dismissed EB-1C Case: Air Quality Systems

identieing data deleted to 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
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prevent c,lea;ly unlvst~ranted 
invasion sf perssnzl privacy 
 U. S. Citizenship 
pm~l~ COPY and Immigration 
Services 
84 
OFFICE: NEBRASKA SERVICE CENTER Date: JUN 1 8 2009 
LIN 08 103 51531 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a California corporation that claims to be engaged in the sale of indoor air quality 
systems. The petitioner seeks to employ the beneficiary as its chief executive officerlmanager. 
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. 
§ 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on two independent grounds of ineligibility: 1) the petitioner 
failed to establish that the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it would employ the beneficiary in a managerial 
or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits an appellate brief in support of 
his arguments. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding the 
time of the alien's application for classification and admission into the 
United States under this subparagraph, has been employed for at least 
1 year by a firm or corporation or other legal entity or an affiliate or 
subsidiary thereof and who seeks to enter the United States in order to 
continue to render services to the same employer or to a subsidiary or 
affiliate thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate or 
subsidiary of that entity, and who are coming to the United States to work for the same entity, or its 
affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(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 
performed by the alien. 
Page 3 
The issues raised by the director in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed 
abroad and whether he would'be employed in the United States in a qualifying managerial or 
executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. tj 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has 
the authority to hire and fire or recommend those as well as other 
personnel actions (such as promotion and leave authorization), or if no 
other employee is directly supervised, functions at a senior level 
within the organizational hierarchy or with respect to the function 
managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor 
is not considered to be acting in a managerial capacity merely by 
virtue of the supervisor's supervisory duties unless the employees 
supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or 
function of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
Page 4 
In the Form 1-140 support letter, dated February 7, 2008, the petitioner provided job descriptions for 
the beneficiary's foreign and proposed positions. As the director included both job descriptions in 
the notice of denial, the AAO need not repeat this information in the instant decision. 
On March 5, 2008, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide, inter alia, documentary evidence, including foreign tax documents, to establish 
that the beneficiary was employed by the foreign entity in 1998 and 1999. The petitioner was also 
asked to provide each entity's organizational chart, a comprehensive description of the beneficiary's 
foreign and proposed positions, including a detailed list of the specific tasks the beneficiary 
performed abroad and would perform in his employment for the U.S. entity, and the time that was 
and would be allocated to each listed task. 
In response, the petitioner provided job descriptions with percentage breakdowns as well as 
organizational charts illustrating the organizational hierarchy of each entity. The percentage 
breakdown describing the beneficiary's foreign employment has been incorporated into the director's 
decision and need not be repeated in this decision. In addition to the percentage breakdown, the 
petitioner explained that the beneficiary works through distributors and sales offices to market and 
sell the designated products. The petitioner further explained that the foreign entity acts as a 
regional manager of the distributor companies that actually sell the products. In his role, the 
beneficiary's primary function is directing, planning, and controlling the distributors to best serve the 
foreign entity's objectives. The petitioner stated that since the beneficiary started running the U.S. 
entity, the foreign entity no longer has a satellite office and is now doing business directly through 
the distributor companies. 
The petitioner also provided two organizational charts describing the foreign entity's hierarchy. It 
appears that the organizational chart that includes a satellite office and two distributors illustrates the 
foreign entity during the time of the beneficiary's employment abroad, while the chart that shows 
three distributors and no satellite office describes the foreign entity's current organizational structure. 
It is noted that neither chart includes the beneficiary's position to show his placement compared to 
others within the organizational hierarchy. 
With regard to the beneficiary's proposed position, the petitioner provided the following percentage 
breakdown: 
1. 
 Planning and designing the purchasing and distribution[:l 20% 
[The petitioner] is in the process of expanding our business to the hotel service 
industry by marketing and supplying our products and services for hotel needs. 
[The beneficiary] supervises our telemarketing department in researching items for 
[hlotels and as per the hotel needs select certain items . . . and ensure their steady 
supply to the hotels. He is also directing our vice president and telemarketing 
department in charge of finding manufacturers, negotiate prices and make credit 
arrangements. [The beneficiary] instructs our [slales [mlanager to visit the property 
physically where we want to supply the goods for the hotel to find out the color 
Page 5 
coordination and measurements to insure that there are no mistakes or errors when 
ordering. [The beneficiary] overseas overall workflow and quality of products. . . . 
2. 
 Formulation of corporate polices, developing and implementing short and long 
range goals of the company's development plan1:l 15% 
[The beneficiary] makes the initial contacts with suppliers at trade shows and 
conventions to establish relationships so that the company can obtain the best 
merchandise for the lowest wholesale price. [He] then forwards on the 
responsibilities to the appropriate department. He monitors the progress of each 
department and helps them in areas that they need assistance of guidance. . . . 
3. Management company's three sections1:l 10% 
[The beneficiary] oversees and supervises [the] company's overall structure 
including three different fields: [tlelemarketing, [slales, and [clustomer 
[s]ervicel[a]dministration departments. Because of our business needs . . . we 
recently hired an office coordinator and office assistant in our customer service 
department under the direction and supervision of our vice president. . . . [The 
beneficiary] supervises and oversees all the departments. . . . 
4. Hiring and firing of employees and independent contractors[:l 5% 
All sales people under our sales department are independent contractors . . . . [The 
beneficiary] directs and formulates the company policy and guidelines for the 
[slales manager before interviewing the salespeople. . . . [The beneficiary] has the 
final decision in hiring and firing the sales person after the selection or 
recommendation from the sales manager. . . . 
5. 
 Management of compliance with scheduling needs and creation and administration 
of standards of work qualitvr:] 10% 
[The beneficiary] monitors all the activities in progress with all department 
managers. We set up short term goals and try to achieve it with the best of our 
ability then set up a long-term goal. 
6. 
 Determination and implementation of investment policy and financial plans1:l 15% 
[The beneficiary] solely determines our company's investment policy and selects 
the programs for investment. He further directs and supervises our administrative 
section including our vice president and office coordinator in computing the 
company's profit margin, calculating the break-even points, dividing into fixed 
expenses . . . . With the information provided by our administration, [the 
beneficiary] may make a final decision for our company's investment policy and 
financial plans. . . . 
Page 6 
7. 
 Directing negotiation and contract with vendors and customers[:] 15% 
Under the supervision of the vice president, our office coordinator will generate a 
list of contacts for different vendor companies and customers . . . . Then[,] the vice 
president will instruct the office assistant or coordinator to contact them to negotiate 
prices . . . . The vice president may also participate in the negotiation and contract 
if necessary. [The beneficiary] supervises and guides the vice president for her 
department to improve the efficiency and correct the mistakes. For major contracts 
. . . [the beneficiary] will sign the agreement in represent our company. 
[He] also oversees our sales department manager and telemarketing department 
manager regarding their personnel's contacts with the suppliers for products and 
contacts with the customers. [The beneficiary] directs and controls the coordination 
of our three departments. He also supervises our customer service department in 
obtaining feedback from the customers . . . and obtain[ing] some referral business 
with them. 
[The beneficiary] visits the trade shows, [sic] to obtain channels of new suppliers. 
8. Human resources development I:] 1 0% 
[The beneficiary] teaches vendor negotiation to each department as to how to obtain 
the best wholesale price on each product . . . . 
[He] oversees our administrative department for all accounts payablelaccounts 
receivable, payroll and baking statements, making sure all the accounts are paid in 
[a] timely manner. 
The petitioner also provided an organizational chart illustrating its own organizational hierarchy. 
The chart shows the beneficiary at the top of the organizational hierarchy with a telemarketing 
manager, a sales manager, and a customer serviceladministration vice presidentlmanager as his three 
direct subordinates. The telemarketing and sales managers are each shown as having an assistant 
and the vice presidentlmanager oversees an office coordinator and an office assistant. Three sales 
positions are shown at the bottom of the organizational hierarchy. All three are depicted as 
subordinates of the assistant to the sales department manager. 
The director denied the petition in a decision dated June 2,2008, concluding that the petitioner failed 
to establish that the beneficiary was either employed abroad or that he would be employed by the 
U.S. entity in a qualifying managerial or executive capacity. The director found that the petitioner 
offered inadequate descriptions of the beneficiary's past and proposed employment. With regard to 
the foreign employment, the director found that the foreign entity's organizational chart shows no 
actual personnel to relieve the beneficiary from having to primarily perform operational tasks. 
Similarly, with regard to the U.S. organizational hierarchy, the director determined that the petitioner 
failed to establish that the beneficiary would oversee a subordinate staff of professional, managerial, 
or supervisory staff. The director commented on the petitioner's quarterly wage report for the time 
period directly preceding the filing of the Form 1-140, noting that the report shows only two people 
employed by the petitioner during that quarter. 
 In light of this documentation, the director 
determined that the petitioner was not capable of relieving the beneficiary from having to primarily 
perform non-qualifying tasks. 
On appeal, counsel asserts that the beneficiary worked abroad "primarily as a manager/executive." 
There is a clear distinction between someone employed in a managerial capacity pursuant to section 
101(a)(44)(A) of the Act, versus someone employed in an executive capacity pursuant to section 
101(a)(44)(B) of the Act. Moreover, a beneficiary may not claim to be employed as a hybrid 
"manager/executive" and rely on partial sections of the two statutory definitions. If the petitioner 
chooses to represent the beneficiary as both an executive and a manager, it must establish that the 
beneficiary meets each of the four criteria set forth in the statutory definition for executive and the 
four criteria in the statutory definition for manager. Much of counsel's supporting argument consists 
of restatements of information that was previously provided by the petitioner regarding its own and 
the foreign entity's business operations as well as the beneficiary's previously provided job duties 
with each entity. 
In addition, counsel asserts that the beneficiary assumed the position of function manager of the 
foreign entity. Counsel argues that the beneficiary has been and would continue to direct, plan, 
organize, and control through independent contractors who distribute the products sold by the 
foreign entity, pointing out that the beneficiary is the owner and CEO as well as sole decision-maker 
of the foreign entity. Counsel further refers to an unpublished decision in which the AAO 
determined that the beneficiary met the requirements of serving in a managerial and executive 
capacity for L-1 classification even though he was the sole employee. However, counsel has 
furnished no evidence to establish that the facts of the instant petition are analogous to those in the 
unpublished decision. 
 Furthermore, while 8 C.F.R. 5 103.3(c) provides that AAO precedent 
decisions are binding on all U.S. Citizenship and Immigration Services (USCIS) employees in the 
administration of the Act, unpublished decisions are not similarly binding. Thus, the AAO will 
disregard the petitioner's reference to the unpublished decision. 
Regardless, a review of the record shows that the petitioner has provided a deficient organizational 
chart that fails to specify the beneficiary's placement within the company's hierarchy and has 
submitted an equally deficient job description that fails to specify the actual tasks the beneficiary 
performed on a daily basis. Despite the director's discussion of these deficiencies, the petitioner has 
not supplemented the record on appeal with evidence to suggest that the beneficiary was employed 
abroad in a qualifying capacity. The petitioner has provided no discussion to clarify what tasks were 
involved in directing the distributors on policy formulation; how the beneficiary instructed and 
guided distributors or how instructing distributors was different from guiding them; nor is there any 
information as to the tasks that were required to direct distributors to find financing and budget 
management. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 
F.2d 41 (2d. Cir. 1990). As the petitioner has failed to provide the relevant information concerning 
the beneficiary's daily tasks in the context of the foreign entity's organizational hierarchy, the AAO 
cannot conclude that the petitioner has established that the beneficiary was employed abroad in a 
qualifying capacity. 
Although the petitioner has provided a more detailed description of the beneficiary's proposed 
employment with the U.S. entity, the job description is nevertheless lacking the necessary degree of 
detail about the beneficiary's specific daily tasks. For instance, the petitioner claimed that 20% of 
the beneficiary's time is attributed to planning and designing the purchasing and distribution. While 
the petitioner made it clear that the planning and designing applies to the petitioner's attempt to 
expand into the hospitality industry, the beneficiary's actual tasks in connection with this broad 
category are unclear. The petitioner provided no specifics as to how the beneficiary supervises the 
telemarketer and directs the vice president in their respective tasks. 
The petitioner stated that another 15% of the beneficiary's time was attributed to formulating 
corporate policies and goals. However, the statements that accompanied the main heading discussed 
the beneficiary's role in making the initial contacts with suppliers at trade shows and relaying the 
information to his subordinates for further action. There is no apparent connection between 
formulating company goals and policies and attending trade shows. Moreover, attending trade 
shows and approaching suppliers are indicative of non-qualifying operational tasks. As the 
petitioner has not assigned a direct time allocation to these specific tasks, the AAO cannot determine 
how much of the 15% would be attributed to performing the non-qualifying tasks and how much 
would be spent allocating tasks to subordinates. That being said, the petitioner allotted another 10% 
of the beneficiary's time to managing telemarketing, sales, and customer service/administration 
departments, claiming that the recently hired telemarketing and sales managers are now full-time 
employees. However, the petitioner provided no specifics as to the actual tasks that would be 
involved in supervising and overseeing these employees. 
Furthermore, the petitioner has provided no documentary evidence to support the claim that the 
telemarketing and sales managers were full-time employees at the time the Form 1-140 was filed. 
While the petitioner's 2007 fourth quarterly wage report is not an accurate indicator of whom the 
petitioner employed when the Form 1-140 was filed in February 2008, the AAO cannot overlook the 
fact that the petitioner started the 2007 fourth quarter with five employees and ended it with two 
employees only one month prior to filing the Form 1-140. While it is possible for the petitioner to 
have hired six employees by the time the petition was filed, the AAO cannot assume that such hires 
took place. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). Here, the petitioner has not provided evidence to establish that the positions shown in its 
organizational chart were filled when the petition was filed. It is noted that, in reviewing the 
relevance of the number of employees a petitioner has, federal courts have generally agreed that 
USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family, Inc. v. US. Citizenship and 
Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of 
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d 
Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
Furthermore, it is appropriate for USCIS to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a 
"shell company" that does not conduct business in a regular and continuous manner. See, e.g. 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). In light of the lack of documentation 
in the present matter, the AAO cannot determine whether the petitioner had the staffing ability to 
relieve the beneficiary from having to primarily perform non-quali@ing tasks. Thus, the petitioner's 
failure to provide adequate documentation accompanied by a detailed job description precludes the 
AAO from finding that the petitioner would employ the beneficiary in a qualifying managerial or 
executive capacity. 
Another issue in this matter is whether the foreign entity continues to do business, which is a 
necessary component to establishing and maintaining a qualifying relationship with the beneficiary's 
foreign employer. 
The regulation at 8 C.F.R. Lj 204.5('j)(2) states in pertinent part: 
Doing business means the regular, systematic, and continuous provision of goods 
and/or services by a firm, corporation, or other entity and does not include the mere 
presence of an agent or office. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
In the present matter, the director determined that the letter from the foreign entity's accountant, that 
entity's business licenses, and commercial leases are not sufficient to show the foreign entity's 
continued business activity. The director also pointed out that a document entitled "Business service 
list," dated April 28, 2006, indicates that the foreign entity is not operating. 
On appeal, counsel argues that the director failed to consider the petitioner's 2005 business lease 
with right of a two-year extension. Counsel also directs the AAO's attention to a document entitled 
"Restoration Application Full Restoration," dated July 17, 2008. With regard to the latter, however, 
the AAO notes that there is no evidence that this document was actually filed with the proper 
government authority. Moreover, this document was filed after the director pointed out the 
deficiency in the decision denying the petition. The petitioner's active business status at the time the 
Form 1-140 was filed is still questionable. Furthermore, the above definition states that doing 
business is defined by an entity's regular, systematic, and continuous business transactions. Here, 
the petitioner claims that the foreign entity sells goods through a variety of independently contracted 
distributors. However, the record lacks evidence to establish that the foreign entity assumed some 
role in these sales transactions in the manner described. As previously stated, going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190. Here, the record lacks evidence showing that the 
foreign entity was doing business at the time the Form 1-140 was filed. Without this necessary 
element, the petitioner cannot be deemed a multinational entity that conducts business in two or 
more countries, one of which is the United States. See 8 C.F.R. 5 204.5(i)(2). For this additional 
reason, this petition cannot be approved. 
Lastly, by virtue of the beneficiary's claimed ownership of the U.S. petitioner, it appears more likely 
than not that the beneficiary will not be an "employee" of the United States operation. As explained 
in 8 C.F.R. 5 204.5Cj)(5), the petitioner must establish that the beneficiary will be "employed" in an 
executive or managerial capacity. It is noted that "employer," "employee," and "employed" are not 
specifically defined for purposes of the Act even though these terms are used repeatedly in the context 
of addressing the multinational executive and managerial immigrant classification. Section 
203(b)(l)(C), 8 U.S.C. 5 1153(b)(l)(C), requires beneficiaries to have been "employed" abroad and to 
render services to the same "employer" in the United States. Further, section 101(a)(44), 8 U.S.C. 
5 1 101 (a)(44), defines both managerial and executive capacity as an assignment within an organization 
in which an "employee" performs certain enumerated qualifying duties. Finally, the specific definition 
of "managerial capacity" in section 101 (a)(44)(A), 8 U.S.C. 5 1 101 (a)(44)(A), refers repeatedly to the 
supervision and control of other "employees." Neither the legacy Immigration and Naturalization 
Service nor U.S. Citizenship and Immigration Services (USCIS) has defined the terms "employee," 
"employer," or "employed" by regulation for purposes of the multinational executive and managerial 
immigration classification. See, e.g., 8 C.F.R. 4 204.5 and 8 C.F.R. 5 214.2(1). 
 Therefore, for 
purposes of this immigrant classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 3 18, 322-323 (1 992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) ofAgency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at 5 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
Page 11 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 53 8 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which the petitioner claims is ultimately owned and controlled 
by the beneficiary, who purports to assume a role as the petitioner's principal. He will control the 
organization; set the rules governing his work; and share in all profits and losses. Therefore, the 
record lacks sufficient evidence that the beneficiary would be an employee of the petitioning entity. 
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), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
ground of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.