dismissed EB-1C Case: Retail

(b)(6)
Date: Office: NEBRASKA SERVICE CENTER 
JUN 1 7 2013 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service~ 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FlLE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of$630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 1 03.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenber 
'""\)Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The petitioner appealed the matter to the Administrative Appeals Office (AAO). The AAO 
dismissed the petitioner's appeal and subsequent motion to reopen and reconsider. The matter is now before 
the AAO again on a second motion to reopen and reconsider. The AAO will dismiss the motion. 
The petitioner filed the immigrant petition to classify the beneficiary as a multinational manager or executive 
pursuant to section 203(b )(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(1 )(C). 
The petitioner, a Texas corporation, states that it operates a retail furniture business and car rental business. 
1 
It seeks to employ the beneficiary as its director of business development. The director denied the petition on 
February 28, 2008, concluding that the petitioner failed to establish that the beneficiary would be employed in 
the United States in a qualifying managerial or executive capacity. 
The AAO dismissed the petitioner's subsequent appeal on December 9, 2009, affirming the director's 
determination that the petitioner failed to establish that the beneficiary would be employed by the petitioner in 
a primarily managerial or executive capacity. Additionally, relying on its authority to review appeals on a de 
novo basis, the AAO identified three additional grounds of ineligibility, concluding: (1) that the petitioner 
failed to establish that the beneficiary was employed abroad during the relevant time period or that she was 
employed by the foreign entity in a qualifying managerial or executive capacity; (2) that the petitioner failed 
to demonstrate that it had the ability to pay the beneficiary's proffered wage at the time of filing; and (3) that 
the petitioner's forfeited legal existence precluded the petitioner from being deemed a "United States 
employer," thereby rendering the petitioner ineligible to offer the beneficiary permanent employment in the 
United States at the time the petition was filed. 
On the petitioner's subsequently filed motion, counsel asserted that the director erred in determining that the 
beneficiary would not be employed in a managerial or executive capacity and that the AAO was incorrect in 
affirming the director's decision. Neither counsel nor the petitioner acknowledged the three additional 
grounds for denial identified in the AAO's decision. The AAO determined that the petitioner had failed to 
meet the requirements of a motion to reopen or reconsider and dismissed the motion in accordance with 8 
C.F.R. § 103.5(a)(4) on June 14,2010. Notwithstanding the AAO's determination that the petitioner failed to 
meet the requirements of a motion, the AAO's decision included a thorough discussion of counsel's arguments 
with respect to the issue of whether the beneficiary would be employed in the United States in a managerial or 
executive capacity. 
The petitioner has filed a second combined motion to reopen and reconsider which is now before the AAO. 
Counsel for the petitioner contends: (1) that the AAO erred in requiring the petitioner to respond to grounds 
of denial that would require the submission of new evidence; (2) that the AAO erred in finding the petitioner's 
1 
It should be noted that, according to the Texas Comptroller of Public Accounts, the petitioner forfeited its 
corporate privileges in Texas on January 6, 2006 due to its failure to satisfy all state tax requirements. In 
addition, the petitioner's corporate privileges were not reinstated until May 22, 2007, a date subsequent to the 
filing of the instant immigrant petition seeking to permanently employ the beneficiary in the United States. 
The binding precedent decision, Matter of Thornhill, 18 I&N Dec. 34 (Comm. 1981 ), holds that a petitioner 
whose status is impermanent, or otherwise "not f.ettled," is not competent to offer permanent employment to 
an alien, if that offer would serve as the basis for issuance of an immigrant visa. 
(b)(6)
Page 3 
prior motion to reopen and reconsider did not meet the requirements of a motion; and (3) that the AAO erred 
in concluding that the beneficiary would not be employed in a primarily executive or managerial capacity or 
that the beneficiary will manage an essential function. 
The scope of the AAO's review in a motion proceeding is limited pursuant to 8 C.F.R. § 103.5(a)(2), which 
describes the scope of review for a motion to reopen, and 8 C.F.R. § 103.5(a)(3), which describes the scope of 
review for a motion to reconsider. 
The regulations at 8 C.F.R. § I 03.5(a)(2) provide, in pertinent part, that a motion to reopen must state the new 
facts to be provided in the reopened proceeding and be supported by affidavits or other documentaty 
evidence. Based on the plain meaning of "new," a new fact is found to be evidence that was not available and 
could not have been discovered or presented in the previous proceeding? 
The petitioner's motion consists of a brief from counsel, and is thus not supported by affidavits or other 
documentary evidence. Furthermore, counsel presents no facts in her brief that could be considered "new" or 
that could not have been presented in the prior proceeding. Therefore, the AAO finds that the motion does 
not meet the requirements of a motion to reopen. 
The regulation at 8 C.F.R. § 103.5(a)(3) states: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or USCJS policy. A motion to reconsider a decision on an application or 
petition must, when filed, a'tso establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 
Counsel asserts that the AAO's decision to dismiss the petitioner's motion to reopen or reconsider was 
incorrect because: (I) the AAO erred by requiring the petitioner to respond to new grounds for denial that 
would have required the submission of new evidence; (2) the AAO erred in concluding that the petitioner did 
not meet the requirements of a motion to reopen or motion to reconsider; and (3) the AAO erred by 
concluding that the beneficiary would not be employed in a primarily executive or managerial capacity. The 
AAO will grant the petitioner's motion to reconsider and discuss these arguments separately. 
I. New grounds for denial not raised in the director's Request for Evidence or initial adverse decision 
Counsel contends that the AAO unfairly and erroneously expected the petitioner to respond to the three new 
and separate grounds of denial included in the AAO's appellate decision dated December 9, 2009. The AAO 
affirmed the director's determination that the petitioner failed to establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity and further concluded: ( 1) that 
the petitioner failed to establish that the beneficiary was employed abroad during the relevant time period or 
2 
The word "new" is defined as "I. having existed or been made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> " WEBSTER'S NEW COLLEGE DICTIONARY 753 (3rd Ed., 
2008)( emphasis in original). 
(b)(6)
Page4 
that she was employed by the foreign entity in a qualifying managerial or executive capacity; (2) that the 
petitioner failed to demonstrate that it had the ability to pay the beneficiary's proffered wage at the time of 
filing; and (3) that the petitioner's forfeited legal existence precluded the petitioner from being deemed a 
"United States employer ," thereby rendering the petitioner ineligible to offer the beneficiary permanent 
employment in the United States at the time the petition was filed. 
Counsel's argument is two-fold. First, counsel asserts that the denial of the petition on new grounds , without 
giving the petitioner an opportunity to address the deficiencies in the evidence , violated USCIS policy and 
"well established due process rights." Counsel relies on a 2005 USCIS memorandum from William R. Yates, 
Associate Director of Operations, in support of her position that agency policy is to issue a request for 
additional evidence or a notice of intent to deny if the evidence submitted in support of a petition raises 
underlying questions regarding eligibility. 3 
Second, counsel contends that the petitioner is prohibited from addressing these new grounds for denial, 
claiming that "the AAO does not take into account the fact that appeals are limited to what is contained in the 
record." Counsel asserts that the AAO applied "circular reasoning" by simultaneously requiring that the 
petitioner establish that the decision was incorrect based on the evidence of record at the time of the initial 
decision, and requiring that the petitioner submit new evidence to address the additional grounds for denial in 
the AAO's December 9, 2009 decision. 
ln setting forth these arguments, counsel overlooks the fact that 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), a.ffd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 
381 F.3d 143, 145 3d Cir. 2004 (noting that the AAO conducts appellate review on a de novo basis). The 
AAO clearly stated in its decision dated December 9, 2009 that it was exercising this de novo authority in 
identifying three additional grounds for the denial. 
The 2005 Yates memorandum to which counsel refers is addressed to district directors, regional directors, and 
service center directors , and does not apply to AAO in the exercise of its de novo appellate review. Counsel's 
argument that USCIS policy prohibits the AAO from identifying additional grounds for 
denial of petition 
without issuing a request for evidence is not persuasive . See also 8 C .F.R. § 103.2(b)(8)(ii); 72 F.R. 19100 
(April 17, 2007). 
Lastly, counsel claims that the AAO's denial of the petition based on three additional grounds without first 
issuing a request for evidence violates the petitioner's due process rights. Counsel does not further elaborate 
as to how the denial of the petition violates such rights. Although counsel argues that the petitioner's rights 
to procedural due process were violated, they have not shown that any violation of the regulations resulted in 
"substantial prejudice" to them. See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that an 
alien "must make an initial showing of substanti ai prejudice" to prevail on a due process challenge). The 
petitioner has fallen far short of meeting this standard. A review of the record and the adverse decision 
3 
See Memorandum of William R. Yates, Assoc. Dir. of Operations, USCIS, Requests for Evidence (RFE) and 
Notices of Intent to Deny (NOID)(February 16, 2005). 
(b)(6)
Page 5 
indicates that the director properly applied the statute and regulations to the petitioner's case, and that the 
AAO acted within the scope of its authority when it denied the petition on additional grounds not identified 
by the director. The petitioner failed to meet its burden of proof and the denial was the proper result under the 
regulations. Accordingly, the petitioner's claim is without merit. 
Furthennore, even if the petitioner established that the AAO should have requested evidence before denying 
the petition on additional grounds beyond the director's decision, it is not clear what remedy would be 
appropriate beyond the motion process itself. Contrary to counsel's assertions, there are circumstances in 
which new evidence may be submitted and accepted during appellate and motion proceedings, and such 
circumstances are present in this case. Where a visa petition is denied based on a deficiency of proof and the 
petitioner was not put on notice of the deficiency and given a reasonable opportunity to provide it before 
denial, USCIS will consider evidence submitted for the first time on appeal or motion. Cf Matter of Soriano, 
19 I&N Dec. 764 (BIA 1988). The petitioner clearly did not avail itself of this opportunity in the prior motion 
proceeding as it failed to even acknowledge the three additional grounds for denial identified in the AAO's 
decision. 
Counsel briefly addresses two of these three additional grounds for denial in her brief on motion, noting that 
the petitioner could have submitted evidence to further document the beneficiary's prior employment with a 
qualifying foreign entity in a qualifying capacity, and the petitioner's valid status as a corporation and U.S. 
employer as of the date the petition was filed, if only it had been given an opportunity to respond to a request 
for evidence addressing these issues. Counsel acknowledges that the petitioner's corporate status was 
forfeited on January 6, 2006 due to the negligence of an accountant, but contends that the status was 
reinstated that same day. Counsel asserts that the petitioner makes no concessions as to the AAO's 
conclusions regarding these three additional grounds for denial. As noted above, the instant motion consists 
of a legal brief only, and does not contain documentation such as corporate records from the Texas Secretary 
of State, to corroborate the counsel's claims regarding the date of reinstatement. 
As discussed above, where the petitioner seeks to address and overcome grounds for denial that go beyond 
the director's initial decision, the appropriate forum is the motion process itself. See generally 8 C.F.R. § 
103.5, Despite filing two motions, the petitioner has not submitted any additional documentary evidence to 
address the AAO's adverse findings with respect to the beneficiary's foreign employment in a qualifying 
capacity, the petitioner's ability to pay the proffered wages to the beneficiary as of the date of filing, or the 
petitioner's corporate status as of the date of tiling. Counsel's assertion that the petitioner could produce 
evidence to overcome such findings is not sufficient and cannot be accepted in lieu of the actual evidence that 
was determined by the AAO to be lacking.4 The unsupported statements of counsel on appeal or in a motion 
4 For example, counsel asserts that the petitioner demonstrated that the beneficiary was a 50 percent 
shareholder and director of the foreign entity since 1994 and managed a number of employees as director of 
the Director of Marketing and Sales Department. However, the beneficiary herself indicated on a Form G-
325A Biographic Information, signed under penalty of perjury on December 13, 2004, that she had not been 
employed in the last five years. This Form G-325A was submitted in support of the beneficiary's prior Fonn 
1-485, Application to Adjust Status. In support of the Form 1-485 that was concurrently filed with the instant 
petition in November 2006, the beneficiary also submitted a second Form G-325A, in which she indicated 
(b)(6)
Page 6 
are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 
188-89 n.6 ( 1984 ); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 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)). 
Finally, the AAO notes that there is not legal bar to prevent the petitioner from re-filing a new petition. If a 
petitioner were to file a new petition, it is in the petitioner's best interest for the AAO to note additional 
deficiencies so that they might be addressed and remedied in a future proceeding. 
Based on the foregoing, the AAO concludes that this office did not err in its original decision when it 
identified three grounds for denial not identified in the director's initial decision, nor did it err in dismissing 
the petitioner's subsequent motion, in part, because the petitioner failed to address these independent and 
alternative grounds for denial. 
As the petitioner has not submitted any documentary evidence to address these grounds for denial, the AAO 
will affirm its prior conclusions, specifically: (1) that the petitioner failed to establish that the beneficiary was 
employed by a qualifying foreign entity in a primarily managerial or executive capacity during the requisite 
time period; (2) that the petitioner failed to establish that it had the ability to pay the proffered wages to the 
beneficiary as of the date the petition was filed, and (3) that the petitioner's forfeited legal existence precluded 
the petitioner from being deemed a United States employer eligible to offer the beneficiary permanent 
employment in the United States. 
II. The petitioner's prior combined motion to reopen and reconsider 
Counsel asserts that its prior motion stated the reasons for reconsideration and was supported by pertinent 
precedent decisions in accordance with the requirements for a motion to reconsider at 8 C.F.R. § 103.5(a)(3). 
Counsel contends that "[t]he AAO refused to consider this for several reasons ranging from the precedents 
being unpublished to the Petitioner not providing a copy of every single case referenced." Counsel states that 
the AAO's "refusal to even consider the law purported by the Respondents was an abuse of discretion and a 
disregard for judicial precedent." Counsel fwther asserts that, even if the unpublished cases are not 
"mandatory law," they are "persuasive authority that warrants consideration, especially when the facts are 
applicable to the issue at hand." 
under penalty of perjury that she was employed by 
until June 2004. 
in Karachi, Pakistan from June 1994 
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). 
(b)(6)
Page 7 
Upon review, we note while the AAO dismissed the petitioner's motion to reconsider, in part, for this reason, 
the decision nevertheless included an in-depth discussion of counsel's two major substantive claims. First, 
counsel claimed that the AAO erred in focusing on the beneficiary's job duties rather than her position as a 
function manager. The AAO explained that focusing on the beneficiary's job duties is consistent with the 
regulations, noting that 8 C.F.R. 204.5(j)(5) expressly requires the petitioner to provided a detailed 
description of the beneficiary's proposed employment. Despite her objections to the AAO's analysis of the 
beneficiary's job duties, counsel herself cited to case law which establishes that the actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989). 
The AAO also acknowledged that it did not focus on the beneficiary's "position as a function manager" in its 
initial decision for the sole reason that the petitioner never claimed prior to the dismissal of the appeal 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 10l(a)(44)(A)(ii) of the Act, 8 
U.S.C. § l101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. Whenever 
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 in managing the essential function, 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. See 8 C.F.R. § 204.5(j)(5). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the duties related to the function. 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 Intn '!., 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner did not articulate a claim that the beneficiary is a function manager, identify the essential 
function she is claimed to manage, the amount of time she would allocate to managing the essential function, 
or provide evidence that the beneficiary's duties are primarily managerial. Furthermore, prior to the dismissal 
of the appeal, the petitioner was clearly attempting to establish that the beneficiary is a personnel manager 
who primarily supervises and controls the work of other supervisory, professional or managerial employees, 
as evidenced by the organizational charts in the record depicting the beneficiary's supervision of a hierarchy 
employees. The petitioner put forth the argument that the beneficiary is a function manager only after the 
AAO determined that the petitioner failed to submit documentation to corroborate the information conveyed 
in its organizational charts. The AAO noted that a claim that the beneficiary is a function manager may 
relieve the petitioner from having to establish that the beneficiary supervises a subordinate staff comprised of 
professionals, managers or supervisors, but does not release the petitioner from providing an adequately 
detailed description of the beneficiary's day-to-day duties, information regarding the proportion of time she 
allocates to managerial duties, and corroborating information to establish that the company employs sufficient 
staff to relieve the beneficiary from having to perform the daily operational tasks associated with the 
petitioner's everyday function. All of these deficiencies were discussed at length in the AAO's decision dated 
December 9, 2009. As the petitioner provided no additional clarification or documentation to address these 
points on motion, the AAO concluded that the beneficiaty does not qualify as a function manager. 
(b)(6)
Page 8 
Based on the foregoing, counsel's assertion that the AAO "refused to consider" the motion to reconsider is not 
accurate. 
With respect to the AAO decision to dismiss the motion, the AAO clearly explained why the unpublished 
AAO decisions cited by counsel are not "precedent decisions" and discussed why the petitioner's reliance on a 
district court case, Mars Jewelers, Inc. vs. INS, 702 F. Supp. 1570 (N.D. Ga 1988), was misplaced. See 8 
C.F.R. § 1 03.3(c) (noting that only designated precedent decision are binding on USCIS employees). The 
AAO also correctly advised the petitioner that is not required to assume the burden of reviewing the record 
and decision of each unpublished matter to verif)r the validity of counsel's claims that those matters were 
approved based on similar facts. 
Counsel cited numerous unpublished AAO decisions to stand for the proposition that managers need not 
supervise a large number of employees or a large enterprise, and included examples of cases in which even a 
sole employee was found to be serving in a qualif)ring managerial or executive capacity. The AAO clearly 
acknowledged these propositions and agreed that the petitioner is not required to employ a large staff in order 
to establish that it can support a managerial or executive employee. However, the AAO provided legal 
authority for its position that the petitioner's organizational hierarchy is one factor that may be considered 
when determining whether an individual beneficiary is employed in a managerial or executive capacity. 
Furthermore, as discussed above, the petitioner's prior motion addressed only one out of four grounds for 
denial of the petition and was properly dismissed for this reason. When the AAO denies a petition on 
multiple alternative grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its 
discretion with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United 
States, 229 F. Supp. 2d 1025, 1043 (E. D. Cal. 2001 ), qffd. 345 F.3d 683 (9th Cir. 2003). 
III. The beneficiary's employment in a primarily managerial or executive capacity or as a function manager 
Counsel asserts that the petitioner cited relevant precedent case law establishing that Congress, in the 1990 
Immigration and Nationality Act, "intended to restore the more liberal treatment of the executive and 
managerial categories." Counsel contends that the AAO erroneously stated that the petitioner relied on pre­
IMMACT 90 cases to support its motion to reconsider. 
Upon review, the AAO notes that counsel cited to both pre-1990 and post-1990 decisions in its previous 
motion. The AAO did not determine that all cases cited by counsel were based on pre-IMMACT 90 
regulations. Rather the AAO concluded that the neither the unpublished decisions nor the pre-IMMACT 90 
decisions qualif)r as "pertinent precedent decisions" for the purposes of satisf)ring the requirements to file a 
motion to reconsider pursuant to 8 C.F.R. § 1 03.5(a)(3). Nevertheless, the AAO's decision addressed the 
substantive issues raised by counsel and supported by the non-precedent case law, including whether the 
beneficiary qualified as a function manager and whether the AAO's decision placed undue emphasis on the 
size of the U.S. company or the number of staff supervised by the beneficiary. 
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Counsel further states that "the petitioner bought [sic] to the AAO's attention that the 1990 Act to the INA ... 
bars decisions on the executive capacity of the beneficiary from being made exclusively on the basis of the 
number of employees supervised by the beneficiary." 
Counsel's argument is not persuasive as neither the director's decision nor the AAO's decision was made 
exclusively, or even primarily, on the basis of the number of employees supervised by the beneficiary or the 
size of the organization. The director's initial adverse decision did not address the size of the company or its 
organizational structure, but rather was based solely on the petitioner's failure to establish that the 
beneficiary's actual duties would be managerial or executive in nature. ln dismissing the appeal, the AAO 
determined that the petitioner failed to provide a detailed description of the beneficiary's duties sufficient to 
establish what she actually does on a day-to-day basis, failed to establish the proportion of time the 
beneficiary would spend performing qualifying tasks versus non-qualifying ones, and failed to submit 
evidence to corroborate the employment of the employees and contractors identified in its organizational chart 
as of the date of filing. 
For example, the petitioner indicated that it had nine regular staff employees as of November 2006 when the 
petition was filed, but the petitioning company issued only five IRS Forms W-2 in 2006. The AAO was 
concerned not with the number of employees in the company or the number of employees supervised by the 
beneficiary, but rather with the petitioner's apparent inability to document the claimed number of employees 
and organizational structure as of the date of filing. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent o~jective 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, l9I&N Dec. 582, 591-92 (BIA 1988). The AAO further noted that many ofthe 
beneficiary's proposed responsibilities appeared to be performed on behalf of a separate legal entity, 
. and the ' franchise that company operates, and as such 
could not be considered qualifying duties performed on behalf of the petitioning company. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties ofthe beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. Due to 
the deficiencies outlined above, and discussed at length in the AAO's prior decision, the petitioner failed to 
establish that the beneficiary would be employed in a primarily managerial or executive capacity. Although 
the petitioner has filed two motions, the petitioner has failed to acknowledge most of the petition's defects 
regarding the beneficiary's claimed employment capacity, and instead has proposed that the petitioner's 
descriptions of the beneficiary's duties are somehow irrelevant and that the AAO should have concluded that 
the beneficiary is a function manager despite the petitioner's failure to articulate such a claim. 
As the AAO's adverse decision was not based on the size of the petitioning organization or the number of 
employees supervised by the beneficiary, counsel's claim that the decision was based on an incorrect 
application of law or service policy prohibiting determinations based on these factors is not persuasive. 
While the AAO conducts a comprehensive, de novo review of the entire record on appeal, a review in the case 
(b)(6)
Page 10 
of a motion to reconsider is strictly limited to an examination of any purported misapplication of law of 
USCIS policy. Accordingly, the AAO affirms its prior determination that the petitioner failed to establish that 
the beneficiary will be employed in a primarily managerial or executive capacity, for the reasons stated in its 
prior decision. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here , the petitioner has not sustained that burden. 
Accordingly , the AAO will affirm its prior decision to dismiss the petitioner's appeal. 
ORDER: The AAO's decisions dated June 14, 2010 and December 9, 2009 are affirmed. The 
petition is denied .