a&t financial services, inc. and jianfeng aao & district court dismissals 2013-2015
TRANSCRIPT
(b)(6)
DATE: SEP 2. 7 201l OFFICE: NEBRASKA SERVICE CENTER
INRE: Petitioner: Beneficiary:
U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office of Administrative Appeals 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 )(I )(C) of the Immigration and Nationality Act, 8 U.S. C. § II 53(b )(I )(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. § I 03.5. Do not file a motion directly with the AAO.
Thank you,
l:~ ~on Rosenberg
Chief, Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petitio n and the matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a California corporation engaged in immigration and investment serv ices. The petitioner
states that it is a subsidiary of in China. The petitioner
seeks to employ the beneficiary as its managing director. 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. § ll53(b)(l)(C), as a multinational executive or manager.
The director denied the petition, finding that the petitioner had not timely and adequate ly responded to a
request for evidence (RFE). Specifically, the director noted that the petitioner had failed to submit the
following directly requested evidence: (1) evidence that the petitioner has a qualifying re lationship with the
foreign employer; and (2) evidence that the beneficiary had at least one year of full-time employment with
the foreign employer in the three years preceding the filing of the petition. The director further observed that
the petitioner fail ed to provide detailed descriptions of the beneficiary 's position with the foreign employer
and proposed position with the petitioner or organizational charts depicting the personnel structure of the
foreign and U.S. companies.
On appeal, counsel states that the petitioner submitted a timely response to the RFE. Further, counsel
asserts that the petitioner provided sufficient evidence to establish that it has a qualifying relationship with
the foreign employer and to establish that the beneficiary had one year of full-time qualify ing managerial or
executive employment abroad. Finally, counsel contends that the petitioner submitted detailed job
descriptions and organizational cha1ts. Counsel indicated on the Form I-290B , Notice of Appeal or Motion,
that he would submit a brief or additional evidence to the AAO within 30 days of filing the appeal. A review
of the record indicates that neither counsel nor the petitioner submitted a brief or evidence within the
required timeframe. Accordingly, the record will be considered complete.
I. 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
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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 I-140 for classification of an alien under section
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this
classification. The prospective employer in the United States must furnish a job offer in the form of a
statement which indicates that the alien is to be employed in the United States in a managerial or executive
capacity . Such a statement must clearly describe the duties to be petformed by the alien.
II. The Issues on Appeal
A. Timeliness of the petitioner's RFE response
As noted above, the director denied the petition, in part, based on a conclusion that the petitioner did not
respond in a timely fashion to his RFE. The director's RFE, issued on September 6, 2012, stated that the
petitioner must respond by November 29, 2012 and that evidence received at the service center after the due
date would not be considered. The director noted that the service center did not receive the petitioner's
response to the RFE until December 3, 2012, and therefore, the petitioner's response was untimely.
On appeal, counsel states that the petitioner's response was in fact timely submitted. Counsel's assertion is
correct. While the director instructed the petitioner to submit its response on or before November 29, 2012,
the regulation at 8 C .F.R. § 103.8(b) provides that whenever an affected party "is required to do some act
within a prescribed period after the service of a notice upon him, and the notice is served by mail, 3 days
shall be added to the prescribed period." Therefore, taking into account this prescribed three-day period, the
petitioner's response to the RFE was timely submitted. The director's finding that the response was untimely
will be withdrawn. Nevertheless, the director did briefly reference the evidence submitted and found that
even if had been timely submitted, it did not fully respond to the RFE.
In this regard, counsel asserts that, contrary to the conclusion of the director, the petitioner did in fact submit
evidence of the petitioner's qualifying relationship with the foreign entity, evidence of the beneficiary's one
year of full-time employment abroad, and the required detailed position descriptions and organizational
charts.
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The AAO maintains authority to review each appeal on a de novo basis. Soltane v. DOl, 381 F.3d 143, 145
(3d Cir. 2004). Accordingly, the AAO will address the merits of the petitioner's claims with respect to the
remaining grounds for denial.
B. Qualifying Relationship
As noted above, the director denied the petition, in part, due to the petitioner's failure to provide evidence
that the petitioner had a qualifying relationship with the foreign employer. 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. §
ll53(b)(l )(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and
"subsidiary").
The pertinent regulation at 8 C.P.R.§ 205.5(j)(2) defines a "affiliate" as follows:
(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;
The pertinent regulation at 8 C .P.R. § 205.5(j)(2) defines a "subsidiary" as follows:
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.
At the time of filing, the petitioner submitted the following evidence:
• Articles of incorporation dated February 23, 2009 reflecting that the petitioner was authorized
to issue 10,000 shares;
• An amendment to the articles of incorporation dated February 12, 2012, which reflects that
the petitioner increased its number of authorized shares to from I 0,000 to I ,000,000;
• Copies of its initial and amended by-laws;
• Minutes of an organizational meeting dated February 15, 2012 reflecting the following
owners:
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(1) '
and, This document references the corporation's
authorization to issue up to 1,000,000 shares and its intention to issue new shares to
the beneficiary;
• An action of the petitioner's directors confirming the above-stated share ownership and the
issuance oC new shares to thebeneficiary;
• Notice of Transaction dated February 20, 2012 stated that the beneficiary, as a representative
of the foreign employer, paid o the petitioner, on behalf of the foreign employer, in
exchange fo shares;
• The petitioner's stock transfer ledger and stock ledger which identify a total of 90,000 shares
of stock issued, including shares issued to the beneficiary on February 15, 2012 and
the remaining shares distributed to
• Minutes of the petitioner's organizational meeting dated March 26, 2012 indicated that the
director's approved the transfer of the beneficiary's ,hares to the foreign entity; and
• Copies of the petitioner's lRS Form 1120S, U.S. Income Tax Return for an S Corporation for
2009 and 2010, which indicate at Schedule K that the petitioner was jointly and equally
owned by
In the RFE, the director requested that the petitioner submit additional documentation to establish that the
petitioner had a qualifying relationship with the foreign employer. The director noted that this evidence
could include annual repmts, statements from the organization's president or corporate secretary, articles of
incorporation, financial statements, stock ledgers, and/or other evidence of ownership of all outstanding
stock for both entities.
In response, the petitioner re-submitted the same documentation relevant to its ownership. Also, the
petitioner provided an lRS Form 1120S U.S. Income Tax Return for an S Corporation for 2011 indicating on
Schedule K that the petitioner was wholly owned by With respect to foreign employer's
ownership, the petitioner provided a copy of the foreign entity's published Annual Report which inc ludes a
complete list of shareholders and identifies the beneficiary as the owner o1 of the company's shares
as of September 20 1 1.
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 (Comm'r 1988);
see also Matter of Siemens Medical Systems, Inc ., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18
I&N Dec. 289 (Comm' r 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 .
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The petitioner has submitted conflicting evidence of its ownership. For instance, the petitioner's IRS Forms
1120S for both 2009 and 2010 state that the petitioner was jointly owned by
during those tax years . Also, the petitioner's provided IRS Form ll20S for 2011 states that the petitioner is
wholly owned by the aforementioned However, the petitioner 's meeting minutes and stock ledger
reflect that the petitioner was never jointly owned by or wholly owned by Mr.
For instance, the stock ledger indicates that the petitioner issued
and on July 12, 2011. None of the petitioner's
supporting documentation substantiates the information reported in the company's tax returns. In addition,
the petitioner's stock ledger does not reflect the issuance of stock in 2009 when the petitioner was
incorporated.
Further, the submitted meeting minutes from March 26, 2012 indicate that the beneficiary assigned his
"lhares to the foreign employer. However, the petitioner's stoc k ledger does not reflect this
transference nor does the petitioner submit a stock certificate indicating the foreign employer's acqui si tion of
the shares. 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. 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 of Ho, 19 I&N Dec. 582, 591-92 (BIA
1988).
The evidence of the petitioner's ownership is inconsistent and incomplete and thus fails to establish that the
petitioner is a subsidiary of the foreign employer as claimed. As such, it cannot be determined whether the
petitioner has a qualifying re lationship with the foreign employer. For this reason , the appeal will be
dismi ssed.
C. Employment in a Managerial or Executive Capacity
In denying the petition, the director determined that the petitioner failed to submit a detailed posit ion
description and organizational chatt pettaining to the beneficiary's U.S. and foreign employment. Therefore,
a remaining issue in this matter is whether the petitioner established that the beneficiary has been employed
abroad, and would be employed in the United States, in a qualifying managerial or executive capacity .
Upon review, the record contains sufficient evidence to establish that the foreign ent ity employed the
beneficiary in an executive capacity. While the petitioner did not fully comply with the director's RFE with
respect to the foreign employment, a review of the totality of the evidence of record reflects that the
benefic iary is the sen ior executive of a publicly traded company. The foreign entity's annual report contains
executive biographies for the beneficiary and other senior managers and executives who report to him .
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However, upon review of the petition and the evidence, and for the reasons discussed herein, the petitioner
did not adequately respond to the director's RFE with respect to the beneficiary's proposed employment in
the United States.
In order to determine whether the beneficiary would be employed in a qualifying executive or managerial
capacity, U.S. Citizenship and Immigration Services (USCIS) will look first to the petitioner's description of
the job duties. See 8 C.F.R. § 204.5U)(5) . In a support letter submitted along with the petition, the petitioner
described the beneficiary ' s duties as managing director of the petitioner as follows:
• Work with CEO in developing business in furtherance of its objectives stated in
the Articles of Incorporation
• Balance, forecast, and amend budget
• Manage high level employees and officers of the Company and take
responsibilities for the tasks on hand
• Attend various business trips, public meetings, international conferences, and
public events to both national and international to promote the business
• Cast vision and future direction and position of the company in a fast changing
environment
• Train staff on policies and procedures and monitors compliance
• Ensure staff follows safety standards and guidelines
• Perform duties of guest services staff as needed
• Enforce strict compliance of the uniform and grooming standards
• Oversee training of staff in customer service standards
• Provide leadership to leads, staff and assists with overall management of
department
• Assist with new hire training and handles on-boarding tasks
• Assist with the preparation of staff evaluations
• Assist with staff disciplinary matters
• Work extended hours as needed for special events, holidays and trouble calls
• Assist management with other projects as needed
As noted, the director found the above duty description insufficient to establish that the beneficiary would be
employed in a managerial or executive capacity in the United States and requested that the petitioner submit
a very detailed duty description for the beneficiary, including estimates of the percentage of time he would
spend on each task. However, the petitioner did not submit any additional explanations relevant to the
beneficiary's duties in the United States in response to the RFE. Again, 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).
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the
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petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day functions . Champion World, Inc. v. INS, 940 F.2d I 533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
Here, the petitioner fails to document what proportion of the beneficiary's duties would be managerial
functions and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as
including both managerial and administrative or operational tasks, but fails to quantify the time the
beneficiary spends on the stated tasks . This failure of documentation is important because some of the
beneficiary's daily tasks , such as performing duties of guest services staff, do not fall directly under
traditional managerial or executive duties as defined in the statute. For thi s reason, the AAO cannot
determine whether the beneficiary is primarily performing the duties of a manager or executive. See IKEA
US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
Additionally, reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The director
correctly determined that the duties offered by the petitioner, such as developing business in furtherance of
its objectives, balancing, forecasting and amending budget, attending various bus iness trips, casting vision
and future direction, and providing leadership, are overly vague and provide little probative value as to the
beneficiary's actual day-to-day activities. The duties , and the record generally, include no specific examples
or documentation to support the beneficiary's vaguely proposed U.S. duties. Further, the petitioner does not
specifically describe any specific management actions that will be carried out, budgets that will be managed,
or vision or direction of the company that will be driven by the beneficiary. Specifics are clearly an
important indication of whether a beneficiary's duties are primarily executive or managerial in nature.
Overall, the petitioner has failed to provide any detail or explanation of the beneficiary's activities in the
course of his daily routine. The actual duties themselves will reveal the true nature of the 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).
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining
the claimed managerial or executive capacity of a beneficiary, including the company's organizational
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve
the beneficiary from performing operational duties, the nature of the business, and any other factors that will
contribute to a complete understanding of a beneficiary's actual duties and role in a business . The petitioner
indicates that it operates a "concierge & investment services" business with two current employees and gross
annual income of $43,123.
The director requested that the petitioner submit a detailed organizational chait including the names of its
employees, their titles and job duty descriptions. However, the petitioner failed to respond to this request
and provided an organizational cha1t indicating that the beneficiary had two subordinates, a "CEO &
operation manage r" and another subordinate "employee" below the aforementioned CEO. Although the
petitioner identified these employees by name, the petitioner did not provide duty descriptions for these
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employees as necessary to understand their functions and corroborate that they would primarily relieve the
beneficiary from performing day-to-day operational duties. Once again, failure to submit requested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § I 03.2(b)(l4). In
sum, the petitioner has not provided sufficient evidence with respect to the beneficiary's subordinates and the
petitioner's organizational structure to establish that the beneficiary will act in a managerial or executive
capacity.
For the foregoing reasons, the petitioner has not established that it will employ the beneficiary in a qualifying
managerial or executive capacity. For this additional reason, the appeal will be dismissed.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F.Supp. 2d 1025, 1043 (E.D. Cal. 2001 ), aff'd. 345 F.3d 683
(9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews
appeals on a de novo basis).
III. Conclusion
The appeal will be dismissed for the above stated reasons, with each considered as an independent and
alternate basis for the decision. 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.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
A&T Financial Services, Inc. and Jianfeng Chen,
Plaintiffs,
vs. Ron Rosenberg, Lori Scialabba, and Jeh Johnson,
Defendants.
CASE NO. SACV 14-780-JLS (RNBx) ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 34) AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (Doc. 35)
JS-6Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 1 of 16 Page ID #:922
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I. INTRODUCTION
Before the Court is a Motion for Summary Judgment filed by Plaintiffs A&T
Financial Services, Inc. and Jianfeng Chen. (A&T Mot., Doc. 35.) Defendants Ron
Rosenberg, Lori Scialabba, and Jeh Johnson (together, “the Government”) opposed, and
Plaintiffs replied. (Gov. Opp., Doc. 36; A&T Reply, Doc. 41.) The Government also filed
a cross-Motion for Summary Judgment. (Gov. Mot, Doc. 34.) Plaintiffs opposed, and the
Government replied. (A&T Opp., Doc. 37; Gov. Reply, Doc. 38.) Having read and
considered the papers and heard oral argument, the Court GRANTS the Government’s
Motion and DENIES Plaintiff’s Motion.
II. BACKGROUND
Plaintiff A&T Financial Services, Inc. is a California corporation offering
“concierge service” for the “ever-growing Asian immigrant population” in Los Angeles
and Orange Counties. (Certified Administrative Record (“AR”), Doc. 29, at 109-110, 42.)
On May 3, 2012, it filed an I-40 Immigrant Petition on behalf of Jianfeng Chen. (AR 204-
210.) The Petition stated that A&T wanted to employ Chen in California as a
multinational “executive or manager” at a wage of $45,000 per year and sought an I-140
visa for this purpose. (AR 206, 208.)
To obtain a visa of this type, the petitioning employer must make two showings.
First, it must demonstrate that the beneficiary worked as an executive or manager in the
petitioner’s employer’s foreign office for at least one of the preceding three years.
8 U.S.C. § 1153(b)(1)(C); 8 C.F.R. § 204.5(j)(3)(A). This requirement will be satisfied if
the beneficiary worked for a foreign affiliate or subsidiary of the petitioning employer. 8
U.S.C. § 1153(b)(1)(C); 8 C.F.R § 204.5(j)(3)(i)(C). Second, the petitioning employer
must demonstrate that the beneficiary’s job will primarily consist of executive or
managerial duties. 8 U.S.C. § 1153(b)(1)(C).
As to the first point, A&T submitted evidence purporting to show it is majority
Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 2 of 16 Page ID #:923
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owned by, and a subsidiary of, Yuangbang, a Chinese development company for which
Chen serves as chief executive officer. (See, e.g., AR 10.) Specifically, A&T submitted
the following as evidence of its ownership:
A 2009 tax return showing its owners were Nolan Chan and Eunjin Chang. (AR
314-17.)
A 2009 tax return showing its owners were Nolan Chan and Eunjin Chang. (AR
286-91.)
Stock certificates, dated July 12, 2011, showing the issuance of: 500 shares to
JieFan Zhu; 500 shares to Sze-Man Wong; 4,500 shares to Nolan Chan; and 4,500
shares to Eunjin Chang. (AR 265-68.)
Board minutes and a stock certificate, both dated February 15, 2012, showing the
issuance of 80,000 shares to Chen. (AR 153-54, 162.)
A&T documents dated February 20, 2012 and March 26, 2012, showing Chen
transferred the 80,000 shares to Yuangbang. (AR 271-74.)
An undated company Stock Issuance/Transfer Ledger showing the following
transactions:
o 4,500 shares to Chang on July 12, 2011;
o 4,500 shares to Chan on July 12, 2011;
o 500 shares to Wong on July 12, 2011;
o 500 shares to Zhu on July 12, 2011;
o 80,000 shares to Chen on February 15, 2012.
(AR 270.)
As to the latter point, A&T submitted with its application a letter describing Chen’s
duties as follows:
Work with CEO in developing business in furtherance of its objectives stated
in the Articles of Incorporation
Balance, forecast, and amend budget
Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 3 of 16 Page ID #:924
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Manage high level employees and officers of the Company and take
responsibilities for the tasks on hand
Attend various business trips, public meetings, international conferences, and
public events to both national and international to promote the business
Cast vision and future direction and position of the company in fast changing
environment
Train staff on policies and procedures and monitors compliance
Ensure staff follows safety standards and guidelines
Perform duties of guest services staff as needed
Enforce strict compliance of the uniform and grooming standards
Oversee training of staff in customer service standards
Provide leadership to leads, staff and assists with overall management of
department
Assist with new hire training and handles on-boarding tasks
Assist with the preparation of staff evaluations
Assist with staff disciplinary matters
Work extended hours as needed for special events, holidays and trouble calls
Assist management with other projects, as needed
(AR 348.)
On September 6, 2012, USCIS issued a Request for Evidence to A&T. (AR 89-91.)
The Request for Evidence stated, in part, that USCIS’s Validation for Business Enterprises
System – which “uses commercially available data to validate basic information about
companies and organizations petitioning to employ alien workers” – indicated that A&T
did not have a relationship with Yuanbang. (AR 89-91.) USCIS asked A&T to submit
“additional evidence to show your company has a qualifying relationship to the foreign
entity claimed.” (AR 90-91.) The Request for Evidence also instructed A&T to submit
the following:
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[A] very detailed description of the duties of the proposed position in the
U.S. that reflects the staffing at the time the petition was filed. Supplement
this description with an estimate of the percentage of time [Chen] would
dedicate to each specific duty. Please do not group several tasks together.
[A] detailed organizational chart [of A&T] . . . illustrat[ing] the current
structure with the addition of the permanent proposed position of [Chen].
. . . Please be sure other departments and teams are included in the chart and
how many employees work in each department. Please include sufficient
detail to adequately illustrate [Chen’s] former and proposed positions
relative to others.
(AR 91.)
On November 29, 2012, A&T submitted a response to USCIS. (AR 92.) The
response included, among other things, a basic organizational chart and a 2011 tax return
showing A&T’s sole owner during that tax year as Nolan Chan. (AR 172, 199.) It did not
include any additional description of the duties of Chen’s proposed position in the U.S. or
any estimate of the percentage of time Chen would dedicate to each specific duty. (AR 92-
200.)
On December 14, 2012, USCIS denied A&T’s petition. (AR 85-88.) The denial
stated that A&T had failed to provide sufficient evidence to show that (1) A&T was a
subsidiary of Yuangbang and (2) Chen would be employed primarily as a manager or
executive. (AR 86-87.) The denial noted that A&T’s response to the Request for
Evidence had failed to remedy these deficiencies in the evidence. (AR 86-87.)
A&T appealed the denial of the petition to USCIS’s Administrative Appeals Office,
and on September 27, 2013, the AAO affirmed the denial of the petition. (AR 12-20.) As
to the issue of A&T’s ownership, the AAO found as follows:
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[A&T’s] IRS Forms 1120S for both 2009 and 2010 state that [A&T] was
jointly owned by Nolan Chang and Eunjin Chang during those tax years.
Also, [A&T’s] provided IRS Form 1120S for 2011 states that [A&T] is
wholly owned by Mr. Chan. However, [A&T’s] meeting minutes and stock
ledger reflect that [A&T] was never jointly owned by Mr. Chan and Ms.
Chang, or wholly owned by Mr. Chan. . . . None of [A&T’s] supporting
documentation substantiates the information reported in the company’s tax
returns. . . .
Further, the submitted meeting minutes from March 26, 2012 indicated that
[Chen] assigned his 80,000 shares to [Yuanbang]. However, [A&T’s] stock
ledger does not reflect this transference nor does [A&T] submit a stock
certificate indicating the foreign employer’s acquisition of the 80,000 shares.
It is incumbent upon [A&T] to resolve any inconsistencies in the record by
independent objective evidence. . . . Doubt cast on any aspect of [A&T’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. . . .
The evidence of [A&T’s] ownership is inconsistent and incomplete and thus
fails to establish that [A&T] is a subsidiary of [Yuanbang] as claimed. For
this reason, the appeal will be dismissed.
(AR 17.)
As to the issue of whether A&T had demonstrated that Chen would work primarily
in a managerial or executive capacity, the AAO found as follows:
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[A&T] fails to document what proportion of [Chen’s] duties would be
managerial functions and what proportion would be non-managerial. [A&T]
lists [Chen’s] duties as including both managerial and administrative or
operational tasks, but fails to quantify the time [Chen] spends on the stated
tasks. This failure of documentation is important because some of [Chen’s]
daily tasks, such as performing duties of guest services staff, do not fall
directly under traditional managerial or executive duties . . . .
Additionally, reciting [Chen’s] vague job responsibilities or broadly-cast
business objectives is not sufficient; the regulations require a detailed
description of [Chen’s] daily job duties. . . . [T]he duties offered by [A&T] .
. . are overly vague and provide little probative value as to [Chen’s] actual
day-to-day activities. The duties, and the record generally, include no
specific examples or documentation to support [Chen’s] vaguely proposed
U.S. duties. . . . Specifics are clearly an important indication of whether a
beneficiary’s duties are primarily executive or managerial in nature.
. . .
For the foregoing reasons, [A&T] has not established that it will employ
[Chen] in a qualifying managerial or executive capacity.
(AR 19-20.)
Moreover, the AAO noted that USCIS had requested information on all of these
points in its September 6, 2012 Request for Evidence, and that under the applicable
regulations, “failure to submit requested evidence which precludes a material line of
inquiry shall be grounds for denying the petition.” (AR 20 (citing 8 C.F.R. §
103.2(b)(14)). Accordingly, the AAO dismissed the appeal. (AR 20.)
On October 25, 2013, AT&T filed a Motion to Reopen and Reconsider with the
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AAO. (AR 7-72.) The Motion stated that A&T’s prior attorney “failed to submit the
evidence that clearly shows . . . how Mr. Chen qualifies as a multinational manager or
executive,” and stated that a complaint had been filed with the State Bar of California
because the previous attorney’s “errors have jeopardized [A&T’s] ability to realize a return
on their investment and grow the U.S. company.” (AR 9.) The Motion included various
other information including, among other things: a stock certificate showing the transfer of
80,000 shares of A&T’s stock to Yuanbang (AR 24); a 2012 tax return listing Yuanbang as
owning 80% of A&T (AR 25-41); and a description of Chen’s proposed duties at A&T and
estimate of the proportion of time he would spend on each duty. (AR 65-66.)
On December 9, 2013, the AAO denied the Motion. (AR 1-6.) It found
reconsideration was not warranted because A&T failed to demonstrate the AAO’s decision
was based on an incorrect application of law to the evidence before the AAO. (AR 6.)
The AAO also found that reopening was not warranted because A&T had previously been
put on notice of the deficiency in evidence by the September 6, 2012 Request for Evidence
but failed to remedy it and, in any case, the submitted evidence still did not establish
Chen’s eligibility for the requested visa. (AR 5-6.) Finally, the AAO found A&T failed to
satisfy the requirements necessary to reopen a visa petition based on alleged ineffective
assistance of its previous counsel. (AR 4.)
On May 19, 2014, A&T filed the instant action, seeking review of the agency’s
denial of A&T’s petition. (Compl., Doc. 1.)
III. LEGAL STANDARD
Under the Administrative Procedure Act (“APA”), a district court may set aside a
final agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). “The arbitrary and capricious
standard is ‘highly deferential, presuming the agency action to be valid[,] and [requires]
affirming the agency action if a reasonable basis exists for its decision.’” Kern Cnty. Farm
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Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (citation omitted). However, the
court may determine whether “there has been a clear error of judgment by the agency and
whether the agency action was based upon a consideration of the relevant factors.” Nance
v. E.P.A., 645 F.2d 701, 705 (9th Cir. 1981). An agency’s decision is arbitrary and
capricious if it “offered an explanation for its decision that runs counter to the evidence
before the agency.” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443,
1448 (9th Cir. 1996) (quotation marks and citation omitted). “The agency’s factual
findings are reviewed for substantial evidence.” Family, Inc. v. U.S. Citizenship &
Immigration Servs., 469 F.3d 1313, 1315 (9th Cir. 2006).
Courts routinely resolve APA challenges by summary judgment. See, e.g., Nw.
Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1481 (9th Cir. 1994). In making
its determination, courts are generally limited to reviewing the administrative record
already in existence. See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,
602 (9th Cir. 2014). The district court “is not required to resolve any facts in a review of
an administrative proceeding.” Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir.
1985). The purpose of the district court in deciding a motion for summary judgment “is to
determine whether or not as a matter of law the evidence in the administrative record
permitted the agency to make the decision it did.” Id.
IV. DISCUSSION
The instant Motions present two issues: (1) whether the agency acted arbitrarily and
capriciously, contrary to established precedent, and contrary to the evidence, in finding
that A&T did not prove by a preponderance of the evidence that it had a qualifying
relationship with Yuanbang and that Chen would primarily be employed by A&T as a
manager or executive; and (2) whether the agency acted arbitrarily and capriciously,
contrary to established precedent, and contrary to the evidence, in denying A&T’s motion
to reopen and reconsider based on the ineffective assistance of counsel. (A&T Mem. at 2;
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Gov. Mem. at 1.)
1. The Merits of the Agency’s Decision
As noted above, to establish Chen’s eligibility for the visa A&T sought to obtain,
A&T was required to show by a preponderance of the evidence that (1) Chen worked as an
executive or manager in its foreign office, subsidiary, or affiliate for at least one of the
preceding three years; and (2) Chen’s job at A&T would consist primarily of executive or
managerial duties. 8 U.S.C. §§ 1153(b)(1)(C), 1361; 8 C.F.R § 204.5(j)(3)(A).
The Court first considers the latter question. To qualify for an employment-based
visa as a multinational manager or executive, the petitioner must demonstrate that the
beneficiary’s job duties are primarily managerial or executive in nature. 8 U.S.C. §
1101(a)(44)(A)-(B); see also Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063, 1070
(9th Cir. 2008) (stating that the employee cannot qualify for a visa “simply because he
performs managerial tasks” but that “such tasks must encompass his primary
responsibilities”). “By requiring that the duties be primarily managerial or executive, the
express language of the regulations excludes workers whose job involves a mix of
management and non-management responsibilities.” Khamisani v. Holder, No. CIV.A. H-
10-0728, 2011 WL 1232906, at *7 (S.D. Tex. Mar. 31, 2011) (quotation marks and citation
omitted). Thus, a petitioner seeking such a visa must specify the nature of the proposed
beneficiary’s duties, as well as what proportion of the duties will be managerial or
executive; general descriptions of business-related tasks with no quantification of the
proportion of time that will be spent on managerial or executive tasks will fall short of
showing that the beneficiary’s duties are primarily managerial or executive. See Republic
of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991) (finding the denial of a petition for
a visa not arbitrary and capricious where the petitioner “failed to document what
proportion of [the beneficiary’s] duties would be managerial/executive functions and what
proportion would be non-managerial/non-executive”); Khamisani, 2011 WL 1232906, at
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*7 (“Absent specific information, general descriptions of business-related tasks are
insufficient to comply with the implementing regulations and do not demonstrate that a
beneficiary's proposed duties are primarily managerial or executive, as opposed to non-
managerial.”); Fedin Bros. Co. Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y.1989)
(“Specifics are clearly an important indication of whether an applicant's duties are
primarily executive or managerial in nature, otherwise meeting the definitions would
simply be a matter of reiterating the regulations.”).
Upon review, the Court determines that the agency was not arbitrary or capricious
in its determination that A&T failed to establish by a preponderance of the evidence that
Chen’s proposed job duties were primarily managerial or executive. As noted above, the
only evidence A&T submitted on the topic of Chen’s proposed job duties was a list of
bullet points reciting various vague job responsibilities and broadly cast business
objectives. (AR 348; see Section II, supra.) It is well established that such general
descriptions are inadequate to satisfy the implementing regulations because “[t]he actual
duties themselves reveal the true nature of the employment.” Sava, 724 F. Supp. at 1108.
The list of duties submitted by A&T, while containing numerous terms one would expect
in a managerial job description, is conspicuously lacking in detail as to Chen’s “actual day-
to-day activities.” (AR 80.) See Kong Hong USA Inc. v. Chertoff, No. C-06-00804EDL,
2006 WL 3068876, at *3 (N.D. Cal. Oct. 27, 2006) (finding that “formulat[ing] strategic
plans and goals,” “be[ing] in charge of policy-making concerning franchisee
arrangements,” and “streamlin[ing] petitioner’s focus on wholesale distribution of the
overseas company’s herbal products as well as the export of U.S.-approved antibodies”
failed to specifically define the company’s goals and objectives or clarify exactly how the
petitioner performed the duties); Sava, 724 F. Supp. at 1103 (“Nowhere is there any
description of how, when, where, and with whom these duties occurred. No specific
situations, circumstances or occurrences are mentioned.”). Accordingly, the agency did
not err in finding that A&T failed to demonstrate Chen’s actual daily activities would be
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managerial or executive in nature.
Moreover, even assuming A&T had made this showing, the agency properly found
that A&T still failed to establish that Chen’s work would be primarily managerial or
executive. As the AAO noted, some of the listed activities – such as “perform[ing] duties
of guest services staff as needed” – are clearly non-managerial and non-executive in
nature. Thus, the burden was on A&T to demonstrate that Chen would primarily perform
those tasks that were managerial or executive in nature. 8 U.S.C. § 1361. It did not, and
A&T did not supply this information even after USCIS formally requested that it submit
“an estimate of the percentage of time [Chen] would dedicate to each specific duty.” (AR
91.)1
The facts in this record would not “compel a reasonable finder of fact” to conclude
that Chen would have been primarily engaged in managerial duties, as opposed to ordinary
operational activities conducted by a non-managerial employee. Family, Inc., 469 F.3d at
1315 (citation omitted). Moreover A&T’s failure to submit the requested evidence was
itself grounds for denial of its petition. See 8 C.F.R.§ 103.2(b)(14) (“Failure to submit
requested evidence which precludes a material line of inquiry shall be grounds for denying
the benefit request.”). Accordingly, the Court does not find the agency’s decision on the
merits of A&T’s petition to be an abuse of discretion, or that it was arbitrarily or
capriciously made.
Because the Court affirms the agency’s decision on this basis, the Court need not
reach Chen’s contention that the agency abused its discretion in finding that A&T had not
adequately demonstrated that it was owned by Yuanbang.
1 Although A&T suggests that the AAO had this information before it and “ignored the evidence in the record,” the evidence it cites was appended to its Motion to Reopen and Reconsider, not to its original Petition or appeal. Accordingly, this evidence is relevant, if at all, only to the Court’s review of the agency’s denial of that Motion. (See A&T Opp. at 13.)
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B. Motion for Reconsideration and Motion to Reopen
The Court next considers whether the agency abused its discretion or acted
arbitrarily or capriciously in denying A&T’s Motion to Reconsider and Reopen the matter.
1. Motion for Reconsideration
The grounds upon which a motion to reconsider may be granted are “essentially
legal.” Grewal v. U.S. Citizenship & Immigration Servs. (USCIS), No. CIV.A. 08-1439,
2009 WL 4061523, at *5 (W.D. Pa. Nov. 23, 2009) aff’d sub nom. Grewal v. U.S.
Citizenship & Immigration Servs., 409 F. App’x 598 (3d Cir. 2011). The movant must
support its request for reconsideration with “pertinent precedent decisions to establish that
the decision was based on an incorrect application of law or [agency] policy.” 8 C.F.R. §
103.5(a)(3). Moreover, the movant must show that the decision was incorrect “in light of
the evidence of record at the time of the initial decision.” 8 C.F.R. § 103.5(a)(3); Grewal,
2009 WL 4061523 at *5.
In its Motion, A&T did not contend that the AAO’s decision dismissing A&T’s
appeal was based on the incorrect application of existing law or agency policy. (AR 9-11;
Gov. Mem. at 23-24.) Rather, A&T focused entirely on the alleged deficiencies of its
former counsel and on the evidence A&T contends would have been presented in the first
instance but for his ineffective representation. (See AR 9-11.)
Accordingly, the agency did not abuse its discretion in determining that
reconsideration was not warranted.
2. Motion to Reopen
The final issue before the Court is whether the agency abused its discretion in
denying A&T’s Motion to Reopen in light of its previous counsel’s alleged deficiencies.
A&T argues the agency abused its discretion in denying its Motion to Reopen
where its previous counsel “did not submit a brief to the AAO in support of the appeal”
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and otherwise failed to present various items of evidence A&T contends would have
changed the appeal’s outcome. (A&T Mem. at 23-24; A&T Opp. at 15-16.) As a result,
A&T asserts that it has filed a bar complaint against its former counsel. (A&T Mem. at
24; A&T Opp. at 15; see AR 21-24.)
A petitioner “may, for proper cause shown, reopen the proceeding or reconsider the
prior decision.” 8 C.F.R. § 103.5(a)(1)(i). To reopen a proceeding based upon a claim of
ineffective assistance of counsel, a petitioner must: “(1) provide an affidavit describing in
detail the agreement with counsel; (2) inform counsel of the allegations and afford counsel
an opportunity to respond; and (3) report whether a complaint of ethical or legal violations
has been filed, and if not, why.” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824 (9th Cir.
2003) (citing Melkonian v. Ashcroft, 320 F.3d 1061, 1071-72 (9th Cir. 2003)).
As an initial matter, the Government argues that the right to effective assistance of
counsel does not apply in the context of a visa petition. (Gov. Opp. at 6-7.) A&T offers
no response on this point. (See A&T Reply at 10-11.) It is true that binding case law has
recognized this right only in the context of deportation or removal proceedings. See Lopez
v. I.N.S., 775 F.2d 1015, 1017 (9th Cir. 1985); Magallanes-Damian v. I.N.S., 783 F.2d 931,
931 (9th Cir. 1986); Ontiveros-Lopez v. I.N.S., 213 F.3d 1121, 1121 (9th Cir. 2000). As a
result, some courts have found it simply does not attach to visa petitions. See, e.g., Chung
Hak Hong v. U.S. Dep’t of Homeland Sec. Citizenship & Immigration Servs., 662 F. Supp.
2d 1195, 1199 (C.D. Cal. 2009) (finding the petitioner “does not have a due process right
to effective assistance of counsel in a proceeding revoking an I-140 Petition for an
employee”).
Nevertheless, even assuming that such a right did exist here – as the AAO did
below (AR 4) – the agency still would not have erred in finding A&T failed to make the
requisite showing to obtain this relief. First, far from providing a sworn affidavit
describing “in detail the agreement that was entered into with former counsel with respect
to the actions to be taken on appeal and what counsel did or did not represent to the
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respondent in this regard,” see Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988), A&T
produced only an unsworn handful of bullet points describing why its former counsel’s
performance was unsatisfactory. (AR 23.) This list nowhere described A&T’s agreement
with its former counsel as to the representation or how its former counsel deviated from
that agreement. (AR 23.) Second, A&T provided no information suggesting that it had
informed its former counsel of the allegations against him and afforded him an opportunity
to respond. (See AR 4.) Finally, while A&T reported that it filed a complaint with the
State Bar of California against their former attorney, it submitted as proof only a filled-out
bar complaint form, but provided no evidence to show that this complaint form was ever
submitted. (AR 4, 21-22.) Compliance with the foregoing requirements is important to
“ensure both that an adequate factual basis exists in the record for an ineffectiveness
complaint and that the complaint is a legitimate and substantial one.” Castillo-Perez v.
I.N.S., 212 F.3d 518, 526 (9th Cir. 2000); see also Reyes v. Ashcroft, 358 F.3d 592, 596
(9th Cir. 2004) (noting that “the requirement that petitioners notify their former counsel
concerning . . . ineffective assistance allegations” allows the agency “to weed out false and
frivolous claims”). On these facts, the agency did not err in finding that A&T had not
fulfilled the requirements necessary to reopen a proceeding based on ineffective assistance
of counsel, even assuming such a right existed.
Accordingly, the Court finds the AAO did not abuse its discretion or act arbitrarily
and capriciously by denying A&T’s Motion to Reopen on the basis of ineffective
assistance of counsel.
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
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V. CONCLUSION
For the foregoing reasons, the Court concludes that the agency’s decision was not
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
Accordingly, Plaintiff’s Motion for Summary Judgment is DENIED, and the
Government’s Motion for Summary Judgment is GRANTED. The Government shall
submit a proposed judgment forthwith.
DATED: March 2, 2015 _________________________________________ JOSEPHINE L. STATON UNITED STATES DISTRICT JUDGE
Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 16 of 16 Page ID #:937
(b)(6)
U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office of Administrative Appeals 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090
U.S. Citizenship and Immigration Services
DATE: DEC 0 9 2013 OFFICE: NEBRASKA SERVICE CENTER FILE:
INRE: Peti~ioner:
Beneficiary:
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. § ll53(b)(l)(C)
ON BEHALF OF PETITIONER:
INSTR(JCTIONS:
Enciosed 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 ageQc)' 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 m11st be filed on a Notice of Appeal or Motion (Fonn I-290B) within 33 days of the date of this decision. Please review the Form I-Z90B instructions at http://www.uscis.gov/fonns for the latest infonnation on fee, filing location, and qtber r~quire!fiel)ts. See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO.
Thank you,
1 ,/-Ron Ro.e- . . Chief, Administrative Appeals Office
www.uscis.gov
(b)(6)
NON-PRECEDENT DECISION
Page2
PJSCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition. The petitioner
subsequently filed an appeal that was dismissed by the Administrative Appeals Office (AAO). The matter is now before the AAO on a combined motion to reopen and motion to reconsider. The motion will be denied.
The petitioner is a California corporation engaged in immigration and investment services. The petitioner
states that it is a subsidiary of in China. ·The petitioner
seek.s to employ the beneficiary as its managing director. Accordingly, the petitioner endeavors to classify the beneficiary as an employment~basediiiunigtaiit plirSuan( to section 203(b)(l)(C) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a multinational executive or manager.
The director denied tbe petition, finding that the petitioner had not timely and adequately responded to a reqyest for evidence (RFE). As a result of the petitioner's faHure to respond, the director concluded tha:t the
petitioner had failed to establish that it has a qualifying relationship With the foreign erpployer, that the beneficiary was employed in a qualifying managerial or ex,ecQHve capacity abroad, or that the beneficiary will be employed in a qualifying managerial or executive capacity in the Uni~ed States.
On appeal, counsel stated that the petitioner submitted a timely response to the RFE and that the pe(itioner provided sufficient evidence to establish that it has a qualifying relationship With the foreign employer and
that the beneficiary had one year of full-time qualifying managerial or executive employment abroad.
The AAO dismissed the petitioner's c.tppeal. . The AAO found that the petitioner had submitted a timely response to the dire(:~or' s RFE and that the petitioner had submitted sufficient evidence to establish that the beneficiary had been employed abroaq in a qualifying managerial or executive capacity. Howeyer, the AAO concluded that the petitioner failed to establish that it had a qualifying relationship with the foreign employer
and observed that information reported on the petitioner's corpomte tax returns and stock ledger was
Inconsistent with the petitioner's claims rega:n'-ing its ownership. ·The AAO also cone! uded that the petitioner
had not demonstrate<:~ that it would employ the beneficiary in a qualifying managerial or executive capacity. In teaching this conclusion, the AAO noted the petitioner's failure to submit requested evidence, including a detailed duty description for the beneficiary, the percentages of time he would devote to specific tasks, a:nd position descriptions for the lieneficia:ry's two subordinate employees.
The petitioner now files a motion to reopen and reconsider the .AAO',s decision dated September 27, 2013.
The purpose of a motion to reopen or motion to reconsider is different from the purpose of an appeal. While
the AAO conducts a comp{ehensive, de novo review of the entire record on appeal, the AAO's review in this
matter is limited to the narrow issue of whether the petitioner has presented and documented new facts or
documented sufficient reasons; supported by pertinent precedent decisions, to warrant the re-opening or reconsideration of the AAO's decision to dismiss the petitioner's previous appeal.
The regulation at 8 C.F.R. § 103.5(a)(2) states:
(b)(6)
Pa~e 3
NON-PRECEDENT DECISION
A motion to reopen must state the new facts to be provided in the reopened proceeding and
be supported by affidavits or other documentary evidence.
The regulation at 8 C.F.R. § 103.5(a)(3) states, in pertinent part:
A motion to reconsider must state the reasons for reconsideration and be supported by ~ny pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decis:ion on an application
or petition must, when filed, also establish that the decision was incorrect based on the evidenc.e of record at the time of the initial decision.
This teguJatioii is supplemented by the instructions on the Form I-290B, Notice of Appeal or Motion, by operation of the rule at 8 C.F.R. § 103.2(a)(l) that all submissions must comply with th~ instructions that appear on any form prescribed for those s"ubmissions.1 With regaro to motions for reconsideration, Part 3 of the Form f-290B submitted by the petitioner States:
Motion to Reconsider: The motion must be supported by citations to appropriate statutes, regulations, or precedent decisions.
On 1110tion, counsel asserts that the petitioner's prior attorney failed to submit evidence that Clearly demo·nstr~tes th~t th¢ peti~ioner has a qualifying relationship with the foreign employer and evidence that the petitioner will employ the beneficiary in a managerial or executive capacity. Counsel submits s stock certificate reflecting that the foreign employer owns 80,000 sbate~ of the petitioner's stock (or 80% of the autborized shares) and the petitioner's 2012 IRS Form 1120S, U.S. Income Tax Return for an S Corporation, indicating that the foreign employer owns 80% of the petitioner. Additionally, counsel provides an updated position description for the beneficiary which includes the percelitage of time he allocates to specific duties.
The petitioner's combined motion will be denied as it has not met the requirements of either a motion to reopen or a motion to reconsider.
1 Counsel states that the petitioner's former counsel failed to s.ubmit evidence to e.stablish that the petitioner had a qualifyi_ng relationship with the foreign employer and that the beneficiary will act in a qualifying managerial or executive capacity in the United States. In support of this assertion, counsel provides a completed California Att<?rney Complaint Form dated October 15, 2013. It is unclear whether the form was
1 The regula.tion at 8 C.P.R.§ 103.2(a)(l) states in pertinent part:
[E]very application, petition, appeal, motion, request, or other document submitted on the form
prescribed by this chapter shail be executed and filed in accordance with the instructions on the form,
such instructions ... being hereby incorporated into the particular section of the regulations requiting
its submission.
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filed With the state bar of California. In an attachment to the complaint form, the petitioner indicates that the complaint is being filed based on former counsel's failure to communicate important dea~ll~nes, his fa.ihJre to properly counsel his client, his l~Gk of responsiveness, and his failure to provide appropriate legal analysis when responding to United States Citizenship and Immigration Service (USCIS) requests for evidence.
Any appeal or motion based upon a daim of ineffective assistance of counsel requires: (l) that the claim be supported by an affidavit of the allegedly aggrieved respouc;lent setting forth in detail the agreement that was e;ntere4 in_to with counsel with respect to the actions to be taken and what representations counsel did or did not make to the re~pond,ent in 'this· regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled agaih$t nim and be given an opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has been filed With appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozadq,
19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (lstCir. 1988).
Toe petitioner has not provided sufficient detail or explanation in the asserted complaint aga:inst its form_er counsel to support reopening the matter based upon ineffective assistance counsel. · As noted above, a claim of ineffective assistance of counsel requires tb~t tile petitioner set forth in detail agreements made with counsel and the actions and representations of counsel that negatively affected the petition. However, the petitioner has not provided sufficient detail regarding its agreements or the actions of couns_el, but only offered vague allegations such as noting counsel's lack of responsiveness, his failure to communicate deadlines, or to do appropriate legal analysis. Counsel does not iildicate any agreements between the parties or tile S"pecific actions of counsel that led to a denial · of the petition, such as the specific evidence he c;iid, or did not, submit, which deadlines he failed to communicate, or the nature of his erred legal analysis. Further, no evidence is submitted _that establishes that the Submitted complaint against counsel was actually filed with the California bar or that former counsel has been informed of these allegations and Will have an opportunity to tesportd. As such, counsel's assertion that the denial of the petition was based upon ineffective assistance of counsel is not persuasive an<i tne petitioQer . had not submitted sufficient new evidence to support reopening the matter on this ground.
WitQ respect to qualifying relaticmship, and as previously stated herein, counsel submits on motion a stock certificate reflecting that the foreign employer owns 80,000 shares of petitioner stock_ (or 80% of the outstanding shares) and a 2012. IR,S Form 1120S indicating toe foreign employer's 80% -owriership of the petitioner. The AAO finds this evidence insufficient to reopen the matter. First, the petitioner previously submitted the aforementioned stock certificate in response to the director's RFE. As such, this eVidence Was ·already dmsidered by the AAO in dismissing the petitioner's appeal.2 Additionally, the newly submitted 2012 IRS Form 1120S fails to address the discrepancies in the previously submitted evidence .with respect to the petitioner's ownership. For in~tance, the petitioner's IRS Forms 1120S for both 2009 and 2010 stated that t.he petitioner was jointly owned by during those tax yeats. Also, the petitioner's IRS Form 1120S for 2011 stated that the -petitioner was wholly owned by the aforementioned
2 The word "new'' is defined as "1. having existed or been made for only a short time ... 3. Just discovered, found, or learned <new evidence> .. .. " Webster's II New College Dictionary 736 (2001)(emphasis in original).
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Mr. However, the petitioner's meeting minutes and stock ledger reflect that the petitioner was never jointly owned by Mr. and Ms. or wholly owned by Mr. None of the petitioner's previously submitted supporting documentation substantiated the information reported in the company's tax returns for 2010 4nd 2011. In addition, the petitioner's stock ledger does not reflect the issuance of stock in 2009 when the petitioner was incorporated. On motion, the petitioner fails to submit any new evidence to directly address these discrepancies on the record beyond 40 unsi8ned 2012 IRS Form 1120S reflecting the ' foreign elllployer' s asserted 80% ownership of the petitioner. The AAO finds this new evidence insufficient to reopen the matter with respect to qualifying relationship.
As to the Issue Of Whether the beneficiary will act in a qualifying managerial or executiye capacity in the
United States, counsel has again not submitted sufficient new evidence to reopen the matter. As notec,i,' this ·office <;lismi~sed the petitioner's appeal due to its failure to submit evidence reqt)ested by the · director,
including a detailed description of the benefiCiary's duties with percentages of time speri.t on his tasks and duty descriptions for the beneficiary's two subordinates. Now, on motion, counsel attempts to submit this evidence, But, the regulat:ion states that the petitioner shall submit additional evidence as the director, in his
ot her di_scretion, may deem necessary. The purpose of the request for evidence is to elicit further
informaHon that clarifies whether eligibility for the benefit sought has been est4blished, <),S of the time the petition is filed. See '8 C.F.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry shall be grounc,is for denying the petition. 8 C.F.R. § 103.2(b)(14).
Where, as here, 4 petitioner has been put on notice of a deficiency in the evidence and has been given ali opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on motion. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Mqtter ofObaigbena, 19 I&N Dec.
533 (BIA 1988). If the petitioner had wanted tile submitted evidence to be considered, it should have submitted the documents in response to the director's request for evidence. /d. Additionally, the petitioner has not su_bmitted sufficient evidence to demonstrate that the failure to submit requested evidence in response
to the director was due to ineffective assistance Of counsel. Therefore, the petitioner bc:ts not provided
sufficient new evidence to reopen this office's preVious decis.ion with respect to whether the beneficiary would act in a managerial or executive capaCity in the United States.
lhdeed, additional evidence and assertions submitted on motion further support this office's previous conclusion that the petitioner had not established that it will employ the beneficiary in a managerial or executive capacity. For instance, the 2012 IRS Form 1120S submitted on motion Indicates that the petitioner earned only $57,056 in gross revenue during this year and paid no salatie.s or wages. Considering that the beneficiary's stated annual salary is $45,000 per year, this level of revenue does not support a conclusion that
the petitioner ·can support its two claimed employees or, as it cl<),im on rnotion, to pay $3,000 per month to
students to support :the business. 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 stlbmit.s compete11t objective evidence pointing to where the truth lies. 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 of Ho, 19 I&N Dec,
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582, 591-92 (BIA 1988). _In fact, counsel's assertions on motion suggest tbat the petitioner's business and
the beneficiary's proposed managerial or executive role are l~rgely prospective. For example, counsel
submits a business plan on motion emphasizing the petitioner's future growth and notes that the petitioner
will hire seven adQitioh<otl employees. The petitioner must 'establish eligibility at the time of filing the
nonimmigr~nt visa petitio~. A visa petition may not be approved at a future date after the petitioner or
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., l7 I&N Dec. 248
(Reg. Comm'r 1978). As such, assertions as to the benefiCiary's potential future eligibility are not relevant
and also insufficient to reopen the matter.
Finally, on motion .• counsel ))~s not stated sufficient reasons for reconsideration supported by pertinent
citations to statutes, regulations, or precedent decisions to establish that the AAO's decision was based on an
incorrect application of law or USCIS policy. See 8 C.F.R. § l03.5(a)(3). In fact, no reference to l~w or
agency policy is set forth in counsel's brief, not is any st~(eroent as to its incorrect application of law
proffered. For this reason, the mot.ion to reconsider will be denied.
Motions for reconsideration of immigration ptOC~iogs are disf~vored for the same reasons as petitions for
rehearing and motions for~ new lfi.~l on the basis of newly discovered evidence. See INS v. Doherty, 502 U.S. ·
314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a
"he~vy bl!fden." INS v. Abudu, 485 U.S. at 110. With the current motion, the movant has not met that burden.
As a final note, the proper filing of a motion tO reopen anQ!or reconsider does not stay the AAO's prior
decision to dismiss an appeal ot extend a beneficiary's previously set departure date. 8 C.F.R.
§ l03.5(a)(l)(iv).
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit
sou~ht. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013).
Here, the petitioner has not met that burden.
ORDER: The motion is denied.