dismissed EB-1C Case: Trade Finance

(b)(6)
DATE : OFFICE: TEXAS SERVICE CENTER 
SEP 2 2 2014 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administr ative 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://www.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 . 
www. uscis.gov 
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DISCUSSION: The preference visa petitiOn was denied by the Director, Texas Service Center. The 
petitioner filed an appeal with the Administrative Appeals Office (AAO) where the appeal was dismissed. 
The matter is now before the AAO on a motion to reopen and reconsider. The AAO will grant the petitioner's 
motion . However, the underlying decision to dismiss the appeal will be affirmed. 
I. Procedural History 
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, listing three issues as grounds for the adverse decision. The director 
determined that the petitioner failed to provide evidence establishing that the following criteria have been 
met: (1) a qualifying relationship exists between the petitioner and the beneficiary's former employer abroad; 
(2) the beneficiary would be employed in the United States in a qualifying managerial or executive capacity; 
and (3) the foreign entity is doing business . 
II. The Law 
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)(1)(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. 
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III. Factual Background 
The record shows tha:t tlie petitiOn was filed on May 22, 2013 and was accompanied by a supporting 
statement, dated October 26, 2012, 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 sup 
issued 100 shares of its stock to 
orting evidence in the form of a stock certificate, showing that the petitioner 
2011, including supplemental Form 5472, which listed 
shareholder and the following six related corporations: 
as well as a corporate tax return for 
I. as the petitioner's foreign 
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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 former 
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 director 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. In addition, the director 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, submit evidence of such use, and establish the job duties to be 
performed by anyone hired on a contractual basis. The director also 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 between 
showing the former entity's sale of its shares in 
to the latter entity. 
2. A written resolution issued by agreeing to transfer its holdings in 
3. The petitioner's certificate of incorporation. 
4. A stock subscription agreement, dated March 8, 2000, showing the petitioner's sale of 
100 shares of its stock to accompanied by a stock certificate, 
also dated March 8, 2000, conveying the same information. 
5. Corporate documents pertaining to establishing its 
corporate existence in Bermuda. 
With regard to the beneficiary's proposed position with the U.S . entity, the petitioner also provided a copy of 
its organizational chart illustrating 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 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 
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Imtiatives, 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 KPls, 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 systemfsl, 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 l support[.] 
d. Follow up on existing escalations, determine(,] with the support manager(,] what 
actions to take. 
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 
[ d)evelopment [ c]entre[.] 
e. Address any project escalations[.] 
f. Assess new business opportunities and actions to take. 
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4. Travel and meet [ c]ustomers, follow up on ex1sttng 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[.l 
10. Report to 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 ]scalationsr.l 
11. Participate in annual 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 included: 
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. 
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 failed to explain how the sale and purchase agreement regarding the sale and purchase of 
share capital of 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 
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consultants - would require the beneficiary to perform oper ational tasks that are outside the realm of what 
would be deemed as being within a qualifying managerial or executive capacity. Finally, the director 
determined that the petitioner failed to submit requested evidence establishing that the foreign entity has been 
doing business . In light of these findings, the director issued a decision, dated November 5, 2013, denying 
the petition. 
Counsel, on behalf of the petitioner, filed an appeal seeking to overcome the denial and the underlying 
findings. Upon review, and for the reasons stated below, we find that the petitioner has failed to establish that 
it is eligible for the immigration benefit sought herein. Notwithstanding our ultimate decision to dismiss the 
petitioner's appeal, we find that the petitioner has provided sufficient evidence on appeal to establish that the 
foreign entity is doing business. Therefore, we hereby withdraw the director's adverse finding with regard to this 
issue and will focus this discussion on the two remaining grounds- the petitioner 's failure to establish that (1) it 
has a qualifying relationship with the beneficiary's foreign employer and (2) that the beneficiary's proposed 
position will be in a qualifying managerial or executive capacity. 
IV. Issues on Appeal 
As indicated above, this decision will focus on two primary issues. First, we will determine whether the 
petitioner provided sufficient evidence to establish that the petitioner and the bene ficiary'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§ 203(b)(l)(C) of the 
Act, 8 U.S.C. § 1153(b )(l)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" 
and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertin ent part: 
Affiliate 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 . 
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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 disclosure of all relevant documents, USCIS is 
unable to determine the elements of ownership and control. 
In the present matter, the petitioner claims to be an affiliate of the 
beneficiary's em Ioyer abroad, based on the assertion that both entities are wholly owned subsidiaries 
of the common parent entity. However, the record in the pres ent 
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 are 
two separate entities. This is demonstrated in the corporate documents pertaining to 
which indicate that the latter entity, located in Bermuda, previously issued its stock 
to four individuals in various proportions. The record does not contain evidence to establish the 
existence of 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 transferred to We find it reasonable to 
(b)(6)
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inquire about 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 issued. 
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 
.E 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 beneficiar 's employer 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 U.K., not 
of Bermuda , as its owner. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcil e 
such inconsistencies will not suffice unless the petition er submits competent objective evidenc e 
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 netitjoner's 2011 and 2012 taueturns ide_ntified as the petitioner's owner. Similarly, the fact that 
are both located in Bermuda, does not mean that 
the entities are one and the same . 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 addition, the petitioner's submission of a organogram on appeal as a means of 
clarifying the ownership structure of the group of companies further perpetuates the 
confusion created as a result of the anomalies described above. While the chart simplifies the 
ownership scheme by depicting as the parent entity with 100% 
ownership interest in eight entities, including the petitioner, and, indirectly, the beneficiary's former 
employer abroad, the record does not corroborate the information conveyed in the chart. As 
previously discussed, the record fails to establish that the petitioner and the beneficiary's former 
employer abroad havf; 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 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 by The record contains no evidence to establish 
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that ownership of was either transferred to or that it actually originated 
with the same holding company- ------~----
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.F.R. § 204.50)(5). 
Section 101(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--
(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; 
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(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. 
§ 204.5(j)(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. 
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 indicated that the beneficiary would 
allocate 30% of his 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 30% of the beneficiary's time 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 
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follow the director's instructions, which asked the petitiOner for a job description cons1stmg 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, 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. at 604. 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
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 US CIS "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. US. Citizenship and Immigration Services, 469 F.3d 1313, 
1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 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 and organizational 
complexity to 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 a quarterly tax return, 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. Moreover, 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)(l4). 
Accordingly, based on our review of the totality of evidence, 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. 
V. 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 motion is dismissed.