dismissed EB-1C Case: Franchise Management

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PUBLIC COPY 
US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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. $ 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. 
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 dismissed. 
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 employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 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. 
On appeal, counsel disputes the director's findings and submits a brief in support of his arguments. 
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 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 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 beneficiary's proposed position would be within a 
managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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. 8 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. 
The record indicates that no evidence was submitted in support of the Form 1-140. However, the record 
shows that the beneficiary provided a statement in support of her Form 1-485 from the president of the 
beneficiary's foreign employer describing the job responsibilities associated with her proposed employment in 
the United States. The following description was provided: 
[The beneficiary] [wlill manage the organization in the United States on a long-term basis in 
accordance [with] directives received from the company's [mlanaging [dlirector. The 
[mlarketing [dlirector's [sic] will function is [sic] a senior level within [the petitionerl's 
hierarchy and with regard to the functions that she will manages [sic] on a permanent basis. 
[The beneficiary] [wlill direct and manage on a permanent and long term basis the 
managerial position o f the marketing business activities of the investment, development, and 
management company. [She] [wlill direct and coordinate the marketing of organizational 
services and investments. [She] [wlill coordinate, plan and formulate aspects of marketing 
research that can be utilized fiom findings, costs of project, and requirements. [She] [wlill 
review [the] market and analyze proposals to determine if benefits can be derived to justify 
expenditures. [She] [wlill approves [sic] and submits [sic] marketing plans for investments in 
Subways fast food restaurants [sic] fianchises . . . and [will] submits [sic] proposals 
considered feasible to management fiom the marketing point of view for consideration and 
allocation of funds. 
 [She] [wlill be responsible for coordinating the activities of the 
[mlarketing and [slales department. 
 [She] [wlill implement a modern and cost efficient 
marketing business plan, recommend staffing, training, and performance evaluations to 
develop and control [the] marketing and sales program. [She] [wlill implement the full 
integration of marketing plans, objectives, and goals of the parent company abroad and the 
American enterprise. [She] [wlill analyze sales and marketing statistics to formulate policy 
and to assist in promoting investments and sales in the [sloutheast and [slouthwest United 
States. [She] [wlill review market analyses to determine prospective customer's [sic] needs, 
volume potential, price schedules, and discount rates to accommodate goals of [the] 
company. [She] [wlill coordinate advertising and sales activities with the [mlarketing 
[dlepartment to assist in establishing investments [sic] purchases and sales goals. [She] [wlill 
analyzes [sic] and controls [sic] expenditures of [the] division to conform to budgetary 
requirements. [She] [wlill assist other departments within [the] establishment to prepare 
manuals and technical publications. [She] [wlill manage and oversee, in conjuction with the 
company staff, the periodic marketing, sales, and advertising needs and reports showing sales 
volume and potential sales. [She] [wlill report directly and be responsible of [sic] her 
managerial duties to the company's [mlanaging [dlirector. 
On May 13, 2005, the director issued a request for additional evidence (RFE). The RFE addressed the 
following issues: 1) the beneficiary's job duties abroad prior to her entry into the United States as a 
n~nimmi~rant;' 2) the petitioner's relationship with the beneficiary's employer abroad; 3) the petitioner's 
documentation with regard to its doing business in the United States for one year prior to filing the Form I- 
140; and 4) the continued existence and ongoing business activity of the beneficiary's foreign employer. 
On September 19, 2005, the director denied the petition concluding that the petitioner failed to establish that 
the beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
On appeal, counsel asserts that Citizenship and Immigration Services (CIS) failed to provide the petitioner 
with a reasonable opportunity to submit evidence addressing the issue of the beneficiary's proposed 
employment in the United States. 
While counsel's assertion regarding the director's error is accurate, such error does not automatically suggest 
that the director's entire decision must be overturned. In the instant matter, the AAO acknowledges that the 
director committed a procedural error by failing to solicit further evidence with regard to the specific issue at 
hand in the instant matter. However, it is not clear what remedy would be appropriate beyond the appeal 
process itself. The petitioner has in fact supplemented the record on appeal. A review of the petitioner's 
I 
 The director repeatedly stated that the beneficiary was admitted to the United States in the L-1B nonirnmigrant visa 
category. This statement, however, is incorrect, as the record shows that the beneficiary was admitted to the United 
States as an L-1A intracompany transferee. 
submissions suggests that the director's conclusion was warranted. 
 Therefore it would serve no useful 
purpose to remand the case simply to afford the petitioner the opportunity to supplement the record with new 
evidence. 
In support of the appeal, the petitioner submits a statement from the beneficiary dated October 17,2005.~ The 
beneficiary provided the following list of her proposed duties with the petitioning entity: 
[Mlarketing the services and products of the corporation, specifically overseeing the 
advertising and marketing campaigns for our Quimos Subs divisions, as well as marketing 
the services of our real estate management and leasing division, and its accompanying 
organizational services; formulating, directing and coordinating marketing activities and 
policies to promote products and services, and providing information to supervisors, co- 
workers, and subordinates, in order to communicate these policies to them in a clear and 
cogent manner; communicating with persons outside the corporation so as to represent the 
corporation to customers, the public, government, and other external sources; using sales 
forecasting and strategc planning to ensure the sale and profitability of products, lines, or 
services, and analyzing business developments and monitoring market trends. 
* * * 
[Dlevelop pricing strateges by balancing our business objectives with customer satisfaction; 
identify, develop, and evaluating [sic] our marketing strategy . . . ; evaluate the marketing 
impact on [the] financial aspects of our services and product development, such as budgets, 
expenditures, research and development appropriations, and return-on-investment and profit- 
loss projections. 
The beneficiary also states that her responsibilities include the following: compiling lists of the services and 
products offered by the petitioner; review products and services that can be potentially offered in the future, 
recommend staffing; evaluate the performance of those who execute the marketing and sales duties; analyze 
sales and marketing statistics; review market analyses; and control marketing-related expenses. The 
beneficiary affirmatively states that she is not involved in the day-to-day operations, but rather manages the 
corporation's essential marketing function over which she has express discretionary authority. 
While the petitioner has provided a broad list of the beneficiary's proposed responsibilities, which suggest a 
high degree of discretionary authority with respect to the marketing function, 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, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In other words, an impressive list of responsibilities and a 
multi-tiered organizational chart are mere extensions of the petitioner's claim, which must be corroborated 
with documentary evidence. In the instant matter, the record strongly suggests that the beneficiary's duties are 
primarily focused on overseeing the work of other employees who purportedly carry out the marketing and 
sales related functions. As such, the petitioner must provide evidence establishing its employment of such 
individuals. In the instant matter, the record lacks such evidence. In fact, the organizational chart submitted 
Although the bottom of the submitted pages of the statement indicates that the statement is comprised of a total of eight 
pages, the first two pages of the statement are missing. Therefore, the AAO will consider only the information contained 
within the submitted portion of the statement. 
Page 6 
on appeal indicates that the beneficiary would head the investment division, which is comprised of a number 
of properties. However, neither the organizational chart nor any of the other submissions clarify who actually 
performs the marketing and sales related duties. This information is essential for the purpose of determining 
that the beneficiary would not primarily perform nonqualifying tasks. See sections 101(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 Int 'I., 19 I&N Dec. 593, 604 (Comm. 1988). Thus, while the petitioner may 
have provided a job description that suggests that the beneficiary would be employed in a primarily qualifying 
managerial or executive capacity, the lack of supporting documentary evidence precludes the AAO from 
overturning the director's conclusion. 
Additionally, though not addressed by director, the regulation at 8 C.F.R. 5 204.5(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. 
In the instant matter, the record lacks sufficient evidence establishing the petitioner's ability to pay the 
beneficiary's proffered wage of $24,000. 
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 ground for ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
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. 4 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.