dismissed EB-1C Case: Furniture Manufacturing

U.S. Department of Homeland Securitv 
20 Mass. Ave.. N W . Rm A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
J 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 
WAC 04 016 51242 
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. 
Robert P. Wiemann, Director 
TAdrninistrat ive Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based petition. The matter 
is now before the Administrative AppeaRs Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of California in August 2001. It constructs cabinets and 
furniture. It seeks to employ the beneficiary as its president and general 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. 5 1153(b)(l)(C), as a multinational executive or 
manager. 
The director determined: (1) that the petitioner had not established that the beneficiary would be employed in 
a primarily managerial or executive capacity for the United States entity or (2) a qualifying relationship with 
the beneficiary's foreign employer. 
On appeal, counsel for the petitioner contends that the petitioner has proven that the beneficiary is fulfilling 
the position of an executive or manager and that the petitioner has a qualifying relationship with a foreign 
entity. 
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 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 that 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. See 8 C.F.R. 
4 204.50)(5). 
The first issue in this proceeding is whether the beneficiary will be employed in a managerial or executive 
capacity for the United States entity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 4 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. 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; 
... 
111. if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as w-ell 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. 5 1 10 1(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
1. directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
111. 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 an October 10, 2003 letter appended to the petition, the petitioner stated that the beneficiary would: (1) 
assume the position of president and general manager; (2) function as the U.S. liaison for purchasing and 
shipping; (3) oversee nine employees, including five assistant managers for purchasing, selling, market 
development, and shipping and product development, as well as, support staff who would report directly to 
him; (4) be responsible for hiring, firing, training, remuneration, promotions, discipline, and delegation of 
assignments; (5) manage and direct development activities pertaining to international marketing operations; 
(6) meet with corporate officials and department directors to ensure corporate philosophy is understood and 
delivered accurately; (7) represent concerns and requirements to headquarters; (8) provide contributions in the 
formulation of strategic product plans to ensure that the business and strategic policies are incorporated into 
international business activities; (9) establish and promote standardization of support and service; (10) meet 
with development units to review current policies and procedures and develop plans to ensure consistency of 
development practice; (1 1) formulate strategies and plans to improve communication between the U.S. based 
business development department and its Korean counterparts; and (12) establish and promote standardization 
in the delivery of information and products to the petitioner's clients. 
The petitioner concluded the beneficiary's job description by stating that the beneficiary "would have 
autonomous control over, and exercise wide latitude and discretionary decision-making in, establishing the 
most advantageous courses of action for the successful management and direction of our international 
development activities." 
On October 12, 2004, the director requested: (I) a more detailed description of the beneficiary's duties in the 
United States, including whom the beneficiary directs, their job title and position description; (2) a copy of 
the petitioner's organizational chart describing its managerial hierarchy and staffing levels, as of the date of 
filing the petition, which should include the names of all executives, managers, supervisors, and number of 
employees within each department or subdivision, and a brief description of job duties, educational levels, 
salarieslwages for all employees under the beneficiary's supervision; and, (3) the petitioner's California Forms 
DE-6, Employer's Quarterly Wage and Withholding Report for the last four quarters. 
In an October 22, 2004 response to the director's request for further evidence in support of the petition, 
counsel for the petitioner stated: "As President of the company, [the beneficiary] is charge [sic] with 
determining all corporate decisions affecting the direction, growth, production and sales of his company." 
The petitioner also provided its organizational chart depicting the beneficiary as president, two employees in 
the production department, one employee in the sales department, and an unnamed accountant and secretary. 
The petitioner's California Form DE-6 for the quarter in which the petition was filed listed seven employees. 
Only two of the employees on the California Form DE-6, the beneficiary and a production employee, are also 
identified on the organizational chart. 
On December 16, 2004, the director determined that: (1) the description of the beneficiary's job duties was 
general and did not provide sufficient detail regarding the beneficiary's actual duties and the percentage of 
time devoted to those duties; (2) duties such as managing and directing all development activities pertaining 
to international marketing operations had not been shown to be managerial or executive responsibilities; (3) 
the beneficiary's responsibilities comprised duties or responsibilities for which the beneficiary primarily 
performed a task; (4) the petitioner did not possess the organizational complexity to warrant an executive 
position; and (5) the record indicated that a preponderance of the beneficiary's duties would be directly 
providing the services of the business. The director denied the petition concluding that the record did not 
establish that the beneficiary had been or would be employed in a qualifying managerial or executive 
capacity. The director also noted that the petitioner's California Form DE-6 for the quarter ending September 
30,2004 showed that the petitioner employed only the beneficiary, a production employee, and a salesperson. 
On appeal, counsel re-states the description of the beneficiary's duties initially provided and asserts that the 
beneficiary's duties for the U.S. entity have been delineated with specifics and detail. Counsel also states that 
the description provided is a summary of the beneficiary's duties. Counsel contends that the beneficiary does 
not make the petitioner's custom cabinets but devised the company's plans to create custom cabinets for the 
claimed parent company's manufactured speakers. Counsel notes that the petitioner provided copies of its 
California Forms DE-6, which show that the petitioner has on average throughout its existence, seven 
employees. Counsel claims that the beneficiary hired personnel to carry out the supervision and production 
of the company's product lines. 
Counsel's contentions are not persuasive. 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. 5 204.56)(5). 
Counsel, on appeal, asserts that the petitioner has provided a specific and detailed description of the 
beneficiary's duties but also notes that the description is a summary of the beneficiary's duties. Upon review, 
the description of the beneficiary's duties initially provided is general and conclusory. For example, 
responsibility for managing and directing development activities pertaining to international marketing 
operations; formulating strategic product plans to ensure business and strategic policies are incorporated into 
international business activities; establishing and promoting standardization of support and service are all 
generic duties associated with operating a company. Likewise, meeting with department and development 
units to review policies and procedures and developing plans to ensure consistency are all general principals 
connected with operating a company. It is not sufficient to state that the beneficiary manages and directs 
development activities and formulates strategies and promotes standardization without providing pertinent 
details regarding the daily tasks required and exercised to carry out the general duties. The petitioner does not 
explain how these general responsibilities and principals elevate the beneficiary's position to that of a 
manager or executive as defined by the regulations. Specifics are clearly an important indication of whether 
a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), afyd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, on October 12, 2004, the director specifically requested a more detailed description of the 
beneficiary's duties. In response, counsel for the petitioner provided only a general and conclusory statement 
indicating that the beneficiary: "As President of the company, [the beneficiary] is charge [sic] with 
determining all corporate decisions affecting the direction, growth, production and sales of his company." 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion may deem necessary. The purpose of the request for evidence is to elicit further information that 
Page 6 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). In this matter, the initial recitation 
of the beneficiary's vague job responsibilities and broadly-cast business objectives did not establish the 
beneficiary's managerial or executive capacity. The petitioner failed to answer a critical question in this case: 
What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. The petitioner, rather than 
providing a detailed description of the beneficiary's daily job duties, provided only a conclusory statement. 
Further, the petitioner has provided conflicting and incomplete information regarding its staffing levels. The 
petitioner's California Form DE-6 for the quarter in which the petition was filed lists seven employees. This 
information does not correspond to the petitioner's organizational chart, although the director specifically 
requested that the petitioner submit a chart depicting its organizational structure as of the date the petition was 
filed. 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 of Ho, 19 I&N Dec. 582, 59 1 - 
92 (BIA 1988). 
Furthermore, even if Citizenship and Immigration Services (CIS) assumed that the petitioner employed seven 
individuals, directly overseeing employees and hiring, firing, training, remuneration, promotions, discipline, 
and delegating assignments are duties of a supervisor. The petitioner noted that its employees reported 
directly to the beneficiary, confirming that the beneficiary is a first-line supervisor. The AAO notes that 
although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See section 101(a)(44)(A)(ii) of the Act. In this matter, the petitioner has not 
established that any of the beneficiary's subordinates' positions require the services of employees who possess 
or require a bachelor's degree, such that they could be classified as professionals. Nor has the petitioner 
shown that any of these employees primarily supervise subordinate staff members or manage a clearly 
defined department or function of the petitioner, such that they could be classified as managers or supervisors. 
Thus, the petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional, 
or managerial, as required by section 101(a)(44)(A)(ii) of the Act. 
In this matter, the petitioner has not substantiated that the beneficiary manages or directs the enterprise or an 
essential function of the enterprise through the work of others. The record contains disparate evidence 
regarding the petitioner's number of employees and little evidence of their job duties and titles. 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 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The record is insufficient to establish that the 
beneficiary is relieved from performing primarily non-qualifying duties. 
On review, the petitioner has not presented sufficient evidence to establish that the beneficiary's duties for the 
petitioner comprise primarily executive or managerial duties. 
The second issue in this proceeding is whether the petitioner has established a qualifying relationship between 
the petitioner and the foreign entity. In order to qualifL for this visa classification, the petitioner must establish 
that a qualifying relationship exists between the United States and foreign entities in that the petitioning company 
is the same employer or an affiliate or subsidiary of the foreign entity. 
The regulation at 8 C.F.R. 5 204.5(j)(2) states in pertinent part: 
Aflliate 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. 
The record includes inconsistencies regarding the petitioner's qualifying relationship with the foreign entity. 
The petitioner claims that the foreign entity owns 100 percent of its authorized issued shares. The petitioner 
provides its stock certificate number 1 to demonstrate this fact. However, as the director observed, the 
petitioner's 2002 and 2003 Internal Revenue Service (IRS) Forms 1120, U.S. Corporate Income Tax Return, 
show that the beneficiary owns 100 percent of the petitioner. A corporation is a separate and distinct legal 
entity from its owners or stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of 
Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 63 1 
(Act. Assoc. Comm. 1980). The record also contains numerous wire transfers from individuals unrelated to 
the foreign entity transferring funds to the beneficiary's account. The wire transfers do not assist in 
establishing that the foreign entity actually purchased the petitioner's stock. 
On appeal, counsel acknowledged that the petitioner's corporate books and tax returns contained internal 
inconsistencies. Counsel offered a letter from the petitioner's accountant indicating that the original tax 
returns "mistakenly listed1' the beneficiary as the petitioner's owner. Counsel offered amended tax returns that 
eliminated the reference to the beneficiary's ownership of the petitioner. However, the record does not 
contain evidence that the amended returns were filed. 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)). Furthermore, evidence that the petitioner creates after CIS points out the deficiencies and 
inconsistencies in the petition will not be considered independent and objective evidence. Necessarily, 
independent and objective evidence would be evidence that is contemporaneous with the event to be proven 
and existent at the time of the director's notice. Finally, like a delayed birth certificate, the amended tax 
returns filed two to three years after the claimed transaction, if filed at all, raise serious questions regarding 
the truth of the facts asserted. CJ: Matter of Bueno, 21 I&N Dec. 1029, 1033 (BIA 1997); Matter of Ma, 20 
I&N Dec. 394 (BIA 199l)(discussing the evidentiary weight accorded to delayed birth certificates in 
immigrant visa proceedings). 
The petitioner has not substantiated its qualifying relationship with the foreign entity in this matter. Neither 
counsel nor the petitioner has provided sufficient evidence to verify a foreign entity, rather than the 
beneficiary, owns the petitioner. Neither counsel nor the petitioner has submitted evidence to sufficiently 
resolve inconsistencies in the record. Doubt cast on any aspect of the petitioner's proof may, of course, lead 
to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Mutter of Ho, 19 I&N Dec. at 591-92. Finally, the assertions of counsel without documentary 
evidence to support the claim will not satisfy the petitioner's burden of proof. The assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 1&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). 
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. fj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.