dismissed EB-1C Case: It Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-T-R-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 4, 2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a Texas corporation that provides IT engineering consulting services, seeks to employ 
the Beneficiary in the position of vice president of operations under the first preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director, Texas Service Center, denied the petition. The Petitioner appealed the Director's 
decision and the matter was remanded for further action. The Director has since issued a second 
denial, concluding that the Petitioner has not established that: (1) it has a qualifying relationship 
with the Beneficiary's employer abroad; (2) the Beneficiary was employed abroad in a managerial or 
executive capacity; (3) the Beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity; and (4) it has the ability to pay the Beneficiary's proffered wage. 
The Director also made a finding of fraud based on anomalies and inconsistencies in the record. 
The matter is now before us on certification. The record contains no further statements or evidence 
from the Petitioner with regard to the Director's findings in the certified decision. 
Upon de novo review, we will affirm the Director's decision. 
I. LEGAL FRAMEWORK 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
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): 
Matter of A-T-R-, Inc. 
(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 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 regulation at 8 C.F.R. § 204.50)(3) states: 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager must 
be accompanied by a statement from an authorized official of the petitioning 
United States employer which demonstrates that: 
(A)If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by 
a firm or corporation, or other legal entity, or by an affiliate or subsidiary 
of such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer 
or a subsidiary or affiliate of the firm or corporation, or other legal entity 
by which the alien was employed overseas, in the three years preceding 
entry as a nonimmigrant, the alien was employed by the entity abroad for 
at least one year in a managerial or executive capacity 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at 
least one year. 
II. EVIDENTIARY STANDARD 
As a preliminary matter, and in light of the Petitioner's references to the requirement that we apply 
the "preponderance of the evidence" standard, we affirm that, in the exercise of our appellate review 
in this matter, we follow the preponderance of the evidence standard as specified in the controlling 
precedent decision, Matter o.fChawathe, 25 I&N Dec. 369, 375-376 (AAO 2010). In pertinent part, 
that decision states the following: 
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Matter of A-T-R-, Inc. 
!d. 
Except where a different standard is specified by law, a pet1t10ner or applicant in 
administrative immigration proceedings must prove by a preponderance of evidence that he 
or she is eligible for the benefit sought. 
The "preponderance of the evidence" of "truth" is made based on the factual circumstances 
of each individual case. 
Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, 
the director must examine each piece of evidence for relevance, probative value, and 
credibility, both individually and within the context of the totality of the evidence, to 
determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petltwner 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. See INS v. Cardoza-Foncesca, 480 U.S. 421, 431 (1987) (discussing "more likely 
than not" as a greater than 50% chance of an occurrence taking place). If the director can 
articulate a material doubt, it is appropriate for the director to either request additional 
evidence or, if that doubt leads the director to believe that the claim is probably not true, 
deny the application or petition. 
We conduct appellate review on a de novo basis. In doing so, we apply the preponderance of the 
evidence standard as outlined in Matter of Chawathe. Upon our review of the present matter 
pursuant to that standard, however, we find that the evidence in the record of proceeding does not 
support the Petitioner's contentions that the evidence of record establishes eligibility for the benefit 
sought. 
III. QUALIFYING RELATIONSHIP 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a 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 foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally section 203(b)(l)(C) ofthe Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
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(b)(6)
Matter of A-T-R-, Inc. 
The pertinent regulations at 8 C.F.R. § 204.5(j)(2) define the relevant terms. Generally, the term 
"affiliate" means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; [or] 
(B) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity .... 
The same regulation defines a "subsidiary" as: 
a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, 
more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of 
a 50-50 joint venture and has equal control and veto power over the entity; or owns, 
directly or indirectly, less than half of the entity, but in fact controls the entity. 
A. Evidence of Record 
The Petitioner filed the Form I-140 on January 20, 2011. In support of the petition, the Petitioner 
provided a cover letter along with 44 supporting exhibits. 1 The Petitioner identified the 
Beneficiary's last foreign employer as claiming to be parent based on its claimed 
ownership of 60%, or a majority interest, of that entity. The Petitioner claimed that its control of the 
foreign entity is derived from a joint venture between the Petitioner and the foreign entity. 
The Director issued a request for evidence (RFE) on June 27, 2011, advising the Petitioner that the 
evidence in the record did not establish the existence of a qualifying relationship between the 
Beneficiary's foreign employer and the U.S. petitioning company. 
In response, the Petitioner provided a statement accompanied by 36 supporting exhibits. After 
reviewing the Petitioner's submissions, the Director issued 
a denial, dated March 11, 2013, 
concluding, in part that the Petitioner did not establish that it has a qualifying relationship with the 
Beneficiary ' s foreign employer. The Director found that the Petitioner's submissions did not 
support a finding of eligibility. Namely, the Director noted that certain foreign language documents 
were submitted without corresponding certified English translations and further pointed to various 
1 While reviewing the decision that the Director certified to our office for review along with all prior submissions , we 
observed that a number of the exhibits that were intended as part of the Petitioner's originally submitted supporting 
evidence , i.e., were missing from the record of proceeding. Accordingly , we issued a Jetter, dated August 21 , 
2015, informing the Petitioner of the missing evidence. We allowed the Petitioner the opportunity to supplement the 
record . On September 21, 2015, the Petitioner responded to our letter and submitted the missing evidence , which 
consisted of the missing exhibits We have reviewed and incorporated the exhibits into the record. 
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Matter of A-T-R-, Inc. 
documentary anomalies and inconsistencies that gave nse to doubt as to the credibility of the 
Petitioner's claim. 
The Petitioner filed an appeal on April 12, 2013, contending that all foreign documents were 
accompanied by the required translations. The Petitioner generally disputed the Director's findings. 
On January 24, 2014, following our review of the entire record, we issued a decision remanding the 
matter back to the service center based upon the Director's introduction of derogatory evidence of 
which the Petitioner was not notified prior to the issuance of the denial and which served as a basis 
for several of the Director's adverse findings. We instructed the Director to issue a notice of intent 
to deny (NOID) in order to notify the Petitioner of any and all derogatory information that would 
serve as a basis for denying the petition, and to allow the Petitioner an opportunity to rebut the 
derogatory information and/or evidence. 
The Director complied with our instructions and issued a NOID on April 30, 2014. The Director 
included the adverse findings that were issued in the original denial notice and added an additional 
finding. 
The record indicates that the Petitioner did not respond to the NOID. Accordingly, the Director 
issued a decision, dated September 10, 2014, denying the petition, in part, based on the conclusion 
that the Petitioner did not establish that it has a qualifying relationship with the Beneficiary's 
employer abroad. 
B. Analysis 
Upon review of the petitiOn and the evidence of record, we conclude that the Petitioner has 
established that it has a qualifying relationship with the foreign entity. 
The regulation and case law confirm that ownership and control are the factors that determine 
whether a qualifying relationship exists between United States and foreign entities for purposes of 
this visa classification. See Matter of Church Scientology Int'l, 19 I&N Dec. 593 (BIA 1988); see 
also Matter ofSiemens Med. Syss., Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N 
Dec. 289 (Comm'r. 1982). In the context of this visa petition, ownership refers to the direct or 
indirect legal right of possession of the assets of an entity with full power and authority to control; 
control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter a,[ Church Scientology Int 'l, 19 I&N Dec. at 595. 
In the present matter, the Petitioner's claim of having a qualifying relationship rests on its 
understanding that by virtue of participating in a joint venture with the Beneficiary's foreign 
employer, a qualifying relationship was created between the two joint venture participants, i.e., the 
Petitioner and the Beneficiary's employer abroad. Contrary to the Petitioner's assertion, the 
question of whether the requisite qualifying relationship exists must be addressed by focusing on the 
key elements of common ownership and control between the Petitioner and the Beneficiary's 
employer abroad. Here, the Petitioner submitted the foreign entity's October 13, 2007 "Ordinary 
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Matter of A-T-R-, Inc. 
Meeting of Shareholders," which shows that the Petitioner acquired 30,000 out of 50,000 shares 
issued by the foreign entity, thereby resulting in the Petitioner's acquisition of a 60% ownership 
interest in that entity, as discussed in the initial supporting statement. 
As such, the Petitioner's qualifying relationship with the foreign entity resulted from its purchase of 
60% of the foreign entity's shares, rather than the formation of a joint venture between the Petitioner 
and the foreign entity. While acquiring ownership of an entity by participating in a 50-50 joint 
venture may be one way of establishing a parent-subsidiary relationship between the purchasing and 
subsidiary entities, the evidence presented in the matter at hand indicates that the Petitioner's 
majority ownership of the foreign entity is the key indicator that a parent-subsidiary relationship was 
created, regardless of any joint venture, which may or may not have been created. Therefore, the 
Director's determination that the Petitioner did not provide sufficient evidence to show that the 
Petitioner and the Beneficiary's foreign employer "have exercised a 50/50 joint venture and that both 
entities have equal control and veto power over the foreign company and the U.S. petitioner," is 
irrelevant in determining whether a qualifying relationship exists between the two entities in 
question. 
As previously explained in this discussion, in order to determine whether the Beneficiary's U.S. and 
foreign employers have a qualifying relationship, we must consider the elements of common 
ownership and control shared between the two entities. In the instant matter, by virtue of having 
submitted evidence to show that the Petitioner acquired a majority of the foreign entity's stock, the 
Petitioner met its burden in establishing that a qualifying relationship was established. While the 
terms of the joint venture agreement between the Petitioner and the Beneficiary's foreign employer 
indicate that both entities would make capital contributions to the venture, the true basis for the 
qualifying relationship is the Petitioner's ownership and control of the foreign entity, rather than its 
60% capital contribution to the joint venture. 
In light of the above, we hereby withdraw the Director's finding, as it is not consistent with the 
above analysis. 
IV. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The next two issues to be addressed in this discussion pertain to the Beneficiary's employment in a 
managerial or executive capacity. The Director denied the petition based, in part, on a finding that 
the Petitioner did not establish that: (1) the Beneficiary will be employed in a managerial or 
executive capacity; and (2) the Beneficiary was employed abroad in a managerial or executive 
capacity. 
The regulation at 8 C.P.R. § 204.5G)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. 
The statement must clearly describe the duties to be performed by the Beneficiary. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" 
as "an assignment within an organization in which the employee primarily": 
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Matter of A- T-R-, Inc. 
(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), defines the term "executive capacity" 
as "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. 
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 into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. U.S. Employment in a Managerial or Executive Capacity 
1. Evidence of Record 
On the Form I-140, the Petitioner indicated that it had eight employees in the United States at the 
time of filing and a gross annual income of $825,124. In its supporting statement, the Petitioner 
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(b)(6)
Matter of A-T-R-, Inc. 
claimed that the Beneficiary "has supervised a major function of the company and has been 
responsible for executive duties, in addition to being responsible for its operations and hiring of 
additional personnel." In a separate statement, the Petitioner provided a list of 11 job duties, which 
were restated in the Petitioner's RFE response statement, which included the following 
corresponding percentage breakdown: 
• Designs the short, medium and long[-]term engineering consulting services plans 
of our engineering consulting firm based out of Texas; 20% 
• Coordinates, organizes, supervises and controls the integration operations and the 
staff reporting to him, including presentation analysis, presentation to clients, job 
accuracy, and staff accountability; 15% 
• Oversees all activities in support role to the [p ]resident, including service pricing, 
financial reports, budget for both services, studies, consultation and engineering 
analysis; 15% 
• Meets frequently with subordinate engineers to ensure job accountability and 
accuracy in the parameters of our services which include services related to 
foundation and structural systems analysis, hydrology and water penetration 
analysis, accident reconstruction; general causal analysis; construction materials 
failure, statistical analysis; accident investigation analysis, and fire/wind/water 
damage analysis; 15% 
• Directs, and evaluates the reports received from his subordinate engineers on 
topics based [sic] related to our engineering consulting services[;] 10% 
• Supervises the results of the subordinate staff to improve the long[-]term 
competitiveness of the services offered by the company, and develops new 
presentation strategies and analysis which targets specific areas, with initiatives 
focused on the areas under his supervision ... ; 1 0% 
• Directs subordinates in their particular recommendations given to clients, 
including studies and opinions in diverse engineering fields; 10% 
• Participates in the initial contracts with potential target accounts and suppliers, 
including insurance companies, legal firms, and state and government offices[.] 
5% 
In the same RFE statement, the Petitioner stated that the Beneficiary also assumes a managerial role 
in which he is responsible for overseeing the work of three full-time employees and an unspecified 
number of "our part[-]time personnel." 
As indicated -previously, the Director originally denied the Petition on March 11,2013. The Director 
restated the above list of job duties and the corresponding percentage breakdown and affirmatively 
concluded that the Beneficiary would allocate 85% of his time to non-qualifying job duties. In the 
April 12, 2013 appeal, the Petitioner submitted a statement disputing the Director's findings. 
As indicated above, we issued a decision on January 24, 2014, remanding the matter back to the 
Director for a new decision. Following our remand, the Director issued a NOID on April 30, 2014 
Matter of A-T-R-, Inc. 
in which he again determined that the Beneficiary would not be employed in a managerial or 
executive capacity. 
The Petitioner did not respond to the NOID, resulting in the Director's issuing a second denial, dated 
September 10, 2014, which he certified to us for review. The record does not indicate that additional 
evidence or information has been submitted subsequent to the certification. 
2. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed 
in a managerial or executive capacity in the United States. 
While we have conducted a de novo review of the record, and find that the Petitioner has not 
provided sufficient evidence to establish that the Petitioner would employ the Beneficiary in a 
qualifying managerial or executive capacity, we conclude that the Beneficiary's job description, 
which formed the basis of the Director's determination, does not support the finding that "the 
beneficiary will be spending more than 85% of his time in [sic] non-managerial activities such as 
consulting, client presentations, budgeting, quality assurance and customer care." A review of the 
supporting job description shows that the Petitioner claimed that the Beneficiary would coordinate, 
organize, supervise, and control client presentations and oversee consultation and engineering 
analysis. The Petitioner did not claim that the Beneficiary would actually carry out these tasks 
himself. Further, contrary to the Director's analysis of the evidence, the job description made no 
mention of the Beneficiary's role, if any, with respect to budgeting, quality assurance, or customer 
care. Thus, while we find the Beneficiary ineligible for the immigration benefit sought herein, we 
cannot base our finding on the flawed analysis contained in the Director's decision. 
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 job duties with the U.S. 
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. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990). We then consider the Beneficiary's job description in the 
context of the Petitioner's organizational structure, its staffing and operational needs, as well as the 
job duties performed by support personnel. The sum of these factors contributes to our ability to 
gain a comprehensive understanding of the Beneficiary's placement and role within the Petitioner's 
organizational hierarchy. 
As indicated above, we find that a comprehensive review of the record indicates that the evidence of 
record is insufficient and does not adequately support the Petitioner's claim that the Beneficiary's 
proposed employment would be comprised of tasks that are primarily within a qualifying managerial 
or executive capacity. Although the Beneficiary's proposed percentage breakdown of job duties 
indicates that the Beneficiary would spend approximately 60% of his time in a supervisory role 
where he would oversee others in their performance of various operational tasks, the record lacks 
evidence to support these assertions. Namely, despite the claim made in the Form I-140, indicating 
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Matter of A-T-R-, Inc. 
that the Petitioner had eight employees at the time of filing, the Petitioner's RFE response contained 
a statement, dated July 26, 2011, in which the Petitioner listed a total of six employees, including 
one part-time administrative assistant and one new employee, who was hired approximately six 
months after the petition was filed. This additional information indicates that the U.S. entity may 
have been staffed with only one part-time and four full-time employees at the time of filing, which is 
not consistent with the Petitioner's original claim stating that it had a total of eight employees. The 
Petitioner has not resolved these inconsistencies with independent, objective evidence pointing to 
where the truth lies .. See, Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Although the Director did not expressly find that the Petitioner's original claim and the information 
provided in response to the previously issued RFE are inconsistent, both the NOID and the 
Director's final decision summarized the Petitioner's submissions and reiterated the Petitioner's 
claims, thus adequately informing the Petitioner of its submission of inconsistent evidence with 
regard to its staffing composition at the time of filing. The record shows that, while given the 
opportunity, the Petitioner did not respond either to the NOID or to the findings issued in the 
Director's certified decision. Thus, while the Beneficiary's list of job duties includes numerous 
references to subordinates, including "subordinate engineers" and a "subordinate staff' in general, 
the record does not contain evidence resolving the inconsistency regarding the number of employees 
the Petitioner had at the time the Form I-140 was filed; nor does the Petitioner provide supporting 
evidence establishing that it employed multiple subordinate engineers who could conduct the 
necessary types of analyses for the Petitioner's clients and who could provide reports for the 
Beneficiary to review with regard to the consulting services the Petitioner offers to its clients. 
As previously noted, the Petitioner's July 26, 2011 RFE response statement indicates that the 
Petitioner hired a second engineering employee on July 8, 2011, which is approximately six months 
after the Petition was filed. The evidence of record indicates that the Petitioner had, at most, one 
engineering employee at the time of filing, thus indicating that the Petitioner's references to 
"subordinate engineers" do not reflect the staffing hierarchy the Petitioner had in place during the 
time period in question. While it is possible that an entity's staffing composition can change after 
the date of filing as a result of new employees being hired or existing employees leaving or being let 
go, a determination of the Petitioner's eligibility must be made on the basis of facts and 
circumstances that existed at the time the petition was filed; a petition cannot be approved at a future 
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm'r 1971). 
In the matter at hand, a review of the job description that the Petitioner originally provided at the 
time of filing shows that the Petitioner made no references at all to "subordinate engineers" and 
made only general references to the Beneficiary's "subordinates," who were purportedly assigned 
the same analysis-based tasks - foundation and structural systems analysis, hydrology and water 
penetration analysis, general causal analysis, statistical analysis, accident investigation analysis, and 
fire, wind, and water damage analysis - that were expressly assigned to the Beneficiary's 
engineering subordinates in the subsequent job description that was provided in the Petitioner's RFE 
response. Given that the Petitioner did not have multiple engineering subordinates for the 
Beneficiary to oversee at the time of filing, it is unclear whether the types of analyses that had to be 
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Matter of A-T-R-, Inc. 
performed by the Beneficiary's subordinates required the knowledge and educational credentials of a 
professional engineering staff. 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 Matter of Treasure Craft ofCal~fornia, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). 
Further, while the updated job description that the Petitioner provided in the RFE response statement 
indicated that all analysis would be performed by the Beneficiary's subordinate engineering staff, the 
original job description indicated that the Beneficiary himself would actually conduct the various 
analyses. This comparison of job descriptions indicates that at the time of filing, the Beneficiary was 
assigned various non-qualifying operational tasks, which the Petitioner assigned to the Beneficiary's 
subordinates in a subsequent job description. While no beneficiary is required to allocate 100% of 
his time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying 
tasks the beneficiary would perform are only incidental to the proposed position. 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) ofthe Act (requiring that one "primarily" perform the enumerated managerial 
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988). Here, the original job description expressly indicates that the Beneficiary would be 
assigned certain non-qualifying operational tasks as part of his proposed position. However, based 
on the job descriptions provided, we are unable to determine what portion of time the Beneficiary 
would allocate to qualifying versus non-qualifying tasks. As such we cannot conclude that the 
Petitioner's operational tasks would truly be only incidental to the proposed position. 
After considering the differences between the two job descriptions, the inconsistent claims regarding 
the number of employees the Petitioner had at the time of filing, and the overall lack of evidence to 
establish the level of the Petitioner's organizational complexity at the time of filing, we cannot 
conclude that the Petitioner's organization was adequately staffed with the support personnel 
necessary to carry out the Petitioner's operational tasks, thereby relieving the Beneficiary from 
having to allocate his time primarily to non-managerial and non-executive job duties. In sum, the 
Petitioner has not provided sufficient reliable supporting evidence to establish by the preponderance 
of the evidence that the Beneficiary would be employed in the United States in a qualifying 
managerial or executive capacity. 
B. Beneficiary's Employment Abroad 
The third issue we will address in this decision is the Beneficiary's employment abroad and whether 
it was primarily comprised of tasks within a managerial or executive capacity. 
1. Evidence of Record 
In the original supporting statement, the Petitioner stated that during his employment abroad the 
Beneficiary "managed the operation of the company's operations, contract negotiations, project 
oversight, business plans, and financial procurement." The Petitioner added that the Beneficiary 
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Matter of A-T-R- , Inc. 
forecasted profits and losses and "was also responsible for negotiating and signing contracts with 
clients worldwide, vendors, and purchasers, and was responsible for the expansion of into the 
U.S .... " 
In response to the RFE, the Petitioner offered additional evidence in the form of a statement from the 
Beneficiary 's foreign employer. Namely , the foreign entity stated that during his employment 
abroad the Beneficiary allocated 20% of his time to directing and formulating a strategy "to 
consolidate [the foreign entity's] operational sites ... and affiliate offices"; 20% to developing and 
managing the foreign entity' s "commercial strategies and plans to optimize business performance in 
areas such as, [sic] supplier relationships , employee and manager efficiency, and operational 
performance"; 10% to directing and managing "external relationships" with product suppliers , 
clients, government officials, and IT providers; and 10% to directing company strategies for 
implementing "corrective action, [sic] and develop[ing] 
indicators, targets and initiatives focused on 
company growth and long[-]term stability plans." The Petitioner also provided the foreign entity's 
organizational chart, which indicates that the Beneficiar y' s direct subordinates included accounting, 
operations , sales, and human resources with the four remaining positions - development , design, 
information architecture , and technical support- depicted as the direct subordinates of the operations 
position. 
In the March 11, 2013 denial of the petition, the director offered an analysis of the Beneficiary ' s 
employment abroad, which was similar to his analysis of the proposed position. Namely, the 
Director ' s discussion of the Beneficiary's employment abroad also erroneously referred to 
marketing, market research , and quality assurance as elements that comprised 85% of the 
Beneficiary ' s former position abroad, despite the fact that none of these elements was actually cited 
in any of the seven statements used to describe the Beneficiary 's position abroad. 
As previously indicated , we withdrew the Director 's and instructed that a NOID be issued. As the 
Petitioner did not response to the April 30, 2014 NOID, the Director issued a second denial, which 
was based, in part on his conclusion that the Petitioner did not provide sufficient evidence to 
establish that the Beneficiary was employed abroad in a managerial or executive capacity. 
2. Analysis 
Similar to the analysis regarding the Beneficiary ' s proposed employment, when considering the 
Beneficiary 's employment abroad, we once again commence with a review of the Beneficiar y's job 
description, followed by an assessment of the foreign entity's organizational structure, its staffing 
and operational needs, as well as the job duties performed by support personnel to determine the 
company's capacity for relieving the Beneficiary from having to allocate his time primarily to its 
operational tasks. As previously noted, we conduct a de novo review of the record pertaining to all 
grounds for denial. Having done so in the present matter, we find that while the Director's analysis 
is flawed, the Petitioner has not provided sufficient evidence to establish that the Beneficiary was 
employed abroad in a qualifying managerial or executive capacity. However, to the extent that the 
record does not support the Director 's analysis that the Beneficiary "spent 85% of his time 
performing duties such as: [sic] marketing , market research, quality assurance and acquisition of 
new customers" this analysis must be withdrawn. 
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Matter of A-T-R-, Inc. 
Notwithstanding the Director's flawed analysis, we agree with the ultimate conclusion that the 
record does not establish that the Beneficiary was employed abroad in a qualifying managerial or 
executive capacity. First, after reviewing the job duties and percentage breakdown offered in 
response to the RFE, we find the job description lacks sufficient detail and as a result precludes us 
from gaining a meaningful understanding of the actual tasks the Beneficiary carried out during his 
employment as the foreign entity's president and CEO. In its supporting statement, the foreign 
entity indicated that the Beneficiary allocated 20% of his time to directing and formulating a strategy 
"to consolidate [the foreign entity's] operational sites ... and affiliate offices"; 20% to developing 
and managing the foreign entity's "commercial strategies and plans to optimize business 
performance in areas such as, [sic] supplier relationships, employee and manager efficiency, and 
operational performance"; 10% to directing and managing "external relationships" with product 
suppliers, clients, government officials, and IT providers; and 10% to directing company strategies 
for implementing "corrective action, [sic] and develop[ing] indicators, targets and initiatives focused 
on company growth and long[-]term stability plans." 
The statement did not include a discussion of the specific strategies the Beneficiary created or the 
Beneficiary's actual underlying tasks that led to the creation of the various strategies. The job 
description was equally vague in its lack of information disclosing the specific tasks involved in 
directing and managing the foreign entity's various "external relationships." Further, while the 
statement indicated that the Beneficiary spent 15% of his time assuming a leadership role with 
respect to various managers and "other personnel," the statement does not clarify which of the 
Beneficiary's assigned tasks reflected his leadership role or explain how those tasks are different 
from the Beneficiary's role in evaluating reports created by his subordinates or overseeing site 
acquisition, sales, and operational management, which constitute tasks performed by potential 
subordinates. 
In addition to the deficiencies discussed above, we find that the foreign entity's organizational chart 
is inconsistent with the list of employees that was provided in tandem with the Beneficiary's list of 
job duties. As indicated above, the foreign entity's organizational chart indicates that the 
Beneficiary's direct subordinates included accounting, operations, sales, and human resources with 
the four remaining positions - development, design, information architecture, and technical support 
- depicted as the direct subordinates of the operations position. However, the foreign entity's job 
description letter indicates that the Beneficiary's subordinates included an operations director, design 
director, computer/architectural design, technical manager, human resources manager, sales director, 
and accounting director, thus excluding only one of the positions from the organizational chart- that 
of development - from the list of subordinates. We also note that despite the foreign entity's 
inclusion of the word "director" as part of the design position title and the term "manager" as part of 
the technical position title, the organizational chart does not indicate that either position's placement 
within the foreign entity's hierarchy is consistent with its directorial or managerial position title. 
We further point to additional inconsistencies between the information provided in the foreign 
entity's RFE response statement and its organizational chart. First, while the statement indicates that 
the operations director had five subordinates, the organizational chart indicates that he had only four, 
three of whom the statement claimed as direct subordinates of the Beneficiary. Second, while the 
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Matter of A-T-R-, Inc. 
statement indicates that the design director supervised three computer graphics designers, the 
organizational chart does not depict any positions subordinate to the designer. Similarly, while the 
statement indicates that the computer/architectural designer supervised four subordinates, the 
organizational chart showed no subordinates for this position. Next, while the information 
systems/technical manager was described as reporting directly to the Beneficiary, the organizational 
chart depicts the technical position as being directly subordinate to the operations position, thus 
adding to the mounting list of inconsistencies. As previously noted, the Petitioner has the burden of 
resolving any inconsistencies in the record through the submission of independent objective 
evidence. See Matter of Ho, 19 I&N Dec. at 591-92. Doubt cast on any aspect of the petitioner's 
proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Id. at 591. The numerous anomalies and inconsistencies described 
herein give rise to doubt as to the assertions made with regard to the Beneficiary's employment 
abroad and the qualifying nature of such employment. 
Lastly, while the Petitioner claimed that its RFE response included the foreign entity's roster of 30 
employees, a separate department breakdown, personnel documents, a payroll roster spreadsheet, 
and filing reports for the foreign entity's employees during the 2010 calendar year, all documents in 
supporting exhibits 3-9, were in Spanish and were not accompanied by certified English translations. 
Despite the fact that the Director cited this deficiency, both in the NOID and in the most recently 
issued denial, the Petitioner did not respond to either notice or provide evidence to cure the cited 
deficiency. Given the lack of certified translations of these documents, we cannot determine 
whether the evidence supports the Petitioner's claims. See 8 C.F.R. § 1 03.2(b )(3). Therefore, the 
foreign documents will be accorded minimal evidentiary weight in this proceeding. 
Accordingly, in light of the numerous evidentiary deficiencies cited above with regard to the 
Beneficiary's former employment abroad, we find that the record lacks sufficient reliable evidence 
to determine that the Beneficiary's position with the foreign entity was in a qualifying managerial or 
executive capacity and on the basis of this second adverse finding, this petition cannot be approved. 
V. ABILITY TO PAY 
The fourth issue to be addressed in this proceeding is whether the Petitioner submitted sufficient 
evidence to establish that it had the ability to pay the Beneficiary's proffered wage commencing with 
the date the petition was filed. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an 
employment-based immigrant which requires an offer of employment must be 
accompanied by evidence that the prospective United States employer has the ability 
to pay the proffered wage. The petitioner must demonstrate this ability at the time the 
priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
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Matter of A-T-R-, Inc. 
A. Evidence of Record 
The Form 1-140 in this matter was filed on January 20, 2011. The Petitioner's initial supporting 
evidence included the following: Quarterly and annual tax returns for 2008 and 2009, quarterly tax 
returns and employers reports for the first three quarters of 2010, employee earnings statements for 
January 31 through September 30, 2010, copies of bank statements for 2009 and 2010, a balance 
sheet and profit and loss statement accounting for transactions as of June 28, 2009, a profit and loss 
statement for 2008, and a balance sheet and profit and loss statement for 2010. 
In the June 27, 2011 RFE, the Director asked the Petitioner to provide the IRS Form W-2 and 1099-
MISC statements it issued to each employee and contractor for work performed in 2010. In 
response, the Petitioner provided four Forms W-2, Wage and Tax Statements. 
In the NOID that was issued on April 30, 2014, the Director informed the Petitioner that additional 
evidence would be necessary to establish its continuing ability to pay. Namely, the Director 
instructed the Petitioner to provide its tax returns for 2010-2013, which would account for the time 
period immediately prior to and following the date the petition was filed. The record shows that the 
Petitioner did not respond to the NOID. The Director pointed to the Petitioner's failure to respond to 
the NOID and cited the lack of ability to pay evidence in his most recent decision, which has been 
certified to us. 
B. Analysis 
As a preliminary matter, we note that failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F .R. § 103 .2(b )(14 ). We further note 
that the Petitioner has not responded to the Director's certified decision. 
We find that the evidence previously submitted to support the Petitioner's ability to pay is 
insufficient to meet the regulatory requirements. While the Petitioner provided its 2008 and 2009 
tax returns, neither document accounts for the time period during which the petition was filed. 
Further, while the Petitioner provided additional documentation in the form of bank statements, 
balance sheets and profit and loss statements, W -2 statements, and quarterly tax returns and 
employee wage reports, none of these documents are expressly permitted by 8 C.F.R. § 204.5(g)(2) 
as an acceptable means of establishing the ability to pay. The Petitioner did not establish that it was 
unable to provide the requested evidence that is expressly cited at 8 C.F.R. § 204.5(g)(2). Therefore, 
in light of these evidentiary deficiencies, we find that the Petitioner has not established its ability to 
pay commencing with the date the petition was filed and on the basis of this third ground of 
ineligibility the instant petition must be denied. 
VI. FINDING OF FRAUD 
The last issue to be addressed in this decision is the Director's finding of fraud. Although the 
Director noted a number of evidentiary anomalies and inconsistencies, the Director's finding of 
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(b)(6)
Matter of A-T-R-, Inc. 
fraud was wholly unsupported? In fact, the Director did not define what constitutes fraud or explain 
which facts in the present matter support a finding a fraud. Instead, the Director provided the 
statutory ground for finding willful misrepresentation of a material fact, but similarly neglected to 
explain its applicability to the evidentiary deficiencies that were cited in the Director's discussion of 
the Petitioner's eligibility to classify the Beneficiary as a multinational manager or executive under 
section 203(b)(l)(C) of the Act. In other words, despite his reference to willful misrepresentation of 
a material fact and ultimate finding of fraud, the Director did not articulate a basis for his finding by 
listing the elements of fraud and willful misrepresentation of a material fact, distinguishing between 
these two terms,3 and applying the element of either definition to the facts presented in the record. 
Here, the inconsistencies described above do not warrant a finding of fraud or willful 
misrepresentation of a material fact. That said, anytime a petition includes numerous errors and 
discrepancies, and the petitioner does not to resolve those errors and discrepancies after users 
provides an opportunity to do so, those inconsistencies will raise serious concerns about the veracity 
of the Petitioner's assertions. As previously indicated, doubt cast on any aspect of the petitioner's 
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of 
the visa petition. Matter of Ho, 19 I&N Dec. at 591. While the discrepancies and errors catalogued 
.above do not rise to the level of fraud or willful misrepresentation of a material fact, they lead us to 
conclude that the evidence of the Beneficiary's eligibility is not credible. Notwithstanding our 
finding regarding the Petitioner's eligibility and the quality of the evidence submitted in support 
thereof, the Director's finding of fraud is not substantiated by the evidence of record and is hereby 
withdrawn. 
V. CONCLUSION 
Accordingly, we find that denial of the petition was warranted for the above stated reasons, with 
each considered as an independent and alternative basis for the decision. 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 of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The director's June 29, 2015 decision is affirmed. The petition is denied. 
Cite as Matter of A-T-R- , Inc., ID# 10975 (AAO Aug. 4, 2016) 
2 While the Director also pointed out that the Petitioner 's president, has been associated with two other 
organizations and further noted that signed the Petitioner's lease as both the tenant and the landlord, we do 
not find that these observations adversely affect the Petitioner 's credibility. 
3 The terms "rraud" and "misrepresentation" are not interchangeable. Unlike a finding of fraud, a finding of material 
misrepresentation does not require an intent to deceive or that the officer believes and acts upon the false representation. 
See Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). A finding of rraud require s a determination that the alien 
made a false representation of a material fact with knowledge of its falsity and with the intent to deceive an immigration 
officer. Furthermore , the false representation must have been believed and acted upon by the officer. See Matter of G­
G-, 7 l&N Dec. 161 (BIA 1956) . 
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