dismissed EB-1C Case: Logistics

prevent clearly unwarranted 
. mvaaion of personal privacj 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washineton, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
-mK3 COPY 
 0 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: JM 1 4 2010 
LIN 07 144 52908 
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: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
U 
Perry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Texas. The petitioner seeks 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. 9 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on the following independent grounds of ineligibility: 1) the petitioner 
failed to establish that it had the ability to pay the beneficiary's proffered wage as of the date the Form 1-140 
was filed; 2) the petitioner failed to establish that it has a qualifying relationship with the beneficiary's foreign 
employer; 3) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity; and 4) the petitioner failed to establish that it would employ the beneficiary 
in a managerial or executive capacity. 
On appeal, counsel disputes the denial and submits an appellate brief addressing several of the director's 
findings. After reviewing the documentation on record, the AAO finds that the petitioner has submitted 
sufficient evidence establishing its ability to pay the beneficiary's proffered wage. Therefore, the AAO 
hereby withdraws the first ground as a basis for denial. 
Additionally, with regard to the second ground for denial-the lack of a qualifying relationship between the 
beneficiary's U.S. and foreign employers-the AAO finds that the director's conclusion was not warranted. 
The AAO notes that counsel's statement on appeal indicates that owns 100% of the foreign 
entity. While this statement is inconsistent with the petitioner's submissions in response to the request for 
evidence (WE), the AAO recognizes that counsel's misstatements, not the evidence or statements of the 
petitioner, are the source of the inconsistency. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Lauveano, 19 I&N Dec. 1 
(BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). As such, the AAO will not rely 
on counsel's unsupported statements to undermine the evidence previously submitted by the petitioner in 
response to the RFE. Counsel's representation is meant to further, not hinder, the petitioner's claims. The 
additional evidence establishes that 
 is the majority owner of the beneficiary's U.S. and 
foreign employers. As the petitioner has established by a preponderance of the evidence that the requisite 
qualifying relationship exists between the two entities, the second ground for denial is hereby withdrawn. 
In light of the findings above, this discussion will focus on the two remaining grounds that served as bases for 
the director's denial-whether the beneficiary was employed abroad and whether he would be employed by 
the petitioner in a qualifying managerial or executive capacity. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial 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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. tj 1 101(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) 
 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 10 1 (a)(44)(B) of the Act, 8 U.S.C. tj 1 10 1 (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-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The petitioner did not submit a description of the beneficiary's foreign or proposed employment in support of 
the Form 1-140. Therefore, in a notice dated July 1 1, 2008, the director issued an RFE instructing the 
petitioner to provide a detailed description of the beneficiary's past and proposed job duties, including the 
specific tasks the beneficiary performed and would perform as well as the percentage of time devoted to the 
individual tasks in each job description. The petitioner was also asked to discuss the beneficiary's subordinate 
staff, including their respective job descriptions and educational levels. Lastly, the petitioner was asked to 
provide an organizational chart representing each entity's staffing hierarchy in order to establish the 
beneficiary's position with respect to others within each organization. 
In response, the petitioner provided the following submission entitled "Executive Capacity" describing the 
beneficiary's proposed employment: 
The responsibilities of [the beneficiary] include direction and manage[ment] of daily 
operations for the business, establishing department goals and policies while exercising wide 
latitude of discretionary decision making. He is the primary individual to set company policy 
while at the same time understanding and ensur[ing] that the company complies with the 
regulations of the Mexican government relative to the importation and exportation of goods. 
Under his direction, management and supervision are [slales, [hluman [r]esources/[t]raffic, 
[dlrivers, [mlaintenance, [slecurity, and [alccounting departments. While the 
[p]resident/[g]eneral [dlirector is responsible for overseeing the daily operations of each 
department, he set[s] policy and make[s] sure all departments, [sic] comply with set policies, 
procedures and goals he have [sic] set for the company. 
He is ultimately responsible for the company's daily operations and for establishing 
organizational goals and policies. 
 He exercises wide latitude of discretionary decision 
making authority while maintaining quality control. 
 has the ultimate decision- 
making authority, and has no one other than shareholders to whom he is responsible.' He has 
discretionary authority over day-to-day decisions on the operation of the company. 
The petitioner's reference to 
 is unclear, as the only individual in the organizational chart with the last name 
is a female, whose position of traffic coordinator appears at the bottom rather than at the top of the petitioner's 
organization. Such a position does not fit the degree of discretionary authority described above. As such, it appears that 
the petitioner's reference to a appears to have been a typographical error and the underlying description was 
apparently meant to be applied to the beneficiary's proposed position with the petitioning entity. 
Page 5 
Currently, [the beneficiary] functions at a senior level within the organizational hierarchy of 
[the petitioner]. 
The petitioner also provided an organizational chart, illustrating the foreign entity's organizational hierarchy 
to the right and the petitioner's organizational hierarchy to the left. The left hand portion of the chart depicts 
the petitioner as a three-tiered hierarchy headed by the beneficiary in the position of president; the manager of 
import and export at the second tier of the hierarchy as the beneficiary's subordinate; and a traffic coordinator 
and warehouse supervisor at the bottom of the hierarchy as the importlexport manager's direct subordinates. 
The right hand portion of the chart describes the foreign entity's organizational hierarchy. However, the 
petitioner listed the foreign entity's position titles in Spanish and failed to provide an English translation 
clarifying the positions that comprised the foreign entity at the time of the beneficiary's employment. Thus, 
due to the petitioner's failure to submit a certified translation of the relevant document, the AAO cannot 
determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Accordingly, 
the evidence is not probative and will not be accorded any weight in this proceeding. Furthermore, the AAO 
notes that the beneficiary's name does not appear anywhere in the foreign entity's organizational chart, 
thereby indicating that the petitioner failed to comply with the director's express request to provide an 
organizational chart depicting the beneficiary's position during his employment abroad. Therefore, even if a 
certified translation were to have been provided, the chart has little relevance in this proceeding. For this 
additional reason the AAO will not accord evidentiary weight to the right hand portion of the chart. 
The petitioner also provided its IRS Form 941, quarterly tax return, for the 2007 second quarter. The 
document encompasses the time period during which the petition was filed and shows that the petitioner had 
no more than two employees during each of the three months that comprised the second quarter. 
It is noted that despite the director's express request for a detailed description of the beneficiary's foreign 
employment, the petitioner failed to provide this relevant information. 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). 
Accordingly, in a decision dated October 24, 2008, the director denied the petition noting that the petitioner 
failed to comply with the request for additional evidence regarding the beneficiary's foreign employment. 
The director also concluded that the petitioner failed to establish that the beneficiary's employment with the 
petitioning entity would be within a qualifying capacity, pointing out that the job description the petitioner 
provided in response to the RFE ignored the director's express instructions as to the content of the information 
the petitioner was asked to provide and the format in which the information was to be presented. Namely, the 
director stated that despite the request for a specific list of job duties accompanied by a percentage breakdown 
to indicate the portion of time allotted to each task, the petitioner's job description contained general 
information which fell far short of establishing exactly how the beneficiary would spend the primary portion 
of his time in his proposed position. 
On appeal, counsel acknowledges that a detailed description of duties was not provided and asserts that the 
petitioner's early stage of development is a sufficient justification for the petitioner's failure to comply with 
the director's request. Counsel explains that in light of the fact that the petitioner is still a small business, the 
beneficiary spends his time performing a variety of duties that are "difficult to specify," but assures the AAO 
that the beneficiary would primarily execute tasks within an "executive/managerial capacity." However, as 
previously stated, the unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. 1; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
Furthermore, counsel fails to clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
10 l(a)(44)(B) of the Act. A petitioner must clearly describe the duties to be performed by the beneficiary and 
indicate whether such duties are either in an executive or managerial capacity. See 8 C.F.R. 5 204.56)(5). 
The petitioner must demonstrate that the beneficiary's responsibilities will meet the requirements of one or the 
other capacity. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives, as the 
petitioner has done in the matter at hand, is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. Case law further supports the relevance of a detailed job description, finding 
that the actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
In the present matter, the petitioner has not provided the necessary information regarding the beneficiary's 
daily job duties. While the petitioner has depicted the beneficiary's proposed position at the top of the 
corporate hierarchy, thereby indicating that the beneficiary has a high degree of discretionary authority, these 
two factors are insufficient to establish that the beneficiary would primarily perform tasks within a qualifying 
capacity. As stated above, a detailed job description is among the most crucial factors for any petitioner that 
seeks to classify a beneficiary as a multinational manager or executive. See 8 C.F.R. 5 204.56)(5). 
Additionally, in order to establish that the beneficiary would primarily perform tasks within a qualifying 
capacity, the petitioner must establish that it had the ability to relieve the beneficiary from having to primarily 
perform operational tasks at the time of filing. 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 International, 19 I&N 
Dec. 593, 604 (Comm. 1988). In the present matter, despite the fact that the petitioner claimed three 
employees in part 5, item 2 of the Form 1-140, the IRS Form 941 quarterly tax return for the second quarter of 
2007 indicates that the petitioner had no more than two employees at the time the Form 1-140 was filed. 
While counsel points out that the size of the petitioning entity is not a determining factor in whether the 
beneficiary qualifies for immigrant classification as a multinational manager or executive, the fact remains 
that the petitioner must provide evidence to establish who performs its daily operational tasks such that the 
beneficiary would be relieved from having to do so. With only two employees at the time of filing, one of 
whom was likely to have been the beneficiary himself, the AAO cannot conclude that the petitioner was 
equipped with a sufficient support staff to ensure that the primary portion of the beneficiary's time would be 
spent performing job duties within a qualifying managerial or executive capacity. 
Counsel also relies on the petitioner's previously approved L-1A nonimmigrant petitions with the same 
beneficiary as evidence that this petition merits approval. However, this argument is flawed and does not 
overcome the director's findings, as each nonimmigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof. Therefore, each petition must stand on its own individual merits. 
USCIS is not required to assume the burden of searching through previously provided evidence submitted in 
support of other petitions to determine the approvability of the petition at hand in the present matter. The 
prior nonimmigrant approval does not preclude USCIS from denying an extension petition. See e.g. Texas 
A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). Nor does the approval of a 
nonimmigrant petition in any way guarantee that USCIS will approve an immigrant petition filed on behalf of 
the same beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior nonimmigrant I- 
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 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals 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 USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
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 approved previous nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
In summary, the petitioner failed to provide any relevant information to establish that the beneficiary was 
employed abroad in a qualifying capacity. Although the petitioner provided some information with regard to 
the beneficiary's proposed employment, the information lacked the necessary degree of detail to convey a 
meaningful understanding of the specific tasks the beneficiary would perform on a daily basis in his effort to 
oversee the organization and affect its policies. As stated above, the petitioner also failed to establish that it 
was adequately staffed at the time of filing to relieve the beneficiary from having to primarily perform tasks 
outside of the qualifying capacity. Thus, in light of these considerable deficiencies in the record, the AAO 
cannot conclude that the beneficiary was employed abroad or that he would be employed by the U.S. 
organization in a qualifying managerial or executive capacity. Based on these two independent findings, this 
petition cannot be approved. 
Furthermore, while not addressed in the director's decision, the record indicates that there is a third ground 
that should serve as a basis for denying the present petition. Specifically, the record shows that the petitioner 
has failed to meet the provisions of 8 C.F.R. 9 204.56)(3)(i)(D), which 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. 
5 204.56)(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." 
In the present matter, the petitioner filed its Form 1-140 on April 20, 2007. However, the record shows that 
the petitioner was not formed as a limited liability company until January 8, 2007~~ approximately three 
months prior to filing. As the petitioner cannot establish that it existed as a legal entity prior to January 8, 
2007, it is unclear how it could have been doing business as of April 2006, or one year prior to the time the 
Form 1-140 was filed. 
2 
 In part 5, item 2 of the Form 1-140, the petitioner indicated that it was established on February 6, 2007. Per the above 
documentation on record, it appears that the petitioner provided incorrect information as to the date of its establishment. 
As this error is neither significant nor material to the issue at hand, further discussion is not warranted. 
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 decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 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 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
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. 9 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.