dismissed EB-1C Case: Franchise Management

PUBLIC Copy 
identifying data deleted to 
prevent clearly unwarranted 
invasion of -a1 privay 
U.S. Department of IZomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: 0 1 2a7 
SRC 04 149 52809 
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. 8 1153(b)(t)(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. 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director; Texas Service Center. 
 The 
petitioner appealed the director's decision to the Administrative Appeals Office (MO) where the appeal was 
dismissed. The matter is now before the AAO on motion to reconsider. The AAO will grant the petitioner's 
motion. However, the AAO's underlying decision dismissing the appeal and affirming the director's denial of 
the petitioner's Form 1-140 will be affirmed. 
The petitioner is a Florida corporation engaged in the operation and management of Quimos franchises and 
commercial real estate investment. It seeks to employ the beneficiary as its marketing manager. 
Accordingly, the petitioner'endeavors to classify the beneficiary as an employrnent-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(C), as a 
multinational executive or manager. The director denied the petition based on the conclusion that the 
beneficiary would not be employed within a managerial or executive capacity. 
In its appellate review of the matter, the AAO affirmed the director's decision and dismissed the appeal based 
on the ground cited by the director as well as one additional ground, i.e., the petitioner's failure to establish its 
ability to pay the beneficiary's proffered wage of $24,000 per year. 
On motion, counsel challenges the AAO's dismissal on both grounds and puts forth his arguments in a 
supplemental brief. 
Counsel's first item of contention is the AAO's dismissal of the appeal on a ground that was not previously 
cited by the director, which in the present matter is the petitioner's ability to pay. 
The regulation at 8 C.F.R. 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The AAO acknowledges that a detailed discussion of this issue was not provided in its prior decision. Such a 
discussion will, however, be provided herein. First, contrary to counsel's apparent misconception as 
suggested by his discussion of the petitioner's 2003 tax return, the above regulations are clear in stating that 
the petitioner's ability to pay must be established as of the date the Form 1-140 is filed. The petitioner must 
continue to demonstrate its ability to pay until such time as lawful permanent residence is obtained by the 
beneficiary. In the present matter, the petitioner filed its Form 1-140 on April 29, 2004, thereby precluding 
the 2003 tax return from being deemed sufficient to demonstrate the petitioner's ability to pay as of April of 
2004. While the petitioner's 2005 tax return, which counsel has provided in support of the motion, is relevant 
to the petitioner's ability to pay, it is not sufficient for the purpose of establishing the petitioner's ability to pay 
as of the date the Form 1-140 was filed. 
Furthermore, the documentation submitted on motion to reconsider cannot be considered, as the relevant 
regulations at 8 C.F.R. 5 103.5(a)(3) state that a motion to reconsider must include "pertinent precedent 
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decisions to establish that the decision was based on an incorrect application of law or CIS policy." While a 
motion to reopen, whose provisions are cited in 8 C.F.R. 9 103.5(a)(2), allows for the submission of 
documentary evidence, counsel requested only a motion to reconsider. Therefore, the provisions for a motion 
to reopen would not apply in the present matter. Regardless, even if previously submitted for earlier 
consideration, neither the petitioner's 2003 nor its 2005 tax return attests to the petitioner's ability to pay 
-during the relevant time period in 2004. See Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
With regard to the AAO's dismissing the petitioner's appeal on an additional ground that was not previously 
cited by the director, counsel's contention is without basis. First, the petitioner did not overcome the initial 
ground for denial cited by the director. As such, the supplemental ground cited in the AAO's decision on 
appeal was not the sole, or even the primary, basis for the dismissal of the appeal. Second, counsel's 
argument that the AAO erroneously interpreted Spencer Enterprises, Inc. v. United States is in itself 
erroneous and lacks any legal basis. 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 (9th 
Cir. 2003). Contrary to counsel's assertions, Spencer ~nter~rises, Inc. v. United States implicitly vests the 
AAO with the right to base its adverse findings on any failure, on the petitioner's part, to comply with 
technical requirements of the law, unless the petitioner submits evidence of legal authority that dictates 
otherwise. Furthermore, counsel introduces Matter of Cuello, 20 I&N ~ec. 94 (BIA 1989), a decision that 
predates Spencer ~nter~rises, Inc. v. United States bymore than 1 I years and addresses a subject matter that 
is entirely separate and distinct from the one addressed in the present matter. Specifically, in Matter of 
Cuello, the BIA's findings pertained specifically to a petitioner who sought the right to accord the 
beneficiaries of the petition immediate relative status as his adopted children under section 201(b) of the Act. 
Id. In remanding the case to an officer who issued the initial decision, the BIA found additional issues, 
which, if resolved may lead to an approval of the petition. In the present matter, as stated above, the AAO's 
basis for dismissing the appeal was first and foremost the issue of the beneficiary's proposed employment in 
the United States. As the petitioner failed to overcome this primary ground for ineligibility, there would be 
no reason to remand the case of a petition that was not found to be otherwise approvable. 
That being said, the other issue discussed in counsel's brief is the AAO's primary basis for dismissing the 
petitioner's appeal, i.e., the determination that the petitioner failed to establish that it would employ the 
beneficiary in a qualifying managerial or executive capacity. 
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. 
Section 101(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; 
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(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. 
With regard to the issue of the beneficiary's proposed employment, counsel asserts that CIS, and the AAO in 
particular, have deviated from the preponderance of the evidence standard of proof that is discussed in Matter 
of E- M-, 20 I&N Dec. 77 (Comm. 1989). Based on this line of reasoning, counsel supplements the record with 
an additional discussion of the beneficiary's proposed duties without properly addressing the AAO's concerns 
about the lack of documentation establishing who withn the petitioning organization would carry out the daily 
operational tasks associated with the essential function the beneficiary would purportedly manage. Counsel relies 
on the statements of others withn the petitioning organization as evidence that the beneficiary would be relieved 
from having to primarily focus on performing the petitioner's daily operational tasks. Based on counsel's faulty 
reasoning, there would be no need for the submission of actual documentary evidence, as the petitioner's mere 
claim and the supporting statements of others would generally be sufficient to establish that the duties to be 
performed by a beneficiary would be primarily withn a qualifying capacity. However, comsel's reasoning is 
directly contradicted by precedent case law; which specifically states that going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. 158, 16.5 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Counsel disputes the AAO's reliance on this underlying case in which 
the need for documentary evidence was first established, claiming that the cited case requires documentary 
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evidence only in cases where a petitioner's statements are contradicted by other evidence of record. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm., 1972). Counsel's interpretation of the holding 
in Matter of Treasure Craft of California is incorrect. Contrary to counsel's interpretation, the BIA did not 
relieve the petitioner fiom having to submit documentary evidence to support its claims. Rather, it 
emphasized the need for documentation "particularly when [a petitioner's claim] is contradicted by, other 
evidence of record." Id. In the present matter, while there is no evidence on record that contradicts the 
petitioner's claim regarding the beneficiary's duties, neither is there any corroborating evidence to support 
such a claim. In asserting that the beneficiary would assume the role of a function manager where she would 
oversee an essential function of the petitioning entity, the petitioner must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. 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. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In the 
present matter, the petitioner provided no documentation to establish who would perform the duties 
associated with the essential function purportedly managed by the beneficiary. Furthermore, the case law and 
arguments presented by counsel on motion fail to establish that the MO's prior decision was based on an 
incorrect application of law or CIS policy and that the decision was incorrect based on the evidence of record 
at the time of the initial decision. Therefore, counsel has failed to establish a basis for withdrawal of the 
MO's conclusions. 
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. Here, the petitioner has not sustained that burden. 
ORDER: 
 The motion is dismissed. The AAO's prior decision is affirmed.