dismissed EB-1C Case: Fashion Jewelry Retail

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
pwnt clearly unwsranted 
invasion of personal piva~y 
U. S. Citizenship 
and Immigration 
PUBLIC cw 
SRC 05 243 52899 
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. 9 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. 
Robe -hief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily dismissed. 
The petitioner was established in 2004 and is engaged in the retail of fashion jewelry. 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. 5 1153(b)(l)(C), as a multinational executive or manager. 
On January 19, 2006, the director denied the petition based on two independent grounds: 1) the petitioner 
failed to establish that it would employ the beneficiary in a managerial or executive capacity; and 2) the 
petitioner failed to establish its ability to pay the beneficiary's proffered wage. With regard to the first 
ground, the director specifically discussed the lack of information regarding the two employees who work 
under the beneficiary's supervision. The director further noted that based on the petitioner's organizational 
structure, the beneficiary is likely to perform non-qualifjmg duties on a daily basis. With regard to the 
second ground, the director noted that the petitioner failed to disclose the beneficiary's proffered wage, 
instead stating that the beneficiary's compensation would be in the form of dividends. The director discussed 
specific information provided in the submitted tax documentation and explained that the petitioner's claim 
regarding projected 2005 profit cannot be used to determine the ability to pay. 
On appeal, counsel initially stated that a supplemental brief andfor additional evidence would be submitted 
within 30 days of the date of filing the Form I-290B. Counsel subsequently submitted a brief statement dated 
March 22, 2006. With regard to the first ground for denial, counsel merely paraphrased the statutory 
definition of executive capacity. While counsel specifically cited 8 C.F.R. 5 204.56)(5), which explains the 
need for a detailed description of the beneficiary's proposed job duties, no additional information was 
provided to address the deficiencies pointed out by the director in the denial. Additionally, while not 
specifically discussed by the director, the petitioner's description of the beneficiary's duties is overly vague 
and discusses general responsibilities rather than specific duties the beneficiary would perform in an effort to 
meet those responsibilities. 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. 1103 (E.D.N.Y. 1989), afyd, 905 F.2d 
41 (2d. Cir. 1990). Without the necessary details establishing the actual duties the beneficiary would perform 
on a daily basis, the petitioner cannot successfully establish that the beneficiary would be employed in a 
qualified managerial or executive capacity. 
With regard to the ability to pay, counsel states that the petitioner's 2005 tax return is not yet available and 
instead provides an unaudited profit and loss statement. However, as properly noted by the director, the 
petitioner has not quantified the beneficiary's proffered wage in terms of a specific dollar amount. Merely 
stating that the beneficiary will share in the petitioner's profits is insufficient, particularly if the petitioner does 
not generate profit. Based on the petitioner's claim, it appears that the beneficiary would receive no 
compensation at all if no profit is generated. The terms of 8 C.F.R. 5 204.5(g)(2) discuss an offer of 
employment, which necessarily requires a specific compensation amount. Without this information, a 
determination cannot be made as to the petitioner's ability to pay. Despite the fact that the director 
specifically discussed the petitioner's failure to provide this fundamental information, counsel did not 
supplement the record with evidence or information to rectify this deficiency. 
The regulation at 8 C.F.R. 5 103.3(a)(l)(v) states, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of fact 
for the appeal. 
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.a~ the petitioner has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not 
sustained that burden. Therefore, the appeal will be summarily dismissed. 
Furthermore, the record supports a finding of ineligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 
 204.56)(3)(i)(A) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position for at least one out of the three years prior to filing the 
Form 1-140. In the instant matter, the director specifically addressed this issue in the request for additional 
' evidence (RFE) by instructing the petitioner to provide a detailed analysis of the beneficiary's daily activities 
during his employment abroad. However, the petitioner's description of the beneficiary's foreign employment 
is vague and fails to specify the actual duties the beneficiary performed on a daily basis. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. As 
the petitioner failed to provide a detailed account of the beneficiary's duties with the foreign entity, the AAO 
cannot conclude that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. 204.56)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.56)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods andor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." Although the record 
contains documentation in the form of invoices for August through December 2004, and February and April 
2005, these documents do not cover the full 12-month time period prior to the filing of the Form 1-140. As 
such, the AAO cannot conclude that the petitioner has satisfied the requirements discussed in 8 C.F.R. 
5 204.56)(3)(i)(D). 
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). Therefore, based on the additional grounds of ineligibility as discussed above, 
this petition cannot be approved. 
ORDER: 
 The appeal is summarily dismissed.