dismissed EB-1C Case: Retail Management

US. Department of Homeland Security 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
20 ~assachusetts~~ve. N.W.. MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
DATE: APR O 6 2c11 
 OFFICE: TEXAS SERVICE CENTER FILE: A87 377 067 
SRC 09 077 5 1733 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(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 inquity that you might have concerning your case 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. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-2908, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
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 Florida corporation that seeks to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(C), as a multinational 
executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: I) the petitioner failed to 
establish that it would employ the beneficiary in a managerial or executive capacity; 2) the petitioner failed to 
establish that it has the ability to pay the beneficiary's proffered wage; and 3) the petitioner failed to establish 
that it has a qualifying relationship with the beneficiary's foreign employer. On appeal, counsel submits a 
brief disputing and addressing all three of the director's conclusions. 
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 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. 
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. 
The first issue addressed by the director in his decision is the beneficiary's employment capacity in the 
proposed position with the U.S. entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
Page 3 
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. 5 1101(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 support of the Form 1-140, the beneficiary, in his capacity as the president of the petitioning entity, 
submitted a letter dated December 8, 2008 on his own behalf, claiming that he "began to operate the business 
from its Houston[, Texas] office" upon arriving to the United States. Examples of such business operation 
included applying for a social security number, obtaining a federal tax identification number, and opening a 
business bank account. The beneficiary stated that he traveled to various states in pursuit of business 
opportunities. The beneficiary explained that the first convenience storelgas station operation was purchased 
in early 2008 and further noted that he has since hired a store manager and employees to run the operation. 
The beneficiary also stated that the petitioner has purchased a second business, also involving a convenience 
storelgas station operation, at another location in the State of Florida. The beneficiary claimed that the 
position of corporation manager was filled to assist him in his proposed position as the company's president 
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and further indicated that his role is essential to the set-up and expansion of the petitioning entity as well as to 
the marketing, recruitment of key personnel, and financial management of the corporation. 
After reviewing the supporting documents, the director determined that the petitioner failed to establish 
eligibility and thus issued a denial notice on July 7, 2009, concluding that the record does not establish that 
the beneficiary's proposed employment would be within a qualifying managerial or executive capacity. 
On appeal, counsel generally challenges the propriety of the denial, relying on the lack of request for evidence 
(RFE) as a basis for the challenge. Counsel cites an internal U.S. Citizenship and Immigration Services 
(USCIS) memorandum in support of his argument. The AAO notes, however, that 8 C.F.R. 5 103.2(b)(8) was 
revised, effective June 18, 2007, and no longer requires that the director issue either an RFE or a notice of 
intent to deny (NOID) under any circumstances. Under the revised provisions the director has absolute 
discretionary authority to determine the need for an WE or NOID, thus allowing the director to issue an 
adverse decision without issuing any prior notices at all. The AAO further points out that the appeal process 
itself affords the petitioner ample opportunity to submit supplemental evidence andor information in an effort 
to establish eligibility. Therefore, the director committed no procedural error by not issuing an RFE or NOID 
prior to denying the petitioner's Form 1-140. 
With regard to the beneficiary's proposed employment, the beneficiary provided a separate letter dated July 
28, 2009, which he signed in his capacity as the petitioner's president. The beneficiary repeated information 
that was previously provided with regard to the proposed position and appended the following list of his 
proposed duties and responsibilities: 
1. Approval on the market development plan; 
2. Set up the business hierarchy structure; 
3. Establish the goals and policies of the business; 
4. Decision making on business expansion, new business purchasing, acquiring; 
5. Receive report from the general manager on market research study information and 
blueprint on the new business plan; 
6. General supervision on the general manager's function and duties; 
7. Overall financial authority and oversee the financial transactions; 
8. Decision making on the final terms and conditions on the business acquiring contracts; 
9. Decision making on the terms and conditions on the contracts with financial institutions; 
10. Meetings and decision making, approval on the contract based attorneys, CPA's products 
and advices; [sic] 
11. Receive reports from the general manager and general supervision on the rules and 
regulations compliance issues; 
12. Meetings with local government authority on important negotiations involving business 
expansion, acquiring permission issues. 
The petitioner also provides an organizational chart, which shows the beneficiary at the top of the hierarchy as 
the company's president, a general manager as the beneficiary's direct subordinate, and two existing retail 
operations, one containing a store manager, a kitchen manager, and two clerks and the other containing one 
store manager and two store clerks as part of their respective personnel structures. Although four other store 
locations are also included in the chart, all four are projected acquisitions and were not part of the petitioner's 
organization at the time the Form 1-140 was filed. 
Page 5 
When examining 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. 5 204.50)(5). The AAO will then consider this 
information in light of 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. In the present matter, the record fails to convey a detailed description of the job duties the beneficiary 
was assigned to perform within the organizational structure that existed at the time the petition was filed. 
Although a number of the items included in the above restated list conveys a general notion of the 
beneficiary's discretionary authority, the record is unclear as to the beneficiary's actual day-to-day job duties. 
For instance, the petitioner claims that the beneficiary approves the market development plan, sets up the 
business hierarchy, establishes goals and policies, supervises the general manager, and makes decisions 
regarding contracts, finances, and administrative issues. However, the petitioner does not explain what 
specific underlying tasks the beneficiary actually carries out on a daily basis to meet these broad job 
responsibilities. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not 
sufficient. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Furthermore, given that the petitioner's organizational chart does not readily identify any marketing 
personnel, the AAO is unclear as to who within the petitioning organization actually performs the marketing- 
related duties such as preparing the marketing plan for the beneficiary's approval. In other words, while the 
petitioner has adequately established that the beneficiary would enjoy a heightened degree of discretionary 
authority with regard to all financial, administrative, and personnel matters, the record does not establish that 
the petitioner's organizational complexity at the time of filing had expanded to a level that would require an 
employee who would primarily perform tasks within a qualifying managerial or executive capacity. While a 
detailed job description is admittedly one major component in determining the petitioner's eligibility, the 
petitioner is expected to provide sufficient evidence to corroborate the proposed job description. 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 the beneficiary from having to 
primarily perform non-qualifying operational job duties. Thus, even if the petitioner had provided an 
adequate job description, further evidence must be presented in order to establish that the beneficiary merits 
classification as a multinational manager or executive. 
In the present matter, aside from the petitioner's organizational chart, which is an internally created document 
and is not in itself proof of the petitioner's staffing, the petitioner has not provided documentary evidence to 
establish which employees the petitioner employed at the time the Form 1-140 was filed. This information is 
highly relevant and should be examined, as it allows USCIS to gauge the petitioner's capability to relieve the 
beneficiary from having to primarily perform non-qualifying tasks at the time of filing. See Family, Inc. v. 
US. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003). In the present matter, the documentation 
provided does not establish whom the petitioner employed at the time of filing. As such, it is not apparent 
that the petitioner was adequately staffed to carry out the petitioner's daily operational tasks. 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 hislher 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 
Page 6 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). 
Here, the record shows that the petition was filed on January 12, 2009. However, the petitioner has not 
provided documentary evidence to establish that the staffing structure that was in place at the time of filing 
was sufficient to accommodate the beneficiary in a managerial or executive capacity. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter ofSofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Given the deficient job description and the lack of 
evidence establishing that an adequate organizational hierarchy was in place to relieve the beneficiary from 
having to primarily perform non-qualifying tasks, the AAO finds that the petitioner has failed to establish 
eligibility for the immigration benefit sought. Therefore, on the basis of this initial finding, the instant 
petition cannot be approved. 
The second issue addressed in the director's decision is whether the petitioner established that it has the ability 
to pay the beneficiary's proffered wage. 8 C.F.R. 5 204.5(g)(2) states the following, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States employer has 
the ability to pay the proffered wage. The petitioner must demonstrate this ability at the time 
the priority date is established and continuing until the beneficiaq obtains lawful permanent 
residence. Evidence ofthis ability shall be either in the form of copies of annual reports, federal 
tax returns. or audited financial statements. 
As required by the above regulation, the petitioner's ability to pay must be established at the time of filing. As 
the Form 1-140 that is the subject of the current adjudication was filed on January 12, 2009, the petitioner 
must establish its ability to pay as of that date. While the director's discussion was limited to evidence of the 
petitioner's 2007 finances based on the evidence that was available for examination, such evidence, even if it 
established the petitioner's ability to pay in 2007, would be irrelevant for the purpose of establishing 
eligibility in the present matter, which concerns a petition that was filed in 2009. As the petitioner did not 
include relevant documentation to establish its ability to remunerate the beneficiary's proffered wage of 
approximately $39,000 annually at the time of filing, the director properly relied on this deficiency as the 
second of three grounds for denial. 
On appeal, counsel states that the petitioner has requested an extension of time in which to file its taxes for 
2008 and 2009. Counsel asks the AAO to rely on financial statements prepared by the petitioner's accountant 
and to review the 2008 quarterly wage report, which has been provided as supporting evidence. The AAO 
notes, however, that neither document is sufficient to meet the above regulatory requirements. With regard to 
the 2008 quarterly wage report, the AAO refers to the above paragraph explaining that only documentation 
that establishes eligibility at the time of filing is relevant. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971). In fact, the AAO points out that the 2008 second quarterly wage report that the petitioner has 
provided shows that the petitioner paid the beneficiary $6,000 for the quarter, which would total to $24,000 
annually. This amount is considerably lower than the proffered annual wage of over $39,000. Furthermore, 
while the petitioner provided a 2009 income statement and balance sheets, the statement was not audited and 
therefore does not satisfy the documentary requirement expressly discussed at 8 C.F.R. 5 204.5(g)(2). 
Page 7 
In summary, the AAO finds that the petitioner has failed to provide adequate documentation that would enable a 
comprehensive analysis of the petitioner's 2009 finances. As noted above, USCIS cannot approve a petition 
without supporting documentary evidence. See Matter of SofJici, 22 l&N Dec. at 165. As the record in the 
present matter does not include the relevant and necessary documentary evidence establishing the petitioner's 
ability to pay the beneficiary's proffered wage at the time of filing, the instant petition cannot be approved. 
The third issue addressed in the director's decision is whether the petitioner has a qualifying relationship with 
the beneficiary's foreign employer. To establish a "qualifying relationship" under the Act and the regulations, 
the petitioner must show that the beneficiary's foreign employer and the 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 5 203(b)(l)(C) of the Act, 8 U.S.C. § 11 53(b)(l)(C); see also 8 C.F.R. 5 204.5(i)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. 5 204.5(j)(2) states in pertinent part: 
AfJiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
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. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between the United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 1&N Dec. 593; see also 
Matter ofsiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
In the present matter, the director determined that, while the record indicates that the beneficiary owns 100% 
of the petitioning entity, he owns only 40%, or less than a majority, of the foreign entity and that this type of 
ownership breakdown does not amount to an affiliate relationship between the two entities based on the above 
definition. See id. 
On appeal, counsel asserts that, by virtue of owning 40% of the foreign entity, which is a larger share than the 
individual ownership interests of the other two shareholders, the beneficiary is therefore the majority owner of -. 
that entity. Counsel explains that the foreign entity is a family owned business and claims that one of the 
other two shareholders appointed the beneficiary to "execute his rights as a shareholder" by proxy. However, 
the AAO notes that 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 ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The record is devoid of evidence corroborating counsel's claim regarding the beneficiary's control over the 
foreign entity. In order to establish "de facto" control of both entities by an individual, the petitioner must 
provide agreements relating to the control of a majority of the shares' voting rights through proxy agreements. 
Matter of Hughes, 18 I&N Dec. 289, 293 (Comm. 1982). A proxy agreement is a legal contract that allows 
one individual to act as a substitute and vote the shares of another shareholder. See Black's Law Dictionary 
1241 (7th Ed. 1999). Although counsel uses the term "proxy" to establish the means by which the beneficiary 
purportedly acquired control over the foreign entity, a proxy agreement has not been submitted. Furthermore, 
while counsel claims that the foreign company is family owned, the familial relationship does not constitute a 
qualifying relationship under the regulations. The evidence of record indicates that three individuals own the 
foreign company with no single individual owning a majority of the shares. The record further indicates that 
the beneficiary alone owns the petitioning entity in the United States. Accordingly, the two entities are not 
"owned and controlled by the same group of individuals, each individual owning controlling approximately 
the same share or proportion of each entity . . . ." 8 C.F.R. 5 204.56)(2). Therefore, the AAO cannot conclude 
that the beneficiary's foreign and proposed employers are similarly owned and controlled. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 5 204,56)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifying managerial or executive position for at least one out of the three years prior to his entry 
to the United States as a nonimmigrant to work for the same employer. In the instant matter, the record lacks 
a definitive statement detailing the actual daily job duties the beneficiary performed during his employment 
with the foreign entity. As such, the AAO cannot affirmatively conclude based on the documentation of 
record that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. 5 204,5(i)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.5(i)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." In the present matter, 
the petitioner filed the Form 1-140 on January 12, 2009 and therefore must establish that it had been doing 
business as of January 12, 2008. Based on the beneficiary's statements, the petitioner could not obtain a 
federal tax identification number nor open a bank account until February 2008. The record further shows that 
the petitioner did not purchase its first retail operation until April 2008. In light of these facts, the petitioner 
could not have been doing business as of January 2008 and therefore does not meet the initial filing 
requirement specified at 8 C.F.R. 5 204.5(i)(3)(i)(D). 
Page 9 
Lastly, the AAO notes that counsel refers to the petitioner as a "new entity" and to the beneficiary as a 
"transferee" who came to the United States to open a "new office." These terms indicate that counsel 
erroneously relied on the regulations at 8 C.F.R. 5 214.2(1), which pertain to the L-1A nonimmigrant visa 
classification. The regulations that are applicable to the matter at hand do not make a distinction between a 
new office entity and an entity that has been in operation for an extended period of time. As indicated above, 
8 C.F.R. 5 204,56)(3)(i)(D) expressly states that any entity that wishes to classify a beneficiary in the 
immigrant category of multinational manager or executive must establish that it has been doing business for at 
least one year prior to the date the petition was filed. There are no regulations that exempt the petitioner from 
having to meet this initial filing requirement. 
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), afd, 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). Therefore, based on the additional grounds 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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed