dismissed EB-1C Case: Sales

Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLICCOPV 
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 
DATE: MAR 1 5 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 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 
, 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California limited liability company that seeks to employ the beneficiary as its vice 
president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. 
§ 1153(b)(1)(C), as a multinational executive or manager. 
In support of the Form 1-140 counsel for the petitioner submitted a statement dated February 7,2008, which 
included relevant information pertaining to the eligibility criteria required by regulation. The petitioner also 
provided supporting evidence in the form of ownership documents pertaining to the petitioner and the 
beneficiary's foreign employer, the petitioner's corporate and financial documents, and the petitioner's 
organizational chart identifying eight in-house employees and six independent sales agents. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated May 19, 2009 informing the 
petitioner of various evidentiary deficiencies. The director asked the petitioner to submit a definitive 
statement describing the specific job duties the beneficiary performed during his employment abroad and 
those he would perform in his proposed position with the U.S. entity. The director also asked follow-up 
questions regarding documents that pertained to the petitioner's corporate documents and instructed the 
petitioner to provide certain missing tax documents. 
The petitioner's response included a statement from counsel dated June 26,2009 in which counsel provided a 
list of the beneficiary'S proposed job duties and responsibilities. Although counsel generally indicated that 
the beneficiary was employed abroad by the "parent company" as its marketing manager, counsel's statement 
did not include the requested description of the beneficiary's employment abroad. The petitioner did, 
however, supplement the record with the requested tax documents as well as a membership purchase 
agreement showing the sale of ownership interests of one of the petitioner's four members. 
After reviewing the record, the director determined that the petitioner failed to meet certain eligibility 
requirements and therefore issued a decision dated January 25, 2010 denying the petition. The director 
concluded that the petitioner failed to provide persuasive evidence establishing that it has a qualifying 
relationship with the beneficiary's foreign employer or that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity. 
On appeal, counsel submits a brief in which he disputes the director's findings and attempts to provide 
explanations to clarify what the director perceived to be inconsistencies in the documents pertaining to the 
petitioner's ownership and control. Counsel also seeks consideration of a newly submitted statement 
describing the beneficiary's employment with the foreign entity. 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the director's denial. It is 
noted that all of the petitioner's submissions have been reviewed. All relevant documentation that pertains 
directly to the key issue in this matter will be fully addressed in the discussion below. 
Section 203(b) of the Act states in pertinent part: 
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(1) Priority Workers. -- Visas shall fIrst be made available ... to qualifIed immigrants who 
are aliens described in any ofthe 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)(1)(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. 
First, with regard to the petitioner's earlier failure to comply with the RFE request for the benefIciary'S 
foreign job description, the AAO notes that the regulation requires the petitioner to submit additional 
evidence as the director, in his or her discretion, deems necessary. The purpose of the request for evidence is 
to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of 
the time the petition is fIled. See 8 C.F.R. §§ 103.2(b)(8) and (12). Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
Where, as here, a petitioner was put on notice of a defIciency in the evidence and was given an opportunity to 
respond to that defIciency prior to the issuance of the denial, the AAO will not accept evidence offered for the 
first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 
I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should 
have submitted the documents in response to the director's request for evidence. !d. Under the circumstances, 
the AAO need not and does not consider the sufficiency of the job description that the petitioner now submits 
on appeal. Consequently, the appeal will be dismissed based on the petitioner's failure to establish that the 
benefIciary was employed abroad in a qualifying managerial or executive capacity. 
The remaining issue in this proceeding is whether the documentation submitted by the petitioner is sufficient 
to establish that 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 that they are related as a "parent and subsidiary" or as "affiliates." See generally 
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§ 203(b)(1)(C) of the Act, 8 U.S.c. § 1 1 53(b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of 
the tenns "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate 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; 
* * * 
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. 
In the supporting statement dated February 7, 2008, counsel referred to two undated proxy agreements to 
establish that the beneficiary'S foreign employer controls the petitioning entity and that the beneficiary 
ultimately owns and controls both entities. The petitioner also provided both of the undated proxy 
agreements as corroborating evidence. The proxy regarding the foreign entity indicates that _ 
•••• appointed the beneficiary as proxy of his 34% ownership interest in the Indian partnership. 
Counsel contended that the 34% proxy vote, combined with the beneficiary'S actual 37% ownership, gave the 
beneficiary control of the foreign entity. The proxy regarding the U.S. entity, also undated, indicated that two 
out of the four owners of the petitioning entity gave the beneficiary control of their respective membership 
interests, thus indicating that in addition to control of his original 25% membership units, the beneficiary also 
had control of an additional 50% membership units acquired by proxy from two of the petitioner's members. 
The petitioner also provided a mem on March 15, 2005, showing that 
owned 30% of the petitioning entity, 
_ each held a 25% ownership interest. 
In response to the RFE, the petitioner submitted additional evidence in the form of a sales and purchase 
agreement, dated July 5, 2007, in which agreed to sell his 25% ownership interest in the 
petitioning entity to the purchasers, whom the agreement identified as the three remaining owners of the 
petitioning entity, in exchange for $100,000 as consideration. As later pointed out in the director's denial, the 
petitioner failed to provide any documentation to show how 25% ownership interest was 
redistributed among the three remaining owners, i.e., the purchasers. 
The petitioner also provided its 2006 and 2007 federal tax returns. Schedule K of both tax returns identified 
only two partners, who together had a 100% ownership interest. In the 2007 tax return, Schedule K shows 
that while and the beneficiary commenced the year with a 75% and a 25% ownership 
distribution, respectively, each ended the year equally owning 50% of the petitioning entity. No mention was 
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made 0 the above mentioned purchase agreement listed as one of three remaining 
owners in 2007. 
In his discussion of the petitioner's submissions, the director questioned the validity of the submitted proxies 
pointing to various anomalies and inconsistencies. Specifically, the director pointed out that the proxy 
agreements the petitioner submitted were not dated and that the foreign entity's proxy agreement was not 
formatted in a manner that was similar to other state-approved partnership documents that were previously 
submitted. The director further questioned why the proxy agreement pertaining to the U.S. entity referred to 
the petitioner's three owners as collectively owning only 75% of the petitioning entity when the purchase 
agreement referenced above purported to redistribute a 20% interest that previously belonged to a fourth 
partner among the three remaining partners. The director correctly surmised that if the 20% interest that was 
sold was meant to be redistributed among the three remaining partners, then. those three partners should 
cumulatively own 100% of the petitioning entity. Regardless, the AAO points out that all of the above is 
entirely inconsistent with the petitioner's 2006 and 2007 tax returns, both of which list the same two 
individuals as the petitioner's only two partners with an ownership interest. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Although counsel attempts to resolve the inconsistencies cited in the director's decision, the AAO fmds that 
counsel's statements on appeal introduce new and uncorroborated information that gives cause to further 
question the validity ofthe petitioner's claims. Specifically, in his effort to clarify the statements made in the 
petitioner's proxy agreement in which the petitioner's three owners are said to collectively own 75% of the 
petitioner, counsel contends that 25% ownership interest was allocated to the foreign 
entity where the beneficiary was previously employed and which he purports to control. However, counsel's 
explanation is based on new information that was not previously introduced and which is not corroborated by 
any of the documentation that the petitioner has submitted thus far. 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 of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). Not only are counsel's assertions on appeal not supported by any of the submitted evidence, 
but they are actually contrary to statements that were previously made. Thus, counsel introduces information 
that creates yet another inconsistency, which must be resolved and explained in order to determine who in fact 
owns and controls the petitioning entity. 
With regard to the proxy agreement which purports to affect control of the foreign entity in India, the AAO 
finds that it cannot make an assessment as to the validity of this document. In immigration proceedings, the 
law of a foreign country is a question of fact which must be proven if the petitioner relies on it to establish 
eligibility for an immigration benefit. Matter of Annang, 14 I&N Dec. 502 (BIA 1973). In this matter, only 
Indian law can dictate whether the proxy agreement that has been presented as a supporting document is a 
valid and legally binding document. The burden is on the petitioner to establish which foreign legal 
requirements apply in this matter and to determine that the proxy agreement presented meets those 
requirements and is therefore a valid document. The petitioner in this case has not provided the necessary 
supporting documentation. 
, .. 
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In light of the anomalies and documentary deficiencies described above, the AAO finds that the petitioner has 
failed to establish by a preponderance of the evidence that a qualifYing relationship exists between the 
petitioner and the beneficiary's foreign employer. On the basis of this second adverse conclusion, the instant 
petition cannot be approved. 
As a fmal note, counsel makes reference to the petitioner's current approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, each 
nonimmigrant and immigrant petition is a separate record of proceeding with a separate burden of proof. As 
such, each petition must stand on its own individual merits. US. Citizenship and Immigration Services 
(USCIS) is not required to assume the burden of searching through previously provided evidence submitted in 
support of other petitions to determine the approvability of the petition at hand in the present matter. The 
approval of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant petition 
filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior 
nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; lKEA US 
v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 
(E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same deficient supporting 
evidence that is contained in the current record, such approvals would constitute material and gross error on 
the part of the director. The AAO is not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that 
USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 US. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 US.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.