dismissed EB-1C Case: Grocery Store

(b)(6)
' I 
DATE: MAR 2 2 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Se.:urlty 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigranon 
Services 
PETITION: Immigrant Petition for Alien Worker as a Mul!inational Executive or Manager Pursuant to 
I 
Section203(b)(l )(C) of the Immigration and Nationality Act, 8 U.S. C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd the decision of the Administrative Appeals Office in your case. All of the documents I . 
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 dse must be made to that office. 
If you believe the AAO · inappropriately applied the law in leaching 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 
I 
accordance with the instructions on Form I-290B, Notice ofl Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F .R. § 1 03.5. Do not file any motion I . 
. directly with the AAO. Please be aware that 8 C.F.R. § 103.1(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscls.gov 
(b)(6)
Page2 
DISCUSSION: The preference visa petition was denied py the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Missouri company that is a grocery stere, and it seeks to employ the beneficiary 
I 
as its Vice-President. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(t)(C) ofthe Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multination~l executive or manager. 
The director denied the petition on December 14, 2011, Lncluding that: (1) the petitioner failed to 
establish that the petitioner has a qualifying relationship ~ith the beneficiary's foreign employer, (2) 
the petitioner failed to establish that the beneficiary's p~oposed employment with the U.S. entity 
would be within a qualifying managerial or executive lcapasity, and (3) the petitioner failed to 
establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity. 
On appea~ counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. 
Section 203(b) ofthe Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified 
I 
immigrants who are aliens described in any o£ the following subparagraphs (A) 
through (C): 
* * 
i (C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alie~ in the 3 years preceding 
the time of the alien's application for classification and admission into· 
the United States under this subparagrapl{, has been employed for at 
least 1 year by a firm or corporation or ot~er legal entity or an affiliate 
or subsidiary thereof and who seeks to entbr 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 limitmg thi1 provision to only those executives and 
managers who have previously worked for a firm, corpo¥tion 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 
r~uired for this classification. The prospective emplo~er in the United States must furnish a job 
offer in the form of a statement which indicates that the ~lien is to be employed in the United States 
(b)(6)
Page3 
in a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. 
The first issue that will be addressed in this proceeding is rhether the petitioner submitted sufficient 
evidence to establish that it has a qualifying relationshiP. with the beneficiary's foreign employer. 
I 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show 
I 
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 "pardnt and subsidiary" or as "affiliates." See 
generally § 203(b)(l)(C) of the Act, 8 U.S.C. § 1153~)(1)(C); see also 8 C.F.R. § 204.5(j)(2) 
(providing definitions of the terms "affiliate" and "subsidi~"). 
On appeal, counsel for the petitioner indicated that thb petitioner is owned 50 percent by the 
beneficiary's foreign employer, _ , arld thus the petitioner is a subsidiary ofthe 
foreign company. On appeal, counsel contends that 1 has owned 50 percent of 
the petitioner since 2004 and this ownership has never !changed. Counsel further states that the 
other 50 percent ownership has changed throughout the years. 
In reviewing the d~ector's decision, he laid out sevJal instances where the documentation is 
inconsistent with counsel's claims. The AAO will not r~eat each instance since the denial decision 
is part of the record. To name one example, during Ja USCIS site visit to the petitioner, the 
beneficiary stated that in 2009 the ownership changed aQd the beneficiary owned 50 percent ofthe 
petitioner and owned 25 percent and owned the remaining 
25 percent. How~ver, according to the appea~ counsel for the petitioner -asserts that 
- I 
=====:::!C still owns 50 percent of the oetitioner. In addition, the petitjoner's 2010 tax returns list 
and each ownuig 50 percent of the petitioner even though 
the petitioner asserted on several occasions that closed down and their 
ownership of the petitioner was sold. The numerous inconsistencies in the record make it 
impossible to determine that there is a qualifying ret~tionship between the petitioner and the 
beneficiary's foreign employer. 
I . 
As general evidence of a petitioner's claimed qualifying relationship, the articles of incorporation 
alone are not sufficient evidence to determine whethet a stockholder maintains ownership and 
control of a corporate entity. The stock certificates, J 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 shales issued, the exact number issued to the 
shareholder, and the subsequent percentage ownershlp and its effect on corporate control. 
Additionally, a petitioning company must disclose all a~eements relating to the voting of shares, 
the distribution of profit, the. management and directio'n of the subsidiary, and any other factor 
affecting actual control of the entity. See Matter of Siem~ns Medical Systems, Inc., supra. Without 
full disclosure of all relevant documents, USCIS is una~le to determine the elements of ownership 
and control. In the instant petition, the petitioner submits the stock ledger and 4 out of the 5 stock 
certificates but failed to submit any additional documendtion such as corporate bylaws, the minutes 
of relevant annual shareholder meetings and the stock cei.tificate registry. 
I 
(b)(6)
Page4 
Counsel claims that still owns 5j0 percent of the petitioner but does not 
provide sufficient evidence to corroborate this claim Wi~hout documentary eviqence 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 df 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). Because the petitioner haS not !established that a qualifying relationship 
exists between the petitioner and the beneficiary's previous foreign employer, this petition cannot 
be approved. 
The second issue that will be addressed in this proceeding calls for an analysis of the beneficiary's 
job duties. Specifically, the AAO will examine the repord to determine whether the petitioner 
submitted sufficient evidence to establish that the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(!A), provides: 
The term "managerial capacity" means an assignbent within an organization in which 
the employee primarily--
(i) 
(ii) 
(iii) 
(iv) 
manages the organization, or a department, subdivision, function, or 
component of the organization; I 
supervises and controls the work of other supervisory, professional, or 
managerial employees, or manage~ an essential function within the 
organization, or a department or suThdivision of the organization; 
I --
if another employee or other employees are directly supervised, has 
the authority to hire and fire or -r~commend those as well as other 
personnel actions (such as promotion and leave authorization), or if 
no other employee is directly supJrvised, functions at a senior level · 
within the organizational hierarch~ or with respect to the function 
managed; and 
exercises discretion over the day-to-day operations of the activity or 
function for which the employee hds authority. A first-line supervisor 
is not considered to be acting in I a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervis~ are professional. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(1B), provides: 
The term "executive capacity" means an assignmJnt within an organization in which the 
employee primarily-- I 
(b)(6)
PageS 
(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 supervisioJ or direction from higher level 
executives, the board of directors, dr stockholders of the organization . 
In examining the executive or managerial capacity ofthl beneficiary, USCIS will look first to the 
I 
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 .. ILtd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), ajj'd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). USCISreviews 
the totality of the record, which includes not only the bJneficiary's job description, but also takes 
into account the 
nature ofthe petitioner's business, the e~loyment and remuneration of employees, 
as well as the job descriptions of the beneficiary's subordinates, if any, and any other facts 
contributing to a c:Omplete understanding of a beneficiary'k actual role within a given entity. · 
The definitions of executive and managerial capacity hive two parts. First, the petitioner must 
show that the . beneficiary performs the high-level rJsponsibilities that are specified in the 
I 
definitions. Second, the petitioner must prove that the beneficiary primarily performs these 
specified responsibilities and does not spend a majority ~f his or her time on day-to-day functions. 
Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 199~ WL 144470 (9th Cir. July 30, 1991). 
An analysis of the record does not lead to an . affirmalive conclusion that the beneficiary was 
employed abroad or would be employed in the United States in a qualifying managerial or executive 
capacity. 
As noted in the director's denial decision, the petitioner submitted an organizational chart for the 
petitioner on April 11, 2011 that differs from the information US CIS received from the petitioner 
during an on-site visit. For example, the individuallistedlon the organizational chart as a controller 
is actually a warehouse worker; the produce manager is actually a driver; and the manager of 
quality assurance is actually a cashier. In addition, the tlirector noted that was 
signing several legal documents and representing herself b the petitioner's current acting president 
I 
even though it does not appear that she is currently employed by the petitioner. The fact that the 
petitioner may not have a controller, produce manager, thanager of quality assurance or president 
may significantly change the organizational structUre of ihe company and the duties performed by 
I 
the beneficiary. An employee who "primarily" performs the tasks necessary to produce a product or 
provide a service 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 MJtter of Church Scientology International, 
19 I & N Dec. 593,604 (Comm. 1988). j · 
(b)(6)
i .. . ' 
Page6 
On appeal, counsel for the petitioner submits the duties that will be performed by the beneficiary 
and states that the beneficiary will work in a managerial!capacity. Counsel for the petitioner does 
not provide any evidence to overcome the director's concerns that the job descriptions for the 
positions stated in the organizational chart are quite diffbrent from the job duties that are actually 
performed by these individuals as discovered in the site visit. It is incumbent
1 
upon the petitioner to 
resolve any inconsistencies in the record by independbnt objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not sufficb 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). 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifying m'anagerial or executive capacity. Based on 
these findings, the instant petition cannot be approved. 
Furthermore, an analysis of the record does not lead to an affirmative conclusion that the 
beneficiary was employed abroa~ in a qualifying managerial or executive capacity. 
According to the record, the beneficiary held the position of vice-president of 
and president of The petitioner did not clarify how the beneficiary 
divided his work time between two companies and the director requested further information 
regarding this issue. As noted in the director's denial de~ision, some documentation states that the 
beneficiary's wife ran the business of since the beneficiary was working 
full-time in Several document~ submitted by the petitioner state that the 
beneficiary's wife was only an accountant for and the documents do not 
state that she was essentially running the business. 
The director also noted that it appears that the beneficiary was supervising one manager only and 
may have had to perform non-qualifying duties in runnhlg a store such as working as the cashier, 
stocking shelves, inventory, customer service, and inveniory, when the one manager was off duty. 
On appeal, counsel for the petitioner simply states that t~e previous documentation establishes that 
the beneficiary was working in a managerial capacity. j However, counsel does . not provide any 
evidence to overcome the director's concerns. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the buraen of proof in these proceedings. Matter 
I . 
of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r 1972)). 
A review of the record and the adverse decision indicates that the director properly applied the 
statute and regulations to the petitioner's case. The ~etitioner's primary complaint is that the 
director denied the petition. · The petitioner insists that it provided sufficient documentation to 
establish eligibility. The director's decision clearly !outlined the missing information and 
documentation that the petitioner failed to submit, and the record has insufficient evidence to 
establish eligibility. As previously discussed, the petitioder has not met its burden of proof and the 
denial was the proper result under the regulations. Accbrdingly, the 
petitioner's claim is without 
mri. I 
(b)(6)
' . . . 
Page7 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit 
sought. See Matter of Brantigan~ 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a 
preponderance of the evidence that the beneficiary is fully qualified for the benefit sought. Matter 
of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matte-,!, of E-M-,20 I&N Dec. 77, 79-80 (Comm. 
1989); Matter of Sao Hoo, 11 I&N Dec. 151 (BIA 1965). 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
I 
applicant's claim is "probably true," where the determination of"truth" is made based on the factual 
circumstances of each individual case. Matter of E-M-, 2o I&N Dec. 77, 79-80 (Comm. 1989). In 
evaluating the evidence, Matter of E-M- also stated that "[t]ruth is to be determined not by the 
I 
quantity of evidence alone but by its quality." /d. Thus, in adjudicating the application pursuant to 
the preponderance of the evidence standard, the director !must examine each piece of evidence for 
. I . 
relevance, probative value, and credibility, both individually and within the context of the totality of 
. the evidence, to determine whether the fact to be proven iJ probably true. 
The submitted evidence does· not meet the preponderance of the evidence standard. As noted in the 
director's decision, the petitioner did not provide sufficient evidence to establish that the petitioner 
meets the regulatory requirements to establish eligibility fbr the benefit sought. . 
The petition will be denied for ~he above stated reasons, J
1
ith 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. Sectibn 291 ofthe Act, 8 U.S.C. § 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.