dismissed EB-1C Case: Management Consulting

, identifying data deleted to 
prevent clearijl unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 - 
U. S. Citizenship 
and Immigration 
MAR 0 4 2010 
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. 
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). 
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 Georgia corporation that operates as a management and consulting firm. It seeks to 
employ the beneficiary as its president. 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. fj 1153(b)(l)(C), as a multinational executive or manager. 
After reviewing the record, the director determined that the petitioner failed to establish that it would employ 
the beneficiary in a managerial or executive capacity and denied the petition on that basis. 
On appeal, counsel disputes the director's conclusions and submits supplemental statements regarding the 
beneficiary's position as well as the positions of the beneficiary's direct subordinates. Counsel claims that the 
beneficiary is relieved from having to primarily perform non-qualifying tasks. 
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. 
The primary issue in this proceeding is whether the petitioner submitted sufficient supporting evidence to 
establish that it would employ the beneficiary in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
Page 3 
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 1 Ol(a)(44)(B) of the Act, 8 U.S.C. 9 1 1 Ol(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. 
In support of the Form 1-140, counsel submitted a letter dated March 22, 2007, which listed the supporting 
documents that were being submitted in support of the Form 1-140. Although counsel indicated that a letter 
of support on behalf of the petitioner was among the supporting documents initially submitted, the record 
does not corroborate this claim. 
Accordingly, on August 1 1, 2008, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide a detailed description of the beneficiary's proposed employment, listing the beneficiary's 
specific day-to-day job duties and the percentage of time that would be devoted to each listed task. The 
petitioner was also asked to provide a copy of its organizational chart. 
Page 4 
In response, the petitioner provided two separate submissions that described the beneficiary's proposed 
employment. The first description is contained in a document entitled "Evidence of Executive Capacity in US 
Subsidiary" and is based on the information that was provided in the foreign entity's resolutions dated 
November 21, 2004 and February 2, 2005. The second description includes two additional paragraphs 
broadly describing the beneficiary's role within the petitioning entity and generally attributing a percentage of 
time to some of the beneficiary's main job responsibilities. It is noted that the petitioner only accounted for 
65% of the beneficiary's time and did not list any specific individual tasks. As the director included both job 
descriptions in his decision, the AAO will not repeat that information in the current decision. 
The petitioner also provided a copy of its current organizational chart, which depicts the beneficiary at the top 
of the hierarchy, with an account executive, a marketing executive, and a sales executive as his direct 
subordinates. The petitioner provided corroborating payroll documents showing each employee's monthly 
and quarterly wages and the dates each employee was paid. 
In a decision dated December 3, 2008, the director denied the petition, concluding that the petitioner did not 
provide a comprehensive description of the beneficiary's proposed employment and therefore failed to 
establish that the primary portion of the beneficiary's time would be spent overseeing the work of 
professional, managerial, or supervisory personnel. The director also found that the beneficiary would 
primarily provide the services of the petitioning entity. 
While the AAO concurs with the director's determination that approval was not warranted, it also notes that 
the director's two findings are not entirely consistent with one another. To further explain, the director's first 
finding establishes that the petitioner did not provide sufficient information about the specific tasks that 
would comprise the beneficiary's U.S. employment. If this finding is accurate, U.S. Citizenship and 
Immigration Services (USCIS) is then precluded from performing the necessary analysis to determine 
whether the beneficiary's time would be spent primarily performing tasks within a qualifying capacity. In 
other words, if the director was able to determine that the beneficiary would spend the primary portion of his 
time performing non-qualifying tasks, then it is fair to assume that this conclusion was based on sufficient 
information with regard to the proposed employment. A review of the record supports the director's initial 
finding. 
On appeal, counsel asserts that the beneficiary would be employed in an executive capacity, claiming that the 
beneficiary would supervise managerial, professional, and supervisory employees who would relieve him 
from day-to-day operational tasks. By virtue of incorporating a portion of the definition for managerial 
capacity, counsel seemingly indicates that the beneficiary would be employed as a hybrid 
"executive/manager," relying on partial sections of the two statutory definitions. If the petitioner chooses to 
represent the beneficiary as both an executive and a manager, it must establish that the beneficiary meets each 
of the four criteria set forth in the statutory definition for executive and the statutory definition for manager. 
Counsel also supplements the record with another deficient job description, which indicates that 30% of the 
beneficiary's time would be devoted to financial matters, including expansion opportunities and investments; 
35% of the beneficiary's time would be attributed to consulting, including overseeing management consultants 
and pursuing investments with regard to consulting; and the remaining 35% of the beneficiary's time would be 
devoted to "general Executive Managerial duties outlined in [8 C.F.R. 91 204.5(j)(2)." Counsel provides no 
clarification as to what is meant by "Executive Managerial duties" and further confuses the distinction 
between the terms managerial and executive capacity by claiming that the beneficiary would not perform any 
non-managerial tasks, despite his repeated claims that the beneficiary would be employed in an executive 
capacity. 
Counsel proceeds with focusing on the beneficiary's discretionary authority with regard to management of the 
organization and general decision-making. Counsel also focuses on the subordinate employees who were 
depicted in the petitioner's organizational chart, indicating that the beneficiary has a sufficient support staff to 
relieve him from having to primarily perform tasks of a non-qualifying nature. 
Counsel's arguments, however, are not persuasive. As indicated above, counsel's numerous assertions that the 
beneficiary would be employed in an executive capacity are not corroborated by the evidence of 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). Although expressly requested to submit a specific list of the beneficiary's 
proposed job duties accompanied by a measure of time that would be attributed to each job duty, the 
petitioner provided only vague statements about the beneficiary's general responsibilities with regard to the 
petitioner's business goals. The petitioner also briefly listed the areas in which the beneficiary would exercise 
discretionary authority and indicated that the beneficiary's position is at the top of the petitioner's 
organizational hierarchy. However, the provisions of 8 C.F.R. 5 204.5Cj)(5) clearly establish the need for a 
detailed description of the proposed employment. As further reiterated in precedent case law, the actual 
duties themselves 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). In other words, merely establishing that the 
beneficiary has ultimate authority over all business matters and occupies the top level position within the 
petitioner's hierarchy is insufficient, as these factors do not establish what specific tasks the beneficiary would 
perform. Without a specific account of the tasks the beneficiary would carry out on a daily basis, USCIS is 
unable to conclude that the primary portion of the beneficiary's time would be spent performing tasks within a 
qualifying managerial or executive capacity. 
In the present matter, the petitioner's description of the beneficiary's proposed employment is vague and fails 
to provide a meaningful understanding of the specific tasks the beneficiary would perform on a daily basis. 
This lack of detailed information leaves significant questions unanswered. Primarily, when taking into 
consideration the fact that the petitioner operates as a management consulting firm, the fact that the petitioner 
did not identify any subordinate employees who actually provide the consulting services leaves open the 
possibility that the beneficiary is the one who provides this crucial, yet non-qualifying task. It is noted 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 10 1 (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). 
Although counsel makes brief mention of management consultants in the appellate brief, implying that 
someone other than the beneficiary provides the consulting services, there is no evidence on record that 
establishes the existence of any in-house or contracted consultants. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). As previously noted, the unsupported assertions of counsel do not 
Page 6 
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). 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary would 
be employed in a primarily managerial or executive capacity. Despite the beneficiary's placement within the 
petitioner's hierarchy and his ultimate decision-making authority, the petitioner failed to submit documentary 
evidence establishing the availability of support personnel to perform the consulting work, nor has the 
petitioner delineated the specific tasks the beneficiary would perform in his proposed position as the 
petitioner's president. In light of these significant deficiencies, the record does not support the affirmative 
conclusion that the beneficiary would be employed in a qualifying managerial or executive capacity. For this 
reason, the petition may not be approved. 
Furthermore, the record does not establish that the petitioner meets the provisions of 8 C.F.R. 
5 204.50)(3)(i)(B), which states that the petitioner must establish that the beneficiary was employed abroad in 
a qualifying managerial or executive position for at least one out of the three years prior to his entry to the 
United States as a nonimmigrant to work for the same employer. 
In the instant matter, the director specifically addressed this issue in the RFE by instructing the petitioner to 
provide a detailed list of the specific job duties the beneficiary performed during his employment abroad as 
well as the percentage of time attributed to each task. The petitioner was also asked to provide the foreign 
entity's organizational chart that corresponded with the beneficiary's prior employment abroad. In response, 
the petitioner provided a letter that included a brief statement in which the petitioner merely stated that the 
beneficiary was employed abroad in the position of marketing director and that "[ulnder his brilliant 
management, he has helped make [the foreign entity] one of India's leading companies in the retail fi[e]ld." 
The petitioner failed to list any of the specific tasks the beneficiary performed during his employment abroad 
or to indicate the amount of time that was devoted to those tasks. 
Additionally, while the petitioner submitted the foreign entity's organizational chart, it failed to comply with 
the RFE in which the director expressly instructed the petitioner to provide an organizational chart that 
reflected the beneficiary's position during his employment abroad. In the present matter, the petitioner 
provided an organizational chart that does not include the beneficiary or the position he previously occupied 
with the foreign entity. First, while the petitioner previously stated that the beneficiary's position abroad was 
that of marketing director, the chart that was submitted in response to the RFE includes a sales and marketing 
director. There is no indication that the sales and marketing position is synonymous to the position of 
marketing director, which is the position the beneficiary purportedly occupied. As a result of this deficiency, 
the AAO does not have the necessary information to determine which position the beneficiary occupied 
during his employment abroad, where that position fell within the foreign entity's organizational hierarchy, 
and who the beneficiary's subordinates were in his given position. It follows that the AAO is therefore unable 
to conclude that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
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), 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 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
Page 7 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.