dismissed EB-1C Case: Giftware And Crafts

identifying data del& r0 
prevent clearly unwd 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
WAC 05 100 51857 
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 1153(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. 
* -- -7 
R6bert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation engaged in the business of sales and distribution of giftware and 
crafts. 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 U.S.C. 5 1153(b)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner failed to establish that the beneficiary would be employed in a managerial or 
executive capacity and denied the petition. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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)(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 in a managerial or executive 
capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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. 5 1 lOl(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 a letter dated February 17,2005, the petitioner provided a description of the beneficiary's proposed position 
in the United States. The petitioner provided a more detailed description of the position in its response to the 
director's request for additional evidence (RFE), which the director issued on June 14, 2005. As the director 
has incorporated both descriptions in the denial, they need not be repeated in this decision. 
Additionally, in support of the Form 1-140, the petitioner provided its organizational chart, which illustrated 
the beneficiary at the top of the petitioner's hierarchy. The chart shows that the beneficiary's direct 
subordinates include a vice president, an accountant in the finance department, and an office manager in the 
administration department. The vice president is shown as having three direct subordinates-a sales person, 
an employee in charge of products, and a customer support employee. Each of those employees is shown as 
having an assistant. 
Page 4 
Aside from a more detailed description of the beneficiary's position, the petitioner's response to the RFE 
included a separate employee list, naming each of the individuals listed in the original organizational chart 
and briefly describing each position, as well as the petitioner's 2005 first quarterly wage report naming the 
employees the petitioner employed between January and March of 2005. The petitioner noted in the 
employee list that the individual named as the company's vice president would be on the payroll soon and 
submitted an approval notice showing that the vice president's L-1A visa became valid on April 15, 2005, 
nearly two months after the Form 1-140 was filed. The petitioner also noted that the warehouse employee 
listed in the original organizational chart has been replaced by hose wages for the first quarter 
of 2005 and the prior quarter were $800 per quarter. 
On October 14, 2005, the director denied the petition, noting, in part, that the petitioner's lower level 
managers "cannot be considered 'managers,' [sic] for immigration purposes, because they are not managing 
professional employees." (Emphasis added in original). However, the definition of managerial capacity 
contained in section lOl(a)(44)(A) of the Act applies to the beneficiary of the present petition and not to his 
subordinate employees. Based on the director's reasoning, no beneficiary would qualify as a manager if the 
organization's ultimate, lower tier subordinate was not a professional, managerial, or supervisory employee, 
regardless of how many layers of management lay between the beneficiary and the non-professional 
employee. According to the director, each tier of management would be disqualified as the first-line 
supervisor of non-professional staff. As the director's comment suggests an inaccurate interpretation of the 
law, it is hereby withdrawn. 
Notwithstanding the director's error, he properly concluded that the petitioner failed to establish that the 
beneficiary would primarily perform qualifying tasks. The director reviewed the petitioner's organizational 
hierarchy and relevant wage report and noted that the products employee, the product assistant, the customer 
service assistant, and the accountant received wages commensurate with those of part-time workers while two 
other employees, i.e., the vice president and warehouse employee, were not included in the wage report at all. 
On appeal, counsel challenges the director's focus on the size of the petitioner's staff and states that the 
director failed to consider the petitioner's reasonable needs in light of its overall purpose and stage of 
development. However, the AAO notes that the petitioner's needs will not override its statutory burden of 
having to establish that the beneficiary would primarily perform managerial or executive tasks. See 
$3 101(a)(44)(A) and (B) of the Act. Furthermore, with regard to the director's focus on the petitioner's 
staffing structure, while counsel is correct that the director may not base his decision solely on the size of the 
petitioner's support staff, the director can and should consider this factor for the purpose of determining who 
within the organization would perform the nonqualifying operational tasks on a daily basis. Assuming that 
the petitioner is able to provide a job description that suggests that the beneficiary's proposed position would 
primarily consist of qualifying tasks, the job description must be supported by the evidence of record. 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 (Cornm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 
In the instant matter, the petitioner's ability to relieve the beneficiary from having to primarily engage in 
nonqualifying tasks is severely undermined by the petitioner's lack of a sufficient support staff. Counsel 
disputes this assertion, explaining that the vice president's name did not appear on the relevant wage report 
because he was not scheduled to start working until June 2005. However, a petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary 
Page 5 
becomes eligible und 
 set of facts. Matter of Katigbak, 14 I&N Dec. 45,49 (Cornm. 1971). Counsel 
further states that Mr. 
 , the warehouse employee, was not included in the wage report because he left 
the petitioner's employ 4 a ter t e Form 1-140 was 
 the petition was filed at the end of February 
of 2005. Thus, based on counsel's explanation Mr. 
 hould have been included in the fourth quarterly 
wage report for 2004 and in the first quarterly wage report for 2005 since he was still purportedly employed 
by the petitioner during January and part of February of 2005. Counsel's claim is entirely unsubstantiated by 
the documentary evidence submitted. Moreover, the petitioner indicated in its employee list that Yunyi 
as hired as ~r. replacement. However, M= name is included in the petitioner's 
wage report for 2004 and the first quarterly wage report for 2005. Thus, it is unclear why Mr. 
as left out of the petitioner's organizational chart, which was submitted with the Form 1-140. It is 
incum ent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
b 
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, 591-92 (BIA 
1988). 
Notwithstanding the confusion regarding the petitioner's warehouse employee, the record shows that at the 
time the Form 1-140 was filed the petitioner had a total of four full-time employees-the beneficiary, his 
office manager, the customer support assistant, and a sales person. The remaining individuals included in the 
petitioner's employee list were employed on a part-time basis, with the exclusion of the vice president, who 
was not employed at all during the relevant time period. Although counsel claims that the accountant and 
customer support personnel were employed on a full-time basis as a condition of the parent entity's purchase 
of the petitioning entity despite their respective part-time wages, the record lacks any contemporaneous 
evidence to corroborate counsel's claim. The AAO notes that the unsupported statements of counsel on 
appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. 
Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BLA 1980). 
Additionally, counsel's assertion that an employee receiving $3,000 per quarter is a full-time employee has no 
merit. Based on California's minimum wage pay of $6.75 per hour, an employee working full-time, or 40 
hours per week, during the months of January, February, and March of 2005 should have earned 
approximately $3,350 even when taking into account the federal holidays that fall within that time period. 
Any employee earning less than that amount cannot be deemed a full-time employee. 
Furthermore, while the record suggests that the petitioner may have retained sales representatives to assist on 
a contractual basis, the only supporting documentation submitted consists of the front copies of checks, most 
of which do not contain the month and year of payment and none of which can be verified as having been 
cashed, as there are no photocopies of the backs of the checks. 
Finally, counsel points to the director's error on the second page of the denial, claiming that the director's 
reference to the wrong petitioner and the wrong position title for the beneficiary suggest that the denial was 
based on a record of proceeding that does not pertain to the petitioner in the instant matter. However, a 
thorough review of the director's decision suggests that the error was typographical and not germane to the 
director's decision, which clearly referenced facts specific to the petitioner's record of proceeding. Thus, 
while the AAO acknowledges the director's erroneous statement, it cannot conclude that the denial was based 
on a record of proceeding other than the one belonging to the petitioner. 
On review, the record illustrates a beneficiary with a heightened degree of discretionary authority 
accompanied by a top-level position within the petitioner's organizational hierarchy. However, given the 
Page 6 
petitioner's organizational complexity during the relevant time period, the AAO cannot conclude that the 
beneficiary would have been relieved from performing nonqualifying duties. While the record shows that the 
petitioner has hired Spoor & Associates to contribute to the petitioner's sales force, this event did not occur 
until after the Form 1-140 was filed and, therefore, cannot be considered in determining the petitioner's 
eligibility in the present matter. See Matter of Katigbak, 14 I&N Dec. 49. Based on the record as presently 
constituted, the AAO finds that the petitioner has failed to demonstrate that it had the ability to employ the 
beneficiary in a primarily managerial or executive capacity at the time the Form 1-140 was filed. For this 
reason, the petition may not be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 5.3d 683 
(9th Cir. 2003). 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.