dismissed EB-1C Case: Real Estate Investment

(b)(6)
DATE: NOV 2 9 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Adminislralive Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § ll53 (b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor 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 motion 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, 
~~~~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a real estate investment company incorporated in Florida that claims to be a wholly 
owned subsidiary of Saine Ingenieros Constructores S.A., the beneficiary's former foreign employer 
located in Colombia. The petitioner is seeking to employ the beneficiary as its general manager. 
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 reviewed the petitioner's submissions and determined that the petition did not warrant 
approval. On August 20, 2011 the director issued a request for evidence (RFE) to establish the 
beneficiary's qualifying employment for the foreign and proposed employer. The petitioner 
submitted additional documents in response to the request, however the director noted additional 
deficiencies and on March 22, 2012, the director issued a Notice of Intent to Deny (NOID). After 
reviewing the petitioner's response to the NOID, the director denied the petition on January 22, 
2013. The director determined the petitioner failed to establish: (1) that it has a qualifying 
relationship with the beneficiary's foreign employer; and (2) that the foreign entity employed the 
beneficiary in a managerial or executive capacity for at least one year. 
On appeal, counsel asserts that the director erroneously "relied on a flawed investigation to come to 
the conclusion that the United States petitioner and the foreign employer do not meet the 
relationship of subsidiary or affiliate." Additionally, counsel asserts that the director overlooked 
evidence that establishes the beneficiary's one full year of employment with the foreign entity in the 
three years preceding her admission to the United States as a nonimmigrant. 
I. The Law 
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 
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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 I-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. 
II. Qualifying relationship between the petitioner and the foreign employer 
The first issue to be discussed is whether the petitioner has established that it has a qualifying 
relationship with the beneficiary's former 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 or related as a "parent and subsidiary" or as 
"affiliates." See generally§ 203(b)(1)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 
204.50)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The 
pertinent regulation at 8 C.F.R. § 205.50)(2) defines a "subsidiary" as follows: 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between 
United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 
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(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa 
petition, ownership refers to the direct or indirect legal right of possession of the assets of an entity 
with full power and authority to control; control means the direct or indirect legal right and 
authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
A. Facts 
In the present matter, the petitioner states that 100 percent of its 100 outstanding shares of stock are 
owned by the foreign employer, thus establishing a parent­
subsidiary relationship. In support of this claim, the petitioner initially submitted its Articles of 
Incorporation establishing the company on October 28, 2003. The Articles of Incorporation state 
that the petitioner is authorized to issue 100 shares, and identify as president and the 
foreign entity as incorporator. 
The petitioner also submitted three stock certificates. Stock Certificate No. 1 represents 60 shares 
issued to the foreign employer and the certificate was signed on October 28, 2003 by the beneficiary 
as president and secretary. Stock Certificate No. 2 represents 40 shares issued to the beneficiary 
and it was also signed by the beneficiary as president and secretary. Certificate No 2 also indicated 
that all 40 shares were transferred on January 15, 2008. Stock cettificate No 3 represented the 
issuance of 100 shares to the foreign entity on January 15, 2008, and the certificate was signed by 
the beneficiary as president and secretary. 
Notably, the petitioner also submitted a copy of its Internal Revenue Service (IRS) Form 1120, U.S. 
Corporation Income Tax Return, for 2009. The petitioner indicated "No" at Schedule K where 
asked if the company has foreign ownership. 
In support of its assertion that the petitioner is a subsidiary of the foreign entity, the petitioner 
submitted a "Commitment for Financing" document allegedly prepared by the 
approving the consolidation and assumption of the petitioner's mortgage loan. The petitioner notes 
that the document identifies the foreign company as "Corporate Guarantor" of the loan. The letter is 
dated October 26, 2009. The letter is signed as "agreed and accepted" on November 6, 2009 by the 
beneficiary on behalf of the petitioner; however the corporate guarantor signature block is unsigned. 
The petitioner submitted an Amortization Schedule from the reflecting the 
petitioner's loan date of November 24, 2009. The petitioner did not provide the approved mortgage 
document and the foreign employer is not identified on any legally binding mortgage documents 
presented as guarantor of the loan. 
In the NOID issued on March 22, 2012, the director acknowledged the petitioner's claim that it is a 
wholly-owned subsidiary of the foreign entity, but observed that the petitioner failed to submit 
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evidence to establish that money was exchanged for the company's stock. In addition, the director 
emphasized that the petitioner's IRS Form 1120 for 2009 indicates that the petitioner does not have 
a foreign shareholder. 
In response to the director's NOID, the petitioner presented new documents in rebuttal to these 
noted deficiencies. Specifically, the petitioner submitted another version of the "Commitment 
Letter." The revised version of the document was signed by representatives of both the petitioner 
and the foreign employer but the agreement and acceptance are dated February 26, 2009. The 
document states that the acknowledgement and approval must be signed and returned by the 
petitioning company no later than November 9, 2009 and the loan must be closed no later than 
November 16, 2009 or the Commitment will become null and void. The October 26, 2009 
Commitment letter further states that it will expire "five (10) business days from the date of the 
letter." 
The petitioner also submitted a statement from its accounting firm addressing the company tax 
returns and the company stock certificates. The firm explained in a letter dated April 18, 2012 that 
the eiTors on the 2009 tax return were omissions made by the "first accountant" on the initial 2004 
tax return and the mistake had been caiTied over since that year. The firm referenced and the 
petitioner attached a Form 1120X, Amended U.S. Corporation Income Tax Return for 2009 
indicating the foreign employer's 100% ownership on Schedules G and K. The petitioner also 
included a Form 1120, U.S. Corporation Income Tax Return for 2010, dated September 14, 2011, 
and a return for tax year 2011 reflecting the same ownership information. Regarding the stock 
certificates, the firm stated that stock certificate No. 3 is a combination of the first two certificates 
thus establishing 100% ownership of the shares by the foreign employer. 
The petitioner's response included a "Stock Purchase Agreement Receipt" dated January 15, 2008. 
The document indicates that the beneficiary transferred all of her shares in the petitioner to the 
foreign employer. The document states "[t]he consideration for this transfer is to receive yearly 
salary increases and bonuses at the discretion of 
There was no exchange of monetary transactions for this transfer." The petitioner also submitted 
minutes of a board meeting held by the foreign employer in June 2008 documenting its purchase of 
all the petitioning company's stock. 
In denying the petition, the director acknowledged the submitted evidence, but found that "an 
investigation revealed that [the petitioner] has ... no parent or subsidiary location" and that 
. owns 100% of [the petitioner's] corporate stock, not 
' Finally, the director noted that the "investigation" found that the foreign entity 
does not have subsidiaries outside of Colombia. 
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On appeal, the petitioner asserts that the director erred in finding that the petitioner and the foreign 
employer are unrelated business entities. The petitioner refers to "substantial" evidence provided to 
establish the claim and asserts that the USCIS relied on a "flawed investigation" and "faulty and 
erroneous information from in the 
' The petitioner further ~sserts that the USCIS failed to consider 
evidence such as the commitment letter in its decision. The petitioner asserts that it has provided 
"voluminous, relevant, probative, and credible evidence" establishing a qualifying relationship with 
the foreign employer and insists that the evidence is sufficient to meet the preponderance of 
evidence standard applicable to this matter. 
B. Analysis 
Upon review, the petitioner has not established that it has a qualifying relationship with the foreign 
entity. 
Although the director's determination will be affirmed, counsel correctly contends that the director 
erred by citing to an "investigation" in the notice of decision without first informing the petitioner 
that USCIS was relying on information that is outside the record of proceeding. See 8 C.F.R. 
§ 103.2(b)(16)(requiring that USCIS provide notice to the petitioner in cases where an adverse 
decision will be based on derogatory information of which the petitioner is unaware). Denial of this 
petition cannot be based upon the allegations of the director without evidence offered in support of 
those conclusions. Just as the unproven assertions of counsel are not evidence, neither are the 
unsupported conclusions of the director. Cf Matter of Obaigbena, 19 I&N Dec. 533, 534 note (BIA 
1988); Matter of Ramire z-Sanchez , 17 I&N Dec. 503, 506 (BIA 1980). As such, the director's 
analysis based on the referenced "investigation" is hereby withdrawn. 
Although the director's reasoning was flawed, the evidence of record contains deficiencies and 
inconsistencies which undermine the petitioner's assertions that it has a qualifying relationship with 
the foreign employer. The AAO reviews each appeal on a de novo basis. Soltane v. DOl, 381 F.3d 
143, 145 (3d Cir. 2004). 
As a preliminary matter , the AAO notes that counsel 
includes in support of the appeal a copy of an 
email thread allegedly exchanged between the beneficiary and a representative of in which 
acknowledges receipt of the petitioner's verification of its subsidiary relationship with the 
foreign employer. A subsequent report appears to verify this relationship. Notwithstanding 
this information from the organization, the petitioner must submit primary evidence of its 
eligibility for the benefit sought. In this matter, the AAO looks to the evidence provided and not 
conclusions drawn by outside organizations 
in determining whether the petitioner established by a 
preponderance of evidence that it has the requisite qualifying relationship with the foreign entity. 
(b)(6)
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Page 7 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec . 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa 
petition, ownership refers to the direct or indirect legal right of possession of the assets of an entity 
with full power and authority to control; control means the direct or indirect legal right and 
authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to establish whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock ce1tificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting actual control of the entity. See 
Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all relevant documents, 
USCIS is unable to determine the elements of ownership and control. 
In this matter, the petitioner submitted three stock certificates and several other documents intended 
to corroborate the validity of the stock certificates. A review of the stock certificates as presented 
suggests that the foreign company owns 140 shares of a company authorized to issue only 100 
shares of stock. The petitioner submitted a letter from its accountant asserting that the stock 
certificates, as issued, are intended to reflect that the shares issued on certificate No. 1 and 
certificate No. 2 should be added together to reflect the total issued on certificate No. 3. The 
petitioner did not provide evidence that either stock certificate no . 1 or no. 2 was ever cancelled. 
Although not requested by the director, a stock ledger or registry could have resolved questions and 
inconsistencies and provided credibility to the evidence but the petitioner failed to provide 
additional documentation. 
Further, the stock certificates themselves raise questions. All three certificates were signed by the 
beneficiary in her capacity as president and secretary. However, the record establishes that the 
beneficiary was not the president or the secretary of the company at the time the certificates were 
issued. Rather, was president of the company and the beneficiary was vice-president. 
The record demonstrates that had, on occasion, authorized the beneficiary to act on the 
company's behalf in specific transactions and the authorization had been memorialized on paper. 
However, the petitioner provided no such authorization permitting the beneficiary to issue and sign 
company stock. This raises questions regarding the validity of the stock certificates that have not 
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been resolved by the petitioner. 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). Rather than provide 
corporate documentation to verify stock ownership, the petitioner provided a statement prepared by 
its accountant asserting the stock holdings as claimed by the petitioner but the letter did not explain 
the resource upon which the accountant relied to make that determination. The non-existence or 
other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
§ 103 .2(b )(2)(i). 
The foreign employer purportedly recognized its acquisition of the beneficiary's 40% owner ship 
interest through board meeting minutes dated June 28, 2008; however, the petitioner provided no 
such 
corporate documentation to reflect its initial acquisition of stock from the petitioner in 2003. 
Other documents submitted to bolster the petitioner's claim of the subsidiary relationship with the 
foreign employer are insufficient. The commitment letter does not support the claim because a 
commitment letter merely indicates the bank's willingness to extend credit and does not necessarily 
represent a legal obligation of the petitioner or a guarantor. Further , the petitioner submitted two 
different versions of the letter, one of which is incomplete and contains typographical mistakes and 
inaccurate dates. Absent some explanation for the different versions, these documents have little 
probative value. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). The amortization schedule does 
indicate a loan was actually closed in November 2009; however, the foreign employer as guarantor 
is not identified in the document. Further, the AAO acknowledges that the foreign employer has 
made wire transfers to the petitioning company's financial accounts but the AAO also observes that 
and several other companies have made significant deposits as well but they have not 
been claimed as shareholders and the transfers have not been explained in sufficient detail to 
support the petitioner's claims . 
Finally, the petitioner's 2009 Form 1120 contradicts its claim that it is a wholly owned subsidiary of 
the foreign employer. After the director noted the issue, the petitioner acknowledged and claimed 
to have corrected the purported error. Specifically, the petitioner ' s accountant asserted in a letter 
dated April 2012 that the error was an omission from the time the company was established in 2003; 
an error that had continued with each subsequent tax filing. The petitioner asserted that it submitted 
an amendment to the erroneous 2009 return and attached a copy of an amended return , Form 
1120X, dated April 18, 2012; however, the return was not a certified copy and there was no 
indication that the document was actually filed with the IRS. Furthermore, the petitioner provided 
no evidence to establish that it had submitted amendments to any other tax returns that contained 
incorrect information. Notably, the petitioner provided a copy of its IRS Form 1120 for 2010 which 
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Page 9 
was signed on September 14, 2011 and indicated the foreign ownership as cunently claimed by the 
petitioner, though the document was not certified. It is unclear when the petitioner became aware of 
the enor or why the petitioner waited until April 2012 to fix the enor on the 2009 tax return. 
Simply asserting that all of the tax returns since the company's incorporation were erroneous due to 
omissions does not qualify as independent and objective evidence. 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). Furthermore, evidence 
that the petitioner creates after users points out the deficiencies and inconsistencies in the petition 
will not be considered independent and objective evidence. Necessarily, independent and objective 
evidence would be evidence that is contemporaneous with the event to be proven and existent at the 
time of the director's notice. 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 ojHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
For the foregoing reasons, the petitioner has not established that it has a qualifying relationship with 
the foreign entity. Accordingly, the appeal will be dismissed. 
III. Foreign Employment in a Managerial or Executive Capacity 
The next issue to be addressed is whether the petitioner has established that the beneficiary was 
employed by the foreign employer in a managerial or executive capacity for at least one full year in 
the three years preceding her admission to the United States. 8 C.P.R. § 204.5U)(3)(i)(B). The 
beneficiary was last admitted to the United States on October 9, 2003 and, as of the date of filing, 
had been maintaining L-1A nonimmigrant status since May 30, 2004. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
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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 10l(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" 
as 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. 
The petitioner's undated letter submitted in support of the Form I-140 stated that the beneficiary 
worked for the foreign employer as "Assistant to the CEO" prior to entering the United States in L-
1A status. Further, the letter stated that the beneficiary "was in charge of administrative and 
financial matters; executing with efficiency and accuracy all her managerial and executive duties. 
Furthermore, she had shown the ability of assisting in the directing the company, implementing 
innovative ideas, making our company one of the most successful in the field in the Republic of 
Colombia." The petitioner did not provide the beneficiary's dates of employment with the foreign 
entity or any further information regarding her duties. 
In support of the petition, the petitioner also provided a copy of the beneficiary's resume describing 
her job duties from 2001 - 2003 as follows: 
• Responsible for review and verification of consistency in performance on contracts, 
customers' assets and potential customers, monitoring of knowledge important issues 
for the president. 
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• Review and classification of local and national publications, related with building, 
construction, works, tenders, etc. 
• Executive development report for the president. 
• Continuous monitoring of the monthly billing to customers of the builder, in order to 
verify by timeliness of engineers projects or potential problems with the owner of 
works or the auditor to the adoption of quantities of work or the minutes final 
payment. (sic) 
• Design and monitoring program of work for your assessment in pesos, for comparison with 
the programs approved by the owner. Partial data and cumulative per month contract. 
Vance 
verification of respect to the applicable ... (sic) 
In response to the director's RFE issued on August 20, 2011, the petitioner provided an undated 
duty description for the position "Assistant to the CEO and Commercial Manager." The description 
listed 22 general responsibilities for the assistant position and 18 general responsibilities for the 
commercial manager position. The petitioner also submitted two different organizational charts 
with its response, one which identified the beneficiary as Assistant to the CEO and Commercial 
Manager, and one which did not identify the beneficiary or her claimed position of Assistant to the 
CEO. 
In the NOID, the director requested additional evidence to establish the beneficiary's dates of 
employment with the foreign entity. The director also advised the petitioner that the duty 
description provided in response to the RFE was vague and appeared to include primarily 
administrative tasks. 
In response to the director's NOID, the petitioner re-submitted the beneficiary's foreign employer 
pay stubs for the period 2001 through 2003, an employment contract from 2001, a pre-employment 
psychological evaluation of the beneficiary and a letter from the foreign employer's president 
regarding the beneficiary's employment. 
The letter dated February 16, 2012 signed by the foreign employer' s president, 
stated that the beneficiary was hired in 2001 as Assistant to the CEO and Commercial 
Manager and "[d]uring the three (3) years she occupied such job positions, the Company managed 
to place itself at a new level in the construction sector, expanding our operation." In this letter, the 
president does not discuss or address the fact that the beneficiary went to the United States on a paid 
"sabbatical" just over a year after starting her position with the company. The petitioner submitted 
an employment contract that indicates the beneficiary would commence employment as assistant to 
the CEO and Commercial Manager for the foreign employer in Colombia starting January 1, 2001. 
The letter provided by the foreign employer in response to the director 's 
NOID stated: 
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Before [the beneficiary] was transferred to the U.S. to work for our parent company 
[the petitioner], she held the senior professional position of Assistant to the CEO 
reporting to the President of the company on a daily basis, prior the three years 
before her transfer. The Commercial Manager position was held for the entire dates 
of employment with the company, from 2001- 2004 until she was transferred to the 
U.S. 
Further, according to the letter the beneficiary held the senior executive position for three years 
before her transfer to the U.S. and "[w]hile holding both positions, she performed executive 
managerial duties and performed discretionary (sic) making decision on a daily basis." The 
following duty description was also included in the letter: 
ASSISTANT TO THE CEO 
• Created and established the company's policies and procedures. 2% of the time. 
• Planned committee meetings to define the main working areas in construction and 
financial and commercial, etc. 1% of the time. 
• Attended senior management level meetings and prepared executive 
summaries for 
CEO and remaining members. 2% of the time. 
• Revise and approved business protocols. 4% of the time. 
• Established contact with different group associations related to engineering and 
constructions works, such as, housing, real estate, and public works. 4% of the time. 
• Collected and oversaw the company's sales reports from various departments. 1% of 
the time. 
• Reviewed engineering contracts and approved respective agreements that regulated 
the technical and legal relationships among the different consortium members . 4% of 
the time. 
• Prepared and summarized finance repots (sic) and collected them from various 
internal departments 2% of the time. 
• Managed multiple projects and followed completion in a timely manner. 4% of the 
time. 
• Reviewed along with the CEO employees performance evaluations. 1% 
• Reviewed reports submitted by staff members and recommended approval to the 
CEO. 2% of the time. 
• Directed and reviewed Human Resources activities and took final decisions as to the 
hiring and firing of potential new and current employees. 1% of the time. 
• Prepared interdepartmental budget for funding and implementation and made 
decisions on approvals. 2% of the time. 
COMMERCIAL MANAGER 
• Planned marketing sales strategies and supervised execution. 15% of the time. 
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• Identified market opportunities by attending events and construction expos. 7% of the 
time. 
• Designed [petitioner] brand positioning strategies by creating company's website and 
promoting company in local marketing campaigns. 3% of the time. 
• Prepared operation plans for each segment of our regional offices. 3% of the time. 
• Prepared and analyzed market trends in the public and private sectors by holding 
meetings with potential customers and local politicians and prepared 
bid for contracts. 
10% of the time. 
• Provided gathered data and market opportunities to the CEO and discuss target 
opportunities to obtain contracts. 5% of the time. 
• Ensured that the engineering team provided timely project integration and designs. 
5% of the time. 
• Developed a plan to deliver our project designs through presentations and a 
persuasive marketing campaign that demonstrated innovative product features and 
service. 5% of the time. 
• Ensured that the Product Engineering department provided the right blend of business 
and design expertise for an increasingly complex and sophisticated client base. 5% of 
the time. 
• Developed project schedules and budget and track report. 2% of the time. 
• Worked closely with the engineering team to confirm appropriate project scopes, 
goals, objectives and identify resources and project completion. 4% of the time. 
• Facilitated exchange of ideas and information among the project and engineering 
teams. 2% of the time. 
• Hired, promoted and fired personnel. 1% of the time. 
• Directed market assessment goals. 3% of the time. 
In this letter, the president reiterated that the "[The beneficiary] made discretionary decision on a 
daily basis in the firing and hiring of employees" and while the beneficiary held the managerial 
position "she was responsible for managing and supervising the work of three managers and 
employees on a daily basis." Specifically, the foreign entity indicated that the beneficiary 
supervised the sales department, purchasing department and chief estimator department. 
After consideration of the record, the director found that the petitioner did not establish that in the 
three years preceding the beneficiary's entry as a nonimmigrant, the beneficiary was employed for 
at least a year in a managerial or executive capacity with a qualifying organization. Specifically, 
the director acknowledged the petitioner's letter explaining that the beneficiary was employed with 
the foreign employer from January 1, 2001 through March 2004. However, the director noted that 
US CIS records indicate that from April 2002 through April 2003 and again from October 9, 2003 
through March 30, 2004 the beneficiary was in the United States on a B-2 visa as a visitor for 
pleasure. The director found nothing in the record to explain the discrepancy and the contradictory 
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evidence and therefore caused the director to question the reliability and sufficiency of the evidence 
regarding the beneficiary's foreign employment. 
On appeal, counsel asserts that the petitioner provided pay stubs sufficient to establish that the 
beneficiary had been paid as a commercial manager for the foreign employer from 2001 to 2003. In 
the appeal brief, counsel explains that the beneficiary was absent from her employer during certain 
periods however she "was still employed and paid by the company but was not performing her 
managerial duties." Specifically, counsel explains that from April 2002 through April 2003, the 
beneficiary was a tourist in the United States, but her foreign employer had put her on a paid 
sabbatical. Further, from October 2003 through March 2004 the beneficiary was again in the 
United States as a tourist but during this period of time she was on paid maternity leave. Therefore, 
counsel asserts that even excluding these absences from the foreign employer , the beneficiary was 
still employed and has over one and a half years in country with the foreign employer preceding her 
entry as a nonimmigrant. In support of this explanation, the petitioner provided two additional 
letters, one dated March 5, 2013 and another dated March 6, 2013 explaining the beneficiary's 
absences. Counsel also asserts that the preponderance of evidence standard , applicable to this case, 
has been met and questions the standard applied by the director. 
Upon review, the AAO does not find counsel's assertions persuasive. The AAO agrees with the 
director's ultimate finding that the petitioner failed to establish that the beneficiary was employed 
for the foreign employer in a qualifying capacity. However, the AAO's findings are not limited to 
deficiencies in the time frame of the beneficiary's employment but extends to the actual duties 
performed by the beneficiary . 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.P.R. § 204.5(j)(5). In this matter, the 
petitioner's evidence regarding the beneficiary's prior employment with the foreign employer is 
inconsistent and contradictory. The initial description was inadequate to establish eligibility in an 
executive or managerial capacity . In fact, although the brief description did refer to managerial and 
executive duties it omitted the commercial manager job title. A job title alone i.s not dispositive but 
its omission raises questions regarding the beneficiary's actual employment. The AAO does 
recognize that the petitioner provided pay stubs that identify the beneficiary's commercial manager 
job title. However, the petitioner's claim that the beneficiary held an executive or managerial 
position from 2001 through 2003 is questionable in light of the beneficiary's own personal resume, 
discussed above, that includes none of the higher level duties the petitioner indicates she performed 
from 2001 through 2003. The position 
description provided in the resume is consistent with the 
responsibilities of an assistant but does it not establish the typical duties of an executive or manager 
and it bears little resemblance to the description provided by the petitioner as part of the initial 
petition or subsequent submissions. This document was provided by the petitioner but there was no 
explanation to reconcile the inconsistencies in comparison to the beneficiary's duties claimed by the 
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Page 15 
petitiOner from 2001 through 2004. It is incumbent upon the pet1t10ner 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. at 591-92. 
In response to the director's NOID, the petitioner provided a duty description for the beneficiary 
that allocated her time among the various duties required for both positions held, specifically the 
assistant to the CEO and the commercial manager. However, the petitioner failed to reconcile this 
description with a different, more generic version, provided in response 
to the director's RFE. 
The foreign employer's president provided the beneficiary's duty description in response to the 
NOID and repeatedly asserted that the beneficiary performed all of the duties in the description and 
did so on a daily basis from 2001 through 2004. However, for the first time on appeal, the petitioner 
now submits information explaining that the beneficiary was not actually on site and actively 
working for the foreign employer from 2001 through 2003. Instead, the beneficiary was in the 
United States on a lengthy sabbatical and maternity leave for a period that covered almost half of 
her time employed with the foreign employer. This is a clear contradiction to the foreign 
employer's statement that that the beneficiary was involved with the company on a daily basis 
throughout her employment. Given this omission, the AAO is left to question the validity of the 
petitioner's claim . Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. at 591. 
Notably, the petitioner provided the explanation regarding the beneficiary's absence only after the 
director noted that the beneficiary's previous admission to the United States coincided with the 
period the beneficiary was to have been employed overseas. The petitioner's claim regarding the 
beneficiary's daily performance of managerial and executive duties while she was not present casts 
doubt upon the entire claim, a doubt which has not been resolved. Further, the timing of the 
contradictions and the explanation for the contradiction negatively impacts the credibility of the 
petitioner's claims. If USCIS fails to believe that a fact stated in the petition is true, USCIS may 
reject that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. INS, 876 F.2d 
1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In conclusion, the petitioner has failed to provide consistent and credible evidence regarding the 
beneficiary's overseas employment. Based on these deficiencies, the petitioner has not established 
that it will employ the beneficiary in a managerial or executive capacity. For this additional reason, 
the appeal must be dismissed. 
As noted by counsel, in visa petition proceedings, the burden is on the petitioner to establish 
eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The 
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Page 16 
petitioner must prove by a preponderance of evidence that the beneficiary is fully qualified for the 
benefit sought. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
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 Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) 
(citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (eomm'r 1989)). In evaluating the evidence, the 
truth is to be determined not by the quantity of evidence alone but by its quality. ld. 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. 
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) (discussing "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, for the reasons already 
discussed the petitioner has not met this standard. 
The AAO acknowledges that USeiS approved nonimmigrant petitions that had been previously 
filed on behalf of the beneficiary. 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 of Church Scientology 
International, 19 I&N Dec. 593, 597 (eomm'r 1988). It would be absurd to suggest that USers or 
any agency must treat acknowledged enors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th eir. 1987), cert. denied, 485 U.S. 1008 (1988). 
It must be noted that many I-140 immigrant petitions are denied after users approves prior 
nonimmigrant I-129 ~-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 
(D.D.e. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the consequences of an approved 
petition, there is a significant difference between a nonimmigrant L-1A visa classification, which 
allows an alien to enter the United States temporarily, and an immigrant E-13 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 
(b)(6)
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Page 17 
and 1184; see also§ 316 of the Act, 8 U.S.C. § 1427. Because USCIS spends less time reviewing I-
129 nonimmigrant petitions than I-140 immigrant petitions, some nonimmigrant L-lA petitions are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 
C.P.R. § 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-lA 
petition's validity). 
Furthermore, 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). 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. 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. 
ORDER: The appeal is dismissed.