dismissed EB-1C Case: Export

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
.- cum U.S. Citizenship 
and Immigration 
iwta$g; 2 I;:ta, da.cted 80 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 03 026 506 12 
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. ji 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: . . 
TNSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided yourcase. Any hrther inquiry must be made to that office. 
bert P. Wiernann, ~irectoj 
Appeals Office 
DISCUSSION: The Director, Texas 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 limited liability company organized in the State of Texas in November 1998. It exports oil 
and gas supplies, automotive products, and furniture, primarily to African countries. It seeks to employ the 
beneficiary as its president and chief executive officer. 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. 5 1 153(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner had not established that the beneficiary had been employed in a 
managerial or executive capacity for the foreign entity or would be employed in a managerial or executive 
capacity for the United States entity. 
On appeal, counsel for the petitioner asserts the director erred in her determination 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 limiting 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 etnployed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. Sep 8 C.F.R. 
# 204.5(j)(5). 
Page 3 
The first issue in this proceeding is whether the petitioner has established that the beneficiary's assignment for 
the petitioner would be in a managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. manages the organization, or a department, subdivision, function, 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 function 
for which the employee has authority. A first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(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; 
. . 
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 an October 24, 2002 letter appended to the petition, the petitioner stated that in the beneficiary's position of 
chief executive officer, the beneficiary "directs the management of all export including the general 
management of the company, establishes all goals that the U.S. Company will pursue and other clients and 
contracts that the U.S. Company plans to target." The petitioner noted on the Form 1-140, Immigrant Petition 
for Alien Worker, that it currently employed one to two employees. 
On September 8, 2003, the director requested a definitive statement from the petitioner describing the 
beneficiary's proposed job duties. The director specifically requested that the statement include the 
beneficiary's position title, a list of all duties, the percentage of time spent on each duty, the number of 
subordinate employees who would report directly to the beneficiary, and a brief description of their job titles, 
duties. and educational levels. The director also requested evidence of the staffing level in the United States 
and the petitioner's Internal Revenue Service (IRS) Forms W-2, Wage and Tax Statement, issued in 2002. 
In an October 28, 2003 response, the petitioner listed the beneficiary's duties and the percentage of time 
allocated to those duties (accounting for a total of 105% of his time): 
(a) As the President and Chief Executive Officer, he maintains overall administrative 
responsibility for the entire organization. 35 percent. 
(b) He ensures that the company's policies (as enunciated at the Board level) are strictly 
followed and set objectives are achieved. 10 percent. 
(c) He directs the management of the organization and establishes the goals and policies of 
the organization, components or functions. 10 percent. 
(d) He is the major factor in the decision-making process of the organization because he 
coordinates the business and therefore understands the 'market place' more than any other 
person in the company. 25 percent. 
(e) He directly oversees the finance department to ensure that funds are invested where 
necessary and investments made are properly managed for optimum results. 10 percent. 
(f) He directs and coordinates the internal working of the company in line with its objectives 
and goals. 15 percent. 
The petitioner added in a staffing report that the manager of the company would "maintain the products, 
people, finance and furniture of the company as well as be involved in recruitment, training, deployment, 
innovation and discipline of the company's staff." The petitioner also included the beneficiary's affidavit 
indicating that the petitioner contracted with two U.S. intermediary companies to purchase and package 
products with the petitioner's label for export to Africa. 
The petitioner also stated that it employed an export manager, a secretary, and an accountant, all of whom 
reported directly to the beneficiary. The petitioner indicated that the export manager would oversee the 
preparation of invoices, negotiate freight charges, and head the export department; and that the secretary 
would be the image maker of the company and would oversee hospitality of visitors as well as handling all 
othcr secretarial duties. 
Page 5 
The petitioner also provided IRS Forms W-2 issued to the beneficiary and to the individuals identified as 
export manager and secretary for 2002. The 2002 IRS Form W-2 issued to the export manager was for the 
sum of $7,865 and the 2002 IRS Form W-2 issued to the secretary was for the sum of $3,850. The petitioner 
provided one 2002 IRS Form W-2 issued to an individual whose position was not identified. 
The director determined that the beneficiary's duties were described in broad and general terms. The director 
also noted that the beneficiary's duties included overseeing the finance department but there were no 
employees identified that would perform financial duties. The director observes that the accountant is an 
independent contractor. The director concluded that the petitioner's limited number of employees would 
require the beneficiary to perform a wide range of daily functions associated with running a business rather 
than perform primarily managerial or executive duties. 
On appeal, counsel for the beneficiary asserts that the evidence in the record, including the beneficiary's 
sworn affidavit explaining the export business and copies of numerous invoices and receipts, serves as 
evidence of the beneficiary's managerial duties. Counsel claims that the beneficiary supervises professional 
employees and indicates that the petitioner's secretary and accountant have professional degrees. Counsel 
notes that even if the accountant is an independent contractor, the accountant is responsible for the petitioner's 
day-to-day financial activities and that the beneficiary supervises the accountant in his bookkeeping. Counsel 
asserts that the director incorrectly concludes that two or even four employees are not sufficient to classify the 
beneficiary in a managerial or executive capacity. Counsel contends that the petitioner has employed the 
necessary and cost-effective number of employees to make its business profitable. 
Counsel's assertions are not persuasive. 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. 
2142(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. A beneficiary may not claim 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 the beneficiary is both an executive and a manager.' 
The petitioner has provided a vague and nonspecific description of the beneficiary's duties. For example, the 
petitioner states that the beneficiary's duties include: "maintain[ing] overall administrative responsibility for 
the entire organization," and "ensur[ing] that the company's policies (as enunciated at the Board level) are 
strictly followed and set objectives are achieved," and " directling] and coordinate[ing] the internal working 
of the company in line with its objectives and goals." These statements do not convey an understanding of the 
beneficiary's daily duties. Moreover, such broad statements can encompass a wide range of duties that are 
both managerial and executive duties or non-managerial and non-executive. Specifics are clearly an 
I Counsel for the petitioner states that the petitioner will require the beneficiary to engage in strictly 
managerial duties; however, the petitioner's description of the beneficiary's duties paraphrases elements of the 
statutory definition of executive capacity. The record does not establish whether the petitioner is claiming 
that the beneficiary is primarily a manager or is primarily an executive. 
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., 
Ltt-I. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), ufy~l, 905 F.2d 4 1 (2d. Cir. 1990). 
In addition, the petitioner indicates that the beneficiary: "is direct[ing] the management of the organization 
and establish[ing] the goals and policies of the organization, components or functions." The petitioner does 
not, however, further define the goals and policies, procedures, strategies, and objectives. The petitioner also 
does not clarify who carries out or implements the petitioner's goals and policies, if not the beneficiary. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter qf Treaszire Crrdt qf Cul$x-niu, 14 I&N Dec. 190 (Reg. Comm. 
1972). This statement and the petitioner's indication that the beneficiary is "involved in recruitment, training, 
deployment, innovation and discipline of the company's staff," paraphrase elements of the definitions of 
managerial and executive capacity without detailing the beneficiary's daily tasks. 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. at 1108; Avy- Associute,~. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Further, the petitioner has not provided evidence that it actually employed individuals to carry out the 
petitioner's sales and marketing duties or the daily accounting, administrative, or export duties. The petitioner 
indicated on the Form 1-140 that it employed one to two employees. The petitioner stated that it employed an 
export manager and a secretary but the IRS Forms W-2 show that these two individuals were either 
intermittently employed or employed part-time. Additionally, the petitioner did not identify the individual 
allegedly employed as its accountant, or provide evidence that this individual was employed full-time or was 
used as an independent contractor. As stated above, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of Calzfornia, 14 at 190. Furthermore, 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. Mutter of'Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Counsel's claim that the beneficiary supervises professional employees is also not persuasive. The petitioner 
has not shown that it employs any individual full time other than the beneficiary. In addition, the petitioner 
has not provided evidence that any of the beneficiary's subordinate positions are professional positions. 
Citizenship and Immigation Services (CIS) focuses on the level of education required by the position, rather 
than the degree held by an employee. The possession of a bachelor's degree by a subordinate employee does 
not automatically lead to the conclusion that an individual is employed in a professional capacity. In the 
instant matter, the petitioner has not, in fact, established that a degree is actually necessary to perform the 
petitioner's secretarial, administrative, export, and bookkeeping functions. Moreover, the petitioner does not 
indicate that the beneficiary's tasks are primarily supervisory tasks, but rather seems to limit the beneficiary's 
specific oversight of others to 10 percent. 
Counsel correctly observes that a company's size alone, without taking into account the reasol~able needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See section 10 l (a)(44)(C), 8 U.S.C. 5 1 10 l (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. 
Sy.~tronics 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. In 
this matter, the petitioner has not provided sufficient evidence that its staff on hand when the petition was 
filed was sufficient to relieve the beneficiary from performing primarily the petitioner's operational and 
administrative 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 Chzrrch 
Scientolo~~, h~ternationul, 19 I&N Dec. 593, 604 (Comm. 1988). 
Finally, counsel's assertion that the beneficiary's affidavit and the petitioner's invoices and receipts serve as 
evidence of the beneficiary's managerial and executive capacity is not persuasive. First, counsel does not 
explain how the petitioner's invoices and receipts, many of which are addressed to the beneficiary as 
"salesperson," and the beneficiary's explanation that intermediary companies label and ship the petitioner's 
purchased product demonstrate the beneficiary's managerial or executive capacity. Second, the assertions of 
counsel do not constitute evidence. Mutter of Ohaigbena, 19 l&N Dec. 533, 534 (BM 1988); Matter Of 
Laur-enno, 19 I&N Dec. 1 (BIA 1983); Mutter ofRuntirez-Sunchez, 17 I&N Dec. 503, 506 (BIA 1980). 
In sum, the petitioner has not established that the beneficiary's primary assignment for the petitioner will be in 
a qualifying managerial or executive capacity. The petitioner has not submitted evidence to overcome the 
director's decision on this issue. 
The second issue in this proceeding is whether the beneficiary's assignment for the foreign entity was in a 
managerial or executive capacity. 
In an October 24, 2002 letter appended to the petition, the petitioner indicated that the beneficiary had been 
continuously employed by the foreign entity since March 1993 as its managing director. The petitioner 
provided a broad statement of the beneficiary's duties. 
On September 8, 2003, the director requested a definitive statement from the foreign entity describing the 
beneficiary's job duties. The director specifically requested the number of subordinate managers, supervisors, 
or other employees who reported directly to the beneficiary. The director also requested evidence of the 
staffing level at the foreign company including position titles, duties, and educational levels of all employees. 
In a November 3, 2003 response, the foreign entity provided a statement of the beneficiary's duties similar to 
the general statement used to describe the beneficiary's duties for the petitioner. The foreign entity also 
identified four individuals who reported directly to the beneficiary. The four individuals held the positions of 
general manager, finance manager, personnel manager, and sales manager. 
The director again determined that the foreign entity's description of the beneficiary's duties lacked sufficient 
detail to establish the beneficiary's eligibility. 'I'he director observed that the foreign entity had only described 
four positions subordinate to the beneficiary. The director concluded that the record did not establish that the 
beneficiary's duties for the foreign entity were primarily managerial or executive. 
On appeal, counsel for the petitioner asserts that the foreign entity, in addition to employing the beneficiary 
and four of the beneficiary's direct subordinates full-time, the foreign entity also employed drivers, stock 
keepers, receptionists, and sales agents. Counsel submits an affidavit from the foreign entity's general 
rnanager confirming that the foreign entity's enlployees are full-time employees. Counsel again asserts that 
the director has improperly used the foreign entity's staffing levels when concluding that the beneficiary had 
not been a manager or executive for the foreign entity. 
For the same reasons listed above, the foreign entity's description of the beneficiary's duties is not sufficient. 
Further, counsel's assertion and the affidavit of the foreign entity's general manager that the foreign entity 
employed individuals other than those listed in the foreign entity's response to the director's request for 
evidence, will not be considered on appeal. Where, as here, 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. Scc Mutter c?f'Soriano, 19 I&N Dec. 764 (BIA 1988); see ~Iso 
Mutter- of'ohuighenu, 19 I&N Dec. 533 (BIA 1988). Finally, as stated above, it is appropriate for CIS to 
consider the size of a company in conjunction with other relevant factors, when the company has not provided 
evidence of employees who would perform the non-managerial or non-executive operations of the company. 
See, e.g. S'lstronics Corp. v. INS, 153 at 15. In this matter, the petitioner did not provide the director with 
requested information regarding the foreign entity's staffing levels. The evidence offered for the first time on 
appeal in not sufficient to overcome the director's decision on this issue. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. $ 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.