dismissed EB-1C Case: Household Products

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invasion ofpersona' privacy 
A SERVICE 
LIN 07 252 53185 
IN RE: 
U.S. Department of Ilon~eland Security 
U. S. Citizenship and Imm~grat~on Services 
Office  administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
CENTER Date: 
: APR 
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. 8 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by 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 California corporation engaged in the import, distribution, wholesale, and retail of 
various household products. The petitioner seeks to employ the beneficiary as its 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 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial 
or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief claiming that the 
beneficiary is both a function manager and an executive in his position with the U.S. entity. He also 
claims that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
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 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 Fonn 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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he 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. 5 1 101 (a)(44)(A), provides: 
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) 
 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. 
 1 101(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 support of the Form 1-140, the petitioner submitted a letter dated May 14, 2004, which was 
initially submitted in support of a previously filed Form 1-129 petition seeking to classify the 
beneficiary as an L-1A nonimmigrant intracompany transferee. The letter included the following 
description of the beneficiary's employment abroad: 
[The beneficiary's] duties includeEd] planning business objectives and developing and 
establishing organizational policies to coordinate new development efforts and 
operations; he [was] responsible for the import of new products and establishing 
business relations and agreement[s] with foreign suppliers; he support[ed] the 
planning and development of administrative requirements, distribution and public 
relations policies designed to improve [the] company's image and relations with 
customers, suppliers, employees and distributors. He review[ed] activity reports and 
financial statements to determine progress and status. He direct[ed] the human 
resources needs and ha[d] authority over the management. He also review[ed] 
objectives and plans in accordance with conditions of financial programs to approve 
funding for new or continuing operations to maximize returns on investments and 
increase productivity. 
With regard to the beneficiary's proposed employment with the U.S. entity, the petitioner claimed 
that the beneficiary would be employed in a managerial capacity. The petitioner provided the 
following list of the beneficiary's proposed duties and responsibilities with the U.S. entity: 
Direct the import process, procedures and product selection; 
Plan business objectives and develop organizational policies to coordinate new 
development efforts and operations; 
Hire personnel to support business operations and structure [the] organization; 
Establish guidelines for the negotiation of potential business ventures, review 
activity reports and financial statements to determine progress and status in 
attaining objectives; 
Establish responsibilities and procedures to attain objectives; 
Review market data to define needs of clients and provide input and guidance to 
resellers and personnel; 
Evaluate the performance of our business efforts in accordance with established 
markets and objectives of [the] company; 
Develop sales representative network and customer base in [the] U.S.; [sic] 
The petitioner also provided organizational charts depicting each entity's organizational hierarchy. 
The foreign entity's chart depicts a president at the top of the hierarchy with two immediate 
subordinates, including a general manager and a vice president, the latter of which was occupied by 
the beneficiary. The lowest tier of the hierarchy includes two warehouse employees, an office clerk, 
a business assistant, and a sales person, all shown as being subordinate to the position of general 
manager. The beneficiary's position of vice president is shown as having no subordinates. 
The U.S. entity's organizational chart shows a three-tiered hierarchy with the beneficiary in the 
position of president at the highest level within the organization. The beneficiary is depicted as 
having three subordinates, including a purchasing and accounting manager, a sales manager, and a 
warehouse manager. The latter position is shown as overseeing one warehouse employee, while the 
two remaining managers are shown as overseeing independent contractors, including three sales 
representatives supervised by the sales manager, and a purchasing assistant supervised by the 
purchasing and accounting manager. 
On September 21, 2007, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide complete and detailed descriptions of the specific job duties that the beneficiary 
performed as part of his foreign employment and those he would perform during his proposed 
employment with the U.S. entity. 
In response, counsel provided a letter dated October 31, 2007, listing the documents submitted to 
address the WE. The submissions included two separate percentage breakdowns briefly listing the 
beneficiary's job responsibilities during his employment abroad and his proposed employment with 
the U.S. entity. As both breakdowns were included in the director's decision, the AAO need not 
restate them here. 
With regard to the beneficiary's subordinates abroad, the petitioner claimed that the beneficiary 
supervised the work of a general manager. With regard to the beneficiary's U.S. employment, the 
petitioner claimed that the beneficiary would supervise a sales manager, an operation manager, an 
office manager, a purchasing and accounting manager, and a warehouse manager. The petitioner 
also provided an updated organizational chart illustrating its personnel structure effective as of 
September 24,2007. 
On November 23, 2007, the director issued a decision denying the petition. In his analysis, the 
director noted that while the petitioner's description of the beneficiary's foreign employment 
indicated that the beneficiary supervised the general manager, the organizational chart that was 
submitted to illustrate the hierarchy of the foreign entity where the employment took place depicted 
the beneficiary's position of vice president and the position of general manager as being at the same 
level within the foreign entity's hierarchy. The director further noted that the general manager was 
shown as supervising the remainder of the company's employees with the beneficiary having no 
subordinates at all. 
Additionally, the director discussed the job descriptions provided by the petitioner, finding that 
neither percentage breakdown provided insight into the beneficiary's specific day-to-day job duties. 
On appeal, counsel asserts that the beneficiary's proposed position with the U.S. entity is that of a 
function manager and an executive. In support of this assertion, counsel provides a flow chart in an 
effort to further explain the beneficiary's role within the U.S. entity. The chart includes a series of 
six successive steps: 1) researching U.S. market trends and receiving orders; 2) purchasing, which 
includes monitoring the outsourced manufacturer and supplier; 3) monitoring the import and export 
of goods if the manufacturer is located overseas; 4) receiving products; 5) distributing the products 
to customers; and 6) providing after-sale services. 
While the above flow chart explains how the petitioner functions, it does little to explain the 
beneficiary's role in ensuring perpetual continuity of the process described above and what actual job 
duties he would perform on a daily basis to meet the responsibilities of that role. In other words, the 
petitioner failed to clarify whether the beneficiary will actually carry out the underlying tasks 
associated with any of the above steps, including researching U.S. market trends and receiving 
orders, purchasing the products, monitoring their delivery, receiving and delivering the products, and 
ultimately providing customer service after the products are sold. If the beneficiary's primary role 
will be to actually carry out the duties associated with any of the above, the AAO cannot conclude 
that the beneficiary will primarily perform duties of a qualifying nature. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 
lOl(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988). 
Counsel further contends that the beneficiary is a function manager, whose responsibilities include 
leadership, financial management, policy making, setting company goals, and controlling the quality 
and safety of the company's products. However, based on the list of vague job responsibilities 
counsel provided, it is not apparent how the term function manager applies to the beneficiary's 
prospective employment. 
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 1 101 (a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary will manage 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 will manage the 
function rather than perform the duties related to the function. As previously stated, an employee 
who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. See sections lOl(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive 
duties); see also Matter of Church Scientology International, 19 I&N Dec. at 604. In this matter, 
counsel provides examples of the beneficiary's input to improve the safety and quality of various 
products sold by the petitioner. However, this information still falls far short of describing the 
beneficiary's day-to-day job duties. In other words, even if the AAO were to accept improvement of 
safety and quality as the essential function the beneficiary would manage, the petitioner must still 
provide a detailed list of duties to establish how exactly the beneficiary would manage this function. 
Moreover, neither of the petitioner's organizational charts supports the claim that the beneficiary 
would manage an essential function, as both charts depict the beneficiary as one who would oversee 
subordinate managerial positions. 
 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). Although counsel also asserts that the beneficiary would be employed in an executive 
capacity, the only information submitted to support this claim is paraphrased portions of the 
statutory definition. 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), aff d, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at "5 
(S.D.N.Y.). 
That being said, despite the petitioner's submission of organizational charts that illustrate the 
beneficiary as the head of the organization overseeing a managerial subordinate staff, the regulations 
require a detailed description of the beneficiary's daily job duties. See 8 C.F.R. $ 204.5(j)(5). 
Furthermore, the organizational hierarchy that was illustrated in the original chart must be 
substantiated. 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)). In the present matter, the 2007 third quarterly wage report during which the Form I- 140 was 
filed shows that the petitioner had only four employees at the time of filing and that the fifth 
employee was not hired until September 2007. A petitioner must establish eligibility at the time of 
filing; a petition cannot be approved at a hture date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). The 
petitioner has provided no information as to which four employees it had working at the time the 
Form 1-140 was filed, nor is there any explanation as to who was providing the services of the fifth 
employee prior to that employee's date of hire. While the petitioner indicated that four out of five 
employees at the lowest tier within its hierarchy were employed on a contractual basis, the 2007 
Form 1099s do not establish that such employees were working for the petitioner as of the date the 
petition was filed and no employment contracts were submitted to establish the specific dates of 
employment of the contracted workers. It is further noted that the petitioner provided Form 1099s 
for individuals who were not listed in its organizational chart. Therefore, the AAO is unable to 
determine the connection between the petitioner and several individuals to whom the petitioner 
issued Form 1099s in 2007. 
Regardless, a petition cannot be approved without a clear delineation of the job duties to be 
performed as part of the U.S. job assignment. In the present matter, the petitioner has failed to 
provide this crucial information despite the director's attempt to illicit it through the express 
instructions in the RFE. 
With regard to the beneficiary's employment abroad, the director properly concluded that the record 
is equally lacking in a detailed description of the specific job duties the beneficiary perfonned. 
Although counsel provided an explanation to resolve the discrepancy pointed out by the director 
with regard to the beneficiary's job description abroad and the foreign entity's organizational chart, 
the record has not been supplemented with additional information regarding the beneficiary's job 
duties. Thus, the record fails to establish what job duties the beneficiary performed on a daily basis 
and whether the primary portion of his time was devoted to tasks within a qualifying managerial or 
executive capacity. 
Accordingly, due to the petitioner's failure to provide necessary information about the beneficiary's 
foreign and proposed job duties, the AAO cannot conclude that the beneficiary was employed 
abroad and would be employed in the United States in a qualifying managerial or executive capacity. 
Furthermore, the AAO finds that there is at least one additional ground of ineligibility that was not 
previously addressed in the director's decision. Namely, by virtue of the beneficiary's claimed 
ownership of the U.S. petitioner, it appears more likely than not that the beneficiary will not be an 
"employee" of the United States operation. As explained in 8 C.F.R. 4 204.5(j)(5), the petitioner 
must establish that the beneficiary will be "employed" in an executive or managerial capacity. It is 
noted that "employer," "employee," and "employed" are not specifically defined for purposes of the Act 
even though these terms are used repeatedly in the context of addressing the multinational executive and 
managerial immigrant classification. Section 203(b)(l)(C), 8 U.S.C. 5 1153(b)(l)(C), requires 
beneficiaries to have been "employed" abroad and to render services to the same "employer" in the 
United States. Further, section 101 (a)(44), 8 U.S.C. 5 1 101 (a)(44), defines both managerial and 
executive capacity as an assignment within an organization in which an "employee" performs certain 
enumerated qualif*ng duties. Finally, the specific definition of "managerial capacity" in section 
10 1 (a)(44)(A), 8 U.S.C. 5 1 10 1 (a)(44)(A), refers repeatedly to the supervision and control of other 
"employees." Neither the legacy Immigration and Naturalization Service nor CIS has defined the 
terms "employee," "employer," or "employed" by regulation for purposes of the multinational 
executive and managerial immigration classification. See, e.g., 8 C.F.R. $ 204.5 and 8 C.F.R. 5 
214.2(1). Therefore, for purposes of this immigrant classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is'part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 4 220(2) (1 95 8); Clackamas 
Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at 8 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
a 
 Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which the petitioner claims is ultimately owned and controlled 
by the beneficiary, who purports to assume a role as the petitioner's principal. Although the 
petitioner indicates that the beneficiary's wife owns 30% of the U.S. entity, it does not appear that 
her ownership interest is sufficient to establish that she is in a position to exercise any control over 
the work to be performed by the beneficiary. As such, it appears the beneficiary is the employee for 
all practical purposes. He will control the organization; set the rules governing his work; and share 
in all profits and losses. 
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), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
ground of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
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. 9 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.