dismissed EB-1C Case: Jewelry

'PUBLIC COPY 
identifying data deleted to 
US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
EAC 05 169 51333 
IN RE: 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in you. case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Rob 
Administrative Appeals OEce 
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DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a New York corporation seeking to employ the beneficiary as its general manager. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1153(b)(l)(C), as a 
multinational executive or manager. The director determined that the petitioner failed to provide sufficient 
credible evidence to support the claim that the beneficiary would be employed in a managerial or executive 
capacity. 
On appeal, the petitioner disputes the director's conclusions and submits a statement and additional 
documentation in support of its claims. 
Section 203(b) of the Act states in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The primary issue in this proceeding is whether the beneficiary would be employed in a managerial or 
executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), provides: 
The term "managerial capaci$' means an assignment within an organization in which the 
empIoyee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section lOl(a)(#)(B) of the Act, 8 U.S.C. 
 1 101(a)(44)@), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction fiom higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated April 1, 2005, which contained the 
following description of the beneficiary's proposed employment within the petitioning organization: 
a. Corporate Planning: 
[The beneficiq] will analyze the present position of this company in light of present 
financial, economic and business conditions, evaluate the potential strengths and 
weaknesses of this company in light thereof, forecast and plan the future business 
activities of the company, setting [sic] forth goals for the progress, growth and expansion 
for the company's future. 
b. General Administration: 
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[The beneficiary] will oversee, in the further growth of this company's operations, such 
matters as accounting, taxation, personnel and other related matters of the company, to 
see that the same are conducted in an orderly manner with due and proper compliance 
with the statutory requirements and to ensure smooth and efiicient company operations. 
c. Business Development: 
[The beneficiary], in promoting the marketing of this company's jewelry products, will 
plan and implement both the vertical and horizontal expansion of the company. me] will 
direct his activities to the expansion of transactions, the aim and purpose of which is to 
secure progressively increasing development of business and thereby, net revenues of the 
company. 
d. Marketing-Sales: 
[The beneficiary], in the continuation of this company's development, will establish and 
direct the marketing policies of this company. Initially, [he] will survey present and 
potential new markets, assess the requirements of groups, evaluate and analyze the 
market potential at various different geographical locations, as well as with specific 
segments. With this information, [the beneficiary] will develop and oversee the 
implementation of a marketing strategy and oversee the organization of effective sales 
and marketing of this company's jewelry products. In order to achieve this goal, [the 
beneficiary], on behalf of this company, will have to resort to advertising, marketing, and 
other promotional activities so as to promote transactions of this company's jewelry 
products and attract potential customers. This activity will be undertaken as may be 
required and justified by business prudence. One of the responsibilities of [the 
beneficiary] in this area will be pricing of jewelry products so as not only to attract 
potential customers, but also to retain a regular clientele for the services of this company 
over a sustained period of time. 
e. Purchases: 
[The beneficiary] will be responsible for overseeing the purchase of equipment, supplies, 
etc. that are required by this company. [He] will compare competitive financial services, 
compare catalogue listings, examine samples, attend demonstrations of products and 
conventions, call for quotations, negotiate prices and contract terms, evaluate alternative 
offers, and make choices between suppliers. 
f. Personnel: 
[The beneficiary] will be fully authorized to hire and appoint staff, prescribe their job 
duties, approve their compensation and promotions, supervise their functions, and, if 
necessary, terminate their employment with this company. 
The petitioner also provided an organizational chart illustrating the company's staffing structure. The 
president was shown at the top of the hierarchy with a general manager as his direct subordinate. The general 
manager's direct subordinates are shown to be the heads of the following departments: accounting, diamond 
setting, polishing, washing and rhodium, quality control, repair, and work control. With the exception of the 
accounting department, whose department head is an accountant, the remaining departments have a 
department manager who oversees hisk own subordinates. It is noted that the quality control department 
was shown as having one employee and two vacant positions and the work control department was shown as 
having two vacant positions. As the chart is undated, it is unclear whether it was submitted to show the 
staffing structure at the time the Form 1-140 was filed. The petitioner also provided a separate list naming the 
employees in each department and hidher respective salary. A note at the end of the list indicates that the 
position of general manager was also vacant. 
Among other supporting documents, the petitioner provided a photocopy of an office lease as well as its 2003 
tax return, its Form W-3, and the Form W-2s and Form 1099s it claims to have issued to its employees during 
the 2003 tax year. 
On April 21, 2006, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide further documentation to establish that the beneficiaq's proposed position in the United States would 
involve primarily managerial or executive duties. The director Wher discussed his observations of evidence 
previously submitted, noting that the petitioner may have submitted fraudulent tax documents. Specifically, 
the director stated that the petitioner's 2003 tax return, its Form W-3, and the Form W-2s issued by the 
petitioner are inconsistent as far as the total amount paid by the petitioner in employee salaries in 2003. The 
director also questioned the authenticity of the rental lease submitted in support of the Form 1-140, noting that 
the lease was "covered with white-out and typed over."' Accordingly, the petitioner was instructed to provide 
certified copies of its 2004 and 2005 tax returns as well as copies of its payroll rosters for the same years and 
the W-2 statements the petitioner issued during the same time period. Additionally, the petitioner was asked 
to provide is quarterly wage statements for the first two quarters of 2005. The director offered the petitioner 
an opportunity to comment on his adverse findings. 
In response, the petitioner provided a letter dated June 22, 2006 from Certified Public 
Accountant (CPA), claiming that he has been providing the petitioner's accounting service for over eight 
years. The petitioner also provided a management chart illustrating an organizational hierarchy that is 
considerably different from the one shown in the organizational chart submitted initially in support of the 
Form 1-140. Specifically, the more recently submitted chart has the added position of vice president, who is 
positioned below the president, but directly above the ,general manager. Additionally, neither the work 
control nor the repair departfnent is included in the more recently submitted organizational chart. 
Discrepancies also exist among the tax documentation for 2005, the year during which the petitioner filed its 
Form 1-140. Namely, the petitioner provided its tax return for 2005, which indicates that the petitioner paid 
 - 
$201,169 in wages and salaries. However, the 2005 W-2s submitted in response to the RFE total in excess of 
$218,530. Additionally, while the petitioner's tax return shows that the petitioner paid $586,817 for the cost 
of labor, the miscellaneous income Form 1099s for 2005 total in excess of $677,445, which is nearly 
$100,000 more than the amount shown in the tax return. While the petitioner also provided numerous payroll 
documents for its employees, those are also confusing; each report is dated October 28, 2004 even though it 
1 
See p. 2, paragraph 2 of the RFE. 
-~ Page 6 
purportedly provides information regarding the wages each reported employee earned from January through 
December 2005. The petitioner provided explanation for the discrepancies previously pointed out by the 
director or the discrepancies and anomalies within the documentation submitted in response to the RFE. 
Further, while the director made valid comments regarding the authenticity of the lease previously provided in 
support of the Form 1-140, the petitioner attempted to dispel the director's misgivings by merely submitting a 
totally different lease for a completely different time period. While the more recent lease appears to be a 
valid document, it does not address the director's concerns regarding the validity of the lease that was 
originally submitted. 
Lastly, despite the director's comments suggesting that the petitioner failed to provide sufficient information 
establishing that the beneficiary would primarily perform managerial or executive duties, the petitioner 
provided no additional information describing the prospective employment. 
In a decision dated September 11, 2006, the director denied the petition based on adverse findings regarding 
the documentation submitted. While the AAO concurs with the overall conclusion regarding the petitioner's 
eligibility, various comments included in the underlying analysis are erroneous and must be addressed. First, 
in determining that the petitioner's accountant is not a professional employee, the director relied entirely on 
the individual's salary as reported in the W-2 statement. However, section 101(a)(32) of the Act, 8 U.S.C. 
$ 1101(a)(32), states that "[tlhe term 'profession' includes, but is not limited to architects, engineers, lawyers, 
physicians, surgeons, and teacher of elementary or secondary schools, colleges, academies, or seminaries." 
Additionally, as provided in 8 C.F.R. 8 204.5(k)(2), the term "profession" includes not only the occupations 
listed in section 101(a)(32) of the Act but also any occupation for which a United States baccalaureate degree 
or its foreign equivalent is the minimum requirement for entry into the occupation. In the present matter, 
there is no indication that the director considered anything other than the account's salary in concluding that 
she is not a professional. Additionally, all of the beneficiary's subordinates are shown with subordinates of 
their own. Thus, without Mher explanation, it is unclear why the director concluded that the beneficiary's 
subordinates would not be supervisory or managerial employees. 
Next, while the AAO also found discrepancies in the 2005 tax documentation submitted, it appears that the 
director overlooked the separate amount shown on the second page of the petitioner's 2005 tax return, which 
shows the total cost of labor. This figure appears to represent the total amount of miscellaneous income, 
which is broken down into individual Form 1099s. Thus, while the AAO will review the petitioner's 2005 tax 
documents for discrepancies, the director's oversight suggests that his conclusion was based on an incomplete . 
assessment of the documentation. 
Notwithstanding the errors in the director's analysis, he properly concluded that the petitioner failed to 
establish its eligibility for the benefit sought. The director also commented again on the potentially fraudulent 
lease the petitioner submitted in support of the initial petition. 
On appeal, the petitioner resubmits the rental lease previously provided in response to the RFE and provides a 
further explanation addressing that lease. However, as previously stated, the lease that was originally 
submitted was for an entirely different time period and named an entirely different landlord. Thus, while the 
lease submitted on appeal and previously in response to the RFE appears to have none of the anomalies of the 
lease that was initially submitted, the submission of a seemingly bona fide lease does not address the 
director's valid concerns. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
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independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). Moreover, 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. 
Additionally, while the petitioner provides numerous Form W-2s and Form 1099s, which support the 
organizational hierarchy illustrated in the petitioner's latest organizational chart, as previously discussed, the 
sum of all the W-2s issued by the petitioner in 2005 is greater than the salaries and wages amount indicated in 
the petitioner's 2005 tax return. Similarly, the sum of all salaries indicated in the 1099s is much greater than 
the total cost of labor indicated in the tax return. While the petitioner was given ample opportunity to address 
these apparent inconsistencies on appeal, it failed to do so. 
Lastly, in examining the executive or managerial capacity of the beneficiary, CIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 204.5(i)(5). In the present matter, while the 
petitioner has illustrated a considerable organizational hierarchy that seemingly consists of a large staff to 
carry out the daily operational tasks, the beneficiary's actual day-to-day duties have not been clarified. 
Rather, the petitioner has used general terms suggestive of the beneficiary's oversight responsibilities to 
describe his proposed employment. However, the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), agd, 905 F.2d 41 (2d. 
Cir. 1990). In the present matter, the AAO cannot determine what actual tasks are involved in corporate 
planning, general administration, or business development, as all three general areas of concentration have 
been discussed in overly broad terminology. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Id. While the petitioner provided more information in 
describing the beneficiary's rnarketinghales and purchasing responsibilities, it appears that the tasks 
associated with these responsibilities would be largely of a non-qualiflmg nature. More specifically, 
conducting market analysis, developing market strategy, and engaging in advertising the petitioner's products, 
without further explanation, cannot be deemed as being qualifylng tasks. Similarly, comparing services, 
calling for price quotes, negotiating prices and contract terms of suppliers also cannot be deemed as being 
qualifying tasks. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide sewices is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections 101(a)(#)(A) and (B) of the 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). Since the petitioner has not clarified the amount of time that would be attributed to these seemingly 
nonqualifying tasks, the AAO cannot conclude that the beneficiary's proposed employment would primarily 
involve the performance of qualifylng job duties. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 9 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifjmg relationship 
with the beneficiary's foreign employer. The regulation at 8 C.F.R. 9 204.56)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(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; 
Multinational means that the qualifylng entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
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 the present matter, the petitioner claimed in its initial support letter that is the majority 
holder of the shares of the petitioner and of ., the beneficiary's foreign employer. 
In support of this claim, the petitioner provided foreign documents showing to be the 55% holder 
submitted a single stock certificate in support of its initial claim that 100 out of 200 authorized shares of the 
petitioner's stock were issued to Schedule E of the petitioner's tax returns from 2003-2005 all 
indicate that owns 100% of the petitioner's common stock. Thus, the petitioner submits 
documents and makes claims that are inconsistent with one another. As previously stated, 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. at 591. As such, the 
petitioner has failed to establish that it has a qualifylng relationship with the beneficiary's foreign employer, 
and the petition cannot be approved for this additional reason. 
Second, 8 C.F.R. 9 204.56)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 9 204.5(j)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." Although the 
petitioner indicates that it has been doing business in the United States since 1996, checking account 
statements and tax documentation is an insufficient means for establishng that the petitioner has sold its 
jewelry products on a "regular, systematic, and continuous" basis for the required one-year time period and, thus, 
the petition must be denied for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decisi.on. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
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appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligbility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.