dismissed EB-1C Case: Hardwood Flooring Wholesale

DATE: NOV 1 5 2012 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citllcnship and Immigration Serv'lCCS 
Administrati\e Appeals Ortiee (AAO) 
20 Massachusens Avc. N.W .. MS 209{) 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
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: 
INSTRlXTIONS 
Enclosed please fmd 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 1-290B, Notice of Appeal or Motion. with a fee of $630. The 
specific requirements ror filing such a motion can be found at 8 C.F.R. § I en.s. Do not file any 1II0tion 
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 Illation seeks to reconsider or reopen. 
Thank you. 
i~~ 
Acting Chief. Administrative Appeals Office 
www.llscis.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, a Texas corporation engaged in the import and wholesale of hardwood veneer floors, 
seeks to employ the beneficiary as the vice president of its manufacturing department. Accordingly, 
the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.s.c. § 1153(b)(I)(C), as a 
multinational executive or manager. 
On August 18, 20 II, the director denied the petition based on the following grounds of ineligibility: 
(I) failure to establish that the beneficiary's proposed employment with the U.S. entity would be 
within a qualifying managerial or executive capacity; and, (2) failure to establish that the petitioner 
has a qualifying relationship with the beneficiary's foreign employer. 
On appeal. counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. 
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 I 
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)(I )(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 
Page 3 
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 calls 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 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 assignment within an organization in which the 
employee primaril y--
(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 
arc professional. 
Section IOI(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 
Page 6 
contractors and thus, are not listed in the quarterly wage reports; however, the petitioner failed to 
provide any evidence to corroborate the claim that the petitioner employed independent contractors, 
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 (Comm'r 
1998) (citing Matter (!f'Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)}. 
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 support 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 Ohaigbena, 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). 
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 managerial or executive capacity and the 
instant petition cannot be approved. 
The second issue is whether the petitioner submitted sufficient evidence to establish 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}(l}(C}; see also 8 C.F.R. § 204.5(j}(2} (providing definitions of the terms 
"affiliate" and "subsidiary"). The petitioner claims to have a qualifying relationship with Shanghai 
Lizhong Wood Industries Co. Ltd., a Chinese company. 
In the director's request for evidence, the petitioner requested additional evidence to establish that the 
beneficiary's foreign and the have a qualifying relationship. In response, the 
petitioner submitted According to the re~ 
it states that 39% of stock is owned by _ 
_ and 10% of capital stock is owned b petitioner also submitted Form 1120, 
U.S. Corporation Income Tax Return, for 2008 and 2009 that also indicate the same stock ownership 
as stated . noted in his decision that the petitioner failed to present 
evidence to majority shareholder of the petitioner, is also the majority 
shareholder of the foreign company to establish a qualifying relationship between the two companies. 
On appeal, the petitioner submits amended IRS Forms 1120 for 2008, 2009, and 2010, indicating that 
the foreign parent company is a 51 % owner of the petitioner. Counsel states that "due to a previous 
error in names, the Petitioner's tax preparer has now corrected responses in Schedules K and G." In a 
supporting . the petitioner, the president explained that the tax records were 
as the majority shareholder of the petitioner, and the reason for this 
as the shareholder with the highest capital contribution amount 
As general evidence of a petitioner's claimed qualifying relationship, tax documents alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. In addition, on appeal, the petitioner submits amended tax returns; however, there is 
no evidence that the amended returns were actually filed. The petitioner failed to submit any 
additional evidence of ownership such as the articles of incorporation, stock certificates, the corporate 
stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings to detennine 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. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm'r 1986). 
Without full disclosure of all relevant documents, USCIS is unable to determine the elements of 
ownership and control. 
In addition, the petitioner does not explain why the submitte:d 
the 39% of capital stock is owned 
owned 10% of capital stock is owned The report does not 
establish that the foreign company is the owner of the U.S. company as claimed by the petitioner. 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, 591-92 (B IA 1988). 
Counsel failed to submit any additional evidence to establish the qualifying relationship and 
overcome the director's concern. 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. at 165 (Comm'r 1998) (citing Matter of Treasure Craft of Calif"ornia, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). For this additional reason, the appeal will be dismissed. 
Beyond the decision of the director, the record lacks substantive job descriptions establishing what 
job duties the beneficiary performed during her employment abroad. Conclusory assertions regarding 
the beneficiary's employment capacity are not sufficient. Merely repeating the language of the 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avvr Associutes, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
Page 8 
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 sustained that burden. 
ORDER: The appeal is dismissed.