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A&T Financial Services, Inc. and Jianfeng AAO & District Court Dismissals 2013-2015

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AAO & District Court dismissed the multinational mgr/exec I-140.

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A&T Financial Services, Inc. and Jianfeng AAO & District Court Dismissals 2013-2015

  1. 1. (b)(6) DATE: SEP 2. 7201l OFFICE: NEBRASKA SERVICE CENTER INRE: Petitioner: Beneficiary: U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office ofAdministrative 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
  2. 2. (b)(6) NON-PRECEDENT DECISION Page 2 DISCUSSION: The Director, Nebraska Service Center, denied the immigrant visa petition 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 services. 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 adequately 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 relationship 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 failed 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
  3. 3. (b)(6) Page 3 NON-PRECEDENT DECISION 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.
  4. 4. (b)(6) NON-PRECEDENT DECISION Page 4 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 I0,000 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:
  5. 5. (b)(6) Page 5 NON-PRECEDENT DECISION (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 includes a complete list of shareholders and identifies the beneficiary as the owner o1 of the company's shares as of September 20 11. 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 .
  6. 6. (b)(6) NON-PRECEDENT DECISION Page 6 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 stock ledger does not reflect this transference nor does the petitioner submit a stock certificate indicating the foreign employer's acquisition 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 ofHo, 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 relationship with the foreign employer. For this reason, the appeal will be dismissed. C. Employment in a Managerial or Executive Capacity In denying the petition, the director determined that the petitioner failed to submit a detailed position 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 entity 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 beneficiary is the senior 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.
  7. 7. (b)(6) NON-PRECEDENT DECISION Page 7 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
  8. 8. (b)(6) NON-PRECEDENT DECISION Page 8 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. ofJustice, 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 business 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 manager" 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
  9. 9. (b)(6) NON-PRECEDENT DECISION Page 9 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. § I03.2(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.
  10. 10. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 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
  11. 11. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 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
  12. 12. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 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
  13. 13. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4  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: Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 4 of 16 Page ID #:925
  14. 14. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 [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: Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 5 of 16 Page ID #:926
  15. 15. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 [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: Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 6 of 16 Page ID #:927
  16. 16. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 [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 Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 7 of 16 Page ID #:928
  17. 17. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 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 Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 8 of 16 Page ID #:929
  18. 18. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 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; Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 9 of 16 Page ID #:930
  19. 19. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 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 Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 10 of 16 Page ID #:931
  20. 20. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 *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 Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 11 of 16 Page ID #:932
  21. 21. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 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.) Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 12 of 16 Page ID #:933
  22. 22. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 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” Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 13 of 16 Page ID #:934
  23. 23. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 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 Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 14 of 16 Page ID #:935
  24. 24. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 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. / / / / / / / / / / / / / / / / / / Case 8:14-cv-00780-JLS-RNB Document 46 Filed 03/02/15 Page 15 of 16 Page ID #:936
  25. 25. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 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
  26. 26. (b)(6) U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Office ofAdministrative Appeals 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services DATE: DEC 09 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,/-RonRo.e- . . Chief, Administrative Appeals Office www.uscis.gov
  27. 27. (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 twosubordinate 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:
  28. 28. (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 evidencethat 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.
  29. 29. (b)(6) NdN-PRECEDENT DECISION Page4 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 adaim 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 ofcounsel'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).
  30. 30. (b)(6) NON-PRECEDENT DECISION Page5 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 demonstratethat 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,
  31. 31. (b)(6) NON-PRECEDENT DECISION Page6 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.

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