dismissed EB-1C Case: Retail And Investment

, 
identifying data deleted to 
prevent dearly unwarranted 
invaMOO ofpenonal privacy 
PUBLIC COpy 
DATE: 
APR 2 3 2012 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
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 
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: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
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 is engaged in retail and investment. The petitioner 
seeks to employ the beneficiary as its director/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. § 1153(b)(1)(C), as a 
multinational executive or manager. 
On March 31, 2010, the director denied the immigrant petition concluding that the petitioner 
failed to establish that the beneficiary's proposed employment with the U.S. entity would be 
within a qualifying managerial or executive capacity. 
On April 27, 201 0, counsel for the petitioner submitted the Form 1-290B to appeal the director's 
denial. The petitioner marked the box at part two of the Form 1-290B to indicate that the brief 
and/or additional evidence will be submitted to the AAO within 30 days. The AAO received a 
brief from counsel on June 15, 2010. In the appeal brief, counsel for the petitioner states that 
''the beneficiary meets the definition ofbeing employed in a 'managerial capacity' by the fact he 
supervises and controls the work of other supervisory, professional, or managerial employees 
and manages an essential function within the organization." 
Section 203(b) ofthe 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. 
.. 
Page 3 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b )(1 )(C) ofthe Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United 
States in a managerial or executive capacity. Such a statement must clearly describe the duties to 
be performed by the alien. 
The primary issue in this proceeding is 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 101(a)(44)(A) ofthe 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 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. § 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which 
the employee primarily--
(i) directs the management of the organization or a major component 
or function of the organization; 
(ii) establishes the goals and policies of the organization, component, 
or function; 
(iii) exercises wide latitude in discretionary decision-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 ofthe 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); see also 8 C.F.R. § 204.5(j)(5). 
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. On the Form 1-
140, the petitioner states that the beneficiary's proposed employment is as DirectorNice 
President and his duties will be to, "continue manage overall operation 0 f the Business." The 
petitioner did not provide a detailed job description for the position offered to the beneficiary or 
a breakdown of the percentage of time spent on each duty. Without this evidence, the AAO is 
unable to gain a meaningful understanding of how much time the beneficiary will spend 
performing qualifying tasks versus those that would be deemed non-qualifying. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter 0/ Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter a/Treasure Craft a/California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
On appeal, counsel for the petitioner states the following: 
The evidence submitted shows that the beneficiary meets the definition of 
working in a managerial capacity by the fact the petitioner employs employees 
who are either professional, managerial or supervisory personnel who relieve the 
beneficiary from performing the services of the company. The beneficiary is not 
involved in the day to day functions of the company. Instead, the beneficiary's 
subordinate staff performs the day to day functions and services which the 
beneficiary has discretionary authority to oversee. 
Upon review of the record, the petitioner has not provided a job description or evidence to 
corroborate the claim that the beneficiary will hold a position in a managerial or executive 
· . 
PageS 
capacity. 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 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
On appeal, counsel states that the petitioner employs five employees of which two are "managers 
that manage other managerial or supervisory employees who in tum manage subordinate 
employees." Counsel also refers to an organizational chart that was submitted with the record; 
however, the record for this current petition does not have an organizational chart. In addition, 
the Form 1-140 stated that the petitioner employs 11 employees rather than the five claimed on 
appeal. 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. MatterofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Finally, the petitioner did not submit any documentation evidencing that the petitioner actually 
employs any employees. The petitioner submitted tax records and the quarterly wage reports 
dating back to 2004, nearly four years prior to filing the instant petition. The petitioner did not 
provide any current documentation of the petitioner's employees. Again, 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 at 165. The petitioner has not 
persuasively established that the primary portion of the beneficiary's time has been or will be 
spent performing tasks within a qualifying managerial or executive capacity. 
The record lacks substantive job descriptions establishing what job duties the beneficiary 
performed during his employment abroad and the job duties he would perform in his proposed 
position with the U.S. branch office. Conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves will reveal the true 
nature ofthe employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
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, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.