dismissed EB-1C Case: Import/Distribution

U.S. Department of Homeland Secaritj 
20 Mass. Ave., N.W.. Rm. A3042 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PILE: Of{ce: CALFoRNIA sEKiscx CENTER 
WAC 99 161 51315 Date: JAN 2 5 2M5 
PETITION: Immigrant Petition for Alie Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the mmigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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. 
Administrative Appeals Office 
I: 
DISCUSSION: The Director, California ervice Center, initially approved the employment-based visa 
petition. Upon review of the record, the properly issued a notice of intent to revoke and ultimately 
revoked approval of the petition. The Appeals Office (AAO) dismissed a subsequently filed 
appeal. The matter is now before the to reopen and reconsider. The motion will be granted 
and the previous decisions to deny 
The petitioner is an organization incorporat d in the State of California in November 1995. It imports and 
supplies its parent company's products for distribution. It seeks to employ the beneficiary as its general 
manager. Accordingly, the petitioner en eavors 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. 
1 153(b)(l)(C), as a multinational executive I or manager. 
The director initially approved the petition 8, 2000. Upon review of the record, the director 
determined that the petitioner had not (1) a qualifying relationship with the beneficiary's foreign 
employer; or (2) that the beneficiary in a managerial or executive capacity for the United 
States entity. After properly to revoke, the director revoked the approval of the 
petition on November decision, the AAO affirmed the director's decision. 
The regulation at 8 C.F.R. 5 103.5(a)(2) pertinent part: "A motion to reopen must state the new facts to 
be provided in the reopened proceeding by affidavits or other documentary evidence." Based 
on the plain meaning of "new," a new that was not available and could not have been 
discovered or presented in the 
The regulation at 8 C.F.R. 5 103.5(a)(3) states, lin pertinent'~art: 
A motion to reconsider must state e reasons for reconsideration and be supported by any 
pertinent precedent decisions to that the decision was based on an incorrect application 
of law or Service policy. A a decision on an application or petition must, 
when filed, also establish based on the evidence of record at the 
time of the initial decision. 
The first issue in this proceeding is whether he petitioner has established a qualifying relationship with the 
beneficiary's foreign employer. The direct0 observed that a separate entity had provided funding to the 
petitioner and questioned whether the separ te entity had obtained an interest in the petitioner. The AAO 
observed that absent the petitioner's initial 19 5 Internal Revenue Service (IRS) Form 1 120 U.S. Corporation 
Income Tax Return, it could not conclude that 1 a qualifying relationship had been established. 
On motion, counsel for the petitioner provid the petitioner's 1995 IRS Form 1120. The IRS Form 1120 
properly accounts for the monies provided the petitioner by an entity other than the foreign entity. 
Although the petitioner's 1995 IRS Form not a new document, the pertinence of the 1995 IRS Form 
1120 was not discussed until the appeal. submission of the 1995 IRS Form 1120 on motion is 
accepted as pertinent clarifying evidence to overcome the prior decisions on this issue. The 
petitioner has established a qualifying beneficiary's foreign employer. 
The second issue in this proceeding is whet the petitioner established that the beneficiary's position for the 
petitioner would be primarily managerial 
On this issue neither counsel nor the peti has submitted any new facts regarding the beneficiary's 
position for the petitioner. Neither the petitioner provided pertinent precedent decisions to 
establish that the AAO decision was application of law or policy. 
The AAO determined that the description beneficiary's duties coupled with the descriptions of its three 
other employees did not substantiate the or executive capacity of the beneficiary's position. The 
AAO specifically noted that the to document what proportion of the beneficiary's duties 
would be managerial functions be non-managerial. The AAO also observed that 
the record contained of independent contractors, noting 
that the petitioner and conflicting testimony by independent and 
objective evidence. 
Counsel asserts that the AAO did not take in o account the special business characteristics and the reasonable 
needs of the petitioner when examining the etitioner's staffing levels, as required by section 10 1 (a)(44)(C) of 
the Act. Counsel contends that the petit'oner locates and negotiates contracts with U.S. retailers and 
wholesalers and designates professional e ployees to manage the execution of contracts while using the 
services of a shipping company, freight se ice, customs service agent and temporary port storage provider. 
Counsel provides copies of customs forms, ills of lading, and supplier and shipper's invoices to demonstrate 
the nature of the petitioner's business. Couns 1 concludes that the beneficiary manages all activities at the U.S. 
branch of the China-based company, drrecti g operations through professional and managerial subordinate 
personnel and is the only U.S. representaltive i f the China company. 
Counsel has not addressed the issues the AA raised in its decision nor has counsel provided a proper basis to 
reopen or reconsider the issue of the ben ficiary's managerial or executive capacity. The documents 
submitted may address the issue of the petiti ner's doing business but do not document the proportion of the 
beneficiary's duties that are managerial and those that are non-managerial. Further, the petitioner has not 
explained who in the petitioner's organiz tion, other than the beneficiary, locates and negotiates the 
petitioner's contracts and otherwise markets t I e petitioner's parent company's products. 
Regarding the petitioner's staffing levels, 
taking into account the reasonable needs of 
visa to a multinational manager or executive. 
However, it is appropriate for Citizenship 
petitioning company in conjunction with other 
absence of employees who would perfom tEe 
or a "shell company" that does not conduct 
Colp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
CIS notes discrepancies in the record and fails 
counsel correctly observes that a company's size alone, without 
t:~e organization, may not be the determining factor in denying a 
See section 101(a)(44)(C), 8 U.S.C. 3 1 101(a)(44)(C). 
and Immigration Services (CIS) to consider the size of the 
relevant factors, such as a company's small personnel size, the 
non-managerial or non-executive operations of the company, 
business in a regular and continuous manner. See, e.g. Systr~o~zics 
2001). The size of a company may be especially relevant when 
to believe that the facts asserted are true. Id. 
' Page 4 
/ 
Finally, counsel's conclusion that the bene manages and directs all the petitioner's activities through 
professional and managerial subordinate is not supported insthe record. Going on record without 
supporting documentary evidence is for purposes of meeting the burden of proof in these 
proceedings. Mutter of Treasure 14 I&N Dec. 190 (Reg. Comm. 1972). The statements 
of counsel on appeal or in a and thus are not entitled to any evidentiary weight. See 
INS v. Phinpathya, 464 Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 
1980). 
Counsel has not provided new facts ed by affidavits or other documentary evidence and has not 
established that the prior decision was an incorrect application of law or Service policy. 8 C.F.R. 
5s 103.5(a)(2) and (3). The previous AAO on ths issue will not be disturbed. 
In visa petition proceedings, the burden of p oving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
ORDER: The previous decisions to deny th$ petition are affirmed.