dismissed EB-1C Case: Shoe Wholesale

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US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OJfice of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 - 
U.S. Citizenship 
and Immigration 
Services 
File: EAC 02 145 52961 Office: VERMONT SERVICE CENTER Date: 1 2 2oto 
IN RE: Petitioner: 
Beneficiary: 
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. 5 1 153(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 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. 5 103.5. 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 $585. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
P& Rhew 
Chief, Administrative Appeals Office 

Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (Act), 8 U.S.C. 
fj 1 153(b)(l)(C). The petitioner is a limited liability company organized under the laws of the State of 
seeks to employ the beneficiary as its executive manager.] 
The director denied the petition on December 18, 2002, determining that the petitioner had not 
established that it has been doing business for one full year prior to the filing of the petition, or that 
the beneficiary would be employed in a managerial or executive capacity by the United States entity. 
The petitioner filed a Form I-290B, Notice of Appeal, on January 21,2003. In an addendum to the 
Form I-290B, the petitioner asserts that it has submitted evidence that demonstrates its attempt to 
commence operation in the United States. The petitioner further asserts that it has demonstrated that 
the beneficiary's position fits the regulatory definition of "executive capacity." Although the 
petitioner indicated on the Form I-290B that a brief and/or additional evidence would be submitted 
within 30 days, to date, careful review of the record reveals no subsequent submission. Accordingly, 
the appeal will be adjudicated based on the record as presently constituted. 
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 
The AAO notes that although the petitioner stated its name on the Form 1-140 as '1 
this does not appear to be the name of either the U.S. or foreign entity. 
 The evidence of record 
. . - 
indicates that the foreign entity's registered name is 
 and the U.S. 
entity's registered name is~urther, it is noted that a search of the public records filed with the 
Maryland Secretary of State reveals that the U.S. entity's corporate status is currently listed as "forfeited," indicating that 
its existence has been ended by the State for a delinquency. The petitioner has not provided U.S. Citizenship and 
Immigration Services (USCIS) with any information regarding this status or any action the petitioner may have taken to 
regain active status. Based on its current status, it appears that the petitioner's appeal in this instance may be moot. 

Page 3 
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. § 204.5(j)(5). 
The first issue in this matter is whether the petitioner was doing business for at least one year prior to 
the filing of the petition. 
The regulation at 8 C.F.R. 204.5(j)(3)(i) states: 
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: 
(D) The prospective employer has been doing business for at least one 
year. 
Further, the regulation at 8 C.F.R. 204.5(j)(2) states: 
Doing business means the regular, systematic, and continuous provision of goods 
andlor services by a firm, corporation, or other entity and does not include the mere 
presence of an agent or office. 
The petitioner filed the petition on March 27, 2002. Along with the Form 1-140, Immigrant Petition 
for Alien Worker, the petitioner submitted the U.S. company's Articles of Organization, filed with 
the State of Maryland on March 9, 2001, and a Certificate of Amendment, dated November 19, 
2001, recording the name change of the entity. No other evidence demonstrating that the U.S. 
company is "doing business" was submitted. 

Page 4 
In view of the lack of initial evidence, the director issued a request for further evidence (WE) on 
June 27,2002, which requested, among other things, additional evidence that the U.S. company "has 
been engaged in and is presently engaged in the regular, systematic and continuous provision of 
goods or services." The petitioner was asked to describe in detail the type of business that is 
conducted by the U.S. company, along with documentation to corroborate that description, including 
the type and location of established and prospective customers or clients and the products andlor 
commodities that are sold. The director also requested a copy of the listing of the business in the 
area's phone or business directory and a copy of the U.S. company's commercial lease demonstrating 
that the company has physical facilities of sufficient size to conduct an importlexport business. 
In response, the petitioner submitted a statement, dated August 26, 2002, explaining that the 
company was studying the market at that time, and that a great part of that process involved 
attending trade related exhibitions. The petitioner emphasized that while the U.S company has 
prepared and mailed out catalogs to potential retailers, it was still in the process of gauging the 
market response rather than selling. The petitioner submitted a copy of a phone directory listing 
under the name of at the company's address, under the category of shoe wholesale 
and manufacturers. The ~etitioner submitted a cowv of a lease agreement dated Januarv 22.2001 for . , 
the premises at the company's address with isted as tenant. In addition, the 
petitioner submitted copies of several the exterior and interior of the 
company's physical premises. 
In denying the petition, the director found that the record is insufficient to demonstrate that the 
petitioner has been doing business for one full year prior to the filing of the petition. The director 
noted that the fact that the U.S. company was only established in 2001 raises doubt that it had been 
doing business for one full year prior to the filing of the petition. The director observed that merely 
leasing office space does not establish that a company is doing business. Further, the director found 
that the petitioner's description of the business in response to the RFE appeared speculative, and it 
does not appear that much work, if any, has been done to establish the company. The director also 
noted that the petitioner failed to provide information regarding the company's customers as 
requested in the RFE, and that the lease and photographs submitted relate only to the company's 
office space and fail to demonstrate that the company has the facility to conduct the claimed import 
operation. 
On appeal, the petitioner contends that it has submitted evidence that demonstrates its attempt to 
commence operation in the United States, and states that the fact that operations have begun slower 
than the petitioner had anticipated does not mean that petitioner has not taken steps toward the 
establishment of this corporation. Moreover, the petitioner asserts that even though no contract has 
been acquired, it does not mean that the petitioner has not been engaged in negotiations for the 
acquisition of these contracts. The petitioner submitted no evidence in support of these assertions. 
The AAO concurs with the director's conclusion that the record does not demonstrate that the 
petitioner has been doing business for one full year prior to the filing of the petition, as required by 
the regulation at 8 C.F.R. 5 204.5(j)(3)(i)(D). 

Page 5 
As the director noted, although requested in the WE, the petitioner has failed to provide any 
evidence showing that it has a customer base and the physical facilities to conduct its claimed 
business of importing leather goods manufactured by its claimed affiliate in Bangladesh. Failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). The petitioner claimed in its letter responding to the WE that the 
U.S. company was in a market study phase and that much of that process involved attending trade 
related exhibitions. However, the petitioner submitted no evidence in support of this claim. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Moreover, 
preliminary market study does not rise to the level of "regular, systematic, and continuous provision 
of goods and/or services" that constitutes "doing business" under the regulations. See 8 C.F.R. 
5 204.5(j)(2). 
With respect to the evidence submitted, the AAO notes that both the phone directory listing and the 
lease agreement submitted are in the name of an individual rather than in the company's name. 
Although this individual is purportedly the executive director of the foreign entity and, according to 
counsel, also a beneficiary of a pending Form 1-140 immigrant petition filed by the petitioner, there 
is no indication that he appeared on the lease as a representative of the company rather than in his 
individual capacity. Further, the U.S. company's articles of organization establish only that it was 
legally established in March 2001, not that it has been doing business as defined by the regulations 
since that time. In all, the evidence of record is clearly insufficient to show that the U.S. company 
has been doing business for at least one year prior to the filing of the petition on March 27, 2002. 
For this reason, the petition must be denied. 
The second issue in this matter is whether the beneficiary will be employed in a primarily 
managerial or executive capacity by the United States entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 11 01(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 

Page 6 
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. 8 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Along with the Form 1-140, the petitioner submitted a copy of the beneficiary's resume describing 
his employment history overseas, but no information relating to his proposed position in the United 
States was provided. Consequently, in the RFE, the director requested additional information 
regarding the beneficiary's U.S. position and the management and personnel structure of the U.S. 
entity, including: (1) the number of subordinate supervisors under the beneficiary's management; (2) 
their job titles and duties; (3) the executive/managerial and technical skills required to perform the 
duties in the United States; (4) the amount of time the beneficiary will devote to each job duty; and 
(5) the degree of discretionary authority in the day-to-day operation the beneficiary will have. 
In a letter dated September 18, 2002 responding to the RFE, counsel stated, "In attempting to start- 
up the business in the US, [the beneficiary] has been wearing many hats." Counsel's description of 
the beneficiary's job responsibilities includes a wide range of tasks in market and fashion 
forecasting; making arrangements regarding the projected distribution of products; determining 
market trends; setting up financial and banking aspects of the corporation, including creating 
financial terms of the sales contract and negotiating with bankers; and determining the legality of the 
company's international trade. Counsel claimed that " 100% of [the beneficiary's] time is being spent 
carrying out managerial functions." However, counsel also indicated that, at that time, the company 

has not hired any personnel. No information was provided regarding any other personnel of the 
company. Counsel further claimed that the beneficiary defers only to the managing director of the 
foreign entity for funding, but otherwise has the authority to make all corporate decisions. 
In his decision, the director observed that the beneficiary appeared to have been spending his time 
doing much of the start-up work for the company himself rather than managing such efforts. 
Further, noting that the U.S. company has no other staff at that time, the director found that the 
petitioner has not shown that the beneficiary functions at a senior level within the organizational 
hierarchy other than in position title, nor has it been shown that the beneficiary will be involved in 
the supervision of other employees who will relieve him fiom performing the non-qualifying 
functions in the organization. The director concluded that given the size and nature of the U.S. 
operation, the beneficiary will not likely be primarily engaged in managerial or executive duties as 
required under the regulations. 
On appeal, the petitioner cites to the definition of "executive capacity" in the regulations and simply 
asserts that the beneficiary "has demonstrated that his position precisely fits the definition of 
Executive. " The petitioner submitted no additional evidence. 
Upon review, the AAO finds that the petitioner has failed to establish that the beneficiary will be 
employed in the United States in a primarily executive or managerial capacity. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. 8 204.5(j)(5). The petitioner's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. 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 operational 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. 
Here, the evidence does not show that the petitioner has any employees other than the beneficiary. 
In response to the RFE, counsel stated that the company has hired no personnel other than "the 
founders." The record does not reveal who the founders are, or whether any of the founders other 
than the beneficiary is actually performing any work within the company. Without evidence that 
there are any other employees on staff, it must be assumed that the beneficiary alone would perform 
all required tasks within the company, including tasks that do not qualify as managerial or executive. 
Counsel claims that "100% of [the beneficiary's] time is being spent carrying out managerial 
functions." However, the evidence does not support counsel's claim. 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 

Page 8 
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). 
Further, 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. 1988). Without an accurate representation of the amount of time the 
beneficiary would spend on managerial or executive duties and what amount he would spend on 
non-qualifying tasks, the AAO is unable to determine whether the beneficiary would be "primarily" 
employed in a managerial or executive capacity as required by the Act and the relevant regulations. 
For this additional reason, the petition must be denied. 
Beyond the decision of the director, the AAO finds the evidence is insufficient to establish that the 
petitioner has a qualifying relationship with the beneficiary's foreign employer. In order to qualify 
for this visa classification, the petitioner must establish that a qualifying relationship exists between the 
United States and foreign entities in that the petitioning company is the same employer or an affiliate or 
subsidiary of the foreign entity. See section 203(b)(l)(C) of the Act. The regulation and case law 
confirm that ownership and control are the factors that must be examined in determining whether a 
qualifying relationship exists between U.S. and foreign entities for purposes of this visa 
classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N 
Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to the direct or 
indirect legal right of possession of the assets of an entity with full power and authority to control; 
control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. 
at 595. 
The regulation at 8 C.F.R. $204.5(j)(2) states in pertinent part: 
AfJiliate 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. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 

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 his letter accompanying the initial petition, counsel to the petitioner included a chart listing the 
ownership of the U.S. and foreign companies and other entities within the same corporate group. 
The chart indicates that the foreign entity is owned by seven individuals, each holding one share of 
the company. Three of the shareholders of the foreign entity are listed as shareholders of the U.S. 
entity; however, the number of shares is stated as "unknown" on the chart. The claimed ownership 
of the foreign entity is corroborated by an undated copy of the company's memorandum and articles 
of association. However, that document is not dated, and the record contains no updated information 
regarding the foreign entity's current ownership structure. With respect to the U.S. entity, there is no 
documentation in the record evidencing its claimed ownership. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 
14 I&N Dec. 190 (Reg. Comm. 1972)). 
In the absence of further evidence definitively establishing the ownership of both the U.S. and 
foreign entities, the AAO finds the petitioner has failed to demonstrate that there exists a qualifying 
relationship between the U.S. company and the beneficiary's foreign employer. For this additional 
reason, the petition must be denied. 
In addition, the AAO finds that the petitioner has failed to establish that it has the ability to pay the 
beneficiary the proffered wages for his position in the United States as required by the regulations. 
The regulation at 8 C.F.R 5 204.5(g)(2) states in pertinent part: 
Ability 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. 
In this instance, the petitioner failed to provide any information on the beneficiary's proffered salary 
in the initial petition. Consequently, the director requested further information regarding the salary 
being offered to the beneficiary and evidence that the employer has the ability to pay the proffered 
salary from the date of filing to the present. The petitioner was also asked to submit copies of the 

Page 10 
beneficiary's Internal Revenue Service Form W-2 for the year 2001, showing how much the 
beneficiary was paid by the petitioner during that year. 
The petitioner failed to provide any of the information requested. Counsel for the petitioner stated 
that a letter regarding the beneficiary's salary would follow under separate cover, but no such letter is 
found in the record, nor is there any documentation, such as the petitioner's annual reports, federal 
tax returns, or audited financial statements, that would establish the petitioner's ability to pay the 
beneficiary's salary. Failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 4 103.2(b)(14). Further, without relevant 
evidence, the AAO cannot determine whether the petitioner has the ability to pay the beneficiary's 
proffered wages, as required by the regulation at 8 C.F.R 4 204.5(g)(2). For this additional reason, 
the petition must be denied. 
An application or petition that fails to comply with the technical requirements of the law may be denied 
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), 
afd. 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that 
the AAO reviews appeals on a de novo basis). When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion 
with respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 
229 F. Supp. 2d at 1043. 
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. 4 1361. Here, 
that burden has not been met. 
ORDER. The appeal is dismissed.