dismissed EB-1C Case: Furniture Manufacturing

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DATE: 
JUN 202012 
INRE: Petitioner: 
Beneficiary: 
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U.S. Department of Homeland Security 
lJ. S. Citizenship and Irrnnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Wa..<;hington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 engaged in institutional furniture manufacturing and sales, and it seeks to employ the 
beneficiary as its president 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 US,c' § 1 1 53(b)(l)(C), as a multinational executive or manager. 
On May 11, 2010, the director denied the immigrant petition for the following grounds: (l) the petitioner 
failed to establish that the beneficiary'S employment abroad was within a qualifying managerial or 
executive capacity; (2) the petitioner failed to establish that the beneficiary's proposed employment with 
the US. entity would be within a qualifying managerial or executive capacity; (3) the petitioner failed to 
establish that it has a qualifying relationship with the beneficiary'S foreign employer; and (4) the 
petitioner failed to establish the ability to pay the beneficiary's proffered wage. 
On June I, 2010, counsel for the petitioner submitted the Form I-290B to appeal the director's denial. 
Counsel also provided a brief and supporting documentation. 
Section 203(b) of the Act states in pertinent part: 
(I) 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)(1 )(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. 
Page 3 
The first two issues that will be addressed in this proceeding call for an analysis of the beneficiary's job 
duties. Specifically, the AAO will examine the record to determine whether the petitioner submitted 
sufficient evidence to establish that the beneficiary was employed abroad and would be employed in the 
United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.c. § I 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assigmnent 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 
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. 
In examining the executive or managerial capacity of the beneficiary, uscrs will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly supports 
the pivotal role of a clearly defined job description, as the actual duties themselves reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 1989), ajJ'd, 905 
Page 4 
F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, uscrs reviews the 
totality of the record, which includes not only the beneficiary's job description, but also takes into account 
the nature of the petitioner's business, the employment and remuneration of employees, as well as the job 
descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a complete 
understanding of a beneficiary's actual role within a given entity. 
An analysis of the record does not lead to an affIrmative conclusion that the beneficiary was employed 
abroad or would be employed in the United States iu a qualifying managerial or executive capacity. With 
regard to both the foreign and proposed positions the petitioner provided a list of job duties performed by 
the beneficiary which included broadly stated job responsibilities. Due to the overly general information, 
the AAO is unable to gain a meaningful understanding of how much time the beneficiary spent 
performing qualifying tasks versus those that would be deemed non-qualifying. The AAO will review the 
beneficiary's position abroad and in the United States together as the "duties performed by beneficiary in 
Europe and the duties presently performed and to be performed in the United States are essentially the 
same." 
In the letter of support dated November 5, 2009, the petitioner provided a brief description of the duties 
performed by the beneficiary with the foreign company and the petitioner. The beneficiary was the 
President of the foreign company and he was responsible for the "management of the entire enterprise, 
including design, manufacture, sales and marketing." In addition, the beneficiary was "charged with 
managing and supervising the entire purchasing and manufacturing process throughout Europe, which 
included direct manufacture as well as through contract manufacturers." Furthermore, the beneficiary 
was the "only executive in the corporation with discretion over the entire operation." 
The petitioner also stated that the beneficiary holds the position of president with the petitioner and will 
"continue to direct and coordinate the company's financial and budget activities; direct, plan, and 
implement policies, objectives, and activities of the entire organization to ensure continuing operations, 
assure maximizing returns on capital investments, iucreasing productivity and profitability." In response 
to the director's notice of iutent to deny the petition, the petitioner provided more details on the job duties 
performed with the foreign company, that are also similar to the duties performed with the petitioner. 
The petitioner provided a list of job duties that was not accompanied by a percentage breakdown. Due to 
the overly general and vague list of job duties, the AAO is unable to gain a meaningful understanding of 
how much time the beneficiary spent performing qualifying tasks versus those that would be deemed non­
qualifyiug. 
The petitioner stated that in his position with the foreign parent company, the beneficiary "planned all 
busiuess objectives, developed organizational policies to coordinate functions and operations between 
different departments;" and "established responsibilities and procedures for attaiuing objectives of the 
company, as determined by him." It is unclear which specific tasks actually fall within this broad 
category. Merely using the term "manage" to describe the beneficiary's function does not establish that 
the tasks the beneficiary performed are of a qualifying nature. The petitioner did not define the 
petitioner's goals and policies. Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not suffIcient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to provide any detail or explanation of the beneficiary's 
activities in the course of his daily routine. The actual duties themselves will reveal the true nature of the 
Page 5 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The petitioner's descriptions of the 
beneficiary's position do not identify the actual duties to be performed, such that they could be classified 
as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary "reviewed activity 
reports and financial statements to determine progress and status in attaining objectives and revised 
objectives and plans in accordance with current conditions," "direct[s] and coordinates formulation of 
financial programs to provide funding for new or continuing operations," and "planned and developed 
industrial, labor, and public relations policies designed to improve the company's reputation and relations . 
. . .. " The petitioner did not indicate who will be in charge of preparing the financial reports and 
financial statements, or the development of the marketing program, or the development of the expansion 
strategies. It appears that the beneficiary will be marketing the business and handling the finance and 
accounting operations, rather than directing such activities through subordinate employees. In addition, 
the petitioner will be negotiating contracts and creating new partnerships without the assistance of any 
subordinate employee. 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 lntn 'I., 19 I&N Dec. at 604. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.c. § 
I 10 I (a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of that organization. Inherent to the definition, the organization must 
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day operations 
of the enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial employee. 
The beneficiary must also exercise "wide latitude in discretionary decision making" and receive only 
"general supervision or direction from higher level executives, the board of directors, or stockholders of 
the organization. II Id. 
On appeal, counsel for the petitioner asserts that the beneficiary primarily performs executive and 
managerial duties, however, the petitioner did not submit any documentation to confirm this assertion. 
Without documentary evidence to support the claim, the assertions 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 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The petitioner stated that the foreign company employed 10 employees when the beneficiary was 
employed as president. The Form 1-140 states that the petitioner employs 2 individuals. As noted by the 
director, the petitioner failed to provide any evidence regarding the employees of the foreign company or 
the petitioner. The evidence does not establish that the employees were actually hired by the foreign 
company and the petitioner, or information of the duties performed by the employees. The petitioner 
failed to provide organizational charts of both the foreign company and the petitioner. Although the 
director noted these deficiencies in the notice of intent to deny and the denial, the petitioner did not 
Page 6 
present further evidence regarding this issue on appeal. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter ofSoffici, 22 I&N Dec. 158 at 165. 
The beneficiary's job duties, as described by the petitioner, are not indicative of an employee who is 
primarily focused on the broad goals and policies of the organization. The fact that the beneficiary is a 
shareholder of the organization is insufficient to establish the beneficiary's employment in an executive 
capacity. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. 
Sava, 724 P. Supp. 1103, 1108 (E.D.N.Y. 1989), ajfd, 905 P.2d 41 (2d. Cir. 1990). The petitioner has not 
established that the beneficiary is primarily engaged in directing and controlling a subordinate staff 
comprised of professional, managerial or supervisory employees, nor has it indicated that he is charged 
with managing an essential function of the petitioning organization. See section 101 (a)(44)(A) of the Act. 
The petitioner has failed to provide sufficient evidence to establish that the beneficiary was employed 
abroad and that he would be employed in the United States in a qualifying managerial or executive 
capacity. Based on these findings, the instant petition cannot be approved. 
The third issue in this proceeding is whether the petitioner has established that it has a qualifying 
relationship with the beneficiary's foreign employer. To establish a "qualifying relationship" under the 
Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed 
U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or related as a "parent and 
subsidiary" or as "affiliates." See generally § 203(b)(l)(C) of the Act, 8 U.S.c. § 1153(b)(I)(C); see also 
8 C.P.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.P.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly 
or indirectly, more than half of the entity and controls the entity; or owns, directly or 
indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent 
of a 50-50 joint venture and has equal control and veto power over the entity; or owns, 
directly or indirectly, less than half of the entity, but in fact controls the entity. 
On appeal, counsel for the petitioner states that "the employer abroad was wholly-owned by the beneficiary 
until such time as he had transferred the company to his son." Counsel contends that the current company 
Page 7 
abroad, now operating as 
same entity. 
is a successor-in-interest to the petitioner and should be considered as the 
The documentation submitted by the petitioner indicates that the beneficiary is the sole owner of the 
petitioner. The petitioner also states that the beneficiary previously was the sole owner of the foreign 
company but the foreign company was transferred to the beneficiary's son. The beneficiary's son renamed 
the company. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to establish that a 
qualifYing relationship between the petitioner and the beneficiary'S foreign employer existed when the 
petition was filed on November 20, 2009. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to the 
direct or indirect legal right of possession of the assets of an entity with full power and authority to 
control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 
595. 
As general evidence of a petitioner's claimed qualifying relationship, in addition to stock certificates, the 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the 
exact number issued to the shareholder, and the subsequent percentage ownership and its effect on 
corporate control. Additionally, a petitioning company must disclose all agreements relating to the voting 
of shares, the distribution of profit, the management and direction of the subsidiary, and any other factor 
affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., supra. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioner share 
common ownership and control. Control may be de jure by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be defacto by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
The petitioner is solely owned by the beneficiary. The petitioner also stated that the foreign company was 
previously owned by the beneficiary but was transferred to the beneficiary'S son in 2008. The U.S. 
company and the foreign company do not have any common ownership. No individual or groups of 
individuals own both the foreign company and the U.S. company. Therefore, the record clearly indicates 
that the petitioning enterprise does not maintain a qualifying relationship with the overseas company. The 
two companies share no common majority shareholder. Accordingly, the two entities are not "owned and 
controlled by the same group of individuals, each individual owning controlling approximately the same 
share or proportion of each entity .... " 8 C.F.R. § 204.5(j)(2)(emphasis added). In addition, there is no 
parent entity with ownership and control of both companies that would qualify the two as affiliates. 
Page 8 
Based on the evidence submitted, the petitioner has not established that a qualifying relationship exists 
between the U.S. and foreign organizations. 
The fmal issue in this proceeding is whether the petitioner has the ability to pay the beneficiary's 
proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part: 
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. 
(Emphasis added.) 
The petitioner indicates on the Form 1-140, at Part 6, that it will pay the beneficiary $1,923 per week, or 
$99,996 per year. The 1-140 was filed on November 20, 2009. The director issued a notice of intent to 
deny the petition on March 22, 2010 instructing the petitioner to provide, in part, evidence of its ability to 
pay the beneficiary's wage. 
In response, the petitioner submitted a letter, dated April 19, 2010, contending that the "petition was filed 
in 2009, hence the requirement to pay the proffered wage from 2009 onward. Not earlier, during the 
formative years when the business was getting established." The petitioner also re-submitted Form 1120, 
U.S. Corporation Income Tax Return, for 2008 and 2009. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine whether the 
petitioner employed the beneficiary at the time the priority date was established. If the petitioner 
establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than 
the proffered wage, this evidence will be considered prima facie proof of the petitioner's ability to pay the 
beneficiary's salary. According to the tax documents, the beneficiary received a salary of $52,935.00 in 
2009, and not the wage stated on the Form 1-140. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. Reliance on federal income tax returns as a basis for determining a 
petitioner's ability to pay the proffered wage is well established by judicial precedent. Elatos Restaurant 
Corp. v. Sava, 632 F. Supp. 1049, 1054 (S.D.N.Y. 1986) (citing Tongatapu Woodcraft Hawaii, Ltd. v. 
Feldman, 736 F.2d 1305 (9th Cir. 1984)); see also Chi-Feng Chang v. Thornburgh, 719 F. Supp. 532 
(N.D. Texas 1989); K.CP Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 
539 F. Supp. 647 (N.D. 111. 1982), affd, 703 F.2d 571 (7th Cir. 1983). 
According to Form 1120, U.S. Corporation Income Tax Return, for 2009, the pelltlOner paid the 
beneficiary $52,935.00 and paid no other wages or salaries. The petitioner's taxable income before net 
operating loss deduction and special deductions for 2009 was $28,476. The petitioner did not have the 
Page 9 
ability to pay the proffered wage to the beneficiary in 2009. In light of the lack of evidence submitted to 
establish that the petitioner meets the provisions of 8 C.F.R. § 204.S(g)(2), the AAO cannot approve the 
instant petition. 
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. § 1361. The petitioner has 
not met that burden. 
ORDER: The appeal is dismissed.