reflects the employment of seven individuals; (2) the 
definitions of managerial and executive capacity focus on the employee's primary activities but do not 
preclude the beneficiary Erom performing other activities; (3) even if the beneficiary performed some 
non-qualifjmg activities, the activities were only incidental to the beneficiary's performance of his executive 
andlor managerial duties; and (4) although the number of employees supervised should not be determinative, 
the petitioner employs sufficient staff to free the beneficiary to engage in executive and managerial duties. 
Counsel also cites and mistakenly characterizes two AAO decisions as precedent decisions in support of her 
assertions. 
1 Counsel submitted a letter in support of the petition dated December 23,2002, however the petition was not 
received and date-stamped at the service center until January 2, 2003. In accordance with 8 C.F.R. 
5 103.2fa)(7)(i), an application received in a Citizenship and Immigration Services (CIS) office shall be 
stamped to show the time and date of actual receipt, if it is properly signed, executed, and accompanied by the 
correct fee. For calculating the date of filing, the petition shaIl be regarded as properly filed on the date that it 
is so stamped by the service center or district office. 
Counsel's assertions are not persuasive. Again, 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. 
3 204.5(j)(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 may not claim a beneficiary is to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. A petitioner must establish 
that a beneficiary meets each of the four criteria set forth in the statutory definition for executive and the 
statutory definition for manager if it is representing that the beneficiary is both an executive and a manager. 
On review bf the petitioner's description of the beneficiary's duties, the AAO agrees with the director's 
determination that the description is not comprehensive and paraphrases portions of the definitions of 
managerial and executive capacity. For example, the petitioner states the beneficiary's job duties in the 
company are "planning, developing and establishing policies and objectives of the business organization, 
building up the cost effective business model, reviewing the financial statements and formulating different 
monetary programs for funding the company operations and maximize investment returns," and "placing the 
systems to attain the best efficiencies and productivity of the resources," and that he "exercises total authority 
to engage in all personnel matters including hiring, firing and promoting of our professional staff." The 
petitioner does not, however, further define the day-to-day requirements of the beneficiary's electrical 
company or explain the beneficiary's actual daily tasks within the company. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1103. 
The beneficiary's responsibilities for "effective coordination of the office activities," and "supervising the 
office lease, implementing marketing strategies, evaluation of the customer business profile to determine risks 
involved" are more indicative of an individual performing basic administrative functions. Similarly, the 
beneficiary's responsibilities to explore new markets, enter into sales contracts, service old and new 
customers, and oversee and maintain quality control are indicative of an individual involved in the petitioner's 
daily sales and marketing tasks. 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. at 604. Overseeing the petitioner's electricians and 
estimating teams are the duties of a first-line supervisor supervising skilled technicians. 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. See 101(a)(44)(A)(iv) of the Act. 
The petitioner's description of the beneficiary's duties is not comprehensive and the few details regarding the 
beneficiary's actual daily duties are more akin to an individual performing the petitioner's administrative and 
operational tasks. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1108. 
Counsel correctly observes that a beneficiary's incidental operational and administrative tasks do not 
necessarily preclude a beneficiary from being considered a manager or an executive. However, in this matter, 
- the director requested that the petitioner provide a more detailed description of the beneficiary's duties and 
allocate the percentage of time allotted to those duties. The petitioner failed to provide this information. This 
failure of documentation is important because, as observed above, several of the beneficiary's tasks do not fall 
directly under traditional managerial duties as defined in the statute. Counsel's assertion that the beneficiary's 
performance of non-qualifying duties, if any, is incidental to the beneficiary's executive or managerial duties 
is not supported in the record. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The assertions of counsel do not constitute evidence. Matter 
of Obaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Counsel's claim that the petitioner employs a sufficient number of employees to relieve the beneficiary from 
performing non-qualifying duties, likewise, has not been established. The petitioner's description of the 
beneficiary's subordinates' duties does not establish that the individuals in the roles of project supervisor and 
project manager are directly and primarily responsible for supervising the petitioner's technicians. Moreover, 
the petitioner's tendency to embellish the roles of the beneficiary's subordinates as observed in the discussion 
of the beneficiary's duties for the foreign sole proprietorship, casts doubt on the actual duties of the 
beneficiary's subordinates for the petitioner. 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. 5 82,591 (BIA 1988). 
Further, a petitioner may not create artificial layers of employees to suggest that an organization is 
sufficiently complex to support an executive or manager; instead the petitioner must substantiate that the 
duties of a beneficiary's subordinates correspond to their placement in an organization's structural hierarchy. 
Citizenship and Immigration Services (CIS) reviews the totality of the record, including descriptions of a 
beneficiary's duties and 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, when examining the managerial or executive capacity of a 
beneficiary. The petitioner has not provided an organizational structure substantiated by the record sufficient 
to elevate the beneficiary to a supervisory position that is higher than a first-line supervisory role. 
Counsel's citation to prior unpublished AAO decisions is not probative in this matter. The decisions cited are not 
precedent decisions and counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those of the unpublished cases. Moreover, unpublished decisions are not binding on CIS in its 
administration of the Act. See 8 C.F.R. 9 103.3(c). 
Finally, the petitioner's reference to expanding its business in the future is not relevant to this proceeding. A 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
On review, the petitioner has not presented sufficient evidence to establish that the beneficiary's duties for the 
petitioner will involve primarily executive or managerial duties. 
Beyond the decision of the director, the petitioner has not established that it has maintained its multinational 
character as required by this visa classification. The record does not demonstrate that the foreign entity 
continues to do business. The regulation at 8 C.F.R. 3 204.56)(2) states in pertinent part: "Multinational 
means that the qualifying entity, or its affiliate, or subsidiary, conducts business in two or more countries, one 
of which is the United States." The regulation at 8 C.F.R. 5 204.56)(2) states in pertinent part: "Doing 
Business means the regular, systematic, and continuous provision of goods andlor services by a fm, 
corporation, or other entity and does not include the mere presence of an agent or office." The petitioner has 
not submitted any evidence to establish that the foreign sole proprietorship continues to do business, as 
required at 8 C.F.R. 5 204.50)(2). Unlike a corporation, a sole proprietorship does not exist as an entity apart 
from the individual owner. Matter of United Investment Group, 19 I&N Dec. 248 (Comm. 1984). A sole 
proprietorship is a business in which one person owns all of the assets and operates the business in his or her 
personal capacity. Black's Law Dictionary 1398 (7th Edition). As the beneficiary claims to be the owner and 
sole proprietor of the foreign business, the presence of the beneficiary in the United States raises the question 
of whether the foreign business continues to do business abroad. The lack of current evidence leads the AAO 
to conclude that the foreign sole proprietorship is no longer doing business. 
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). 
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. 3 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.