dismissed EB-1C Case: Marketing

-Identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal prtvac) 
PUBLIC copy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration SeIVices 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u. S. Citizenship 
and Immigration 
Services 
Date: 
DEC 1 320W 
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. § I I 53(b)(1)(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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 Texas corporation that seeks to employ the beneficiary as its marketing 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. § 1153(b)(l)(C), as a 
multinational executive or manager. The director denied the petition based on two independent grounds of 
ineligibility: 1) the petitioner failed to establish that it would employ the beneficiary in a managerial or 
executive capacity; and 2) the petitioner failed to establish that it has been doing business in the United States. 
On appeal, counsel asserts that the petitioner never stopped doing business, but rather merely experienced a 
slowdown in its business activity in 2005. He further states that the beneficiary fits the statutory definition for 
both managerial and executive capacity. Counsel's brief and relevant supporting documentation will be 
addressed in a full discussion below. 
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 first issue in this proceeding is whether the petitioner would employ the beneficiary in the United States 
in a qualifYing managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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 101(a)(44)(B) of the 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--
(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, the petitioner provided its organizational chart showing a hierarchy comprised 
of multiple managerial tiers, a sales and administrative staff, and bottom tier employees, including a 
messenger and two drivers. It is noted that of the twenty three positions included in the chart, nineteen 
positions were shown as vacant and the only person actually named in the chart was the company's 
It is further noted that the beneficiary's proposed position of marketing 
manager among that is shown as vacant despite the fact that the petitioner's Form 1-140 
indicates that the beneficiary is currently present in the United States in the status of an L-l nonimmigrant. 
Additionally, the petitioner provided a description of the beneficiary's proposed employment, stating that the 
beneficiary oversees all marketing and public relations and is responsible for all financial reporting 
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requirements, financial planning, budgeting, and directing the daily operations of the marketing division. The 
petitioner provided the following list of the beneficiary's proposed job duties: 
1. In consultation with the [p]resident [and e]xecutive [s]taff, [the beneficiary] will develop and 
implement goals, policies and priorities relating to the marketing and public relations function 
of the company. 
2. Organizes, supervises, evaluates and provides for training and professional development of 
the supervisory and other staff of the [m]arketing [d]ivision. 
3. Develops and administers processes and procedures for the implementation of division 
objectives. 
4. Reviews, formulates, and supervises the preparation of all financial reports and statements. 
5. Performs a variety of marketing and public relations activities including setting the 
marketing, advertising and public relations budget, meeting with executives regarding the 
company's advertisement placement. 
6. Prepares a variety of complex analysis including legal requirements, accounting techniques, 
data processing, and statistical studies. 
7. Responses [sic] to inquires [sic] from the [p]resident [and e]xecutive [s]taffand other division 
heads with regards to marketing, advertising and public relations issues. 
On May 21, 2009, the director issued a decision denying the petitioner's Form 1-140. In discussing the 
petitioner's supporting evidence, the director observed that the petitioner does not appear to be doing business 
and appears to have no employees for the beneficiary to oversee. The director concluded that the beneficiary 
would not be relieved from having to primarily perform daily operational tasks and therefore would not be 
employed in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary fits the criteria for managerial and executive capacity. In his 
brief, counsel asserts that there is no provision under either statutory definition requiring the beneficiary to 
oversee subordinate employees. While counsel's assertion is theoretically correct in that the beneficiary does 
not have to directly manage others, the petitioner must establish that the petitioner is adequately staffed with 
employees who would perform the non-qualifYing functional and administrative tasks that are necessary for 
the petitioner's daily operation. Merely possessing a managerial or executive position title does not establish 
that the beneficiary would be employed in a managerial or executive capacity within the meaning of section 
101(a)(44) of the Act. In reviewing the relevance of the number of employees a petitioner has, federal courts 
have generally agreed that USCIS "may properly consider an organization's small size as one factor in 
assessing whether its operations are substantial enough to support a manager." Fa11!ily, Inc. v. u.s. Citizenship 
and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. 
INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per 
curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
Page 5 
In the present matter, the petitioner has provided a supporting organizational chart that indicates the virtual 
absence of all staff. As previously noted, only the petitioner's president is expressly named in an 
organizational chart that shows most of the required positions, including the beneficiary's proposed position, 
as vacant. Counsel fails to clarify the practical application of the statutory criteria within the context of the 
petitioner's specific organizational hierarchy. In other words, it is unrealistic to put forth the claim that the 
beneficiary would primarily carry out qualifying managerial- or executive-level tasks when the petitioner has 
provided no evidence of an in-house staff or contractual workers who would perform the essential non­
qualifying tasks. Moreover, counsel fails to take into account the beneficiary's job description, which 
expressly states that the beneficiary would supervise and train staff in the marketing division. 
Additionally, while certain aspects of the proposed job description indicate that the beneficiary would oversee 
a particular function, such as the preparation of financial reports and statements, the underlying implication is 
that someone within the petitioner's organization actually prepares those reports and statements. In other 
words, regardless of whether the beneficiary would directly supervise subordinate employees, the petitioner 
would be unable to support the beneficiary in a managerial or executive capacity without the required 
personnel to actually execute the non-qualifying administrative and operational tasks that are necessary for 
the organization to function on a daily basis. While the AAO acknowledges that the beneficiary is not 
required to allocate 100% of her time to managerial- or executive-level tasks, the petitioner must establish 
that the non-qualifying tasks the beneficiary would perform are only incidental to her proposed position. 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, counsel contends that an economic downturn resulted in a staff reduction within the 
petitioner's organization. However, he maintains that because the statutory provisions do not require the 
beneficiary to manage subordinates, the proposed employment qualifies as a position within a managerial or 
executive capacity. Counsel's assertion, however, is not persuasive, as it fails to clarify how, in the absence of 
a support staff, the beneficiary would be relieved from having to primarily perform non-qualifying tasks. 
Therefore, regardless of the beneficiary's job description, the evidence of record simply does not support the 
petitioner's claim that the beneficiary would be employed in a qualifying managerial or executive capacity 
and therefore the petition cannot be approved. 
The other issue in this proceeding is whether the petItIOner has been doing business, which 8 C.F.R. 
§ 204.50)(2) defines as 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. Although not fully 
clarified in the director's decision dated May 21, 2009, a complete analysis of whether an entity is doing 
business includes consideration of 8 C.F.R. § 204.50)(3)(i)(D), an initial filing requirement 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. 
In the present matter, counsel claims that the petitioner's business activity merely slowed down but did not 
cease entirely. However, the unsupported statements of counsel on appeal or in a motion are not evidence and 
thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Moreover, counsel's statement is in direct 
contradiction to the petitioner's own claim and supporting documentation. According to the petitioner's 
explanation at Exhibit LL, after 2005 the U.S. entity's "business operation ceased due to lack of executive 
Page 6 
staff to direct and supervise the marketing, sales and overall functioning of the corporate activities in the 
United States." The record also includes a Certificate of Filing issued by the State of Texas for the purpose of 
reinstating the petitioner to active status as of November 26,2007. Thus, based on the petitioner's explanation 
and the information provided in the Certificate of Filing, it appears that the petitioner was not in active 
business status and was not doing business, i.e., manufacturing and selling cosmetics products, from 2005 
through November 26, 2007. Regardless of whether the petitioner has resumed business activity, the 
evidence of record indicates that the petitioner has not met the initial filing requirement discussed at 8 C.F.R. 
§ 204.5(j)(3)(i)(D). Therefore, on the basis of this second ground of ineligibility, the instant petition cannot 
be approved. 
Furthermore, while not previously addressed in the director's decision, the AAO additionally finds that the 
petitioner failed to meet the initial filing requirements specified at 8 C.F.R. §§ 204.5(j)(3)(i)(B) and (C). 
First, with regard to 8 C.F.R. § 204.5(j)(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 her entry to the United States as a nonimmigrant to work for the same employer, the 
petitioner failed to specify the beneficiary's dates of employment abroad and it has failed to provide an 
adequate description of the job duties that were performed during the period of such employment. Without 
this highly relevant information, the AAO cannot conclude either that the beneficiary was employed by the 
foreign entity during the qualifying period or that she was employed in a primarily managerial or executive 
capacity during the period of her overseas employment. 
Second, with regard to 8 C.F.R. § 204.5(j)(3)(i)(C), which states that the petitioner must establish that it has a 
qualifying relationship with the beneficiary's foreign employer, the key to meeting this requirement is 
establishing that the petitioner and the claimed foreign employer are similarly owned and controlled. See 
Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens 
Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In 
the present matter, while the petitioner provided a copy of its articles of incorporation, which establishes the 
number of authorized shares the petitioner may issue, the record is silent as to the number of shares that were 
actually issued and the identity of the recipient(s) of those shares. 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. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972». Without the necessary documentation establishing who owns and 
controls the petitioning entity, the AAO cannot conclude that the petitioner has the requisite qualifying 
relationship with the beneficiary's foreign employer. 
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 lO25, 1043 (E.D. Cal. 2001), affd, 345 FJd 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 FJd 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, on appeal counsel makes references to the petitioner's current approved L-l employment of 
the beneficiary. First, in light of the information provided by the petitioner in this proceeding with regard to 
its inactive business status since the approval of the beneficiary's L-l employment, it appears that the 
Page 7 
petitioner's Form 1-129 was approved in error. 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). Second, 
it is noted that each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof. Thus, 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. Furthermore, the approval of a 
nonimmigrant petition, particularly one that was approved in error, in no way guarantees 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 1-129 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). 
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 had approved the 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.), afJ'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
Accordingly, the instant 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.