dismissed EB-1C Case: Retail Trade

U.S. Department of IIomeland Security 
20 Mass. Ave.. N.W.. Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
PUBLIC COPY 
 and Immigration 
identifying data deleted to 
prevent dearly unwarranted 
invasion of personal privacy 
FILE: Office: TEXAS SERVICE CENTER Date: APR 2 4 ZOO7 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1 153(b)(l)(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. 
/;i&$&5~- 
Robert P. iemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the instant immigrant visa petition to classify the beneficiary as a multinational manager 
or executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1 153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Texas that claims to 
be engaged in retail trade and investment. The record demonstrates that at the time of filing this petition, the 
petitioner was operating a gasoline and convenience store'. The petitioner seeks to employ the beneficiary as 
its chief executive officerlpresident. 
The director denied the petition concluding that the petitioner had not demonstrated that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, counsel for the petitioner contends that Citizenship and Immigration Services (CIS) did not 
properly review the record or consider the beneficiary's employment as a function manager in its denial of the 
petition. Counsel submits a brief in support of the appeal. 
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 or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 
Evidence of the petitioner's operations at the time of filing includes a July 3 1, 2003 commercial business and 
family residential contract to purchase property identified as 
 financial statements and 
federal income tax returns identifying the petitioner as a gasoline 
 store, and invoices related 
to the petitioner's purchase of convenience items and its maintenance of gasoline pumps. 
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 issue in the instant proceeding is whether the beneficiary would be employed by the United States entity 
in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. $ 1 10 1 (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) 
 Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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 1 1Ol(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. 
The petitioner filed the Form 1-140 on September 29, 2005 noting the beneficiary's proposed employment as 
the company's chief executive officerlpresident. In an appended letter, dated August 4, 2005, the petitioner 
identified its operations as a "grocery/convenience store," in which it employed three workers. The petitioner 
Page 4 
stated that in his role as chief executive officerlpresident of the United States organization, the beneficiary is 
responsible for the company's "overall management and direction." The petitioner provided the following 
outline of the beneficiary's associated "executive" job duties: 
Direct and coordinate marketing and business development activities of the 
organization 
Formulate and administer company policies 
In consultation with the management and the parent company in India, develop long- 
range goals and objectives of the company 
Be responsible for corporate planning, general administration, marketing-sales and 
purchasing activities for the subsidiary 
Oversee new investment activities, including reviewing proposals and exploring other 
retail and convenience store businesses 
Direct and coordinate activities of employees in the operations, purchasing and 
marketing departments for which responsibility is delegated to further attainment of 
goals and objectives 
Oversee the financial and accounting activities of the organization, including 
budgeting, tax and regulatory matters 
Review and analyze activities, costs, operations, and forecast data to determine 
progress toward stated goals and objectives 
Discuss with management and employees to review achievements and discuss required 
changes in goals or objectives of the company 
The petitioner attached a "functional flow chart" depicting the beneficiary as overseeing: marketing and 
business development; finance and accounting functions; and the goals and policies of both the United States 
and foreign entities. The petitioner did not address the positions occupied by the additional two workers 
claimed by the petitioner to be employed on the filing date. 
The director issued a request for evidence on December 22, 2005, requesting that the petitioner submit 
"[aldditional details" of the beneficiary's proposed position, including his "daily duties" and the percentage of 
time devoted to each, as well as an organizational chart depicting all employees by name and job title, and the 
tasks performed by each. 
Counsel for the petitioner responded in a letter dated March 13, 2006 contending that the beneficiary's 
employment in an executive capacity was demonstrated through previously submitted documentation such as 
the business and property contract, deed of trust, and real estate lien note signed by the beneficiary on behalf 
of the petitioner and lawfully binding the company. As evidence of the beneficiary's purported executive 
employment, counsel also pointed out the beneficiary's "executive decision" to replace nonfunctional gasoline 
pumps at the petitioner's store, which had resulted in decreased sales during 2005. Counsel referenced the 
beneficiary's decision in March 2006 to expand the petitioner's operations to include overseeing of a second 
convenience store. The AAO notes that the actions and decisions of the beneficiary subsequent to the instant 
filing, as well as the petitioner's ensuing business operations, will not be considered in the analysis herein. A 
petitioner must establish eligibility at the time of filing. The visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter ofMicheIin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Mutter of Katigbak, 14 I&N Dec. 
45,49 (Comm. 1971). 
Page 5 
In response to the director's request for an additional description of the beneficiary's daily job duties, counsel 
submitted essentially the same outline of job responsibilities as provided in the original filing, but noted the 
amount of time the beneficiary would dedicate to each. As the job description is already part of the record, 
and has been cited above, it will not be entirely repeated herein. As evidence of the petitioner's staffing 
levels, counsel submitted copies of the petitioner's 2005 Internal Revenue Service (IRS) Forms W-2, Wage 
and Tax Statement, explaining that the petitioner's staffing "took a slow-down for most of 2005 because of 
equipment problems." 
Counsel offered an organizational chart of the United States entity, in which the beneficiary's subordinate 
employees were identified as occupying the positions of: finance manager; store manager; financelaccount 
manager; deli manager; cook; cashier; stocker; and independent labor. Counsel stated that the lower-level 
personnel, such as the cashier and stocker, will perform the "ministerial tasks of the business," while the 
beneficiary will exercise discretion over their day-to-day activities. The AAO notes that based on counsel's 
March 13, 2006 letter, the expanded workforce depicts the petitioner's staff at the time of his response rather 
than on the filing date, and therefore, is not probative of the beneficiary's employment capacity on the date the 
petition was filed. See Matter of Katigbak, 14 I&N Dec. at 49 (finding that a petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts). While counsel provided quarterly wage reports filed by the 
petitioner during 2004, he did not submit copies of the company's wage report for the quarter ending 
September 30, 2005, which would document its workers during the month the petition was filed. 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). 
Counsel further contended that the beneficiary's discretion over the company's day-to-day activities 
establishes his role as managing "the essential function of Presidency at the organization." Counsel outlined 
the statutory requirements of a function manager, and referenced an earlier unpublished AAO decision, in 
which the AAO recognized as a manager or executive the vice-director of a twelve-year old organization that 
employed only one other worker. Counsel challenged that the petitioner's three-year-old business, in which it 
"is still expanding operations" should not be viewed negatively on the beneficiary's role as a function 
manager. Counsel stated: 
[Tlhe evidence demonstrates that the [bleneficiary's proposed permanent duties are 
primarily executive. The real estate decisions, financing, and executive approvals all bear 
the [bleneficiary's signatory approval and correspondingly indicate his executive authority 
and decision-making duties. Furthermore, the [bleneficiary's subordinates are professionals 
who function over the day-to-day ministerial tasks of the business operation, while 
allowing the [bleneficiary to devote his time to his executive duties and functions. 
The director issued a decision dated July 28, 2006, concluding that the petitioner had not demonstrated the 
beneficiary's proposed employed by the United States entity in a primarily managerial or executive capacity. 
The director noted that the petitioner's initial filing was insufficient in that it failed to "clearly convey an 
understanding that the beneficiary would devote the primary part of his assignment to qualifying duties," or 
that the "firm's staffing will be of sufficient size and composition to support an executive or managerial 
position," thus resulting in her request for an additional job description. The director noted that following the 
Page 6 
petitioner's response, the "description of the beneficiary's assignment and those of his subordinate staff in 
light of the petitioner's size and operation" did not demonstrate that the beneficiary would be employed by the 
petitioner in a primarily managerial or executive capacity. The director also considered the beneficiary's 
designation as "director" in an accompanying letter, stating that the position of director was not identified on 
the company's organizational chart. The director further stated that the salaries paid to the workers employed 
subordinate to the beneficiary were not commensurate with the typical salary paid to a professional. 
Consequently, the director denied the petition. 
Counsel for the petitioner filed a timely appeal on August 28,2006, and subsequently submitted an appellate 
brief, dated September 21, 2006, in which he claimed that CIS "lacks legal and factual support for its 
[dlecision [to deny the immigrant visa petition]." Counsel contends that CIS "[did not] overcome the heavy 
burden it bears before it can rebut the preponderance of the evidence in favor of the petitioner," stating that 
the job offer furnished by the petitioner demonstrates that the beneficiary's job duties would be primarily 
managerial or executive in nature. 
Counsel emphasizes the concept of function manager recognized in the statutory definition of "managerial 
capacity," and cites several unpublished decisions by the AAO, noting its acknowledgement of functional 
managers in organizations with a small staff or where the beneficiary was the sole employee. Counsel 
contends: 
Petitioner, upon request by [CIS], provided a description of the beneficiary's duties 
regarding real estate decision, financing, hirelfire authority, goal setting, policy-making and 
discretionary decision-making authority. As such, all elements of the functional manager 
have been met. The nature of the business may require the manager or executive to 
perform additional tasks on a temporary and occasional basis. [CIS] misunderstood the 
beneficiary's management capacity. [CIS] failed to acknowledge the concept of functional 
management and disregarded the overall stage of development of petitioner. 
Counsel claims that CIS improperly focused on the size and composition of the petitioner's staff in denying 
the petition, and challenges that CIS "cannot infer the executive nature of the beneficiary on the basis of the 
number of subordinate payrolled and contract employees." Counsel states that the concept of function 
manager is not based on the employment of a certain number of subordinate employees, and stresses that the 
position of manager or executive is not restricted to those supervising a large number of employees. Counsel 
contends that CIS ignored the petitioner's "early stage of development," and the fact that the petitioner 
"suffered some setbacks in the initial stages of operations." Counsel states that because of these factors, the 
petitioner did not require large staffing levels. Counsel notes the petitioner's sound business decision to 
restrict its staff to only those "who are absolutely essential to the operation of the business," and contends that 
"[CIS] cannot use the staffing of the company as the sole basis for denial." 
Counsel addresses additional observations made by the director, such as the fact that the petitioner's address is 
the same as that of its gasoline and convenience store, claiming that the petitioner's location is not 
determinative of the nature of its business. Counsel also states that the absence of the position of director on 
the company's organizational chart is not relevant to determining the nature of the beneficiary's employment. 
Whereas it appears that the director was merely noting an inconsistency in the beneficiary's job title, his 
statements with respect to the petitioner's business address will be withdrawn. The location of the petitioner's 
business premises is not relevant to the analysis of the beneficiary's employment capacity. 
Counsel further challenges the director's finding that the compensation paid to the beneficiary's subordinates 
is not in line with the salaries paid to "professionals." Counsel states that neither the Act nor accompanying 
regulations require the petitioner "to pay a specific salary to professionals," and rejects the analysis as an 
improper basis for the petition's denial. 
Upon review, the petitioner has not demonstrated that the beneficiary would be employed by the United 
States entity in a primarily managerial or executive capacity. 
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. § 204.5(i)(5). 
The description offered of the beneficiary's position in the United States company is not sufficient to 
demonstrate his proposed employment in a primarily managerial or executive capacity. Although provided 
with two opportunities prior to the instant appeal to supplement the record with specific evidence of the 
beneficiary's daily managerial or executive job duties, the petitioner twice offered essentially the same broad 
statements of the beneficiary's job responsibilities. The petitioner's claims that the beneficiary would direct 
the marketing, corporate planning, general administration, sales, purchasing, and investment activities of the 
petitioning company, as well as formulate policies and review "activities, costs, [and] operations," fall 
significantly short of establishing the beneficiary's purported employment as a manager or executive. The 
petitioner failed to identify the specific managerial or executive tasks that the beneficiary would perform on a 
daily basis, particularly with respect to the company's "corporate planning, general administration, marketing- 
sales, and purchasing" functions, for which the beneficiary was merely identified as "be[ing] responsible." 
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 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, I108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The AAO emphasizes the petitioner's failure to provide a thorough description of the beneficiary's proposed 
employment following the director's request. If the job description initially offered by the petitioner 
constituted a sufficient depiction of the beneficiary's employment, the director would not have requested 
"additional details" of the beneficiary's specific job duties. The purpose of the request for evidence is to elicit 
further information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 
5 103.2(b)(8). A petitioner's failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
The fact that the petitioner documented the amount of time the beneficiary would devote to each job 
responsibility is irrelevant to the instant analysis, as the petitioner's generalized and conclusory claims do not 
adequately demonstrate the beneficiary's employment in a managerial or 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 speczfied 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. Chanzpion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 
Cir. July 30, 1991). The petitioner has not identified specific high-level managerial or executive job duties to 
be performed by the beneficiary. The beneficiary's title as chief executive officer-president, by itself, is not 
sufficient to establish his employment in a qualifying managerial or executive capacity. Going on record 
Page 8 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Moreover, the remainder of the record does not support the petitioner's vague claims of the managerial or 
executive authority held by the beneficiary. For example, the petitioner stated that the beneficiary would 
oversee the company's financial and accounting activities, and purchasing and marketing departments. Yet, 
the petitioner has not named any workers employed for the purpose of performing its purchasing or marketing 
functions, or identified the existence of its purported marketing and purchasing departments on its 
organizational chart. In addition, while the petitioner noted the employment of finance and account managers 
on its organizational chart, there is no evidence that these individuals were employed at the time the petition 
was filed. As mentioned previously, the record is devoid of corporate documentation, such as the petitioner's 
September 30, 2005 quarterly wage report or payroll records, demonstrating which two workers, other than 
the beneficiary, were employed on the filing date. The petitioner also suggested its use an outside accountant 
to perform its monthly accounting functions during 2005.~ However, the limited amounts of $125 for 
professional fees and approximately $243 for contract services3 paid by the petitioner in 2005 undermine the 
petitioner's claim that it received monthly accounting services from an outside source. If CIS fails to believe 
that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 9 
11 54(b); see also Anetekhai v. I.N.S., 876 F.2d 121 8, 1220 (5th (3.1989); Lu-Ann Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Counsel correctly observes on appeal that 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 § 10 1 (a)(44)(C) of the Act, 8 U.S.C. § 1 101(a)(44)(C). However, it is appropriate for CIS 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. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
Here, at the time of filing, the petitioner claimed to employ the beneficiary and two additional workers, whose 
positions have not been identified and whose employment has not been documented. The AAO notes, in 
particular, the IRS Forms W-2 issued by the petitioner for the year 2005. Besides the beneficiary, the 
company's employees received $1500 or less in compensation during 2005. The Forms W-2, while not 
representative of the exact periods during 2005 that each worker was employed, strongly suggest that each 
worked for the petitioner on a very limited or short-term basis. 
Taken as a whole, the record severely undermines counsel's claims that the petitioner employed lower-level 
workers to perform "the day-to-day ministerial tasks of the business operation, while allowing the 
[bleneficiary to devote his time to his executive duties and functions." As a three-year old company operating 
The record contains a copy of a March 14, 2006 letter, in which a certified public accountant claimed to 
render monthly accounting services to the petitioner in 2005 at a fee of $125.00 per month. 
' As represented on the petitioner's January through December 2005 unaudited Statement of Revenues and 
Expenses as expenses incurred by company. 
a gasoline and convenience store, it is reasonable that the petitioner would both employ and require the 
services of employees other than the beneficiary. While the petitioner claimed to employ two additional 
workers on the filing date, it is the responsibility of the petitioner to accurately depict its staffing levels on the 
date of filing and clearly demonstrate that its reasonable needs are met through the employment of its staff. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJii, 22 I&N Dec. at 165. 
The record as presently constituted, does not establish that someone other than the beneficiary would perform 
the day-to-day, non-qualifying tasks related to the petitioner's accounting, financial, marketing, sales, 
inventory, purchasing, and administrative functions. Clearly, the petitioner's reasonable needs are not met 
through the employment of its purported three-person staff. 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 
Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
As counsel stresses on appeal, the size of the petitioner's staff cannot be the sole basis for denying an 
immigrant visa petition for a multinational manager or executive. The AAO recognizes that the reasonable 
needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the 
claimed managerial or executive duties. The petitioner must still establish that the beneficiary is to be 
employed in the United States in a primarily managerial or executive capacity, pursuant to sections 
101(a)(44)(A) and (B) or the Act. As discussed above, the limited and vague claims offered by petitioner fail 
to satisfy this essential element of eligibility. 
Counsel also claims that the beneficiary is managing professionals, and that CIS should not consider the 
amount of compensation paid to the subordinate employees in determining their positions as professionals. In 
evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 10l(a)(32) of the Act, 8 U.S.C. 9 1 101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 81 7 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, l l I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. The possession of a bachelor's 
degree by a subordinate employee does not automatically lead to the conclusion that an employee is employed 
in a professional capacity as that term is defined above. 
In the instant case, the AAO need not consider the above analysis, as the record does not distinguish which 
employees were even employed at the time of filing. Without additional information as to who the AAO 
should consider in its analysis, the petitioner's claim of employing subordinate professionals is moot. The 
AAO notes, however, that the wages paid to subordinate employees, while suggestive of their full-time or 
part-time employment, is not a consideration in the review of whether the employees are "professionals." The 
director's comments which respect to the subordinates' salaries are therefore withdrawn. 
Page 10 
Moreover, the record does not corroborate counsel's claim that the beneficiary would be employed as a 
function manager. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101 (a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary 
is managing an essential function, the petitioner must furnish a written job offer that clearly describes the 
duties to be performed, i.e. identify the function with specificity, articulate the essential nature of the function, 
and establish the proportion of the beneficiary's daily duties attributed to managing the essential function. 8 
C.F.R. 5 204.5G)(5). In addition, the petitioner's description of the beneficiary's daily duties must 
demonstrate that the beneficiary manages the function rather than performs the duties related to the function. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 
1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988)). 
Here, counsel claims that the beneficiary is managing the "presidency" function. Again, the record is devoid 
of specific detail of what exact managerial or executive job duties the beneficiary would perform in relation to 
the presidency function. Counsel references corporate documentation bearing the beneficiary's name on 
behalf of the organization; however, these documents do not demonstrate that the beneficiary would primarily 
manage a function of the company. Rather, as explained in detail above, the record, as presently constituted 
substantiates a finding that the beneficiary would be primarily performing the daily non-managerial and non- 
executive tasks associated with each of the company's functions. The corporate documents signed by the 
beneficiary are not sufficient to overcome this finding. In this matter, the petitioner has not provided 
evidence that the beneficiary manages an essential function. 
The AAO acknowledges counsel's references to several unpublished AAO decisions. 
 While 8 C.F.R. 
5 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the administration of 
the Act, unpublished decisions are not similarly binding. Moreover, as the record as whole demonstrates the 
beneficiary's responsibility to perform primarily non-managerial and non-executive tasks of the organization, 
the facts in the present case cannot be deemed analogous to those in the cited decisions. 
Counsel emphasizes on appeal the petitioner's burden of proof in establishing the beneficiary's eligibility for 
the requested immigrant visa classification. The "preponderance of the evidence" standard requires that the 
evidence demonstrate that the applicant's claim is "probably true," where the determination of "truth" is made 
based on the factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 
1989). In evaluating the evidence, Matter of E-M- also stated that "[tlruth is to be determined not by the 
quantity of evidence alone but by its quality." Id. Thus, in adjudicating the application pursuant to the 
preponderance of the evidence standard, the director must examine each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the evidence, to 
determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible 
evidence that leads the director to believe that the claim is "probably true" or "more likely than not," the 
applicant or petitioner has satisfied the standard of proof. See US. v. Cardozo-Fonsecu, 480 U.S. 421 (1987) 
(defining "more likely than not" as a greater than 50 percent probability of something occurring). If the 
director can articulate a material doubt, it is appropriate for the director to either request additional evidence 
Page 1 1 
or, if that doubt leads the director to believe that the claim is probably not true, deny the application or 
petition. 
Here, the submitted evidence is not relevant, probative, and credible. 
 The petitioner's claims that the 
beneficiary would primarily manage subordinate managers and functions are not corroborated by independent 
and objective evidence demonstrating the employment of a subordinate staff that would relieve the 
beneficiary from performing the non-qualifying tasks of the gasoline and convenience store. In fact, evidence 
such as the petitioner's year 2005 IRS Forms W-2 and financial statements undermine and contradict the 
petitioner's representations of employing a subordinate staff or utilizing independent contractors. Doubt cast 
on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency 
of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). 
The petitioner has failed to establish that the beneficiary would be employed by the United States entity in a 
primarily managerial or executive capacity. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, an additional issue is whether the beneficiary was employed by the 
foreign organization in a primarily managerial or executive capacity for at least one year during the three 
years preceding his entrance into the United States as a nonimmigrant. 
The petitioner claimed in the August 4, 2005 letter submitted with its initial filing that the beneficiary worked 
for the foreign entity from 19~4~ through 1987, and following a period of time in the United States, returned 
to work for the foreign organization. The record indicates that the beneficiary entered the United States in 
May 2002 as a B-2 visitor. Form G-325A, Biographic Information, submitted in connection with the 
beneficiary's 1-485 application for permanent residence identifies the beneficiary's dates of employment with 
the foreign entity from January 1999 through December 2001. In light of the conflicting representations of 
the beneficiary's foreign employment, and without payslips or payroll records documenting the beneficiary's 
periods of employment overseas, it is questionable whether the beneficiary was employed by the foreign 
organization for the requisite period of time. 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. at 591-92. 
Similarly, the description of the beneficiary's employment in the foreign entity, which essentially mirrors the 
beneficiary's job responsibilities in the United States, does not identify the specific managerial or executive 
job duties performed by the beneficiary as the organization's executive officer. The offered job description 
contains such vague representations as "direct and coordinate overall activities," "administer organizational 
policies," "[dlevelop long range goals and objectives," and review "activities, costs, operations, and forecasted 
data." The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. at 1108. Additionally, it is not clear whether the March 3 1, 2005 organizational chart of the 
foreign partnership is representative of the staffing levels maintained by the organization during the 
beneficiary's purported overseas employment. As a result, it is questionable whether the beneficiary was 
' The AAO notes that according to the March 3, 1999 foreign partnership deed, the overseas partnership was 
initially formed on December 2, 1985, subsequent to the beneficiary's claimed start date with the foreign 
organization. 
Page 12 
relieved from primarily performing non-managerial or non-executive tasks of the organization. Again, 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 Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
The record as presently constituted does not demonstrate that the beneficiary was employed by the foreign 
organization in a primarily managerial or executive capacity for at least one year during the three years 
preceding his entrance into the United States as a nonimmigrant. For this additional reason, the petition will 
be denied. 
An additional issue not addressed by the director is whether the petitioner demonstrated at the time of filing 
the immigrant visa petition its ability to pay the beneficiary his proffered annual salary of $30,000. 
The regulation at 8 C.F.R. fj 204.5(g)(2) states: 
Any petition filed by or for any 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 beneficiary obtains lawful 
permanent residence. Evidence of this ability shall be either in the form of copies of annual 
reports, federal tax returns, or audited financial statements. 
(Emphasis added). 
In the instant matter, the petitioner indicated on the Form 1-140 and in its August 4, 2005 letter that the 
beneficiary would receive an annual salary of approximately $30,000. However, the petitioner's Internal 
Revenue Service (IRS) Form W-2 for the year 2005 indicates that the beneficiary received an annual salary of 
$18,000, or $12,000 less than his proposed salary. The petitioner presented its 2005 statement of revenue and 
expenses that reflects net income in the amount of approximately $35,000. The AAO notes, however, that the 
petitioner's financial statements are not audited. The regulation at 8 C.F.R. fj 204.5(g)(2) requires that the 
petitioner submitted audited financial statements as evidence of its ability to pay the beneficiary's proposed 
salary. Here, the record is devoid of supplemental documentation, such as the petitioner's 2005 federal 
income tax return or annual report, demonstrating its ability to pay the beneficiary's proffered wages. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). For this additional reason, the petition 
will be denied. 
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 Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The AAO recognizes that CIS previously approved an L-1A nonimmigrant petition filed by the petitioner on 
behalf of the beneficiary. It must be noted that many 1-140 immigrant petitions are denied after CIS approves 
prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 2.5 (D.D.C. 
2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1 999); Fedin Brothers Co. Ltd. v. Savn, 
724 F. Supp. 1103 (E.D.N.Y. 1989). Examining the consequences of an approved petition, there is a 
significant difference between a nonimmigrant L-1A visa classification, which allows an alien to enter the 
United States temporarily, and an immigrant E-13 visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
CJ: $$ 204 and 214 of the Act, 8 U.S.C. $9 1154 and 1184; see also fj 316 of the Act, 8 U.S.C. fj 1427. 
Because CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Znc. v. INS, 293 F. Supp. 2d 
at 29-30; see also 8 C.F.R. tj 214,2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L-1A petition's validity). Furthermore, each nonimmigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof; each petition must stand on its own individual merits. The 
approval of a nonimmigrant petition in no way guarantees that CIS will approve an immigrant petition filed 
on behalf of the same beneficiary. Based on the lack of evidence of eligibility in the current record, the 
director was justified in departing from the prior nonimmigrant petition approval and denying the immigrant 
petition. 
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. fj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.