dismissed EB-1C Case: Information Technology

(b)(6)
7' ~, . 
\ . 
DATE: 
IN RE: 
MAR 0 9 2013 
Petitioner : 
~eneficiary: 
OFFICE: TEXAS SERVICE CENTER 
·u.s. Department ·or Homeland Security 
U. S. Citizenship (lnd lmmigra1ion Services 
Administrative Appeals Office .(AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship . 
and Immigration 
Services 
FILE: 
. ' PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to· 
Section 203(b)(l)(C) of the Iminigratipn and Nation-ality Act, 8 U.S.C . § 1153(h)(l)(C) : 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
·Enclosed please find the decision of the Administrative Appeals Office in your case. All, of the documents 
related to this matter have been returned to the office that originally decided your case. Please he advised .. that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reop~n in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F:R. § 103.5(a)(l)(i) requires any motion to he filed within 
30 days of the decision that the motion seeks to reconsider or reopen . 
. Thank yo~) . 
>·~·V·.~· . ' 
' -' ~-.. :-' ~: 
., ~on ~~s~: ~,~~~ · · ... 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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 Florida corporation that is engaged in information technology consulting and 
development, and seeks to employ the beneficiary as its president/CEO. Accordingly , the petitioner 
endeavors to classify the beneficiary as an employment-based immigrant · pursuant ·to section 
203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a 
multinational executive or manager: . 
On May 15, 2012, the director denied the petition conCluding that the petitioner failed to establish 
that the benefiCiary's proposed employment with the _U.S. entity would be within a qualifying 
managerial or executive capacity. 
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 o·r 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)(1)(C) of the Act as amultinational executive or manager. No labor certification is 
required for this classification. The prospective employer in t'he United States must furni~h 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 issue that will be addressed in this proceeding calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the petitioner . submitted 
sufficient evidence to establish that the beneficiary would be employed in the United States in a 
qmilifying managerial o~ executive capacity. · 
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Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages ·the organization, or ·a department, subdivision, function, qr 
· component of the organization; 
(ii) ·supervises imd 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 persqnnel 
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 virtu,e 
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: 
. ! 
) 
. 1 
The term "executive capacity" :ineans 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 examining the executive or managerial capacity of the beneficiary, USCIS will look first to: the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(1)(5). Published case .Jaw cle'arly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves r~veaf 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); see also 8 C.F.R. § 204.5(1)(5). That being said, ho~e'ver, . 
USCIS rev.iews the· totality of the record, which includes not only the beneficiary's job descripi.ion, 
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but also takes into account the nature 'of .the petitioner's business, the employment and remuneration 
of employees, as well as the job descriptions of the beneficiary's subordinates, if any, and ~ny ~iher 
facts contiibuting to a complete understanding of a beneficiary's actual role within a given ·entity .. 
Th~ definitions of executive and managerial capacity have two parts. First, the petitioner inhst show 
that the beneficiary performs the high-level responsibilities that are specified in the definitions. 
·Second, the petitioner must prove that the benefiCiary. primarily performs these speci_fied 
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion 
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Ultimately, the truth is to be determined not by the quantity of evidence alone but by its quality. 
Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). If USCIS fails to believe the facts avowed 
in the petition are true, then those assertions may be rejected. Section 204(b) of the Act, 8 U.$.C. 
§ 1154(b); $ee also Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
I . ' 
Upon review of the. petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a managerial or executive capacity. When examining the executiv~ or 
managerial capacity of the beneficiary, the AAO will look first to the petitioner's description of the 
job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job duties must cle'arly 
describe the duties to be performed by the beneficiary and indicate whether such duties are either in 
an executive or managerial capacity. /d. 
'\ 
Due to the overly general and vague list of job duties, the AAO is unable to gain a meaningful 
understanding of how much time the beneficiary will spend performing qualifying tasks versus tf)ose 
that would be deemed non-qualifying. .: 
In a support letter, dated March 24, 2011, the petitioner stated that the beneficiary is "responsible for 
the day-to-day operations of. [the petitioner], exercising a wide latitude of disc;retionary decision­
making powers in directing daily operations and planning business strategies ." The petitioner ~lso 
stated that the beneficiary will "strive to continue expanding the business in the United States :and 
will be responsible for the execution of new contracts with various U.S. companies." 
In response to the request for evidence, the petitioner also added that the beneficiary will spend 15 
percent of his time in "financial planning and analysis;" and 10 percent of his time devoted to 
meeting with clients;" and 20 percent of his time in "research of trends and development withiri the 
business segments that [the petitioner] innovates products and services for." However, it is unclear 
which specific tasks actually fall within all _of these very broad categories. M_erely using 'the ~erm 
"managing" the operations to describe _ the beneficiary's function does not -establish :that : the 
supervisory tasks the beneficiary will perform are of a qualifying nature. _ In addition, the petitioner 
does not indicate any employees in the financial or budgeting department or market :research 
department to help with the financial objectives and market rese~rch goals. Going o.n record wit~out 
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 _Matter of 
Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
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The petitioner also stated that the beneficiary will spend 30 percent of his time "coordinating \ the 
creation of software and technology developed by offices in Tallinn, Estonia." the 
petitioner provided a Jetter from the beneficiary stating that the beneficiary is the director ,of 
and supervises an office manager, a programmer and a partner at Ideate~ in 
Estonia. However, the petitioner did not provide any corroborating evidence that is 
working with the petitioner such as a contract, invoices or purchase agreements · between 
and the petitioner. In addition, the petitioner did not provide any evidence that is an 
established company in Estonia, or that it actually employs individuals, or what type of services or 
products created by this office. The petitioner provided a document entitled, "Stock s\vap 
Agreement," dated June 30, 2009, whereby the beneficiary's foreign employer, "desires to: trade to 
100 shares of [the petitioner's] common stock." This agreement alone is not sufficient 
evidence of a relationship between the petitioner and The petitioner did not provide a 
new stock certificate or a stock ledger for the petitioner to indicate that the new parent compaJy is 
Again, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 l&N Dec. 158 at 
165 . 
. Furthermore, the petitioner stated that the beneficiary will spend 25 percent of his time "meeting with 
coordinating business development initiatives within ~ the 
corporations that [the petitioner] creates and incubates." The petitioner stated · that is the 
senior management consultant and spends 100 percent of his time "managing the ongoing 
relationship between [the petitioner] and its entity · · :." The petitioner also 
stated that . is the director of business development and spends 80 percent of his time 
on "sales functions" and 20 percent of his time in "procedure development." The petitioner also 
provided a letter from that stated he is "currently placed as an ex~cutive at· 
·-- ." The job descriptions for these two contractors are very vague and .geqeral 
and do not provide a clear explanation of the duties they perform for the petitioner. In addition,' the 
petitioner did not provide a contract indicating that it employs the two contractors as ind~pendent 
contractors, or any tax documentation such as a Form 1098. The petitioner also failed to: proVide 
sufficient evidence of the hours put in by these two contractors. In addition, } 
provided letters stating that they are working for ;, a company 
founded by the petitioner. However, the petitioner did not provide any evidence that it has developed 
and established new companies or is affiliated with Furthermore, it 
appears that the consultants are working for another company and are not in fact assisting with any of 
the operations for the petitioner. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence. Any attempt to explain or recondle such 
inconsi(teneies will not suffice unless the petitioner submits 
competent objective evidence pdintinlg to 
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). ·· 
. f .· 
The petitioner does not provide sufficient evidence that the petitioner employs individuals~to a~sist 
with negotiations and contracts, finances, budgeting, market research and development. ·Thu~, it 
appears that the beneficiary is performing the duties inherent in operating a business such :as s~les, 
marketing, and finances. An employee who ''primarily" performs the tasks necessary to ptoduce a 
product or provide a service is not considered to be "primarily" employed in a manageriai or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" 
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it 
perfonn the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I & N Dec. 593,604 (Comm. 1988). · 
The petitioner also stated in a letter that it "operates as an internet technology incubator, which in turn 
has founded and created multiple businesses in the USA over the past several years, creating over $1 
million per month in aggregate r~venues, and more than 60 full time employees dome.stically." . 
Again, the petitioner did not provide any corroborating evidence that the petitio.ner established these 
companies and/or whether the new companies are still affiiiated to the petitioner. Again, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting th~ ~urden 
of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158 at 165. · 
' -. ! 
1 ' 
The petitioner also provided four consulting agreements or purchase agreements between ! the 
petitioner and other companies. In the agreements, it states that the petitioner will provide consul.ting 
in areas of "manag~ment, sales, operations, software programming, advice, counsel and any other 
assist~ce;" and information technology activities such as running company websites. However; the 
petitioner failed to provide · any information on which employees will actually be provi'ding ~ the 
consulting services discussed in these agreements. The beneficiary is the only employee o( the 
petitioner and the two contractors stated that they are based in another company; thus, it is unGlear 
who will provide the day-to-day infonnation technology consulting services the petitio~er ~ust 
provide from these contracts . 
On appeal, counsel for the petitioner asserts that the beneficiary primarily performs executive and 
managerial duties, however, the petitioner did not submit ·any documentation to confirm )his 
assertion. Without documentary evidence to support the claim, the assertions of counsel : will: not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 5.33, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. I (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). ~ ; 
I 
In summary, the petitioner has failed to provide sufficient ~vidence to establish that the beriefic)ary 
would be employed in the United States in a qualifying managerial or executive capacity and: the 
instant p~tition cannot be approved. · 
Beyond the decision of the director, the record lacks substantive job descriptions establishing ~hat 
job duties the beneficiary perfonned during his employment abroad. In addition, the petit(on hicks 
any evidence of the company abroad. The petitioner provided an organizational chart for the for~ign 
company but failed to provide any corroborating evidence to show that these employees are: act4ally 
working for the foreign company and failed to provide a job description for each erilployee. 
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. · Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden 9f pr()of. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. :Cir. 
1990); Avyr Associates, hie. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual d~lies 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724F. Supp. 
at 1108. 
Beyond the decision of the director, the petitioner failed to establish that it has the ability to pay, the 
beneficiary's proffered wage. In response to the request for evidence, the petitioner stated that it ~oes · 
(b)(6)
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not pay the beneficiary a salary but pays for all of his expenses. However, there is no evidence ithat 
the expenses paid to the beneficiary reach the ·amount of the proffered wage. In addition, : the 
petitioner stated that the foreign company will pay part of the beneficiary's salary if need : be; 
however, the foreign company is not the petitioning entity in this proceeding, and . users f1lust 
examine whether the prospective United States employer maintains the ability to pay the proff~red 
wage. Thus, the petitioner did not provide sufficient evidence to establish that the petitioner has the 
ability to pay the beneficiary's proffered wage. : · 
Beyond the decision of the director, the petitioner did not submit sufficient evidence to establish :that 
it has a qualifying relationship with the beneficiary's foreign employer. To establish a "q\lalifying 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign 
employer and the proposed u.s. employer are the same employer (i.e. a u.s. entity with a for~ign 
office) or related as a "parent and subsidiary" or as "affiliates." See generally § 203(b )(1 )(C) of.· the 
Act, 8 U.S.C. § 1153(b)(1)(C); see also 8 C.F.R. § 204.50)(2) (providing definitions of the t~rms 
"affil~ate" and "subsidiary"). · 
As general evidence of a petitioner's claimed qualifying relationship, the articles of incorporation 
alone are not sufficient evidence to determine whether a stockholder maintains ownership and control 
of a corporate entity. The stock certificates, corporate stock certificate ledger, stock · certificate 
registry, corporate bylaws, and the minutes of relevant annual . shareholder meetings must alsd be 
examined to determine the total number of shares issued, the exact number issued to the sharehol ,der, 
and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distributioh of 
profit, the management and direction of the subsidiary, and any other factor affecting actual cbntrdl of 
. the entity. See Matter orSiemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, US CIS is ·unable to determine the elements of ownership and control. · 
In the instant petition, the petitioner submitted a stock certificate indicating that the beneficiaiy's 
foreign employer in Canada owns 100 percent of the petitioner. However, in response to the reqLest 
for evidence, the petitioner submitted a document entitled, "Stock Swap Agreement ;" that state~ the 
company in Canada will transfer all of the stocks it <;>wns of the petitioner to , a company 
in Estonia . However, this document is not enough documentation to prove a qualifying relationship. 
As stated above, the petitioner must also disclose stock certificates, stock ledgers, corporate bylaws, 
the minutes of relevant annual shareholder meetings and agreements. It is incumbent upon ( the 
petitioner . to -resolve any inconsistencies in the r~cord by independent obje'ctive evide~ce. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner ' submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (Blf\. 1988). . . . 
The AAO acknowledges that USCIS has previously· approved an L-1A petition filed by the petiti<;>ner 
on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant petitions are de~ied 
after USCIS approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, In~. v. 
INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept . of Justice, 48 F. Supp. 2d 22; Fedin 
Brothers Co. Ltd. v. Sava, 724 F. Supp.1103. Examining the consequences of an approved petition, 
there is a significant difference between a nonimmigrant -L-lA visa classification, which allow$ an 
alien to enter the United States temporarily, and an immigrant E-13 visa petition, which permit~ an 
. ' ' 
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Page 8 
alien to apply for permanent residence in the United States and, if granted, ultimatet'y ~pplyi for 
naturalization as a United States citizen. Cf §§ 204 and 214 of the Act; 8 U.S.C. §§ 1154 and 1184; 
see also § 316 of the Act, 8 U.S.C. § 1427. Because USCIS spends less time reviewibg 1~129 
nonimmigrant petitions than 1-140 immigrant petitions, some. nonimmigrant L-1A peti$ons ; are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also ·8 C.F.R. 
§ 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an L-lA petition's 
validity). : · 
Despite the previously approved petition, USCIS does not have any authority to . confer'· an 
immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. )See 
section 291 of the Act. Each petition filing is a separate proceeding with a separate record. S~e 8 
C.P.R. § 103.8(d). In making a determination of statutory eligibility, USCIS is Iimite,d to, the 
information contained in that individual record of proceeding. See 8 C.P.R. § 103.2(b)(16)(ii). B*sed 
on the lack ofrequired evidence of eligibility in the current record, the AAO finds that the: dire'.ctor 
was justified in departing from the previous nonimmigrant petition approval by denying the instant 
petition. 
I 
An application or petition that fails to comply with the technical requirements of the Hiw. 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), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F:3d 143, 145·. (3d 'Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. · . 
• j 
The petition will be denied for the above stated reasons~ with each considered as an indepen'.dent !and 
alternative. b~sis 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. § 13~1. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. 
r ·