dismissed EB-1C Case: Retail

U.S. Department of 1;Iomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identiwing data deleted to 
prevent clei;riy imnwarranted, 
invasion of persod pCiv*$ 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
SRC 03 186 52496 
 JuN 2 0 , 2007 
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. 5 1 153(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. 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant visa petition to classify the beneficiary as a multinational manager 
or executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Texas that is 
operating a gasoline and convenience store. It claims to be the affiliate of the beneficiary's foreign employer 
in India. The petitioner seeks to employ the beneficiary as its president. 
The director denied the petition concluding that the petitioner had not established that: (1) a qualifying 
relationship existed between the foreign and United States entities at the time of filing the visa petition; (2) 
the foreign entity was doing business in India on the date of filing; or (3) the beneficiary would be employed 
by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner contends that Citizenship and Immigration Services (CIS) erred in its 
denial of the immigrant visa petition. In support of the appeal, counsel submits a brief rebutting the findings 
of the director. 
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 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. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement, which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first two issues in this proceeding are interrelated in that pursuant to the regulation at 8 C.F.R. 
4 204.50)(3)(i)(C), in order to establish a qualifying relationship between the foreign and petitioning entities, 
Page 3 
the foreign corporation or other legal entity that employed the beneficiary must continue to exist and have a 
qualifying relationship with the petitioner at the time the immigrant petition is filed. The AAO will therefore 
consider together whether on the filing date, the beneficiary's foreign employer continued to do business 
overseas, and whether the petitioner and the foreign employer enjoyed a qualifying relationship. 
The regulation at 8 C.F.R. 5 204.5(j)(2) 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. 
The regulation at 8 C.F.R. 5 204.5(j)(2) further defines "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods and/or services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office. 
The petitioner filed the instant visa petition on June 23, 2003. In an appended statement, the petitioner 
claimed the existence of an affiliate relationship between the foreign and United States entities as a result of 
the beneficiary's purported ownership and control of both organizations. With the initial filing, the petitioner 
submitted documentary evidence of the establishment of both the foreign and United States organizations and 
the foreign entity's operations prior to the instant filing, but did not submit documentation directly related to 
establishing the claimed affiliate relationship. 
In a Notice of Intent to Deny, dated August 3, 2005, the director noted that the record failed to demonstrate 
the existence of a qualifying relationship between the foreign and United States entities, and requested that 
the petitioner submit documentary evidence related to the foreign company's ownership and "proof of 
payment for stock in the US company" purportedly owned by the beneficiary and Shaukat Prasla. The 
director requested an explanation as to why the beneficiary paid for his purported share of the petitioning 
entity with personal funds, rather than with monies transferred from the foreign entity. The director further 
requested invoices, bills of sale, and product brochures related to the foreign company's business in India 
from June 2003 through the time of the notice. The director also noted that the telephone number given for 
the foreign company is registered instead to an individual, who, when contacted, identified himself as the 
beneficiary's brother. The director requested copies of the foreign company's telephone directory listings. 
Counsel responded in a letter dated September 26, 2005, claiming that the beneficiary's foreign employer is a 
partnership comprised of three individuals, of which the beneficiary is a majority partner. Counsel contends 
that based on the beneficiary's ownership and control of both the foreign and United States entities, an 
affiliate relationship exists between the two organizations. Counsel states: "The fact that the U.S. Consulate 
has confirmed that the foreign company is a family business and the Beneficiary worked for the foreign 
company is consistent with evidence provided by the Petitioner." Counsel further claims that the ownership 
of the foreign entity as a partnership is not negated by CIS' observation that the foreign entity's telephone 
number is registered to an individual rather than in the name of the partnership. As evidence of the ownership 
of the foreign partnership, counsel submitted a copy of a December 1, 1995 partnership deed naming the 
entity's partners and their corresponding profits and losses as: 
In an appended February 1,2005 affidavit, the beneficiary's brother attested to having personal knowledge of 
the beneficiary's ownership of 51 percent of the foreign partnership and of the ownership interests of the 
remaining two partners. The beneficiary's brother also stated that "it is easier and customary in Mumbai to 
get a land telephone account under [a] personal name than under the business name," confirming that the 
foreign business' telephone number is registered under his name. The AAO notes that an organizational chart 
of the foreign entity identifies the beneficiary's brother as the general manager of the business. Counsel also 
submitted copies of the foreign entity's sales invoices, utilities bills, bank statements, and tax assessments for 
the years 2002 through 2003. The AAO notes that the sales invoices relate primarily to the years 2004 and 
2005, with only two identifying sales made in December 2003. 
With respect to the United States company, counsel again noted that the beneficiary used his personal funds to 
purchase his purported majority ownership in the petitioning organization, and challenged that it is not 
unlawful for the beneficiary to have personally purchased the stock. Counsel submits copies of two number 
two stock certificates, each dated October 20, 2000. The beneficiary is identified as the owner of 600 shares 
of the petitioner's stock, while the individual is identi 
 e remaining 400 shares 
of stock. 
 On an attached stock ledger, both the beneficiary and 
 are again identified as 
shareholders. 
Counsel further submitted a February 17, 2005 affidavit, in which the beneficiary attested to his 51 percent 
and 60 percent interests in the foreign and United States organizations, respectively. The beneficiary also 
claimed to have contributed $36,000 as consideration for his interest in the petitioning entity. 
In a decision dated October 14, 2005, the director concluded that the petitioner had not demonstrated the 
existence of a qualifying relationship between the foreign and United States entities. The director noted the 
petitioner's failure to resolve the discrepancy of labeling both of the petitioner's issued stock certificates as 
number two, and stated that the etitioner had not provided "evidence of payment for stock in the petitioner 
by the beneficiary or by m ' The director concluded that the lack of evidence precluded a 
finding of the "true owners of the stock . . . [or] that the [purported] owners of the stock in fact paid for the 
stock." The director further noted that while the record contained evidence of the foreign entity's business 
operations in the years 2001 through 2002 and years 2004 through 2005, there was only limited evidence that 
Page 5 
the partnership was doing business in 2003, the period during which the petition was filed. Consequently, the 
director denied the petition. 
Counsel for the petitioner filed an appeal on November 25, 2005. In his November 14, 2005 appellate brief, 
counsel challenges the director's finding that the petitioner had not presented evidence of the foreign entity's 
ownership, again stating that the beneficiary, as a majority partner, owns the foreign organization with two 
relatives. Counsel contends that because the beneficiary also owns a majority interest in the United States 
company, the foreign and United States organizations are affiliates. Counsel addresses the director's 
observation that both stock certificates from the petitioner are labeled number two, claiming that it is "due to a 
typographical error." Counsel further challenges the director's reference to the beneficiary's use of personal 
funds to purchase the petitioner's stock, stating that the regulatory definition of "affiliate" "requires an 
individual to own the U.S. and the foreign entit[ies]." Counsel did not address the director's finding that the 
foreign partnership had ceased operating during 2003. 
Upon review, the petitioner has not demonstrated the existence of a qualifying relationship between the 
foreign and United States entities. 
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 (i.e. a United 
States entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 8 
203(b)(l)(C) of the Act, 8 U.S.C. 5 1 153(b)(l)(C); see also 8 C.F.R. 8 204.5(j)(2) (providing definitions of 
the terms "affiliate" and "subsidiary"). 
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 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the 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 determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate 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., 19 I&N Dec. at 364-365. Without full 
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. 8 204.5(j)(3)(ii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
property, or other consideration furnished to the entity in exchange for stock ownership. 
 Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
As noted by the director, the record does not contain sufficient evidence documenting the claim that the 
beneficiary furnished consideration in exchange for his purported majority interest in the United States entity. 
The beneficiary claimed in his February 17, 2006 affidavit to have purchased 600 shares of the petitioner's 
stock in exchange for $36,000. However, despite the director's request for "evidence of proof of payment for 
stock in the US company," the petitioner neglected to offer documentation in the form of canceled checks, 
wire transfer receipts, deposit slips, or bank statements corroborating the beneficiary's claimed deposit in the 
petitioning entity. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). A 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. 5 103.2(b)(14). 
The AAO further notes that the information contained on the United States company's income tax returns 
does not substantiate the petitioner's claim that the beneficiary furnished $36,000 in exchange for his 
purported ownership of 600 shares of stock. Rather, the company's common stock is valued at $2,000 on its 
years 2001 through 2004 income tax returns. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
As noted above, the means by which the majority owner's purported stock ownership is derived is a 
reasonable and relevant factor in determining whether ownership and control, and ultimately whether a 
qualifying relationship exists between the foreign and United States entities. Here, the petitioner has not 
resolved the director's finding that the beneficiary furnished consideration in exchange for an interest in the 
petitioning entity. Therefore, the beneficiary cannot be considered a majority shareholder of the United States 
corporation. 
Similarly, the record does not demonstrate that the beneficiary owns a majority of the foreign partnership in 
India. The AAO notes that a previously submitted L-1A nonimrnigrant visa petition filed by the petitioner on 
behalf of the beneficiary has been incorporated in the present record. In connection with this earlier filing, the 
petitioner submitted copies of the foreign entity's income statements for assessment years 2001 through 2002 
and 2002 through 2003, and a list of the associated capital accounts. In both income statements, the 
beneficiary and his two partners were identified as owning equal shares in the foreign partnership, or 33.33 
percent. These documents directly contradict the information contained in the foreign entity's partnership 
deed, in which the beneficiary is named as the owner of 5 1 percent of the organization. The record is devoid 
of additional evidence, such as an amended partnership agreement, resolving this relevant discrepancy in the 
beneficiary's claimed ownership of the foreign partnership. Again, 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. at 591-92. The record as presently constituted 
fails to establish the beneficiary as a majority partner in the foreign entity. As a result, the AAO cannot 
conclude that the foreign and United States entities enjoyed a qualifying relationship at the time of filing. 
Accordingly, the appeal will be dismissed. 
With respect to the foreign entity's operations in India, it appears from the documentary evidence submitted 
that the foreign entity has continued to do business overseas following the beneficiary's transfer to the United 
States as an L-1A nonimmigrant. While the petitioner submitted limited evidence related to its sales in 2003, 
the surrounding record demonstrates that the foreign business exists and continues to operate in India. 
Although the director's decision with respect to this specific issue will be withdrawn, the appeal will be 
dismissed, as the petitioner has not demonstrated the existence of a qualifying relationship between the 
foreign and United States entities. 
The third issue in this proceeding is whether the beneficiary would be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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 withn the organization, or a department or 
subdivision of the organization; 
(iii) 
 Has the authority to hire and fire or recommend those as well 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 withn 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. 4 1 101(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-malung; and 
(iv) 
 Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
In a statement appended to the Form 1-140, the petitioner identified the beneficiary as occupying the position 
of president in the United States entity, during which he would hold the following responsibilities: 
[Hliring and firing managers; supervising subordinate employees; overseeing preparation 
of sales and inventory reports; reviewing an[d] analyzing sales data; establishing and 
implementing policies to manage and achieve marketing goals; review financial reports; 
review budgets and expense reports prepared by subordinate employees; managing the 
company; and overseeing marketing campaign developed by subordinate managers. 
The petitioner stated that as the president, the beneficiary would receive limited supervision from the 
company's board of directors, and would "exercise wide discretion and latitude in the performance of his 
duties." 
In her August 3, 2005 notice of intent to deny, the director requested a "definitive statement" of the 
beneficiary's proposed job duties, including: his position title; the percentage of the beneficiary's time 
allocated to each task; and, the subordinate managers, supervisors, or employees reporting directly to the 
beneficiary, as well as a brief description of their positions. The director also requested an organizational 
chart of the United States entity, and documentary evidence in the form of quarterly tax returns and Internal 
Revenue Service (IRS) Form W-2 of the workers employed on the date of filing the immigrant visa petition. 
With his September 26, 2005 response, counsel submitted a September 28, 2005 letter, in which the petitioner 
provided the following job description for the beneficiary, which is essentially the same as that previously 
offered, and included an allocation of amount of time the beneficiary would spend on each task: 
Ten percent (10%) of his time hiring and firing managers, and supervising subordinate 
employees; Fifteen Percent (1 5%) overseeing preparation of sales and inventory reports; 
Fifteen Percent (15%) reviewing an[d] analyzing sales data; Twenty Percent (20%) 
establishing and implementing policies to manage and achieve marketing goals; Fifteen 
Percent (15%) reviewing financial reports, and reviewing budgets and expense reports 
prepared by subordinate employees; Twenty Five (25%) managing the company and 
overseeing marketing campaign developed by subordinate managers. 
In his February 17, 2005 affidavit, the beneficiary restated the above-listed job duties as the responsibilities 
related to his employment in the petitioning entity. 
In its September 28, 2005 letter, the petitioner also outlined the job duties performed by the beneficiary's four 
subordinate employees, who held the positions of store operations manager, assistant manager, and cashiers. 
Based on the June 30, 2003 quarterly wage report submitted for review by the petitioner, the two cashiers 
were working less than full-time during the period the immigrant visa petition was filed. The five positions, 
including the beneficiary as president, were also depicted on an organizational chart of the United States 
entity. 
Page 9 
In her October 14, 2005 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 outlined the responsibilities of the beneficiary, noting that they are "vague and general in scope," 
and that "[tlhe description does not provide any [sic] accurate portrayal of the day[-]to[-]day duties of the 
beneficiary." The director further noted that while the beneficiary is represented as spending 45 percent of his 
time overseeing the company's marketing, the petitioner has not identified the development "[ofl any 
advertising or marketing to promote the company as a convenience store other than listing the petitioner in the 
yellow pages." The director questioned the "exact nature" of the petitioner's marketing campaigns and goals. 
The director recognized the petitioner's staffing levels on the date of filing, noting that its two cashiers appear 
to have been employed on a part-time basis. The director noted that in a March 2002 letter submitted in 
connection with its earlier filing for an L-1A nonimmigrant visa petition, the petitioner identified its hours of 
operation as 7:00 am through midnight. The director expressed doubt that during a 17-hour workday the 
company's two part-time cashiers would be able to process the business' sales without the assistance of the 
beneficiary, and concluded that that beneficiary would likely devote a portion of his time to acting as a 
cashier. 
The director referenced a prior arrest of the beneficiary for selling alcohol to a minor, stating that it 
substantiates the finding that the beneficiary has performed the non-qualifying duties of a cashier. The 
director rejected the petitioner's explanation that the beneficiary was merely filling in as the cashier as the 
result of an absent employee. Consequently, the director denied the petition. 
On appeal, counsel challenges the director's finding, stating that CIS "appears to be saying that a company 
that employs four (4) workers plus one (1) manager to oversee the said workers is not in a position to file an 
[I-1401 Petition [for classification as a multinational manager or executive] because the President of such a 
company will always be engaged in day-to-day functions." Counsel contends that the director's decision "is 
without any basis in logic, fact or law," claiming that "[a] typical corporation that operates retail businesses 
does not normally hire more than four or five workers, and someone has to be the manager of all the retail 
businesses." Counsel claims that CIS also failed to consider the beneficiary's role in locating additional retail 
locations, which he contends is "the essential function of the Petitioner's expansion of business in the United 
States." Counsel cites a "recent" distnct court decision as supporting the suggestion that "a retail store 
manager that supervises five (1) employees qualifies as an 'executive' or 'manager' as defined by [the Act]." 
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. 
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.F.R. fj 204.56)(5). 
The limited description repeatedly offered by the petitioner for the beneficiary's position as president is not 
sufficient to establish his proposed employment in a primarily managerial or executive capacity. The 
regulations require the petitioner to clearly describe the managerial or executive job duties to be performed by 
the beneficiary. 8 C.F.R. fj 204.5(j)(5). Merely restating the regulatory definitions of "managerial capacity" 
and "executive capacity" will not satisfy the petitioner's obligation. See Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990) (finding that specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
the definitions would simply be a matter of reiterating the regulations). 
Here, the petitioner stated only that the beneficiary would hire and fire personnel, analyze business reports 
and budgets, manage the company, and oversee marketing campaigns. The petitioner's broad statements fall 
significantly short of identifying the specific managerial or executive job duties related to the beneficiary's 
employment as president. Reciting the beneficiary's vague job responsibilities is not sufficient for purposes of 
classification as a manager or executive. See generally 8 C.F.R. 5 204.50)(5). 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. 
at 1108. 
Despite the director's request for a "definitive statement" of the beneficiary's proposed job duties, the 
petitioner offered the same vague job description in its response to the director's notice of intent to revoke, as 
well as in the beneficiary's affidavit. In his February 17, 2005 affidavit, the beneficiary simply restated the 
job description without attempting to expound on the broadly-stated job responsibilities. Similarly, although 
the director addressed the insufficiency of the offered job description in her October 14, 2005 decision, 
counsel failed to provide on appeal an additional explanation of the specific managerial or executive job 
duties to be performed by the beneficiary. The AAO notes that 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. 
5 103.2(b)(14). 
Counsel suggests on appeal that the beneficiary would be employed in a primarily "executive/managerial 
capacity" as a result of being "engage[d] in the essential function of the Petitioner's expansion of business in 
the United States." The AAO first notes that counsel does not clarify whether the beneficiary would be 
primarily engaged in managerial duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties 
under section 101(a)(44)(B) of the Act. A petitioner may not claim to employ the 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. 
Counsel's statement on appeal does not clarify the capacity in which the petitioner is claiming to employ the 
beneficiary. 
Moreover, the record does not demonstrate that the beneficiary would be employed as a function manager. 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed, i.e. identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8 
C.F.R. 5 204.50)(5). 
Counsel cannot merely claim that the beneficiary's role in locating new business opportunities in the United 
States is an essential function sufficient to satisfy the criteria of a function manager. As noted above, the 
concept of function manager requires that the petitioner describe with specificity the function to be managed. 
There is no indication in the record that searching for new business opportunities is essential to the petitioner's 
business operations as a gasoline and convenience store. 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). 
Furthermore, a review of the record demonstrates that the petitioner's reasonable needs in light of its overall 
stage of development and purpose would not be met through the employment of its five-person staff. On the 
filing date, the petitioner employed the beneficiary as president, as well as an operations store manager, an 
assistant manager, and two part-time cashiers. As correctly observed by the director, it is doubtful that the 
business operations of the petitioning entity as a gasoline and convenience store, which is open daily from 
7:00 am through midnight, would be met through the employment of the four-person subordinate staff, while 
supporting the beneficiary in a primarily managerial or executive capacity. Counsel's unsupported claim on 
appeal that "[typical] retail businesses [do] not normally hire more than four or five workers," is not sufficient 
to establish that the beneficiary would be relieved from primarily performing non-qualifying administrative or 
operational tasks of the business, particularly with respect to the company's sales function. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. Again, the unsupported assertions of counsel do not constitute evidence. Id. at 534. 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 10 l(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 Int 'l., 19 I&N Dec. 593, 604 (Cornrn. 1988). 
Based on the foregoing discussion, 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 AAO recognizes that CIS previously approved three L-1A nonimmigrant visa petitions filed by the 
petitioner on behalf of the beneficiary. Approval of the most recent nonimmigrant visa petition was revoked 
by CIS on June 22, 2005. With respect to the beneficiary's initial classification as a nonimrnigrant 
intracompany transferee, it must be noted that many 1-140 immigrant petitions are denied after CIS approves 
a prior nonimmigrant 1-129 L-1 petition. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 
(D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. 
Suva, 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. 
CJ: $5 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also $ 316 of the Act, 8 U.S.C. 5 1427. 
Because CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
at 29-30; see also 8 C.F.R. $ 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L- 1 A petition's validity). 
Furthermore, 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. See 8 C.F.R. $ 103.8(d). The 
approval of a nonimmigrant petition in no way guarantees that CIS will approve an immigrant petition filed 
on behalf of the same beneficiary. Based on the lack of evidence of eligibility in the current record, the 
director was justified in departing from the prior nonimmigrant petition approvals and denying the immigrant 
petition. 
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. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.