dismissed EB-1C Case: Manufacturing

US. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: WAC 03 059 52742 Office: CALIFORNIA SERVICE CENTER Date: 
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. $ 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. 
sbert P. ~iemann, Director 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation claiming to be engaged in production and sales of wire harness and 
other components for appliances. 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. 8 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
concluding that the petitioner failed to establish that it had been doing business for one year prior to filing the 
petition and further stated that the beneficiary would not be employed in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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 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 first issue in this proceeding is whether the petitioner had been doing business in the United States for 
one year prior to filing the instant petition. See 8 C.F.R. 9 204.50)(3)(D). 
The regulation at 8 C.F.R. 8 204.56)(2) states that "doing business" means the regular, systematic, and continuous 
provision of goods andfor services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office. 
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In the November 22, 2002 letter submitted in support of the petition the petitioner stated that its primary 
business is focused on import, sales, and distribution. Namely, the petitioner claims that it imports products 
manufactured by its Mexican subsidiary for the purpose of selling such products to manufacturers in the 
United States. The petitioner also submitted its year 2000 tax return and its financial statement for the year 
ended November 30, 2001. However, the petitioner submitted no sales invoices documenting the sale of the 
merchandise it claims to have imported. 
Although the record contains the petitioner's tax information, which indicates that the petitioner has an 
income sufficient to pay its employees, there is no evidence to suggest that the petitioner has, in fact, engaged 
in the regular, systematic, and continuous sales of its products. The petitioner has submitted no invoices or 
shipping documents to suggest that merchandise had been imported and subsequently sold in the United 
States for one year prior to December 12, 2002 when the instant petition was filed. All of the petitioner's 
invoices submitted on appeal account for sales transactions that occurred primarily in November 2003 and, 
therefore, fail to address the relevant time period. Although the petitioner submitted tax documentation and 
its financial statements for the relevant time period, none of these documents affirmatively determine that the 
petitioner obtained its income by importing and selling merchandise. The submitted documents merely 
determine that the petitioner had generated income. There is no evidence to indicate that the petitioner's 
income stemmed from sales transactions as claimed. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). It is noted that without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
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). A review of the record indicates that the petitioner has failed to submit sufficient evidence to establish 
that the petitioner had been engaged in sales transactions in a regular, continuous, and systematic manner. 
For this initial reason the petition cannot be approved. 
The other issue in this proceeding is whether the beneficiary would be employed in a capacity that is 
managerial or executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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 
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(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. 3 1101(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 petition, the petitioner submitted the following description of the duties: 
As [qluality [clontrol [mlanager, the [bleneficiary participates in the implementation and 
administration of the [pletitioner's operational policies with regard to its twin-plant facility 
and the development and/or modification of the [pletitioner's long-range goals and objectives 
with an emphasis on quality control. The Pleneficiary oversees the implementation of those 
goals and is responsible for the function of communicating with our United States customers, 
ensuring production scheduling, staffing, equipment, quality assurance, and raw materials 
inventory control. The [bleneficiary is responsible for ensuring the [pletitioner's quality 
control standards and analysis of production, sales and quality control data, making 
modifications to production layouts or reorganization of production processes as necessary, 
and monitoring its company's cost-effectiveness and budgeting. He is responsible for 
technical communications with customers to implement the [pletitioner's policies, goals and 
spending priorities in accordance with customer specifications and expectations and that 
production occurs efficiently, on time, at the required quality level, and within budgetary 
guidelines. 
The Pleneficiary continues to be responsible for managing and coordinating [the foreign 
entity's] quality control operations related to the production of our compenent parts through 
directing the work of a team of 50 employees in his department including 2 assistant 
managers, 2 maintenance managers, 2 quality control supervisors, 1 quality assurance 
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supervisor, and a staff of up to 44 professional engineers, technicians and operators 
responsible for the operation and maintenance and overall quality assurance and control. . . . 
The [bleneficiary continues to oversee the critical implementation of quality control and 
production standards for machinery and develops budget and cost controls for operating 
methods, policies and procedures. He has been responsible for obtaining optimum efficiency 
in production methods and utilization of machinery and equipment and analyzes quality 
control data to make changes in training programs, production procedures and other areas as 
required. He exercises discretionary authority in decisions pertaining to personnel matters as 
well as in the purchase of major equipment and machinery. 
In a notice, dated April 30, 2003, the director requested that the petitioner submit additional information. The 
request included instructions to provide the petitioner's organizational chart describing its managerial 
hierarchy and staffing levels. The petitioner was instructed to clearly identify the beneficiary's position in the 
chart, identify his subordinates by name and job title, and to list their job duties and educational levels. The 
petitioner was also asked to provide a more detailed description of the beneficiary's duties in the United 
States with an indication of the percentage of time spent performing each of the listed duties. Additional 
documentation was also requested in the form of the petitioner's wage reports, W-3 and 1099-Misc. 
statements, as well as employee W-2 statements for 2002. 
In response, counsel submitted a letter dated July 18, 2003 listing all of the supporting documents submitted. 
The petitioner also submitted a letter dated July 14, 2003 with the following description of the beneficiary's 
duties in the United States: 
[W]e require an individual with the quality control expertise to assess the relevant issues and 
to formulate the necessary procedures and specifications to ensure our customers' production 
needs are met. In addition, the [qluality [clontrol [mlanager will provide sales support to our 
sales staff and executives by identifying the various quality control certifications our 
company possesses as well as describing and explaining the internal controls and policies we 
have in place at our subsidiary manufacturing facility. Due to the specialized knowledge 
requirements of this position, it was necessary to transfer [the beneficiary]. . . . [His] day-to- 
day responsibilities for overseeing our quality control, product engineering, and maintenance 
activities at our subsidiary have been given to managers and supervisors working at our 
manufacturing facility. . . . 
As [qluality [c]ontrol [mlanager, [the beneficiary] continues to be responsible for providing 
general oversight over our quality control functions at our subsidiary . . . . [The beneficiary] 
is responsible for directing the activities of our floor managers and first-line supervisors at 
our subsidiary to implement our quality control procedures and policies. [He] develops such 
policies and procedures to ensure the delivery of products that meet our customers' 
expectations while maintaining a profit margin consistent with the business goals of our 
parent company in Japan. He analyzes quality control data regarding defects, waste, and 
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damaged goods to identify areas requiring remedial action. [The beneficiary] is also 
responsible for ensuring our compliance with the quality standards certifications that have 
been granted to us by overseeing the internal audit process as well as to resolve any concerns 
of independent assessment teams. He communicates regularly with the [plresident as well as 
executives in Japan in developing strategies to utilize the latest quality control techniques. 
[The beneficiary] has the ultimate approval authority regarding personnel actions in his 
department. Finally, . . . [he] meets with our customers to evaluate their new products to 
formulate product specifications to ensure product quality. He will also resolve any 
production issues our customers may have by reformulating specifications to meet their 
needs. [The beneficiary] also provides sales support by promoting ow business and goodwill 
by emphasizing and explaining the quality certifications our company possesses as well as the 
internal audit procedures and policies we have in place at our subsidiary. [He] will spend 
approximately 60% of his time overseeing our quality control functions and the remaining 
40% of his time will be spent meeting and liaising with our customers. 
The petitioner also complied with the petitioner's requests for an organizational chart, employee list, and 
quarterly wage statements. It is noted that the petitioner's fourth quarterly wage report, which reflects the 
petitioner's employees at the time the petition was filed, lists a total of seven employees including the 
beneficiary. However, only one of those employees is listed among the beneficiary's subordinates. 
According to the petitioner, the rest of the named subordinates work at the petitioner's subsidiary, which is 
located in Mexico. 
The director denied the petition concluding that despite the beneficiary's description of duties, the evidence of 
record does not support the claim that the beneficiary would be employed as a multinational manager or 
executive. The director also noted that the beneficiary's team of subordinates is employed by the petitioner's 
Mexican subsidiary, not by the petitioner. The director further commented on the petitioner's organizational 
chart, which indicates that most of the petitioner's employees have managerial or executive titles. 
On appeal, counsel asserts that the petitioner's primary concern is to manage the foreign subsidiary and 
claims that the beneficiary helps accomplish this task by managing the foreign entity's quality control and 
maintenance activities, which he does by setting goals and establishing policies. While counsel suggests that 
the beneficiary has subordinate employees, neither he nor the petitioner explain with sufficient detail how the 
beneficiary is able to manage individuals that are physically located at a work site outside of the United States 
and is hundreds of miles away from where the beneficiary himself is working. It is noted that going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The 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). 
Counsel further states that the beneficiary supervises a staff of managers and supervisors and that this by 
definition implies that the beneficiary cannot be a first-line supervisor. However, the evidence of record, 
mainly the petitioner's organizational chart, does not corroborate counsel's claim. The organizational chart 
submitted in response to the request for evidence shows a number of professional and managerial positions. 
However, of the total seven individuals employed by the petitioner when the petition was filed, the 
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organizational chart shows only one of those individuals in a position subordinate to the beneficiary. The 
remaining five individuals, who are named in the petitioner's fourth quarterly wage statement for 2002, 
appear above the beneficiary in the petitioner's organizational structure. The remaining employees that 
appear on the organizational chart as the beneficiary's subordinates are all employed at the foreign subsidiary. 
In examining the executive or managerial capacity of the beneficiary, Citizenship and Immigration Services 
(CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 204.56)(5). In the instant 
case, the various descriptions of the beneficiary's job duties is too general to convey an understanding of 
exactly what the beneficiary will be doing on a daily basis, particularly in light of the fact that 60% of the 
beneficiary's time would be spent managing quality control, a function that is purportedly carried out by 
employees at the petitioner's foreign subsidiary. The petitioner provides no information to explain how the 
beneficiary would spend a majority of his time managing employees that actually work in another country and 
are not within the beneficiary's immediate supervision. 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. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). As the petitioner failed to specify the 
actual duties the beneficiary would perform in carrying out the quality control function, the MO is left to 
question what the beneficiary would be doing on a day-to-day basis. Furthermore, the petitioner stated that 
the beneficiary would spend 40% of his time meeting with customers in an effort to understand, and 
ultimately meet their specific needs with regards to the petitioner's products. This indicates that 40% of the 
beneficiary's time would be consumed with actually performing the daily sales and customer service related 
duties, which cannot be deemed managerial or executive. 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 employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 
1988). Although the AAO cannot affirmatively conclude that the beneficiary primarily performs operational 
tasks, the fact that a significant portion of the beneficiary's time is consumed with non-qualifying tasks while 
the remaining 60% of his time is consumed with duties that the petitioner failed to define with any specificity 
precludes the MO from concluding, with any degree of certainty, that the beneficiary primarily perfonns 
managerial or executive duties. For this additional reason this petition cannot be approved. 
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. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.