dismissed EB-1C Case: Furniture

(b)(6)
DATE: NOV 0 6 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U,S. Depa.rtmel,lt .~r ~~meland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office(AAO) 
20 Massachusetts Ave. N. W ., MS 2090 
Washington, DC 20529-2090 
U.S. Citizens4i.p 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive .or Manager Purs!Jant 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: 
Enqlosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce 
new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly ·applied current law or policy to 
your case or if you seek to present new facts for 
consideration, you may file a motion to reconsider or a 
motion to reopen, respectively~ Any motion ~ust be filed on a Notice of Appeal or Motion (Form I-290B) 
witbin 33 days of the <:late of this deci~ion. Plea.se review the Form I-290B iosttu~tions at 
http://www.uscis.gov/forms for the latest illfonmttion on fee, filing location, and other requirements. 
See also 8 C.F.~. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
;L J;u/h rRonR~ 
Chief, Adlllinistra.tive Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISiON 
Page2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. ·Tbe matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Virginia limited liability company that seeks to employ tbe beneficil:lry as its exeCtJtive 
manager. Accordingly, the. petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursu_ant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 u.s-.c. 
§ 1153(b )( 1 )(C), as a multinational executive or inanaget. 
The clirector Q.enied tbe peHtion concludin~ that the petitioner failed to establish that it will employ the 
beneficiary in a qualifying managerial or executive c~p:acity. 
On appeal, counsel disputes the director's decision, asserting that the director erroneously based the denial on 
a: single issue, whicb focJjsed exclusively on the size of the petitioning entity. Counsel claims that the 
beneficiary delegates th.e petitioner's daily operational ~sks to independent cOntr~ctors , Alt)lough counsel 
marked Box B on the Form I-290B, indicating his intention to provide a brief and/or additional evidence 
within 30 days of filing the appeal, there is no evidence that the record has since been supplemented in 
accordance With couo.sel's original in.teJ1t. Therefore,, the AAO's decision will be based on the evidence that 
has been submitted thus far and the record will be considered complete as presently constitUted. 
I. TheLaw 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. ~- Visas shall first be made ~vaJl~ble ... to qui).lif1eq 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 
<llien's application fat classification. 'and admission into the United States 
U:ndet this SUbparilgt~ph, bas been epiployed for at le<tSt 1 y~ by C1 firm Or 
corporation or other legal entity or ari 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 fll"l11, corporation or other legal entity, or an affiliate or subsidiary ofthat entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. . 
v A United States employer ma:y 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 
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statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. S\lCQ 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~ 
i 
The term "w_<tnageri:il 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 
man<tgerial 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 
I 
(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 manager:ial ca.pacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised ate 
professional. 
Section 10l(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), pravides: 
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. 
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II. Procedural History 
The record shows that the petitioner filed the Form 1-140 on March 12, 2013 and submitted a number of 
supporting documell~ in lP1 effort to establish eligibility for the above stated immigration benefit. The 
petitioner's submissions included various tax and finlln.cial docu.men~. corpora_te anQ. bank documents, as well 
as a job description addressing the beneficiary's prospective employment with the U.S. petitioner. The 
petitioner stated on the Form 1-140 that it has one employee. 
After reviewing the petitioner's submissions, the director determined that tile petJtion did not warr(lflt 
approval. Accordingly, on April 16, 2013, the director issued a request for evidence (RFE) instructing the 
petitioner to provide, in part, a supplementary job description for the beneficiary's proposed employment. 
the director instructed the petitioner to list the beQeficiary's specific daily job duties and to assi~ a time 
allocation indicating the portion of time the beneficiary would spend performing each of tbe proposed job 
duties. Additionally, the director asked for the submission of the petitioner's organizational chart depicting 
the beneficiary's subordin;:ates and describing their respective job duties and educational credentials. The 
petitioner was instructed to indicate wbetber it uses contract labor anQ., if so, to provide evidence documentin~ 
the number of contractors used and the job duties they perform. 
The petitioner's response to tbe RFE included a, sta,tement from counsel discussing the supporting exhibits 
being submitted with the RFE,job descriptions, tbe U.S. entity's organization_a,l chart, a,nQ a, series of email 
correspondences between the beneficiary and various business associates, including a company charged With 
distiibu(ih~ the petitiqner's merchandise. In his response statement dated May 3, 2013, counsel claimed that 
the beneficiary's proposed employment would~ within an executive capacity. In light of this claim, counsel 
proceeded to recite the statutory criteria listed under executive capacity artd broadly dis.cussed the decisions 
the beneficiary has made in terms of hiring and working w·ith a distributor to assist with the selting of 
furoiture tlJ.at is manufa,ctured abroad by the petitioner's foreign affiliate. 
The director reviewed the petitioner's submissions and determined that the record lacked s.uffiCiertt evidence 
to establish that the beneficiary, as the petitioner's sole employee, allocates his time to performing primarily 
man.agerial or executive ~sks. Accordingly, the director issued a decision dated July 12, 2013 denying the 
petitiorL 
As indicated above, the primacy issue in .this matter is the beneficiarY's proposed employment With the 
petitioning entity. ·Namely, the AAO ~ill ehmlne the · record to determine whether the petitioner has 
provided sufficient evidence to establish that the beneficiary's proposed position would be within a qualifying 
managerial or executive capacity. In orQ.er to establish eligibility, the petiti()ner ni:Ust establish that it wa.s able 
to employ the beneficiary in a qualifying capacity as of Match 3, 2013, the date the Fortrt 1-140 was filed. 
III. An~Iysis 
ln general, when examining the executive or managerial capacity of the benefici<try position with the foreign 
or U.S. employer, the AAO reviews the totality of the record, starting first with .the petitioner's description of 
the beneficiary's job duties. See 8 C.F.R. § 204.5(j)(5). A detailed job description is crucial, as the duties 
tltemselVes will reveal the true nature of the beneficiary's foreign and proposed employment. Fedin Bto$, Co., 
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' 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The AAO will 
then consider this inform.ation in light of other relevant factors, including (but not limited to) job descriptions 
and size of the beneficiary's subordinate staff, the nature of tlte business conducted by the entity in question, 
and any other relevant facts that may contribute to a comprehensive understanding of the 'beneficiary's actuai 
role within the organization of the petitioning U.S. employer. 
In the present matter, the.record shows that the petitioner originally submitted a job description that purported 
to list the beneficiary's job responsibilities and tasks in his proposed position. However, the description was 
devoid of specific information as to the daily tasks tile beneficil!J"y would be expected to C<!crfy out. The 
beneficiary's duties as described in the record include 
the following: (1) develop a strategic plan to grow the 
company and increase its profitability; (2) oversee operations for quality and efficiency; (3) plan strategies to 
maxirni~e resources; (4) identify acqllisition and merger opportUilities; (5) approve policies and procedures, 
(6) review activity reports and financial statements; (7) re_vise corporate objectives; (8) contract an 
. independent staff for needed services; (9) evaluate performance of executives; (10) represent the company at 
legislative sessions, committee meetings, and formal functions; {11) promote the com.pany locally, regionally,· 
and internationally; {12) present an afinl!al report to the company's board of directors; (13) direct the 
company's planning and poilcy-making committees; and (14) oversee foreign operations. 
Having reviewed tlte above list of "tasl\8," the AAQ fi_nqs that a number of the s_tatelllents the petitioner 
provided to describe the beneficiary's proposed employment were overly vague and included several 
elements that were inconsistent with the nature of the petitioner's business and the structure of its 
organizational biera.,rchy. For instance, the petitioner failed to explain the respective roles of mergers and 
acquisitions, attendance at legislative sessions and committee meetings, and directing committees within the 
company. In other words, what types of mergers and acquisitions would the petitioner seek out and how 
would such-transactions further the petitioner's bu~iness objective, which is to create m.ore reverrue from. the 
_sale of furniture that is manufactured abroad by the petitioner's foreign affiliate? How would the petitioper' s 
involvement and/or direct participation in the political legislative process fit the petitioner's current business 
-needs and organizational structure? And lastly, what_ types of committees . within the coropany could the 
beneficiary possi1Jly oversee when he was tbe petitioner's sole em.ployee at the time the petition was filed? 
These claims appear to have no relation to the business model that is described by means of the petitioner's 
organizational chart and business documents, which indicate that the petitioner seeks to expose its furniture to 
a larger market share thus resulting in greater furniture sales and more profitability. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (ComiJl. 1998) (citing Matter of Tteasu_te Craft of 
California, 14 l&_N ])ec. 190 (Reg. Comm. 1972)). Here, the petitioner has not provided any evidence to 
demonstrate that mergers and acquisitions, participation in the legislative process, and directing company­
wide committee hearings are plausible actions that the beneficiary would carry out within his proposed 
position witb the U.S. entity. 
Additionally, a considerable portion of the listed duties are overly vague and fail to convey a. meaningful 
understanding of the specific actions the beneficiary would undertake in reaching his broadly-stated business 
objectives. For instance, the petitioner claimed that the beneficiary would develop a strategic plan to make 
tP.e compaf1Y more profitable. However, short of finding more avenues to sell the petitioner's products, it is 
unclear how the beneficiary would reach this objectjve. Given that the act of sales is an operational task, the 
(b)(6)
NON-PRECEI)ENT DECISION 
Page6 
beneficiary's involvemeQt in undertaking such a task would not be deemed as time spent performing tasks 
within a qualifying capacity. The petitioner also cl~_irned thl!t -the benefipi~ would oversee company 
operations and plan strategies to maximize resources. However, the petitioner did not provide ally t_ask_s 
related to company oversight, nor did the petitioner specify which resources the beneficiary would seek to 
maxirni~e or the specific rn~ns by which he planned to attain this general goal. 
While the petitioner went on to state that the beneficiary would apprpve company operational procedures, 
p<;>_Hcies, a,nd standl!,rds, this statement appears to be inconsistent wif!t a company where the beneficiary is the 
company's sole employee. By its very nature, the:: a.ct of l!pproving something strongly indicates that someone 
. other than the beneficiary would be charged with creating ot bringing about the policies and procedures tha.t 
(he beneficiary would have to approve. Similarly, the petitioner's claim that the beneficiary would evaluate 
the ·perfolllla.nce ofexecu(jves also lacks credibility, given that the petitioner did not employ an executive 
staff at the time the petition was filed. Again, the record t::ontains no eviden_ce to Sllpport the benefi~iary' s 
role in these various capaci
_ties, which imply that the petitioner employs a staff that extends beyond _the 
~oefici_a.ry himself. · 
Lastly, the benefiCiary's role in promoting the company on a local, regional, and national scale aild presenting 
the board with an annual report, which the beneficiary would 
presumably formulate, indicate the performance 
of sales and adrninistrative tasks, which would not be deemed as qualifying. , 
While no beneficiary is required to allocate 100% of his or her time to managerial- or executive-level tasks, 
the petitioner must establish that the non-qualifying tasks the beneficiary performed during his former 
employment with the foreigrt erttity were only incidental to 'the position in question. An employee who 
,;primarily" performs the taSks necessary to prod'uce a product or to prov_ide 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 
(requiting that one "prit_nl!fily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology International, 19 I&N Dec. 593, 604 (Cornm. 1988). 
ltJ the present matter, despite the fact that ·the director issued an RFE ·specifically expressing the need for 
additional iruorm(ltion tegardi_ng the be_neficiary' sjob descript_ion, including a li_st of the beneficiary's specific. 
daily job duties and the petcellptge of titne tbe benefici_aty pla.n.ned to allocate to ea~h item on the list, the 
petitioner _ responded with a replica of the same deficient job description that was _originally provided, thUs 
effectively declining to provide the requested additional evidence. Additionally, the petitioner provided a 
statement dated May 3, 2013 asserting that the beneficiary would assume any ''resix>nsibilities as needed to 
ens lire proper corporl!,te ftmction" and further noted that the percentage of time the beneficiary planned to 
spend on each of his assigned tasks could not be quantified. However, the petitioner's faihu'e to s((brnit 
requested evidence that pre<;ludes a material line of inquiry shall be grounds for denying the petition. 8 C.P.R. 
§ 103.2(b)(l4). Here, th¢ petitioner not only failed to provide the requested time allocations, but also broadly 
indicated that the beneficiary would carry out any tasks necessary to ensure the U.S. entity's con.tinued 
operation, thus indicating that the beneficiary would iikely be required t~ perform non-qualifying tasks tQ 
meet the petitioner's needs, WithOut the requested inforrn.~(ioo specifying bow the b~neficiary would ~Uocate 
his time, the AAO is precluded from being able to determine how much of the beneficiary's time would be . 
allocated to qJJCIJifying ta.sks versus tasks deemed as non-qualifying. Moreover, wi~hout further information 
about the beneficiary's specific daily tasks, the.AAO cannot overlook the above-described deficiencies, wbieh 
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indicate that the information the petitioner provided does not offer an accurate depiction of the beneficiary's 
proposed employment apd is therefore unreliable in assisting the AAO to assess the beneficiary's managerial 
or executive capacity. 
AdO.itiOJ1;,illy, the record contains an organizational chart, which the petitioner provided in ·an effort to 
establish that it has ail adequate support staff to relieve tbe benefici(\1]' from ba.,vjng to allocate his time 
· primarily to the petitioner's daily operational, i.e., non-qualifying . tasks. Specifically~ the chart indiCates that 
the petitioner: (l) contracts an attorney and an accountant to provide legal and accounting services; 
(2) maintains an office setviee agreement with or the provision of office space, office 
equipment, and a professionar receptionist; and (3) has forged a busines~ relationship with a ft.Jtniture 
distributor to assist with the sales of the produ~t offered by the petitioner's foreign affiliate. Notwithstanding 
the evidence provide<} t¢g!l..rdillg these business relationships, the record does not establish that the beneficiary 
would be relieved from having to allocate his tirne primarily to the perforfilance of non~qu~J.lifying taslcs. 
firSt, with regard to the petitioner's agr6ement with while the terms of the agreement indicate 
that woul<J provide the petitioner with office space, specified office equipment, and a full-time 
receptionist, the record contains no infotill.ation as to the specific services the receptionist provides. Although 
counsel offers a list of tasks that he claims are assigned to the receptionist provided by there Is. 
rio· eVidence in the record ~hat corroporates C()\Jnsel' s assertion~. Without documentary evidence to support 
the . claim, the assert'ioils of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (i3IA 1988); 
Ma.ttet of wureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
· 1980). The fact that information pertaining to the reception_i_st's responsibilities was not explicitly provided in 
the petitioner's agreement with Metro Offices leaves open the possibility that th6 beneficiary himself would 
have to ca,rry out certain non-qualifying office tasks. Without sufficient information of the job duties - ) 
assigned to the petitioner's contracted employees, _ tbe A.AQ is 1111able to determine the extent of the 
beneficiary's direct involvement in the operational tasks that would be deemed to be outside the realm of a 
ql,lalifying managerial or executive capacity. 
Second, looking to infoJiTlation provided in a s~ternent dated JaniJ.ary 12, 2013 frorn 
the petitioner's furniture distributor, the beneficiary's in¥olveJll.erit includes providing customer 
support, sales guidance, and marketing-related services, and attending meetings with key customers . Given 
tnat the petitioner's description of the beneficiary's proposed employment was insufficient for the reasons 
discussed above, and lacked an account of the beneficiary's specific daily tasks, it is unclear what portion of 
the beneficiary's time would be allocated to the perfon:n,ance of these non-qualifying tasks, none of which 
were Included in thejob description. Furthermore, in assessing the nature of the petitioner's business aild irt 
reviewing the services that are currently provided by the furniture distributor, there is significant information 
missi_ng as towh,ich party is responsible for the logistics thlit allow for the processing or'fumiture orders and 
delivery of the merchandise that has been purchased. Specifically, the evidence of record does not speCify 
whi.ch party handles the placing of the product orders, which party arranges for the delivery of the purchased 
products, or Who would be responsible for accounts receivable when the distributor, or some other purchaser, 
does not issue timely compensation for the purchased merchandise. Without evidence establishing that the 
beneficiary would not allocate considerable portions <:>f his time to these and poss_ibly other non-q11alifying 
tasks, the AAO cannot d~termine that he would be .engaged iil primarily managerial ofexecutive duties. 
(b)(6)
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Finally, wbile counsel's c.bc,t_ll¢nge of the director's decision is based primarily on the assumption that the 
director focused his ailc,tlysis entirely oil the petitioner's organizational composition, the above an!llysi.s 
includes an in-depth and comprehensive discussion that takes into account the beneficiarf s job description, 
the nature of the bJJsiness conducted by the petitioner, and the petitioner's staffing~ Although the 
beneficiary's job description is a for:emost concero when seekiQ.g to· assess the ma,nageria.I or executive 
, capacity of a given position, the issue of the petitioner's organizatioil<H hierarchy and support staff is highly 
r~I.evant cwci was give1_1 proper consideration in the director's decision. Even in instances where an adequate 
job description is provided, the petitioner rn.ust be .a.ble to provide evidence to estilblish thitt tlle beoeficiacy 
has the support staff necessary, whether by means Of in-house employees or contract-based labor, to carry out 
the non-qu~lifying administrative and operations tasks required for the petitioner's ongoing business activities. 
In the present matter, the petitioner failed to provide ail adequate description of the beneficiary's proposed 
tasks. In addition, it failed to provide evidence to establish that at the time the petition was filed the petitioner 
had !he capability of reliev~g the beneficiary from having to devote his time primarily to the performance of 
non-qualifying tasks. Given the considerable lack of Sufficient supporting . evidence, the AAO canl)Ot 
conclude that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. Accordi~gly, Ute appeal will be dismi~sed. . 
IV. Conclusion 
The appeal will ,be dismissed fot the above stc,tted reasons, with each considered as an independent and 
alternate basis for the decision. Iii visa petition proceedings, it is the petitioner's bUrden to establish eligibility 
for the immigration benefit sought. Section 291 ,of the Act, g, U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 
127, 148 (BIA 2013). Here, tl!at burden bas not be~n met. 
ORDER: The appeal is dismissed.