dismissed EB-1C Case: Import/Export

identifying data deleted to 
prevent clearly unwarranted 
invasion of ~nal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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. 5 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. 
~obert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, California Service Center, initially approved the employment-based visa 
petition. Upon subsequent review the director issued a notice of intent to revoke approval of the petition and 
ultimately revoked approval. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be summarily dismissed. 
The petitioner is a corporation organized in the State of Nevada in June 1996. It was authorized to conduct 
business in the State of California in June 1997. It claims it imports foodstuffs and exports health foods and 
cosmetics. It seeks to employ the beneficiary as its vice-president. 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. 8 1153(b)(l)(C), as a multinational executive or 
manager. 
The petition was filed April 12, 1999 and was approved October 12, 2000. The beneficiary was interviewed 
on February 26, 2002 in connection with his Form 1-485, Application to Register Permanent Resident or 
Adjust Status. Upon subsequent review of the record based on information obtained in the February 26, 2002 
interview and on information obtained from California Corporate Records that the petitioner had submitted a 
Certificate of Surrender to do business in California on June 20, 2003, the director issued a notice of intent to 
revoke approval on July 20, 2005. The petitioner submitted a rebuttal statement on August 18, 2005. The 
director revoked approval of the petition on September 7, 2005, determining: (1) that the petitioner had not 
established that the beneficiary had been and would be employed in a primarily executive or managerial 
capacity; or (2) that the petitioner conducted business in the United States in a regular, continuous, and 
systematic fashion. 
On the Form I-290B Notice of Appeal, filed September 22, 2005, counsel for the petitioner indicated that a 
brief andlor evidence would be submitted within 30 days. Upon receipt and review of counsel's brief dated 
October 18, 2005, the AAO observes that it is a replica of the counsel's statement submitted in rebuttal to the 
director's notice of intent to revoke, save for the title page, the date, and references to the "director's" 
statement rather than the "notice's" statement. 
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. 
Page 3 
The language of the statute is specific in limiting this provision to only those executives and 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 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)(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 that 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. See 8 C.F.R. 
0 204.56)(5). 
The regulation at 8 C.F.R. 9103.3(a)(l)(v) states, in pertinent part: "An officer to whom an appeal is taken shall 
summarily dismiss any appeal when the party concerned fails to identi@ specifically any erroneous conclusion of 
law or statement of fact for the appeal." 
Section 205 of the Act, 8 U.S.C. 5 1155, states: "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." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated 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 1987)). 
On the issue of the beneficiary's managerial or executive capacity, the record contains the petitioner's 
description of the beneficiary's job duties in a February 22, 1999 letter appended to the petition and on a list 
of the petitioner's employees found at Exhibit B-13 of the petition. The petitioner stated that: 
As Vice President, [the beneficiary], is directly responsible for assisting the President in 
strategic planning and implementing the goals and objectives of the U.S. subsidiary; 
overseeing the daily operations and personnel of the Trading Department; developing 
quarterly and annual purchasing plans; reviewing customers' requirements; overseeing the 
import of foodstuffs and the export of health foods, cosmetics, and other products; locating 
new suppliers; studying new products and consumer information; negotiating key purchasing 
contracts; supervising workers in the preparation of export and customs documents; 
hiringlterminating workers; and representing our parent company's interests in the United 
States 
The petitioner added that the beneficiary also acted as the petitioner's president when the president was 
absent. 
The petitioner's list of employees and accompanying job descriptions provided the following job description 
for the beneficiary's position: 
Under the supervision of the President, he conducts concrete plans regarding the company's 
international trading. He is responsible for checking the amounts of products going in and 
out of the company, and for inspecting the quality of the products transported. 
The petitioner's organizational chart showed the beneficiary in the position of vice-president over three 
subordinate employees, one each in the departments of international trading, transportation, and quality 
control. 
The general descriptions provided suggest that the beneficiary performs operational tasks. The organizational 
chart submitted shows that the beneficiary is at most a first-line supervisor of non-professional employees. 
Despite the questionable nature of the beneficiary's position as a bonafide manager or executive, the director 
approved the petition. 
As the director observed in his notice of intent to revoke and ultimate revocation decision, when the 
beneficiary was interviewed on February 26, 2002 in regard to his Form 1-485 application, the beneficiary 
acknowledged that the petitioner employed only two people including himself. The director also observed 
that the beneficiary referred to himself as a "clerk" on his IRS Forms 1040, U.S. Individual Income Tax 
Return, for the 1999 and 2000 years. The director determined, based on this information, that the beneficiary 
was not performing primarily managerial or executive tasks, but was performing the operational and 
administrative tasks of the company. 
Counsel does not address either of these observations in his rebuttal or on appeal. Instead, counsel infers 
fiom the director's decision that the director does not believe a small company is statutorily qualified to file a 
visa petition for this visa classification. Counsel also asserts that requiring a "manager" to manage 
professional employees is not in accordance with the law. Counsel contends as well that the director has 
attempted to apply a new and different interpretation of who qualifies as a function manager. 
Counsel's inferences and assertions are not on point. The AAO acknowledges that if staffing levels are used 
as a factor in determining whether an individual is acting in a managerial or executive capacity, Citizenship 
and Immigration Services (CIS) must take into account the reasonable needs of the organization, in light of 
the overall purpose and stage of development of the organization. In this matter, however, the petitioner has 
failed to clarify who carries out the operational and first-line supervisory tasks in the organization. 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 
Page 5 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 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 101(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 
Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
In addition, counsel should note that it is appropriate for CIS to consider the size of the petitioning company 
in conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes 
discrepancies in the record and fails to believe that the facts asserted are true. Id. 
Further, the petitioner clearly placed the beneficiary in a first-line supervisory position on its organizational 
chart. The petitioner did not provide evidence that the beneficiary's three subordinates held positions that 
qualified as professional, supervisory, or managerial positions. Although the beneficiary is not required to 
supervise personnel, if it is claimed that his duties involve supervising employees, the petitioner must 
establish that the subordinate employees are supervisory, professional, or managerial. See $ 101(a)(44)(A)(ii) 
of the Act. Neither did the petitioner claim that the beneficiary held a functional manager position. In that 
regard, if a petitioner claims that the beneficiary is managing 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. 9 204.5(j)(5). Furthermore, the petitioner's description 
of the beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than 
performs the duties related to the function. 
A review of the initial record in this matter establishes that approval of the petition was gross error on the part 
of the director. Counsel for the petitioner has provided no pertinent argument, assertion, or statement that 
identifies specifically an erroneous conclusion of law or a statement of fact as a basis for the appeal. Thus, 
the regulations mandate the summary dismissal of the appeal. 8 C.F.R. 9 103.3(a)(l)(v). 
The next issue in this matter is the director's determination that the petitioner is no longer doing business as the 
most current Internal Revenue Service (IRS) Form 1 120, U.S. Corporation Income Tax, was for the year 2000 
which showed no income for the year and the State of California Corporate Records showed that a Certificate 
of Surrender by Foreign Corporation was transacted on June 20,2003. 
Again, counsel does not address either of these concerns expressed by the director, either in rebuttal or on 
appeal. Counsel states "there is nothing in section 203(b)(l)(C) which requires that a branch office always 
continue with the same name and/or product line or service as in the past." Counsel also references Section 
106(c) of the American Competitiveness in the Twenty-First Century Act (AC21), Pub. L. No. 106-3 13, 114 
Stat. 1251 (Oct. 17,2000). Counsel, however, fails to sufficiently elucidate the pertinence of this reference to 
the failure of the petitioner to explain whether it continues to do business and if so to provide some 
documentary evidence to demonstrate how, where, and when it provides goods andlor services in a regular, 
systematic and continuous manner. See 8 C.F.R. 3 204.5Cj)(2) which states in pertinent part: "Doing Business 
means the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or 
other entity and does not include the mere presence of an agent or office." 
The record does not establish that the petitioner continues to do business as required by the regulation. 
Counsel has failed to specifically identify an erroneous conclusion of law or statement of fact regarding this 
issue as a basis for this appeal. For this additional reason, the regulations require the summary dismissal of 
the appeal. 
Counsel's statement in rebuttal and on appeal also suggests that he is requesting an equitable form of relief. 
However, the AAO, like the Board of Immigration Appeals, is without authority to apply the doctrine of 
equitable estoppel so as to preclude a component part of Citizenship and Immigration Services (CIS) from 
undertaking a lawful course of action that it is empowered to pursue by statute or regulation. See Matter of 
Hernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991). This type of equitable relief is available only through 
the courts. The Secretary of the United States Department of Homeland Security limits the jurisdiction of the 
AAO to that authority specifically granted to the Secretary. See DHS Delegation Number 0150.1 (effective 
March 1, 2003); see also 8 C.F.R. 3 2.1 (2004). The jurisdiction of the AAO is limited to those matters 
described at 8 C.F.R. 3 103.l(f)(3)(E)(iii) (as in effect on February 28, 2003). Accordingly, the AAO has no 
authority to address counsel's request for equitable relief. 
Moreover, the AAO specifically observes that the approval of a visa petition vests no rights in the beneficiary 
of the petition, as approval of a visa petition is but a preliminary step in the visa application process. The 
beneficiary is not, by mere approval of the petition, entitled to an immigrant visa. Matter of Ho, 19 I&N Dec. 
582 (BIA 1988). Further, a director's decision to revoke the approval of a petition will be affirmed, 
notwithstanding the submission of evidence on appeal, where a petitioner fails to offer a timely explanation or 
rebuttal to a properly issued notice of intention to revoke. See Matter of Arias, 19 I&N Dec. 568, 569 (BIA 
1988). The approval of the petition based on the limited information submitted in this matter was clearly a 
matter of gross error. The petitioner has not provided evidence, either in rebuttal or on appeal, to rectify the 
deficiencies in the original submission regarding the beneficiary's managerial or executive capacity for the 
petitioner or as the director determined, and counsel seemingly acknowledged, that the petitioner no longer 
continues to conduct business. 
CIS regulations affirmatively require an alien to establish eligibility for an immigrant visa at the time an 
application for adjustment of status is filed. 8 C.F.R. 3 245.1(a). When the application for adjustment of 
status was filed, this beneficiary was not eligible for the classification sought. The notice of intent to revoke 
approval was properly issued for "good and sufficient cause" because the evidence of record at the time the 
notice was issued, warranted a denial of the visa petition based upon the petitioner's failure to meet its burden 
of proof. Matter of Estime, 19 I&N Dec. 450 (BIA 1987). Furthermore, notwithstanding the CIS burden to 
show "good and sufficient cause" in proceedings to revoke the approval of a visa petition, the petitioner bears 
the ultimate burden of establishing eligibility for the benefit sought. The petitioner's burden is not discharged 
until the immigrant visa is issued. Tongatapu Woodcraft ofHawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 
1984). 
The AAO observes in brief, that the initial record did not establish that the beneficiary's position for the 
foreign entity had been in a managerial or executive capacity or that the petitioner had established its ability 
to pay the beneficiary the proffered wage. For these additional reasons, the director's approval was in gross 
error. 
Inasmuch as counsel does not identify specifically an erroneous conclusion of law or a statement of fact as a 
basis for the appeal, the regulations mandate the summary dismissal of the appeal. 
The approval of the petition will be revoked for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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. 8 1361. 
Here, that burden has not been met. 
ORDER: 
 The appeal is summarily dismissed.