dismissed EB-1C Case: Trade Finance Systems

(b)(6)
DATE: Q 
2 
OFFICE: TEXAS SERVICE CENTER 
JUL 2014 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b )(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law 
or policy to your case or if you seek to present new facts for consideration, you may file a motion to 
reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or 
Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B 
instructions at http:Uwww.uscis.gov/forms for the latest information on fee, filing location, and 
other requirements. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECIS!Ot. 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter first came before the Administrative Appeals Office (AAO) on appeal, which was summarily 
dismissed. We will hereby reopen this proceeding, sua sponte, in order to address evidence that was 
previously submitted in support of the petitioner's appeal. 1 The appeal will be dismissed. 
The petitioner is a Delaware corporation that seeks to employ the beneficiary as its CEO. Accordingly, 
the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C) , as a 
multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish that (1) the petitioner 
and the beneficiary's foreign employer have a qualifying relationship; and (2) the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
I. TheLaw 
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 previou sly 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)(1)(C) of the Act as a multinational executive or manager. No labor certification is required for 
1 
The regulation at 8 C.F.R. § 103.5(a)(5)(ii) states that a Service officer, on his or her own motion, may 
reopen 
a Service proceeding or reconsider an adverse Service decision and issue a new decision that is 
adverse to the petitioner. 
(b)(6)
NON-PRECEDENT DECISI01 
Page 3 
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. 
II. Procedural History and Facts 
The record shows that the petition was filed on May 22, 2013 with a supporting statement, 
which described the U.S. entity as one of several subsidiaries that are part of a worldwide organization 
that operates as a full-service trade finance system vendor. The petitioner's supporting statement 
contained the following description of the beneficiary's proposed employment in the United States: 
As Chief Executive Officer, [the beneficiary] is responsible for the direction and 
coordination of activities and operation of the corporation, planning, formulating, and 
implementing administrative and operational policies and procedures, engaging in long­
range planning and identifying business opportunities in the U.S. and international 
markets, and supervising other managers and professionals. 
[He] will use his independent discretion and authority in identifying and cultivating new 
information resources, and developing strong and mutually beneficial relationship [sic] 
with new and prospective clients in the field of sales and customer service. [The 
beneficiary] will direct the organization's financial goals, objectives, and budgets, oversee 
the investment of funds and manage associated risks and supervise cash management 
activities. In addition, [his] duty [sic] will include formulating company policies, 
managing daily operations, and planning the use of materials and human resources. 
[The beneficiary] will also meet with staff members to direct the identification of 
opportunities for modification or new applications development that will improve [the 
petitioner's and its affiliates'] system capabilities to meet client needs. This includes 
providing guidance in the development of system objectives for the banking application, 
and obtaining management's commitment of resources to move the project forward. In 
addition, [the beneficiary] will oversee the establishment of requirements, deadlines, and 
deliverables, and ensure proper communication of these to the resource project team. 
Once the application is modified or developed, [the beneficiary] will oversee the 
establishment of training programs and materials for [the petitioner]'s personnel and 
clients, and will conduct presentations and customized training sessions when needed for 
current and prospective clients. 
The petitioner also provided supporting evidence in 
petitioner issued 100 shares of its stock to 
the form of a stock certificate, showing that the 
as well as a corporate 
tax return for 2011, including supplemental Form 5472, which listed as the 
petitioner's foreign shareholder and the following six related corporations: (1) 
(2) (3) (4) 
(5) and (6) . Each page of the Form 
(b)(6)
NON-PRECEDENT DECISIOJ 
Page 4 
5472 named as the petitioner's foreign shareholder and stated that 
located in Bermuda, was an indirect foreign shareholder, thus indicating that 
the latter entity directly owned Lastly, the petitioner provided corporate 
documents pertaining to Showing that owned 4,800 
shares, owned 1,920 shares, owned 1,200 shares, and 
owned 4,080 shares o 
~----------------------~ 
After reviewing the petitioner's submissions, the director determined that the petitioner did not provide 
sufficient evidence to establish that approval of the petition was warranted. Accordingly, on June 28, 
2013, the director issued a notice requesting additional evidence (RFE). Among the issues addressed in 
the RFE was that of the petitioner's qualifying relationship with the 
beneficiary's employer abroad. Namely, the director instructed the petitioner to provide evidence 
establishing that the petitioner and the beneficiary's employer abroad are similarly owned and controlled . 
The petitioner also addressed the beneficiary's proposed employment in the United States, instructing the 
petitioner to provide a statement describing the beneficiary's specific daily job duties and to indicate what 
percentage of time the beneficiary would allocated to each individual duty. The director also instructed 
the petitioner to provide its organizational chart identifying the beneficiary's subordinates by name and 
position title and listing each subordinate's job duties and level of education. The petitioner was expressly 
instructed to disclose its use of contract labor, if any, and to submit evidence of such use and establish the 
job duties they performed. In addition, the director instructed the petitioner to provide copies of 
degrees/diplomas for each of the beneficiary's subordinates along with the petitioner's quarterly tax 
returns for 2012 and 2013 . 
In response , the petitioner provided the following documents addressing the issue of the petitioner's 
qualifying relationship with the beneficiary's foreign employer: 
1. A share purchase agreement betwe en and 
showing the former entity's sale of its shares in 
2. A writt en r esolution issued by 
to 
o the latter entity. 
3. The petitioner's certificate of incorporation. 
agreeing to transfer its holdings in 
4. A stock subscription agreement. dated March 8. 2000. sbowing the petitioner's sale of 
100 share s of its stock to accompanied by a stock 
certificate , also dated March S, 2000, conveying the same information. 
5. Corporate documents pertaining to establishing its 
corporate existence on the Islands of Bermuda. 
With regard to the beneficiary's proposed position with the U.S. entity, the petitioner also provided a copy 
of its organizational chart depicting a hierarchy comprised of eight positions with the beneficiary's 
position depicted at the top of the hierarchy . The chart depicted three positions - a project services 
director, a business development director , and a support manager - as the beneficiary 's three direct 
subordinates. The chart provided the names, job duties, and educational credentials for the business 
(b)(6)
NON-PRECEDENT DECISI01 
Page 5 
development director and support manager, indicating that the position of project services director was 
vacant, despite naming two consultants as the direct subordinates of the project services director position. 
The petitioner also provided the following percentage breakdown of the beneficiary's "major 
responsibilities" as the petitioner's CEO: 
1. Direction and coordination of activities and operation of the company in the United 
States of America, Canada and some South American countries, among others[,] 
operational budget and cash flow management, supervision of sales and marketing 
initiatives, customer support, customer engagements, administrative issues, office 
management, etc. - 30% 
2. Identifying business opportunities in the U.S. and international markets, ensure [sic] 
that these opportunities are addressed appropriately and aggressively.- 30% 
3. With Sales Director, review current/existing Prospect and Sales engagements, 
authorize assignment of resources and budgets. - 12% 
4. With Project Directors and Managers, evaluate existing customer engagements, 
project progress, risks and new opportunities 
for business. - 10% 
5. With the Support Manager, review existing KPis, Customer and Project issues, 
Response times, escalations and risks. - 7% 
6. Supervising other managers and employees, including hiring and firing resources, 
interviewing staff and performing staff assessments. - 3% 
7. To adjust all employees' salary [sic] by evaluating their performance as well as 
decide each employee's bonus allocation accordingly at the end of each year[.] - 2%; 
[sic] 
8. Planning, formulating, and implementing administrative and operational policies and 
procedures for [the petitioner].- 2% 
9. With the Technical Department[,] ensure smooth operational ability, budgeting and 
cost effectiveness, including hardware and software asset management, online 
systems ... , administrative system[s], staff materials, etc.- 2% 
10. Reporting to board of directors, including financial goals, 
objectives, and budgets, investment of funds, associated risks and cash management 
activities. - 1% 
The petitioner also provided a separate list of the beneficiary's daily job duties without time allocations. 
That list consists of the following: 
1. Meet [s]upport and [t]echnical team, ensuring that the support operation is: 
a. Running in accordance to the SLA's established with [the petitioner's 
c]ustomers[.] 
b. Evaluate risks and ensure mitigating actions are being taken. 
c. Assess if escalations are required to CS Corporate Second Line support[.] 
d. Follow up on existing escalations, determine[,] with the support manager[,] what 
actions to take. 
(b)(6)
NON-PRECEDENT DECISIO!I 
Page 6 
2. Meet [ s ]ales staff, discuss the current initiatives and prospects. Ensuring [sic] that all 
sales opportunities are being covered appropriately, discuss current status, sales strategies 
and approaches to each and every opportunity. 
3. Meet [p]roject [m]anagers, and[,] if required[, c]onsultants, to evaluate current status of 
customer engagements/projects[, e ]nsuring: 
a. Projects are on track and customers are being invoiced on time[.] 
b. Projects are on budget and correctly staffed[.] 
c. Evaluate existing projects risks and ensure these are being addressed[.] 
d. Discuss any issues that would require intervention from CS Corporation 
[ d]evelopment [ c ]entre[.] 
e. Address any project escalations[.] 
f. Assess new business opportunities and actions to take. 
4. Travel and meet [c]ustomers, follow up on existing projects, discuss new opportunities , 
inform them of [the petitioner's] initiatives in the market and answer any questions they 
find relevant. 
5. Participate in [s]ales and [m]arketing initiatives where this is deemed strategic or relevant 
to [the petitioner's] business. 
6. Plan marketing initiatives such as road shows, conferences and other events [the 
petitioner] will participate [in]. Review materials and discuss/assign resources. 
7. Meet with the company secretary and accountant to review [the petitioner's] [c]ash 
[f]low, P&L, [i]nvoices and [r]eceivables. Follow up on [a]ccounts [r]eceivable, 
ensuring these are followed up and paid on time; [sic) 
8. Interview new employees. 
9. Review staff assessments, review staff financial packages and decide on pay raises and 
bonuses[.] 
10. Report to CS Corporation CEO, providing: 
a. [The petitioner's] financial status, including [c]ash [f)low, and [p]rofit & [l]oss, 
[r]eceivables, [r]isks and [i]ssues[.] 
b. Sales forecasts[.] 
c. Marketing initiatives and results[.] 
d. Issues and [ e ]scalations[.) 
11. Participate in annual CS Corporate Management meetings, prepare [the petitioner's] 
status and presentations, [and) discuss company strategy and current initiatives. 
12. To [sic] monitor daily, weekly, monthly, quarterly, semi-annual and annual business 
reports generated by each department to ensure the completeness, accuracy and 
compliance by signing on the related reports; [sic] 
13 .. [sic) Additional daily and weekly activities include: 
a. Attending additional meetings with the CEO and Senior executives when 
required[.] 
b. Reporting and analyzing weekly financial performance for board report. 
c. Making presentations, developing and updating current strategies for CEO 
reporting. 
d. Independent authority regarding personnel hiring and firing. 
(b)(6)
NON-PRECEDENT DECIS!OJ 
Page 7 
e. To evaluate subordinators' [sic] performance. 
14. Prepare support for [ 
c ]orporate/[ s ]trategic sales initiatives, manage preparation and test of 
demo systems and ensure remote access. 
Lastly, the petitioner provided the requested quarterly tax returns, including the tax return for the 2013 
second quarter during which the petitioner filed its Form 1-140. The tax return shows that the petitioner 
paid wages to a total of four employees during that quarter, thus indicating that the petitioner had no more 
than four employees at the time of filing. 
After reviewing the petitioner's submissions, the director determined that the petitioner failed to establish 
eligibility for the immigration benefit sought herein. First, the director concluded that the petitioner 
failed to establish that it had a qualifying relationship with the beneficiary's foreign employer. The 
director observed that the petitioner provided a sale and purchase agreement regarding the sale and 
purchase of share capital of without explaining how this transaction 
relates to either the petitioner or the beneficiary's foreign employer. Second, the director concluded that 
the petitioner failed to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. The director determined that the petitioner's limited 
organizational hierarchy - comprised of the beneficiary, five employees, and two consultants - would 
require the beneficiary to perform operational tasks that are outside the realm of what would be deemed 
as being within a qualifying managerial or executive capacity. The director therefore denied the petition. 
Counsel, on behalf of the petitioner, filed an appeal seeking to overcome the director's findings. Upon 
review, and for the reasons stated below, we find that the petitioner has failed to establish that it has a 
qualifying relationship with the beneficiary's employer abroad or that the beneficiary will be employed in a 
primarily managerial or an executive capacity. 
III. Issues on Appeal 
As indicated above, there are two primary issues that will be addressed on appeal. First, we will 
determine whether the petitioner provided sufficient evidence to establish that the petitioner and the 
beneficiary's employer abroad have a qualifying relationship. Second, we will address the beneficiary's 
proposed position with the U.S. entity to determine whether the petitioner provided sufficient evidence to 
establish that the beneficiary would be employed in the United States in a qualifying managerial or 
executive capacity. 
A. Qualifying Relationship 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that 
the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. 
entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
(b)(6)
NON-PRECEDENT DECISIO!I 
Page 8 
§ 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5G)(2) (providing definitions 
of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5G)(2) states in pertinent part: 
Affiliate means: 
(A) 
(B) 
One of two subsidiaries both of which are owned and controlled by the same parent 
or individual; · 
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 addition, 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 United States 
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 (Assoc. Comm. 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. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are 
not sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate 
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to 
determine the total number of shares issued, the exact number issued to the shareholder, and the 
subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning 
company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of 
the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec . 362. Without full 
(b)(6)
NON-PRECEDENT DECISI0./1 
Page 9 
disclosure of all relevant documents, USCIS is unable to determine the elements of ownership 
and control. 
In the present matter , the petitioner states that it is an affiliate of the 
beneficiary's foreign emiJloyer, based on the claim that both enttttes are wholly owned 
subsidiaries of the common parent entity. However, the record 
in the present matter does not support this claim. 
The supporting evidence includes a stock subscription agreement and corresponding stock 
certificate, both of which identify as the petitioner's owner. 
Specifically, the stock certificate indicates that the petitioner issued 100 shares of its stock to 
which, according to Form 5472 of the petitioner's 2011 and 2012 tax returns, 
is located in , United Kingdom. The record indicates that 
and are two separate entities . This is demonstrated in the corporate 
documents pertaining to , which indicate that the latter is an 
entity that is located in Bermuda and whose shares were previously owned by four individuals in 
various proportions. The record does not contain evidence to establish a relationship between 
which the petitioner claimed as its owner in its October 26, 
2012 supporting statement, and which the above noted documents name 
as the petitioner's owner; nor does the record establish that the two names apply to the same 
company. In addition , the record contains no other evidence, such as a stock certificate ledger or 
stock certificate registry belonging to the petitioner, to establish that the petitioner did not issue 
shares beyond those issued to We find it reasonable to inquire into 
other potential stockholders, given that the petitioner's stock certificate clearly indicates that the 
petitioner is authorized to issue a total of 3,000 shares and has provided a single stock certificate 
to show that only 100 of those shares have been issue. 
Although the petitioner provided more documentation in its RFE response, the additional 
evidence did not pertain to the petitioning entity. Rather, the evidence pertained to the 
beneficiary's foreign employer and established that the group of companies 
underwent restructuring, which resulted in a written resolution, dated February 6, 2013, and a 
sale/purchase agreement, also dated February 6, 2013, which effectively transferred ownership of 
the foreign entity from ( located in to 
located in Hong Kong. 
In addition, while the petitioner now provides a document titled, "Register of Members " showing 
that the holding company became the majority owner of - the 
entity claiming to be the common parent of the petitioner and the beneficiary's emoJovei abroad -
as of February 24, 2012, the evidence of record does not establish that 
is or has been an owner of the petitioning entity. As previously noted, all 
documentation pertaining to the petitioner's ownership named of 
U.K., not of Bermuda, as its owner. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
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). 
We further note that the petitioner provided no documentation to establish the ownership of 
the entity that the petitioner's stock certificate, stock subscription agreement, 
and the petitioner's 2011 and 2012 tax returns identified as the petitioner's owner. In addition , 
despite the common location of and the record 
contains no evidence that would lead to the conclusion that these names are interchangeable and 
pertain to the same entity. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)). 
In summary, the record fails to establish that the petitioner and the beneficiary's former employer 
abroad have been commonly owned by the same holding company since the date the petition was 
filed. While the name is common to the names of both entities and their 
respective chains of ownership, this commonality is not sufficient to establish that the petitioner's 
claims and the claims made in the organogram that was submitted on appeal are true. As 
indicated above, the evidence provided only shows that the beneficiary's foreign employer is 
owned by the holding company, either directly or indirectly. The same is not true, however, of 
the petitioner, whose ownership evidence indicates that it is owned bv 
The record contains no evidence to establish that ownership of was 
either transferred to or that it actually originated with the same holding company- -----....J 
In light of the various deficiencies and inconsistencies discussed above, we cannot conclude that 
the petitioner provided sufficient documentation to establish the existence of a qualifying 
relationship with the beneficiary's employer abroad. Therefore, on the basis of this initial finding 
of ineligibility the instant petition cannot be approved. 
B. Managerial or Executive Employment in the United States 
Next, we will address the director's second adverse finding concerning the beneficiary's proposed 
employment with the petitioning U.S. entity. As previously indicated, the petitioner must furnish a 
written job offer that clearly describes the beneficiary's proposed job duties and indicates that the 
beneficiary's proposed employment will be in a managerial or executive capacity. 8 C.P.R.§ 204.5(j)(5). 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
-·· -· · --· ·- -···--- ·--------- - ~------··-· -----------
(b)(6)
Page 11 
NON-PRECEDENT DECISIOl 
(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. § 1101(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 general, when examining the executive or managerial capacity of a given position, we review the 
totality of the record, starting first with the petitioner's description of the beneficiary's job duties. See 
8 C.F.R. § 204.5G)(5). Published case has determined that the duties themselves will reveal the true 
nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Also critical to this analysis are factors such as 
staffing size, job descriptions of the beneficiary's subordinates and other employees who will carry out the 
petitioner's daily operational tasks, the nature of the business conducted, and any other facts that may 
contribute to a comprehensive understanding of the beneficiary's actual role within the petitioning 
organization. 
(b)(6)
NON-PRECEDENT DECISI01 
Page 12 
Turning to the beneficiary's description of job duties, the record shows that the petitioner failed to follow 
the director's express RFE instructions, asking the petitioner to list the beneficiary's job duties with time 
constraints to establish that the beneficiary's time would be primarily allocated to tasks within a 
qualifying capacity. Although the petitioner provided a job description containing a percentage 
breakdown, large time allocations were assigned to overly generalized job responsibilities, which failed to 
convey a meaningful understanding of the beneficiary's daily tasks. Namely, the petitioner allocated 30% 
of the beneficiary's time to directing and coordinating activities, including cash flow management, 
supervision of sales and marketing, customer support and engagements, administrative issues, and office 
management. The petitioner did not expressly discuss the beneficiary's specific role with respect to any 
of these activities. For instance, the petitioner did not state which tasks demonstrate the beneficiary's 
management of the petitioner's cash flow or his supervision of sales and marketing. In addition, without 
further explanation, the beneficiary's direct involvement in customer support and customer engagements 
as well as administrative issues and office management indicates that the beneficiary would be 
responsible for carrying out operational tasks, which cannot be deemed as tasks performed within a 
qualifying managerial or executive capacity. 
The petitioner similarly allocated another considerable portion of the beneficiary's time - 30% - to 
identifying business opportunities in international markets, which, without further explanation, also 
indicates that the beneficiary would be directly engaged in conducting market research - another non­
qualifying operational task. We also question the validity of the claim that the beneficiary would allocate 
10% of his time to meeting with the petitioner's project directors and managers to evaluate customer 
engagements and work progress. Given that the position of project services director was vacant when the 
petitioner's organizational chart was submitted and in light of the fact that the chart only depicts one other 
managerial position - that of support manager - it is unclear how the beneficiary would be able to fully 
carry out this job duty without the required staff of multiple managers and a project director. 
While the record contains a more detailed description of job duties that directly follow the percentage 
breakdown, the job duties are not accompanied by the requested time allocations to indicate precisely 
how much time the beneficiary plans to spend on each of the listed tasks. In other words, the petitioner 
did not follow the director's instructions, which asked the petitioner for a job description consisting of the 
beneficiary's specific daily job duties and their respective time allocations. Instead, the petitioner 
provided two separate job descriptions - one, which included the requested percentage breakdown but 
which was comprised largely of broad job responsibilities, and another, which while listing the 
beneficiary's specific job duties lacked the requested time allocations. 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(b)(14). 
Notwithstanding the petitioner's failure to assign time allocations to the job duties listed in the second job 
description, the list itself is comprised of tasks that are inconsistent with the staffing and management 
structure that is depicted in the organizational chart the petitioner included in its RFE response. For 
instance, the petitioner indicated that the beneficiary would meet with the support and technical team to 
ensure that the operation is running smoothly, that all risks have been properly evaluated and damages 
mitigated, and that further action is taken where such action is deemed necessary. The petitioner did not, 
(b)(6)
NON-PRECEDENT DECISI01 
Page 13 
however, establish which employees comprise the support and technical team; nor is there sufficient 
evidence that the petitioner had such a team in place at the time the petition was filed. Similarly, the 
petitioner stated that the beneficiary would meet with a "sales staff" and project managers, thus indicating 
that it had multiple sales personnel and project managers in place within the organization at the time of 
filing. However, a review of the petitioner's organizational chart shows only one sales position - that of 
vice president/sales engineer - and does not identify even one employee in the position of project 
manager. Given that the petitioner's entire sales staff is comprised of a single employee and in light of the 
petitioner's overall lack of any project managers, it is reasonable to assume that the beneficiary would 
assist in carrying out the underlying operational duties of the sales function and that he would also be 
directly involved in project management in order to fulfill the petitioner's immediate needs in the running 
of its organization. 
In addition to the non-qualifying tasks that the beneficiary would likely have to perform due to its limited 
staffing arrangement, the petitioner expressly stated that the beneficiary would carry out such non­
qualifying tasks, as travel to meet with customers, participate in sales and marketing initiatives, attend 
road shows and conferences as a means of marketing the petitioner's services, and interview new 
employees. While the petitioner did not establish precisely how much of the beneficiary's time would be 
allocated to these and other potentially non-qualifying tasks, it cannot be assumed that the beneficiary 
would dedicate his time primarily to the performance of tasks within a qualifying capacity without 
adequate supporting evidence. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. at 165. While no beneficiary is required to allocate 100% of his or her time to managerial- or 
executive-level tasks, the petitioner maintains the burden of establishing that the non-qualifying tasks the 
beneficiary would perform are only incidental to the proposed position. An employee who "primarily" 
performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the 
Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also 
Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). Here, the petitioner 
has offered deficient job descriptions that fail to give a proper account of the beneficiary's qualifying job 
duties and the proportion of time they would consume when compared to the non-qualifying tasks that 
were expressly listed. 
Furthermore, after assessing the beneficiary's job duties in light of the petitioner's organizational chart and 
other evidence of the petitioner's staffing at the time of filing, it cannot be concluded that the petitioner 
was adequately staffed such that it was able to relieve the beneficiary from having to allocate his time 
primarily to the performance of non-qualifying tasks. Merely establishing that the beneficiary performs 
tasks of a professional nature is not sufficient unless those tasks rise to the level of a manager or executive 
and are performed in an organization that is capable of supporting the beneficiary in a position where the 
primary portion of his time would be allocated to managerial- or executive-level tasks. In fact, in 
reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family, Inc. v. U.S. Citizenship and Immigration 
Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F.2d 
(b)(6)
NON-PRECEDENT DECIS!OJ 
Page 14 
175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is appropriate for USCIS 
to consider the size of the petitioning company in conjunction with other relevant factors, such as a 
company's small personnel size, the absence of employees who would perform the non-managerial or 
non-executive operations of the company, or a "shell company" that does not conduct business in a 
regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In the matter at hand, the record does not establish that the petitioner had the staffing to comprise and 
organizational complexity that support the beneficiary in a qualifying managerial or executive capacity. 
Moreover, the record contains inconsistencies as to the petitioner's staffing composition. Specifically, the 
Form I -140 shows that the petitioner claimed to have a total of six employees at the time of filing. 
However, a review of the petitioner's quarterly tax return for the 2013 second quarter, which includes the 
month during which the petition was filed, shows that the petitioner did not employ more than four 
employees at that time. Although the petitioner depicted two consultants in its organizational chart, thus 
indicating the possibility that they may be contractual workers rather than employees to whom the 
petitioner paid regular wages that would be record on the quarterly tax returns, the petitioner did not 
provide supporting evidence establishing this to be the case, despite the fact that the RFE expressly 
instructed the petitioner to disclose any use of contract labor and to provide documents showing the 
number of contractors used. As noted previously in this discussion, we cannot accept the petitioner's 
claims as fact when such claims are not corroborated with proper supporting documentary evidence. See 
Matter of Soffici, 22 I&N Dec. at 165. Furthermore, we find that the director's acceptance of the 
petitioner's claims regarding its staffing composition was premature and not warranted in light of the 
petitioner's failure to provide evidence corroborating the staffing hierarchy depicted in its organizational 
chart. !d. 
Accordingly, based on our review of the totality of evidence that has been presented in support of the 
matter at hand, we find that the petitioner has failed to establish that it would employ the beneficiary in a 
qualifying managerial or executive capacity and on the basis of this second ground for ineligibility, the 
instant petition must be denied. 
IV. Conclusion 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.