dismissed EB-1C Case: Food Service

• , 
identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvacy 
PUBLtCCOpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: FEB 22 2011 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa pellllon was denied by the Director, Texas Service Center. The 
petitioner subsequently filed a motion to reconsider, which was denied. Accordingly, the petitioner filed an 
appeal to the Administrative Appeals Office (AAO), seeking review of the director's decision. However, the 
director erroneously determined that the appeal was untimely filed and opted to treat the filing as another 
motion. Accordingly, the AAO hereby withdraws the director's March 3, 2010 decision in order to issue its 
own decision based upon the merits of the record as presently constituted. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its business development 
manager. Accordingly, the petitioner endeavors to classity the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.s.C. 
§ 1153(b)(I )(C), as a multinational executive or manager. 
The director denied the petition based on the conclusion that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. In the subsequent decision, which was issued 
in response to the petitioner's motion to reconsider, the director affirmed the original basis for denial. On 
appeal, counsel disputes the director's conclusion and submits a brief addressing the ground for denial. 
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 ofthe 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)( I )(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. 
The primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualitying managerial or executive capacity. 
Page 3 
Section 10 I (a)(44)(A) of the Act, 8 U.s.C. § 1101(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-making; 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 beneficiary submitted a letter dated October 22,2008 on the petitioner's 
behalf. The beneficiary stated that he would be responsible for setting policies and attaining objectives, 
continuing the company's growth and development, planning and coordinating, and maintaining a leadership 
role in controlling the company, The petitioner also provided a letter from counsel, dated November 4, 2008, 
in which counsel discussed the supporting evidence that was being submitted with the petition and named the 
employees who he claims were employed by the petitioner at the time of filing. Counsel listed a total of six 
employees including an administrative manager, a sales and marketing manager, and four part-time sales 
associates. The petitioner also provided its organizational chart, which shows the board of directors at the top 
Page 4 
of the hierarchy, followed by the beneficiary in the proposed position of business development manager, and 
an administrative manager and a sales and marketing manager depicted as the beneficiary's two direct 
subordinates. The lowest level ofthe hierarchy shows the four part-time sales associates. 
The director determined that the petitioner's submissions were insufficient to establish that the beneficiary 
would be employed in a managerial or executive capacity. Therefore, a notice of intent to deny (NOID) was 
issued asking the petitioner to provide a detailed explanation of how the beneficiary would identify and 
cultivate new business and what new guidelines he would develop in addition to ones that are already in 
place. The director's queries indicated a lack of clarity with regard to the position description the beneficiary 
previously provided in support of the petition. 
In response, counsel provided a letter dated May IS, 2009 in which he explained that the petitioner plans to 
create a franchise operation. Counsel also provided a list of the beneficiary'S key functions claiming that the 
beneficiary would engage in the following activities: create and implement a strategy for selling gelato 
wholesale and online; meet with the board of directors; bid and negotiate for professional services; coordinate 
parties on active projects; forge business relationships with new and existing customers; serve as the company 
representative in industry and government functions; acquire knowledge of customer strategy and corporate 
direction; develop new sales to increase profit margins; identify and work with product brokers and agents 
and acquire market-based knowledge to open new market opportunities; supervise subordinates and get their 
feedback on how to meet customer needs and resolve issues; define pricing parameters; lead quarterly sales 
meetings to discuss trade plans and new products and marketing campaigns; oversee inventory management; 
design and implement strategies for low-cost mounting and extending office network; conduct studies and 
surveys to obtain solutions and new internal procedures; review the effectiveness of new operational systems; 
and hire and fire personnel in his discretion. 
The petitioner also provided a percentage breakdown, which allocates 5% of the beneficiary'S time to driving 
new revenues by motivating employees; 5% to monitoring the market for opportunities and participating in 
quarterly calls with the accountant; 10% to planning and taking charge of the petitioner's commercial 
activities and establishing policies and strategies to achieve goals; 10% to collaborating with the sales and 
marketing manager regarding development of new products and cost saving initiatives; 15% to developing 
and implementing a strategic plan for selling the petitioner's products online and wholesale and for expanding 
the petitioner's business by franchising its operation; and 55% to overseeing the administrative manager and 
the sales and marketing manager. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish that 
the beneficiary would be employed in a primarily managerial or executive capacity and therefore denied the 
petition in a decision dated June 16, 2009. The director found that the job description offered by the 
petitioner in response to the NOID lacked sufficient details about the beneficiary'S specific daily tasks. The 
director also questioned whether the limited size of the petitioner's support staff would be sufficient to relieve 
the beneficiary from having to primarily engage in the daily non-qualifying operational tasks. 
On July 14, 2009, the petitioner filed a motion to reconsider in support of which counsel submitted a brief 
citing an unpublished AAO decision and a Georgia district court case in support of the argument that the size 
of a petitioning entity should not be the determining factor in whether or not a beneficiary merits 
classification as a multinational manager or executive. Counsel also restated the job description and 
percentage breakdown that were previously provided. 
Page 5 
In a decision dated July 28, 2009, the director determined that the petitioner failed to overcome the basis for 
denial and affirmed the prior adverse decision. The petitioner has since filed an appeal along with another 
brief from counsel similar in content to the one that was previously submitted in support of the motion to 
reconsider. Counsel again cites the same two cases in support of his arguments, which are premised on the 
assertion that the size of the petitioning entity should not dictate whether or not the beneficiary's job duties in 
his proposed position would primarily be within a qualifying managerial or executive capacity. However, the 
AAO finds that counsel's arguments fail to adequately address the basis for denial and thus do not overcome 
the adverse findings. 
First, with regard to the unpublished AAO case cited in support of the appeal, the AAO notes that while 
8 C.F.R. § 103J(c) provides that AAO precedent decisions are binding on all employees of the U.S. 
Citizenship and Immigration Services (USCIS) in the administration of the Act, unpublished decisions are not 
similarly binding. While counsel restated this provision in the brief, he nevertheless opted to rely on an 
unpublished AAO decision in making his argument. Additionally, with regard to counsel's citation of Mars 
Jewelers Inc. v. INS., 702 F. Supp. 1570 (N.D. GA 1988), the AAO notes that the holding in the cited case 
relied on the obsolete 1983 regulations, which are irrelevant to determining whether the present Form 1-140, 
which was filed in 2008, warrants approval. Furthermore, the AAO notes in general that in contrast to the 
broad precedential authority of the case law of a United States circuit court, the AAO is not bound to follow 
the published decision of a United States district court in cases arising within the same district. See Matter of 
K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's decision will be given due 
consideration when it is properly before the AAO, however the analysis does not have to be followed as a 
matter of law. Id. at 719. Thus, for the reasons stated herein neither of the cases cited in counsel's brief will 
dictate the AAO's analysis and outcome in the present matter. 
Furthermore, in opposition to counsel's insistence that the size of the petitioning entity's staff should not be a 
governing factor, federal courts have generally agreed that USCIS "may properly consider an organization's 
small size as one factor in assessing whether its operations are substantial enough to support a manager." 
Family, Inc. v. Us. Citizenship and Immigration Services, 469 FJd 1313, 1316 (9th Cir. 2006) (citing with 
approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 
41,42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (DD.C. 2003). 
This provides a basis for a more comprehensive analysis of the petitioner's supporting documents. In other 
words, while 8 C.F.R. § 204.5G)(5) requires the petitioner to provide a detailed description of the proposed 
position and thus establishes that the description of proposed job duties is among the key factors to be 
considered in determining whether the definition of managerial or executive capacity has been met, looking to 
the petitioner's organizational structure allows USCIS to gauge the extent to which the petitioner is actually 
capable of supporting the beneficiary in a position where he would primarily perform managerial- or 
executive-level tasks. Merely providing a job description that describes a set of primarily qualifying tasks is 
meaningless if the organization that seeks to hire the beneficiary does not have the scope of work and the 
human resources to relieve the beneficiary from having to primarily perform non-qualifying operational job 
duties. 
In the present matter, the petitioner's 2008 fourth quarterly wage statement shows that the petitioner had a 
total of five employees when the Form 1-140 was filed, not six as was indicated at part 5, item 2 of the Form 
1-140. Furthermore, none of the employees who were identified in the petitioner's 2008 fourth quarterly wage 
report included either of the managers who were named in the previously provided organizational chart and 
whom counsel also listed as employees in the initial support letter he submitted with the petition. 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 (BrA 
1988). The unsupported statements of counsel on appeal or in a motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BrA 1980). 
Moreover, aside from the fact that the information provided by the petitioner and by counsel is inconsistent 
with the wage documentation that the petitioner has since provided in response to the NOlD, it is not clear 
who was managing the petitioning organization if the only employees who were identified in the relevant 
quarterly wage statement were part-time sales associates. The petitioner has not provided any reasonable 
explanation for excluding its two claimed managerial employees from the quarterly wage statements. 
Without evidence establishing that the petitioner had an administrative manager and a sales and marketing 
manager on its payroll, it is not clear that either of these individuals can be considered a bona fide employee 
of the petitioning entity at the time of filing. This deficiency casts further doubt as to the petitioner's 
capability to employ the beneficiary in a managerial or executive position at the time of filing. 
Additionally, the AAO finds that the position description that was offered in response to the RFE and which 
has since been repeated in two of counsel's subsequent briefs--one in support of the motion to reopen and the 
other in support of the appeal-is overly vague as it lacks sufficient information about the beneficiary's 
proposed day-to-day job duties. While the general statements and the beneficiary's top placement within the 
petitioner's organizational hierarchy suggest that the beneficiary would have the discretionary authority that is 
required of a manager or an executive, the fact that the beneficiary would manage a small business does not 
necessarily establish eligibility for classification as a multinational manager or executive within the meaning 
of section 101(a)(44) of the Act. For instance, the petitioner fails to convey an understanding of an actual 
task when it states that the beneficiary would be responsible for challenging and motivating employees, 
maintaining current business, or driving profit margins. Although it appears that the beneficiary would 
perform specific tasks in meeting each of these general job responsibilities, none of the underlying tasks are 
actually described. 
Other portions ofthe job description, while still sufficiently vague, indicate that the underlying tasks would be 
outside the realm of what is deemed to be managerial or executive. For instance, the beneficiary would be 
responsible for regaining lost business, participating in account sales calls, compiling market research, 
developing new client relationships, and conducting studies and surveys, all of which are indicative of tasks 
that are required to produce a product or provide a service. It is noted that an employee who "primarily" 
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 sections 10 I (a)(44)(A) and (B) of the Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). In the present matter, it is unclear precisely 
how much time the beneficiary would allocate to these or other non-qualifying job duties. 
In summary, the AAO finds that the petitioner has failed to provide ajob description and supporting evidence 
to establish that the beneficiary's proposed position would primarily involve tasks of a qualifying nature. As 
indicated above, the petitioner has provided inconsistent documentation that does not support the 
organizational hierarchy which counsel has described in his briefs and which the petitioner has illustrated in 
the previously submitted organizational chart. The petitioner has also failed to provide an adequate job 
Page 7 
description that delineates the specific job duties to be performed and one that establishes that qualifYing tasks 
would consume the primary portion of the beneficiary's time. While the AAO acknowledges that no 
beneficiary is required to allocate 100% of his time to managerial- or executive-level tasks, the petitioner 
must establish that the non-qualifYing tasks the beneficiary would perform are only incidental to hislher 
proposed position. As previously stated, an employee who "primarily" 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. Id. In light of the significant deficiencies observed in the instant record of proceeding, the 
AAO cannot conclude that the beneficiary would be employed in a qualifYing managerial or executive 
capacity and for this reason this petition cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. § 204.5U)(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 record lacks sufficient information about the specific job duties that 
were performed by the beneficiary in his position with the foreign entity. Without this crucial information, 
the AAO cannot conclude that the beneficiary was employed in a managerial or executive capacity. 
Second, 8 C.F.R. § 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifYing 
relationship with the beneficiary's foreign employer. In the present matter, the petitioner indicates that the 
same two individuals who own the foreign entity also own the U.S. entity in equal shares, thus indicating that 
the two entities are affiliates. See 8 C.F.R. § 204.5(j)(2). However, the record lacks sufficient evidence to 
support the petitioner's claim. While the record indicates that the same two individuals each own 50% of the 
foreign entity, the evidence is inconclusive as to their ownership of the U.S. entity.~cally, the 
record contains a corporate resolution dated September 23, 2003, which shows that ~ndorsed 
stock certificate No.4 "in favor of' the petitioning entity and that certificate Nos. 6 and 7 were issued to the 
beneficiary and to _, respectively, giving each individual 750 shares. However, the petitioner only 
provided copies of certificate Nos. 6 and 7, not of certificate Nos. 1-5 to establish that the beneficiary and 
_are the petitioner's two sole owners. 
As general evidence of a petitioner's claimed qualifYing relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362. Without full disclosure 
of all relevant documents, USCIS is unable to determine the elements of ownership and control. As the 
petitioner has not provided all relevant documents, the AAO is unable to conclude that the foreign entity and 
the U.S. petitioner are affiliate entities as claimed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even ifthe 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), afj'd, 345 F.3d 683 
Page 8 
(9th Cir. 2003); see also Sollane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Based on the additional grounds of ineligibility discussed above, this petition 
cannot be approved. 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.