dismissed EB-1C Case: Freight Forwarding

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
SRC 04 104 50 129 
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. $ 1 153(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. 
obert P. Wiemann, Chief 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based visa petition. 
 The 
petitioner subsequently filed an appeal with the Administrative Appeals Office (AAO), which the AAO 
summarily dismissed. The matter is again before the AAO on a motion to reopen or reconsider. The AAO 
will grant the motion and affirm its February 23,2006 decision. 
The petitioner filed the immigrant visa petition to classi@ the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
9 1153(b)(l)(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. Upon review of the record, the director issued a request for 
evidence on February 2, 2005. The petitioner filed a response to the director's request for evidence on April 
30, 2005. However, the petitioner's response was not matched with the record of proceeding and the director 
denied the petition determining that the petition had been abandoned. On May 10, 2005, counsel for the 
petitioner filed a motion to reopen and provided evidence that the petitioner had submitted a timely response 
to the director's request for further evidence. The director reopened the matter to consider the timely filed 
response. 
In a decision dated July 12, 2005, the director denied the petition concluding that the petitioner had not 
provided sufficient evidence of the beneficiary's employment in a primarily managerial or executive capacity 
in either the foreign or United States organization. 
On August 15, 2005, counsel for the petitioner filed an appeal. The director declined to treat the appeal as a 
motion and forwarded it to the AAO for review. On appeal, counsel submitted a letter similar to that 
provided in response to the director's request for evidence, which contained the same descriptions of the 
beneficiary's assignments in the foreign and United States companies already offered by the petitioner. 
Noting the regulation at 8 C.F.R. 5 103.3(a)(l)(v), which provides instruction on the summary dismissal of an 
appeal, the AAO summarily dismissed the petitioner's appeal based on counsel's failure to "identi@ 
specifically an erroneous conclusion of law of a statement of fact." 
In its February 23, 2006 decision, the AAO observed that the job descriptions offered by the petitioner failed 
to demonstrate that the beneficiary had been or would be employed in a primarily managerial or executive 
capacity.' The AAO summarized the beneficiary's job duties, and noted that the job responsibilities outlined 
by the petitioner suggested that the beneficiary had been and would be performing operational and 
administrative tasks of the companies' customer service divisions. The AAO further observed that neither 
organization accounted for the performance of the non-managerial and non-executive tasks by a managerial, 
supervisory, or professional staff employed subordinate to the beneficiary. The AAO also concluded that the 
beneficiary had not and would not be employed as a function manager. 
On motion, counsel contends that the AAO failed to consider documentation submitted by the petitioner in its 
response to the director's request for further evidence, which counsel claims demonstrates that the beneficiary 
' As the prior decisions of the director and the AAO are already part of the record, they will not be entirely 
repeated herein. 
Page 3 
had been and would be employed in a primarily managerial or executive capacity. Counsel submits a letter in 
support of the motion. 
The regulation at 8 C.F.R. 5 103.5(a)(2) states: 
A motion to reopen must state the new facts to be provided in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 
The regulation at 8 C.F.R. tj 103.5(a)(3) states: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or [Citizenship and Immigration Services (CIS)] policy. A motion to 
reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 
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 or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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. 
Counsel filed the instant motion on March 20,2006. In a subsequently submitted letter, dated April 17,2006, 
counsel claims that the AAO erred in summarily dismissing the appeal as it failed to consider the petitioner's 
motion to reopen, in which it discussed the beneficiary's job duties in the foreign and United States 
organizations. Counsel states that the Texas Service Center "automatically sent this case to the AAO without 
taking into account the [pletitioner's [mlotion to [rleopen," which counsel claims resulted in the AAO's 
review of an incomplete record. 
Counsel further contends that the AAO did not acknowledge the full descriptions offered for the beneficiary's 
positions in the foreign and United States entities. Counsel states that the AAO listed in its February 23,2006 
decision "what it believes to be a complete list of the employee's duties for the U.S. [c]orporation," while 
neglecting additional "policy-making, goal-setting and executive decision-making duties" stated in the 
petitioner's previously submitted letters. 
Counsel challenges the AAO's interpretation of the petitioner's staffing levels, stating that it failed to consider 
that the operations of the petitioner and two affiliated United States companies had been integrated under the 
petitioning entity. Counsel states that as a result of the integration, the beneficiary would supervise thirty-five 
employees, including ten managers. Counsel contends that the AAO also erred in its review of the foreign 
entity's organizational hierarchy, stating that the organizational chart depicts the beneficiary as managing the 
company's sales, claims, and customer service departments. Counsel asserts that in this position, the 
beneficiary was primarily performing "policy-making and goal-setting tasks." 
Counsel further challenges that the AAO "erred in determining the applicable burden of proof," claiming that 
the record demonstrates by a preponderance of the evidence that the beneficiary would manage an essential 
function of the petitioning entity. 
Upon review, counsel's assertions are not persuasive. The petitioner has failed to demonstrate that the 
beneficiary's assignments in the foreign and United States entities had been or would be primarily managerial 
or executive in nature. 
Counsel claims on motion that the AAO's review of the beneficiary's employment capacity in the United 
States organization was focused only on those job duties outlined by the petitioner on its list titled 
"managerial duties" and did not include those responsibilities stated by the petitioner in its April 26, 2005 
letter submitted in response to the director's request for evidence. The record indicates that the AAO properly 
considered the job duties offered for the beneficiary's position of customer service manager. The AAO notes 
that according to counsel's April 26, 2005 letter, the beneficiary holds the same job responsibilities in the 
United States corporation as she did in the foreign entity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. tj 204.5(i)(5). The AAO emphasizes that the six job 
duties identified in its February 23,2006 decision are those specifically outlined by the petitioner on its list of 
"managerial duties" performed by the beneficiary as the company's customer services manager. Of particular 
relevance is the petitioner's representation that the cumulative amount of time devoted by the beneficiary to 
these six job duties is forty hours per week. The record suggests that the job duties outlined by the petitioner 
and catalogued by the AAO in its decision are an accurate depiction of what the beneficiary would do during 
a typical workweek. Similarly, contrary to counsel's claim on motion, the list of job duties performed by the 
beneficiary in the foreign entity demonstrates that the beneficiary performed primarily non-managerial and 
non-executive tasks, and spent only twenty percent of her time "working with functional managers and 
suppliers," a responsibility that counsel characterized as managerial or executive and claimed consumed "a 
great percentage of her time." The actual duties themselves reveal the true nature of the employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Despite counsel's claims otherwise, the AAO properly relied on the outline of the beneficiary's "managerial 
duties" in its review of the beneficiary's employment capacity. Counsel's general objections on motion do not 
overcome the well-founded conclusions of the director or the AAO. Similarly, counsel's assertions fail to 
corroborate her claim that the beneficiary would perform primarily managerial tasks, rather than the 
operational tasks summarized by the AAO. 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 (BIA 1980). 
The AAO notes that counsel submits on motion revised lists of the beneficiary's job duties in the foreign and 
United States entities, which attribute additional job duties to the beneficiary than those identified by the 
petitioner in its prior submissions. There is no evidence that the job descriptions were previously made part 
of the record. Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time 
on appeal or motion. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 
I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should 
have submitted the documents in response to the director's request for evidence. Id. Under the circumstances, 
the AAO need not and does not consider the sufficiency of the revised job descriptions. 
Additionally, counsel's assertion that the beneficiary would manage a staff of thirty-five employees, including 
ten managers, is not support by the record. Counsel claims an increase in the size of the staff supervised by 
the beneficiary in the United States organization, stating that an integration of the petitioner and two affiliated 
companies resulted in a more complex staffing levels. The petitioner's organizational chart, however, does 
not substantiate counsel's claim that the beneficiary would personally manage the "new" managerial 
employees. The managerial employees referenced by counsel are depicted on the petitioner's organizational 
chart as direct subordinates of the company's general manager, not the beneficiary. The petitioner did not 
identi@ on its organizational chart any lower-level employees who would be managed by the beneficiary. 
The record does not support counsel's claim that the AAO incorrectly reviewed and interpreted the petitioner's 
staffing levels, and, in particular, the beneficiary's subordinate workers. As noted by the AAO in its prior 
decision, if the petitioner claims that a beneficiary's duties involve supervising employees, the petitioner must 
establish that the subordinate employees are supervisory, professional, or managerial. See $ 10 1 (a)(44)(A)(ii) 
of the Act. Counsel did not overcome this essential requirement on motion. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
With respect to the beneficiary's position in the foreign entity, counsel claims that the company's 
organizational chart establishes the beneficiary's managerial authority over its sales, claims, and customer 
service departments. As previously noted by the AAO, the petitioner identified only one employee by name 
that purportedly reported to the beneficiary. Absent additional evidence of lower-level workers, the AAO 
cannot conclude that the beneficiary was relieved from performing the non-qualifying tasks associated with 
the foreign entity's sales, claims, and customer service functions. 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 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'l., 19 I&N Dec. 593, 604 (Comrn. 1988). 
Page 6 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary's assignments in 
the foreign and United States entities are comprised of primarily managerial or executive job duties. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. See 
Matter of Brantigan, 1 1 I&N Dec. 493 (BIA 1966). The petitioner must prove by a preponderance of 
evidence that the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 21 I&N Dec. 1035, 
1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 
1965). The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
applicant's claim is "probably true," where the determination of "truth" is made based on the factual 
circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating 
the evidence, Matter of E-M- also stated that "[tlruth is to be determined not by the quantity of evidence alone 
but by its quality." Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence 
standard, the director must examine each piece of evidence for relevance, probative value, and credibility, 
both individually and within the context of the totality of the evidence, to determine whether the fact to be 
proven is probably true. 
Here, the beneficiary's job descriptions and the companies' organizational charts fail to establish that the 
petitioner's claim of employing the beneficiary as a manager or executive is "probably true." As discussed 
above, the record supports a finding that the beneficiary's employment in the foreign and United States 
entities had not been and would not be primarily managerial or executive in nature. Accordingly, the 
director's decision to deny the petition and the AAO's subsequent dismissal of the petitioner's appeal were 
appropriate. 
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, that burden has not been met. Accordingly, the 
AAO's previous decision will be affirmed and the petition will be denied. 
ORDER: The AAO's February 23,2006 decision is affirmed.