dismissed EB-1C Case: Manufacturing And Sales

(b)(6)
DATE: JUN 1 4 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (5\AO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The specific 
requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion directly with 
the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a District of Columbia corporation. The petitioner states that it is engaged in 
manufacturing and sales, and it seeks to employ the beneficiary as Chief Executive Officer. The 
petitioner seeks 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. § 1153(b)(1)(C), as a 
multinational executive or manager. 
On July 24, 2012, the director denied the petition based on the following grounds of ineligibility: (1) 
the petitioner failed to establish that the petitioner has a qualifying relationship with the beneficiary's 
foreign employer; (2) the petitioner failed to establish that it is doing business; (3) the petitioner failed 
to establish that the beneficiary's proposed employment with the U.S. entity would be within a 
qualifying managerial or executive capacity; and (4) the petitioner failed to establish the ability to pay 
the beneficiary's proffered wage. 
Section 203(b) ofthe 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 ofthe 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 I-140 for classification of an alien under section 
203(b)(1)(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. 
(b)(6)
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The first issue in this proceeding is whether the petitioner submitted sufficient evidence to establish 
that it has a qualifying relationship with the beneficiary's foreign employer. To establish a "qualifying 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign 
office) or related as a "parent and subsidiary" or as "affiliates." See generally§ 203(b)(l)(C) of the 
Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5U)(2) (providing definitions of the terms 
"affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5U)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The regulation and case law confirm that ownership and control are the factors that must be examined 
in determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 
(Comm'r 1988); see also Matter of Siemens Medical Systems, Inc ., 19 I&N Dec. 362 (Comm'r 1986); 
Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa petition, ownership 
refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the 
establishment, management, and operations of an entity. Matter of Church Scientology International, 
19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate 
entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the 
minutes of relevant annual shareholder meetings must also be examined to determine the total number 
of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership 
(b)(6)
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and its effect on corporate control. Additionally, a petitioning company must disclose all agreements 
relating to the voting of shares, the distribution of profit, the management and direction of the 
subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens Medical 
Systems, Inc., supra. Without full disclosure of all relevant documents, USCIS is unable to determine 
the elements of ownership and control. 
The petitioner submitted Stock Certificates Number 1 and 2 for the petitioner. Stock certificate 
number 2 states that owns 50 shares of the petitioner, and stock certificate number 1 
states that the beneficiary owns 50 shares of the petitioner. The stock certificates are not dated. The 
petitioner also submitted the minutes of a shareholder meeting of the foreign company that confirms 
that will own 50 shares and the beneficiary will also own 50 shares of the petitioner. In 
addition, the petitioner submitted a document that did not list a company name or a date, that stated 
owns 90 percent, owns 5 percent and the beneficiary owns 5 percent. It 
appears to be a stock registry for an unidentified company. 
The petitioner did not submit sufficient evidence to establish a qualifying relationship. Stock 
certificates and a copy of the minutes of the foreign company are not sufficient evidence of the 
relationship between the petitioner and the foreign company. As noted above, the petitioner must 
submit corroborating evidence such as a stock ledger, a stock certificate registry, corporate bylaws, tax 
returns, or proof of payment for the stocks. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). 
Furthermore, the petitioner has not established that a qualifying relationship exists because the 
petitioner is 50% owned by and 50% owned by and thus, there is no one 
majority owner who owns and controls the petitioner. The petitioner claimed that since 
owns 90 percent of the foreign company and 50 percent of the petitioner, the foreign company and the 
petitioner are affiliates. This is incorrect. The current ownership of the petitioner does not meet the 
regulatory definition of an affiliate at 8 C.F.R. § 204.5(j)(2). In the current case, no one individual 
owns and controls the petitioner since and both own 50 percent of the 
petitioner. The petitioner did not submit sufficient evidence to establish that it has a qualifying 
relationship with the beneficiary's foreign employer. For this reason, this petition cannot be approved. 
The second issue in this proceeding is whether the United States entity is doing business. The 
regulation at 8 C.F.R. § 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing 
business for at least one year prior to filing the Form I-140. The regulation at 8 C.F.R. § 204.5(j)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods and/or 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." 
On appeal, counsel for the petitioner states the following: 
The Service erroneously denied the petition, fmding that there is no evidence that the 
Petitioner is engaged in regular, systematic, and continuous provision of goods or 
(b)(6)
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services where the evidence showed that (1) to engage in mining business, Petitioner 
commissioned and obtained geological reports; hired mining workers and geologists; 
obtained license to mine in Zambia; etc. (2) to engage in computer business, purchased 
an existing business and is conducting repairs etc. as well as has a website to sell 
computer parts, etc.; and (3) to engage in flower business, has purchased expensive 
equipment, is running ads, and is taking orders. The Service failed to recognize that not 
all businesses are about daily sale of goods and services. One cannot apply a cookie 
cutter approach to Petitioner's business. Initially, the Petitioner wanted to engage in the 
steel business. It did spend a considerable amount of time and money to learn that it 
would be an economic disaster. Nonetheless, [the foreign company] remained 
committed to investing in the U.S. and in [the petitioner]. It decided to engage in export 
and import and purchased 2 business units - computer business and flower business. 
These businesses are operational. Unfortunately, the economy has been tough and 
revenues are not pouring in. Nonetheless, the Petitioner remains committed to the U.S. 
market. It has signed a lease that is valid for 3 additional years. Surely, it wants to 
engage in prolific business and as a result has made a financial commitment to keep its 
business in the U.S. 
The petitioner submitted Form 1120, U.S. Corporation Income Tax Return, for 2010 indicating a gross 
receipt of sales of$0.00. The petitioner also indicated that it owns a flower shop and a computer repair 
shop. According to Form 1040, Schedule C, the flower shop has $0.00 in gross receipts or sales. The 
petitioner also submitted Form 1040, Schedule C, for a computer repair company that shows gross 
receipts or sales of$3129.00. 
In response to the request for evidence, the petitioner also stated that for a few months it exported 
electronic products. The director requested copies of the Customs and Border Protection Forms used 
in conjunction with the petitioner's export/import business but the petitioner stated that it utilized 
customs brokers and the petitioner is not required to have its own Form 301. In the course of 
examining whether a petitioning company has been doing business as an import and export firm, it is 
reasonable to request that the company produce copies of documents that are required in the daily 
operation of the enterprise due to routine regulatory oversight. Upon the importation of goods into the 
United States, the Customs Form 7501, Entry Summary, serves to classify the goods under the 
Harmonized Tariff Schedules of the United States and to ascertain customs duties and taxes. The 
Customs Form 301, Customs Bond, serves to secure the payment of import duties and taxes upon entry 
ofthe goods into the United States. According to 19 C.P.R. § 144.12, the Customs Form 7501 shall 
show the value, classification, and rate of duty for the imported goods as approved by the port director 
at the time the entry summary is filed. The regulation at 19 C.P.R. § 144.13 states that the Customs 
Form 301 will be filed in the amount required by the port director to support the entry documentation. 
Although customs brokers or agents are frequently utilized in the import process, the ultimate 
consignee should have access to these forms since they are liable for all import duties and taxes. Any 
company that is doing business through the regular, systematic, and continuous provision of goods 
through importation may reasonably be expected to submit copies of these forms to show that they are 
doing business as an import firm. 
(b)(6)
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As indicated by the petitioner, it spent many years trying to set up a new business that did not succeed. 
Finally, the petitioner purchased two companies but according to both the petitioner's statements and 
the tax returns, one company had zero gross receipts or sales and the second company had a total of 
$3129.00 of gross receipts or sales. It appears that the petitioner, since the time of filing the I-140, has 
been trying to start up a business but is not yet doing business. 
On review, the evidence submitted is insufficient to establish that the U.S. entity has been or is 
engaged in the regular, systematic, and continuous provision of goods and/or services as a qualifying 
organization. 
The third issue that will be addressed in this proceeding call for an analysis of the beneficiary's job 
duties. Specifically, the AAO will examine the record to determine whether the petitioner submitted 
sufficient evidence to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(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 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily--
(b)(6)
Page7 
(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 examining the executive or managerial capacity of the beneficiary, users will look first to the 
petitioner's description of the job duties. See 8 e.F.R. § 204.5(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as 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), a.ffd, 905 F.2d 41 (2d. eir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, 
users reviews the totality of the record, which includes not only the beneficiary's job description, but 
also takes into account the nature of the petitioner's business, the employment and remuneration of 
employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other facts 
contributing to a complete understanding of a beneficiary's actual role within a given entity. 
An analysis of the record does not lead to an affirmative conclusion that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. With regard to the 
proposed position, the petitioner provided a list of job duties to be performed by the beneficiary which 
included broadly stated job responsibilities. Due to the overly general information, the AAO is unable 
to gain a meaningful understanding of how much time the beneficiary spent performing qualifying 
tasks versus those that would be deemed non-qualifying. 
In response to the request for evidence, the petitioner stated that the beneficiary has "managed the 
start-up of [the petitioner], hired workers including independent contractors , negotiated leases for the 
new business, obtained the necessary filings, and is continuing to guide the direction in which this 
company will grow and in which business this company will engage." 
The petitioner stated that since the beneficiary's entry into the United States in L-1 A nonimmigrant 
status, the beneficiary has "conducted meetings with lawyers, accountants and others for the 
preliminary operations ofthe company." In addition, "under the management of[the beneficiary], [the 
petitioner] purchased a computer repair and sales business including all of its assets for $35,000"; and 
"negotiated and procured a new lease" and "formed " The petitioner 
goes on to state that the beneficiary "continues to oversee the exploration of the mining operation in 
Zambia while creating client lists for sale of its products once the mining is authorized." 
The petitioner also stated that the beneficiary "provides overall direction and manages the high-level 
functions and processes for the company's business operations and staff in the U.S. and mining 
exportation and staff in Zambia," and is also "responsible for leading the company's formation 
including setting the initial goal for manufacturing in the U.S. but abandoning that goal when market 
(b)(6)
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research showed the economic disaster that might bring to the company." Merely using the term 
"manage" to describe the beneficiary's function does not establish that the tasks the beneficiary 
performed are of a qualifying nature, particularly when it appears that the beneficiary performed 
several non-qualifying duties such as being responsible for partnerships and contracting and 
negotiations. Without further information, it appears that the beneficiary was directly providing 
services rather than directing such activities through subordinate employees. An employee who 
"primarily" performs the tasks necessary to produce a product or provide a service 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). 
As noted above, the petitioner failed to submit the percentage of time the beneficiary spent on each 
duty, as requested by the director. Failure to submit requested evidence that precludes a material line 
of inquiry shall be grounds for denying the petition. 8 C.P.R. § 1 03.2(b )(14). On appeal, counsel for 
the petitioner asserts that the beneficiary primarily performs executive and managerial duties, however, 
the petitioner did not submit any documentation to confrrm this assertion. 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). 
After reviewing the beneficiary's job description, the AAO cannot conclude that the primary portion of 
the beneficiary's time was spent performing tasks within a qualifying managerial or executive 
capacity. 
In response to the director's request for evidence, the petitioner explained that it employed a secretary, 
a computer technician, a sales research and marketing coordinator, and a consultant. The petitioner 
also explained that it did not prepare quarterly wage reports. Instead, the petitioner provided the salary 
paid to each employee in 2010 as follows: _ : $547.50; $1666.98; 
: $1,500.00 and $672.00. 
An analysis of the nature of the petitioner's business undermines the petitioner's assertion that the 
beneficiary is employed in a managerial or executive capacity. The Form I-129 stated that the 
petitioner employs 4 individuals. According to the salaries paid in 2010, the four individuals worked 
part-time. It is not clear who is running the two businesses purchased by the petitioner, the computer 
repair store and the flower shop, and who is assisting the beneficiary in performing the day-to-day 
duties of running a business such as fmancial operations, negotiations, sales, market research, 
marketing, purchasing and import and export. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
It appears from the record that the beneficiary may be performing several, if not all, of the fmance 
operations and business development activities, and all of the various operational tasks inherent in 
operating a business on a daily basis, such as purchasing inventory, paying bills, handling customer 
(b)(6)
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transactions, and negotiating contracts. Based on the record of proceeding, the beneficiary's job duties 
are principally composed of non-qualifying duties that preclude him from functioning in a primarily 
managerial or executive role. 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 Intn '!., 
19 I&N Dec. at 604. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operational duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's 
actual duties and role in a business. As discussed above, the petitioner has not identified employees 
within the petitioner's organization, subordinate to the beneficiary, who would relieve the beneficiary 
from performing routine duties inherent to operating the business since the subordinates' duties are to 
execute the project and not look for new engagements and lead the projects. 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary has 
been or would be employed in the United States in a qualifying managerial or executive capacity. 
Based on these findings, the instant petition cannot be approved . 
The final issue in this proceeding is whether the petitioner has the ability to pay the beneficiary's 
proffered wage. 
The regulation at 8 C.P.R. § 204.5(g)(2) states, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States 
employer has the ability to pay the proffered wage. The petitioner must demonstrate 
this ability at the time the priority date is established and continuing until the 
beneficiary obtains lawful permanent residence. Evidence ofthis ability shall be in the 
form of copies of annual reports, federal tax returns, or audited fmancial statements. 
(Emphasis added.) 
The petitioner indicates on the Form I-140, at Part 6, that it will pay the beneficiary $72,000.00 per 
year. In response to the director's request for evidence, the petitioner stated that the foreign company 
"paid for [the beneficiary's] salary as well as salaries for the personnel engaged in the mining 
operations." USCIS must, however, examine whether the prospective United States employer 
maintains the ability to pay the proffered wage. 
As no evidence of the ability to pay by the petitioner was submitted, such as audited fmancial 
statements or tax returns showing enough income to pay the beneficiary's wage, the petitioner failed to 
establish that it had the ability to pay the beneficiary's proffered wage at the time of filing the petition. 
(b)(6)
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On appeal, the petitioner does not discuss this issue and does not provide any evidence to overcome the 
director's concerns. The AAO, therefore , considers this issue to be abandoned . Sepulveda v. US. Att'y 
Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 
4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as 
he failed to raise them on appeal to the AAO). Accordingly, in light of the lack of evidence submitted 
to establish that the petitioner meets the provisions of 8 C.F.R. § 204.5(g)(2), the 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. § 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.