dismissed EB-1C Case: Retail

". " /-
,,,,~~-'-~ .t~ 
PUBLlCCOPY 
DATE: JUN 0 6 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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. § lI53(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 with 
the field office or service center that originally decided your case by filing a Form 1-290B, 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. 
§ 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Texas corporation that seeks to employ the beneficiary as its vice president. Accordingly, 
the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § lI53(b)(1 )(C), as a multinational 
executive or manager. 
The petitioner did not provide evidence in support of the Form 1-140, which the petitioner electronically filed 
on September 29,2005. Therefore, the director issued two subsequent notices of intent to deny (NOlD}-one 
dated November 2, 2005 and the other dated January 19, 2006. In the first NOlD, the director instructed the 
petitioner to provide, in part, a detailed description of the beneficiary's proposed employment, including ajob 
offer statement specifically listing the beneficiary's daily job duties and the percentage of time the beneficiary 
would allocate to each job duty. 
The petitioner's response included a statement from counsel dated November 29, 2005 in which counsel 
provided a list of eleven of the beneficiary's duties and general responsibilities. The petitioner also provided 
a job offer letter dated November 21, 2005, briefly describing the beneficiary's proposed employment, and a 
separate pie chart, which included a percentage breakdown allocating 25% of the beneficiary's time to 
directing and managing the company; 20% to establishing goals and policies; 15% to supervising and 
controlling subordinate employees; 15% to hiring and firing employees; 10% to overseeing the preparation of 
inventory reports; 10% to reviewing financial reports, revenues, and expenses; and 5% to establishing and 
achieving marketing goals. 
In the subsequent NOlD, the director once agam addressed the issue of the beneficiary's proposed 
employment, instructing the petitioner to submit a specific job description, which would list individual job 
duties and the amount of time the beneficiary would allocate to each task. The director asked the petitioner to 
provide evidence to establish that the beneficiary would not spend his time primarily performing non­
qualifying job duties that are necessary to produce a product or provide a service. Additionally, the director 
asked the petitioner to provide its organizational chart identifying the beneficiary's position as well as the 
position titles and names of the other employees. In an effort to verify the information offered in the chart, 
the director also instructed the petitioner to provide IRS Form W -2s or 941 s showing that the petitioner in fact 
has five employees as claimed in the organizational chart. 
The petitioner's response included a supplemental job description in which counsel claimed that the 
beneficiary would oversee operations of two retail stores that are owned by the petitioning entity. The 
petitioner submitted an organizational chart identifying a total of six employees-a company president, a vice 
president, one store manager, and three cashiers. It is noted that the beneficiary was identified in the 
proposed position of vice president. The petitioner also provided 2005 Form W -2s issued to five employees 
(not including the company's president) and its 2005 federal unemployment tax return, which shows a total of 
$85,200 paid for employee services. Part II of the Form 940 shows that the petitioner paid $27,000 in taxable 
payroll expenses in the State of Texas and another $20,000 in taxable payroll expenses in the State of 
Arkansas for a total of $47,000 in payroll expenses. It is noted that, according to the information provided in 
the Form W -2s that were issued by the petitioner, the total amount of wages the petitioner paid in Arkansas 
totaled $25,200 and the wages paid in Texas totaled $60,000. 
Page 3 
After reviewing the record, the director concluded that the petitioner failed to establish eligibility and 
therefore issued a decision dated October 22, 2009 denying the petition. The director determined that the 
petitioner failed to establish that the foreign entity continues to do business abroad or that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity. 
On appeal, counsel submits a brief disputing both of the director's adverse findings and asks the AAO to 
consider additional supporting evidence. 
After considering the supplemental documentation, the AAO finds that the petitioner has submitted sufficient 
evidence to establish that the petitioner's affiliate overseas continues to do business. As such, the AAO 
hereby withdraws this ground as a basis for denial and will focus instead on the second ground cited in the 
denial-the beneficiary's employment capacity in his proposed position with the U.S. entity. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b){l )(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
As noted above, the primary issue to be addressed in this proceeding is the beneficiary'S employment capacity 
in his proposed position with the petitioning U.S. entity. Specifically, the AAO will examine the record to 
determine whether the petitioner submitted sufficient evidence to establish that it would employ the 
beneficiary in the United States in a qualifying managerial or executive capacity. 
Section IOI(a)(44)(A) of the Act, 8 U.S.c. § I 101 (a)(44)(A), provides: 
Page 4 
The term "managerial capacity" means an assignment within an organization III which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 u.s.c. § I 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In examllllllg 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. § 204.5(j)(5). The AAO will then consider this 
information in light of other relevant factors, such as the petitioner's organizational hierarchy, the 
beneficiary's position therein, and the petitioner's overall ability to relieve the beneficiary from having to 
primarily perform the daily operational tasks. 
The petitioner failed to provide an adequate description of the beneficiary's proposed employment within the 
context of the petitioner's convenience store business, which consists of one retail outlet with two claimed 
employees and another retail outlet, in a different state, with a staff of three employees. Although the 
beneficiary's job descriptions repeatedly focused on the beneficiary's discretionary authority in managing, 
Page 5 
directing, planning, and formulating plans and policies, the petitioner failed to clarifY the beneficiary's 
specific role within the scope of two retail operations and provided little information that would explain how 
the beneficiary is relieved from having to primarily perform non-qualifYing tasks when the petitioner employs 
only one store manager while operating two store locations in two different states. is 
employed as the store manager of the petitioner's Texas retail operation, it is unclear who manages the 
petitioner's second retail operation in the State of Arkansas. As the petitioner's wage and tax documents do 
not show the petitioner's president as having drawn a salary during any time in 2005 and in light of the 
petitioner's claim that the Arkansas store employs two cashiers, it would appear that the only individual 
available to manage the Arkansas store would be the beneficiary himself. Supervising non-managerial or 
non-professional employees would not qualifY as employment in a qualifying managerial or executive 
capacity. See section 10 I (a)(44)(A)(ii) of the Act. 
The petitioner indicated that the beneficiary would perform numerous non-qualifying job duties including 
conducting market research, recruiting and interviewing non-professional employees to work at the 
petitioner's various retail outlets, conducting feasibility studies, gathering competitor information, and 
negotiating contracts with vendors and distributors. The petitioner did not, however, indicate what portion of 
the beneficiary's time would be allocated to these non-qualifYing tasks despite the fact that this information 
was expressly requested by the director in the second NOlD. While the AAO acknowledges that no 
beneficiary is required to allocate 100% of his time to managerial- or executive-level tasks, the petitioner 
must establish that the non-qualifying tasks the beneficiary would perform are only incidental to the proposed 
position. An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Furthermore, while the AAO has reviewed the percentage pie chart that the petitioner submitted in response 
to the first NOlD as well as the separate percentage breakdown that the petitioner submitted in response to the 
second NOlD, both breakdowns consisted almost entirely of broad job responsibilities, such as directing and 
managing the company, establishing its goals and policies, overseeing the preparation of inventory reports, or 
establishing and achieving marketing objectives. These general statements are insufficient as they fail to 
clarifY what specific tasks the beneficiary would perform. It is noted 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), 
affd, 905 F.2d 41 (2d. Cir. 1990). 
Even in instances where the petitioner provides a detailed job description, this factor alone, without 
supporting evidence, is not sufficient. Merely providing a job description that describes a set of primarily 
qualifYing tasks is meaningless if the organization that seeks to hire the beneficiary does not have the human 
resources to relieve that beneficiary from having to primarily perform non-qualifying operational job duties. 
The record does not contain consistent, reliable documentation to establish precisely whom the petitioner 
employed at the time of filing the petition that would allow the AAO to assess the extent to which the 
petitioner was able to relieve the beneficiary from having to allocate his time primarily to the performance of 
non-qualifying operational tasks. 
The petitioner's wage and tax documents contain various unexplained anomalies. While the record indicates 
that the petitioner issued Form W-2s to five employees in 2005, showing a total of $85,200 paid in employee 
Page 6 
wages and salaries, Part II of the Form 940, which the petitioner completed for 2005, shows that it paid 
$27,000 in taxable payroll expenses in the State of Texas and another $20,000 in taxable payroll expenses in 
the State of Arkansas for a total of $47,000 in payroll expenses. The latter amount is significantly less than 
the sum total of the 2005 W -2s, which show that the total amount of wages the petitioner paid in Arkansas 
totaled $25,200 and the wages paid in Texas totaled $60,000. 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). 
In light of the inconsistency described above, it is entirely unclear how many employees the petitioner had at 
the time of filing. Thus, not only is the petitioner's credibility undermined by its submission of inconsistent 
wage and tax documents, but the petitioner has failed to establish that it was ready and able to relieve the 
beneficiary from having to primarily focus on performing non-qualifying tasks associated with running a 
convenience store operation. 
The AAO further notes that counsel's assertions on appeal are not supported by the evidence of record. For 
example, on page seven of his appellate brief, counsel asserts that the beneficiary will "supervise and control 
the work of the president and general manager, who will in tum be responsible for directing the work of 
subordinate managers .... " This statement is contradicted by the organizational chart that was submitted in 
response to the second NOlD, where the chart showed that the beneficiary's proposed position of vice 
president would be directly subordinate to the president, not the other way around. There is no evidence 
showing that the petitioner actually employed the individual named as president at the time the Form 1-140 
was filed, as this was the only individual in the organizational chart to whom a 2005 W -2 was not issued. 
The petitioner's organizational chart identified only one store manager. Thus, counsel's claim that the 
petitioner had a position available where the beneficiary would oversee mUltiple store managers is simply not 
credible and is not supported by the evidence of record. Without documentary evidence to support the claim, 
the assertions of counsel will not satisfY the petitioner's burden of proof. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BrA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
While both counsel and the petitioner have made references to the petitioner's expanded operations, which 
include additional convenience stores that the petitioner did not operate at the time of filing, the petitioner's 
eligibility must be assessed based on facts and circumstances that existed at the time of filing. Thus, neither 
newly hired staff nor any additional stores that were not a part of the petitioning entity at the time the petition 
was filed may be considered for the purpose of determining the petitioner's eligibility. 8 C.F.R. § 
103.2(b)(I); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
The AAO cannot reach a favorable conclusion without a job description that adequately describes the 
proposed employment and reliable documentary evidence to support the claims being made. Although the 
director attempted to elicit necessary information by issuing notices that expressly instructed the petitioner to 
list the beneficiary's specific job duties with applicable time allocations, the petitioner did not provide a 
response in the requested format. Instead, the petitioner assigned a percentage breakdown to general job 
responsibilities and failed to assign time constraints to the more detailed list of duties that were provided as a 
separate document. Given that the beneficiary's time would be allocated to both qualifying and non­
qualifYing tasks, the time element is crucial for the purpose of determining whether the beneficiary would 
primarily perform tasks within a qualifYing capacity. In light of the significant deficiencies that have been 
, , 
Page 7 
discussed in this decision, the AAO finds that the petition does not warrant approval and the director's 
decision will be affirmed. 
Additionally, while not previously addressed in the director's decision, the AAO finds that the petitioner 
failed to provide sufficient evidence that the beneficiary's employment abroad was within a qualifying 
managerial or executive capacity. 
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), ajj'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Based on the additional ground of ineligibility discussed above, this petition 
cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.