dismissed EB-1C Case: Jewelry

U.S. Department of FIomeland Security 
20 Mass Ave , N.W , Rm 3000 
Wash~ngton, DC 20529 
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 U.S. Citizenship 
went clearly un-ted and Immigration 
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FILE: Office: CALIFORNIA SERVICE CENTER Date: 
 8 1 2m ' 
WAC 04 193 51290 
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. tj 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the-decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
' Administrative Appeals Office 
. 'I - 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant visa petition to classify the beneficiary as a multinational manager 
or executive pursuant to section 203(b)(l)(C) of the Immigration and Naturalization Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of California that is 
doing business as a trader, wholesaler, and retailer of jewelry and diamonds, and claims to be an affiliate of 
the beneficiary's foreign employer. The petitioner seeks to employ the beneficiary as its president. 
The director denied the petition concluding that the petitioner had not demonstrated that: (1) the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity; (2) the 
foreign and United States entities enjoyed a qualifying relationship at the time of filing; or (3) at the time of 
filing the petitioner had the ability to pay the beneficiary's proffered wages of $3,200 per month. 
On appeal, counsel for the petitioner contends that the director incorrectly concluded that the beneficiary was 
not eligible for the requested. visa classification. In a brief submitted in support of the appeal, counsel 
challenges the director's findings. Counsel also submits additional documentary evidence in support of the 
appeal. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) .certain Multinational Executives and Managers. - An alien is 
described in this subparagraph if the alien, in the 3 years preceding the time 
of the alien's application for classification and admission into the United 
States under this subparagraph, has been employed for at least 1 year by a. 
firm or corporation or other legal -entity or an affiliate or subsidiary thereof 
and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
 . 
The language of the statute is specific in limiting this provision to only those executives or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
The AAO will first address the issue of whether the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
Page 3 
, 
(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 with the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire dr recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level withn the 
organizational hierarchy or with respect to the function managed; and 
(iv) 
 Exercises discretion over the day-to-day operations of the activity or hnction 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. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Directs the management of the organization or a major component or function of the 
/ organization; 
(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-mahng; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the immigrant visa petition on June 24, 2004 noting the beneficiary's employment as 
president of the six-person company. In an appended letter, dated June 10, 2004, the petitioner noted the 
beneficiary's additional role as the company's operations manager, and explained that the beneficiary would 
directly supervise the company's general manager1 while delegating job duties to its marketing associate. In 
the same letter, the petitioner provided the following outline of the beneficiary's proposed job duties: 
1 
 The AAO notes that the individual referenced by the petitioner as its ~ice~president and general manager is 
not listed as an employee on the quarterly tax return relating to the period during which this petition was filed. 
The petitioner noted on an accompanying organizational chart that the employee was removed from its 
payroll until after the adjudication of the instant petition and the individual's receipt of his work permit 
extension.' A different individual was subsequently identified as the company's general manager on a later 
,, ., organizational chart. 
1. Planning, developing, establishing and modifying new policies and objectives of the US 
office, [and] [alct as a [Iliaison between the foreign entity and the US on a[n] [as] 
need[ed] basis (10%) 
2. Supervise and manage [the] store manager who reviews inventory levels in conjunction 
with sales and purchase orders to ensure proper inventory levels [are] available at all 
times. Facilitates the supply and demand factor of products affecting the operations of 
the company. Discusses needs with managers and authorizes orders of more stones and 
settings. (20%) 
3. To visit trade shows and research about newer typesofjewelry, contact new diamond and 
colored stone vendors and pursue higher end customers to ensure company awareness. 
Deal with all Filipino publicity and advertising and enter the company into contracts with 
the magazines and other mediums (1 5%) 
4. To review and approve major sales deals and finalize points of a transaction in which the 
[slalesperson or [gleneral [mlanager is unable to resolve. (15%) 
5. To review employees worklsales figures, discussions and meetings with [gleneral 
manager and sales associates regarding major business issues, [and] employee training 
(15%) 
6. Oversee and manage all financial budget and personnel salary operations as well as 
reviewing [the] [clompany's financial position with the [clompany's accountants (10%). 
7. Reviewing/[a]llocating sales leads and following up on their progress with vendors and 
consignment sellers across North America. Head sales expansion strategies to 
neighboring countries; Canada, Mexico, and Central America (15%) 
The petitioner further explained that: 
[The beneficiary] will continue to be the individual responsible to plan and develop the 
overall business of our corporation and she will see to the negotiating of contracts, [and] the 
hiring and firing of personnel including managers and supervisory staff. In her executive 
capacity, [the beneficiary] will set policy and strategy for the business and also negotiate all 
the necessary financial affairs required for the operation of the business. 
The petitioner submitted an organizational chart of the United States company, in which the beneficiary was 
depicted as overseeing the following personnel: a vice-president and general manager, a bookkeeping- 
collections person, a marketing associate, two store salespersons, a marketing coordinator, a delivery person, 
and three jewelry setters. 
On November 30,2005, the director issued a request for additional evidence directing the petitioner to submit 
the following documentation: (1) an organizational chart of the United States company identifying all , 
employees under the beneficiary's supervision; (2) a brief job description of the job duties performed by each 
of the workers supervised by the beneficiary, their educational levels, and the source by which the employees 
are paid; and (3) copies of the quarterly tax returns filed by the petitioner for the first and second quarters of 
2005. 
Counsel responded in a letter dated February 17, 2006, referencing an attached organizational chart of the 
petitioning entity, which identified the beneficiary's subordinate employees as consisting of a general 
manager, a marketing associate, a marketing coordinator, a store salesperson, and a "[s]alesperson and 
[d]eliveries." The AAO notes that in addition to excluding positions initially identified by the petitioner on its 
organizational chart, the latter organizational chart reflected a change in the positions held by the workers 
employed at the time of filing. Counsel also submitted copies of the requested quarterly tax returns. 
In a decision dated March 15,2006, the director concluded that the beneficiary would not be employed by the 
United States entity in a primarily managerial or executive capacity. The director considered the petitioner's 
organizational charts, as well as the wages paid by the petitioner to its employees. The director stated that the 
compensation received by the beneficiary's lower-level. employees during the years 2001 through 2004 
suggests that they were employed on a part-time basis. The director also stated that the petitioner had failed 
to demonstrate whether any of the employees held a baccalaureate degree, and therefore, may not be 
considered professional or managerial employees. 
The director further concluded that the "nature of the petitioner's business" would not support the employment 
of a manager or executive. The director concluded that the beneficiary would likely assist in the performance 
of the business' day-to-day non-supervisory duties. The director also noted that merely assigning the 
beneficiary the job title of president does not demonstrate "that such a position will truly be executive in 
nature by virtue of the duties to be performed." Consequently, the director denied the petition. 
Counsel for the petitioner filed an appeal on April 13, 2006. In a subsequently submitted May 9, 2006 
appellate brief, counsel contends that the beneficiary's proposed position satisfies the statutory criteria of both 
"managerial capacity" and "executive capacity." With respect' to the beneficiary's employment as an 
executive, counsel states that the beneficiary would direct the company's operations through her general 
manager, which would include setting "policies, procedures, and guidelines that are to be followed by the 
other employees," and "[making] all decisions concerning the business strategy, fiscal management, and the 
hiring and firing of personnel," as well as those related to budget expetiditures and the use of resources. 
Counsel explains that the beneficiary "is responsible for the [company's] overall well-being," and that, in 
connection with this responsibility, she reviews and analyzes its financial status and determines financial and 
sales goals, which are communicated to the lower-level employees through the general manager. Counsel 
further claims that as an executive, the beneficiary exercises wide latitude in discretionary decision-making, 
in that she makes all decisions related to the company's "capital resources, assumption of credit, expansion of 
operations, . . . and marketing [ I," and negotiates, approves and signs all contracts on behalf of the petitioner. 
In this role, the beneficiary "also developed and implemented the company website, proposed incentives for 
existing clients, such as gift cards and loyalty cards, and proposed sponsorship of various concerts and 
community events on behalf of the business." 
In connection with the beneficiary's employment in a primarily managerial capacity, counsel states that the 
beneficiary "manages the company by overseeing the general manager and marketing coordinator . . . [and] 
has sole authority to hire and fire personnel and exercises wide discretion over all day-to-day operations of 
the corporation." 
Counsel challenges the director's finding that the beneficiary would not be employed as a manager because of 
the lack of a subordinate "professional" staff, stating that the beneficiary's direct subordinate, the general 
manager, holds a baccalaureate degree in accounting, and manages four employees who are providing the 
services of the petitioner's jewelry business. Counsel states that each of the four lower-level employees also 
holds bachelor degrees, and contends that Citizenship and Immigration Services (CIS) "is incorrect in its 
statement that the employees supervised by the [bleneficiary are neither ,professional nor managerial for 
Page 6 
immigration purposes." Counsel also disputes the director's conclusion that the petitioner's lower-level Gaff is 
not employed on a full-time basis, claiming that the compensation identified on the petitioner's quarterly wage 
reports and 2005 federal income tax return demonstrate otherwise. 
Finally, counsel contends that CIS incorrectly relied on the size of the petitioner's staffing levels when stating 
that the nature of the petitioner's business would not support the employment of a manager or executive. 
Counsel states: 
The purpose of the business is to promote the sale of retail and wholesale jewelry to upper 
and middle class income groups in and around the Los Angeles area. A big part of the 
business' strategy involves catering to the Filipino community. . . . It does not take a big 
company with many employees to achieve such a goal. In fact, many jewelry retailers in the 
jewelry district 1ocated.in downtown Los Angeles are small businesses. It would be irrational 
to assume that these businesses don't require a [plresident or [olperations [mlanager to 
oversee the operations of the business. Moreover, as explained above, [the] [bleneficiary 
oversees the [gleneral [mlanager . .-. [who], in turn directly supervises the work performed by 
the [mlarketing [alssociate, [mlarketing [cloordinator, [sltore [slalesperson, and 
[s]alesperson/[d]eliveries worker who are also professionals. ~hus [the] [bleneficiary does 
not perform the daily services of the company herself, but rather supervises an individual who 
directs others who provide the services of the company. In this capacity, she performs duties 
that are both executive and managerial in nature. 
(Emphasis in original). 
Upon review, the record does not demonstrate that the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
When examining the executive 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. $ 204.56)(5). 
While the beneficiary is represented as satisfying the statutory requirements of both "managerial capacity" 
and "executive capacity," the record is ambiguous as to the specific managerial or executive job duties 
associated with her job responsibilities. For example, the beneficiary is represented as acting as a liaison 
between the United states and foreign companies. The petitioner, however, does not explain the beneficiary's 
role as a liaison between the companies or specify her related managerial or executive job duties. Nor does 
the petitioner explain why the beneficiary's responsibilities of attending trade shows, researching new styles 
of jewelry, contacting stone vendors, or pursuing "higher end customers" should be considered managerial or 
executive in nature. See $3 101(a)(44)(A) and (B) of the Act. Additionally, the record lacks detail as to the 
managerial or executive job duties performed by the beneficiary in relation to her responsibility of 
"[flacilitat[ing] the supply and demand factor of products affecting the operations of the company." The 
AAO notes that counsel does not address these responsibilities on appeal. The actual duties themselves reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), 
afd, 905 F.2d 41 (2d. Cir. 1990). 
Taking into account the beneficiary's limited job descriptions as well as her other job responsibilities that are 
not managerial or executive in nature, it appears that the beneficiary would not be employed in a primarily 
9 
.- Page 7 
managerial or executive capacity, as claimed by counsel, but rather, would be responsible for performing 
many of the petitioner's day-to-day functions. The beneficiary appears to be personally responsible for 
contacting the petitioner's vendors, attending trade shows, handling the company's advertising and publicity 
campaigns in the Philippines, negotiating and entering into marketing contracts, "[h]ead[ing] sales expansion 
strategies" outside the United States, developing and expanding the company's website, and researching new . 
jewelry designs. Information contained in the petitioner's June 2004 business plan corroborates the 
beneficiary's role in the performance of the company's inventory function, as she is identified as the business' 
sole contact with suppliers and distributors. Specifically, the petitioner emphasized the beneficiary's ability to 
speak several languages, including Farsi and Japanese, which the petitioner identified as "a 'must have' in 
communicating with [the company's] suppliers and distributors." The petitioner did not identify any other 
employees who had the capacity to communicate in Farsi and'Japanese. Despite counsel's claims otherwise, 
the record suggests that the beneficiary would be performing non-managerial and non-executive 
administrative and operational functions of the petitioner's business. The AAO notes that an employee who 
"primarily" performs the tasks necessary to produce a product or to provide services 'is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology Int 'l., 19 I&N,Dec. 593, 604 (Comm. 1988). 
The petitioner's staffing levels do not represent that the beneficiary would be relieved from performing the 
non-qualifying job duties associated with the petitioner's sales, advertising, marketing, purchasing, and 
inventory functions. The record contains inconsistencies as to the positions occupied in the petitioning entity 
at the time of filing. There is insufficient evidence that the petitioner employed a general manager when the 
petition was filed. As conceaed by the petitioner, its original general manager is not identified on its quarterly 
tax returns or payroll records. The new general manager subsequently identified by the petitioner on its 
revised organizational chart was initially employed as the co-mpany's bookkeeper-collections person, a 
position that was omitted from the latter organizational chart. Additionally, except for the petitioner's note on 
its initial organizational chart of using jewelry setters on an as needed basis, the petitioner does not address 
the performance of these tasks, identify the use of jewelry setters on its revised organizational chart, or 
corroborate its claim of using outside jewelry setters with independent and objective evidence. Counsel did 
not address the revisions made to the petitioner's staffing levels on its second organizational chart. As a result 
of the unexplained inconsistencies, the AAO cannot conclude that the petitioner employed a staff sufficient to 
support the beneficiary in a primarily managerial or executive capacity. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
The UO further notes a discrepancy in the claimed staffing levels, which, while not determinative of the 
beneficiary's employment capacity, raises a question as to the credibility of the representations made by the 
petitioner. Based on the petitioner's quarterly tax return ending June 30, 2004, the period during which the 
instant petition was filed, the petitioner's delivery person, who was depicted on the. organizational chart as 
holding a lower-level position in the company, was receiving the highest amount in compensation from the 
petitioner. The petitioner's general manager was represented as receiving $50.00 less per quarter than the 
delivery person, while the remaining employees received between $300 and $600 less per quarter. While not 
an exorbitant difference in salaries, the general manager is depicted as holding a position two levels above 
that of the delivery person. The credibility of the petitioner's claimed staffing levels is therefore questionable. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Id. 
Page 8 
Counsel correctly observes on appeal that a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational manager or 
executive. See 9 101(a)(44)(C) of the Act, 8 U.S.C. 9 1101(a)(44)(C). However, it is appropriate for CIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
As discussed above, the petitioner has not presented a clear depiction of the positions occupied in its 
organization at the time of filing. Based on the record as presently constituted, it does not appear that the 
petitioner's reasonable needs might plausibly be met through the beneficiary's purported employment in a 
primarily managerial or executive capacity. 
Counsel represents on appeal that the purpose bf the petitioner's busmess is to promote jewelry to consumers 
in Los Angeles. Without clarification of the petitioner's true staffing levels and a description of the job duties 
performed by each of the lower-level employees, particularly those represented as the marketing associate and 
marketing coordinator, the AAO cannot determine whether the petitioner's reasonable needs in light of its 
overall purpose and stage of development are satisfied. Rather, as already discussed, it appears that the 
beneficiary would be personally responsible for performing many of the administrative and operational tasks 
of the petitioner's business, including those associated with its sales, purchasing, inventory, marketing, and 
advertising functions. 
Counsel claims on appeal that the beneficiary's subordinates hold baccalaureate degrees, and therefore, are 
professional employees. The MO recognizes the copies submitted by counsel of the employees' college 
certificates conferring bachelor degrees. However, even if the beneficiary's subordinates are classified as 
professional, managerial or supervisory employees, the petitioner is required to satisfy each of the four 
criteria of "managerial capacity" in order for the beneficiary to be considered a manager. See ij 101(a)(44)(A) 
of the Act. Here, the limited record fails to substantiate the petitioner's claim of employing the beneficiary in 
a primarily managerial or executive capacity. 
Based on the foregoing discussion, the' petitioner has not demonstrated that the beneficiary would be 
employed in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
The MO will next consider the issue of whether the petitioner demonstrated the existence of a qualifying 
relationship between the foreign and United States entities at the time of filing. 
The regulation at 8 C.F.R. tj 204.56)(2) states in pertinent part: 
- 
AfJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
Page 9 .' 
(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; 
Subsidiary means 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. 
In a June 10,2004 letter submitted with the Form 1-140, the petitioner represented the existence of an affiliate 
relationship between the foreign and United States entities, stating that the beneficiary owned both 
organizations. A's evidence of the beneficiary's ownership of the petitioning entity, the petitioner submitted 
the minutes from a May 18, 2000 organizational meeting stating that the beneficiary purchased 600 shares of 
the petitioner's common stock in exchange for furnishing $60,000, as well as a June 5, 2000 stock certificate 
identifying the beneficiary as the owner of 600 shares of stock. 
With respect to the ownership of the foreign organization, the petitioner submitted: (1) an "Affidavit of 
Cancellation," dated February 2, 2000, in which the registered owner of the foreign entity, 
noted his intent to cancel his certificate of registration and transfer ownership of the foreign entity to the 
beneficiary, who he noted was "the real owner who financed everything in order to establish aforementioned 
[foreign entity]"; (2) a copy o' certificate of registration; (3) a February 16, 2000 certificate of 
registration registering the foreign entity in the name of the beneficiary; (4) an application made by the 
beneficiary as a sole proprietor for a "Mayor's Permit" to conduct business in general merchandising; (5) a 
January i4, 2004 "Mayor's Permit" allowing the beneficiary to engage in business overseas; and (6) copies of 
the company's tax receipts. 
In his November 30, 2005 request for evidence, the director requested that the petitioner submit the following 
documentary evidence to establish the existence of a qualifying relationship between the United States and 
foreign organizations: (1) original wire transfer receipts identifying funds transferred from the beneficiary to 
the petitioning entity, or if funds'didnot originate with the lkneficiary, an explanation of the source of the 
funds, and their affiliation to the beneficiary or to the foreign or United States entities; (2) the petitioner's 
bank statements corroborating its receipt of funds as consideiation for the stock purportedly sold to 'the 
beneficiary; (3) a copy of the petitioner's California notice of transaction; and (4) the petitioner's stbck 
transfer ledger reflecting all stock issuances and shareholders. 
In his February 17, 2006,1etttr, counsel referenced bank statements belonging to an account held by the 
beneficiary at a bank in the Philippines as evidence that the beneficiary furnished consideration for her 
purported purchase of stock in the United States company. Counsel explained that the statements reflected 
the beneficiaiy's withdrawal of $60,000, which counsel stated the beneficiary subsequently deposited in an 
account held by the petitioning entity. 
In the attached documentation, counsel submitted a copy of a Citibank passbook fiom an account held at a bank 
in the Philippines that bears the name of the beneficiary as the account holder. An attachment depicted a copy of 
a passbook page that appears to reflect a deposit of $60,000 on February 24, 2000. The MO notes that the 
Page 10 
second passbook page does not reflect an account number. Counsel provided a copy of the petitioner's bank 
statement for the period of.June 26, 2000 through June 30, 2000, which reflected a deposit on June 26, 2000 in 
the' amount of $57,000. Counsel- again submitted copies of the minutes fi-om the petitioner's May 18, 2000 : 
meeting, which identified the beneficiafy as the owner of 600 shares of stock. Although counsel referenced in his 
letter the requested notice of transaction and stock transfer ledger, none have been provided for review. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. 5 103.2(b)(14). 
In his March 15, 2006 decision, the director concluded that the foreign and United States entities did not 
enjoy a qualifying relationship at the time of filing. -The director recdgnized that the beneficiary had been 
identified as the owner of'600 shares of the petitioner's stock in its organizational minutes, yet noted that the 
information contained on the petitioner's 2001 through 2004 federal income tax returns did not corroborate 
the beneficiary's purchase of stock. Specifically, the director noted that Schedule L of the tax returns failed to 
assign a value to the petitioner's common stock. The director also noted that the petitioner had not issued a 
stock certificate to the beneficiary. The AAO notes that the record contains a copy of the stock certificate 
issued to the beneficiary on June 5, 2000. The director stated that the petitioner had failed to provide 
"unerring and concise evidence" of a qualifying relationship between the foreign and United States entities. 
Consequently, the. director denied the petition. 
In his appellate brief, counsel claims that the foreign and United States entities are affiliates. Counsel 
references the Affidavit of ~anckllation, Certificate of Registration and Mayor's permit'as evidence of the 
beneficiary's ownership of the foreign entity. Counsel also identifies the. copy of the 'beneficiary's bank 
statement fkom her bank account in the Philippines as "demonstrating how she obtained the $60,000 necessary 
- 
 to buy the shares of stock for the U.S. [pletitioning entity." Counsel states that the beneficiary owns the entire 
amount of stock issued by the petitioner, and therefore, is the sole sha;eholder. Counsel contends that the 
beneficiary's ownership of both the foreign and United States companies demonstrates thk existence of a 
qualifying affiliate relationship. Counsel again submits the above-mentioned affidavit, certificate, and permit, 
as well as the petitioner's issued stock certificate. 
Upon review, the petitioner has not demonstrated that the foreign and United States entities enjoyed an 
affiliate relationship at the time of filing. 
To establish a qualifying relationship under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e. a United 
States entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally ?j 
203(b)(l)(C) of the Act, 8 U.S.C. 5 1153(b)(l)(C); see also 8 C.F.R. 5 204.50)(2) (providing definitions of 
the terms "affiliate" and "subsidiary").. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 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 
of Church ~cientology ~nternational, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidknce to determine whether a stockholder maintains ownership and control of a corporate entity. The 
1 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and. the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
conqol. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
condo1 of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-365. Without full 
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. $ 204.56)(3)(ii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
I 
proppty, or other consideration furnished to the entity in exchange for stock ownership. 
 Additional 
sup;brting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
mind;es of relevant, shareholder meetings, or other legal documents governing the acquisition of'the 
own{rship interest. . . 
I 
The ;ecord demonstrates that the beneficiary is the sole proprietor of the foreign organization. The petitioner, 
howGver, has not established the beneficiary's ownership of the United States company. 
, , 
, 
The petitioner's obligation in establishing "ownership" is twofold; the petitioner is required to present 
conc4ete documentary evidence such as a stock certificate, stock transfer ledger, br relevant minutes from 
organizational meetings naming the beneficiary as a stockholder of the United States organization, as well as 
docuhentation demonstrating the means by which the beneficiary acquired .her purported share in the 
petitioning entity. While the petitioner's issued stock certificate and the minutes from its organizational 
meeting suggest that the beneficiary is the sole stockholder of the company, the record contains limited 
evidence demonstrating that the beneficiary furnished consideration in exchange .for her purported stock 
ownership. 
Here, the petitioner submitted a bank statement reflecting its receipt of $57,000 on June 26, 2000 and a copy 
of a passbook account held by the beneficiary in the Philippines. As previously noted, the second page of the 
passbook, which incidentally does not portray an account number, appears to reflect a deposit of $60,000 on 
February 24, 2000, not a withdrawal as suggested by counsel. The record does not corroborate counsel's 
claimi'that the beneficiary furnished $60,000 in exchange for her purported ownership of 600 shares of the 
petitioner's stock. The.AAO notes that, on appeal, counsel's claim of an affiliate relationship relies solely on 
this limited documentation. Counsel did not present additional evidence corroborating the claim that the 
 , 
beneficiary furnished monies to the petitioner as consideration for her claimed stock ownership in the United 
States company. The unsupported statements of counsel on appeal or in a motion are not evidence and thus 
are not entitled to any evidentiary weight. See INS v. Phirzpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of 
~arnirez-,Sanchez, 17 I&N Dec. 503 (BIA 1980). . 
' 
Moreover, none of the petitioner's tax returns for the years 2001 through 2004 reflect a value for the 
company's common stock. If the beneficiary had supplied the claimed $60,000 it would presumably be 
reflected in Schedule L of the petitioner's tax return as its capital stock value. The record is devoid of 
Page 12 
I 
evidence establishing that the beneficiary actually purchased shares of the petitioner's stock. The petitioner 
has not satisfied a critical element of ownership. As a result, the petitioner has failed to demonstrate the 
existence of an affiliate relationship between the foreign and United States entities. Accordingly, the appeal 
will be dismissed for this additional reason. 
The AAO will next consider whether at the time of filing the petitioner had the ability to pay the beneficiary 
her proposed wages of $3,200 per month. 
, 
The regulation at 8 C.F.R. 5 204.5(g)(2) states: 
Any petition filed by or for any employment-based immigrant which requires an offer of 
I 
employment must be accompanied by evidence that the prospective United States employer 
has the ability to pay the proffered wage. The petitioner must demonstrate this ability at the 
time the priority date is established and continuing until the beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
The petitioner submitted with its initial filing an April 2004 bank statement reflecting an ending monthly 
balar$e of approximately $1 1,800. The petitioner also submitted its 2003 federal income tax return reflecting 
a payment of $22,348 in salaries and wages. The petitioner did not provide additional documentary evidence 
of its,financial status or ability to pay the beneficiary's proposed monthly wages. 
The director subsequently advised the petitioner of its obligation to demonstrate its "ability to pay the 
proffered wage at the time the priority date is established and continuing until the beneficiary obtains lawful 
permknent residence." 
! 
In his February 17, 2006 letter, counsel for the petitioner referenced a May 4, 2004 Immigration and 
~atui~liration Services (now CIS) memorandum instructing CIS on the analysis of the issue of a petitioner's 
ability to pay the beneficiary's proffered wages. Counsel noted that CIS should consider the petitioner's net 
income, net current assets or the previous amount in compensation paid by thk petitioner to the beneficiary. 
counsel stated that the petitioner's 2004 tax return, which reflected an annual gross profit of $263,167 
establishes its ability to pay the beneficiary's proposed annual salary of $38,400. 
In hislMarch 15, 2006 decision, the director concluded that the petitioner had not established its ability to pay 
the beneficiary's proposed wages at the time of filing. The director noted the petitioner's taxable income for 
the years 2001 through 2004 as reflected on its federal income tax returns, which were comprised of the 
following figures, respectively: $335, $7,087, $8,341, and $13,730. The director stated that "[tlhe petitioner 
has not established that they have continuously had the ability to pay the beneficiary's wage[s] from the time 
the priority date was established up to the present." Consequently, the director denied the petition. 
On appeal, counsel for the petitioner again cites the CIS memorandum addressing the proper analysis of a 
petitioner's ability to pay, and submits a copy of the memorandum for the record. Counsel challenges the 
director's statement that the beneficiary's salary is not reflected on the petitioner's federal income tax returns. 
Counsel states: 
[A] closer review of the corporate tax returns reveals that the tax preparer lists the 
1 
 compensation for [the] [bleneficiary under the "Board of Director's fee' on the last page of the 
' 
federal tax return [Florm 1120. In 2002 and 2003, the Board of Director's fee was $70,000. 
In 2004 and 2005, the Board of Director's fee was $80,000. These amounts are consistent 
with [the beneficiary's] personal tax returns. Thus, the [pletitioner has demonstrated the 
ability to pay [the beneficiary].the proffered wage of $38,400 each year since the priority date 
was established to the present. 
Upon review, the petitioner has demonstrated its ability to pay the beneficiary's proffered wages at the time of 
filing. 
I 
~ouAsel suggests that the petitioner's federal income tax returns demonstrate the petitioner's ability to pay the 
benehciary's proposed salary as they reflect deductions made by the petitioner for a board of director's fee 
paid to the beneficiary in the amount of $70,000 in the years 2002 through 2003 and $80,000 in 
2004!and 2005. Counsel references the beneficiary's personal income tax returns as evidence of her receipt of 
compensation from the petitioner equal to or greater than her proposed wages. 
I 
In determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
docukentary evidence that it employed the benefihiary at a salary equal to or greater than the proffered wage, 
i 
this eyidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. 
1 
i 
As discussed by counsel, the petitioner's income tax returns indicate that the petitioner paid a board of 
director's fee in the amount of $80,000 in 2004 and 2005. The petitioner's 2003 federal income tax return 
reflects a board of director's fee in the amount of $70,000. Schedule C of the beneficiary's 2003 Internal 
Revenue Service (IRS) Form 1040, U.S. Individual -Income Tax Return, identifies the beneficiary's receipt of 
$~o,o~o as income. The record demonstrates that at the time the priority date was established the beneficiary 
was rkeiving compensation that was greater than the wages proposed by the petitioner at the time of filing. 
Accordingly, the petitioner ,has demonstrated its ability to pay the beneficiary's proposed annual salary of 
$38,400. The director's decision with respect to this issue alone willbe withdrawn. 
Notwithstanding the partial withdraw of the director's decision, the instant appeal will be dismissed as a result 
of thelpetitionerls failure to demonstrate that the beneficiary would be employed by the United States entity in 
a primarily managerial or executive capacity or that a qualifying relationship existed between the foreign and 
unite+ States entities at the time of fili&. 
~e~o*d the decision of the director, an add~tional ~ssue is whether the petitioner established that the 
beneficiary was empIoyed 6y the foreign entity in a primarily managerial or executive capacity for at least 
one year during the three years preceding her entry into the United States as a nonimmigrant. 
The record is not sufficient in demonstrating that the beneficiary's employment in the foreign entity was 
prima$ily managerial or executive in nature. The petitioner claimed that the beneficiary was employed as the 
foreign company's "proprietor and president" since 1996, and provided a list of her related job duties. The 
AAO Aotes, however, that the organizational chart offered by the petitioner of the foreign corporation reflects 
the company's staffing in April 2004, more than six years after the beneficiary left the Philippines. The 
petitioner did not offer evidence of the foreign entity's staffing levels from 1996 through 1998. Also, several 
of the foreign entity's permit applications, while undated, reflect a total staff of one or two employees. 
Moreover, as the beneficiary did not obtain ownership of the foreign company until the year 2000, it is 
quebtionable whether, prior to this time, she occepied the role of president. Absent additional documentation 
of the beneficiary's employment in the foreign company, the AAO cannot conclude that the beneficiary was 
emiloyed by the foreign entity in a primarily managerial or executive capacity. Going on record without 
supporting - documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proieedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure CraB of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
~ccbrdin~ to CIS records, the petitioner filed an L-1A nonimmigrant visa petition on November 3, 2000 
reqiesting the employment of the beneficiary. A review of the representations made by the beneficiary on her 
Foqn G-325A, Biographic Information, submitted in connection with her concurrently filed Form 1-485, 
reveals doubt as to whether the beneficiary could have possessed the requisite employment experience with 
the loreign entity prior to her entering the United States as a nonimmigrant. 
Specifically, the petitioner represented that she resided in Iran from July 1998 through December 1999, and 
sub4equently entered the United States in December 1999, where she remained until the filing of both the 
nonimmigrant and immigrant visa petitions. According to the beneficiary's account of her prior residences, 
she could not have been employed by the foreign entity after July 1998, and therefore does not appear to have 
one year of qualifying employment-within the requisite time period. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). For this 
addi'tional reason, the petition will be denied. 
The MO recognizes that CIS previously approved two L-1A nonimmigrant petitions filed by the petitioner 
on behalf of the beneficiary. It should be noted that, in general, given the permanent nature of the benefit 
sought, immigrant petitions are given far greater scrutiny by CIS than nonimrnigrant petitions. The MO 
acknowledges that both the immigrant and nonimmigrant visa classifications rely on the same definitions of 
managerial and executive capacity. See $5 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $ 1101(a)(44). 
Although the statutory definitions for managerial and executive capacity are the same, the question of overall 
eligibility requires a comprehensive review of all of the provisions, not just the definitions of managerial and 
executive capacity. There are significant differences between the nonimmigrant visa classification, which 
allows an alien to enter the United States temporarily for no more than seven years, and an immigrant visa 
petition, which permits an alien to apply for permanent residence in the United States and, if granted, 
ultimately apply for naturalization as a United States citizen. CJ: $9 204 and 214 of the Act, 8 U.S.C. $5 1154 
and 11 184; see also $ 316 of the Act, 8 U.S.C. 9 1427. 
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow' for the approval 
of an L-1 extension without any supporting evidence and CIS normally accords the petitions a less substantial 
review. See 8 C.F.R. $ 214.2(1)(14)(i) (requiring no supporting documentation to file a petition to extend an 
L-1A petition's validity). Because CIS spends less time reviewing L-.l petitions than Form 1-140 immigrant 
petitions, some nonimmigrant L-1 petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d 25 (D.D.C. 2003). 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proofi each petition must stand on its own individual merits. The prior nonimmigrant approvals do 
not preclude CIS from denying an extension petition. See e.g. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 
5561 2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that 
CIS: will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd. v. Suva, 
7241~. Supp. at 1103. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
conbadictory assertions that are contained in the current record, the approval would constitute material and 
gross error on the part of the director. The AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. 'Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as bind~ng precedent. Sussex Engg. Ltd. v. 
~oht~ornery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Due to the lack of 
reqiired evidence in the present record, the AAO finds that the director was justified in departing from the 
previous nonimmigrant approvals by denying the present immigrant petition. 
I 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimrnigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
centfr. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The 
 etition will be denied for the above stated reasons, with each considered as an independent and 
/ 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.