dismissed EB-1C Case: Activated Carbon Production

MATTER OF C-P-R- CORP 
Non-Precedent Decision of the 
. Administrative Appeals Office 
DATE: SEPT. 25,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an activated carbon producer and seller, seeks to permanently employ the Beneficiary 
as its general manager under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 
8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in a managerial or executive capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that it has a qualifying relationship with the Beneficiary's foreign 
employer. 
On appeal, the Petitioner asserts that the same two people own a majority of each company, and that 
·the number of shares issued to these two individuals is sufficient to control each of the two 
companies. 
Upon de novo review we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa available to a beneficiary who, in the three 
years preceding the filing of the petition, has been employed outside the United States for at least one 
year in a managerial or executive capacity, and seeks to enter the United States in order to continue to 
render managerial or executive services to the same employer or to its subsidiary or affiliate. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b)(1)(C) ofthe Act as a multinational executive or manager. The petition 
must include a statement from an authorized official of the petitioning United States employer which 
demonstrates that the beneficiary has been employed abroad in a managerial or executive capacity for at 
least one year in the three years preceding the filing of the petition, that the beneficiary is coming to 
work in the United States for the same employer or a subsidiary or affiliate of the foreign employer, and 
that the prospective U.S. employer has been doing business for at least one year. See 8 C.F.R. 
§ 204.50)(3). ' 
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Matter of C-P-R- Corp 
II. QUALIFYING RELATIONSHIP 
The issue to be discussed is whether the Petitioner has established that it has a qualifying 
relationship with the Beneficiary's foreign employer. To establish a "qualifying relationship," the 
Petitioner must show that the Beneficiary's foreign employer and the proposed U.S. employer are 
the same employer (a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as 
"affiliates." See section 203(b)(l)(C) of the Act; see also 8 C.P.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The Petitioner's California Articles of Incorporation show that it is authorized to issue 200,000 
shares. The record includes stock 
certificate No. 1 showing holds 80,000 shares and 
stock certificate No. 2 showing that holds 60,000 shares. Accordingly, 
owns and controls the Petitioner with his majority ownership interest. 
The record also includes the ownership and distribution of the Beneficiary's foreign employer's 
shares in the following proportion: 
- 42.20 percent 
-24.46 percent 
- 15.1 7 percent 
-7.34 percent 
- 7.34 percent 
~---- - 3.49 percent 
Based on the ownership interests set out above, does not own a controlling interest 
in the foreign entity because he does not own a majority interest. 
The Petitioner asserts on appeal that because the Petitioner's two shareholders, together own a 
majority interest in the foreign entity, it has established an affiliate relationship under the 
regulations. 
The term "affiliate" means (1) one of two subsidiaries both of which are owned and controlled by 
the same parent or individual, or; (2) 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. 8 C.P.R. § 204.5(j)(2). 
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. See. 
e.g., Matter of Church Scientology Int 'l, 19 I&N Dec. 593 (Comm'r 1988); Matter qf Siemens Me d. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter qf Hughes, 18 I&N Dec. 289 (Comm 'r 1982). 
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 
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Matter of C-P-R- Corp 
the establishment, management, and operations of an entity. Matter qf Church Scientology Int '!, 
19 I&N Dec. at 595. 
Here, however, the record does not include evidence that the Petitioner's two shareholders have 
entered into a voting agreement to vote their shares of the foreign entity as a single unit. U.S. 
Citizenship and Immigration Services has never accepted a combination of individual shareholders 
as a single entity, so that the group may claim majority ownership, unless the group members have 
been shown to be legally bound together as a unit within the company by voting agreements or 
proxies. The Petitioner is not one of two subsidiaries both of which are owned and controlled by the 
_ same individual. As noted above, the Petitioner's majority interest owner does not own a majority 
interest in the foreign entity. The Petitioner is not one of two legal entities owned and controlled by 
the same group of individuals. Rather, two shareholders own the Petitioner and six shareholders 
own the foreign entity, and the six shareholders do not own and control approximately the same 
share or proportion. The Petitioner's majority interest owner does not control the foreign entity 
because several of the foreign entity's shareholders together control a majority interest and may vote 
against his 42.20 percent interest. Based on the evidence submitted, the Petitioner has not 
established that it has a qualifying relationship with the Beneficiary's foreign employer. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Although the Director did not enter a finding on this issue, in our de novo review we find that the 
record is insufficient to establish that the Beneficiary will be employed in a managerial or executive 
capacity for the Petitioner. The Petitioner states on the Form I -140, that it is a ten-employee 
company. 
The Act defines the term "managerial capacity" as an assignment within an organization in which 
the employee primarily manages the organization or a department, subdivision, function, or 
component; supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function; if the employee directly supervises other employees, 
has the authority to take personnel actions, or if no other employee is directly supervised, functions 
at a senior-level within the organization or with respect to the function managed; and exercises 
discretion over the day-to-day operations of the activity or function for which the employee has 
authority. Section 101(a)(44)(A) ofthe Act. 
The Act defines the term "executive capacity" as an assignment within an organization in which the 
employee primarily directs the management of the organization or a major component or function 
thereof; establishes the goals and policies of the organization, component, or function; exercises 
wide latitude in discretionary decision-making; and receives only general supervision or direction 
from higher-level executives, the board of directors, or stockholders of the organization. Section 
101 (a)( 44 )(B) of the Act. 
We will briefly address both the Petitioner's description of the Beneficiary's intended duties as well 
as the Petitioner's staffing to determine whether the Petitioner has established this eligibility 
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Matter of C-P-R- Corp 
requirement. We note that when reviewing staffing levels as a factor in determining whether an 
individual is acting in a managerial or executive capacity, we must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section 101(a)(44)(C) ofthe Act. 
A. Duties 
When examining the executive or managerial capacity of a beneficiary, we look first to a petitioner's 
description of the job duties. See 8 C.F.R. § 214.2(1)(3)(ii). The definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary will perform 
certain high-level responsibilities. Champion World. Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 
144470 (9th Cir. July 30, 1991). Second, the petitioner must prove that the beneficiary will be 
primarily engaged in executive or managerial duties, as opposed to ordinary operational activities 
alongside the petitioner's other employees. See. e.g., Family Inc. v. USCIS, 469 F.3d 1313, 1316 
(9th Cir. 2006); Champion World, 940 F.2d at 1533. 
The Petitioner initially submitted a broad overview of the Beneficiary's intended duties for the 
Petitioner. In a request for evidence (RFE), the Director specifically noted that the job description 
submitted was vague and did not include sufficient detail regarding the Beneficiary's daily duties. In 
response ~o the RFE, the Petitioner submitted the same job description and added that the 
Beneficiary would also make orders with sufficient information so that the foreign entity could 
manufacture products to meet clients' requirements. This task, along with several of the other tasks 
outlined, suggest that the Beneficiary will perform the necessary non-qualifying operational tasks to 
maintain the Petitioner's business operations. The Petitioner also emphasized that its reason for 
transferring the Beneficiary to the United States is the need for marketing its products in the United 
States. If the Beneficiary is being transferred to perform the Petitioner's marketing tasks, this is also 
a non-qualifying duty. 
The duties as described are insufficiently detailed to establish that the Beneficiary's proposed duties 
satisfy all four elements of the definition of managerial capacity or all four elements of the definition 
of executive capacity. See sections 10l(a)(44)(A) and (B) of the Act. The Petitioner does not 
clearly establish whether the Beneficiary will primarily establish the policies of the company, will 
primarily supervise or direct other employees, or will primarily perform operational tasks such as 
marketing services and products, resolving problems, identifying trends, recommending selling 
prices or discount rates, improving product packaging, coordinating new product development, and 
other tasks necessary to sustain the Petitioner's daily operations. The Petitioner's descriptions of the 
Beneficiary's duties do not establish the Beneficiary's primary daily duties. Without additional 
detailed information on the Beneficiary's proposed position, we cannot ascertain the Beneficiary's 
actual role within the U.S. company. The Petitiqner has not established that the position described is 
a managerial position or an executive position. 
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Matter of C-P-R- Corp 
B. Staffing 
The Petitioner does not provide an organizational chart describing the company's structure and 
hierarchy. Although the Petitioner claims that it employed ten people when the petition was filed in 
August 2015, the record includes a payroll summary for only seven employees for wages paid 
through April 30, 2015. The record does not include job descriptions for the Petitioner's other 
employees and does not identify where the employees fall within the organizational hierarchy. 
The statutory definition of "managerial capacity" allows for both "personnel managers" and 
"function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that a "first line supervisor is not considered to be acting in a managerial capacity 
merely by virtue of the supervisor's supervisory duties unless the employees supervised are 
professional." Section 101(a)(44)(A)(iv) of the Act. The record does not include sufficient 
probative evidence demonstrating that the Petitioner employs staff that will perform the operational 
and administrative tasks of the company and relieve the Beneficiary from performing primarily 
non-qualifying duties. 
The Petitioner also has not established that the Beneficiary will primarily perform executive duties. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the 
Act. Under the statute, a beneficiary must have the ability to "direct the management" and "establish 
the goals and policies" of that organization. Inherent to the definition, the organization must have a 
subordinate level of managerial employees for a beneficiary to direct and they must primarily focus 
on the broad goals and policies of the organization rather than the day-to-day operations of the 
enterprise. An individual will not be deemed an executive under the statute simply because they 
have an executive title or because they "direct" the enterprise as the owner or sole managerial 
employee. A beneficiary must also exercise "wide latitude in discretionary decision making" and 
receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." !d. Without evidence of the Beneficiary's subordinates' duties 
and their placement in the Petitioner's organizational structure, the Petitioner has not established that 
the Beneficiary will primarily direct a subordinate level of managerial employees and that those 
employees will relieve him from performing primarily non-qualifying duties. 
The record does not include sufficient probative evidence that the Beneficiary' will perform primarily 
managerial or executive duties for the Petitioner. For this additional reason, the petition may not be 
approved. 
Matter of C-P-R- Corp 
IV. CONCLUSION 
The appeal is dismissed because the Petitioner has not established a qualifying relationship with the 
Beneficiary's foreign employer. We also find that the Beneficiary's proposed position does not 
qualify as a manager or an executive position as defined in the Act. 
ORDER: The appeal is dismissed. 
Cite as Matter of C-P-R- Corp, ID# 669776 (AAO Sept. 25, 2017)