dismissed EB-1C Case: Retail

(b)(6)
DATE: JUN 0 5 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
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. § 1153(b )(l)(C) 
ON BEHALF OF PETITIONER: 
SELF- REPRESENTED 
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, 
r) , 
t#--- . 
~on Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The Director, Texas Service Center ("the director") revoked the approval of the 
immigrant visa petition after issuing a Notice of Intent to Revoke (NOIR) and reviewing the 
petitioner's response. The Administrative Appeals Office (AAO) rejected the petitioner's timely 
appeal as improperly filed in accordance with 8 C.F.R. § 103.3(a)(2)(v)(A)(l). Subsequently, the 
petitioner filed a motion to reopen or reconsider the AAO's decision, asserting that the appeal should 
not have been rejected. As a matter of administrative discretion, the AAO considered the merits of 
the petitioner's claims and granted a de novo review of the record on certification. 1 The AAO 
affirmed the director's decision revoking the petitioner's approved Form I-140 petition 
and dismissed 
the petitioner's subsequent motion to reopen. The matter is now before the AAO again on a motion 
to reopen and reconsider. The motion will be granted and the AAO's previous decision will be 
affirmed. The approval of the petition will remain revoked. 
The petitioner filed this Form I-140, Immigrant Petition for Alien 
Worker, 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 
petitioner, a Texas corporation, operates retail gift shops and seeks to employ the beneficiary as its 
executive director. 
Although the director initially approved the petitioner's Form I-140, a Department of Homeland 
Security, Office of Fraud Detection and National Security (FDNS) investigation provided potentially 
derogatory information about the continued operations of both the petitioner and the foreign entity. 
In addition, in reviewing the record of proceedings, the director determined that the record as it 
existed at the time of approval was lacking certain required initial evidence and thus the petition 
should not have been approved. Accordingly, the director issued a notice of intent to revoke (NOIR) 
the approval of the petition on January 19, 2010. 
After considering the petitioner's response to the NOIR, the director revoked approval of the petition 
on March 12, 2010, concluding that the petitioner failed to overcome all of the bases for revocation. 
Specifically, the director revoked the approval based on a finding that the petitioner failed to 
establish: (1) that the beneficiary would be employed iri the United States in a qualifying managerial 
or executive capacity; (2) that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity; and (3) that the petitioner and the beneficiary's foreign employer have a 
qualifying relationship. The director's ultimate conclusions were based on the evidence of record as 
opposed to the findings of the FDNS report and there was no finding of fraud or material 
misrepresentation. 
The AAO reviewed the record on certification and affirmed the director's conclusions that the 
petitioner failed to provide evidence to meet the eligibility requirements for the requested 
1 
Like any USCIS office, the AAO may avail itself of the certification process. See 8 C.F.R. § 103.4(a). As a 
matter of administrative discretion, the AAO may certify a decision to itself for review. The AAO limits this 
practice to cases involving exceptional circumstances; it "is not meant to be used as a general cure for filing 
defects or to otherwise circumvent the regulations . . . . "Matter of Jean, 23 I&N Dec. 373, 380 n 9 (AG 
2002). 
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classification and therefore determined that the approval of the petition was properly revoked . The 
AAO also dismissed the petitioner's subsequent motion to reopen on November 29, 2013 . 
On December 31, 2013, the petitioner filed the instant motion to reopen and motion to reconsider the 
AAO's decision of November 29, 2013. The petitioner provides a brief and additional evidence in 
support of the motion. 
Upon review , the evidence submitted on motion is insufficient to overcome the grounds for 
revocation of the petition's approval and the AAO's prior decision will be affirmed. 
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 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. 
II. Discussion 
A. Employment in the United States in a Managerial or Executive Capacity 
The approval of the petition was revoked, in part, based on a finding that the petitioner failed to 
establish that the beneficiary would be employed in the United States in a qualifying managerial 
or executive capacity as defined at sections 101(a)(44)(A) and (B) of the Act. In affirming the 
revocation of the petition , the AAO found that the petitioner failed to submit the required 
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detailed description of the beneficiary's job duties despite being given an opportunity to do so in 
response to the notice of intent to revoke. In addition, we emphasized that the petitioner claimed 
to have only five employees when the petition was filed on June 5, 2002, and the record reflected 
that three of these employees worked on a part-time basis, earning as little as $206 over a three­
month period. The petitioner did not explain how the beneficiary would be relieved from 
performing the day-to-day, non-managerial duties associated with operating the retail businesses 
on a daily basis given the staffing structure in place at the time of filing. 
In a brief submitted in support of the current motion, counsel asserts that "[i]t was presumed that 
US CIS would recognize that the beneficiary . 
. . serves in an executive capacity. He planned and 
budgeted the cash flow to acquire two additional businesses. He was responsible for negotiating 
each purchase and he signed the contracts with the seller(s) as the buyer." Counsel asserts that 
"[p]urchasing and signing contracts to purchase two new businesses is far beyond the 
responsibilities of a supervisor or manager." The petitioner also submits a copy of an employee 
handbook and an employee evaluation form, and claims that the beneficiary developed these 
documents in his role as president of the company? 
In support of the previous motion, the petitioner also submitted its organizational chart dated 
"2002" which identified a total of eight (8) employees by name, as well as five contracted sales 
staff. As noted above, the petitioner claimed to have five employees at the time of filing. The 
petitioner did not identify who was working for the company in June 2002 when the petition was 
filed. Notably, the individuals identified on this chart as holding the positions of vice 
president/operations manager and general manager were identified by the petitioner as cashiers 
when it responded to the director's request for evidence issued in July 2003. 
The petitioner submitted copies of seven IRS Forms W-2, Wage and Tax Statement, for 2002. 
The petitioner contended that "USCIS failed to recognize that [the beneficiary's spouse] assisted 
her husband by working for the business as the co-owner; however, in lieu of receiving a 
paycheck she received draws from the business." The petitioner stated that the beneficiary's 
spouse serves as vice president and operations manager and provided a description of her duties. 
However, as noted above, the petitioner provided evidence that the beneficiary's spouse was paid 
wages in 2003 and identified her as a cashier at that time. The petitioner did not claim to have an 
operations manager at the time the petition was initially approved. 
The petitioner has not provided evidence of any payments to the unnamed contract workers 
indicated on the newly submitted 2002 organizational chart. The submitted Forms W-2 reflect 
2 Although the petitioner indicates that the beneficiary developed the employee handbook/policy and 
procedures manual, the handbook indicates at section 2.2 that the President of the company is " 
and at section 4.3 that the president of the company is Neither of these 
names appears elsewhere in the record. While we do not question that the beneficiary is the president of 
the petitioning company, these anomalies raise questions as to whether the beneficiary actually created 
this document. 
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that the beneficiary earned $42,000 in 2002 and the remaining six employees earned a combined 
total of $28,103. The highest paid sales employee earned $2,880 in annual wages while the other 
two sales staff earned less than $1,000. 
Upon review , the evidence submitted on motion is insufficient to overcome the grounds for 
revocation of the petition's approval. As noted, we affirmed the revocation decision because the 
petitioner failed to provide a detailed description of what the beneficiary actually did on a daily 
basis within the context of the petitioner's staffing arrangement at the time of filing, and because 
the petitioner failed to establish how the staff would relieve the beneficiary from performing the 
non-managerial duties associated with operating three retail stores. 
On motion , counsel points to the beneficiary's responsibility for business expansion and 
acquisition, policy-making and other responsibilities as evidence that he will be employed in an 
executive capacity. The definitions of executive and managerial capacity have two parts. First, 
the petitioner must show that the beneficiary performs the high level responsibilities that are 
specified in the definitions. Second, the petitioner must prove that the beneficiary primarily 
performs these specified responsibilities and does not spend a majority of his or her time on day­
to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 
eir. July 30, 1991). Here, while there is evidence that the beneficiary holds the appropriate level 
of discretionary authority over the petitioning company, the petitioner has not provided any 
additional evidence that would support a finding that he primarily performs managerial or 
executive duties. 
A company's size alone, without taking into account the reasonable needs of the organization , 
may not be the determining factor in denying a visa to a multinational manager or executive. See 
§ 101(a)(44)(e) of the Act, 8 U.S.C. § 1101(a)(44)(e). However, it is appropriate for USers to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Family Inc. v. USCIS, 469 F.3d 
1313 (9th eir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of 
a company may be especially relevant when users notes discrepancies in the record and fails to 
believe that the facts asserted are true. See Systronics, 153 F. Supp. 2d at 15. 
At the time off inQ. t e petitioner indicated that it operated three gift stores, located in 
and Texas, and stated that each store was open for 48 hours per week. The 
petitioner stated on the Form r-140 that it had five employees, and the petitioner's most recent 
quarterly wage report at the time showed that three of those employees were working part-time. 
These employees earned $1,440, $544.25, and $205.50 in wages for the quarter ended on March 
31, 2002. The petitioner paid these employees (all cashiers) total wages of $2,880, $997 and 
$544, respectively, in 2002. While the petitioner submitted an organizational chart on motion 
identifying these cashiers , five contracted employees, and three levels of supervisory staff 
subordinate to the beneficiary, the record as a whole does not support a conclusion that this chart 
reflects the staffing or organization of the company at the time of filing. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
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petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N 
Dec. 45,49 (Comm'r 1971). 
The petitioner's claim that the beneficiary's spouse has been working as the company's operations 
manager without a regular salary or wages is undermined by the petitioner's own claim in 
response to the RFE that the beneficiary's spouse was working as a cashier, which was 
accompanied by evidence that the company was paying her wages. Similarly, the petitioner has 
not submitted evidence to establish that it employed sales staff on a contract basis when the 
petition was filed. 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) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). Accordingly, the evidence provided on motion does not overcome the director's 
and this office's previous finding that the company was staffed by the beneficiary and a 
subordinate staff of one full-time and three part-time employees at the time the petition was filed. 
Furthermore, the record contains conflicting evidence regarding the job title of the one employee 
who received wages during the first half of 2002. The petitioner identifies as a 
general manager on its organizational chart, but the petitioner indicated in response to the RFE 
that this individual worked as a cashier. 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). 
When examining the managerial or executive capacity of a beneficiary, Citizenship and 
Immigration Services (USCIS) reviews the totality of the record, including descriptions of a 
beneficiary's duties and his or her subordinate employees, the nature of the petitioner's business, 
the employment and remuneration of employees, and any other facts that contribute to 
understanding a beneficiary's actual role in a business. The evidence must substantiate that the 
duties of the beneficiary and his or her subordinates correspond to their placement in an 
organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles 
are not probative and will not establish that an organization is sufficiently complex to support an 
executive or managerial position. The petitioner has not established that it had sufficient 
personnel at the time of filing to fully staff its three retail shops with cashiers and has not 
identified who was responsible for purchasing merchandise, performing inventory, and 
performing day-to-day administrative and clerical duties associated with operating the three 
shops. 
Therefore, the petitiOner has not established that it employs a staff that will relieve the 
beneficiary from performing non-qualifying duties so that the beneficiary may primarily engage 
in managerial or executive duties. Further, regardless of the beneficiary's executive position title, 
the record is not persuasive that the beneficiary will function at a senior level within an 
organizational hierarchy. 
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For the foregoing reasons, the petitioner has not established that it will employ the beneficiary in 
a qualifying managerial or executive capacity. Accordingly, the approval of the petition will 
remain revoked. 
B. Foreign Employment in a Managerial or Executive Capacity 
The next issue to be addressed is whether the petitioner established that the foreign entity 
employed the beneficiary in a qualifying managerial or executive capacity as defined at sections 
101(a)(44)(A) and (B) of the Act. 
In affirming the revocation of the petition approval, the AAO determined that the petitioner did 
not provide a sufficiently detailed description of the duties the beneficiary performed abroad and 
did not provide sufficient information or evidence pertaining to the foreign entity's staffing levels 
or the organizational structure in place during the beneficiary's period of foreign employment. 
On motion, counsel asserts that "[i]t was presumed that USCIS would recognize the supporting 
documents previously submitted which clearly identify the beneficiary's majority interest in the 
business." The petitioner submits a copy of the foreign entity's partnership deed, a copy of a 
May 21, 2003 letter referencing a request for an extension of the beneficiary's L-1A status, and 
copies of the beneficiary's pay stubs for the period July 1999 through August 2000. 
While these documents confirm the beneficiary's job title with the foreign entity and his majority 
ownership of the company, they do not provide any further insight into the actual duties the 
beneficiary performed. 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), affd, 905 F.2d 41 (2d. 
Cir. 1990). The fact that the beneficiary owned a majority interest in the foreign entity and had 
an executive job title is not sufficient to establish that he was employed in a qualifying 
managerial or executive capacity as those terms are defined at section 101(a)(44) of the Act. 
Further, 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 company's organizational structure, the duties of the beneficiary ' s subordinate employees , the 
presence of other employees to relieve the beneficiary from performing operational duties, the 
nature of the foreign entity's business, and any other factors that will contribute to understanding 
the beneficiary's actual duties and role in a business. As discussed, the record lacks evidence of 
the foreign entity's staffing levels and organizational structure during the three-year period 
preceding the beneficiary's admission to the United States and the petitioner has not addressed 
these deficiencies on motion. Accordingly, the petitioner has not established that the foreign 
entity employed the beneficiary in a qualifying managerial or executive position and our 
previous decision will be affirmed. 
C. Qualifying Relationship 
The third and final issue to be addressed is whether the petitioner has a qualifying relationship 
with the beneficiary's foreign employer in India and whether it remains a multinational company. 
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To establish a "qualifying relationship" under the Act and the regulations, the petitioner must 
show that the beneficiary's foreign employer and tlie proposed U.S. employer are the same 
employer (i.e. a U.S. entity with a foreign office) 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)(1)(C); see also 8 C.F.R. 
§ 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). Moreover, the 
term "multinational" means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
In affirming the director's decision to revoke the approval of the petition, the AAO found that the 
petitioner's claimed affiliate relationship with the foreign entity was severed when the foreign 
entity ceased operations in 2004, and that there was no evidence that the petitioner currently 
qualifies as a multinational organization. We emphasized that federal regulations affirmatively 
require an alien to establish eligibility for an immigrant visa at the time an application for 
adjustment of status is filed or when the visa is issued by a United States consulate. 8 C.F.R. § 
245.1(a), 22 C.F.R. § 42.41. 
If the beneficiary of an approved visa petition is no longer eligible for the classification sought, 
the director may seek to revoke his approval of the petition pursuant to section 205 of the Act, 8 
U.S.C. § 1155, for "good and sufficient cause ." Notwithstanding the USCIS burden to show 
"good and sufficient cause" in proceedings to revoke the approval of a visa petition, the 
petitioner bears the ultimate burden of establishing eligibility for the benefit sought. The 
petitioner's burden is not discharged until the immigrant visa is issued. Tongatapu Woodcraft of 
Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir. 1984). 
On motion , the petitioner submits a 1999 joint venture agreement between the foreign entity and 
the petitioner and asserts that this evidence establishes a qualifying relationship between the 
entities. Counsel does not address the AAO's finding that the petitioner is no longer a 
multinational company and therefore cannot establish eligibility. 
The existence of a qualifying relationship between the U.S. and foreign entities at the time of 
filing is not relevant to the fact that the foreign company no longer exists. A multinational 
executive or manager is one 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." Section 203(b )(1 )(C) of the Act, 8 U .S.C. § 1153(b )(1 )(C). In order 
to establish eligibility for classification as a multinational manager or executive for immigrant 
visa purposes, the petitioner must establish that it is the same employer or a subsidiary or 
affiliate of the firm or corporation or other legal entity by which the alien was employed 
overseas. 8 C.F.R. § 204.5(j)(3)(i)(C). In this matter, the petitioner does not address the fact that 
as of 2004 the foreign entity was no longer in business and the claimed affiliate relationship 
between the petitioner and the foreign entity was severed. The petitioner cannot establish an 
ongoing qualifying relationship with a foreign entity that no longer exists. Therefore the 
petitioner no longer meets the definition of "multinational" is it no longer conducts business in 
the United States and in at least one other country. The petitioner has not addressed this finding 
on motion and therefore the AAO's previous determination will be affirmed. 
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As a final note, the proper filing of a motion to reopen and/or reconsider does not stay the AAO's 
prior decision to dismiss an appeal or extend a beneficiary's previously set departure date. 8 
C.F.R. § 103.5(a)(1)(iv). 
III. Conclusion 
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 ofOtiende, 26 I&N 
Dec. 127, 128 (BIA 2013). The petitioner has not sustained that burden. 
ORDER: The AAO's previous decision is affirmed. The approval of the petition remains 
revoked.