dismissed EB-1C Case: Energy Generation

EPC COPY 
U.S. Department of fIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
EAC 04 219 50351 
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. fj 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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was initially denied by the Director, Vermont Service Center. 
The petitioner appealed the matter to the Administrative Appeals Office (AAO), where the matter was 
remanded back to the service center for further consideration. The director has since issued a new denial, 
which was subsequently appealed. The director determined that the appeal was untimely filed and opted to 
treat the matter as a motion, ultimately affirming the prior decision denying the petition. The matter presently 
before the AAO is an appeal from the director's decision on motion. The appeal will be dismissed. 
The petitioner is a New Jersey corporation engaged in the business of managing the development of a storage 
electricity generation plant. 
 It seeks to hire 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)(l)(C), as a multinational 
executive or manager. In his latest decision, the director denied the petition based on three independent 
grounds of ineligibility: 1) the petitioner failed to establish that it would employ the beneficiary in a 
managerial or executive capacity; 2) the petitioner failed to establish that it has a qualifying relationship with 
the beneficiary's foreign employer; and 3) the petitioner failed to establish that the beneficiary was employed 
abroad in a qualifying managerial or executive capacity. 
On appeal, counsel disputes the director's decision, asserting that the director failed to address documentation 
submitted in support of the motion. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(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. 
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Two of the issues in this proceeding call for an analysis of the beneficiary's job duties in his prospective 
position with the U.S. petitioner as well as his job duties during his employment abroad. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 lOl(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) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management 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. 
In support of the Form 1-140, the petitioner submitted a letter dated July 1, 2004, which contained the 
following list of the beneficiary's proposed duties and responsibilities: 
1. 
 Direct and control, through various independent contractors, all activities of the company in 
the United States; 
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2. 
 Formulating and administering organization policies and developing long[-]range goals and 
objectives; 
3. 
 Directs and coordinates activities of all independent contractors for which responsibility is 
delegated to further attainment of goals and objectives; 
4. 
 Authorizes settlements and strategizing goals and objectives in legal negotiations with the 
government and private entities; 
5. 
 Reviews analyses of activities, cost, operations and forecast data to determine business 
progress toward stated goals and objectives; 
6. 
 Confers with APIL headquarter to review achievements and discuss required changes in 
goals or objectives resulting from current status and conditions; 
7. 
 Plans and develops industrial, labor and public relations policies in accordance with the 
local applicable law; 
8. 
 Evaluates performance of independent contractors; contribution in attaining objectives, 
decides on company's hiring and firing policies towards these contractors; 
9. 
 The position offered also requires [the beneficiary] to use his personal influence and 
contacts with clients both at home and overseas to increase efficiency and profit. 
The petitioner also stated that the beneficiary supervises the work of independent contractors and has an 
administrative assistant to relieve him from the daily office administration and clerical tasks. With regard to 
the beneficiary's employment abroad, the petitioner stated that the beneficiary "has been in charge of project 
management as well as preparation of technical studies and the monitoring of finances." 
In compliance with the AAO's instructions, the director issued a request for evidence (RFE) dated September 
23, 2005. 
 The director instructed the petitioner to provide the following: 
 1) evidence showing the 
management and personnel structures of the U.S. petitioner and the beneficiary's foreign employer; 2) an 
hourly breakdown for each of the beneficiary's positions listing the specific duties performed abroad and 
duties that would be performed in the United States as well as the amount of time allotted to each duty on a 
weekly basis; and 3) the petitioner's tax returns for 2003 as well as any Forms 1099 andlor W-2 statements 
issued by the petitioner in 2003 and 2004. 
In response, counsel provided a letter dated November 18, 2005 in which he stated that the beneficiary's 
position abroad involved overseeing a technical and administrative staff that was comprised of accountants, 
engineers, a surveyor, and technical managers all of whom were described as professionals. With regard to a 
description of the foreign entity's staffing structure, the petitioner provided a list of names, position titles, and 
salaries for the employees claimed to be under the beneficiary's supervision during his employment overseas. 
The petitioner did not include job descriptions for any of the employees listed; nor did the petitioner provide 
an organizational chart to illustrate the hierarchy within the departments over which the beneficiary had 
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supervisory authority. With regard to the beneficiary's own job description, counsel provided the following 
hourly and percentage breakdown: 
Instructed [plrojects local representatives at worldwide locations for the purpose of 
compiling company's [plrojects budgets. Project [mlanagement on day-to-day basis. 
Contacted project engineers/representatives[,] given them instructions on the way foreword 
for the development of the [plrojects by commenting on the design developments and 
setting [sic] out criteria for the best economical and technical approach. (20 hourslweek- 
50%) 
Oversaw the technical engineers to prepare design drawings and feasibility studies. (4 
hourslweek-15%) 
Reviewed and commented on technical drawings and reports prepared by the engineers. (2 
hourslweek-5%) 
Supervised financial staff on preparation of financial status report[s]. (4 hourslweek- 
10%) 
Authorized payments to a third party suppliers and consultants prepared by accountant. (2 
hourslweek-5%) 
Reviewed accounting reports and signed off on [the] company's accounts, which is 
prepared for the auditors. (2 hourslweek-5%) 
Reporting to the management advising them on the progress of the projects. Based on the 
reports received from various [plrojects, compiled overall progress for discussions with the 
[bloard of [dlirectors. (2 hourslweek-5%) 
Made recommendation[s] to management on personnel performance and workload. (2 
hourslweek-5%) 
With regard to the beneficiary's proposed employment, counsel stated that the petitioner has a total of two 
employees on its payroll including the beneficiary. Counsel also stated that the beneficiary overseas the work 
of five independent contractors whom he deemed professionals. Based on the payroll information provided, 
the site superintendent, the only employee other than the beneficiary, works directly for the petitioner an 
average of 30 to 36 hours per month. Thus, the record does not show any full-time employees aside from the 
beneficiary himself. With regard to the beneficiary's job description, counsel provided the following hourly 
and percentage breakdown: 
Corresponding with Federal Energy Regulatory Committee on [a] regular basis. Preparing 
technical reports concerning the operation of high hazard dam. Preparing flow monitoring 
reports. (4 hours/week-10%) 
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Furthering talks with investors on the smaller scale energy projects. Coordinating with 
[glovernmental [algencies such as [the] Department of Environmental Protections in 
connection with property and project environmental issues. (4 hourlweek-10%) 
Giving instructions to [the] corporate attorney in connection with corporate and property 
related issues. Authoriz[ing] settlements and strategizing goals and objectives in legal 
negotiations with the government and private entities. (6 hourslweek-15%) 
Giving instructions to [the] company accountant to prepare financial statements of the 
[plartnership and [plroject entity and for preparation [ofl the tax returns. Review[ing] 
analyses of activities, cost, operations and forecast data to determine business progress 
toward stated goals and objectives[.] (6 hourslweek-15%) 
Evaluating performance of engineering contractors' conhbution[s] in attaining objectives, 
[and] decide[ing] on [the] company's hiring and firing policies towards these contractors[.] 
(1 6 hourslweek--40%) 
Conferring with APIL['s] headquarter[s] to review achievements and discuss[ing] required 
changes in goals or objectives resulting from current status and conditions; formulating and 
administering organization policies and developing long-range goals and objectives. (2 
hourslweek-5%) 
Property [mlanagement including preparation of leases and maintenance. Managing office 
administration. Plan[ning] and develop[ing] indushal, labor and public relations policies 
in accordance with the local law. (2 hourslweek-5%) 
On February 2,2006 and subsequently on March 3 1,2006, the director determined that the petitioner failed to 
establish eligibility to classify the beneficiary as a multinational manager or executive. With regard to the 
beneficiary's proposed employment, the director discussed the lack of evidence showing sufficient support 
personnel to relieve the beneficiary from having to primarily perform non-qualifying tasks. While counsel 
properly states on appeal that the size of a petitioner's staff cannot be the sole factor in determining the 
petitioner's eligibility, the significance of support personnel cannot be overlooked. Regardless of whether the 
petitioner has employees working for it directly or hires outside contractors to assist with the daily operational 
tasks, the petitioner must explain and provide evidence to show who performs the non-qualifying tasks that 
are a natural by-product of business operations. Additionally, the petitioner must establish that the 
beneficiary is not the one who primarily performs these non-qualifying tasks. 
In the present matter, counsel repeatedly refers to outside contractors who purportedly assist with the 
necessary operational tasks. However, the petitioner has provided evidence that shows its employment of a 
single individual (aside from the beneficiary) whom the petitioner employs on a limited part-time basis and 
has provided no documentation to corroborate the claim regarding the hiring of outside contractors to assist 
with other operational tasks. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craf2 of Calz~ornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). The 
unsupported 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, 
Page 7 
506 (BIA 1980). Thus, the petitioner has not provided sufficient evidence to support the claim that it is ready 
and able to relieve the beneficiary from having to primarily perform non-qualifling tasks. 
Additionally, the description of the beneficiary's proposed employment is severely lacking in specific 
information regarding the beneficiary's actual daily job duties. 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. Suva, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Furthermore, the actual duties themselves 
reveal the true nature of the employment. Id. In the present matter, the petitioner's job description indicates 
that the beneficiary would spend 40% of his time evaluating the performance of engineers. However, not 
only has the petitioner failed to provide sufficient documentation to establish its employment of the claimed 
engineers, but it has not provided a meaningful discussion of the beneficiary's evaluation criteria or the actual 
job duties involved in such evaluation. The petitioner also indicated that 20% of the beneficiary's time would 
be spent performing non-qualifying tasks such as communicating with various governmental agencies, 
preparing technical reports, and communicating with investors. Thus, at least 60%, or a majority, of the 
beneficiary's time would be spent performing tasks that either have not been specified or those which cannot 
be deemed as qualifying. When considering this information in light of the petitioner's inability to provide 
sufficient evidence of an adequate support staff, the AAO cannot conclude that the beneficiary would be 
employed in a qualifying managerial or executive capacity. 
The issue of the beneficiary's employment abroad was not brought up in the director's February 2, 2006 
decision. However, in the more recent decision, which was issued on May 31, 2006, the director 
supplemented his prior findings by adding that the petitioner failed to establish the beneficiary's qualifying 
employment abroad. 
Although counsel disagreed with the director in general, he failed to address the director's finding regarding 
the beneficiary's employment abroad. 
 As such, the AAO's determination is based on evidence and 
information on record. 
On review, the AAO finds that the director's conclusion, despite the lack of a detailed analysis of the 
beneficiary's employment abroad, was warranted. Specifically, the petitioner indicated that 50% of the 
beneficiary's time abroad was spent overseeing the work of project engineers. However, the petitioner has not 
provided the necessary information to establish that these individuals were supervisory, professional, or 
managerial employees. See section 101(a)(44)(ii) of the Act. Although the petitioner claimed to have 
provided an organizational chart as part of Exhibit G in the response to the WE, the submission was solely 
comprised of the names, job titles, and the respective salaries of the employees purportedly under the 
beneficiary's control during his foreign employment. A chart illustrating the foreign entity's personnel 
hierarchy, as requested in the WE, was not submitted. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. €j 103.2(b)(14). 
Furthermore, the list of the beneficiary's responsibilities is redundant, reiterating his personnel management 
role but providing little information about the beneficiary's actual job duties. Specifically, the first three items 
in the petitioner's list discussed the fact that the beneficiary was charged with overseeing the work of project 
engineers and assisting them with their technical drawings and designs. It is unclear why the oversight 
responsibility was paraphrased three different times and allotted a different time constraint each time. If the 
petitioner meant to suggest that overseeing technical designs is somehow different from reviewing technical 
Page 8 
drawings, the general statements provided by the petitioner failed to make the distinction. Moreover, if, as 
the petitioner suggested, 70% of the beneficiary's time was spent overseeing the various aspects of the work 
of project engineers, it is unclear why the petitioner failed to specify the actual duties and to assign specific 
time increments to each task that comprised the various aspects of the beneficiary's oversight responsibilities. 
As previously stated, an accurate determination of whether the beneficiary was employed in a qualifying 
managerial or executive capacity requires an account of the beneficiary's specific duties. See Fedin Bros. Co., 
Ltd. v. Suva, 724 F. Supp. at 1108. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary was 
employed abroad or would be employed in the United States in a primarily managerial or executive capacity. 
The petitioner has not provided a sufficient illustration of the personnel and management hierarchies of either 
organization. As such, the AAO is unable to consider the beneficiary's position with respect to others within 
the foreign and U.S. entities, which are the beneficiary's past and prospective employers, respectively. The 
petitioner has also failed to provide a comprehensive job description listing the specific duties that comprised 
the beneficiary's employment abroad and would comprise his employment within the U.S. entity. 
Additionally, with regard to the beneficiary's proposed employment, the record does not establish that the 
petitioner is adequately staffed to relieve the beneficiary from having to primarily perform non-qualifying 
duties. Accordingly, based on the evidence furnished, it cannot be found that the beneficiary has been or will 
be employed primarily in a qualifying managerial or executive capacity. 
The remaining issue in this proceeding is whether the petitioner has a qualifying relationship with the 
beneficiary's foreign employer. 
The regulation at 8 C.F.R. fj 204.5(j)(2) states in pertinent part: 
AfJiate means: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more counties, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In the support letter dated July 1, 2004, the petitioner stated that it is 100% owned by Atlantic-Pacific 
Infrastructure, Ltd. (APIL), an entity incorporated in Bermuda. Although, the record presents sufficient 
corroborating evidence to establish the existence of a qualifying relationship between these two entities, the 
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record does not contain adequate documentation to establish that APIL was the beneficiary's foreign employer 
as initially claimed. In fact, the petitioner's initial claim is significantly undermined by counsel's November 
18, 2005 letter in which counsel stated that from July 2001 to December 2002 the beneficiary was employed 
by Energy World International, Ltd., (EWI), which is located in Hong Kong and is described as an affiliate of 
Pacific Energy Limited (PEL), APIL's, and therefore the petitioner's, parent company. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
In the present matter, while there is adequate evidence of a qualifying relationship between APIL and the 
petitioner, the petitioner has provided inconsistent information as to which foreign entity actually employed 
the beneficiary during the relevant time period prior to his nonimmigrant entry into the United States. 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). The petitioner has failed to resolve the considerable inconsistency discussed above by not providing 
sufficient evidence documenting the beneficiary's employment with APIL during the relevant time period. 
Rather, the documentation provided in response to the RFE shows that the beneficiary was employed by EWI 
rather than APIL itself. That being said, the record does not establish common ownership and control 
between EWI and the petitioner. Specifically, based on the ownership flow chart provided in Exhibit D of the 
response to the RFE, EWI is entirely owned by While EWI also owns shares of PEL, which 
is the entity that is ultimately the majority shareholder of the petitioning entity, EWI only owns 19.43% of the 
petitioner's parent entity with the remaining 80.57% owned by "other shareholders." Thus, even if the 
petitioner's credibility was not an issue, the record does not support a finding of common ownership and 
control between the petitioner and EWI, the foreign entity, which, based on the documentation provided, 
employed the beneficiary prior to his employment with the U.S. petitioner. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd, 345 F.3d 683 
(9th Cir. 2003). 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.