dismissed EB-1C Case: Tattoo Studio

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PUBLIC COPY 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
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. 9 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
JW. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a limited liability company 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)(l)(C) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 1 53(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on three independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; 2) the petitioner failed to establish that it would employ the beneficiary in a managerial or 
executive capacity; and 3) the petitioner failed to establish its ability to pay the beneficiary's 
proffered wage. 
The AAO has conducted its own independent review of the record of proceeding and finds that there 
was no basis for finding that the petitioner lacks the ability to pay the wage offered. More 
specifically, the director's reliance on the petitioner's financial information from 2006 was erroneous 
as the Form I- 140 was not filed until May 3 1,2007 and the petitioner is under no burden to establish 
its ability to remunerate the beneficiary the proffered wage prior to the filing of the petition. The 
relevant documentation reflecting the wages paid to the beneficiary in 2007 indicates that the 
petitioner did in fact pay the beneficiary's proffered wage, thereby establishing its ability to pay in 
accordance with 8 C.F.R. $204.5(g)(2). Therefore, the AAO hereby withdraws the third ground as a 
basis for denial and will address the two remaining grounds in the present decision. 
On appeal, the petitioner disputes the director's denial and provides a brief in an attempt to overcome 
the three grounds stated as the basis for the director's decision. A full discussion of the director's 
findings and the petitioner's support evidence and information is provided below. 
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 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 two primary issues in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he would be employed in the United States in a qualifying managerial or 
executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion 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. 9 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. 
In support of the Form 1-140, the petitioner submitted a letter dated May 22, 2007 in which it 
provided the names and position titles of the employees that comprised its organizational hierarchy 
at the time the petition was filed. The petitioner listed the followin 
 ersonnel: the beneficiary as 
general manager; . as assistant manager; 
 as store manager and 
make-up artist; - I and as tattoo 
artists; and as a customer service employee. The organizational chart that was among 
the submitted supporting documents showed the beneficiary at the top of the hierarchy, the assistant 
manager as his direct subordinate, the store managerlmake-up artist as the assistant manager's direct 
subordinate, and four tattoo artists and a customer service employee as the store manager's 
subordinates. 
The petitioner also provided the following description of the beneficiary's proposed employment 
with the U.S. entity: 
The beneficiary . . . is responsible for the further development of the U.S. 
affiliatelpetitioner business in South Florida. As [gleneral [mlanager, he directly 
supervises the work of the [alssistant [mlanager, the [s]tore[']s [mlanager, a 
[clustomer [slervice [employee] and [alrtists. 
The beneficiary . . . is responsible for the development of the new office/studios, the 
affiliatelpetitioner business in South Florida. As [gleneral [mlanager, he is 
responsible for establishing contacts with local suppliers in the United States in order 
to assess the viability and profitability of these contracts, review and promote the 
business by advertising, direct professional personnel to assist the beneficiary on 
obtaining the U.S. subsidiary's goals. He has the unfettered decision making 
authority in this regard, as well as how to expend company funds to further establish 
the business and expand into other geographical areas. 
Although the petitioner mentioned the beneficiary's 12-year career and academic training abroad, a 
description of his duties with the foreign entity was not provided. 
On September 14, 2007, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide detailed job descriptions listing the specific job duties the beneficiary 
performed abroad and would perform in his proposed position with the U.S. entity, as well as the 
percentage of time allocated to each job duty. The petitioner was instructed to provide similar job 
descriptions and percentage breakdowns for any supervisory staff at the foreign and U.S. entities. 
In response, the petitioner provided two virtually identical percentage breakdowns describing the 
beneficiary's employment abroad and in the United States. The director has included the 
beneficiary's foreign job description in the denial. As previously stated, the job descriptions for the 
beneficiary's foreign and U.S. employment are virtually identical, with the exception of the verb 
tense used to describe the two positions. As such, the AAO finds it unnecessary to repeat either of 
the percentage breakdowns in the current decision. 
The petitioner also provided copies of several of its quarterly wage reports, including one for the 
second quarter of 2007 during which the Form 1-140 was filed. It is noted that this document lists a 
total of three employees, including the beneficiary, the assistant manager, and who 
had not been previously named as one of the petitioner's employees at the time of filing. 
In a decision dated May 28, 2008, the director denied the petition. With regard to the beneficiary's 
employment abroad, the director found that while the beneficiary may not have been providing 
tattoos and piercings for customers, he appears to have been primarily engaged in operational tasks, 
including training employees and performing sales and marketing duties. 
With regard to the beneficiary's proposed U.S. employment, the director found that, given the size 
and scope of its business activity, the petitioner does not require an individual who would be 
primarily employed in a managerial or executive capacity. 
On appeal, the petitioner addresses key findings issued by the director, asserting that the director's 
decision was erroneous. First, the petitioner disagrees with the director's finding that the petitioner 
failed to assign a percentage of time to each of the beneficiary's proposed job duties, arguing that 
30% of the beneficiary's time was spent making discretionary decisions associated with sales and 
marketing rather than actually performing sales and marketing duties. The petitioner offers 
confusing statements in support of this argument, seemingly stating that the beneficiary's 
involvement in the sales function was limited to setting guidelines for contracts and establishing 
business relationships, while his involvement with the marketing function involved supervising the 
implementation of marketing programs and making decisions as to the types of marketing strategies 
that would be used. to promote the business. The petitioner claimed that the foreign entity had a 
sufficient staff to carry out the marketing functions. However, a review of the foreign entity's 
organizational chart does not identify any sales or marketing employees, nor is there a separate 
statement clarifying the foreign entity's daily operational tasks, who performed them, and which 
non-operational, i.e., qualifying tasks, were left for the beneficiary to perform. 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 
10 1 (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). 
Page 6 
Contrary to the petitioner's assertions, the beneficiary's foreign job description was overly broad, 
despite the petitioner's attempt to quantify the beneficiary's time allocation. The petitioner merely 
reiterates that the beneficiary established contacts and relationships with suppliers, but failed to 
specify actual daily job duties associated with the sales function. With regard to the marketing 
function, the petitioner claims that the beneficiary would select the appropriate marketing strategy 
and supervise the implementation of marketing programs. However, this explanation is similarly 
lacking in specific job duties that describe exactly how the beneficiary supervised implementation of 
a particular marketing strategy. Moreover, there is no clarification as to who actually implemented 
the selected marketing strategy. 
While the AAO acknowledges that the sales and marketing-related tasks cdnsumed only 30% of the 
beneficiary's time, the job description is equally as ambiguous as to the supervisory tasks that 
purportedly consumed another 50% of the beneficiary's time. In relation to his supervisory role, the 
petitioner merely stated that the beneficiary had the authority to hire and fire all staff as well as train 
the staff that performed customer service and artistic tasks. With regard to the latter, the petitioner 
failed to explain how the training of non-professional staff can be qualified as managerial or 
executive-level tasks. It therefore appears that at least a portion of the beneficiary's time spent 
performing supervisory duties is allotted to non-qualifying tasks. As the job description generally 
lacks sufficient detail, it is unclear how the beneficiary spent the primary portion of his time and 
whether that time encompassed primarily managerial or executive-level tasks. 
As previously stated, the petitioner's description of the beneficiary's proposed employment with the 
U.S. entity is nearly identical to the description of the foreign employment. Therefore, the above 
analysis can be similarly applied to the beneficiary's prospective position with the petitioning entity. 
Despite the petitioner's adamant assertions that a detailed job description has been provided, the 
record simply does not corroborate 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)). Additionally, the petitioner's focus on its increased income 
from the 2006 to the 2007 tax years is misplaced, as the financial growth of an entity in no way 
indicates that entity's ability to employ the beneficiary in a qualifying managerial or executive 
capacity. While the petitioner further asserts that its support staff has grown to 15 people since 
2007, eligibility must be established at the time of filing; 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). In the present matter, the record contains the 
petitioner's second quarterly wage report, which shows a total of three employees receiving what 
appear to be part-time salaries. 
Additionally, while the petitioner provided an organizational chart in response to the WE 
identifying a total of 16 employees, it named only eight employees in the supporting statement and 
in Part 5 No. 2 of the Form 1-140 the petitioner claimed only seven employees at the time of filing. 
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 of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). In the present matter, the record is not self-explanatory and 
the petitioner does not acknowledge or resolve the inconsistency with regard to its staffing at the 
time of filing. The AAO further notes that, while the petitioner provided a number of Forms 1099 
showing miscellaneous income paid in 2007, two of the individuals who were initially listed as 
employees are not among those to whom the Forms 1099 were issued. Additionally, the AAO found 
more inconsistencies when conducting a comparison of the more recent of the petitioner's 
organizational charts with the Forms 1099. Namely, a number of Forms 1099 were issued to 
individuals whose names do not appear on either of the petitioner's organizational charts, while other 
individuals, who were listed in one or both of the organizational charts, do not appear to have 
received a Form 1099 or a Form W-2. This lack of clarity precludes the AAO from being able to 
gauge the petitioner's need and ability to employ the beneficiary in a primarily managerial or 
executive capacity. Thus, in light of the deficient job descriptions that have been provided for the 
beneficiary's foreign and proposed employment coupled with the inconsistent documentation 
regarding the petitioner's organizational hierarchy at the time of filing, the AAO finds that the 
petitioner failed to establish that the beneficiary was employed abroad or that he would be employed 
in the United States in a qualifying managerial or executive capacity. 
Furthermore, the AAO finds that there is at least one additional ground of ineligibility that was not 
previously addressed in the director's decision. Namely, by virtue of the beneficiary's claimed 
ownership of the U.S. petitioner, it appears more likely than not that the beneficiary will not be an 
"employee" of the United States operation. As explained in 8 C.F.R. 5 204.50)(5), the petitioner 
must establish that the beneficiary will be "employed" in an executive or managerial capacity. It is 
noted that "employer," "employee," and "employed" are not specifically defined for purposes of the Act 
even though these terms are used repeatedly in the context of addressing the multinational executive and 
managerial immigrant classification. Section 203(b)(l)(C), 8 U.S.C. 5 1 153(b)(l)(C), requires 
beneficiaries to have been "employed" abroad'and to render services to the same "employer" in the 
United States. Further, section 10 1 (a)(44), 8 U.S.C. 8 1 10 1 (a)(44), defines both managerial and 
executive capacity as an assignment within an organization in which an "employee" performs certain 
enumerated qualifying duties. Finally, the specific definition of "managerial capacity1' in section 
10 1 (a)(44)(A), 8 U.S.C. 5 1 10 1 (a)(44)(A), refers repeatedly to the supervision and control of other 
"employees." Neither the legacy Immigration and Naturalization Service nor U.S. Citizenship and 
Immigration Services has defined the terms "employee," "employer," or "employed" by regulation 
for purposes of the multinational executive and managerial immigration classification. See, e.g., 8 
C.F.R. 5 204.5 and 8 C.F.R. tj 214.2(1). Therefore, for purposes of this immigrant classification, these 
terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 3 18, 322-323 (1 992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) ofAgency $ 220(2) (1958); Clackamas 
Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. ofAmerica, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at $ 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
a 
 Whether and, if so, to what extent the organization supervises the individual's 
work. 
a 
 Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
a 
 Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 53 8 U. S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a limited liability company, which the petitioner claims is ultimately owned 
and controlled by the beneficiary, who purports to assume a role as the petitioner's principal. As 
such, it appears the beneficiary is the employer for all practical purposes. He will control the 
organization; set the rules governing his work; and share in all profits and losses. 
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), afd, 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 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 has not sustained that burden. 
ORDER: The appeal is dismissed.