dismissed EB-1C Case: Office Furnishings

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PUBLICCopy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
SRC 06 053 53636
Office: TEXAS SERVICE CENTER Date: MAR 2 T 2fII7
INRE: Petitioner:
Beneficiary:
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 ofthe 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.
c/.k1!±
/Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The Director, Texas Service Center, initially denied the employment-based visa petition due
to abandonment on the part of the petitioner. Following the filing of a motion to reopen by the petitioner's
former counsel, the director withdrew the original denial. The director subsequently issued a notice of intent
to deny, and ultimately denied the immigrant visa petition. The matter is now before the Administrative
Appeals Office (AAO) on appeal. The AAO will dismiss the appeaL)
The petitioner filed the instant petition to classify the beneficiary as a multinational manager or executive
pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I I53(b)(1)(C).
The petitioner is a partnership operating under the laws of the State of Texas as a wholesaler of office
furnishings and shelving. The petitioner seeks to employ the beneficiary as its manager.
The director denied the petition concluding that the petitioner had not demonstrated that: (1) the beneficiary
would be employed by the United States entity in a primarily managerial or executive capacity; (2) the
foreign and United States entities enjoyed a qualifying relationship on the filing date; or (3) at the time of
filing, the United States company had the ability to pay the beneficiary's proposed salary.
On appeal, the petitioner's present counsel contends that Citizenship and Immigration Services (CIS) erred in
its review of the record and denial of the immigrant visa petition. Counsel submits a brief and additional
documentary evidence in support of the appeal.
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 I 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 or 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.
) The AAO notes that on July 18, 1994 an 1-360 immigrant petition was filed on behalf of the beneficiary for
classification as a special immigrant religious worker under § 101(a)(27)(C) of the Act. Despite certification
under the penalty of perjury, the information provided by the petitioner in Part Four of Form 1-140 indicates
that the beneficiary had not previously had an immigrant visa petition filed on his behalf.
Page 3
A United States employer may file a petition on Form 1- I40 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 beneficiary would be employed by the United States entity in
a primarily managerial or executive capacity.
Section IOI(a)(44)(A) ofthe Act, 8 U.S.C. § I 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 ofthe organization;
(iii) Has the authority to hire and fIfe or recommend those as we]] as other personnel actions
(such as promotion and leave authorization) if another employee or other employees are directly
supervised; 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. § I 101(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 ofthe organization.
Page 4
The petitioner filed the Form 1-140 on December 7, 2005 noting the beneficiary's proposed employment as
the manager of the five-person United States organization and his responsibility for expanding the petitioner's
wholesale furniture sales. In an appended December 5,2005 letter, the petitioner addressed the beneficiary's
current employment in a "managerial/executive position" with the United States organization and his
responsibility "for the purchases of premises for operations, the hiring and training of staff, the selection of
and oversight of manufacturer representatives in specific regions of the United States, [and] the financial
growth of the company to a solid net income." The petitioner noted the beneficiary's additional
responsibilities of formulating strategies for the organization's growth in the United States and the "possible
expansion" of its product line. The petitioner also explained its use of manufacturer's representatives to
handle marketing of the organization in the Midwest and Southeast United States, and submitted copies of
four manufacturer's representative agreements that had been entered into during December 2004 and January
2005. The petitioner noted that two of the four agreements had since been terminated, as they "proved less
than satisfactory."
In her April 18, 2006 notice of intent to deny, the director requested that the petitioner submit evidence that
the beneficiary would be employed in the United States in a primarily managerial or executive capacity,
including a description of the petitioner's staffing levels, occupied positions and the related job duties, copies
ofInternal Revenue Service (IRS) Form W-2 issued to all employees in 2005, and a "definitive statement"
addressing the following: (l) the beneficiary's position title, job duties, and the percentage of time spent on
each named task; (2) the subordinate managers, supervisors or employees who would report directly to the
beneficiary; (3) a brief description of the job duties performed by the beneficiary's subordinates; (4) the
qualifications necessary to perform in each position; (5) the level of authority held by the beneficiary and
whether the beneficiary would function at a senior level in the organization; and (6) an explanation of who
would perform the sales and services offered by the petitioner.
The petitioner's former counsel responded in a letter dated May 16,2006. In an attached February 10,2006
letter, the petitioner identified the beneficiary as the senior managing partner of the United States
organization, a position that the petitioner indicated required "a sound commercial knowledge, marketing
experiance [sic], and personal and human resource ability along with [the] ability to formulate[,] develop and
adjust strategy as circumstances require[.]" The petitioner referenced an attached list of the following job
duties, which the petitioner stated documented the beneficiary's "overall financial and executive control" of
the petitioning entity:
• Maintaining [c]orporate [g]oals and [f]ocus 12%
• Reviewing and [b]enchmarking [e]ffectiveness 5%
• Overseeing [i]nventory [m]anagement 2%
• Setting and overseeing sales & marketing policy 17%
• Manage and oversee credit banking and fmancial procedures 3%
• Ensure all managers are trained and motivated and performing 10%
• U.K. report and development 10%
• Ultimate oversight of wages, human resources, and safety issues 5%
• Develop international contacts 8%
• Set pricing policies 5%
• Ensure customer satisfaction standards are maintained 7%
• Motivational meetings with clients 3%
• Researching business opportunities 8%
Page 5
• Representing the company to legal and financial entities
• Staff and agency recruitment
2%
3%
The petitioner submitted an organizational chart of the United States entity identifying the beneficiary as
president with responsibilities related to company strategy, sales and marketing planning, staff supervision,
key account handling, client management, and "[fJinancial, [p]urchasing [s]ales responsibility." The
organizational chart depicted the beneficiary as directly overseeing the company's national sales manager and
office manager, and identified three lower-level workers employed in the positions of sales manager for the
State of Texas, general manager, and distribution and facilities. The AAO notes that based on the petitioner's
fourth quarter wages and tax filings, despite being identified on the organizational chart, the petitioner did not
employ a distribution and facilities clerk on the filing date. See Matter of Katigbak, 14 I&N Dec. 45, 49
(Comm. 1971) (stating that 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). The
petitioner also noted on the organizational chart its use of two manufacturer representatives for sales in the
following areas: North Carolina, South Carolina, eastern Tennessee, Illinois and southern Wisconsin. On an
appended statement, the petitioner provided a brief description of the job responsibilities held by the
beneficiary's subordinate employees.
In a June 6, 2006 decision, the director concluded that the petitioner had not demonstrated that the beneficiary
would be employed by the United States entity in a primarily managerial or executive capacity. The director
stated that the petitioner had provided a "vague description of the job duties performed by the beneficiary,"
and "[did] not clearly portray [the beneficiary's] job assignments" as being primarily managerial or executive
in nature. The director noted that the statement of the beneficiary's individual job duties indicated that "a
major part of the beneficiary's [time] [would] be devoted to business marketing, staff recruitment and
supervision, and other duties comprising the daily productive tasks of the company." The director considered
the beneficiary's employment as manager as being comprised of primarily "lower-level productive tasks" of
the business. Consequently, the director denied the petition.
The petitioner's present counsel filed an appeal on July 6, 2006 claiming that CIS' failure to review evidence
submitted in response to the director's notice of intent to deny resulted in its incorrect finding that the
beneficiary's job duties are not primarily managerial or executive in nature. In an attached letter, dated July 5,
2006, counsel explains that the beneficiary's proposed position of executive partner, which counsel notes
would be equivalent to the position of president in a corporation, "is the most executive and senior position in
the [United States partnership]." In support of the beneficiary/s claimed "managerial authority" in the United
States organization, counsel references the documentary evidence previously submitted for review by the CIS,
as well as an additional "support letter" from the petitioner, and notes that CIS twice deemed the submitted
evidence sufficient to establish the beneficiary's managerial capacity for purposes of an L-IA nonimmigrant
visa petition. Counsel states:
[The beneficiary] is the sole manager of the U.S. partnership as well as partial owner. He
has sole responsibility for management of the organization, complete supervisory control of
the work of his employees, including other managers, as well as discretion over personnel
actions, and ultimate authority over the day-to-day activities of the company. [The
beneficiary] does not perform the duties of a first-line manager.
Counsel further challenges the director's findings, stating:
Page 6
In alleging that the beneficiary does not meet the regulatory definition(,] [CIS] does not
provide any specific analysis as to why [the] beneficiary's job assignments are lower-level
job tasks falling outside the definition of manager. In fact, the sentence in the job
description focused on by [CIS] when taken in combination with the other supporting
documents clearly demonstrates that the beneficiaries [sic] duties as they related to the
supervision of others in carrying out the 'business marketing, staff recruitment and
supervision and other duties comprising the daily productive tasks of the company.' The
evidence in support in [sic] includes an organizational chart.
Counsel submits on appeal copies of documentation previously submitted for the record, including the outline
of job duties performed by the beneficiary and list of personnel. Counsel also submits a separate undated
support letter, in which the petitioner provides the following description of the beneficiary's proposed
employment:
The [e]xecutive [p]artner and [m]anager is responsible for implementing and directing the
goals and objectives of the [c]ompany in accordance with [the petitioner's] business plan.
He analyzes operations and evaluates the performance of the [c]ompany and staff to
determine areas of cost reduction and efficiency. In addition, the [e]xecutive [p]artner and
[m]anager is responsible for consulting with staff members and business partners to
establish [c]ompany policies and plans. He reviews financial statements, sales, and activity
reports to ensure that the [c]ompany's objectives of steady growth and expansion are
achieved.
The [e]xecutive [p]artner and [m]anager is responsible for directly supervising a staff of
seven individuals in the United States; and a staff of 12 in the United Kingdom. The
[e]xecutive [p]artner and [m]anager is responsible for delegating the everyday
responsibilities necessary to import and sell office furnishings to lower-level employees
under his direct supervision. The [e]xecutive [p]artner and [m]anager directly supervises a
staff of seven individuals in the United States. In addition, he makes staffing-level
determinations, and exercises authority over all personnel decisions, including the authority
to hire and fire, grant or deny requests for leave, and promotions.
The [e]xecutive [p]artner and [m]anager monitors and directs marketing activities, and is
responsible for supervising all activities related to the sale of products and the provision of
services. He makes ultimate decisions regarding the goods to be sold in the U.S. market,
sets prices, makes determinations and forecasts of customer demand, and oversees the
movement of the company's goals into and out of production facilities.
[The beneficiary] holds weekly teleconferences with directors of the [United Kingdom]
affiliate in order to evaluate the [c]ompany's product line, sales policies, financial goals,
and current business practices. He reviews market data to determine the nature and
marketability of new products, as well as the availability of products trends within the
market.
* * *
Page?
* * *
As an executive partner of a growing business, [the beneficiary] is intimately involved in
determining staffmg levels requirements, and overseeing personnel processes. He
maintains complete authority over all personnel decisions, including the authority to hire
and fire, grant or deny requests for leave, and issue promotions. Through the selection and
termination of departmental managers, [the beneficiary] ensures the efficiency and smooth
operation of the [c]ompany. He is responsible for monitoring and directing marketing, and
supervising all activities related to the sale of products and provision of services. [The
beneficiary] makes the ultimate decisions regarding the goods to be sold in the U.S. market.
He is responsible for setting prices, and making determinations and forecasts of customer
demand.
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United
States entity in a primarily managerial or executive capacity.
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial
duties under section 101(aX44)(A) of the Act, or primarily executive duties under section 101(aX44XB) of
the Act. The beneficiary is identified on the Form 1-140 as a manager, yet is claimed to possess "executive
control" over the day-to-day tasks of the United States organization. Similarly, counsel contends on appeal
that the beneficiary is the petitioner's executive partner and occupies "the most executive and senior position
in the company." In her brief, however, counsel focuses on the statutory definition of "managerial capacity"
and alleges that the beneficiary's position as manager "falls easily within the definition of managerial
authority."
A petitioner must clearly describe the duties to be performed by the beneficiary and indicate whether such
duties are either in an executive or managerial capacity. A petitioner may not claim to employ a beneficiary
as a hybrid "executive/manager" and rely 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. Here, the petitioner failed to resolve the conflicting representations of the beneficiary's employment
capacity. The petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and
objective evidence. Matter ofRo, 19 I&N Dec. 582, 591-92 (BIA 1988).
When examining the executive or managerial capacity of the berieficiary, the AAO will look to the
petitioner's description of the job duties. See 8 C.F.R. § 204.5(;)(5).
While the petitioner offered a list of job responsibilities held by the beneficiary, many are vague and do not
specify the managerial or executive tasks associated with each. For example, the two tasks that would occupy
the largest portion of the beneficiary's time, 29 percent, are "setting and overseeing sales [and] marketing
policy" and "[m]aintaining [c]orporate [g]oals and [t]ocus." These brief statements fail to specify the
associated managerial or executive tasks or define how the beneficiary would be acting in a primarily
managerial or executive capacity, particularly with respect to the company's sales and marketing functions, on
which the beneficiary is noted as spending 17 percent of his time. The beneficiary is also noted as spending
an additional 20 percent of his time on training and motivating managers and reporting and developing the
purported affiliate in the United Kingdom. As in the earlier statements, these vague representations fail to
Page 8
explain how the beneficiary's role in training managers would be managerial or executive in nature, or what
specific managerial or executive responsibilities the beneficiary would hold with respect to the overseas
organization. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The petitioner
has failed to answer a critical question in this case: What does the beneficiary primarily do on a daily basis?
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava,
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
Moreover, the outline ofjob responsibilities does not coincide with or clarifYthe six responsibilities assigned
to the beneficiary on the organizational chart. For example, based on the organizational chart, the beneficiary
would be responsible for such tasks as handling key accounts, sales and marketing planning, client
management, and "financial purchasing sales responsibility." Other than identifying the beneficiary's role in
developing international contacts and meeting with clients for motivational purposes, the previously­
referenced list ofjob responsibilities does not indicate that the beneficiary would personally interact with the
company's "key account[s]" or clients or that the beneficiary would personally sell the petitioner's products, as
suggested by the description on the organizational chart. Again, the petitioner is obligated to clarifY the
inconsistent and conflicting testimony by independent and objective evidence. Matter ofHo, 19 I&N Dec. at
591-92.
Similarly, the beneficiary's role in the organization's "financial purchasing sales responsibility" remains
undefined. The beneficiary is noted as overseeing the organization's "banking and financial procedures,"
sales policies and "inventory management." However, because of the petitioner's limited statements with
respect to these responsibilities, the degree of the beneficiary's participation and his specific managerial or
executive job duties with respect to these functions is not clear. The actual duties themselves reveal the true
nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. at 1108. The record is equally vague
as to the beneficiary's responsibility of "forming and cementing links with suppliers and customers," a claim
made by the petitioner in a February 10,2006 letter submitted in response to the director's notice of intent to
revoke. Case law dictates that a petitioner's blanket claim of employing the beneficiary as a manager or
executive without a description of how, when, where and with whom the beneficiary's job duties occurred is
insufficient for establishing employment in a primarily managerial or executive capacity. ld.
The petitioner's failure to explain the beneficiary'S specific managerial or executive tasks is particularly
relevant, as the record casts doubt on the petitioner's claim that the beneficiary would hold a primarily
managerial or executive role with respect to the organization's sales and marketing functions, the task
identified by the petitioner as occupying the largest portion of the beneficiary's time.
A company's size alone, without taking into account the reasonable needs of the organization, may not be the
determining factor in denying a visa to a multinational manager or executive. See § 101(a)(44)(C) of the Act,
8 U.S.C. § llOl(a)(44)(C). However, it is appropriate for CIS to consider the size of the petitioning company
in conjunction with other relevant factors, such as a company's small personnel size, the absence of
employees who would perform the non-managerial or non-executive operations of the company, or a "shell
company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v.
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size ofa company may be especially relevant when CIS notes
discrepancies in the record and fails to believe that the facts asserted are true. Id
Page 9
In the instant matter, the petitioner claimed to employ the beneficiary, as well as a national sales manager,
sales manager for the State of Texas, office manager, and general manager on the filing date. The petitioner
also noted its use of two manufacturer representatives for its sales in Illinois, southern Wisconsin, North and
South Carolina, and eastern Tennessee. The AAO again notes that although identified on the organizational
chart, there is no documentary evidence establishing the employment of a distribution and facilities clerk at
the time the petition was filed. In addition, with respect to the petitioner's claimed manufacturer's
representatives, the contract submitted as evidence ofthe organization's representation in Illinois and southern
Wisconsin is not signed by the manufacturer representative, thereby suggesting that the petitioner does not
maintain a sales representative in that area. As conceded by the petitioner in its December 5, 2005 letter, the
other three signed contracts for representation that had been submitted for the record were terminated prior to
this filing. The petitioner does not claim to use other manufacturer representatives in these areas.
The limited evidence of the petitioner's use of sales representatives begs the question of whether the
organization's reasonable needs with respect to its sales function are met through the services of its one
manufacturer representative, as well as its national sales manager and sales manager for the State of Texas.
The AAO notes that the petitioner's national sales manager is describing only as "developing dealerships
outside Texas," while the sales manager for Texas is responsible for developing dealers within that state.
Neither employee is identified as actually selling the petitioner's products. Based on the record, the petitioner
has one manufacturer representative for sales in North and South Carolina and eastern Tennessee. The
petitioner has not accounted for the performance of its sales in the remaining areas. A review of the
petitioner's invoices reveals that the petitioner has sold to customers, including both individuals and stores, in
such unrepresented states as Florida, California, Iowa, Illinois, Arizona, Ohio, Louisiana, Oregon, and
Maryland, and in Canada. In light of the beneficiary's responsibility of handling the organization's key sales
accounts, it is questionable whether at the time of filing the beneficiary would be personally responsible for
performing non-qualifying tasks associated with the petitioner's sales in the unrepresented areas. The AAO
notes 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
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or
executive duties); see also Matter ofChurch Scientology Int'l., 19 I&N Dec. 593,604 (Comm. 1988).
Moreover, as noted previously, at the time of filing the petitioner did not employ a distribution and facilities
worker, as suggested on its organizational chart. The petitioner has not accounted for the performance of the
non-qualifying tasks related to its warehousing, shipping and import functions, including the receipt of
products reflected on invoices from a company in Taiwan. The AAO observes that although the petitioner's
organizational chart identifies the responsibilities of its employee, _,as relating to warehousing
and stock control, the attached "staff overview" states that he would assist with "stock control," but that 17•••
_ the distribution and facilities clerk, would be responsible for "warehousing shipping and
installations." As was not an employee of the petitioning entity on the filing date, the record
does not establish who would perform these additional non-managerial and non-executive tasks of the
business. Accordingly, the record as presently constituted does not demonstrate that the petitioner's
reasonable needs would be met through the services of its staff on the date of filing.
The AAO notes that counsel's response on appeal is not sufficient to establish the beneficiary's purported
employment in a primarily managerial or executive capacity. Counsel chief claim is that the evidence
provided in support of the instant immigrant visa petition "has been deemed sufficient to establish the
managerial capacity for the purpose of the beneficiary's [L-IA] extension."
Page 10
It should be noted that, in general, given the permanent nature of the benefit sought, immigrant petitions are
given far greater scrutiny by CIS than nonimmigrant petitions. The AAO acknowledges that both the
immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and executive
capacity. See §§ 101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). Although the statutory definitions
for managerial and executive capacity are the same, the question of overall eligibility requires a
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity.
There are significant differences between the nonimmigrant visa classification, which allows an alien to enter
the United States temporarily for no more than seven years, and an immigrant visa petition, which permits an
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization
as a United States citizen. Cf §§ 204 and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also § 316 of the
Act, 8 U.S.C. § 1427.
In the instant immigrant visa proceeding, counsel's brief and unsupported statement on appeal that the
beneficiary possesses managerial authority due to his "sole responsibility for the management of the
organization, complete supervisory control of the work of his employees, including other managers, discretion
over personnel actions, and ultimate authority over the day-to-day activities of the company," is not sufficient
to overcome the above-outlined inconsistencies and inadequacies in the record. 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 ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
In addition, unless a petition seeks extension of a "new office" petition, the regulations allow for the approval
of an L-I extension without any supporting evidence and CIS normally accords the petitions a less substantial
review. See 8 C.F.R. § 214.2(l)(14)(i) (requiring no supporting documentation to file a petition to extend an
L-IA petition's validity). Because CIS spends less time reviewing L-l petitions than Form 1-140 immigrant
petitions, some nonimmigrant L-I petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293
F. Supp. 2d 25 (D.D.C. 2003).
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate
burden of proof; each petition must stand on its own individual merits. The prior nonimmigrant approvals do
not preclude CIS from denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx.
556,2004 WL 1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that
CIS will approve an immigrant petition filed on behalf of the same beneficiary. CIS denies many 1-140
petitions after approving prior nonimmigrant 1-129 L-l petitions. See, e.g., Q Data Consulting, Inc. v. INS,
293 F. Supp. 2d at 25; IKEA US v. US Dept. ofJustice, 48 F. Supp. 2d at 22; Fedin Brothers Co. Ltd v. Sava,
724 F. Supp. at 1103.
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and
contradictory assertions that are contained in the current record, the approval would constitute material and
gross error on the part of the director. 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 ofChurch Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to
suggest that CIS 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). Due to the lack of
required evidence in the present record, the AAO finds that the director was justified in departing from the
previous nonimmigrant approvals by denying the present immigrant petition.
Page 11
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.), affd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
Based on the foregoing, the petitioner has not established that the beneficiary would be employed by the
United States entity in a primarily managerial or executive capacity. Accordingly, the appeal will be
dismissed.
The second issue in this proceeding is whether the foreign and United States entities enjoyed a qualifying
relationship on the date of filing.
To establish a qualifying relationship under the Act and the regulations, the petitioner must show that the
beneficiary's foreign employer and the proposed United States employer are the same employer (Le. a United
States entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally §
203(bXI)(C) of the Act, 8 U.S.C. § 1153(bXI)(C); see also 8 C.F.R. § 204.5(jX2) (providing definitions of
the terms "affiliate" and "subsidiary").
The regulation at 8 C.F.R. § 204.5(jX2) 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;
* * *
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.
In its December 5, 2005 letter, the petitioner claimed to possess an affiliate relationship with the foreign
entity, explaining that the beneficiary and his wife together own 72 percent of the partnership in the United
Kingdom and equally own the United States partnership. An appended deed of partnership certificate for the
foreign entity outlines its ownership interests as of January 2003, the time during which the partnership
agreement was amended, as follows:
14%
14%
36%
Page 12
36%
In her April 18, 2006 notice of intent to deny, the director directed the petitioner to submit documentary
evidence of the ownership and control of the foreign and United States organizations. The director noted:
n[t]his may be in the form of stock certificates, copies of corporate bylaws/constitutions which clearly indicate
stock ownership, certified affidavits from corporate executives or corporate legal [counsel], or copies of
published annual reports which indicate affiliates and/or subsidiaries and the percent of ownership held by the
parent corporation."
In her May 16, 2006 response, the petitioner's former counsel referenced a certificate from the State of Texas
certifying the petitioner's assumed business name and noting the beneficiary and his wife as registrants of the
partnership in Texas. Counsel also attached a partnership agreement for the foreign entity, dated January 21,
2003, and identifying the four above-outlined partners and each person's corresponding interest. Counsel
stated that as the founders of the foreign organization, the beneficiary and his wife "retain the majority
ownership and control of the entity."
In the June 6, 2006 decision, the director concluded that the petitioner had not demonstrated the existence of a
qualifying relationship between the foreign and United States partnerships at the time of filing. The director
identified the documentary evidence submitted by the petitioner in support of the purported affiliate
relationship, but noted that the petitioner had not presented evidence of the petitioner's ownership.
Consequently, the director denied the petition.
On appeal, the petitioner's present counsel claims that CIS erred in rejecting the petitioner's claim of an
affiliate relationship between the United States and foreign entities. Counsel states that the evidence
submitted on appeal demonstrates that the beneficiary "owns and controls approximately an equal amount" in
both the United States entity and the foreign organization. Counsel contends:
[The beneficiary] owns a 36% interest in [the foreign entity] in the UK and along with his
spouse who owns another 36% together they own an overwhelmingly controlling interest of
72%. [The beneficiary] also owns half of the controlling interest in [the petitioning entity]
or 50% of the business interest.
Primary and secondary evidence clearly demonstrates that [the beneficiary] exercises
ownership and control of each of these businesses. He has declared the profit and loss from
the [p]artnership of [the petitioning entity] on his [f]ederal [t]ax return. He has further
provided independent documentation attesting to his ownership and management of both
companies from Frost Bank and [a] [c]ertified [p]ublic [a]ccountant, serving to document
both his ownership and control of the businesses. Other evidence including company
catalogs, show that [the beneficiary] as [sic] head of both [the United States and foreign
entities].
Counsel submits copies of the following additional evidence on appeal: (I) a June 29, 2006 certificate of
common ownership signed by the beneficiary, in which the beneficiary claims to hold with his wife majority
control, or 72%, over the foreign partnership, and further claims to be a co-owner of the United States
partnership; (2) a deed of partnership certificate executed by the beneficiary and his wife on June 29, 2006,
stating that each owns a 50 interest in the United States partnership; (3) the previously submitted partnership
Page 13
certificate for the foreign entity and assumed name certificate for the Texas partnership; (4) a June 29, 2006
letter, in which the executive vice-president of Frost Bank in Texas states that the "documentation presented
to us indicates full ownership of [the petitioning entity] by [the beneficiary and his wife]," and further claims
to possess an "understand[ing]" that the beneficiary and his wife "maintain majority and full ownership
interests" in the foreign organization; (5) a June 28, 2006 certification from a certified public accountant
stating that upon review of documentation, the beneficiary and his wife "maintain majority ownership
interests" in the United States and foreign partnerships; (6) a February 13,2006 letter from a finance designer
in the United Kingdom, stating that the beneficiary "retains the ultimate decision on all major management
and financial decisions that affect the [foreign] company"; (7) the beneficiary's year 2005 Internal Revenue
Service (IRS) Form 1040, U.S. Individual Income Tax Return; (8) a commercial contract signed by the
beneficiary and his wife to purchase the petitioner's business premises; and (9) documentation, including a
partnership authorization, related to a loan from Frost Bank to the petitioning entity, naming the beneficiary
and his wife as general partners of the United States partnership and guarantors of the loan.
Upon review, the petitioner has not demonstrated that the foreign and United States entities enjoyed a
qualifying relationship on the date of filing.
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 ofChurch Scientolo~lnternational, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289
(Comm. 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
ofChurch Scientology International, 19 I&N Dec. at 595.
The record as presently constituted contains inconsistencies and inadequacies that fail to corroborate the
petitioner's claim of an affiliate relationship between the foreign and United States partnerships.
In the instant matter, the petitioner has not submitted sufficient evidence to demonstrate the beneficiary's
ownership interest in the United States organization. The AAO notes that despite the director's request for
certified affidavits or specific documentary evidence demonstrating each organization's ownership, the
petitioner provided only a certificate from the State of Texas certifying the petitioner's assumed business
name. The offered business certificate is not probative of beneficiary's interest in the United States
partnership or the ownership of the organization. The record is devoid of relevant documentary evidence,
such as a partnership agreement, IRS Form 1065, Partnership Return ofIncome, or IRS Schedule K-1 (Form
1065), Partner's Share of Income, Credit, Deductions, establishing the organization as either a general or
limited partnership and the amount of each share purportedly held by the beneficiary and his wife. This
documentation would provide information relevant to determining how the United States organization is
owned and controlled. The petitioner's failure to submit requested evidence that precludes a material line of
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Sofflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Corom. 1972».
Page 14
The petitioner did not submit the above-noted certifications of ownership until the instant appeal. The
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the
record before the visa petition was adjudicated. The petitioner failed to submit the requested evidence and
now submits it on appeal. The AAO will not accept evidence offered for the first time on appeal. See Matter
o/Soriano, 19 I&N Dec. 764 (BIA 1988); see also Malter o/Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the
petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in
response to the director's request for evidence. Id. Under the circumstances, the AAO need not consider the
sufficiency of the evidence submitted on appeal. Furthermore, the bank letter offered by the petitioner is not
probative of the organizations' ownership, as it is not clear on what the bank is basing its inference. The
petitioner has not identified what documents were presented to the bank for review in determining the
ownership of the United States and foreign partnerships.
Nonetheless, even if the AAO were to recognize the beneficiary as owning half of the United States
partnership, the record does not demonstrate the purported affiliate relationship between the foreign and
United States entities. The petitioner claims the existence of an affiliate relationship between the foreign and
United States organizations based on the beneficiary's ownership and control of the petitioning entity and a
cumulative 72 percent interest in the foreign partnership as a result of shares held by the beneficiary and his
wife in the amount of 36 percent each.
The record does not support the petitioner's claim that the beneficiary owns and controls both organizations.
The petitioner mistakenly suggests that the beneficiary owns a majority interest in the foreign partnership as a
result of a spousal relationship. A familial relationship is not sufficient to establish majority ownership and
does not constitute a qualifying relationship under the regulations. CIS has never accepted a random
combination of individual shareholders as a single entity, so that the group may claim majority ownership,
unless the group members have been shown to be legally bound together as a unit within the company by
voting agreements or proxies.
Moreover, the record suggests that the petitioning entity is owned by two individuals while the foreign
organization is comprised of four partners, none of who hold a majority interest in the partnership.
Accordingly, the two entities are not "owned and controlled by the same group o/individuals, each individual
owning and controlling approximately the same share or proportion of each entity .... " 8 C.F.R.
§ 204.5(j)(2). Based on the record, a qualifying relationship did not exist between the foreign and United
States entities at the time of filing. Accordingly, the appeal will be dismissed for this additional reason.
The third issue in this proceeding is whether the petitioner demonstrated its ability to pay the beneficiary his
proffered annual salary of $52,000 at the time the petition was filed.
The regulation at 8 C.F.R. § 204.5(gX2) states:
Any petition filed by or for any 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 of this ability shall be either in the form of copies of annual
reports, federal tax returns, or audited financial statements.
Page 15
With its initial filing, the petitioner submitted a November 21, 2005 letter, in which the company's certified
public accountant stated that the net profits from the United States partnership "have been kept in the business
of [the petitioning entity]," and that the beneficiary has been receiving income from the foreign entity, which
as of September 30, 2005 amounted to $16,740. In an undated statement submitted in response to the
director's notice of intent to deny, the petitioner noted that the beneficiary continues to receive income of
approximately $27,000 from the foreign entity for his daily living expenses.
In her June 6, 2006 decision, the director, noting that the petitioner had not provided audited financial
statements, a copy of the beneficiary's IRS Form W-2, or year 2005 federal tax returns, concluded that the
petitioner had failed to demonstrate its ability to pay the beneficiary's proposed wages at the time of filing.
Counsel claims on appeal that in its analysis of whether a partnership has the ability to pay a beneficiary's
proposed wage, CIS may consider the partners' individual tax returns and personal assets and liabilities in
addition to annual reports, federal tax returns, or audited financial statements. As evidence of the petitioner's
ability to pay, counsel submits: (1) the petitioner's year 2005 unaudited profit and loss statements reflecting
net income of approximately $100,000; (2) years 2004 and 2005 IRS Forms W-2; (3) the petitioner's first
quarter earnings report for 2006; and (4) the beneficiary's 2005 federal income tax return and Schedule C
attachment identifying business income in the amount of$100,542.
Upon review, the evidence offered by the petitioner is not sufficient to establish its ability to pay the
beneficiary's proffered annual salary of $52,000.
The record contains conflicting claims as to the beneficiary's compensation for employment in the United
States entity. Initially, the petitioner and its accountant claimed that the beneficiary received income from the
foreign entity only, suggesting that the petitioner's profits were not distributed as income to the beneficiary or
his wife. On appeal, however, counsel claims that the petitioner's entire profit of approximately $100,000 was
considered income to the beneficiary in 2005, and points to the beneficiary's federal income tax return as
evidence.
The AAO recognizes that as a partnership, the petitioner's profits and losses flow through to its partners and
are reported on the partners' individual tax returns. Neither a sole proprietorship nor a partnership is a legal
entity apart from its owner or owners. Matter of United Investment Group, 19 I&N Dec. 248 (Comm. 1984).
A partner is liable for tax on his or her share of the partnership income regardless of whether the income was
distributed by the partnership. Department of Treasury, Internal Revenue Service, 2006 Instructions for Form
1065, U.S. Return of Partnership Income, available atwww.irs.gov/pub/irs-pdfJil065.pdf(accessed on March
26,2007).
Here, the beneficiary's individual federal tax return by itself is not sufficient to establish that the beneficiary
received an amount equal to or greater than his proposed annual salary of $52,000 in 2005. Counsel's
suggestion that the beneficiary realized net earnings of approximately $92,000 ignores the petitioner's claim
that the beneficiary's wife owns an equal share in the partnership. As the record does not contain copies of
the partnership's tax return or Schedules K-l, the AAO cannot determine the beneficiary's proportion of
income or analyze whether the partnership's net income or net assets, two factors relevant to determining a
partnership's ability to pay the proffered wages, are sufficient to pay the beneficiary's proffered $52,000
salary. Also, the petitioner has not offered independent and objective evidence of the beneficiary's
unencumbered, liquefiable, personal assets, an item that counsel correctly notes may be considered in the
Page 16
instant analysis. Moreover, the petitioner's unaudited profit and loss statement is not sufficient to overcome
the above-noted inconsistencies and inadequacies. 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 ofObaigbena, 19 I&N Dec. 533,534 (BIA 1988); Matter ofLaureano, 19
I&N Dec. I (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
Absent additional documentation evidencing the beneficiary's share in the United States partnership and the
amount of income distributed to the beneficiary in 2005, it is unclear whether the petitioner had the ability at
the time of filing to pay the beneficiary's proffered salary of $52,000. For this additional reason, the appeal
will be dismissed.
Beyond the decision of the director, an additional issue is whether the beneficiary was employed by the
foreign entity in a primarily managerial or executive capacity.
In its December 5, 2005 letter, the petitioner identified the beneficiary as occupying a "managerial/executive
position" in the foreign entity prior to entering the United States as a nonimmigrant. The AAO notes that
other than the petitioner's blanket statement of the beneficiary's purported qualifying overseas employment,
the initial filing did not contain a description of the beneficiary's position in the foreign entity. Additionally,
despite the director's request for a definitive statement describing the beneficiary's managerial or executive
job duties in the foreign entity, as well as the percentage of time spent on each task, the petitioner's fonner
counsel stated only that the beneficiary was employed for over 18 years as the overseas company's "senior
partner." An attached January 14,2003 letter signed by both the beneficiary as the foreign company's senior
partner, and its general manager, indicated that in the position of senior partner, the beneficiary was
responsible for the foreign entity's purchasing and marketing decisions. Counsel also submitted an
organizational chart of the foreign entity.
The record as presently constituted is not sufficient to demonstrate that the beneficiary was employed by the
foreign entity in a primarily managerial or executive capacity. The petitioner cannot rely solely on the
beneficiary's title of senior partner to establish his purported employment as a manager or executive. The
actual duties themselves reveal the true nature of the beneficiary's employment. Fedin Bros. Co., Ltd v. Sava,
724 F. Supp. at 1108. Additionally, the limited evidence offered by counsel in response to the director's
notice of intent to deny is not sufficient to establish the beneficiary's eligibility for the requested
classification. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds
for denying the petition. 8 C.F.R. § 103.2(b)(14).
Absent additional evidence, the AAO cannot detennine whether the beneficiary's employment in the foreign
entity was in a primarily managerial or executive capacity. The petition will be denied for this additional
reason.
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 Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989Xnoting that the AAO reviews
appeals on a de novo basis).
Page 17
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. Here, that burden has
not been met.
ORDER: The appeal is dismissed.