dismissed EB-1C Case: Import/Export

---to 
Pavent cIearly unw- 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
JUN '0 1 2006 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration andNationality Act, 8 U.S.C. 9 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. 
/z=-". Robert P. mann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Georgia corporation operating as an importer and exporter of used auto parts and 
automobiles. It seeks to employ the beneficiary as its 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 director denied the petition based on two separate 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 beneficiary would not be employed in the United States in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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 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 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 issues in this proceeding call for an analysis of the beneficiary's employment capacity. The first 
issue is whether the beneficiary was employed abroad in a primarily managerial or executive capacity, and the 
second issue is whether the petitioner established at the time it filed the Form 1-140 that the beneficiary would 
be primarily employed in a managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1101(a)(44)(A), provides: 
Page 3 
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. 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(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 provided its business plan, which states that the beneficiary would 
select a qualified team of employees to assist in the implementation of the petitioner's business plan. The 
petitioner focused on the beneficiary's experience in the import and export arena. No additional information 
was provided with regard to the beneficiary's proposed duties in the United States or the duties he performed 
during his employment abroad. 
Accordingly, on February 24,2005, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide a detailed description of the beneficiary's duties abroad as well as evidence documenting 
the beneficiary's foreign employment with a qualifying entity. The petitioner was also asked to describe all of 
the duties required for the beneficiary's proposed position in the United States and to assign a specific 
percentage of time allotted to each of the listed duties. Additionally, the petitioner was asked to provide the 
names, job titles, and a brief description of job duties to be performed by any subordinates the beneficiary 
would directly supervise. 
With regard to the beneficiary's employment abroad, the petitioner provided a letter from one of the foreign 
entity's partners' stating that the beneficiary was one of the company's managing partners from the date of its 
inception until the beneficiary's transfer to the United States. The partner stated that the beneficiary's 
responsibilities included overseeing personnel, all finances, and investment opportunities. The partner further 
stated that much of the foreign company's success can be attributed to the beneficiary's efforts. 
With regard to the beneficiary's proposed employment with the U.S. petitioner, the following statement was 
provided: 
[The beneficiary] is [plresident of the [petitioner] and thus has no supervisor. [He] is 
responsible for establishing policies and procedures for the U.S. subsidiary, as well as for all 
personnel decisions. He is responsible for negotiating contracts with suppliers and clients, as 
well as marketing and accounts. He reports back to the [bloard of [the foreign entity] in 
Japan, but [he] makes all decisions for [the petitioner] taking into account the best interests of 
the [floreign and U.S. companies. 
The estimated time breakdown of [the beneficiaryl's activities is: [clontract-related work- 
25%; [vlendor [r]elations/[m]arketing-30%; [gleneral [m]anagement45%. [The 
beneficiary is currently assisted in his duties by four employees. One employee serves as an 
[alssistant [mlanager and oversees the day-to-day workings of the company, including, but 
not limited to, keeping a proper accounting of the daily transactions, inventory, and client 
relations. The additional three employees staff the importlexport business, serving as clerks. 
They handle the phones, stoclang, and front-end client [sic]. [The beneficiary] is not called 
upon to perform any nonmanagerial functions in the day-to-day running of the company, 
which leaves [him] free to pursue other business matters and opportunities. 
On July 8, 2005, the director issued a notice denying the petition, concluding that the petitioner's failure to 
provide sufficient descriptions of the beneficiary's respective job duties abroad2 and in the United States 
precludes an affirmative determination that the beneficiary was and would continue to perform job duties that 
are primarily with a qualifying capacity. 
On appeal, counsel insisted, despite the director's conclusion, that the letter previously provided from one of 
the foreign entity's partners provided a detailed description of the beneficiary's duties abroad. However, the 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter oflaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 
' Although the individual's signature appears on the letter, it is illegible and is not accompanied by a printed version. As 
such, the AAO cannot refer to the individual by name and must refer to him as the foreign entity's partner. 
The director noted that the petitioner failed to provide a percentage breakdown of time the beneficiary spent performing 
specific duties abroad. However, the AAO notes that the petitioner was only asked to provide a percentage breakdown 
for the beneficiary's proposed duties in the United States. The petitioner's failure to submit specific evidence that was 
never requested by the director cannot be used to discredit a petitioner's claim. 
Page 5 
506 (BIA 1980). While the petitioner's appeal is a clear indication of counsel's general disagreement with the 
director's findings, counsel cannot overcome the director's conclusion merely by voicing his disagreement to 
the director's well-reasoned observations. 
Contrary to counsel's apparent misconception, supervision over the foreign entity's personnel and key aspects 
of the foreign entity's business does not explain what duties the beneficiary performed on a daily basis during 
his employment abroad. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 
41 (2d. Cir. 1990). The petitioner's failure to specify the beneficiary's daily activities precludes the AAO 
from concluding that he primarily performed duties of a qualifying nature. 
With regard to the beneficiary's proposed duties in the United States, counsel again reiterates information that 
was previously provided in response to the WE. However, the director clearly informed the petitioner that 
the information previously provided was insufficient due to its failure to state the beneficiary's specific job 
duties. The AAO notes that in examining the executive or managerial capacity of the beneficiary, Citizenship 
and Immigration Services (CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 
§ 204.56)(5). Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In the instant matter, 
the petitioner categorized the beneficiary's proposed position into three key responsibilities. However, the 
petitioner failed to specify the actual job duties the beneficiary would carry out on a daily basis in meeting 
those three responsibilities. While the beneficiary's executive position title and position within the petitioner's 
organizational hierarchy indicate that the beneficiary would have broad decision-making power, the AAO 
cannot conclude that the beneficiary would be employed in a qualifying capacity without full disclosure of the 
beneficiary's proposed list of duties. 
Furthermore, while counsel asserts that the petitioner has a sufficient support staff to relieve the beneficiary 
from having to perform nonqualifying operational tasks, CIS cannot make an affirmative finding in favor of 
the petitioner merely based on the implication that the company has employees aside from the beneficiary to 
carry out nonqualifying tasks. Such a finding cannot be made without a detailed job description of duties the 
importance of which was clearly spelled out in the WE. As the petitioner has failed to provide this crucial 
information, the AAO cannot conclude that the beneficiary's proposed employment would be within a 
primarily managerial or executive capacity. 
Beyond the director's decision, 8 C.F.R. 204.56)(3)(i)(D) requires that the petitioner establish that it was 
doing business for one year prior to filing the Form 1-140. 
The regulation at 8 C.F.R. 204.56)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods andlor services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." 
In the instant matter, while the petitioner has submitted various invoices documenting business transactions, 
they do not account for the full one-year period prior to the date the Form 1-140 was filed. 
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, afld. 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.