dismissed EB-1C Case: Freight Forwarding

U.S. Citizenship
and Immigration
Services
.PUBLICCOpy
U.S. Department of HomeJand Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
FILE:
SRC 0410450129
Office: TEXAS SERVICE CENTER Date: ta 03 2001
INRE: Petitioner:
Beneficiary:
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)(1)(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.
RtirtP. Wiem' ,Chief
AlinistratiVe Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition.
The petitioner subsequently filed an appeal with the Administration Appeals Office (AAO), which the AAO
summarily dismissed. The AAO granted the petitioner's subsequent motion to reconsider and affirmed its
decision. The matter is now before the AAO on a second motion to reopen and reconsider. The AAO will
reject the motion as untimely filed.
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager or
executive pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1I53(b)(1)(C). The petitioner is a corporation organized under the laws of the State of Florida that is engaged
in the freight forwarding business. The petitioner seeks to employ the beneficiary as its customer service
manager.
The petition was filed on February 27, 2004, and was ultimately denied on July 12, 2005' on two separate
grounds: (1) the petitioner did not establish that the beneficiary would be employed by the United States
entity in a primarily managerial or executive capacity; and (2) the petitioner did not establish that the
beneficiary had been employed by the foreign entity in a primarily managerial or executive capacity.
On August IS, 2005, counsel for the petitioner filed an appeal. On appeal, counsel submitted a letter dated
August 11, 2005, which was essentially identical to an April 26, 2005 letter submitted in response to the
director's request for evidence, and a letter dated February 17, 2004, which was submitted at the time the
Form 1-140 petition was filed. The AAO noted counsel's failure to "identify specifically an erroneous
conclusion of law or statement of fact" in support of the appeal, and summarily dismissed the appeal pursuant
to the regulation 8 C.F.R. § 103.3(a)(I)(v).
Although the appeal was summarily dismissed, the AAO's decision dated February 23, 2006 included a
discussion of the evidence submitted in support of the petitioner's claim that the beneficiary had been and
would be employed in a primarily managerial or executive capacity, and why such evidence failed to support
the petitioner's claims.
The petitioner subsequently filed a motion to reopen and reconsider on the grounds that the AAO had not
reviewed the complete record, noting that the beneficiary's job description, as summarized in the AAO's
decision, did not include responsibilities stated by the petitioner in its April 26, 2005 letter. The AAO
addressed counsel's arguments and noted that the record did not support counsel's assertion that the
beneficiary would manage a staff of 35 employees. The AAO also discussed deficiencies with respect to the
position description and organizational charts related to the beneficiary's previous position with the foreign
entity. The AAO affirmed its previous decision in a decision dated January 11, 2007.
The petitioner filed the instant motion to reopen and reconsider on February 16, 2007. The regulation at 8
C.F.R. § 103.5(a)(1)(i)requiresthat any motion to reopen or reconsideran action by Citizenshipand Immigration
Services(CIS) be filed within 30 days of the decision that the motion seeks to reopen or reconsider, except that
, The director initially denied the petition on May 4, 2005, noting that the petitioner had failed to respond to a
request for evidence issued on February 2,2005. Counsel for the petitioner filed a motion to reopen on May
10, 2005, with evidence that the petitioner had in fact timely responded to the request for evidence. The
director granted the motion and reopened the matter to consider the petitioner's response to the request for
evidence.
/
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failure to file before this period expires may be excused in the discretion of CIS where it is demonstrated that the
delay was reasonable and was beyond the control of the petitioner. If the decision was mailed, the motion must
be filed within 33 days. See 8 C.F.R. § 103.5a(b).
In accordance with 8 C.F.R. § 103.2(a)(7)(i), , an application received in a Citizenship and Immigration
Services (CIS) office shall be stamped to show the time and date of actual receipt, if it is properly signed,
executed and accompanied by the correct fee. For calculating the date of filing, the motion shall be regarded
as properly filed on the date that it is so stamped by the service center. In the present matter, according to the
date stamp on the motion, the motion was received by the director on February 16,2007, 36 days after the
AAO's decision was issued. The record shows that the motion was mailed on February 14,2007, or 34 days
after the AAO's decision. Although the motion was already one day late when mailed, counsel offered no
explanation for the delay.
Therefore, as a matter of discretion, the petitioner's failure to file the motion within the period allowed will not
be excused as either reasonable or beyond the control of the petitioner. Accordingly, the motion will be rejected
as untimely filed.
Although the motion will be rejected, additional notes will be made for the record.
Counsel's primary claim in the instant motion is that a letter from the petitioner dated February 17, 2004,
which includes a lengthy description of the beneficiary's duties, was not given any weight in the AAO's
January 11, 2007 decision. With respect to the beneficiary's job duties, the record contains a letter from the
petitioner dated February 17, 2004, a letter from counsel dated April 26, 200~, and a letter from counsel dated
August 11, 2006, all of which include the exact same job description for the proffered position of customer
service manager with the U.S. company. The director issued a request for additional evidence on February 2,
2005 in which the director clearly advised the petitioner that the letter submitted was insufficient to establish
that the beneficiary would be employed in a primarily managerial or executive capacity, yet the petitioner
persisted in submitting the identical description on two subsequent occasions. Counsel's assertion that the
position description contained in the February 17, 2004 letter was never considered is not persuasive, given
that the description contained in that letter is the only description that has ever been provided.
The AAO's previous decisions have specifically referenced a document provided by the petitioner in response
to the director's request for evidence, which indicates h0'Y the beneficiary allocates her time among six duties
in a typical 40-hour workweek. This document was submitted in response to the request for evidence, in
support of the initial appeal of the director's decision to the AAO, and in support of the petitioner's previous
motion to reopen and reconsider. All of the duties included in this statement of "managerial duties" were
included in the February 17, 2004, April 26, 2005 and August 11, 2006 letters. While counsel asserts that the
February 17, 2004 letter included other qualifying duties not outlined in the list of six duties relied upon by
the AAO, counsel fails to explain why the petitioner would have submitted an incomplete account of how the
beneficiary allocates her time on three separate occasions. Since the duties outlined in the petitioner's
statement comprised a 40-hour workweek, the AAO reasonably relied on this statement as a complete account
of the beneficiary's position.
Furthennore, a description that indicates how much time the beneficiary spends on each duty has more
probative value than a vague outline of the beneficiary's overall responsibilities. Whether the beneficiary is a
managerial or executive employee turns on whether the petitioner has sustained its burden of proving that his
Page 4
or her duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and (B) of the Act. The
AAO has consistently required the petitioner to establish what percentage or proportion of the beneficiary's
time is spent on managerial or executive duties, and what percentage or proportion of time is allocated to non­
qualifying duties. See, e.g. IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999); See
Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). Again, the position description contained in
the February 17, 2004 letter was specifically identified by the director as overly broad.
The petitioner submits for the first time in support of the instant motion a description of the beneficiary's
position, which indicates how she allocates her time among nine job duties. The new position breakdown
identifies all duties included in the petitioner's initial letter. Counsel offers no explanation as to why the
petitioner initially provided a list of only six duties on three separate occasions. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Counsel also claims that the petitioner "was never given an opportunity to re-but the USCIS denial of the
case." Counsel explains as follows:
On May 10,2005, counsel for the petitioner filed a motion to reopen, and provided evidence
that a response to the director's request for further evidence had been timely submitted on
April 30, 2005. The director granted the motion to reopen the matter and on the same day
denied the petition. USCIS then sent the case to the AAO using the Motion to Reopen as an
appeal, duplicating its function. The AAO considered only the evidence sent as an RFE.
Counsel's outline of the procedural history of this matter, as outlined above, is incorrect. The petitioner filed a
Form I-290B, Notice of Appeal, on August 15, 2005, which included a cover letter from counsel annotated
"Notice of Appeal" in which she stated "this is a request [for] an appeal of your decision." Counsel submitted
a letter dated August 11,2005 and supporting evidence. Counsel's suggestion that the petitioner did not have
an opportunity to appeal the director's July 11,2005 decision is not supported by the evidence, which shows
that the petitioner did in fact file an appeal. The director did not merely forward the motion to reopen to the
AAO. The filing dated August -15, 2005 included supporting evidence, and there was no indication that
additional evidence would be submitted. The AAO did not consider "only the evidence sent as an RFE,"
although, as noted in the AAO's decision dated February 23, 2006, the evidence submitted on appeal was
essentially identical to that submitted in support of the RFE. The AAO had the opportunity to review, and did
review, the complete record of proceeding.
The final argument made by counsel in support of the instant motion is that the AAO erred in its analysis of
the organizational chart provided by the petitioner, by determining that the beneficiary would not manage a
staff of 35 lower-level employees. Counsel asserts that a "plain reading" of the organizational chart
demonstrates that the beneficiary's position is just below that of the general manager's position, and
emphasizes that the beneficiary's management of subordinate employees is "implicit" in her job duties, which
require her to manage, develop and review "major components" of the company. The petitioner submits an
expert opinion letter from who states that she reviewed the petitioner's
organizational chart and determined that the beneficiary's position is at a senior level in the company's
hierarchy, and includes supervision often subordinate managers.
Page 5
Counsel's assertions are not persuasive for several reasons. First, the petitioner has never established that the
beneficiary's claimed supervision of the employees of the petitioner's claimed affiliates, Global Parcel
Services, L.L.C. and EI Tropico, L.L.C., should be considered in determining whether the beneficiary would
be employed by the petitioner in a primarily managerial or executive position. The duties of a beneficiary for
the petitioner and on behalf of the petitioner's affiliated companies may be viewed together in certain
circumstances; however, the petitioner must establish that the companies are significantly interrelated. The
statutory definitions of executive and managerial capacity refer to an assignment within an organization in
which the employee either manages the organization or directs the management of the organization. Section
101(a)(28) of the Act defines "organization" as follows: "The term 'organization' means, but is not limited to,
an organization, corporation, company, partnership, association, trust, foundation or fund; and includes a
group of persons, whether or not incorporated, permanent or temporarily associated together with joint action
on any subject or subjects." The statutory definition of an organization would not ordinarily include a
partially owned corporation that is an entity separate and distinct from the petitioning organization. However,
the petitioner may provide evidence to establish that the petitioner and the petitioner's partially owned entity
are either permanently or temporarily associated through controlling ownership, contract, or other legal
means. Accordingly, a beneficiary's claimed managerial or executive duties that relate to a partially owned
entity may be considered in certain instances for purposes of an immigrant visa petition.
In this case, the two affiliated entities have not been shown to be true affiliates of the petitioning company.
Two individuals own the petitioning company in equal proportions. These same two individuals each own a
20 percent interest in "El Tropico, LLC" but that company has three other shareholders with no ownership
stake in the petitioning company, and there is no evidence that management or control of the company has
been turned over to the petitioner. The two companies do not have an affiliate relationship as defined at 8
C.F.R. § 204.5(j)(2). Similarly, the petitioner's two individual shareholders each own a one-third interest in
Global Parcel Services, LLC, and there is no evidence that they have combined their interests such that they
would control the company together. According to the operating agreement for Global Parcel Services, LLC,
the company is managed by one manager, who has no ownership interest in the U.s.
petitioner. The petitioner has not established that El Tropico, LLC and Global Parcel Services, LLC should
be considered part of the petitioner's organization, and an analysis of the beneficiary's supervisory role should
therefore be confined to employees of the U.S. company.
At the time of filing, the petitioner claimed to employ nine employees. The petitioner's organizational chart
submitted in response to the request for evidence identified eleven employees by name, as well as sub­
contractors. The petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, for the quarter in which
the petition was filed, indicates that the petitioner had seven employees as of February 2004. 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 ofRo, 19 I&N Dec. 582, 591-92 (BIA 1988). The
AAO cannot determine who was actually employed by the company at the time of filing. Although the
organizational chart provided does show that the beneficiary reports to the petitioner's general manager, it did
not clearly depict any direct subordinates. Furthermore, the director had requested employee names, job titles
and job duties for all positions managed by the beneficiary. The petitioner did not provide job duties for
subordinate employees, and did not clearly indicate who would be supervised by the beneficiary. Failure to
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition.
8 C.F.R. § 103.2(b)(14).
Page 6
The AAO is not persuaded that the beneficiary's supervision oflower-Ievel employees is "implicit" in her job
duties, as suggested by counsel. The beneficiary's position description does not include any supervisory
duties or suggest that she has the authority to hire or fire employees or recommend these and other personnel
decisions. See section 101(a)(44)(A)(ii) of the Act. Counsel essentially requests that the AAO accept the
organizational chart, which shows the beneficiary as having no direct subordinates, as prima facie evidence of
the beneficiary's eligibility for the requested classification, notwithstanding the petitioner's failure to provide
additional, specific evidence regarding exactly whom the beneficiary supervises and what duties they
perform. 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». The fact that the beneficiary
reports to the general manager does not automatically lead to the conclusion that she supervises all lower level
employees ofthe petitioner and two separate companies that share only a minority ownership interest with the
petitioner .
Finally, even if the AAO were to find that the beneficiary would be employed in a managerial or executive
capacity in the United States, it must be noted that neither cotmsel nor the petitioner has contested the finding
that the beneficiary was not employed by the foreign entity in a managerial or executive capacity, and that
determination would therefore be affirmed.
As the AAO's previous decision will stand, these issues will not be discussed further.
ORDER: The motion is rejected as tmtime1yfiled.