dismissed EB-1C Case: Jewelry Sales

U.S. Department of flomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
FILE: - Office: TEXAS SERVICE CENTER Date: APR 2 4 2007 
SRC 04 150 5273 1 
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 1 153(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. 
I 
Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based petition. The petitioner 
subsequently filed an appeal with the Administrative Appeals Office (AAO). 
 The AAO withdrew the 
director's decision and remanded the matter to the director for further consideration and entry of a new 
decision. Following the petitioner's response to her request for evidence, the director denied the petition. The 
matter is again before the AAO on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality 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 Texas that is 
engaged in the sale of jewelry. The petitioner seeks to employ the beneficiary as its president. 
The director originally denied the petition concluding that the petitioner had not demonstrated that a 
qualifying relationship exists between the foreign and United States entities. In its review of the appeal, the 
AAO concluded that the petitioner had demonstrated the existence of an affiliate relationship between the 
foreign and United States entities. The AAO noted, however, that the petitioner had not established that the 
beneficiary had been employed by the foreign entity or would be employed by the United States company in a 
primarily managerial or executive capacity, and remanded the matter to the director for further consideration 
of these issues. 
The director properly notified the petitioner of the deficiencies in the record pertaining to the nature of the 
beneficiary's foreign and present employment, and provided the petitioner an opportunity to submit additional 
evidence. The director ultimately denied the petition concluding that the petitioner had not demonstrated that 
the beneficiary had been employed abroad by the foreign entity or would be employed in the United States in 
a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner submits a statement challenging the director's findings related to the 
nature of the beneficiary's employment in the foreign and United States entities. Counsel indicated on the 
Form I-290B that he would submit an appellate brief within sixty days of filing the appeal. The AAO notes 
that on April 3,2007, a request was sent to counsel via facsimile for an appellate brief or additional evidence. 
Counsel responded indicating that he did not file an additional brief or evidence in support of the instant 
appeal. Accordingly, the record will be considered complete. 
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 
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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. 
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 tivo related issues in the present matter are whether the petitioner demonstrated that the beneficiary had 
occupied a primarily managerial or executive position in the foreign entity or whether the petitioner would 
employ the beneficiary in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 lOl(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(i) 
 Manages the organization, or a department, subdivision, function, 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) 
 Has the authority to hire and fire or 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 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. 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; 
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(ii) 
 Establishes the goals and policies of the organization, component, or function; 
(iii) 
 Exercises wide latitude in discretionary decision-making; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
In an undated letter appended to the petition, the petitioner stated that while employed abroad as the foreign 
company's general manager, the beneficiary oversaw and ran the corporation. The petitioner further stated: 
[The beneficiary] [was] responsible for assessing, and analyzing any possible acquisition 
candidate, spending time understanding the dynamics of allied industry, while performing 
many directorial duties as the president of the company involving strategic planning, 
supervision, coordination and representation of the corporation. [The beneficiary's] 
responsibility include[d] direct[ing] and overseeing the total operation of the company, 
including the hir[ing], train[ing], supervis[ion], and fir[ing] of all employees, as well as 
making business decisions regarding any future growth, merger, or acquisition, and 
expansion plans. 
The director subsequently requested in a March 24, 2006 notice that the petitioner provide a "definitive 
statement from the foreign company describing the job duties of the beneficiary," and addressing: the 
beneficiary's position title; job duties; the percentage of time devoted to each task; the subordinate managers, 
supervisors, or employees who reported directly to the beneficiary; and, the job title, educational levels, and 
job duties of the subordinate employees. The director also directed the petitioner to "submit evidence of the 
staffing level at the foreign company at the time the beneficiary was employed there." 
Counsel for the petitioner responded in a letter dated June 20, 2006. In an attached June 16, 2006 letter, the 
foreign entity addressed the beneficiary's role as the "founder, president, and executive manager" of the 
foreign company, stating that as a result of its expansion into the United States, the beneficiary now "manages 
our funding, investment, and the company's progress, and activity through the store manager from the United 
States, who coordinates according to the instructions, and policies set by our president." The beneficiary was 
also described as making purchasing decisions, hiring and firing managers, planning, controlling and 
coordinating the foreign company's operations, and delegating responsibilities. The store manager of the 
foreign company also provided a brief statement allocating the time spent by the beneficiary "at this time" on 
responsibilities related to the foreign entity. 
Counsel submitted a list of the workers employed by the foreign entity during the beneficiary's employment 
overseas, which were comprised of a store manager, and three sales assistants, as well as contracted 
consultants such as computer hardware and software managers and an accountant. Counsel further provided 
the resume for the store manager of the foreign entity. 
In a July 18, 2006 decision, the director concluded that the petitioner had not demonstrated that the 
beneficiary had been employed by the foreign entity in a primarily managerial or executive capacity. The 
director noted that the job descriptions offered by the petitioner, in addition to incorporating "general terms," 
failed to indicate the amount of time the beneficiary spent performing each of his job duties while employed 
by the foreign entity. The director also noted an unresolved discrepancy in the representations of the foreign 
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I 
entity's staffing levels, stating that the organizational chart submitted with the petitioner's original filing 
identified the employment of two technical assistants in addition to the five employees and three outside 
consultants. The director concluded that the beneficiary had not been relieved from performing the day-to- 
day duties of the foreign company, and consequently, denied the petition. 
In his statement on appeal, counsel for the petitioner contends: 
Director's decision to deny is in error based on the reason indicated in the notice 
alleging the failure of [the] foreign company in providing the percentage of time for the 
beneficiary as the two page letter of June 16,2006 complied with this request. 
Director's decision is in error based on a finding that the beneficiary's time percentage 
are not provided at the'foreign company at the time of petition filing because it was not 
requested, as [the] Request for Evidence (WE) dated March 24, 2006 clearly requested 
only the job duties at the foreign entity without specifying the present time or the past. The 
only item requested from the time [the] beneficiary was there was the staffing level as 
indicated on page two of RFE (please see attached). 
Director's decision is in error based on the [sic] her subjective opinion that the terms of 
duties, and involvements of [the] [bleneficiary are in 'general terms,' and 'vague and general 
in scope,' failing to adhere to her own directive in providing a list of all duties, and not 
clarifying what if any additional details were required, or if a day in [the] life of executive 
narrative was required. 
Director's decision to deny is flawed in that she now discounts the time spent on 
managerial/executive duties is diminished by actual time devoted to these functions based 
on (in her opinion) limited number of employees in contrast to the real world operation of a 
business without providing a legal basis for her interpretation, and conclusions. 
Director's decision fails to recognize her own conclusion that the beneficiary who is the 
president, founder, and executive manager of [the] foreign company based on undisputed 
letter from the foreign company, indicating that the beneficiary spends 5% of his total time 
on [the] foreign operation as a failure to provide the same as being requested on the RFE. 
Director's decision is also in error for assuming that [the] staffing level in [the] foreign 
company translates in [the] beneficiary being involved in the day[-]to[-]day operation of 
business some 6,000 miles away while due to global economy downturn some activities are 
outsourced since 2002, without taking administrative notice of outsourcing by most 
companies globally. 
Upon review, the petitioner has not demonstrated that the beneficiary was employed by the foreign 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. § 2 14.2(1)(3)(ii). The AAO stresses that the analysis of 
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the beneficiary's employment capacity in the foreign entity requires a review of the job duties performed by 
the beneficiary during his employment with the foreign entity. The statute and regulations require the 
petitioner to demonstrate that the beneficiary was employed overseas in a primarily managerial or executive 
capacity for at least one year during the three years preceding his entry into the United States as a 
nonimmigrant. See tj 203(b)(l)(C) of the Act; 8 C.F.R. tj 204.5(j)(3)(B). 
Counsel's blanket claims on appeal of the director's errors in her analysis of the beneficiary's former 
employment capacity are not sufficient to overcome the finding that the beneficiary was not occupying a 
primarily managerial or executive capacity in the foreign entity. As correctly noted by the director, the 
capacity in which the beneficiary was employed by the foreign entity cannot be ascertained from the general 
job descriptions offered by the petitioner and the foreign entity, which largely address the responsibilities 
claimed to be held by the beneficiary while employed in the United States. The job description offered by the 
petitioner with its initial filing only generally discussed how the beneficiary will continue his work as 
president of the foreign entity while employed in the United States, and indicated that the beneficiary 
performed "many directorial duties," including "strategic planning, supervision, coordination and 
representation of the corporation," making personnel decisions, deciding relevant "macro environmental 
trends," and finalizing long-term business goals. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The petitioner has failed to answer a critical question in this case: What does 
the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. 
Cir. 1990). 
Counsel does not seem to acknowledge the requirement of establishing the beneficiary's former employment 
capacity at the time of filing the immigrant visa petition. Counsel challenges on appeal that the job 
description submitted in response to the director's request for evidence is sufficient to establish the 
beneficiary's former employment in a primarily managerial or executive capacity, and claims the director did 
not specify whether the job duties should related to "the present time or the past." Again, the statute and 
regulations clearly outline the petitioner's obligation to establish the beneficiary's prior overseas employment 
in a primarily managerial or executive capacity, which is satisfied through detailed and specific evidence of 
the managerial or executive job duties performed by the beneficiary while employed by the foreign entity 
prior to his transfer to the United States. See 3 203(b)(l)(C) of the Act and 8 C.F.R. 3 204.5(j)(3)(B); see also 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971) (finding that a petitioner must establish eligibility at 
the time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts). In light of this well-established requirement, counsel's suggestion that the 
beneficiary's concurrent employment with the petitioning and foreign entities at the time of the appeal 
fulfilled this eligibility requirement is misplaced and inappropriate. The record lacks sufficient detail of 
whether, prior to his entrance into the United States as a nonimmigrant, the beneficiary's overseas 
employment comprised primarily managerial or executive job duties. 
The AAO notes that despite the director's note of the deficient record, counsel did not attempt on appeal to 
supplement the record with a detailed description of the beneficiary's employment in the foreign company 
prior to his transfer to the United States. Nor did counsel explain the inconsistencies in the foreign entity's 
staffing levels noted by the director in her July 18, 2006 decision. Counsel's general objections to the 
director's denial are insufficient to overcome the well-founded and logical conclusions the director reached 
based on a review of the record. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Based on the above discussion, the petitioner has not demonstrated that the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
The AAO will next consider whether the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. 
In her July 18, 2006 decision, the director concluded that the petitioner had not demonstrated that the 
beneficiary would be employed by the United States entity in a primarily managerial or executive capacity. 
The director stated that the description offered of the beneficiary's proposed job duties was "vague and 
general in scope," and did not depict the day-to-day job duties to be performed by the beneficiary. The 
director recognized the petitioner's four-person staff at the time of filing, noting that it appeared that one of 
the workers was employed on a part-time basis, and stated that it is questionable whether the beneficiary 
would be performing primarily managerial or executive job duties. The director also noted that while the 
petitioner submitted its employees' resumes, it did not provide the requested job descriptions of each position. 
The director concluded that the present record did not establish the beneficiary's proposed employment in a 
primarily managerial or executive position. Accordingly, the director denied the petition. 
With respect to the beneficiary's employment in the United States entity, counsel contends on appeal: 
Director's decision is ignorant of her own directive on the RFE in providing a brief 
description of employees job duties, and now alleging that a job description for 
employees was not provided, while the same was included with their resume's [sic]. 
Director's decision is also in error in that she mis-characterizes the evidence, and 
explanation submitted by the petitioner in regards to the nature of his involvement 
in the daily operation of [the] U.S. entity which includes his direction of [the] V.P., 
and [the] store managers in addition to overseeing the three branches. 
Director's decision is also flawed based on the assumption that an employee either 
worked part[-]time [or] did not work at all, while the issue was not raised on the 
RFE for proper response, but the U.S. entity had lost an employee due to death of 
the employee during the year, and not considering the fact that the petitioner now 
employs seven people as outlined on the petitioning entity's letter. 
Counsel's general objections on appeal to the director's analysis of the instant issue are not sufficient to 
establish the beneficiary's eligibility for the requested immigrant visa classification. 
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. 9 204.5('j)(5). 
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The petitioner's initial job description falls considerably short of establishing the beneficiary's employment in 
a primarily managerial or executive capacity, as it outlines such broad job responsibilities as: (1) investigating 
business opportunities and setting personnel policies, and reporting to the parent company, 20%; (2) hiring, 
firing, training and supervising managers, reviewing employees' work performance, setting corporate goals, 
and overseeing the operation of the business, 30%; (3) communicating with attorney, accountants, vendors 
and providers, 15%; (4) acting as a liaison between the United States and foreign corporations to standardize 
marketing and development functions, 5%; (5) representing the petitioner at trade shows and tracking industry 
changes, 20%; and (6) mentoring and counseling management and employees, 10%. The AAO notes that 
these responsibilities and the time devoted to each vary considerably from the evidence offered by the 
petitioner in its response to the director's subsequent request for evidence related to the beneficiary's 
employment capacity. When responding to a request for evidence, a petitioner cannot offer a new position to 
the beneficiary, or materially change a position's title, its level of authority within the organizational 
hierarchy, or its associated job responsibilities. Again, a petitioner must establish eligibility at the time of 
filing; 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. at 49. 
Counsel did not submit on appeal a supplemental statement describing the beneficiary's specific managerial or 
executive job duties at the time of filing. His general claims of the director's error in mischaracterizing the 
petitioner's representations of the beneficiary's primarily managerial or executive employment in the United 
States are not sufficient to meet the eligibility requirements outlined in the statute and regulations. See $5 
lOl(a)(44)(A) and (B) of the Act (defining the statutory definitions of "managerial capacity" and "executive 
capacity"; see also 8 C.F.R. $ 204.5(j)(5) (requiring that the petitioner clearly describe the managerial or 
executive job duties to be performed by the beneficiary in the United States). Again, without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 534. 
Counsel further challenges on appeal that the death of an employee during the year 2004 resulted in the 
director's incorrect assumption that the petitioner employed a part-time worker, and that the director failed to 
consider the petitioner's current staff of seven workers. Again, the petitioner's present staffing levels are not 
relevant or probative of the beneficiary's proposed employment capacity at the time of filing. See Matter of 
Katigbak, 14 I&N Dec. at 49. Moreover, notwithstanding the purported death of an employee, counsel did 
not document how the staffing levels maintained by the petitioner on the filing date would satisfy its 
reasonable needs while employing the beneficiary in a primarily managerial or executive capacity. Counsel's 
general objections without additional evidence clarifying how the beneficiary's proposed position would be 
managerial or executive in nature, prevents a finding that the beneficiary would be employed as a manager or 
executive of the United States entity. Case law dictates that a petitioner's blanket claim of employing the 
beneficiary as a manager or executive without a description of how, when, where and with whom the 
beneficiary's job duties occurred is insufficient for establishing employment in a primarily managerial or 
executive capacity. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108. 
The record as presently constituted does not establish the beneficiary's eligibility for this immigrant visa 
classification. Accordingly, for this additional reason, the appeal will be dismissed. 
The AAO recognizes that Citizenship and Immigration Services (CIS) previously approved two L-1A 
nonimmigrant visa p<titions filed by the petitioner on behalf of the beneficiary. It must be noted that many I- 
140 immigrant petitions are denied after CIS approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q 
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Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. ofJustice, 48 F. Supp. 
2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the 
consequences of an approved petition, there is a significant difference between a nonimmigrant L-1A visa 
classification, which allows an alien to enter the United States temporarily, and an immigrant E-13 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: $5 204 and 214 of the Act, 8 U.S.C. $5 1154 
and 11 84; see also 5 3 16 of the Act, 8 U.S.C. 5 1427. Because, CIS spends less time reviewing 1-129 
nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant L-1A petitions are simply 
approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. 5 
2 14.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-1A petition's validity). 
Furthermore, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. The approval of a nonimmigrant 
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same 
beneficiary. Based on the lack of evidence of eligibility in the current record, the director was justified in 
departing from the prior nonimmigrant petition approvals and denying the immigrant petition. 
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 eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.