dismissed EB-1C Case: Industrial Manufacturing

(b)(6)
DATE : AUG 0 3 2015~ 
IN RE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT# : 
U.S. Depnrrmcnt of Homc.land Security 
U.S. Citi zenship and Immigr ation Services 
Administr ative Appeals Office 
20 Massachusetts Ave., N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER : 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
deci sion and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be 
filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location , and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
Chief , Administr ative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. We will dismiss the appeal. 
The petitioner, a manufacturer and seller of industrial cutting tools, seeks to employ the beneficiary 
in the United States as business development manager for its product tine. The petitioner 
filed this Form I-140, Immigrant Petition for Alien Worker, on January 13, 2014, seeking to classify 
the beneficiary as an employment-based immigrant under section 203(b )(1)(C) of the Immigration 
and Nationality Act (the Act) , 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition on November 28, 2014, concluding that the petitioner had not 
established that the beneficiary 's duties qualify as managerial, either in his previous position abroad 
or in his intended position in the United States. 
On appeal, the petitioner submits a legal brief and copies of materials already in the record. The 
petitioner maintains that it provided enough information to show that the beneficiary 's duties were, 
and remain, managerial in nature. 
I. Law 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers.- Visas shall first be made available ... to qualifi ed 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 
classific ation 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 affili ate 
or subsidiary thereof and the alien 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 only to 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 Form I-140 to classify a beneficiary under section 203(b)(1)(C) of 
the Act as a multinational executive or manager. The regulation at 8 C.F.R. § 204.50)(5) states: 
No labor certification is required for this classification; however, 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 
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or executive capacity. Such letter must clearly describe the duties to be performed by 
the alien. 
Section 101(a)(44) of the Act, 8 U.S.C. § 1101(a)(44), provides: 
(A) 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. 
(B) The term "executive capacity" means an assignment within an organization m 
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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take 
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into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. See section 10l(a)(44)(C) of the Act. 
II. Issues on Appeal 
At issue in this proceeding is whether the petitioner has established that the beneficiary 's former duties 
abroad, and his current and proposed duties in the United States, qualify as managerial and/or executive. 
A. Duties Abroad 
1. Facts 
In support of the pet1t10n, the petitioner submitted a November 1, 2013 letter describing the 
beneficiary's duties as a deputy department manager at in Switzerland prior to his arrival 
in the United States: 
[The beneficiary] oversaw a team of Design Engineers in the entire process of 
designing a cutting tool. . . . In addition, [the beneficiary] managed the 
two-dimensional and three-dimensional design of new products, cross-checked 
production drawings, managed all production meetings, and coordinated the technical 
aspects of all sales orders from customers. [The benefici ary] also compiled 
guidelines for the design engineering team and was responsible for training his staff 
and ensuring the knowledge transfer of • design to subsidiaries. 
As Deputy Department Manager, [the beneficiary] had the authority to train, coach, 
discipline and terminate employees. He made decisions daily to uphold the quality 
standard of the product. ... [The beneficiary] was responsible for the quality and the 
output of designs from his team. . . . He reported to [also spelled 
], CEO [chief executive officer] of 
The director issued a request for evidence (RFE) on June 24, 2014 . The director stated that the 
description quoted above did not establish that the beneficiary 's duties abroad were prim arily 
managerial or executive . The director stated that the description "is general and does not includ e the 
day-to-day job duty description " that would show "what he actually did and the percentage of time 
he spent performing his detailed duties ." 
In a response dated September 15, 2014, the petitioner asserted that the beneficiary "principally 
managed the design process for the product line at • ," "supervis ed 
and controlled the work of professional employees," and "exercised a high level of discretion over 
the day-to-day operations of the design process ofthe product line." 
The petitioner submitted a letter dated September 9, 2014 from , identified here as the 
president of (the new name of ), describing the beneficiary 's work 
at that company . The description almost exactly matches the description submitted previously, and 
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therefore does not bear repeating here. The new description indicated that the beneficiary had hiring 
authority, a detail not provided earlier. Mr. stated that the beneficiary "reported directly to 
Mr. . Vice President Engineering, who reported directly to me." 
Mr. also stated: 
I can certify that no documents exist regarding [the beneficiary 's J employment with 
after it merged into This would include [the 
beneficiary's] payroll documents, detailed information relating to [the beneficiary's] 
subordinates, company organizational charts, and samples of his work product that 
would demonstrate that he was employed as a manager prior to this transfer to the 
United States. 
A chart provided further claimed details about the beneficiary's work. The information in the chart 
is condensed below: 
Function/Task within that function %of time 
Supervise 14 College Graduate Design Engineers 
Interview, select, hire and train new engineering personnel 1.0 
Establish performance measurements. Measure employees 1.9 
against performance indicators and take appropriate action, e.g., 
promotions, demotions, and discipline. 
Motivate and engage employees to meet and exceed their goals. 1.6 
Supervise design, development, engineering and troubleshooting 
Develop the process of creating engineering drawings. Manage 37.5 
the design team to follow the process. 
Provide technical support to design engineers. 20.0 
Manage prototype development by meeting with design team. 3.5 
Manage production meetings 
Manage production meetings and provide technical support 3.8 
Coordinate all technical aspects of sales orders 
Provide technical assistance to sales team to determine if a tool 12.5 
can be made or not 
Quality 
Define cross check procedure for design engineers, take remedial 9.4 
action 
Define parameters for final testing during production 0.1 
Day to day operations 
Make discretionary decisions regarding day to day operations 8.8 
The petitioner asserted that the beneficiary's former "position is clearly managerial" when compared 
to the description of an engineering manager position in the Department of Labor's Occupational 
Outlook Handbook , which the petitioner quoted: 
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1. Make detailed plans for the development of new products and designs 
2. Lead research and development teams that produce new products, processes, 
or designs 
3. Check the technical accuracy of their team's work 
4. Ensure the soundness of methods their staff uses 
5. Coordinate work with other teams and managers 
6. Propose budgets for projects and programs 
7. Determine staff, training, and equipment needs 
8. Hire, assign, and supervise staff 
The petitioner stated that the beneficiary's duties abroad compared to the above list as follows: 
• Manage the process of design, development, engineering and troubleshooting of 
_ (Bullet 1 and 3) 
• Supervise 14 College Graduate Design Engineers (Bullet 2, 4, 7 and 8) 
• Manages production meetings (Bullet 5) 
• Coordinate all technical aspects of sales orders (Bullet 5) 
• Ensure Quality Control of Design Process (Bullet 3) 
In the denial notice, the director found that Mr. letter lacked detail about the beneficiary's 
duties, and did not explain "why a Deputy Department Manager would report to a VP instead of 
what might seem more likely, to a Department Manager." The director found that the petitioner's 
chart was "too broadly written to demonstrate what [the beneficiary] specifically did." 
On appeal, the petitioner asserts that it has submitted highly detailed information to show that the 
beneficiary's "foreign position of Deputy Department Manager clearly meets the definition of 
managerial capacity." The petitioner describes some of the details provided in the chart submitted in 
response to the RFE, and states "[t]here is absolutely no indication ... [that the beneficiary] is 
actually performing the duties necessary to produce a product or service" rather than managing the 
work of others in that respect_ The petitioner also asserts that the director "arbitrarily" disregarded 
or failed to believe assertions in Mr. letter, even though "it would be clear to a reasonable 
person that Mr. has full authority to make assertions regarding the employment of a former 
... employee." The petitioner contends that the director relied on "legal requirements 
that are not part of the statutory definitions." 
2. Analysis 
Upon review, we concur with the director's finding that the evidence of record does not establish that 
the beneficiary was employed abroad in a primarily managerial or executive capacity. 
The director, in the RFE, requested specific evidence to shed further light on the beneficiary's role with 
the foreign company. The director was entitled to request this evidence under 8 C.F.R. § 204.5G)(3)(ii). 
The petitioner asserts that Mr. is in a position to know about the beneficiary's work in 
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Switzerland, and that the director's failure to give deference to that letter means that "USCIS believes 
that Mr. letter must be either falsified or illegitimate." 
The central issue involves corroboration. The burden of proof is on the petitioner to establish eligibility 
for the immigration benefit sought. See section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende , 26 
I&N Dec. 127, 128 (BIA 2013). The petitioner cannot meet or relieve this burden by claiming, without 
elaboration, that no evidence exists relating to the beneficiary's claimed managerial duties abroad. 
Here, Mr. did not explain in his letter why the specific evidence discussed above does not 
exist. The petitioner stated: "As outlined in Mr. aforementioned letter, copies of 
organizational charts, payroll summaries etc. were destroyed after the company was merged into 
." Mr. did not state that the documents were destroyed after the 
merger; he stated only that "no documents exist." Furthermore, the claimed destruction of pre­
merger documents would not explain why there is no evidence of the beneficiary's "employment 
with after it merged into " (emphasis added). 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 ' r 1998) (citing Matt er of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The director requested specific evidence in keeping with the regulations at 8 C.F.R. §§ 103.2(b )(8)(iv) 
and 204.5(j)(3)(ii), and explained why that evidence is material to the proceeding. The petitioner's 
failure to submit the requested evidence is, itself, a ground for denial of the petition. See 8 C.F.R. 
§ 103.2(b)(14). The non-existence or other unavailability of required evidence creates a presumption 
of ineligibility. 8 C.F.R. § 103.2(b)(2)(i) . If a required document does not exist or cannot be 
obtained , the petitioner must demonstrate this and submit secondary evidence pertinent to the facts at 
issue. !d. It cannot suffice to assert, without explanation or corroboration, that the requested 
documents do not exist. 
The director, in the denial notice, found that "the beneficiary's job title abroad is generic and does 
not seem likely to have been a job title which would have been given to a high managerial position." 
The petitioner takes issue with this finding, stating that the law does not require "a high managerial 
position" and that, therefore, the director has imposed impermissible new requirements. Viewed in 
context, the director did not require that the beneficiary have filled "a high managerial position ." 
Rather , the director indicated that an official in "a high managerial position" would report directly to 
a vice president of the company, whereas a "Deputy Department Manager would ... more likely 
[report] to a Department Manager." 
The appellate brief, submitted by the petitioner's counsel, contains this response to the issue: 
The U.S. equivalent to [the beneficiary's] foreign position is Engineering Manager. It is 
entirely plausible that a company could exercise its discretion in calling an Engineering 
Manager a Deputy Department Manager and that that Manager would report to a Vice 
President responsible for the function of Engineering. 
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The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The responsibility lies with the petitioner to 
corroborate such claims, not with users to refute them. 
Furthermore, the petitioner had previously claimed that the beneficiary reported to Mr. an 
assertion that Mr. himself contradic.ted when he stated that the beneficiary reported to a lower 
official. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence , and attempts to explain or reconcile such inconsistencies, absent competent 
objective evidence pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 
582, 591-2 (BIA 1988). The petitioner has not provided this objective evidence, contending instead that 
it does not exist. 
When examining the executive or managerial capacity of the beneficiary , we will look first to the 
petitioner's description of the job duties . See 8 C.F.R. § 204.50)(5). 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, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 
1990). The actual duties themselves will reveal the true nature of the employment. Id. 
The petitioner asserts that the petitioner "submitted a detailed chart outlining the position's daily 
duties, including ... the percentage of time as well as the minutes spent on each duty." The chart 
provided specific percentage and time figures, despite the asserted lack of any documentary evidence 
from which the petitioner could have derived those figures. The tasks to which the petitioner 
claimed the beneficiary devoted most of his time received only vague, general descriptions. Phrases 
such as "[ d)evelop the process of creating engineering drawings ," "[ m ]anage the design team to 
follow the process, " and "[p ]rovide technical support to design engineers" refer to broad categories 
rather than identifi able activities, and their wording raises additional questions. For instance, 
"provide technical support" could refer to support from above or below, and therefore is not 
inherently managerial. As another example, the beneficiary is said to have spent 37.5% of his time-
60 hours per month- "[d]evelop[ing] the process of creating engineering drawings." The petitioner 
has not explained how "the process of creating engineering drawings" requires continuou s 
development in this way. 
Inconsistencies and questions regarding the petitioner's evidence serve to highlight the need for 
corroborating evidence. The contention that such evidence does not exist does not relieve the 
petitioner of its burden of proof. It is, rather, a concession that the petitioner cannot meet that 
burden. For this reason , we agree with the director's decision to deny the petition. 
B. Duties in the United States 
We now turn to the issue of whether the beneficiary will be employed m the United States m a 
qualifying managerial or executive capacity. 
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In general, when examining the executive or managerial capacity of a given position, we review the 
totality of the record, starting first with the description of the beneficiary's proposed job duties with the 
petitioning entity. Published case law has determined that the duties themselves will reveal the true 
nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1108. We then 
consider the beneficiary 's job description in the context of the employer's organizational structure, the 
duties of the beneficiary 's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other 
factors that may contribute to a comprehensive understanding of a beneficiary 's actual duties and role 
within the petitioning entity. 
Having conducted a review of these relevant factors in the matter at hand, we find that the petitioning 
entity's organizational structure, the beneficiary's job description, and examples of the beneficiary's 
work product indicate that the entity is reasonably capable of relieving the beneficiary from having to 
allocate his time primarily to non-qualifying operational tasks. Based on the evidence provided 
regarding the petitioning entity's organizational composition, the beneficiary's placement therein, and 
the job duties performed by the beneficiary, we find that the petitioner successfully established that it 
more likely than not has the ability to relieve the beneficiary from having to allocate his time primarily 
to the performance of non-qualifying tasks and that the beneficiary is more likely than not employed in 
a qualifying managerial or executive capacity. 
The director found that there is "doubt about how much time the beneficiary actually spends performing 
operational tasks rather than delegating them." Even if the director has some doubt as to the truth, if the 
petitioner submits relevant, probative, and credible evidence that leads the director to believe that the 
claim is "more likely than not" or "probably" true, the applicant or petitioner has satisfied the standard 
of proof. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). The level of doubt that the record 
engenders is not sufficient to prevent the petitioner from satisfying this standard of proof. We therefore 
withdraw the director's finding regarding the beneficiary's employment in the United States. 
III. Conclusion 
Although we are withdrawing the director's finding with respect to the beneficiary's duties in the 
United States, the director 's finding still stands regarding the beneficiary's earlier employment abroad. 
We will dismiss the appeal for that reason. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. at 128. Here, 
the petitioner has not met that burden. 
ORDER: The appeal is dismissed.