dismissed EB-1C Case: Management Consulting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M-&C-, INC. U-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 21. 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a management consulting firm, seeks to permanently employ the Beneficiary as a 
management consultant under the first preference immigrant classification for multinational executives 
or managers. Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. 
§ l 153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Beneficiary was employed abroad in a managerial or executive capacity 
for at least one year during the three years preceding the Beneficiary's entry into the United States to 
work for the Petitioner. 
On appeal, the Petitioner submits additional evidence and counsel for the Petitioner asserts that the 
Director erred by misinterpreting evidence in the record. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the petition, 
has been employed outside the United States for at least one year in a managerial or executive capacity, 
and seeks to enter the United States in order to continue to render managerial or executive services to the 
same employer or to its subsidiary or affiliate. Section 203(b )(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same employer 
or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.50)(3). 
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Matter of M-&C-, Inc. U-S-
11. ONE YEAR EMPLOYMENT ABROAD 
If a given beneficiary is already in the United States working for the foreign employer or its subsidiary 
or affiliate, then the regulation at 8 C.F.R. § 204.5G)(3)(i)(B) requires the petitioner to submit a 
statement from an authorized official of the petitioning United States employer which demonstrates 
that, in the three years preceding entry as a nonimmigrant, the beneficiary was employed by the entity 
abroad for at least one year in a managerial or executive capacity. 
The Beneficiary entered the United States on August 20, 2015, to work for the Petitioner as an L-IA 
nonimmigrant. The Beneficiary was still in the United States when the Petitioner filed the present 
petition on May 8, 2017. Therefore, the Beneficiary must have accrued at least one year of qualifying 
employment abroad between August 20, 2012, and August 20, 2015. 
In an introductory letter submitted with the petition in May 2017, the Petitioner listed three projects 
that the Beneficiary led between August 2012 and July 2013. In a subsequent letter, from June 2018, 
the Petitioner stated that the Beneficiary "was employed in a managerial role from October 2010 to 
July 2013 by ... [the Petitioner's] wholly-owned subsidiary." These assertions are consistent with 
the Beneficiary's own account of her employment history on Form G-325A, Biographic Information: 
Employer 
The Petitioner's subsidiary, , Poland 
Dates of employment 
October 2010-July 2013 
June 2014-August 2014 
August 2015-Present Time 
California 
The Petitioner, ____ California 
The Petitioner's June 2018 letter also, however, contained a conflicting assertion, indicating that the 
Beneficiary "was employed in a managerial role ... from October 22, 2010 to December 31, 2013 by 
[the foreign subsidiary]." An employment history included the following information: 
Start Date End Date Skill [Title] Location I Per Diem 
Office 
22-OCT-2010 3 l-MAY-2012 BUSINESS ANALYST EUR 1800 As of 
0l-JUL-2011 
0l-JUN-2012 3 l-DEC-2013 SENIOR BUSINESS ANALYST EUR 2400 As of 
0l-JUL-2013 
0l-JAN-2014 30-NOV-2014 SENIOR BUSINESS ANALYST 
0l-DEC-2014 22-SEP-2015 SENIOR BUSINESS ANALYST USD 2995.00 As 
of 0l-SEP-2015 
23-SEP-2015 [Present] ASSOCIATE 
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The employment dates in the June 2018 letter are consistent with the history table, but not with other 
information in the record. Evidence from multiple sources confirms that the Beneficiary entered the 
United States on August 20, 2015, to work for the petitioning organization in the United States. The 
table does not take into account the Beneficiary 's self-described internship at in summer 2014. 
And the Petitioner acknowledged that "the Beneficiary took an educational leave of absence to pursue 
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Matter of M-&C-, Inc. U-S-
her MBA degree at from 2013 to 2015." (Government travel records support this 
assertion.) During that time, the Beneficiary was not working abroad in a managerial capacity. 
The Director concluded that the Beneficiary's qualifying employment abroad ended in July 2013, 
more than two years before the Beneficiary entered the United States on August 20, 2015 to work for 
the Petitioner. The Director noted the "0l-JUL-2013" notation in the "Per Diem" column of the 
employment history table, and stated that the record "does not clearly establish when the Beneficiary 
began her educational leave of absence but indicates that it may have been on July 1, 2013." 
On appeal, counsel for the Petitioner states that the Beneficiary's "educational leave of absence ... 
commenced on August 27, 2013," the day before her documented entry into the United States as an 
F-1 nonimmigrant student. Therefore, counsel asserts, the Beneficiary worked abroad for at least one 
year between August 2012 and August 2013. 
The above explanation presumes that the Beneficiary worked in a qualifying capacity up until the day 
before she entered the United States, but earlier submissions contained multiple references to a July 
2013 end date for the Beneficiary's employment abroad. On appeal, counsel asserts that "the July 
2013 date listed in the petition and in Form [G-]325A contained a typographical error." While the 
Form G-325A contained a single reference to "07 2013," the Petitioner's introductory letter contained 
three separate references to "July 2013," with the name of the month fully spelled out each time. The 
Petitioner has not plausibly shown that each of these references is attributable to "typographical error." 
Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 
1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's statements 
must be substantiated in the record with independent evidence, which may include affidavits and 
declarations. 
In this instance, the Petitioner submits documentation only with respect to the date of the Beneficiary's 
arrival in the United States, which is not in dispute. The Beneficiary's August 28, 2013 entry does not 
demonstrate or imply that she continued working in Poland up until the day prior to her departure. 
The Petitioner does not submit contemporaneous documentary evidence to show that she actively 
worked at the foreign subsidiary in a qualifying capacity during August 2013. 
The employment history table is ambiguous at best, because it does not directly account for the 
Beneficiary's leave of absence and it shows some dates that are demonstrably at variance with other 
information in the record. Regarding that table's reference to July 1, 2013, counsel contends: 
[T]hat date, while listed, clearly does not refer to the beneficiary 's educational leave of 
absence. Rather, it is listed under the "per diem" column, which refers only to the 
compensation , and any changes to the rate of pay, the organization provides to the 
beneficiary for her services as of the date specified. 
A per diem often covers an employee 's travel-related expenses. The per diem entries dated July 2013 
and September 2015 both roughly coincide with the beginning of prolonged visits to the United States. 
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Matter of M-&C-, Inc. U-S-
The Petitioner, on whom the burden of proof rests, has not shown that the Beneficiary received per 
diem payments for reasons unrelated to job-related travel. 
The Petitioner has precisely documented the dates of the Beneficiary's travel and the start of classes, 
but these dates are not in controversy. The issue in contention is not when the Beneficiary entered the 
United States, but when she stopped actively working for the foreign entity. The Petitioner has not 
submitted contemporaneous, documentary evidence (such as payroll records, work product, or 
documents generated when the Beneficiary requested and received her academic leave of absence) 
that would reliably date the actual end point of her active employment abroad. The Petitioner has 
neither acknowledged nor explained the absence of this key evidence. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofM-&C-, Inc. U-S-, ID# 2607834 (AAO Mar. 21, 2019) 
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