dismissed EB-1C Case: Software

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwartad 
invasion of ~~W~VBL:~ 
U.S. Citizenship 
and Immigration 
- - 94 
Office: TEXAS SERVICE CENTER Date: 0 & 
SRC 06 077 52396 
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 1153(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. 
R&*-hief 
Administrative Appeals Office 
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 Florida corporation seeking to employ the beneficiary as its president. It claims that its 
revenue source is holding service contracts with local customers, overseeing product installations, and 
providing customer support in connection with the sale of the software developed by the petitioner's claimed 
foreign parent organization, located in Germany. 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. 9 1153(b)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner failed to establish that it has a work force in the United States and, therefore, 
cannot be deemed as more than a mere presence of an office or agent doing business in the United States. 
On appeal, counsel disputes the director's conclusion, asserting that the director's decision was confksing, 
erroneous, and failed to clearly state the basis for the denial. Counsel submits a brief in support of his 
arguments. 
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 afiliate 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)(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 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. 
The primary issue in the present matter is whether the petitioner has provided sufficient evidence to establish 
that it is doing business in the United States and is not merely present as an office or agent. 
Page 3 
The regulation at 8 C.F.R. $ 204.5Cj)(2) defines doing business as "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 director reasoned that the petitioner's failure to establish a U.S.-based support staff suggests that the petitioner 
is not doing business in the United States, and focused on the fact that support services are provided abroad rather 
than in the United States. However, Citizenship and Immigration Services (CIS) cannot determine that the 
petitioner is not doing business without first considering whether or not the petitioner has provided evidence to 
establish that it provides products and/or services on a "regular, systematic, and continuous" basis. Id. In the 
present matter, the denial lacks a discussion of whether such evidence exists. Therefore, while the AAO concurs 
with the conclusion, the director's underlying reasoning is deficient in that it fails to address the most relevant 
factor, i.e., the petitioner's business transactions. Furthermore, there is no evidence to suggest that the director 
considered the documentation firmly establishing the beneficiary's employment with the U.S. petitioner both prior 
to and during the time of the filing of the instant Form 1-140. Based on the director's reasoning, the beneficiary's 
employment with the U.S. petitioner is sufficient to establish that the petitioner is doing business. This analysis, 
however, is erroneous. 
Regardless, the record lacks sufficient evidence to establish that the petitioner was providing its products and 
services on a "regular, systematic, and continuous" basis. Id. While the petitioner has provided invoices for 
November 2004 and for January through April 2005, there is no evidence to establish that the petitioner was 
doing business for the full 12-month period prior to filing the Form 1-140 pursuant to 8 C.F.R. $204.5(3)(i)@) or 
that the petitioner continues to do business since the filing of Form 1-140. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). That being said, the AAO acknowledges the petitioner's submission of 
its various corporate tax returns showing gross income earned. However, a tax return is not an appropriate 
indicator of whether or not a petitioner is doing business, as it does not show the frequency of the petitioner's 
business transactions and thus precludes CIS fiom determining whether the company's revenue is generated 
from transactions that occur on a "regular, systematic, and continuous" basis. See 8 C.F.R. $204.5@0(). 
Despite counsel's claim that the petitioner is the only entity that distributes and provides support services for 
products developed by the German parent entity, 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). Based on the documentation 
submitted, the AAO cannot conclude that the petitioner has complied with 8 C.F.R. $ 204.5(3)(i)@) and 
continues to do business in the prescribed manner. 
Additionally, while not explicitly addressed by the director, the petitioner's lack of evidence regarding an 
adequate support staff to provide the services that its revenue prevents CIS fiom being able to conclude 
that the petitioner has established that the beneficiary would be employed in a managerial or executive capacity 
under an approved petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
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(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 hction managed; and 
(iv) 
 exercises discretion over the day-today 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. 
 1 10 l(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. 
In support of the petition, the beneficiary, in his capacity as president of the petitioning entity, provided a 
breakdown of his proposed employment, separating the job into five different functions: planning, 
organizing, staffing, directing, and controlling. The beneficiary stated that his daily activities focus on the 
following five areas: 
Overall Operational Management: The primary business of the company is the development 
and sale of communications technology. [The beneficiary] spends a considerable amount of 
time directing the management of the organization through meetings and communications 
with subordinate managers and staff (generally employed by independent third parties) and 
other parties (such as regulators, representatives of financial organizations, and business 
partners). 
Page 5 
Goal and Policy Formulation: This involves analyzing the historic and current operations of 
the business and its competitors to determine future direction of the business. It also involves 
understanding government regulation and international accounting standards to ensure 
policies are formed that comply with such regulations and standards. 
Worker Supervision: [The beneficiary] is ultimately responsible for supervising 2 workers in 
North America and one worker [in] Europe, all of which [sic] are highly trained computer 
professionals. 
Financial Oversight: Though the company employs financial advisors, [the beneficiary] is 
very involved in financial management, including issues related to financing, investment, and 
budgeting. [He] is ultimately responsible for controlling the financial performance of the 
company by reviewing periodic sales figures, activity reports and financial statements. He 
approves all changes in the company to increase its size and profitability. 
Public Relations: [The beneficiary] must make periodic appearances in the media, with 
government and non-governmental organizations, with financial organizations, and various 
company locations. 
Each of the above headings were broken down as follows: 50% of the beneficiary's time is attributed to 
overall operational management, 20% to goal and policy formulation, 15% to worker supervision, 10% to 
financial oversight, and 5% to public relations. 
On March 2, 2006, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide the following documentation for all contractual labor hired and a detailed description of the 
beneficiary's proposed day-to-day duties with a percentage of time assigned to each duty in order to indicate 
how much of his time would be devoted to each of the listed duties. 
Counsel provided a response dated June 12,2006 stating that the beneficiary supervises employees at IBM as 
they implement the technology purchased from the petitioner. Counsel Wer stated that the beneficiary 
supervises five overseas employees and provided their names, position titles, and respective salaries. With 
regard to the director's request for a breakdown of job duties, counsel stated that the same information was 
provided earlier in support of the petitioner's nonimmigrant petition seeking to continue employment of the 
beneficiary as an intracompany transferee. No additional information was provided with regard to the 
beneficiary's duties. 
While the AAO acknowledges that the statutory definitions for managerial and executive capacity are the 
same for both immigrant and nonimmigrant multinationals, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
See $8 101 (a)(44)(A) and (B) of the Act, 8 U.S.C. 8 1 101 (a)(44). There are significant differences between 
the nonimmigrant visa classification, which allows an alien to enter the United States temporarily for no more 
than seven years, and an immigrant visa petition, which permits an alien to apply for permanent residence in 
the United States and, if granted, ultimately apply for naturalization as a United States citizen. CJ: §$ 204 and 
214 of the Act, 8 U.S.C. $$ 1154 and 1184; see also 8 316 ofthe Act, 8 U.S.C. $ 1427. 
Page 6 
In addition, each nonirnmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. CIS denies many 1-140 immigrant 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Depr. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). As such, counsel had no basis for assuming that CIS 
simultaneously refers to all petitions filed by one petitioner in order to obtain all information necessary to 
determine the petitioner's eligibility for a particular benefit. 
In the present matter, the director clearly asked for a detailed list of the beneficiary's proposed duties and a 
breakdown of time spent performing each duty. Counsel's indication that the relevant information may exist 
in another record of proceeding regarding the same petitioner is insufficient. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
$ 103.2@)(14). While the AAO acknowledges the job description presented in support of the petition, the 
director properly implied, by virtue of requesting additional evidence, that the previously provided 
information was inadequate. The job description provided by the beneficiary was a broad compilation of 
responsibilities, not actual duties the beneficiary would perform daily in Ong to fulfill those responsibilities. 
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. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Cir. 
1990). 
Furthermore, the record lacks evidence to show who, if not the beneficiary, carries out the petitioner's daily 
operational tasks. Despite the numerous references to subordinate personnel, the petitioner has not provided 
evidence to show that at the time the Form 1-140 was filed it had the necessary marketing, sales, customer 
service, and technical support staff to carry out the required non-qualifymg tasks on a daily basis. Counsel's 
claim that the petitioner maintains contractors and overseas personnel is not documented. There is no 
evidence to show that the petitioner has paid for any services other than those of the beneficiary himself. 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). 
In examining the executive or managerial capacity of the beneficiary, CIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. $ 204.56)(5). CIS will also review the petitioner's staffing levels 
in light of the job description and reasonable needs of the organization to ensure that proper support is in 
place in order to relieve the beneficiary from having to primarily engage in the performance of non-qualifymg 
tasks. In the instant case, the petitioner has provided a deficient description of duties and has failed to 
document the claims made with regard to its support personnel. See Matter of Sofflci, 22 I&N Dec. at 165. 
As such, the AAO cannot conclude that the beneficiary would primarily perform managerial or executive 
duties. 
Furthermore, the record supports a finding of ineligibility based on another ground that was not previously 
addressed in the director's decision. Namely, 8 C.F.R. 
 204.56)(3)(i)(B) states that the petitioner must 
establish that the beneficiary was employed abroad in a qualifying managerial or executive position for at 
least one out of the three years prior to entering the United States as a nonimmigrant to work for the 
petitioner. In the present matter, the list of broad responsibilities initially provided in support of the Form 1- 
140 is not sufficient to convey an understanding of the actual duties the beneficiary carried out on a daily 
basis during his employment abroad. Without this relevant information, the AAO cannot conclude that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. 
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). Therefore, based on the additional grounds of ineligibility as discussed above, 
this petition cannot be approved. 
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, afd, 345 F.3d 683. 
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. 5 1361. The petitioner must 
prove by a preponderance of evidence that the beneficiary is hlly qualified for the benefit sought. Matter of 
Martinez, 2 1 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo 
Hoo, 11 I&N Dec. 15 1 (BIA 1965). The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.