dismissed EB-1C Case: Garment Distribution

PUBLIC copy 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of tIomeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: JUL 1 7 2007 
WAC 06 007 5 1309 
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. 5 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. 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant visa petition to classify 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. 
5 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of California that 
claims to be the affiliate of the beneficiary's foreign employer. The petitioner is operating in the United States 
as a garment, handicraft and jewelry distributor, and seeks to employ the beneficiary as its president. 
The director denied the petition concluding that the petitioner had not established that the beneficiary would 
be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner challenges the director's finding, claiming that the beneficiary qualifies 
for the requested immigrant visa classification. 
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. 
The issue in this proceeding is whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 1 0 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 1 0 1 (a)(44)(A), provides: 
Page 3 
The term "managerial 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 managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, hnctions 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 10 1 (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- 
(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. 
The petitioner filed the Form 1-140 on September 30, 2005, noting that the beneficiary would occupy the 
position of president in the four-person company, which would include performing as a functional manager. 
In an appended letter, dated September 27, 2005, the petitioner noted the beneficiary's success in increasing 
the company's sales since its formation in 2000, and provided the following list of job duties associated with 
the beneficiary's proposed employment: 
1) Giving ultimate approval to the designs created by the Garments Supervisor and the 
Handicrafts Supervisor, who research market trends and create designs accordingly. 
2) Giving ultimate approval to the suppliers targeted by the Garments and Jewelry 
Supervisor and the Handicrafts Supervisor for the creation of products[.] 
3) Evaluating and giving ultimate approval to distribution strategies formulated by the 
Garments and Jewelry Supervisor and the Handicrafts Supervisor[.] 
4) Arranging with [the foreign entity] for financing as necessary[.] 
5) Developing strategic business plans for Petitioner[.] 
6) Setting realistic revenue goals for Petitioner[.] 
7) Supervising outside professionals to ensure that Petitioner meets statutory and 
regulatory requirements and employs financial strategies most beneficial to Petitioner[.] 
8) Presenting plans and obtaining board approval for capital investment as needed. 
9) Obtaining additional bank credit lines if required[.] 
10) Developing Petitioner's hiring policies and hiring and firing employees as necessary[.] 
1 I) Making decisions regarding the location of Petitioner's physical premises[.] 
In her capacity as President of Petitioner, [the] Beneficiary manages two essential functions 
of Petitioner's business: 1) the design of fabrics, handicrafts, and garments[,] and 2) their 
distribution. While she does not perform day-to-day, hands-on design or distribution 
duties, [the] Beneficiary's training in design and her intimate knowledge of [the foreign 
entity's] distinctive styles of design and distribution practices make her uniquely qualified 
to manage these functions. . . . 
The petitioner further noted the beneficiary's supervision of two full-time employees who occupied the 
positions of handicrafts supervisor and jewelry and garments supervisor, as well as one part-time employee, 
who, based on the attached organizational chart, appears to be employed as office support. The petitioner 
further indicated on a second organizational chart submitted with its response to the director's request for 
evidence that its office support employee worked eight hours a week during the month the instant petition was 
filed. Also, according to both the original and revised organizational charts offered by the petitioner, neither 
supervisor is supervising lower-level employees. The petitioner's quarterly wage report for the period ending 
September 30, 2005 confirmed the petitioner's employment of the full-time three-person staff and one part- 
time worker. 
On June 22, 2006, the director issued a request for evidence, directing the petitioner to submit the following 
documentation: (1) an organizational chart identifLing the names and job titles of its employees; (2) a brief 
description of the job duties performed by the beneficiary's subordinates and the approximate number of 
hours per week each employee works; (3) a description of the specific job duties performed by the beneficiary 
during a typical work day, and the percentage of time the beneficiary would devote to performing each task; 
and, (4) copies of the petitioner's Internal Revenue Service (IRS) Forms W-2 and Forms 1099 evidencing 
wages paid to its employees during the years 2003 through 2005. 
Counsel for the petitioner responded in a letter dated August 3 1, 2006, providing the following description of 
the daily job duties associated with the beneficiary's employment: 
[Ilnformal meetings with employees regarding the previous day's sales and perceived 
customer problems (25%); formal meeting with staff for resolution of distribution-related 
issues (10%); discussion of marketing and design issues with staff, especially [the 
handicrafts supervisor] (25%); meetings with current and potential clients (35%); meetings 
with shareholders and board members in India (5%). It should also be noted that [the] 
Beneficiary's duties also include domestic travel to explore business development 
opportunities for Petitioner. For instance, [the] Beneficiary has made multiple trips to Los 
Angeles, California and San Diego, California in the past year to meet various store and 
showroom owners about potential collaborations. 
With respect to the company's staffing levels, counsel submitted a revised organizational chart, in which the 
petitioner's handicrafts supervisor was identified as occupying the position of assistant manager, while the 
garments and jewelry supervisor was identified as occupying the position of supervisor. The individual 
originally noted as the company's office support was identified as the office managerlmarketing, and as 
overseeing a receptionist/office clerk. The AAO notes that the changes made to the petitioner's staffing levels 
since the date of filing will not be considered in the analysis of the instant matter. Rather, the AAO will 
consider the staffing levels represented by the petitioner on the date of filing. See Matter of Katigbak, 14 
I&N Dec. 45, 49 (Comm. 1971) (requiring that a petitioner establish eligibility at the time of filing; a petition 
cannot be approved at a future date after the petitioner or beneficiary becomes eligible under a new set of 
facts). While counsel also provided a brief description of each employee's job duties, it is unclear whether the 
descriptions represent the duties performed by the employees in their new positions, or whether the 
employees were performing these tasks at the time of filing. 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). 
In her November 7, 2006 decision, the director concluded that the petitioner had not established that the 
beneficiary would be employed in the United States in a primarily managerial or executive capacity. The 
director acknowledged the job duties provided for the beneficiary's employment as president, and noted the 
petitioner's staffing levels as being comprised of two full-time and two part-time employees. The director 
stated: "The staffing levels are insufficient to allow the beneficiary to function primarily within the 'executive' 
or 'managerial' capacities as defined [in $5 101(a)(44)(A) and (B) of the Act]." The director concluded that 
the subordinate employees would provide minimal assistance to the beneficiary in performing the daily 
functions of the United States business, and that the beneficiary would be primarily performing non-. 
managerial and non-executive tasks. Consequently, the director denied the petition. 
Counsel for the petitioner filed the instant appeal on December 8, 2006. In a December 6, 2006 appellate 
brief, counsel contends that the statement describing the beneficiary's job duties in conjunction with the 
allocation of the amount of time the beneficiary would spend performing each task undermine the director's 
finding that the beneficiary would not be primarily employed as a manager or executive. Counsel states that 
the offered evidence demonstrates that the beneficiary would spend her time performing two essential 
functions of the petitioner's business, and that "her schedule leaves no time for [the] Beneficiary to devote to 
the daily functions of the enterprise . . . ." Counsel contends that the beneficiary's two subordinate 
supervisors perform the duties associated with the functions managed by the beneficiary, and that the 
petitioner's office manager and office clerk perform the administrative and clerical functions. Counsel further 
emphasizes the petitioner's use of an accounting firm to perform its payroll and accounting functions, and 
stresses that technological advances also reduce the size of the staff necessary to perform the business' day-to- 
day functions. Counsel claims that in light of the tasks performed by the petitioner's employees and 
contracted workers, the company's reasonable needs would be met, thereby allowing the beneficiary to 
primarily manage the essential functions of the design and distribution of products. 
Page 6 
Upon review, the petitioner has not established that the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
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. 5 204.5Cj)(5). 
The petitioner has not offered clarification of the specific managerial or executive job duties to be performed 
by the beneficiary in the position of president. Based on the two job descriptions, the beneficiary would 
supervise subordinate employees, develop "strategic business plans," set revenue goals, obtain funding from 
the foreign entity and from financial institutions, hire and fire employees, determine the petitioner's business 
location, and meet with customers. Despite the director's request for specific managerial or executive job 
duties, the petitioner's response provided little more than the initially offered description of the beneficiary's 
role as president, except to indicate that the beneficiary would devote the largest amount of time to meeting 
with the company's current and potential clients, a task that is not considered to be managerial or executive in 
nature. See $5 lOl(a)(44)(A) and (B) of the Act. The petitioner's claims as to formal and informal 
"meetings" held by the beneficiary with subordinate employees and the foreign entity's board of directors and 
her simultaneous travel to determine business locations are not sufficient to clearly identifjl or describe the 
specific tasks to be performed by the beneficiary. The brief statements do not clarify whether the 
beneficiary's employment would be primarily managerial or executive in nature. 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 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. 1103, 1108 (E.D.N.Y. 1989), 
affd, 905 F.2d 41 (2d. Cir. 1990). 
With respect to the petitioner's staffing levels, the petitioner has not demonstrated that the beneficiary's 
subordinates fit within the statutory or regulatory guidelines of a professional, managerial or supervisory 
employee. Pursuant to section 10 1 (a)(44)(A) of the Act, "managerial capacity" includes the supervision and 
control "of other supervisory, professional, or managerial employees." As noted previously, the beneficiary's 
subordinates are not supervising any lower-level employees. Thus, the petitioner's claim that the beneficiary 
would supervise supervisory employees is undermined by the submitted organizational charts. 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. Cornm. 1972)). 
Further, in evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field of 
endeavor. Section 101 (a)(32) of the Act, 8 U.S.C. 5 1 101(a)(32), states that "[tlhe term profession shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary 
or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or 
learning, not merely skill, of an advanced type in a given field gained by a prolonged course of specialized 
instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular 
field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of ling, 13 I&N Dec. 35 (R.C. 
1968); Matter of Shin, 1 1 I&N Dec. 686 (D.D. 1966). 
Here, the petitioner has not clarified the job duties of either "supervisory" position in order to determine 
whether a baccalaureate degree is necessary to perform in each employee's respective position. The AAO 
recognizes the bachelor's degree earned by the petitioner's handicrafts supervisor in the field of artlgeneral 
studio practice. However, the possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, as the record does not contain reliable job descriptions of the tasks to be 
performed by the handicrafts and garments and jewelry supervisors, the AAO cannot determine whether the 
petitioner has established that a bachelor's degree is actually necessary to perform in these positions, and 
consequently, whether the beneficiary's subordinates may be deemed professionals. Again, 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. at 165. 
Nonetheless, the above finding is not conclusive. Pursuant to section 101(a)(44)(A) of the Act, a beneficiary 
may be deemed to be a manager based on her management of an essential function and functioning at the top 
of the petitioner's hierarchy. The term "function manager" applies generally when a beneficiary does not 
supervise or control the work of a subordinate staff but instead is primarily responsible for managing an 
"essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
5 1 10 1 (a)(44)(A)(ii). The term "essential function'' is not defined by statute or regulation. If a petitioner 
claims that the beneficiary is managing an essential function, the petitioner must furnish a written job offer 
that clearly describes the duties to be performed, i.e. identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to 
managing the essential function. 
 8 C.F.R. 5 204.50)(5). In addition, the petitioner's description of the 
beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the 
duties related to the function. 
Here, the petitioner claimed that the beneficiary would manage both the product design and distributions 
functions. The petitioner, however, has not accounted for the performance of its distributions function, which 
the petitioner identified as "essential." In fact, other than mentioning that the handicrafts and garments and 
jewelry supervisors would formulate distribution strategies, the petitioner has not addressed its distribution 
function with specificity, especially considering the petitioner itself claims to be functioning as a distributor. 
For example, the petitioner has not identified its distributors, explained its sales function, or identified any 
workers who would perform the non-qualifying duties related to its distributions and sales functions. The 
AAO notes, in particular, the petitioner's lease agreement, which designates a portion of its leased premises as 
retail space. Similarly, except for the brief representations that the supervisors would create designs and 
research market trends, the record is devoid of evidence as to who is actually creating the products distributed 
by the petitioner. The limited evidence does not establish that the beneficiary is managing the distribution 
and design functions of the petitioning entity. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. at 165. 
Moreover, the staffing levels do not corroborate the petitioner's claim that the beneficiary's subordinate 
employees would be performing the entire non-qualifling functions of the business. As required by section 
101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether an individual is acting 
in a managerial or executive capacity, CIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. 
Page 8 
At the time of filing, the petitioner was a five-year-old company that employed the beneficiary, two full-time 
supervisors, and one part-time office clerk. As noted, since three of the four employees have supervisory 
titles, there is limited evidence that the petitioner employed any subordinate staff members who would 
perform the actual day-to-day, non-managerial operations of the company. The beneficiary's job description 
suggests that the handicrafts and garments and jewelry supervisors would research market trends, create 
designs, and formulate distribution strategies, while the part-time office clerk would perform administrative 
and clerical work. These brief representations do not demonstrate that the petitioner's reasonable needs, 
which include the design, creation, distribution, inventory, and sale of jewelry, garments, and handicrafts, as 
well as any administrative and clerical functions not performed by the part-time office clerk, would be meet 
through the employment of two full-time subordinate employees. The record does not demonstrate that the 
staffing levels maintained by the petitioner at the time of filing would be sufficient to support the beneficiary 
in a primarily managerial or executive capacity. 
Counsel contends on appeal that taken as a whole, the previously offered job descriptions, the petitioner's 
support staff, including contracted workers, and "technological" advances demonstrate that the beneficiary 
would be performing in a primarily managerial or executive capacity. Counsel's claims, however, are not 
supported by independent evidence in the record. The AAO acknowledges the petitioner's use of an outside 
accountant for its accounting and payroll functions. However, the petitioner has not accounted for the 
performance of the remaining non-qualifying functions detailed previously. Moreover, counsel's blanket 
references to "technological advancements," without an explanation as to what advances he is referring or 
how they impact the performance of the petitioner's non-qualifying functions are not sufficient to establish the 
beneficiary's purported managerial or executive authority. 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. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Based on the foregoing discussion, the petitioner has not demonstrated that the beneficiary would be 
employed by the United States entity in a primarily managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
The AAO recognizes that Citizenship and Immigration Services (CIS) previously approved four L-1A 
nonimmigrant visa petitions filed by the petitioner on behalf of the beneficiary. It should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $5 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. 5 1101(a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
CJ: $5 204 and 214 of the Act, 8 U.S.C. $5 1 154 and 1 184; see also 5 3 16 of the Act, 8 U.S.C. $ 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. 5 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
Page 9 
L- 1 A petition's validity). Because CIS spends less time reviewing L-1 petitions than Form 1-140 immigrant 
petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d 25 (D.D.C. 2003). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. See 8 C.F.R. 5 103.8(d). The prior 
nonimmigrant approvals do not preclude CIS from denying an extension petition. See e.g. Texas ABM Univ. 
v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant 
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same 
beneficiary. CIS denies many I- 140 petitions after approving prior nonimmigrant I- 129 L- 1 petitions. See, 
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 
22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. at 1 103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of 
required evidence in the present record, the AAO finds that the director was justified in departing from the 
previous nonimmigrant approvals by denying the present immigrant petition. The director is instructed to 
review the previous nonimmigrant approval for revocation pursuant to 8 C.F.R. 5 2 14.2(1)(9)(iii). 
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. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.