dismissed EB-1C Case: Retail And Investment

rl TBT.lC copy 
DATE: 
JUN 20 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)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The director of the Texas Service Center revoked the previously approved preference 
visa petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed and the approval ofthe petition will be revoked. 
The petitioner is a Texas corporation that is engaged in retail and investment. The petitioner seeks to 
employ the beneficiary as its director and president. Accordingly, the petitioner endeavors to classify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the Immib'Tation and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(1 )(C), as a multinational executive or manager. 
On May 17, 2010, the director revoked the petition concluding that the petitioner did not submit sufficient 
evidence in rebuttal to the United States Citizenship and Immigration Services' ("USC IS") Notice of 
Intent to Revoke ("NOIR") and has not overcome the grounds for revocation. 
The record of proceeding before the AAO contains: (I) the Form 1-140 and supporting documentation, 
filed May 4,2005; (2) the director's NOIR, dated February 10, 2010; (3) the petitioner's response to the 
NOIR; (4) the director's May 17, 2010 notice of revocation; and (5) the timely filed Form I-I 290B. The 
AAO reviewed the record in its entirety before issuing its decision. 
On May 4,2005, the petitioner filed the Form 1-140 to classify the beneficiary as an employment-based 
immigrant. The director approved the petition. On February 10, 2010, the director notified the petitioner 
of his intent to revoke approval of the immigrant petition. In the notice of intent to revoke, the director 
stated that Customs and Border Protection Inspections' records revealed that at the time of application for 
admission into the United States as a visitor on October 21, 2001, the "beneficiary stated that he was a 
project consultant for his own company named North/South." The director also noted that this 
information contradicts the Biographic Information Form G-325A in which the beneficiary stated that he 
was employed as Advisor Director for the parent company from September 1999 until October 2001. The 
director also noted that the petitioner is "not in good standing as it has not satisfied all franchise tax 
requirements" based on an inquiry from the Texas Comptroller of Public Accounts. 
In response to the director's NOIR, the beneficiary stated that he did in fact work with the parent 
company until October 2001. He also stated that in October 2001, he left his employment with the 
foreign company and "proceeded to USA with the concept of starting my own business." Thus, the 
beneficiary explained that the statement made to the officer when entering the United States was accurate 
as he left his employment with the parent company and had the intention of starting a new business. 
In response to the petitioner's lack of good standing with the state, the beneficiary stated the following: 
In order to continue its business [the petitioner] maintained and paid all relevant taxes. 
Please be aware that most businesses are passing through a very difficult business 
environment in the last few years. Some oversight in this matter may have occurred but 
this has now been rectified. In the last few years with thousands of businesses closing 
down, this has not been an easy task and need some understanding and consideration. 
The petitioner submitted an affidavit from the chief executive officer of the parent company stating that 
the beneficiary "had worked with [the parent company] since September 1999 to October 2001, his last 
position was as director (Business and operation) before he left for USA" The petitioner also submitted 
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an affidavit from the former chief executive officer of the parent company. The affidavit stated that the 
beneficiary joined the parent company in September 1999 and "he left the company in October, 2001 to 
proceed to USA and informed us that he had intended to start his own business." 
In response to the NOJR, the petitioner also submitted a letter from the Texas Comptroller of Public 
Accounts stating that the petitioner, as of March 1, 20 I 0, is in good standing. 
On May 17, 2010, the director revoked the petition concluding that the petitioner did not submit sufficient 
evidence in rebuttal to the NOIR and has not overcome the grounds for revocation. 
On appeal, counsel for the petitioner states that the beneficiary's employment status changed in October 
2001 as he left his employment with the parent company and was self-employed at the time he entered the 
United States in October 2001. Counsel also explained that the director was incorrect in stating that the 
affidavits submitted in response to the NOIR contained inconsistent evidence regarding the date the 
beneficiary began his employment with the parent company. The AAO will withdraw the director's 
statement that the affidavits submitted by the petitioner had inconsistent statements of the date the 
beneficiary commenced his employment with the parent company. Both affidavits state that the 
beneficiary began his employment with the parent company in September 1999. 
Counsel for the petitioner also states that even though the petitioner was not in good standing, it never lost 
the right to conduct business in the state of Texas. Counsel contends that the petitioner continued to do 
business during the time the petitioner was not in good standing with the state of Texas. 
In the notice of revocation, the director concluded that the petitioner did not provide sufficient evidence to 
establish that the beneficiary was in an executive or managerial capacity when employed abroad for one 
year in the three years preceding his admission as a nonimmigrant. 
Upon review, the information submitted by the petitioner is not sufficient to overcome the director's 
concerns. The petitioner provided two affidavits from the previous and current chief executive officers of 
the beneficiary's foreign employer that state the beneficiary ended his employment in October 2001. The 
beneficiary also provided an affidavit stating that he ended his employment with the parent company in 
October 2001 and was self-employed at the time he entered the United States. Thus, the petitioner 
provided sufficient evidence to establish that the beneficiary was employed with the parent company for 
more than one year in the three years preceding his admission as a nonimmigrant. However, the 
petitioner failed to provide evidence that the beneficiary was employed abroad in a managerial or 
executive capacity. 
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 
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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)(I )(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. 
Section 10 I (a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and ftre 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 frrst-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 10 I (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 in which the 
employee primarily--
Page 5 
(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 examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly supports 
the pivotal role of a clearly defined job description, as 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), afJ'd, 905 
F.2d 41 (2d.' Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, USCIS reviews the 
totality of the record, which includes not only the beneficiary's job description, but also takes into account 
the nature of the petitioner's business, the employment and remuneration of employees, as well as the job 
descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a complete 
understanding of a beneficiary'S actual role within a given entity. 
An analysis of the record does not lead to an affirmative conclusion that the beneficiary was employed by 
the foreign company in a qualifying managerial or executive capacity. On review, the petitioner did not 
provide a description of the beneficiary's duties when he was employed with the foreign company. 
Instead, the petitioner only provided affidavits that stated the beneficiary was a Senior Manager of 
Business Development and was later promoted to the position of Director! Advisor Business and 
Operations. The petitioner also provided an organizational chart of the foreign company but did not list 
any duties performed by the beneficiary or any other position listed in the organizational chart. The 
petitioner failed to provide a description of the beneficiary'S duties to demonstrate what the beneficiary 
did on a day-to-day basis. The regulations require a detailed description of the beneficiary's daily job 
duties. The petitioner has failed to provide any detail or explanation of the beneficiary's activities in the 
course of his daily routine. The actual duties themselves will reveal the true nature of the employment. 
Fedin Bros. Co .. Ltd. v. Sava, 724 F. Supp. at 1108. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Sofflei, 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)). Based upon the lack of a comprehensive job description, it cannot be 
concluded that the beneficiary was employed by the foreign company in a managerial or executive 
capacity. 
The second issue noted in the director's decision is that the petitioner was not in good standing. As noted 
above, the petitioner provided a letter from the Texas Comptroller of Public Accounts that stated the 
petitioner was in good standing as of March I, 2010. On appeal, the beneficiary stated that the "non­
payment of the franchise tax was a purely unintentional oversight on my part, as I had serious health 
issues including heart disease and depression." The beneficiary also stated that the petitioner "has 
continued to do business, was entering into contracts and insuring its interests - in short, continuing to 
operate as a business because I did not remember the franchise tax had not been paid." The explanation 
on appeal made by the beneficiary that he forgot to pay the franchise tax differs h'l'eatly from the 
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information made in response to the NOIR whereby the beneficiary stated in a letter dated February 22, 
2010 "please be aware that most businesses are passing through a very difficult business environment in 
the last few years." It is not clear why the beneficiary alludes to economic difficulties for not paying the 
franchise taxes but on appeal, states that it was an oversight by the beneficiary and that he forgot to pay 
the franchise taxes. 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). Furthermore, the evidence is not sufficient to establish that the 
petitioner is doing business. On appeal, the made to the County Clerk of Harris 
County, Texas for a certificate of operation for filed under the ownership of the 
petitioner. The petitioner also submits a copy of insurance for commercial general liability for the 
petitioner from October 5, 2009 until October 5, 2010. The petitioner also submits a Claim of 
Mechanic's Lien in which the petitioner is the claimant. 
The documentation submitted by the petitioner is not sufficient evidence to establish that the petitioner is 
doing business or was doing business when it was not in good standing. The lack of any tax documents 
make it impossible to determine if the petitioner is doing business. Evidence of insurance is not sufficient 
evidence to establish that the petitioner is doing on-going business. The records lack any quarterly wage 
reports to indicate the petitioner's employees, receipts, balance sheets, tax documents or sales invoices. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure CrafiolCalifornia, 141&NDec. 190 (Reg. Comm. 1972)). 
Beyond the decision of the director, the petitioner did not submit evidence to establish that it would 
employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Published case law clearly supports 
the pivotal role of a clearly defined job description, as 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), ajj'd, 905 
F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, USCIS reviews the 
totality of the record, which includes not only the beneficiary's job description, but also takes into account 
the nature of the petitioner's business, the employment and remuneration of employees, as well as the job 
descriptions of the beneficiary's subordinates, if any, and any other facts contributing to a complete 
understanding of a beneficiary's actual role within a given entity. 
An analysis of the record does not lead to an affirmative conclusion that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. In the April 25, 2005 
support letter, the petitioner indicated that the beneficiary's job responsibilities as director and president 
will include the following: 
As the key member of the team, the position is responsible for all aspects of management 
practice including resource allocation, budget and policy decision making and entering 
into negotiations and contracts on behalf of the company. The position manages, 
develops, and directs implementation of entire range of corporate issues. 
Page 7 
o Provide leadership in the designated area of business expansion and Marketing regarding 
establishing key performance indicators; coordinate efforts to put measures into place and 
monitor the corporate performance against established targets. 
o Lead corporate efforts to reach annual targets and develop clear action plans in response 
to issues identified in company business plan. 
o Coach the managerial team on methods and means to improve overall performance by 
unleashing the individual potential. 
On the Form 1-140, the petitioner stated that it had 10 employees and an estimated gross annual income of 
$875,000.00. Upon review of the record, the petitioner did not present any evidence of the employees 
hired by the petitioner. The petitioner did not provide an organizational chart, a list of employees and the 
duties performed by each employee, or tax documents such as quarterly wage reports or Forms W-2. 
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)). 
The petitioner provided a vague and nonspecific description of the beneficiary's duties that fails to 
demonstrate what the beneficiary will do on a day-to-day basis. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. The 
petitioner's descriptions of the beneficiary's position do not identify the actual duties to be performed, 
such that they could be classified as managerial or executive in nature. The job description submitted by 
the petitioner provides little insight into the true nature of the tasks the beneficiary will perform. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101 (a)(44)(B) of the Act, 8 U.S.C. § 
1l01(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of the organization. Inherent to the definition, the organization must 
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must 
primarily focus on the broad goals and policies of the organization rather than the day-to-day operations 
of the enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial employee. 
The beneficiary must also exercise "wide latitude in discretionary decision making" and receive only 
"general supervision or direction from higher level executives, the board of directors, or stockholders of 
the organization." Id. 
The petitioner has not established that the beneficiary is primarily engaged in directing and controlling a 
subordinate staff comprised of professional, managerial or supervisory employees, nor has it indicated 
that she is charged with managing an essential function of the petitioning organization. See section 
101 (a)(44)(A) of the Act. Therefore, the AAO is not persuaded that the beneficiary would be employed 
in a primarily managerial capacity. 
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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). 
Counsel's statements on appeal do not overcome the director's concerns. Counsel did not provide 
sufficient evidence to overcome the findings of the director. The unsupported statements of counsel on 
appeal or in a motion 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). 
The approval of the petition will be revoked 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. The petition is revoked.