dismissed EB-1C Case: Exporting

identieing data deleted to 
prevent clearly unwmted 
invasion of pemnai privacy 
U.S. Department of HomeIand Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PWC COPY 
% 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 03 139 52606 
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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner appealed the matter to the Administrative Appeals Office (AAO). The appeal was ultimately 
dismissed. The matter is now before the AAO on motion to reopen and reconsider. The petitioner's motions 
to reopen and reconsider will be granted and the additional evidence and information provided by counsel will 
be considered in a full discussion below. However, the underlying decision dismissing the appeal will be 
affirmed. 
The petitioner is an Oregon corporation engaged in exporting commodity items to the Russian Far East. It 
seeks to employ the beneficiary as its vice 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. 5 1 153@)(1)(C), as a multinational executive or manager. The director 
denied the petition based on the following grounds: 1) the petitioner has not established that it has a 
qualiflmg relationship with the beneficiary's foreign employer; and 2) the beneficiary's proposed employment 
is not within a managerial or executive capacity. 
The petitioner appealed the denial disputing the director's findings. However, the AAO upheld the director's 
overall decision on the grounds listed above. 
On motion, counsel submits a brief addressing each of the two grounds that served as the basis for denial and 
subsequent dismissal of the appeal. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives 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 aniliate 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 inlcates 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. 
With regard to the issue of the petitioner's qualifying relationship, the AAO acknowledged that the 
beneficiary's foreign employer owns 50% of the petitioner's issued shares. However, despite this concession, 
the AA0 concluded that the record does not establish which of the joint venture entities actually controls the 
petitioner. Since both ownership and control must be determined to establish whether a qualiflmg 
relationship exists, the AAO concluded that a qualifjmg relationship cannot be said to exist where the issue of 
the petitioner's control has not been resolved. 
The regulation at 8 C.F.R. § 204.56)(2) states in pertinent part: 
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. 
Based on the above regulatory definition and the corroborating documentary evidence presented on motion, 
the AAO has cause to revisit and reevaluate its prior decision with regard to the issue of the petitioner's 
qualifying relationship with a foreign entity. Contrary to the decision reached in the prior proceeding, the 
petitioner has provided sufficient evidence to establish that it has met the requirements of a subsidiary as 
specified above. As such, the first ground of the director's denial and the AAO's subsequent dismissal is 
hereby withdrawn. 
Notwithstanding the AAO's favorable determination with regard to one of the previously determined grounds 
for ineligibility, the AAO concludes that the petitioner has failed to overcome the second ground for 
ineligibility in this proceeding. 
In the dismissal of the appeal, the AAO issued the following findings with regard to the beneficiary's 
proposed duties with the U.S. petitioner: 1) the beneficiary primarily negotiates shipping contracts and 
provides customer services in an effort to move commodities Erom location to location; 2) the petitioner does 
not employ sufficient personnel to relieve the beneficiary from having to primarily perform non-qualifying 
tasks on a daily basis; 3) the petitioner failed to establish that the beneficiary's claimed subordinates were 
professional, managerial, or supervisory employees; and 4) the petitioner failed to quantify the amount of 
time the beneficiary spends on his various duties. 
On motion, counsel explains that the petitioner's fiscal year runs fkom June through May of the following 
year. Counsel also states that $1 1,471 represent the wages paid by the petitioner to one of its employees to 
compensate that individual for the first five months of 2003, which accounts for only a portion of the 
petitioner's 2002/2003 fiscal year. However, counsel's explanation is not accompanied by any corroborating 
documentary evidence such as the petitioner's relevant quarterly wage reports. As noted in the AAO's prior 
discussion, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 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, 506 (BIA 
1980). The petitioner has not provided any documentation to overcome the observations in the AAO's prior 
Page 4 
decision regarding the salaries paid and the part-time status of the petitioner's employees at the time the Form 
1-140 was filed. 
While the petitioner now provides a 2004 quarterly wage report and 2004 W-2 wage and tax statements for 
three of its employees, such documentation has no probative value in the present matter where the M's 
objective is to determine whether the petitioner was eligible for the benefit sought as of March 27, 2003, the 
date the petitioner filed its Form 1-140. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
With regard to the petitioner's submission of the expert opinion of Dr. Thomas R. Gillpatrick, there is no 
evidence that Dr. Gillpatrick's expertise concerns the statute, regulation, or case law that address the 
petitioner's eligibility for the immigration benefit sought in the instant matter. Moreover, Dr. Gillpatrick's 
statements cannot be viewed as anything more than mere extensions of the petitioner's own claim and must be 
accompanied by corroborating documentary evidence. See Matter of Sofici, 22 I&N Dec. at 165. The fact 
that a third party deems the beneficiary's prospective duties to be within a managerial capacity is not in itself 
corroborating evidence, particularly when those very duties have already been deemed as non-qualifying. 
Additionally, counsel vehemently asserts that the beneficiary's functions are of a professional nature, 
implying that this assertion has been disputed by the AAO. However, the AAO neither concedes nor denies 
the professional nature of the beneficiary's prospective duties, as this factor is irrelevant to the matter at hand. 
Any number of duties may be considered professional, yet not be deemed qualifying within the statutory 
definitions of managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act, respectively. 
As stated in the AAO's prior decision, an employee who ffprimarily" performs 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 id. (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 (Comrn. 1988). While the AAO does not 
dispute that the beneficiary must manage various aspects of shipping, the record also suggests that the 
beneficiary is directly engaged in, and is in fact a necessary participant in contract negotiation as it regards the 
shipment of various commodities. This task, despite its significance within the scheme of the petitioner's 
organization, is a necessary operational task and cannot be deemed as qualifying. Thus, the AAO cannot 
conclude that the petitioner was able to employ the beneficiary in a primarily managerial or executive 
capacity at the time the Form 1-140 was filed. 
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. 8 1361. The petitioner has not sustained that burden. 
ORDER: 
 The dismissal of the appeal is upheld.