dismissed EB-1C Case: Marketing

(b)(6)
DATE : DEC 2 3 2013 
INRE : Petitioner : 
Benefici ary: 
OFFICE : TEXAS SERVICE CENTER 
U.S. Department of Homeland Securit y 
U. S. Citizen ship and Immigration Ser vic< 
Administrativ e Appeals Office (AAO ) 
20 Massachu setts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigr ant Petition for Alien Worker as a Multination al Executive or Manager Pursuant 
to Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § ll53(b )(l)(C) 
ON BEHALF OF PETITIONER : 
INSTRUCTIONS: 
Enclo sed please find the decision of the Administrative Appeals Office (AAO) in your case . 
Thi s is a non-precedent decision. The AAO does not announce new constru ctions of law n or establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law 
or policy to your case or if you seek to present new facts for consideration, you may file a m otion to 
reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or 
Motion (Form I-290B) within 33 days of the date of this decision . Please review the Form I-290B 
instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and 
other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO . 
Thank you, 
I ~~Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition. The petitioner appealed the matter to the Administrative Appeals Office (AAO), 
where the appeal was dismissed. The matter is now before the AAO on a combined motion to 
reopen and reconsider. The motion will be denied. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its executive 
director. Accordingly, the petitioner endeavors to classify the beneficiary as an employment­
based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition on April 19, 2011, concluding that: (1) the petitioner failed to 
establish that the beneficiary's employment abroad was within a qualifying managerial or 
executive capacity; and, (2) 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. 
The petitioner subsequently filed an appeal which the AAO dismissed, affirming the director's 
original findings. In addition, the AAO determined that the petitioner failed to establish that the 
petitioner has a qualifying relationship with the foreign entity. 
On October 15, 2012, the petitioner filed Form I-290B, Notice of Appeal or Motion and states 
that it is filing a combined motion to reopen and reconsider. 
As a preliminary matter, the AAO notes that while an appeal and a motion are both remedial 
actions, the legal purpose of an appeal is entirely distinct from that of a motion to 
reopen/reconsider. The AAO reviews appeals on a de novo basis, allowing the petitioner to 
supplement the record with any evidence or documentation that the filing part feels may 
overcome the grounds for the underlying adverse decision. See Soltane v. DOl, 381 F.3d 143, 
145 (3d Cir. 2004). However, the AAO's review of a motion to reopen or a motion to reconsider 
is limited to evidence that fits the specific criteria discussed at 8 C.F.R. § 103.5(a)(2) and 8 C.F.R. 
§ 103.5(a)(3), respectively. 
The regulations at 8 C.F.R. § 103.5(a)(2) states, in pertinent part: 
A motion to reconsider must state the reasons for reconsideration and be supported 
by any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or Service policy. A motion to reconsider a decision 
on an application or petition must, when filed, also establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 
The regulation at 8 C .F.R. § 103.5(a)(4) states that a motion that does not meet applicable 
requirements shall be dismissed. 
On motion, counsel states the petitiOner provided sufficient evidence to establish that the 
beneficiary's employment abroad was within a qualifying managerial or executive capacity. 
Counsel explains that the beneficiary held the position of Sales and International Marketing 
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Manager with the foreign company and the duties performed by the beneficiary in that position 
"parallel the duties of a Marketing Manager as described by the U.S. Bureau of Labor Statistic 
Occupational Outlook Handbook for 2012-2013." Counsel further states that according to the 
Occupational Outlook Handbook, the position of Marketing Manager is a "professional 
occupation which requires a bachelor's degree as the minimum requirement for entry into the 
position." 
As n.oted in the AAO's decision, the job description provided for the beneficiary's former 
overseas position consisted of an overly general and vague list of job duties . The description did 
not convey a meaningful understanding of how much time the beneficiary spent performing 
qualifying tasks versus those that would be deemed non-qualifying. Although counsel states 
that the beneficiary's duties are similar to the duties listed in the Occupational Outlook 
Handbook for a marketing manager , such claim cannot be accepted in lieu of a detailed and 
consistent description of the actual duties performed by the beneficiary during his period of 
employment with the foreign entity between 2003 and 2005 .. Moreover, general Occupational 
Outlook Handbook occupational descriptios have little probative value as they were not created 
within the scope of the statutory definitions of managerial or executive capacity at section 
101(a)(44) of the Act. 
Here, the petitioner's initial description of the beneficiary's duties included potentially non­
qualifying duties such as "managing ... administrative functions including bid requests, contract 
negotiations, data posting, payroll and personnel documents"; "financial functions, including 
accounts payable and receivable, cash reserves and financial reporting documents" ; and 
undefined "quality control" duties, none of which clearly fall under the statutory definitions of 
managerial or executive capacity. These duties were notably absent from the job duty 
description submitted in response to the director's RFE, which focused more on marketing 
strategy rather than on administrative and financial and quality control-related duties. However , 
the description submitted in response to the RFE also included additional non-managerial duties 
such as "compile lists describing product or service offerings"; "participate in promotional 
activities 
and trade shows"; and "coordinate promoter visits to client outlets." Overall, the 
petitioner has failed to provide a detailed, consistent account of the beneficiary' s job duties for 
the foreign entity. This deficiency cannot be cured by a comparison of the beneficiary's claimed 
duties to those of a generic "marketing manager" position as compiled by the U.S. Department of 
Labor's Occupational Outlook Handbook . 
On motion , coun sel also states that the petitioner submitted sufficient evidence to establish that 
the beneficiary' s proposed employment with the U.S. entity would be within a qualifying 
managerial or executive capacity. The petitioner submits a description of the duties that would 
be performed by the beneficiary in the United States and a percentage breakdown for each duty. 
Counsel also states that the request for evidence instructed the petitioner to provide a definitive 
statement describing the beneficiary 's duties in his former position with the foreign entity , but 
did not request comparable evidence relating to the beneficiary's proposed position. 
Upon review of the request for evidence, dated March 23, 2010, the request stated, "submit 
evidence to establish that the beneficiary's employment at the US company and foreign company 
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qualifies under all four criteria stated above for either a Manager or Executive. In addition , 
provide a breakdown of the amount of time the beneficiary will spend on these various dutie s. " 
The regulation states that the petitioner shall submit additional evidence as the director, in his or 
her discretion , may deem nece ssary . The purpose of the request for evidence is to elicit further 
information that clarifies whether eligibility for the benefit sought has been established, as of the 
time the petition is filed. See 8 C.P.R. §§ 103.2(b)(8) and (12). The petitioner failed to submit a 
more detailed job description for the U.S . position and the percentage of time the beneficiary will 
spend on each duty, as reque sted 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 . 
§ 103.2(b)(14). 
On motion, the petitioner submits the beneficiary's job description with a percentage breakdown. 
However, as noted in the AAO' s decision, 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. The petitioner claimed to have four 
employees at the time it filed the petition in December 2009. According to the petitioner's IRS 
Form 
941, Employer's Quarterly Federal Tax Return and state quarterly wage report for the third 
quarter of 2009 , the petitioner employed four individuals but it appears that two individual s were 
working part-time. The petitioner also failed to provide an organizational chart as requested by 
the director. Thus, the petitioner did not establish what positions were filled at the time of filing 
or what duties were performed by the beneficiary's subordinates. Moreover , it appears that the 
petitioner operate s a retail store that sells tires , provides auto mechanic services , and rents motor 
homes. It is not clear how one full-time employee and two part-time employees would be able to 
relieve the beneficiary from involvement in day-to-day functions such as sales , auto servicing, 
inventory, motor home maintenance and inspection, stocking, bookkeeping, purchasing and other 
administrative and operational tasks associated with the day-to-day operation of the busines s. 
The petitioner has not provided any additional evidence in support of the motion to overcome the 
director's and AAO's concerns. The petitioner submits the petitioner's IRS Form 1120 for 2011 
and evidence of wages paid to employees in 2012. A motion to reconsider a decision on an 
application or petition must, when filed, also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. 8 C.P.R. § 103.5(a)(2). Further, a petitioner 
must establish eligibility at the time of filing; a petition cannot be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of' Katigbak, 14 
I&N Dec . 45 , 49 (Comm'r 1971). The petitioner has not submitted evidence on motion to 
overcome the adverse findings with respect to the beneficiary's propo sed employment capacity in 
the United States. 
The third and final issue to be addressed is the petitioner's claimed 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)(1)(C) of the Act, 8 U.S.C. 
(b)(6)
Page 5 
§ 1153(b)(1)(C); see also 8 C.P.R. § 204.50)(2) (providing definitions of the terms "affiliate" 
and ''subsidiary"). 
In dismissing the petitioner's appeal, the AAO observed that there was an inconsistency between 
the petitioner's ownership as stated in its Articles of Incorporation and the ownership as stated on 
the company's issued stock certificate number 1. As such, the AAO found the evidence 
insufficient to corroborate the claimed parent -subsidiary relationship between the foreign and 
U.S. companies. 
On motion, counsel contends that the petitioner submitted sufficient evidence to establish that it 
has a qualifying relationship with the beneficiary's foreign employer. Counsel states that the 
owners of the corporation are legally designated on the shares of stocks and not the articles of 
incorporation and that the sole shareholder is listed on the stock certificate as Mr. 
Counsel does not explain the inconsistent information between the articles of incorporation and 
the stock certificate. The petitioner submitted the articles of incorporation, signed on February 2, 
2005, that states the corporation has two shareholders: (50% ownership) and 
(50% ownership). However, the submitted stock certificate, Number 1, states the foreign 
company owns 100% of the petitioner. It is not clear why the information stated in the articles of 
incorporation is different from the ownership information listed on the stock certificate. It is also 
unclear why counsel on motion states that the sole shareholder is and not the foreign 
company. 
Due to the inconsistent information in the record regarding the ownership of the U.S. company, 
the petitioner cannot rely on its stock certificate alone to establish its ownership. The petitioner 
must provide additional evidence such as a corporate stock certificate ledger, stock certificate 
registry, corporate bylaws, proof of purchase of the stocks, 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 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. 
On motion, counsel did not provide any additional documentation regarding ownership between 
the U.S. company and the foreign company. In fact, the petitioner submits a copy of its IRS 
Form 1120, U.S. Corporation Income Tax Return, for 2011 which further contradicts its initial 
claim that it is a wholly-owned subsidiary of the foreign entity. Specifically, on the Form 1120 at 
Schedule K, the petitioner indicated "No" where asked if the company is owned by a foreign 
entity. 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). 
Upon review of the denial and the AAO's decisions, both the Director and AAO provided 
detailed statements of the grounds for denial and dismissal and cited to the specific provisions of 
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the regulations as a basis for the decisions. A review of the record and the adverse decision 
indicates that the director and the AAO properly applied the statute and regulations to the 
petitioner's case. Both the director and the AAO's decisions have clearly outlined the missing 
information or inconsistent information and documentation, and explained that the record has 
insufficient evidence to establish eligibilitythe requested immigrant visa. 
On motion, the petitioner does not establish that the AAO's decision was based on an incorrect 
application of law or Service policy. The brief does not provide information or evidence that 
would establish a motion to reconsider. 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)). 
The regulations at 8 C.P.R. 103.5(a)(2) states, in pe1tinent part: "A motion to reopen must state the 
new facts to be provided in the reopened proceeding and be suppOited by affidavits or other 
documentary evidence." 
Based on the plain meaning of "new," a new fact is found to be evidence that was not available and 
could not have been discovered or presented in the previous proceeding. 1 
A review of the evidence that the petitioner submits on motion reveals no fact that could be 
considered new under 8 C.P.R. § 103.5(a)(2). The evidence submitted was either previously 
available and could have been discovered or presented in the previous proceeding, or it post-dates 
the filing of the petition and is therefore not relevant to establishing the petitioner's and beneficiary's 
eligibility as of the date of filing. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit 
sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a 
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of 
Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 
1989); Matter of Sao Hoo, 11 I&N Dec. 151 (BIA 1965). 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
applicant's claim is "probably true," where the determination of "truth" is made based on the 
factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 
1989). In evaluating the evidence, Matter of E-M- also stated that "[t]ruth is to be determined 
not by the quantity of evidence alone but by its quality." !d. Thus, in adjudicating the application 
pursuant to the preponderance of the evidence standard, the director must examine each piece of 
evidence for relevance, probative value, and credibility, both individually and within the context 
of the totality of the evidence, to determine whether the fact to be proven is probably true. 
1 The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> .... " WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 792 
(1984)(emphasis in original). 
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Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative , 
and credible evidence that leads the director to believe that the claim is "probably true" or "more 
likely than not," the applicant or petitioner has satisfied the standard of proof. See U.S. v. 
Cardozo-Fonseca, 480 U.S. 421 (1987) (defining "more likely than not" as a greater than 50 
percent probability of something occurring). If the director can articulate a material doubt, it is 
appropriate for the director to either request additional evidence or, if that doubt leads the 
director to believe that the claim is probably not true, deny the application or petition. 
Here, the submitted evidence does not meet the preponderance of the evidence standard. As 
discussed in the director's decision and the AAO's decision, the petitioner did not provide 
sufficient evidence to establish the petitioner meets the regulatory requirements to establish 
eligibility for the requested immigrant visa. 
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; Matter of Otiende, 26 I&N Dec. 127, 
128 (BIA 2013). Here, that burden has not been met. The petitioner has not sustained that 
burden. Accordingly, the motion will be denied and the AAO's previous decision will not be 
disturbed. 
ORDER: The motion is denied.