dismissed EB-1C Case: Sales And Marketing

, -; ." .' 
PUBLIC COpy 
DATE: JUN 1 5 2012 
INRE: 
OFFICE: TEXAS SERVICE CENTER 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1 153(b)(I)(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 with 
the field office or service center that originally decided your case by filing a 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)(1)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Maryland corporation that 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)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(C), as a 
multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated January 31, 2010, which included 
relevant information regarding the petitioner's eligibility as well as a description of the beneficiary's proposed 
employment. The petitioner also provided supporting evidence in the form of financial and corporate 
documents as well as documents pertaining to the foreign parent entity. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a notice of intent to deny (NOID) dated April 7, 2010 informing the petitioner of 
various evidentiary deficiencies. The director noted that the job description that was provided in support of 
the petition was overly general and failed to explain what specific job duties the beneficiary would perform. 
The director therefore instructed the petitioner to provide a list of the beneficiary's proposed job duties, the 
percentage of time that would be allocated to each individual duty as well as a description of the job duties 
and educational levels of the beneficiary'S subordinates. The director also asked the petitioner to provide a 
copy of its organizational chart depicting the beneficiary's position, names of all departments, and employee 
job titles. The director asked the petitioner to fully illustrate the management hierarchy showing who 
supervises whom. 
Additionally, the director noted that documents such as the petitioner's tax return and bank statements are not 
sufficient to establish that the petitioner meets the doing business regulatory requirement found at 8 C.F.R. 
§ 204.5(j)(3)(i)(D). Accordingly, the director asked the petitioner to provide additional evidence in the form 
of receipts, invoices, or detailed reports indicating that the petitioner has been engaged in the exchange of 
goods and/or services. 
In response, the petitioner provided a statement from counsel dated May 4, 20 lOin which counsel addressed 
the above issues of concern. With regard to the issue of doing business, counsel stated that the petitioner 
operates as the foreign entity's client service and marketing arm, which includes assisting with the sales and 
delivery of products. Counsel explained that evidence of sales consists of documentation that is generated by 
the foreign parent entity that sells the products and the clients that purchase those products. The director 
summarized the petitioner's role as one in which the petitioner is charged with managing product orders, 
ensuring delivery of the products that have been ordered, and providing clients who purchase the products 
with follow-up services. 
With regard to the beneficiary'S proposed employment, counsel provided several lists of job responsibilities, 
qualifying one list as representing short-term duties and another list as representing long-term duties, with a 
percentage of time accompanying each item. The petitioner provided supporting documentation, including 
IRS Form W-2s issued to four of the petitioner's employees in 2009 and two additional Form W-2s where the 
year of issuance was not identified. The petitioner also provided an organizational chart depicting the foreign 
and U.S. entities' organizational structures. The portion of the chart that depicts the petitioning entity shows 
that the organization is comprised of three departments-business development, customer service, and 
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finance. Although the chart named the beneficiary specifically and depicted her in the position of general 
manager, the portion of the chart that depicted the U.S. entity did not list any position titles or employee 
names. Only the portion of the chart that illustrated the foreign entity's organizational hierarchy listed 
position titles. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary's 
proposed position meets the statutory definition of managerial or executive capacity or that the U.S. entity had 
been doing business in the United States for one year prior to filing the instant petition. The director therefore 
issued a decision dated May 18, 2010 denying the petition. The director found that neither the job description 
nor the evidence of staffing, which were submitted in response to the NOlD, establish that the beneficiary 
would be employed in a qualifying managerial or executive capacity. The director also found that the 
petitioner does not act as an independent entity, but rather functions as a conduit tasked with the duty of 
assisting in the sales of the foreign entity's products. The director focused on counsel's reference to the 
petitioner as a "passive arm" wherein the beneficiary's role is to change the petitioner into an entity capable 
of generating its own sales. 
On appeal, counsel submits a brief in which he disputes the director's decision and provides additional 
information in an attempt to overcome the grounds for denial. 
The AAO has reviewed the record in its entirety and finds that counsel's arguments are not persuasive and fail 
to overcome the denial. All relevant documentation will be fully addressed in the discussion below. 
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)(I )(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 
Page 4 
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 perfonned by the alien. 
The first issue to be addressed in this proceeding is the beneficiary's employment capacity in his proposed 
position with the U.S. entity. The AAO will examine the record to detennine whether the petitioner 
submitted sufficient evidence to establish that it would employ the beneficiary in the United States in a 
qualifying managerial or executive capacity. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § I 101 (a)(44)(A), provides: 
The tenn "managerial capacity" means an assignment within an organization III 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 IOl(a)(44)(B) of the Act, 8 U.S.c. § IIOl(a)(44)(B), provides: 
The tenn "executive capacity" means an assignment within an organization III 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. 
-Page 5 
In exammmg 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. § 204.5GJ(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 (ED.N.Y. 1989), afrd, 905 F.2d 41 (2d. 
Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). 
The AAO will also consider other relevant factors, including the petitioner's organizational hierarchy and 
staffing, as well as the beneficiary's position with respect to subordinate employees. These factors are highly 
relevant as they enable the AAO to assess the beneficiary's role within the petitioning entity and to gauge the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform non-qualifying job 
duties. 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 the 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 enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The AAO finds that neither the beneficiary's job description, nor the facts provided with regard to the 
petitioner's organizational hierarchy, adequately support the claim that the beneficiary would be employed in 
a qualifying managerial or executive capacity. 
Turning first to the beneficiary's job description, counsel indicated that the beneficiary's proposed position 
would be comprised of two types of job duties-those he deemed as short-term duties and those he deemed as 
long-term. In discussing the beneficiary's short-term duties, counsel stated that the beneficiary would allocate 
25% of her time to creating a business plan that would be in alignment with the foreign entity's business plan. 
However, counsel's vague statement fails to explain what specific steps the beneficiary would take in the 
creation of such a business plan or how this broad job responsibility would translate into a task or set of tasks 
that the beneficiary would carry out on a daily basis. Counsel similarly failed to explain what specific tasks 
the beneficiary would perform daily in her effort to establish policies for personnel retention and procedures 
for managing human resources, which would consume 25% of the beneficiary'S time according to counsel's 
job description. While counsel was less vague in stating that 25% of the beneficiary's time would be 
allocated to recruiting and overseeing the expansion of a sales and marketing force, it is unclear how this 
human resources function qualifies under the managerial or executive capacity classification. 
Counsel's claim that the beneficiary would allocate 15% of her time to assigning and enforcing 
responsibilities among middle management cannot be verified, as the organizational chart that was submitted 
in response to the NOID, and which has now been resubmitted on appeal, does not contain the necessary 
information that the director specifically requested when issuing the NOID. Namely, the petitioner's chart 
fails to specify the positions that would comprise the petitioning entity's organizational hierarchy. The AAO 
is therefore unable to determine whom the beneficiary would manage directly and whether such individuals 
are middle management employees as claimed. 
In reviewing the list of the beneficiary's long-term duties, the AAO agrees with the director's finding that the 
items that comprise the list are not primarily tasks that can be deemed as being in a managerial or executive 
capacity. For instance, counsel stated that 20% of the beneficiary's time would be spent overseeing 
Page 6 
departmental execution of business strategies and their compliance with the foreign entity's strategy. Again, 
as noted above, this assertion is not persuasive in light of the deficient organizational chart, which fails to 
identify the positions titles that were filled in the petitioner's organization at the time of filing the petition. 
Counsel goes on to state that the beneficiary would allocate 15% of her time to promoting and representing 
the company at various conventions and trade meetings, 10% to finding potential candidates for mergers and 
acquisitions, 10% to preparing and presenting annual reports to the board of directors, and 5% to negotiating 
with contractors and vendors. While these job duties are certainly indicative of the beneficiary's heightened 
level of discretionary authority, without further explanation, they cannot be deemed as being within a 
managerial or executive capacity. 
Counsel's claim that the beneficiary spends another 10% of her time chairing the company's planning and 
policy-making committees is not persuasive, as the evidence of record does not establish that such committees 
had been created and were already part of the petitioner's organization at the time the petition was filed. It is 
noted that eligibility must be established at the time of filing. 8 C.F.R. § I03.2(b)(l). A petition cannot be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). While it is possible that the petitioner's organization may 
expand after the filing of the Form 1-140, only the circumstances and facts that existed at the time of filing the 
petition can be considered for the purpose of determining the petitioner's eligibility. As noted above, the 
record lacks evidence to establish the positions that were filled or the committees that were created as of the 
date the petition was filed. 
Turning next to an examination of the petitioner's staffing, the petitioner has failed to clarify whom the 
beneficiary would be managing and who would actually perform the petitioner's daily operational tasks that 
are outside the realm of a qualifying managerial or executive capacity. While counsel is correct in stating that 
small organizations are not precluded from seeking the immigrant classification of multinational manager or 
executive for an employee, a small entity with limited staffing is subject to the same burden of proof as is a 
larger entity with a larger staff. The petitioner is not excused from having to establish its ability to relieve the 
beneficiary from primarily performing non-qualifying tasks merely by virtue of being a small entity. The fact 
that an individual manages a small business does not necessarily establish eligibility for classification as a 
multinational managerial or executive capacity within the meaning of section 10I(a)(44) of the Act. The 
petitioner has not established that its organizational complexity and staffing size warranted or were capable of 
supporting the beneficiary in a qualifYing managerial or executive capacity at the time of filing the petition. 
In summary, the above discussion points to significant deficiencies in the evidence and information provided 
that preclude the AAO from concluding that the beneficiary's proposed position would require the beneficiary 
to allocate her time primarily to the performance of tasks that are within a managerial or executive capacity. 
On the basis of this finding, the instant petition cannot be approved. 
The second issue to be addressed in this decision is whether the petitioner provided sufficient evidence to 
establish that it met the filing requirement discussed at 8 C.F.R. § 204.5(j)(3)(i)(D), which 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. § 204.5(j)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." 
Page 7 
The director issued a NOrD pointing out that the tax return and bank statements that the petitioner initially 
submitted in support of the Form 1-140 did not constitute sufficient evidence to show that the petitioning entity 
had been doing business for one year prior to filing the petition. While the director's adverse fmding was 
acknowledged in counsel's response to the NOrD, the petitioner again failed to submit evidence to show that the 
regulatory requirement at 8 C.F.R. § 204.5U)(3)(i)(D) had been met at the time of filing. The director 
concluded that counsel's explanation fell short of the supporting evidence that the director had requested. 
The director also found that the counsel's statements did not overcome the initial adverse finding. 
On appeal, counsel summarizes the events that led up to the denial and asserts that it makes no sense for the 
director to conclude that the petitioner does not engage in the regular, systematic, and continuous provision of 
goods and/or services merely because it does not generate sales. The AAO agrees that the petitioner is not 
required to establish that it engages in sales activities. However, the petitioner must provide sufficient 
evidence of the goods andlor services that it provides. Merely claiming, as counsel has done, that the 
documents and paperwork are generated by the foreign entity in its dealings with clients who actually 
purchase the foreign entity's products is not sufficient and does not relieve the petitioner from the burden of 
having to provide evidence to establish the facts that are being asserted. 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 asserts that the petitioning entity facilitates the distribution of the foreign entity's products and 
subsequently provides customer service once the products have been delivered. It is unclear why the 
petitioner is unable to provide documentation to illustrate the role it has played in relation to the foreign 
entity's products. The petitioner has failed to provide any evidence to show how it generates its income. 
Merely assisting the foreign entity in its main business purpose does not establish that the petitioner is capable 
of carrying on its own business activity as an independent provider of goods andlor services. 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. 1998) (citing Matter ,,{Treasure Craft of 
California, 14 I&NDec. 190 (Reg. Comm. 1972)). 
Accordingly, the AAO finds that the petitioner has failed to provide sufficient evidence to establish that it 
meets the regulatory requirement cited at 8 C.F.R. § 204.5(j)(3)(i)(D). For this additional reason, the instant 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.