dismissed EB-1C Case: Travel Agency And Property Management

#. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
"JAW 1 1 206 
i 
FILE: WAC 03 025 54339 Office: CALIFORNIA SERVICE CENTER  ate: 
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. 3 1153(b)(l )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
.. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 025 54339 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based petition. The matter 
is now before the Administrative Appeals Office (Am) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of California in September 2001. It is a travel agency 
and property management company. It seeks to employ the beneficiary as its president. 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 1153(b)(l)(C), as a multinational 
executive or manager. 
The director determined that the petitioner had not established: (1) that the beneficiary would be employed in 
a primarily managerial or executive capacity for the United States entity; or (2) that it has a qualifying 
relationship with the beneficiary's foreign employer. 
On appeal, counsel for the petitioner submits a brief in response to the director's decision. 
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 fm or corporation or other legal entity or an 
affiliate or subsidiary thereof and who seeks to enter the United 
States in order to continue to render services to the same employer or 
to a subsidiary or affiliate thereof in a capacity that is managerial or 
executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must hrnish a job offer in the form of a 
statement that indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
5 204.5(j)(5). 
1 
WAC 03 025 54339 
Page 3 
The first issue in this proceeding is whether the beneficiary will be employed in a managerial or executive 
capacity for the United States entity. 
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; 
. . 
11. 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 fbnction 
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 lOl(a)(#)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
1. directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
fimction; 
... in. 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. 
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In an October 15, 2002 letter appended to the petition, the petitioner stated the beneficiary's duties in the 
United States included: 
Direct and coordinate activities of the U.S. Corporation. Formulate and administer 
organization policies; Participate in formulating and administering company policies and 
developing long range goals and objectives; Direct and coordinate activities of the company 
for which responsibility is delegated to further attainment of goals and objectives. Review 
analyses of activities, cost, operation and forecast data and objectives. Negotiate the 
contracts with the vendors and customers. Do market research to look into diversifying the 
business. 
The petitioner also provided its organizational chart showing the beneficiary as president, an exportlimport 
manager position, a marketing position, and a secretarial position. 
On April 7, 2003, the director requested: (1) the petitioner's organizational chart showing the managerial 
hierarchy and staffing levels as of October 31, 2002, the date of filing the petition; (2) that the petitioner's 
organizational chart include the names of all employees within each department and a brief job description, 
educational level, and annual salary of each employee under the beneficiary's supervision; (3) a more detailed 
description of the beneficiary's duties; and (4) the petitioner's California Forms DE-6, Employer's Quarterly 
Report, for the fourth quarter of 2002 and the frst quarter of 2003. 
In a June 15, 2003 response, counsel for the petitioner stated that the beneficiary is responsible for overall 
management, operation, and administration of the business. Counsel described the beneficiary's duties as: 
a. He directs and coordinates activities of the U.S. Corporation related to the business 
development. Oversee the travel agency and the export/import, and Property 
Management business[;] 25% 
b. He coordinate the finance and formulate and administer organization policies [sic]; 
Participate in formulating and administering company policies and developing long 
range goals and objectives; 20% 
c. He studies the market for new venture[.] Do market research to look into diversifying the 
business. 15 % 
d. Meet the vendors. Negotiate the contracts with the vendors and the customers. 20% 
e. Review the property agreements, and follow up with escrow and management 
companies. Make profitable deals. Hire Management team to manage the properties 
purchased. Oversee the management team. 20% 
The petitioner's organizational chart showed the beneficiary's position ,a president, and a businessloperations 
manager position, a marketinglsales manager position, an export/import manager position, and a property 
management manager position. The petitioner's California Forms DE-6, for the last quarter of 2002 and the 
first quarter of 2003, confirmed that the marketinglsales manager position and the business/operations 
manager were either part-time employees or employed sporadically. The California Forms DE-6 showed that 
WAC 03 025 54339 
Page 5 
the only full-time employee, other than the beneficiary, was the importlexport manager and that the property 
management manager position was vacant. 
The director determined that the description of the beneficiary's job duties did not establish that the 
beneficiary met the criteria outlined in the definition of executive capacity. The director also reviewed the 
petitioner's organizational chart and found it reasonable to believe that with the petitioner's organizational 
structure the beneficiary would assist with day-to-day non-supervisory duties. The director concluded that the 
beneficiary did not qualify as a manager as he would not be primarily supervising professional employees and 
that he did not qualify as a functional manager as he would be involved in performing routine operational 
activities rather than managing a function. 
On appeal, counsel asserts that the beneficiary performs executive duties. Counsel claims "managerial 
positions not only involve supervising personnel but can also involve supervising products, services, and the 
overall management, analyzing market, analyzing management policies, and analyzing financial information 
of the company." Counsel contends "the changes made to the 1990 Act specifically bars the number of 
persons supervised as the sole basis for denying managerial status to an employee." Counsel confirms that the 
petitioner is a new business and that the beneficiary's subordinates work part-time but claims that the 
petitioner is in the process of expanding. Counsel cites unpublished decisions to support his contentions. 
Counsel's assertions are not persuasive. When examining the executive or managerial capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
5 204.56)(5). The petitioner's description of the job duties must clearly describe the duties to be performed 
by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. Id. The 
petitioner must specifically state whether the beneficiary is primarily employed in a managerial or executive 
capacity. A petitioner cannot claim that some of the duties of the position entail executive responsibilities, 
while other duties are managerial. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states that 
the beneficiary's duties include "[d]irect[ing] and coordinate[ing] activities of the U.S. Corporation," 
"[flormulat[ing] and administer[ing] organization policies," and "developing long range goals and objectives." 
The petitioner did not, however, define the petitioner's goals, policies, or clarify who actually perfoms the 
travel agency services or provides the daily property management services. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the beneficiary is the individual who is responsible for "[n]egotiat[ing] the contracts with the 
vendors and customers," and "the market research to look into diversifying the business." An employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
WAC 03 025 54339 
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employed in a managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 
593,604 (Cornm. 1988). 
In response to the director's request for further detail regarding the beneficiary's daily duties, the petitioner 
again provides generalities rather than details. The petitioner indicates the beneficiary oversees the travel 
agency, the export/import business, and the property management business without clarifying who in the 
company is responsible for carrying out the daily operational and administrative tasks necessary to provide 
travel services and property management. Of note, the record does not contain evidence that the petitioner is 
actively engaged in importing or exporting products. 
Further, rather than providing a specific description of the beneficiary's duties, the petitioner generally 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. 
8 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as "formulat[ing] and administer[ing] 
organization policies" and "[p]articipat[ing] in formulating and administering company policies and 
developing long range goals and objectives." Not only is the petitioner's description of the beneficiary's 
duties repetitive, the petitioner's conclusory assertions regarding the beneficiary's employment capacity are 
not sufficient to meet the petitioner's burden of proof. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof Fedin Bros. CO., Ltd. v. Suva, 724 F. Supp. at 
1108; Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The record does not support counsel's assertion that the beneficiary performs executive duties. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter Of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). Moreover, while counsel's claim that managerial positions do not require the supervision of 
personnel is partially correct, counsel has not provided evidence that the beneficiary primarily manages a 
function. When a petitioner claims that a beneficiary is managing an essential function, the petitioner must 
identify the fimction with specificity, articulate the essential nature of the function, and establish the 
proportion of the beneficiary's daily duties attributed to managing the essential fhction. In addition, the 
petitioner must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating to the 
function. As observed above, an employee who primarily performs the tasks necessary to produce a product 
or to provide services is not considered to be employed in a managerial or executive capacity. Matter of 
Church Scientology International, 19 I&N at 604. In this matter, the petitioner has not provided evidence that 
the beneficiary manages an essential fhction. 
Counsel contends that the 1990 Act specifically bars the number of persons supervised as the sole basis for 
denying managerial status to an employee. In fact, section 10l(a)(44)(C) of the Act requires that if staffing 
levels are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity, CIS must take into account the reasonable needs of the organization, in light of the overall purpose 
and stage of development of the organization. However, to establish that the reasonable needs of the 
organization justify the beneficiary's job duties, the petitioner must specifically articulate why those needs are 
reasonable in light of its overall purpose and stage of development. Further, it is appropriate for CIS to 
WAC 03 025 54339 
Page 7 
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. 200 1). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. In this matter, the petitioner has not presented evidence that the petitioner's part-time employees 
relieve the beneficiary from providing the petitioner's travel agency and property management services. 
Counsel's explanation that the petitioner is a new business in the process of expanding is not persuasive. A 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Counsel's citation to unpublished decisions is not probative. The regulation at 8 C.F.R. § 103.3(c) provides 
that while AAO precedent decisions are binding on all CIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
On review, the petitioner has not presented sufficient evidence to establish that the beneficiary's duties for the 
petitioner will include primarily executive or managerial duties. 
The next issue in this proceeding is whether the petitioner has established a qualifying relationship with the 
beneficiary's foreign employer. In order to quali5 for this visa classification, the petitioner must establish that a 
qualifying relationship exists between the United States and foreign entities in that the petitioning company is the 
same employer or an affiliate or subsidiary of the foreign entity. See section 203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R 5 204.56)(2) states in pertinent part: 
Afiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of the entity, but in fact controls the entity. 
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In its October 15, 2002 letter in support of the petition, the petitioner indicated that R.K. Steel Syndicate 
owned a 51 percent in the petitioner. The petitioner also included its Internal Revenue Service (IRS) Form 
1120, U.S. Corporation Income Tax Return, for the petitioner's tax year beginning September 1,2001 through 
August 3 1, 2002. In response to Schedule K, Question 5, the petitioner referred to an attached statement that 
indicated the beneficiary, an individual, owned 100 percent of the petitioner's voting stock. The IRS Form 
1120 also showed at Schedule L, Line 22(b) that the petitioner's common stock was valued at $76,730. 
The director requested proof of the stock purchase including copies of original wire transfers from the parent 
company to the petitioner with the originators of the monies wired or deposited clearly shown. The director 
specifically required an explanation for all funds not originating with the foreign company. The director also 
requested the minutes of the U.S. company's meeting that listed the petitioner's stock shareholders, and the 
number or percentage owned, the petitioner's stock certificates issued, the petitioner's stock ledger, and the 
petitioner's Notice of Transaction filed with the State of California's Corporation Commissioner. 
In response, counsel for the petitioner noted that the foreign company had paid a broker and the broker 
transferred money to the United States. Counsel indicated that the foreign entity and the petitioner were both 
family businesses. Counsel attached a copy of a wire transfer showing the originator of the $20,000 in wired 
funds asand showing the beneficiary as the petitioner's bank account. The petitioner's Notice of 
Transaction dated July 1,2001 showed the value of the petitioner's securities sold as $10,000. The petitioner's 
minutes of its organizational meeting listed the authorized number of shares at 10,000. The minutes listed the 
initial shareholders as: 
1 
The petitioner provided copies of share certificates 1 through 5 showing the shareholders with the number of 
shares as above listed. The petitioner's stock ledger confinned the number of shares that had been issued but 
showed that each shareholder had paid $1.00 per share. 
The director determined that the petitioner had not provided a clear path of funds from the foreign entity to 
the petitioner and concluded that the petitioner had not provided evidence to substantiate the claim of a 
qualifying relationship. 
On appeal, counsel for the petitioner asserts that the foreign entity transferred money to the petitioner for its 
initial investment through one of its Canadian suppliers. Counsel attaches a letter purportedly from the 
foreign entity stating that the foreign entity "had some funds lying in reserve with their suppliers in Canada" 
and with the help o transferred the funds to the petitioner to set up the new business. 
Counsel's assertion is not persuasive. As stated previously, the assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. at 534; Matter Of Laureano, 19 I&N Dec. 1; Matter of 
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Page 9 
Ramirez-Sanchez, 17 I&N Dec. at 506. 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 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In 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. 
In this matter, the record contains inconsistencies regarding the petitioner's ownership and control. The 
petitioner's IRS Forms 1120 show that the beneficiary is the 100 percent owner of the petitioner's stock. This 
statement directly contradicts the petitioner's organizational minutes that show the beneficiary owns 1,400 
shares of the 10,000 shares issued. In addition, the petitioner's IRS Form 1120 values the petitioner's 
common stock at $76,730 wbile the petitioner's stock ledger shows that each shareholder had paid $1 .OO per 
share. This information is also inconsistent with the foreign entity's alleged transfer of $20,000 to purchase 
its 51 percent interest in the petitioner. 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. at 591-92. The record contains inconsistent information regarding the foreign entity's 
purported investment in the petitioner. Doubt cast on any aspect of the petitioner's proof may, of course, lead 
to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter ofHo, 19 I&N Dec. at 591. 
The petitioner has not presented consistent evidence establishing the petitioner's ownership and control and its 
qualifying relationship with the beneficiary's foreign employer. 
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. Here, that burden has not been met. 
ORDER: The appeal is dismissed.