dismissed EB-1C Case: Publishing/Graphic Design

identieing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
MAY 0 6 2010 
LIN 06 245 50294 
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. 3 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Verry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its president and chief executive 
officer (CEO). 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. 
5 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition based on the 
conclusion that the petitioner failed to establish that it would employ the beneficiary in a managerial or 
executive capacity. 
On appeal, counsel disputes the director's conclusions and indicates that an appellate brief and/or further 
evidence would be submitted in support of the appeal within 30 days. To date, however, more than two years 
since the appeal was filed, the AAO has no record to show that any supplemental information has been 
submitted. Accordingly, the record will be considered complete as presently constituted. 
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 primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
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. 5 1 10 1(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. $ 1 10 1 (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 submitted a letter signed by the beneficiary on August 18, 2006. 
The beneficiary stated that his proposed eniployment would be comprised of the following: 
[Dletermining and formulating policies and business strategies and providing overall 
direction of [the] company and planing [sic], directing, and coordinating operational activities 
at the highest level of management with the help of subordinate employees. This entails 
directing, planning, and implementing policies and objectives of organization in accordance 
with [the] charter and board of directors; directing activities of [the] organization to plan 
procedures, establish responsibilities, and coordinate functions among departments and sites; 
analyzing operations to evaluate [the] performance of [the] company and staff and to 
determine areas of cost reduction and program improvement; conferring with board members, 
organization officials, and staff members to establish policies and formulate plans; reviewing 
financial statements and sales and activity reports to ensure that [the] organization's 
objectives are achieved; assigning or delegating responsibilities to subordinates; establishing 
internal control procedures; presiding over board of directors, management committees, or 
other government boards; directing inservice [sic] training of staff. 
The petitioner also provided its organizational chart, which depicts an entity that is comprised of eight 
employees, including the beneficiary at the top of the hierarchy as the company's CEO, a manager as the 
beneficiary's direct subordinate, a graphic designer, an editor, and a graphic designer as the manager's three 
subordinates, two prepress operators as the direct subordinates of each of the two graphic designers, and a 
press operator as the direct subordinate of the editor. 
On November 5, 2007, the director issued a request for additional evidence (RFE), informing the petitioner 
that the job description offered in support of the petition was "not sufficiently explicit." Therefore, the 
petitioner was instructed to expressly state whether the proposed position would be within a managerial or 
executive capacity and to provide a more specific description of the beneficiary's proposed job duties, 
including the actual tasks the beneficiary would perform on a daily basis and the amount of time that would 
be allotted to each task. Additionally, with regard to the petitioner's organizational chart, the director asked 
the petitioner to provide the employment commencement date for each employee included in the chart. 
In response, the petitioner stated that the beneficiary would be employed in an executive capacity and 
provided the following supplemental job description: 
[The beneficiary] is primarily engaged in determining and formulating policies and provide 
the overall direction of the company, planning, directing and coordinating operational 
activities with the help of subordinates such as the [mlanager and other staff. This entails 
directing and coordinating the company's financial and budget activities in order to fund 
operations, maximize investments, and increase efficiency (25% of the time); conferring with 
staff members to discuss issues, coordinate activities, and resolve problems (10% of the 
time); analyzing operations to evaluate performance of the company and its staff in meeting 
objectives, and to determine areas of potential cost reduction, program improvement, or 
policy change (20% of the time); preparing budgets; directing and coordinating activities of 
businesses concerned with production, pricing, sales, and/or distribution of products (1 5% of 
time); negotiating e [sic] or approving contracts and agreements with suppliers, distributors, 
federal and state agencies, and other organizational entities (20% of the time); reviewing 
reports submitted by staff members in order to recommend approval or to suggest changes; 
appointing department heads or managers, and assign or delegate responsibilities to them (5% 
of the time); directing human resources activities (5% of the time). 
The petitioner also explained that the initially submitted organizational chart was erroneous in that it listed a 
total of eight employees when in fact the petitioner had only six employees at the time of filing. The 
petitioner stated that due to its acquisition of certain machinery, one of the prepress operator positions and the 
position of press operator became obsolete and were no longer part of the petitioner's organizational hierarchy 
at the time of filing. 
In a decision dated February 13, 2008, the director denied the petition noting that the beneficiary's description 
of duties includes a number of non-qualifying operational tasks. The director further noted the petitioner's 
lack of organizational complexity. While the director acknowledged that company size alone would not be 
the sole factor used to determine eligibility, he questioned the petitioner's capability to relieve the beneficiary 
from having to primarily perform non-qualifying operational tasks on a daily basis. 
On appeal, counsel challenges the director's focus on the petitioner's size and denies that the beneficiary 
performs the job duties of a first-line supervisor, claiming that the beneficiary performs managerial and 
executive duties. As stated previously, while the Form I-290B indicates that a brief and/or additional 
evidence would be submitted within 30 days of the filing the appeal, there is no evidence to indicate that the 
record has been supplemented in any way since the appeal was filed. 
The AAO has conducted a comprehensive review of the record and finds that counsel's statements on appeal 
are not persuasive in overcoming the ground for denial. First, with regard to counsel's claim that the 
beneficiary would perform both managerial and executive level duties, the AAO notes that counsel's 
statement is inconsistent with the information provided by the petitioner in its response to the RFE where the 
petitioner clearly stated that the beneficiary would be employed in an executive capacity. It is noted that 
without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
Additionally, even if the AAO were to consider counsel's claim as valid, anytime a petitioner chooses to 
represent the beneficiary as both an executive and a manager, that petitioner 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. In the present matter, counsel did not specifically discuss the definitions of 
managerial and executive capacity nor did he explain how the beneficiary's proposed duties fall under the 
criteria of either or both statutory definitions, given that meeting these definitions requires more than merely 
establishing discretionary authority and top placement within the organizational hierarchy. 
Counsel also failed to explain how the petitioner's organizational complexity is adequate to relieve the 
beneficiary from having to primarily perform non-qualifying tasks, as 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). Further, while counsel challenges the director's 
reference to the size of the petitioner's organization, federal courts support USCIS's consideration of "an 
organization's small size as one factor in assessing whether its operations are substantial enough to support a 
manager." Family, Inc. v. US. 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. 
Suva, 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). In the present matter, the petitioner has a total of six employees, including the beneficiary. 
The burden is on the petitioner to establish that a staff of five subordinate employees is adequate to ensure 
that the primary portion of the beneficiary's time will be allocated to the performance of tasks within a 
qualifying managerial or executive capacity. A key element that is essential to meeting this burden is a 
detailed description of the beneficiary's proposed tasks. See 8 C.F.R. 5 204.5(i)(5). In the instant matter, the 
petitioner provided a deficient job description that fails to convey a meaningful understanding of the specific 
tasks the beneficiary would perform in his proposed position with the U.S. entity. Specifically, the petitioner 
stated that 25% of the beneficiary's time would be allocated to directing and coordinating the petitioner's 
financial and budget activities and 20% would be allocated to analyzing operations to assess staff 
performance and establish means of cost reduction. However, the petitioner did not specify the means by 
which the beneficiary would accomplish these general business objectives. In other words, what specific 
tasks would the beneficiary perform in order to meet these responsibilities? 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. Precedent case law also confirms that 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), afd, 905 F.2d 41 (2d. Cir. 1990). 
Additionally, as pointed out in the director's decision, the petitioner's job description attributes a significant 
portion of the beneficiary's time to non-qualifying tasks. Specifically, the petitioner indicated that 15% of the 
beneficiary's time would be spent on matters concerning production, pricing, sales, and distribution of 
products. It is unclear what specific role the beneficiary would assume in these matters. The AAO further 
notes that no one within the petitioner's organizational structure has been charged with the sales and 
distribution duties, thereby precluding the AAO from being able to conclude that the beneficiary would 
refrain from actually carrying out sales and distribution-related tasks. The AAO also notes that negotiating 
contracts with suppliers, distributors, and government agencies, which would consume 20% of the 
beneficiary's time, would be deemed as time spent performing operational tasks. While the petitioner 
indicated that a total of 15% of the beneficiary's time would be spent conferring with staff and directing 
human resources, it is not apparent that the staff the beneficiary would be conferring with and directing is 
comprised of supervisory, professional, or managerial employees. See section 101(a)(44)(A)(ii) of the Act. 
Moreover, the petitioner provided no information to enable USCIS to distinguish between activities that 
would involve conferring with staff versus activities that would involve directing human resources. Lastly, 
the petitioner claimed that 5% of the beneficiary's time would be spent appointing department heads or 
managers. However, it is unlikely that in an organization the size of the petitioner's the beneficiary would be 
required to allocate time on a daily, weekly, or even monthly basis to select managers or department heads. 
In summary, the petitioner's organizational complexity fails to establish that the petitioner has the need for an 
employee who would primarily perform tasks within a qualifying managerial or executive capacity or that this 
organization has the capability to relieve the beneficiary from having to primarily perform operational tasks 
that are necessary to produce a product or provide a service. After looking to the petitioner's description of 
the beneficiary's proposed job duties for further explanation as to how the petitioner planned to allocate the 
beneficiary's time, the AAO is unable to determine what specific tasks the beneficiary would perform on a 
daily basis or to conclude that the primary portion of the beneficiary's time would be spent performing tasks 
within a qualifying managerial or executive capacity. Therefore, the AAO finds that the petition was properly 
denied and will not overturn the director's decision. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 5 204.56)(3)(i)(B) 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 his entry 
Page 7 
into the United States as a nonimmigrant to work for the same employer. In the instant matter, other than 
briefly indicating that the beneficiary's duties abroad were similar to his proposed job duties with the U.S. 
entity, the petitioner did not comply with the director's RFE instruction, which asked the petitioner to provide 
a detailed task description and time allocation of the beneficiary's employment abroad. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
5 103.2(b)(14). Moreover, even if the AAO were to rely on the job description the petitioner provided for the 
beneficiary's proposed employment, the above analysis would apply and the AAO would be precluded from 
making a determination as to the beneficiary's managerial or executive capacity during his employment with 
the foreign entity. 
Second, 8 C.F.R. 5 204.5(i)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.5(i)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." Although the 
petitioner provided promotional material for its graphics design business, such documents are insufficient to 
determine that the petitioner had provided its graphics and design services on a "regular, systematic, and 
continuous" basis during the one-year period prior to the date the petition was filed. See id. 
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), afd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 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. 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.