dismissed EB-1C Case: Shoe Import/Export

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: SE? 1 8 2006 
SRC 02 039 50379 
IN RE: 
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. § 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. 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based petition and two 
subsequently filed motions to reconsider. The director certified her decision to the Administrative Appeals 
Office (AAO) for review. The director's decision will be withdrawn in part and affirmed in part. The petition 
will be denied. 
The petitioner is a limited liability company organized in the State of Florida in June 1998. It imports, 
exports, and sells shoes. 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 April 9, 2003, the director determined without requesting additional evidence that: (1) evidence in the record 
showed that the petitioner and the foreign entity were inactive for a period of time which resulted in a lack of 
qualifying relationship; (2) the U.S. petitioner is a partnership, thus is not a separate entity and not eligible to file 
for this visa classification; (3) the record did not persuasively demonstrate that the beneficiary would be 
performing in a managerial or executive capacity; (4) the record did not persuasively show that the beneficiary 
had been employed for one year with a foreign qualifying entity in a managerial or executive position; (5) the 
petitioner's 2000 Internal Revenue Service (IRS) Form 1065 contained an error and did not demonstrate the 
petitioner's ability to pay the beneficiary the proffered annual wage of $60,000; and, (6) the record did not 
demonstrate that either the foreign entity or the petitioner had been doing business for the year prior to filing the 
petition. The director concluded that as there was evidence of ineligibility in the record that the petitioner could 
not overcome, a request for Mher evidence would be inappropriate. The director determined that the record did 
not establish eligibility for the classification sought and that the petition could not be approved. 
On May 9, 2003, counsel for the petitioner submitted a Form I-290B and a Motion to Reconsider or in the 
Alternative ~~~ea1.l On August 6, 2003 the director issued a decision on petitioner's motion to reconsider. The 
director noted counsel's assertion that Citizenship and Immigration Services (CIS) denied the petition without 
giving the petitioner an opportunity to supplement the record with additional evidence or clarify the information 
provided in the initial filing. Citing 8 C.F.R. § 103.2(b)(8), the director observed that when the evidence in the 
record shows ineligibility, CIS is not required to request further evidence. The director noted that the decision 
was denied for multiple reasons, but would address only one in the motion. The director determined that the 
petitioner was a limited liability partnership, and thus was not a separate legal entity that could petition for the 
beneficiary. The director determined that the beneficiary had petitioned for herself and that the regulations do not 
permit self-petitioning for this visa classification. The director concluded that the denial of the petition was 
"statutory," a request for further evidence was not required, and the petition could not be approved. 
1 
 Counsel for the petitioner identified the matter on the face of the Form I-290B with the beneficiary's 
A number and a receipt number for a Form 1-765. Counsel also indicated that the motion to reconsider was 
for a Form 1-129, nonimmigrant petition. Counsel when contacted by the director resolved the confusion 
indicating that the motion to reconsider was in fact for the Form 1-140 that is the subject of this certification. 
On August 20, 2003, counsel for the petitioner submitted a motion to reconsider, asserting that the documents 
submitted with the Form 1-140 petition and in support of the previous motion clearly establish that the petitioner 
is a limited liability company, not a limited partnership. 
On February 4, 2004, the director affirmed her decision to deny the petition, stating the same six grounds for 
denial cited in the April 9,2003 decision, and certified her decisions on the Form 1-140 petition to the AAO for 
review. On certification the director observed that the petitioner was registered with the State of Florida on June 
I, 1998, was reinstated with the State of Florida on May 25, 2001, and was currently active. The director also 
observed that the foreign entity was registered in December 1996, was dissolved and liquidated in December 
2000, and re-registered in March 2001. The director concluded that the record did not contain evidence of the 
length of time the two entities were "out of business" and that when the foreign entity was dissolved there was no 
foreign entity related to the U.S. petitioner. Also on certification, the director noted that as the U.S. entity was a 
partnership, it was not eligible to file this petition on behalf of the beneficiary, as the partnership could not be 
considered a separate legal entity. The director concluded that a partnership petitioning for a partner would be 
like a beneficiary petitioning for him or herself, which is not allowed for this visa classification. The director also 
determined that as the foreign entity was dissolved December 29, 2000 and only re-registered March 30, 2001, 
seven months prior to filing the petition, the foreign entity had not been conducting business for one year prior to 
filing the petition. The director further determined that as the U.S. petitioner was reinstated May 25,2001, only 
five months prior to filing the petition and the record did not contain evidence of how long the petitioner had been 
inactive, the petitioner had not established that it had been doing business for one year prior to filing the petition. 
Further, on certification, the director determined that the record did not substantiate that the beneficiary: (1) had 
been employed in a managerial or executive capacity for the foreign entity for one year prior to entering the 
United States as a nonirnmigrant or (2) would be employed in a managerial or executive capacity for the U.S. 
petitioner. Finally, on certification the director determined that the petitioner had not established its ability to pay 
the beneficiary the proffered wage of $60,000. 
The director indicated that due to the concerns of both the petitioner's counsel and the officer making the decision, 
the denial is certified to the AAO for review. 8 C.F.R. 5 103.4(a). Counsel for the petitioner has not offered 
fwther argument or evidence subsequent to the certification. 
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 and 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 
statement that 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. See 8 C.F.R. 
0 204.5Cj)(5). 
The regulation at 8 C.F.R. tj 204.56)(3) states: 
(i) Required evidence. 
 A petition for a multinational executive or manager must be 
accompanied by a statement from an authorized official of the petitioning United States 
employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at 
least one year in a managerial or executive capacity by a firm or corporation, or other 
legal entity, or by an affiliate or subsidiary of such a firm or corporation or other 
legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the finn or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) The prospective United States employer has been doing business for at least one 
year. 
The preliminary issue in this proceeding is whether the director erred in denying the petition without providing 
the petitioner an opportunity to supplement the record with additional evidence andfor to clarify the information 
provided in the initial filing. 
Page 5 
The regulation at 8 C.F.R 9 103.2(b)(8) states: 
Request for evidence. If there is evidence of ineligibility in the record, an application or petition 
shall be denied on that basis notwithstanding any lack of required initial evidence. If the 
application or petition was pre-screened by the Service prior to filing and was filed even though 
the applicant or petitioner was informed that the required initial evidence was missing, the 
application or petition shall be denied for failure to contain the necessary evidence. Except as 
otherwise provided in this chapter, in other instances where there is no evidence of ineligibility, 
and initial evidence or eligibility information is missing or the Service finds that the evidence 
submitted either does not fully establish eligibility for the requested benefit or raises underlying 
questions regarding eligibility, the Service shall request the missing initial evidence, and may 
request additional evidence, including blood tests. 
The director denied the petition for multiple reasons. First, the director determined that the petitioner's legal 
status as a partnership precluded the petitioner f?om petitioning for the beneficiary as an employment-based 
multinational manager or executive immigrant. The director's determination was in error. The petitioner 
provided initial evidence that it had been organized as a "limited liability company" in the State of Florida in June 
1998. Although it is treated as a partnership for taxation purposes, a limited liability company is a separate and 
distinct legal entity from its ownerlmembers. A limited liability company may petition for a beneficiary as an 
employment-based multinational manager or executive. The record does not contain evidence of ineligibility 
on this issue. The director's April 9,2003, August 6, 2003, and February 4,2004 determinations on this issue 
will be withdrawn. 
Among other issues, the director also denied the petition after determining that the petitioning U.S. company 
had been dissolved at an indeterminate time and then reinstated on May 25, 2001, approximately six months 
prior to the filing of the petition. Specifically, the petitioner submitted a copy of the Florida Department of 
State printout that represented the petitioner as active, but that it had been dissolved since approximately 1999 
and subsequently reinstated in 2001. Because the regulations require that a petitioner demonstrate that it has 
been doing business for the entire year prior to filing the petition, it was appropriate for the director to review 
the evidence to determine when the company was formed and whether it was an active entity. See 8 C.F.R. § 
204.50)(3)(i)(D). 
Counsel argues that the director improperly denied the petition without a request for evidence because the 
director made an incorrect conclusion of law based on the Florida document that could have been resolved 
through additional evidence. Specifically, counsel asserts that the fact that the business was administratively 
dissolved for a period does not mean that it was not doing business. Counsel claims that the entity was not 
renewed due to an administrative error and that the reinstatement was effective retroactively, to the date of the 
dissolution. 
The regulation at 8 C.F.R. 9 103.2(b)(8) clearly states that a petition shall be denied "[ilf there is evidence of 
ineligibility in the record." The regulation does not state that the evidence of ineligibility must be irrefutable 
or irrebuttable. Where evidence of record indicates that a basic element of eligibility has not been met, it is 
Page 6 
appropriate for the director to deny the petition without a request for evidence. If the petitioner has rebuttal 
evidence, the administrative process provides for a motion to reopen, motion to reconsider, or an appeal as a 
forum for that new evidence. In the present case, the evidence indicated that the petitioner was 
administratively dissolved and reinstated only six months prior to the filing of the petition. Accordingly, the 
denial was appropriate, even though the petitioner might have had evidence or argument to rebut the finding. 
The director listed the remaining issues in her initial decision and certified the matter to the AAO. The AAO 
will address the evidence in the record and the remaining issues. The AAO sees no purpose in remanding the 
matter to the director to request evidence and enter a new decision. The AAO finds that the director was not 
required to issue a request for Mher evidence to give the petitioner an opportunity to present evidence and to 
clarify questionable issues prior to entering her decision. 8 C.F.R. 9 103.2(b)(8). Furthermore, the petitioner 
has been given sufficient opportunity to present evidence in its motion to reconsider and could also have 
submitted evidence on certification. Because the director failed to issue a request for evidence, the AAO will 
accept any evidence submitted on certification. CJ: Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter 
of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Assuming arguendo that the director erred, the error would be 
found to be harmless. A remand for additional evidence would only serve to delay the entry of a final 
decision in this proceeding. 
The first issue in this matter is whether the petitioner established that it was doing business for one year prior 
to filing the petition and continuing. The regulation at 8 C.F.R. 8 204.56)(2) states in pertinent part: "Doing 
Bz~siness means the regular, systematic, and continuous provision of goods and/or services by a fm, 
corporation, or other entity and does not include the mere presence of an agent or office." The petitioner is 
required to submit evidence demonstrating that it has been doing business for one year prior to filing the 
petition. See 8 C.F.R. § 204.56)(3)(i)(D) above. The qualifying foreign entity must continue to do business 
to maintain the multinational character of the petitioner. See 8 C.F.R. § 204.56)(2). 
The director initially determined that the record contained evidence that the legal status of both the foreign 
entity and the petitioner had been inactive for unknown periods of time prior to filing the petition. The 
director concluded that the petitioner had not established that it or the foreign entity had been doing business 
for the year prior to filing the petition. 
The petition in this matter was filed November 1, 2001. The AAO observes that the initial record contains, 
among other documents: (1) a payroll list purportedly showing the foreign entity's employees from December 
2000 through April 2001; (2) numerous invoices and purchase orders evidencing transactions by the foreign 
entity from the beginning of 2000 through September 2001; (3) invoices of transactions by the petitioner 
beginning in October 2000 through September 2001; and, (4) IRS Forms W-2, Wage and Tax Statements, 
issued by the petitioner in 2000 and a copy of the petitioner's 2000 IRS Form 1065, U.S. Return of 
Partnership Income. The AAO notes that the foreign entity's payroll list is partially translated, as are the 
foreign entity's invoices and purchase orders as well as the petitioner's invoices. The AAO also notes that the 
petitioner's IRS Form 1065 is unsigned and the initial record does not contain evidence the petitioner's tax 
forms were actually filed. 
The petitioner addressed this issue in its May 9, 2003 motion to reconsider. Specifically, counsel for the 
petitioner attempted to explain and resolve the inconsistencies relating to the petitioner's inactive status and as 
observed above, provided evidence that a Florida limited liability company is not a partnership. With respect 
to the foreign entity, counsel referenced, but did not provide, the law of Colombia to explain the foreign 
entity's "dissolution," and also references explanations and exhibits submitted in support of an earlier L-1A 
intracompany transferee petition filed by the petitioner in 1999. 
With respect to the dissolution of the U.S. company, counsel asserts that the fact that the business was 
administratively dissolved for a period does not mean that it was not doing business. As previously 
discussed, counsel claims that the entity was not renewed due to an administrative error and that the 
reinstatement was effective retroactively, to the date of the dissolution. Counsel states that the dissolution 
does not indicate that the U.S. entity was working illegally or otherwise inactive. 
Contrary to the claims of counsel, Florida law clearly states that "[a] limited liability company 
administratively dissolved continues its existence but may not carry on any business except that necessary to 
wind up and liquidate its business and affairs under s. 608.443 1 and notify claimants under s. 608.442 1 ." Fla. 
Stat. ch. 608.4481 (2006). The requirement that a business conduct business for at least one year is not 
satisfied by the mere existence of a company or the unlawful business transactions conducted by a dissolved 
company. 
As explained in the Federal register at the time of the rule's publication, the "one-year time limit is important 
as a measure of the viability of the United States employer." 56 FR 60897,60899 (November 29, 1991). The 
claimed viability of the company is not bolstered by the fact that the petitioner was administratively dissolved 
for a substantial portion of the year prior to filing. CIS cannot condone the violation of basic corporate 
requirements, such as municipal licensing, state and federal income tax filings, or the filing of corporate 
annual reports. Because the petitioning company was dissolved for at least six months of the year prior to 
filing, the AAO will not accept the submitted documentation as evidence that it was lawfully doing business. 
The submitted evidence is also insufficient to overcome the director's determination that the foreign entity 
does not continue to do business. First, 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). Counsel's assertions regarding Colombian law are not 
evidence. The 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). Second, each petition filing is a separate proceeding with a separate record. See 
8 C.F.R. 5 103.8(d). When making a determination of statutory eligibility, CIS is limited to the information 
contained in the record of proceeding. See 8 C.F.R. 103.2(b)(16)(ii). The record lacks substantive evidence 
to support the petitioner's claim that the foreign entity continues to do business. 
In addition, although the initial record contained some information on the issue of the petitioner's doing 
business and counsel resolved the petitioner's inactive status, the petitioner failed to sufficiently elaborate on 
whether the petitioner was providing goods or services for one year prior to filing the petition. The petitioner 
has not established its multinational status and has not provided sufficient evidence that it is engaged in the 
Page 8 
regular, continuous, and systematic provision of goods and services and had been for one year prior to filing 
the petition. The record is not sufficient to overcome the director's initial April 9, 2003 decision on these 
issues. 
On certification, the director also noted that the foreign entity and the petitioner had been inactive prior to the 
petitioner filing the petition. The director concludes that if the foreign entity was out of business when the 
petition was filed, the petitioner could not establish a qualifying relationship with a foreign entity. The AAO 
concurs that this visa classification requires a qualifying relationship when the petition is filed. See 8 C.F.R. 
3 204.5(j)(3)(i)(C). As noted above, the record contains some evidence and assertions that the foreign entity 
was active when the petition was filed. However, also as noted above, the record is not sufficient to explain 
the foreign entity's dissolution, reactivation, and whether it continued to do business. 
The second issue in this matter is whether the petitioner established that the beneficiary's position with the 
United States entity would be managerial or executive. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. 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; 
. . . 
111. 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
iv. 
 exercises discretion over the day to day operations of the activity or function 
for which the employee has authority. A first line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 3 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
Page 9 
1. 
 directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
in. 
 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 director observed in her April 9, 2003 and February 4, 2004 decision that the petitioner claimed six 
employees, including the beneficiary when the petition was filed. The director noted that five of the six 
employees were classified as L-1A managers. The director concluded that it was reasonable to believe that 
the "managers" must be doing the actual work of the company. The director correctly questioned the 
petitioner's organizational structure and the beneficiary's role and that of her subordinates. 
The regulation at 8 C.F.R. 5 204.5(j)(5) requires the prospective employer in the United States to furnish a job 
offer in the form of a statement that indicates that the alien is to be employed in the United States in a managerial 
or executive capacity. The statement must clearly describe the duties to be performed by the alien. The required 
initial evidence thus, is a statement that clearly describes the beneficiary's intended duties. 
Counsel for the petitioner indicated in an October 26, 2001 letter appended to the petition, that the beneficiary 
managed the operations of the company, negotiated purchases and other contracts on behalf of the corporation 
and dealt with the suppliers of goods, as well as, ensured that the proper international transshipment deadlines, 
and letters of credit, are met. Counsel also indicated that the beneficiary managed essential functions of the 
organization by overseeing the organization and determining which product line(s) should be sold by the 
company, and what shoes should be exported to Colombia. Counsel further indicated that the beneficiary 
networked with others within the industry and with potential customers, oversaw sales of the company's product, 
and as the company's legal representative negotiated contracts with customers, and with vendors for services 
needed by the company. Finally, counsel indicated that the beneficiary divided her time amongst her various 
duties as follows: 
(20%) Networking with business industries in community to identify and cultivate new 
information sources, attend trade shows and conferences to keep abreast of the industry; 
Identify new markets for penetration and develop marketing strategy accordingly. 
(10%) Travel to communicate with the various suppliers, distributors, clients, and potential 
clients. 
(15%) Preparation of monthly and annual budget for the operations and monitor finances; 
determination of buying, legal, inventory, insurance, technology needs of the US 
company[.] 
Page 10 
(5%) 
 Evaluate and review the services ultimately provided by the company to ensure it meets 
proper specifications as per customer, and the products to ensure conformity with 
standards. 
(1 0%) Maintain regular communication with the foreign affiliate company. 
(25%) Monitor the activities of all employees, including the company's Managers and lower 
level professionals, and additional employees as they are hired. 
(1 0%) Establish additional supplier and distribution chains for operations. 
(5%) Misc. 
Counsel also noted that the petitioner employed individuals in the positions of marketing and sales manager, 
accessory sales manager, purchasing manager, and secretary. Counsel did not provide position descriptions for 
these positions. The beneficiary, on behalf of the petitioner, stated: 
This position is a key managerial position in our US company, as I direct the management of the 
organization, plot sales strategies for the expansion of our business in Miami, and the remaining 
United States, develop business objectives and time tables within which they are to be 
completed, and improve communications between the U.S. and Colombian companies. 
As Manager, the position also requires that I network with business industries in community to 
identify and cultivate new information sources, attend trade shows and conferences, negotiate 
contracts, and evaluate and review the services provided by the company to ensure it meets 
proper specifications as per customer. Additionally, I am ultimately responsible for the 
employment activities of all of the US company's employees (the company employs 6 
employees). 
The description provided by the petitioner through its counsel and the beneficiary does set out the beneficiary's 
intended duties. The statements contain some generalities, but the breakdown of the beneficiary's duties shows 
that the beneficiary spends the majority of her time providing the petitioner's marketing, public relations, budget, 
supply, and distribution services. The beneficiary adds that she also plots sales strategies, negotiates contracts, 
attends trade shows, and ensures the petitioner's services meet the specifications of the customer. 
The petitioner's description of the beneficiary's duties indicates that the beneficiary is not primarily 
performing managerial or executive tasks or managing an essential function but rather is performing the 
petitioner's day-to-day operational tasks. The actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 11 03, 1 108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. 
Cir. 1990). 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. Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
The record contains evidence that the petitioner employs personnel purportedly holding sales, marketing, and 
purchasing positions. However, the record does not provide descriptions for these positions. The record does 
not reconcile counsel and the petitioner's description of the beneficiary's actual duties with the titles of other 
Page 11 
employees. The record in this matter does not establish that the beneficiary's position for the petitioner would 
be managerial or executive. 
Counsel had opportunity to submit evidence on this issue in the motion to reconsider and on certification. In 
the May 9, 2003 motion to reconsider, counsel did provide descriptions of the beneficiary's duties and the 
beneficiary's subordinates' duties for the petitioner. However, the initial description of the beneficiary's duties 
conflicts with counsel's description of the beneficiary's subordinates' duties in the motion to reconsider. 
Counsel did not explain or otherwise resolve the inconsistencies between the initial description of the 
beneficiary's actual duties and the description of her subordinates' duties. 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). The evidence submitted 
failed to overcome the director's April 9,2003 decision on this issue. 
The third issue in this matter is whether the petitioner established that the beneficiary's employment for the 
foreign entity had been in a managerial or executive capacity. 
Counsel for the petitioner indicated that the beneficiary had held the position of general manager for the foreign 
entity prior to her entry into the United States as an intracompany transferee nonirnmigrant. Counsel indicated: 
"the beneficiary was responsible for managing the company and other managers and employees, customer 
relations, dealing with distributors and suppliers of shoes and its related accessories," and "was also in charge of 
ensuring that customs and other licensing requirements were complied with for the import of foreign supplies." 
Counsel further stated that the beneficiary "was also in charge of the import and acquisition operations of the 
company, the hiring and firing of personnel within the organization, and had discretion to make operational 
decisions on behalf of the company." 
The beneficiary, on behalf of the petitioner, stated that her responsibilities for the foreign entity included: "setting 
of departmental policy and procedure, complete control of the hiring and firing of personnel in the various 
departments, and monitoring the conditions of the overall sales activity of the company in the international market 
place," and "responsi[bility] for customer relations with our customers throughout Colombia, and with our 
various domestic and international distributors." 
The director did not analyze the description of the beneficiary's duties for the foreign entity; the AAO observes, 
however, that the description of the beneficiary's duties for the foreign entity, for the most part is vague and 
nonspecific. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1103. When the petitioner and beneficiary 
provide detail of the beneficiary's duties for the foreign entity, the beneficiary's duties are more indicative of 
an employee providing operational services to the foreign entity. Again, 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. Matter of Church Scientology International, 19 I&N Dec. at 604. 
Page 12 
In the May 9, 2003 motion to reconsider, counsel referenced exhibits submitted with the petitioner's L-1A 
intracompany transferee visa petition to establish the beneficiary's managerial or executive capacity with the 
foreign entity for the year prior to entering the United States as a nonimmigrant. However, each petition 
filing is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In malung a determination of 
statutory eligibility, CIS is limited to the information contained in the record of proceeding. See 8 C.F.R. 
9 103.2(b)(16)(ii). Counsel's reference to the beneficiary's foreign payroll documents contained in a separate 
L-IA proceeding cannot be considered part of this proceeding. If the petitioner wants evidence considered in 
support of a petition, the petitioner must submit the evidence with the petition, as the record of the 
nonirnmigrant proceeding is not combined with the record of the immigrant proceeding. 
Again, counsel had opportunity to submit evidence on this issue in the motion to reconsider and on 
certification. The record when reviewed in its totality does not substantiate the beneficiary's managerial or 
executive capacity for the foreign entity. The evidence submitted failed to overcome the director's April 9, 
2003 decision on this issue. 
The last issue in this matter is whether the petitioner established its ability to pay the beneficiary the annual wage 
of $60,000. The director's determination was based on the petitioner's IRS Form 1065 and a misunderstanding of 
the information contained within the IRS Form. 
The regulation at 8 C.F.R 5 204.5(g)(2) states in pertinent part: 
Abilig of prospective employer to pay wage. Any petition filed by or for an employment-based 
immigrant which requires an offer of employment must be accompanied by evidence that the 
prospective United States employer has the ability to pay the proffered wage. The petitioner 
must demonstrate this ability at the time the priority date is established and continuing until the 
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. 
When determining the petitioner's ability to pay the proffered wage, CIS will first examine whether the 
petitioner employed the beneficiary at the time the priority date was established. If the petitioner establishes 
by documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered 
wage, this evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's 
salary. In this matter, the director failed to consider that the petitioner had provided evidence that it had paid the 
beneficiary $60,000 in 2000. The record contains the beneficiary's 2000 IRS Form W-2 and the beneficiary's 
personal tax return for 2000 evidencing the petitioner's compensation of the beneficiary. The petitioner 
established its ability to pay the proffered wage to the beneficiary. The director's April 9, 2003 decision will be 
withdrawn as it relates to this issue. 
In conclusion, the petitioner did provide sufficient evidence that it is a limited liability company. The AAO 
observes that a limited liability company is statutorily eligible to file a petition on behalf of a beneficiary. 
The petitioner also provided sufficient evidence that it had the ability to pay the beneficiary the proffered 
wage when the petition was filed. The director's contrary determinations on these two issues will be 
withdrawn. 
Page 13 
However, the initial evidence provided regarding the beneficiary's duties as a manager or executive for the 
foreign entity and the United States petitioner depicted an individual employee primarily performing day-to-day 
operational tasks. Although the director did not request fixther evidence on these issues, the petitioner had the 
opportunity and did submit additional evidence in the motion to reconsider. Likewise, the petitioner had the 
opportunity to clarify and substantiate that it and the foreign entity met the requirements of doing business and 
maintaining multinational status. However, neither the initial evidence submitted in support of the petition nor 
the argument and information submitted in the motions to reconsider are sufficient to establish the 
beneficiary's eligibility for this visa classification. The record does not establish the beneficiary's managerial 
or executive capacity for the foreign entity or the U.S. petitioner. The record does not establish that the 
foreign entity and the petitioner continue to do business, thus maintaining the petitioner's multinational 
classification. 
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), affd. 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). 
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. 4 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The director's decision is withdrawn in part and affirmed in part. The petition is denied.