dismissed EB-1C Case: Sales And Consulting

(b)(6)
DATE: 
MAY 0 7 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive 
or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 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 inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~4--
'-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
(b)(6)
Page2 
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 is engaged in sales of products and services and 
consulting, and it seeks to employ the beneficiary as its general manager. 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. § 1153(b)(l)(C), as a 
multinational executive or manager. 
On 
April4, 2012, the director denied the petition concluding that the petitioner failed to establish that 
the beneficiary's proposed 
employment with the U.S. entity would be within a qualifying managerial 
or executive capacity. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the 
grounds for challenging the denial. 
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 iimiting 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. 
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Page 3 
The issue that will be addressed in this proceeding calls for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the petitioner submitted 
sufficient evidence to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has 
the authority to hire and 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 ever 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 10l(a)(44)(B) of the Act, 8 U.S.C. § 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 
(b)(6)
Page4 
(iv) receives only general supervtswn or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.P.R. § 204.S(j)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.P.R. § 204.5(j)(5). That being said, however, 
USC IS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the petitioner's business, the employment and remuneration 
of employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
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 specified 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. Champion 
World, Inc. v. INS, 940 F.2d 1533 {Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary 
would be employed in a managerial or executive capacity. 
In a letter dated, March 16, 2011, the petitioner explained that the beneficiary's duties include: 
[The beneficiary] has the position of General Manager where she directs and manages 
all aspects of the petitioner business using her vast experience in the industry. Her 
duties include conducing [sic] general administration affairs of the company, acting 
as a liaison and representative for the company, engaging in long-range planning, 
identifying business opportunities; analyze the market conditions to set strategic 
planning goals, setting quotas, expenses, development of advertising and promoting 
products in the United States and abroad. She defines the products and services to be 
promoted in the United States and Latin America. She [is] also in charge of 
negotiating contracts and business negotiations and obtain new business. 
The petitioner further provided a breakdown of the beneficiary's duties, indicating that she allocates: 
25% of her time to implementing new policies and goals and coordinating the company's sales, 
advertising and overall operations; 20% of her time to directing professional and supervisory 
personnel, including the "Accounting Department, Administrative/Marketing, Import Export and 
Sales Department"; 5% of her time to recruiting, training and firing personnel; 10% of her time to 
implementing provision of services and implementing policies and objectives according to market 
opportunities; 25% of her time to development sales plans and creating advertising and promotional 
programs; and 15% of her time reviewing financial statements and defining the company's products 
and services based on market and market analysis. 
(b)(6)
Page 5 
The petitioner explained that the beneficiary's finance and administrative duties include reviewing 
financial statements, approval of orders and checks, handling cash flow, supervising accounts payable 
and receivable, and supervising invoicing, as well as implementing financial and administrative 
policies. The petitioner specified that the beneficiary's marketing duties including supervising 
purchase orders placed to suppliers by the import/export department, contacting freight company 
agents, reviewing the encoding of export material, reviewing export declarations, revising and 
approving payments for incoming and outgoing freight, and identifying products to be advertised. 
The petitioner also provided an organizational chart which indicated the president supervises the 
beneficiary, who in tum supervises an accountant, an administrative manager/marketing, a sales 
manager and an employee in the import/export department. 
Due to the overly general and vague list of job duties, the AAO is unable to gain a meaningful 
understanding of how much time the beneficiary will spend performing qualifying tasks versus those 
that would be deemed non-qualifying. 
For instance, in describing the beneficiary's position in the United States, the petitioner stated that the 
beneficiary will spend 25% of her time with the "implementation of new policies and goals" and "use 
of [her] overall market kllowledge (operational knowledge international/local) when exercising 
discretion to coordinate the company's sale, advertising and overall operations." The petitioner also 
stated that the beneficiary will "oversee all activities necessary to provide exceptional sale, contract 
negotiation, consulting, maintenance to clientele"; "use of industry knowledge to identify 
opportunities to increase sales"; "implement policies and objectives according to the current market"; 
"develop a plan for sales for [the petitioner's] products and services in the United States"; 
"development and creation of advertising and promotional programs for the petitioner"; and, "review 
financial statements to measure the company's goal achievement, including invoicing, check 
approvals, cash flow, approval order, etc." However, it is unclear which specific tasks actually fall 
within these broad categories. Merely using the term "managing" the operations to describe the 
beneficiary's function does not establish that the supervisory tasks the beneficiary will perform are of 
a qualifying nature. 
The petitioner also provided an organizational chart with all employees supervised by the beneficiary 
and a brief job description for each employee. According to the organizational chart, the beneficiary 
supervises employees in the import/export department, accounting department, sales department and 
administrative/marketing department. The petitioner also stated that three employees supervised by 
the beneficiary are full-time employees and one employee is not. 
The director's decision, dated April 4, 2012, noted a discrepancy with respect to the petitioner's 
number of full-time employees. The director noted that according to the petitioner's tax documents 
and quarterly wage reports, the petitioner employs five individuals but it appears that only two 
individuals work on a full-time basis. It is not clear that the beneficiary's subordinates actually work 
sufficient hours to relieve her from performing the non-qualifying duties associated with the 
company's sales, marketing, finance, administrative and import-export activities that she is claimed to 
supervise and manage. It is incumbent upon the petitioner to resolve any inconsistencies in the record 
(b)(6)
Page6 
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). IfUSCIS fails to believe that a fact stated in the 
petition is true, USCIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b); see also 
Anetekhai v. INS, 876 F.2d 1218, 1220 (5th Cir.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). 
In addition, the petitioner did not provide any evidence that it actually employs the accountant 
independent contractor such as paystubs, a contract agreement or IRS Form 1099. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
As discussed above, the petitioner has not identified employees within the petitioner's organization, 
subordinate to the beneficiary, who would relieve the beneficiary from performing routine duties 
inherent to operating the business. According to the documentation submitted, it appears that the 
beneficiary supervises three employees that are not in full-time positions although the petitioner 
stated that they were full-time employees. A managerial or executive employee must have authority 
over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the 
supervised employees are professionals. See Matter of Church Scientology International, 19 I&N 
Dec. 593, 604 (Comm'r 1988). 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 
Intn'l., 19 I&N Dec. 593, 604 (Comm'r 1988). 
Although counsel suggests that the beneficiary's position may be deemed as that of a function 
manager, counsel cannot merely raise these alternate claims to avoid addressing the non-qualifying 
tasks the beneficiary would have to perform by overseeing the work of non-supervisory, non­
professional, and/or non-managerial employees. 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). Moreover, counsel's assertions are not consistent with the job description and the 
organizational chart that the petitioner has provided in which considerable focus was placed on the 
beneficiary's supervision of subordinate employees. 
Nevertheless, the AAO acknowledges counsel's contention that the beneficiary's position is an 
essential function within the petitioner's organization. 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. § 1101(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 
(b)(6)
Page7 
performed in managing the essential function, 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. See 8 C.F.R. § 204.5(j)(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. at 604. In this matter, the petitioner has not provided evidence that the beneficiary 
manages an essential function. As noted above, the petitioner provided a vague job description that 
does not establish that the beneficiary is primarily performing in a managerial capacity. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the petitioner's 
organizational structure, the duties of the beneficiary's subordinate employees, the presence of other 
employees to relieve the beneficiary from performing operations duties, the nature of the petitioner's 
business, and any other factors that will contribute to a complete understanding of a beneficiary's 
actual duties and role in a business. In the case of a function manager, where no subordinates are 
directly supervised, these other factors may include the beneficiary's position within the 
organizational hierarchy, the depth of the petitioner's operations, the indirect supervision of 
employees within the scope of the function managed, and the value of the budgets, products, or 
services that the beneficiary manages. 
As discussed above, the inconsistent evidence of the employees supervised by the beneficiary does 
not provide sufficient evidence of employees, subordinate to the beneficiary, who would relieve the 
beneficiary from performing routine duties inherent to operating the business. The fact that the 
beneficiary has been given a managerial job title and general oversight authority over the business is 
insufficient to elevate her position to that of a "function manager" as contemplated by the governing 
statute and regulations. As discussed above, the petitioner has not established that the beneficiary's 
duties are primarily managerial in nature, and thus she cannot be considered a "function manager." 
Other than stating that the proposed position will be responsible for managing an unidentified 
essential function, counsel does not provide sufficient explanation or evidence in support of his claim 
that the beneficiary would qualify as a function manager pursuant to section 101 (a)( 44)(A)(ii) of the 
Act. The unsupported statements of counsel on appeal or in a motion are not evidence and thus are 
not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
was employed abroad and that he would be employed in the United States in a qualifying managerial 
or executive capacity and based on these findings, the instant petition cannot be approved. 
(b)(6)
Page 8 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that 
burden. 
ORDER: The appeal is dismissed.