dismissed EB-1C Case: Import And Export

1 I 
U.S. Department of Homeland Security 
20 Mass. Ave., N W.. IPm. A3042 
Washington, DC 20529 
-7434 &-+ 
I U.S. Citizenship 
and Immigration 
,* i 
- - * + A "7/ 7~l~Jk 
FILE: Offile: CALliORNIA SERVICE CENTER ate: , 5, L&&W 
PETITION: Immigrant Petition for Alien a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the I and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: ~ 
This is the decision of the Administrative Office in your case. All documents have been returned to 
the office that originally decided your inquiry must be made to that office. 
qbbert P. Wiemann, ~irectoi 
Appeals Office 
DISCUSSION: The preference visa was approved by the Director, California Service Center, on 
January 23, 1997. The director subsequently issued a notice of intent to revoke on October 14, 2004. After 
providing the petitioner with an opportunityto rebut the proposed revocation, which the petitioner submitted 
in a letter dated November 5, 2004, the direqtor revoked the approval of the immigrant petition on November 
22,2004. The matter is now before the Ad4inistrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed this immigrant petition Seeking to employ the beneficiary as its president. Accordingly, 
the petitioner endeavors to classify the as an employment-based multinational executive or 
manager pursuant to section 203(b)(l)(C) the Immigration and Nationality Act (the Act), 8 U.S.C. 
1153(b)(l)(C). The petitioner claims is a branch of the foreign employer, located in People's 
Republic of China, and is operating in the States as an import and export company. 
On November 22, 2004 the director revoked, the approval, concluding that the petitioner had not established 
that: (1) it had been doing business in the united States, rather than acting as a "mere agent" of the foreign 
entity; (2) the beneficiary was employed in tke United States in a primarily managerial or executive capacity; 
(3) the beneficiary was employed abroad for at least one year in a primarily managerial or executive capacity; 
(4) a qualifying relationship exists between tbe petitioning organization and the foreign entity; or (5 j as cf the 
priority date, the petitioner had the ability to bay the beneficiary the proffered annual salary of $24,000. 
In an appeal filed of filing the petition, 
the petitioner submitted documentatio~i that it is engaged in the regular, systematic znd 
continuous provision of goods or States; (2) the beneficiary is employed in a 
managerial or executive capacity, the description of his job duties and the 
petitioner's organizational structure; Immigration Services' (CIS) deteminaticln 
that the beneficiary was not in a managerial or executive capacib "is 
logically flawed and purely that CIS "has no statutory basis" to 
revoke the instant petition. 6, 2005, counsel also claims that 
when considered in its for the record demonstrates 
that the petitioning 
Section 203(b) of the Act states, ir pertinent hart: 
(1) Priority Workers. -- Visas shall he made available . . . to qualified immigrants who 
are aliens described in any of the subparagraphs (A) through (C): 
Managels. - An alien is 
the 3 years preceding the time 
admission into the United 
for at least 1 year by a 
firm or ccrporarinn or otha entity or an affiliate or subsidiary thereof 
to continue to render 
servjces to the same a silbsidiary or affiliate thereof in a 
capacity that is 
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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 td work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petitjon 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 his 
classification. The prospective employer ip 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. 8 C.F.R. 
5 204.5('j)(5). 
Section 205 of the Act, 8 U.S.C. 1155 (2005$, states: "The Secretary of Homeland Security may, at any time, 
for what he deems to be good and sufficient eause, revoke the approval of any petition approved by him under 
section 1154 of this title. Such revocation shdl be effective as of the date of approval of any such petition." 
Regarding "good and sufficient cause" and the revocation of an immigrant petition under section 205 of the 
Act, the Board of Immigration Appeals (BIA) has stated: 
In Matter of Estinze, . . . this Board slated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho. 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 19871). 
The first issue in this proceeding is whether the petitioner established that it had the ability to pay the 
proffered wage, as of the date that the petition was filed, in accordance with 8 C.F.R. $ 204.5(g)(2). 
Both in response to the director's Nctice of Intent to Revoke and on appeal, counsel does not address the issue 
cf whether, at the time the petitioner's priority date was established, the petitioner had the financial resources 
to pay the proffered wage of $646.15 per week. The petitioner has conceded the issue. 
By itself, the director's realization that a petition was incorrectiy approved is good and sufficient cause for the 
issuance of a notice of intent to revoke an inmigrant petition. Matter of Ho, 19 I&N Dec. at 590. Generally, 
the director's decision to revoke the approval of a petition will be affirmed where a petitioner fails to offer a 
timely explanation or rebuttal to a properly i ,sued notice of intention to revoke. See Matter ojdrias. 19 ISZN 
Dec. 568, 569 (BIA 1988). Accordingly. for this reason alone, the appeal must be dismissed and the petition 
msy not be approved. 1 
I 
Second, the HA0 will address the issue of Abether the petitioning organization has been "doing business" in 
the United States as required in the ;egulatiod at S C.F.R. S 204.50)(3)(i). 
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ion at 8 C.F.R. fj 204.5Cj)(2) defines "doing business" as: 
[Tlhe regular, systematic, and confinuous provision of goods andlor services by a firm, 
corporation, or other entity and doesnot include the mere presence of an agent or office. 
The petitioner filed the instant petition op January 13, 1997, stating in an accompanying letter, dated 
December 23, 1996, that it is engaged in tde import and export of light industrial products. The petitioner 
submitted its articles of incorporation, dated September 16, 1994, indicating its establishment as a California 
corporation, and provided its Internal Rev nue Service (IRS) Form 1120, U.S. Corporation Income Tax i Return, for the year 1995 reflecting a grosg profit of approximately $101,000. In addition, the petitioner 
provided telephone records from May The petitioner also submitted a lease 
identifying office premises located at in Downey, California, and included 
photographs of what is supposedly petitioner's business premises. The 
photographs, however, do not contain an iddress or any identification of the exact location. Lastly, the 
petitioner provided invoices for goods sold bn April 28, 1996, May 30, 1996, and October 28, 1996, a US. 
Customs Form 4333A identifying customs entries scheduled to be liquidated, a Form 7525-V, Shipperrs 
Export Declaration, and offer sheets from thd petitioner to prospective customers. 
The director issued a Notice of Intent to Rev pancy in the location 
of the petitioning organization, and noting is not a commercial 
place of business as claimed by the petitioned, but rzther a residential duplex.' The director also noted that the 
petitioner failed to submit comprehensive do umentation in support of its reguIar, systematic, and continuous I. provision of goods andlor services. The irector stated that "the petitioner has not been doing business .1 legitimately in the United States as the reqord indicates that the petitioner was located at a . . . private 
residelice." The director concluded "[tlhe f+ that the petitioner was operating from a . . . private residence 
indicates that the petitioner was acting as a @ere agent in the United States," and was not doing business "as 
envisioned" by the regulation at 8 C.F.R. 5 204.5(i)(2). The director gave the petitioner proper notice of the 
opportunity to submit additional evidence in kupport of its United States operations. 
Cotnsel responded in a letter dated Novem er 5, 2004, claiming that since the company's establishment in 
1994, the petitioner "has been providing th ! regular and continuous goods and services" as an import and 
exporc colnpany. Counsel noted the mentioned evidence previously submitted by the petitioner in 
supp~rt of this assertion, and documentation. including the petitioner's corporate inconie 
tax return for the years 2000 lease agreement for storage space for the term beginning on 
May 1. 2004 through insurance policy, a product catalog, and sample 
products 2nd trading in the petitioner's address, counsel stated: 
The question of Notice of Z~tent to Revoke has been 
addressed in 8, 1998 to your office in 
- -- 
' The director raised by the petitioner in a separate 
been made part of the instant record. 
petiticn to clzssify the beneficiary as an nonimmigrant intracompany transferee. In the iilonimmigract 
petition, the petitioner identified its as "5374 Atlantic Avenue, Long Beach, California," yet 
a CIS m-site investigatior~ a hotel. This documentation, however. has not 
Page 5 I I 
response to the Action - Intent to Deny. The letter clearly explains why the petitioner was 
located at the Flamingo Inn Motel. As per the petitioner, the company is 'one of the 
managing partners of the Motel' and they are responsible for 'daily business management of 
the motel.' On the other hand, sinae the company exclusively does wholesales rather than 
retail and they never accept walk-id customers, they did not post a sign of the company's 
name on the door. The on-site investigation mistakenly concluded that 'the petitioner was not 
conducting business at the facility.' 
The director subsequently determined in his November 22, 2004 Notice of Revocation that the petitioner did 
not demonstrate that it was doing business at its original address at the time of filing the petition in January 
1997. The director addressed the new evidence submitted by che petitioner regarding an "Upland, California" 
business location, and stated that the petitioner would nQt be approved under a new set of facts. The director 
concluded that "the petition was patently unapprovable [sic] at the time of filing, that is, January 13, 1997." 
Counsel filed an appeal on December 10, 2004. In a brief submitted on January 6, 2005, counsel claims that 
the director erroneously determined the existence of inconsistencies in the evidence related to the petitioner's 
location and address. -counsel explains that was the original 
location of the petitioning organization when it benan oaerations in Seatember 1994. Counsel states that the 
petitioner subsequently moved its office to hich is the site of the 
Flamingo Inn Motel, when it became a partner of the motel. Without submitting evidence in support of the 
claim, counsel repeats the assertions that were made in response to the Notice of lntent to Revoke. Counsel 
states that because CIS previously accepted this explanation and granted the 1-140 petition, "[ilt is 
inappropriate to bring up this issue again six years later only for the purpose of intent to revoke the petition." 
Counsel further claims that the petitioner provided sufficient documentation, including customs forms, money 
wire transfer sheets, invoices, bills of lading, packing lists, marine cargo insurance policies, purchase orders 
and sales confirmations as evidence of its business activities in the United States. 
Upon review, counsel's assertions are not persuasive. The director correctly determined that the petitioner's 
failure to explain the inconsistencies in the record warranted the revocation of the instant immigrant petition. 
While counsel attempts to explain on appeal the different addresses ,'or the petitioning organization, the 
record still contains discrepancies regarding the company's business location. The record identifies severai 
different addresses for the petitioning organiqation, including the two addresses mted by counsel on appeal as - - - . . 
well as an edditionnl address. ' \ hich \\as :isted on 
both the petitioner's insurance policy anld the product documentation submitted by counsel in response to the 
director's notice of intent to revoke. Counsel does not address on appeal the existence of this third corporate 
location. Therefore, it is unclear whether the petitioner is preseiltly operating from yet an additional location 
or whether it re~r~ains in the motel. Moreover, a new lease agreement submitted by counsel with his 
November 5, 2004 letter fails to even speciify the location of the premises leased by the petitioner. It is 
incu~bent upon the petitioner to resolve any (inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such will not suffice unless the petitioner submits 
competent objective evidence pointing to wh LWutter ojHo, 19 I&N Dec. at 591-92. 
Furthermore, counsel has not adequately edplained its use of a llotel or private residence as its business 
location. According to counsel, the petitioner explained in a letter submitted to CIS on September 8, 1998 
that it did not post a company sign becausd it does not accept walk-in customers. The petitioner, however, 
submitted photographs with the instant p(tition of its business location, which depicted the petitioner's 
company sign. Either the petitioner miisrey)resented its business location or failed to identify an additional 
location from which the business would erate. Regardless, the approval of the initial petition may be 
subject to revocation based on the evidence submitted with this petition. See 5 205 of the Act, 8 
U.S.C. 5 1155. 
The petitioner's question of the 
actual form of 
petitioner, as a managing for the motel's daily business 
management. This claim as an import and export 
company. The petitioner with the claim that it is. 
engaged in the import and export of light products. Therefore, regardless of the documentation in 
the record related to the petitioner's operations, the petitioner's position as a partner in the 
motel raises the unanswered is operating in the United States. Again, the 
petitioner is obligated to testimony by independent and objective 
evidence. Matter of Ho, 19 
Counsel's additionaI claim that it is iiiapp opriate for CIS to raise the issue of the petitio~er's business 
operations in the United States followl~ng i s approval of the petitioner's 1-140 petition is misplaced. As 
previously noted. section 205 of the Act, 8 .S.C. I 155, allows the Secretary of Homeland Securiq to revoke li the approval of any petition approved by h m under section 204 ior good and sufficient cause. Here, the 
unexplained inconsistencies in the record re arding the petitioner's various business locations, as well as the 
question of how the petitioner is doing busin ss in the United States, represents good and sufficient cause and 
warrants the revocation. By itself, the ~direc or's realization that a petition was incorrectly approved is good 
and sufficient cause for the isquance of a nc tice of intent to revoke an immigrant peiition. Matter of Ho, I9 
I&N Dec. at 590. 
reason as well. 
I 
Based on the above discussion, the director orrectly determined that the petitioner had not established that it 4 was "doing business" and properly revoked t e approval. Accordingly, the appeal must be dismissed for this 
r 
Third, the AAO will address the issue of wh the beneficiary's employmerit in the lJnited States has been 
in a primarily managerial or executi~-e 
Section 10!(a)(44)(A) of the Act, 8 provides: 
The term "managerial capacity" means a assignment within an organization in which the enlployee 
primarily- 
(i) Manages the organization, o a department, subdivision, function, or component of 
the organization; 
t 
(ii) Supervises ad controls the 
employees, or inanages an essential 
subciivision of the organizat~on; 
work of other supervisory, professional, or mznagerial 
function within the organization, or a department or 
(iii) Has the authority to hire and $re or recommend those as well as other personnel actions 
(such as promotion and leave authoridation) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respebt to the function managed; and 
(iv) Exercises discretion over the ay-to-day operations of the activity or function for which 
the employee has authority. A first-li I e supervisor is not considered to be acting in a managerial 
are professional. 
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capacity merely by virtue of the superbisor1s supervisory duties unless the employees supervised 
I 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1(a)(44)(B), provides: 
The term "executive capacity" means assignment within an organization in which the employee 
primarily- 
(i) Directs the management oft e organization or a major component or function of the 
organization; 
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(ii) Establishes the goals and poli of the organization, component, or function; 
(iii) Exercises wide latitude in decision-making; and 
(iv) Receives only general ion or direction from higher level executives, the board cf 
directors, or stockholders of 
The petitioner noted on its letter submitted with the immigrant petition that the 
beneficiary would be United States company and would assume the following 
job responsibilities: 
1. To direct and coordinate overall #perations of the USA branch company; 
2. To establish company policy andmanagement systein; 
3. To review market research reports so to establish 1J.S. markets; 
4. To negotiate and sign up major b yindselling contracts; 
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5. To review and approve fina cia1 statement[s] and budgets and make financial 
arrangements; n 
6. To hirelfireltrain and review per of USA local executive personnel and assign 
proper jobs[.] 
The petitioner submitted a certificate of new 
responsibilities. 
assignment f~r the beneficiary also identifying the proposed job 
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The petitioner also noted in its December 1p96 letter that it employed five workers at the time cf filing the 
petition: the beneficiary, as president, a vice-president, an office manager, an office clerk, and a 
secretarylaccountant. The petitioner explaibed that as the company develops, it anticipated hiring three or 
four sales and marketing representatives, 4 finance manager, a bookkeeper, an accountant, a purchasing 
manager, two purchasing personnel, an impdrt and export manager, and two or three shipping and warehouse 
personnel. The petitioner submitted its quarterly wage report for the State of California reflecting the 
employment of the five named workers lduri& the quarter ending September 30, 1996. 
The director stated in his October 14, 2004 qotice of Intent to Revoke that the beneficiary was not employed 
in a managerial or executive capacity as the iecord did not demonstrate that he was managing professionals as 
required in the statutory definition of manaberial capacity. The director stated that the lack of information 
pertaining to the four subordinates' job dutiek, responsibilities, sducation, and salaries, as well as the fact that 
the beneficiary has direct contact with the lower-level personnel, supports a finding that the beneficiary is 
employed as a first-line supervisor. The dire tor also stated that the organization appears to be "top heavy" as 
three of its five employees are employed in fl upervisory positions. The director noted that "a normal business 
operation" would have more personnel in nod-supervisory positions. 
The director filrther concluded in that the beneficiary's job description was not 
detailed enough to establish his or executive. The director noted that the 
description is "too general and vague" to the exact managerial or executive responsibilities the 
beneficiary would perform on a daily provided the petitioner with thirty days during 
which to submit additional evidence in supp rt ofthe beneficiary's employment in z qualifying capacity. I 
In the November 5, 2004 letter submitted i response to the director's notice of intent to revoke, counsel 
claimed that the beneficiary was employe in the United States in a managerial or executive capacity. 
Counsel stated that as president, the bene 1 ~ciary "takes up the highest management authority under the 
supervision of the board of directors of the company," and is fully responsible for the management cf the 
company. Counsel further stated that "th eficiary is ?he one who set up the subsidiary in the United 
States. established the general goals and p of the company, hired all necessary staff to run the business, 
and promoted the sales of the company." el also noted that the company's organizational structure and 
the employees' job duties establish that t ficiary is employed as a manager or an executive as each of 
the company's department managers p baclic~or's degree or higher. Counsel claimed that "'he 
beneficiary actually supervises a group sionals." aild cherefore, qualifies as a manager or executive. 
Counsel submitted an organizational he TJnited States company identifying the beneficiary as 
president, and the following five sub mployees: vice-president, marketing manager, warehouse 
manager, accounting manager, and sa . Counsel also provided a description of the job duties 
performed by each worker and submi 941, Employer's Quarterly Federal Tax Return, for the 
quarters ending March, June and Sept 
'The director determined in his 22, 2004 Notice of Revocation that the petitioner did not 
demcnstrate that the beneficiary in the United States in a managerial or executive capacity. 
The director stated that while the beneficiary's subordinates are professionals, counsel did 
not submit any each employee actually holds a bachelors degree. The 
airector also orgnnizatioq have changed since the filing of the 
includes marketing, warehouse and accounting 
managers, and a sales assistant. The direct& stated that this is a material change of facts that would not be 
considered. The director also stated that tde petitioner failed to submit a more detailed description of the 
beneficiary's job duties, noting that the record was still "too general and vague to convey any understanding 
of exactly what the beneficiary will be doing on a daily basis." Lastly, the director determined that the record 
failed to address the beneficiary's employme I t in an executive capacity and specifically define the goals and 
policies established by the beneficiary during his employment as president. Consequently, the director 
revoked the petition. ~ 
On appeal, counsel asserts that the title of executive officer, his job duties and the petitioner's 
organizational structure is employed in a managerial or executive capacity. 
Counsel states: 
On review, the director properly rev ition based on the petitioner's failure to demonstrate that the 
beneficiary has been employed in the Unit s in a primarily managerial or executive capacity. As noted 
abave, by itself, the director's realization ition was incorrectly approved is good and sufficient cause 
for the issuance of a notice of intent to re migrant petition. iMatLer of Ho, 19 I&N Dec. at 590. The 
director's decision to revoke the immigra ill be sustai~led where the record at the time the decision 
is rendered would warrant such a denial. Id. 
Here, although specifically addressed by n his Noti= of Jntent to Xevoke, the petitioner failed to 
clarifji and further explain the specifi rmed by the beneficia~ during his employment as 
president. Counsel's mere recitation ry's sir; job responsibilities already provided in the 
petitioner's December 23, 1996 lette nt to overcome the director's notice of revocation. 
Reciting the beneficiary's vague an b resp9nsi5ilities are not sufficient; the regulations 
require a detailed description of the uties. '[he actual duties themselves reveal the true 
nature of the employment. Fedin Bros 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd. 905 
F.2d 4: (2d. Cir. 1990). Without do to support the claim. the assertions of counsel will 
not satisfy the petitioner's burden of proof. assertions of counsel do not constitute evidence. Mattcr of 
In the instant petition, the beneficia,~ 
President since 1995. The beneficiary 
the company's entire business as we 
The beneficiary determines the 
policies of the company. Since the 
and the majority of the board off 
general supervision or direction 
management of the company. 
Counsel restates the six job responsibilities 
show that the beneficiary is employed in 
is employed by the petitioner at the position of the 
has absolute and discretionary authority and control of 
.l as the authority to hire and fire supervisory personnel. 
com~any's investment plans, hiring plans and the goals and 
company is the subsidiary of its parent company in China 
directors is working in China, the beneficiary receives only 
from them and his is fillly responsible for the overall 
of the beneficiary outlined above, and claims that these "clearly 
:B managerial or executive capacity and he is qualified for an 
employment-based immigrant classification.'] 
With regard to the petitioner's staff, counsel states that the company currently has three departments, each of 
which have a department manager who ossesses a bachelor degree or higher. Counsel claims "the 
multinational executive or manager." 
V beneficiary actually supervises a group of p~ofessionals, and therefore, he is qualified for classification as a 
I 
Obaigbena, 19 I&N Dec. 533, 534 (B1.A 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Additionally, as noted by the director, counsel failed to present evidence in the November 2004 response 
supporting the beneficiary's employment in a qualifying capacity at the time ofjiling the immigrant petition. 
The director specifically noted in his Notice Intent to Revoke that eligibility for the immigrant 
classification woilld be based on documentation r t to the priority date, January 13, 1997, and would not 
include an analysis of new facts that arose aft filing of the petition. Counsel, however, submitted 
evidence in response ro the director's Notice t to Revoke that applied to the petitioner's present 
organizational structure in an attempt to establi eficiary's employment in a qualifying capacity. The 
petitioner's current organizational structure an uties presently performed by each of its workers is 
irrelevant to establishing the beneficiary's e in a qualifying capacity at the time of filing the 
petition. As correctly noted by the directclr r must establish eligibility at the time of filing; a 
petition cannot be approved at a future date itioner becomes eligible under a new set of facts. 
Matter of Katigbak, 14 I&N Dec. 45,49 (Co 
Moreover, counsel claim that the beneficiary's itle of "executive officer" establishes the beneficiary's 
employment in a managerial or executive capaci is incorrect. The AAO is not compelled to deem the 
beneficiary to be a manager or executive simply bec use the beneficiary possesses a managerial or executive title. 
qualifying capacity. 
I As required in the regulation at 8 C.F R. 5 204.5(j)(5), the petitioner must submir a detailed description of the 
executive or manzgerial services to be perfbrmed by the beneficiary in order to establish employment in a 
Absent additional evidence, the director's notice o revocation was properly issued for "gocd and sufficient 
cause," and therefore, the revocation will be sustai ed. See Matter of Ho, i9 I&N Dec. at 590. Accordingly, 
the appeal is dismissed. 
I: 
The petitioner outlined the beneficiary in its December 23, 1996 letter submitted 
with the immigrant petition: 
1. To assist [the! and manag[i,rg] overall cperatio~~s of the 
company. 
Fourth, the AAO will consider the issue of whether 
in a pririlarily manageid or executive capacity. 
2. To review market research repods so to decide company development directions; 
3. To review financial state~nents alici app ove budgets; r 
the beneficiary was employed abroad for at least one year 
I 
4 To represent company in atten#ing major buyinglselling and joint venture contracts 
meetings; 
I 
I . < 
I 
5. Tc review perfomarrce of executive personnel, hirelfire and assign proper jobs. etc. 
The petitioner stated that the beneficiary "di(rect1y and indirectly" supervised twenty employees and reported 
directly to the company's general manager. An attached certificate of employment outlined the same five job 
responsibilities performed by the beneficiary, overseas. 
The petitioner also provided an organizatio a1 chart of the foreign entity reflecting the beneficiary's position i as subordinate to the company's general manlager, yet did not identify the employees the petitioner claimed to 
be supervised by the beneficiary. ~ 
The director subsequently stated in his ~ot'ce of Intent to Revoke that the record did not contain specific 
documentation describing the job duties of he beneficiary's subordinate personnel, the required educational 
levels to perform in each position, or each i orker's employment status or salary. The director stated that it 
could not be determined whether the benefi iary actually managed employees in the foreign entity, whether 
the claimed employees were professional o managerial, or whether the beneficiary served as a functional 
manager or executive. The director also sta ed that the beneficiary's job description was "generic," and was 
not sufficiently detailed to demonstrate the b 1 neficiary's employment as a manager or executive. 
Counsel stated in his November 5, 2004 that the beneficiary had been employed as assistant general 
manager, the "second highest in the company, from April 1993 through June 1994." 
Counsel claimed that "[tlhe [sic] indicates that [the beneficiary] was employed in a 
management capacity, that the Assistant General Manager performs 
management capacity claimed that the organizational chart for the 
foreign entity twenty employees. Counsel stated 
the employees under the benefici~ry's 
the hours worked, the lack of that 
of filing the petition, no additional 
company is a regular business 
to understand the normal job 
based on conjecture." 
that CIS did not consider 
flawed and purely 
The director determined in his Notice of Revocation that the petitioner did not demonstrate that the 
beneficiary had been employed abroad in a managerial or executive capacity. The director stated that the 
description of the beneficiary's job duties was "too general and vague" to convey the manageria! or executive 
functions performed by the beneficiary (on a daily basis. The director noted that counsel failed to clarify or 
elaborate on the five job duties previously prlsvided by the petitioner. The director also stated that the record 
did not establish that the beneficiary had managed professional employees, as no evidence, such as job 
responsibilities, educational requirements, or employment status was submitted for each subordinate worker. 
The director also stated that the record did not identilcy rhe specific goals and policies made by the beneficiary 
in his capacity as assistant general manager, and failed to show that the beneficiary made discretionary 
decisions for the parent company. Consequertly, the director revoked the petition. 
On appeal, connse; claims tha as the "seco highest management authority in the [parent] company," the 
beneficiary was employed abroad for more one year in a managerial and executive capacity. Counsel 
claims that the foreign entity's indicates that the beneficiary supervised either directly oi- 
indirectly twenty employees. the petitioner did not provide evidence or information 
Page 12 
about the job duties of the employees under the beneficiary's supervision, "[alt the time of the filing of the 
petition, [CIS] did not ask for more information or evidence about the parent company, nor has [CIS] ever 
provided the petitioner with the opportunity for further illnstration." Counsel again claims that given the type 
of business performed by the foreign entity, "it is easy to understand the normal job duties and educational 
requirements for respective job positions." 
On review, the director properly revoked the petition based on the petitioner's failure to demonstrate that the 
beneficiary was employed by the foreign entity in a primarily managerial or executive capacity. Counsel 
conceded in the November 5,2004 response to the director's Notice of Intent to Revoke that the record lacked 
documentation explaining the employment capacities, including job responsibilities, education21 
requirements, and hours worked, of the employees subordinate to the beneficiary. Col~nsei did not submit 
additional evidence, nor did he explain the positions of the lower-level personnel. Counsel's claim that "it is 
easy to understand the normal job duties and educational requirements" of the subordinate workers as a result 
of the nature of the business is insufficient. Moreover, contrary to counsel's assertion, the foreign company's 
organizational chart, which fails to identify any employees subordinate to the beneficiary, does not support 
the claim that the beneficiary was employed as a manager or executive. Counsel clearly chose to ignore the 
specific requests and issues raised by the director. Without documentary evidence to support the claim, the 
assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel do not 
constitute evidence. htter qf Obaigbena, 19 IBN Dec. 533, 534 (BIA 1988); Matter OfLaurenno, 19 i&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Counsel also erroneously claims that the petitioner was not provided with an opportunity to illustrate the 
personnel structure of the foreign entity 2nd to define the tasks performed by each employee. Wiihout 
considering the petitioner' opportunity to submit relevant documentation with the filing of its original 
petition, the petitioner was properly notified by the director of its opportunity to submit additional evidence in 
response to the director's notice of intent to revoke. Additionally, the petitioner was afforded the opportunity 
on appeal to submit additional documentation clarifying the beneficiary's employment capacity abroad. 
Counsel, however, failed to recognize this opportunity and neglected to provide any new evidence or 
explanation of the beneiiciary's job responsibilities overseas. Coctrary to counsel's claim, the petitioner was 
given three opportunities to establish the befleficiary's employment as a manager or executive in the foreign 
entity. 
The director's decision to revoke will be sustained as the record at the time of the director's decision was 
deficient and warranted a denial based oa the petitioner's failure to establish the beneficiary's e~ploymenr 
abroad in a qualifying capacity. See Matre," ofHo, 19 l&N Dec. at 590. Accordingly, the appeal w~ll be 
dismissed. ' 
Fifth, the AAO will address the issue of whether a qua!ifying relationship exists between the foreigr. eotiq 
and the petitioning organization. 
The regulation at 8 C.F.R. 5 204.56)(2) states in pertinent part: 
Ad4liute means: 
(A) One of two subsidiaries both of which .ire owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owne and controlled by the same group of individuals, each 
individual owning and controlling a f proximately the same share or proportion of each entity; 
In his October 14, 2004 notice of intent to the director stated that despite the stock certificates, stock 
ledger. Notice of Issuance of Stock, Stock Corporation, and the petitioner's articles of 
incorporation, the record does not of a qualifying relationship between the foreign 
entity and the petitioning director noted that the petitioner did not provide 
proof, such as wire the foreign entity's purchase of the petitioner'$ 
"to determine whether a stockholder 
maintains director noted relevant evidence would include 
meetings, in order to examine the total 
the effect on corporate control, and any 
management of the organization. 
Subsidiary means a firm, corporatio~?, 
indirectly, more than half of the enti7 
half of the entity and controls the 
joint venture and has equal control 
indirectly, less than half of the entity, 
In the December 23, 1996 letter submitted 
foreign entity and noted that since its 
petitioner's shares of issued stock. The 
issuance of 1,000,000 shares of stock. The 
November 15, 1994 and February 15, 1995, 
shares of the petitioner's issued stock. and 
foreign organization. 
Co~msel did not address the issue of reiationship in his November 5, 2004 response to the 
director's notice of intent to revoke. the director determined in his November 22, 2004 notice 
of revocation that the petitioner had the existence of a qualifying relationship between the 
foreign entity and the petitioning 
or other legal entity of which a parent owns, directly or 
and controls the entity; or owns, directly or indirectly, 
en)ity; or owns, directly or indirectly, 50 percent of a 50-50 
and veto power over the entity; or owns, directly or 
but in fact controls the entity. 
with the petition, the petitioner stated that it is a branch of the 
establishment in 1994, the foreign organization has owned 100% of the 
p:titioner submitted its articles of incorporation authorizing the 
petitioner also provided copies of two stock certificates, dated 
identifying the foreign entity as the owner of 30,000 and 70,000 
3 stock transfer ledger confirming the issuances sf stock to the 
On appeal, counsel claims that the ed documents could not be located as the purchase tratlsactions 
occlrlrred approximately ten years or other unavailability of required evidence create5 
a presumption of ineligibility. 8 the director's decision to revoke the approval 
of a petition will be affirmed, evidence on appeal, where s petitioner fails 
to offer a timely explanation of intention to revoke. Matter cfdrias, 19 
I&N Dec. at 569. 
Page f4 
Finally, the AAO will address counsel's claim on appeal that CIS has no statutory basis to revoke the instant 
petition. In support of his claim, counsel referenced section 205 of the Act, 8 U.S.C. 5 1155 (2003), which 
stated: 
The Attorney General may, at any time, for what he deems to be good and sufficient cause, 
revoke the approval of any petition approved by him under section 204. Such revocation 
shall be effective as of the date of approval of any petition. In no case, however, shall such 
revocation have effect unless there ig mailed to the petitioner's last known address a notice of 
the revocation and unless notice of Qhe revocation is communicated through the Secretary of 
State to the beneficiary of the petition before such beneficiary commences his journey to the 
LJnited States. If notice of revocation is not so given, and the beneficiary applies for 
admission to the United States, admissibility shall be determined in the manner provided for 
by sections 235 and 240.~ 
Counsel also draws the AAO's attention to a recent opinion, Firstland Int'l, Inc. v. Ashcroft, 377 F.3d 127 (2d 
Cir. 2004), issued by the United States Court of Appeals for the Second Circuit on August 2, 2004. In that 
opinion, the court in Firstland interpreted the third and fourth sentence of section 205 GE the Act, 8 U.S.C. 
S 11 55 (2003). to render the revocation of ap approved immigrant petition ineffective where the beneficiary 
of the petition did not receive notice of thq revocation before beginning his journey to the United States. 
Firstland, 377 F.3d at 130. Counsel asserts that the reasoning of this opinion must be applied to the present 
matter and accordingly, CIS may not revoke the approval because the beneficiary did not receive notice of the 
revocation before departing for the United States, since he was already in the United States when the director 
issued the revocatior~.~ 
According to the iecord of proceeding, the petitioner lives in California; thus, this case did not arise in the 
Second Circuit. Firstland was never a binding precedent for this case. Even ds a rnerely persuasive 
precedent, moreover, Firstland is no longer good law. 
On DeeemI=w 17. 2004, the President signed the Intelligence Reform and Terrorism Prevention Act of 2004 
(S. 2845). See Pub. L. No. 108-458, 118 Stat. 3638 (2004). Specifically relating to thi~ matter, section 
5304(c) of Public Law 108-458 amends section 205 of the Act by striking "Attorney General" and inserting 
"Secretary of Homeland Security" and by striking the final two sen:ences. 
The AAO notes that counsel incorrectly referred to the appliczble statute as section 1155, 8 U.S.C. 
4 1252(a)(2)(B). 
3 The Firstland opinion summarily overturned 35 years of established agepcy precedent. ,Scz &latter of Vilos, 
12 !&N Dec. 61 (BIA 1967). Counseli's ar uments illustrate the iliogiral effects of the Second Circuit's 
reasoning: In the present matter, the benefici k ry entered the United States as a nonimmigrant in 1995, more 
tha~ a  ye,^ prior to the filing of the Form 14146 immigrant petitiol~ and more tha2 eight years prior to the 
revocetion of the petition's approval. ~ccorbia~~~, it was ternpo~aii? and physically impossible for CIS to 
ha~~e natrified the beneficiary of the re~ocatid~~ before he departed for the United States. in effect, counsel's 
interpetation of Firstland would create a situption where any alien would have an irrevocable immigrant visa 
petition if the alien simply waited until after he or she arrived iri the United States to file the petition. 
Section 205 of the Act now reads: 
The Secretary of Homeland Security mqy, at any time, for what he deems to be good and sufficient 
cause, revoke the approval of any petitmon approved by him under section 1154 of this title. Such 
revocation shall be effective as of the date of approval of any such petition. 
Furthermore. section 5304(d) of Public Law 108-458 provides that the amendment made by section 5304(c) 
took effect on the date of enactment and tha? the amended version of section 205 applies to revocations under 
section 205 of the Act made before, 011, or after such date. Accordingly, the amended statute specifically 
applies to the present matter and counsel's Firstland argument no longer has merit. 
Based on the foregoing discussion, the direktor's revocation of the instant petition wili be sustained as the 
evidence of record at the time of his decisidn warranted such denial. See Matter of Ho, 19 I&N Dec. 590. 
Accordingly, the appeal will be dismissed. i 
I 
In visa petition proceedings, the burden of pboving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 cf the Act, 8 U.S.C. 5 1361. Here. that burden has not been met. Accordingly, the 
director-s decision will be affirmed and the pbtition will be revoked. 
I 
ORDER: The appeal is dismissed. 
I 
I