dismissed EB-1C Case: Architecture

(b)(6)
FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER Date: JUN 1 1 2013 
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 )(1 )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-2908, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to rer:onsider or reopen. 
Thank you, 
~~on Rosenberg 
~ .cting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa 
petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Minnesota corporation that seeks to employ the beneficiary as its president and chief 
designer. 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. 
§ 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition based on two 
independent grounds of ineligibility: I) the petitioner failed to establish that it has been and continues to 
conduct business on a regular, systematic, and continuous basis; and 2) the petitioner failed to establish that it 
would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel submits a brief disputing the denial and asserting that the petitioner has been doing 
business in the United States and is not merely present as an agent or office. 
The AAO hereby 
withdraws first ground cited as a basis for denial and will therefore limit the instant decision 
to the second ground-the beneficiary's employment capacity in his proposed position with the U.S. entity. 
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 I 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 )(1 )(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. 
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The primary issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 10l(a)(44)(A) ofthe Act, 8 U.S.C. § 110l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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 10l(a)(44)(B) of the Act, 8 U.S.C. § II Ol(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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. 
In supp011 of the Form 1-140, the petitioner submitted a letter which includes the following description of the 
beneficiary's proposed employment 
Contract Negotiation, Presentation, Model Development, Project Conceptualization: 30% 
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• Directing the work of his design team in developing models and other documentation 
for contract negotiation and presentation to U.S. customers and potential customers; 
• Negotiating architectural design contracts; and 
• Negotiating collaboration contracts and plans with U.S. architectural firms. 
Project Supervision: 30% 
• Communicating specific client needs for architectural design projects to subordinate 
Design Project Manager and/or Architects and Designers; 
• Management of Project Parameters and budget; 
• Directing, reviewing, and approving company design layout and blueprints created 
by [the] Project Manager and Architects/Designers; 
• Evaluating comments of [the] Project Manager and COO in advising on [the] 
company's architectural designs in period meetings; 
• Supervising project schedule through meetings with [the] Project Manager and COO; 
and 
• Approving project completion after comprehensive reviews performed by [the] 
Project Manager and COO. 
Personnel Management: 25% 
• Understanding and analyzing company's financial statements prepared by COO and 
Accountant in making appropriate business decisions, e.g., office expansion, staffing, 
project schedules; 
• Making ultimate decisions on hiring, firing, recommendation, and other personnel 
actions (such as promotion and leave authorization) for both companies; and 
• Specifically the [beneficiary] needs to grow his U.S. design team and needs to be 
able to enter the U.S. market and find 1-2 additional designers to support additional 
projects for the U.S. company; also, the [beneficiary] will be searching for a director­
level person to grow the medical device and equipment distribution business .... 
Business Relationship Development: 15% 
• Development business relationship with new clients and business partners; 
• Specifically the VP/COO has made contacts with a couple [of] large construction 
development firms with experience in hospital construction. . . . [The beneficiary] 
will meet directly with business partners on this critical business development project 
and opportunity. 
The petitioner also stated that it is currently staffed with four employees, who occupy the following positions: 
COO/vice president, project manager, architect/designer, and accountant. The COO/vice president would be 
assigned the petitioner's "day-to-day administration" 
leaving the beneficiary to manage conceptual projects 
and develop models for new business presentations. 
(b)(6)
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The director denied the petition concluding that the petitioner failed to submit sufficient evidence to establish 
that the beneficiary has been and would be employed at the U.S. entity within a qualifying managerial or 
executive capacity. 
On appeal, counsel focuses primarily on establishing that the petitioner has been and continues to do business 
in the United States in a regular, continuous, and systematic manner. As the AAO has withdrawn this ground 
as a basis for denial, counsel's arguments with regard to the issue of the petitioner's business activity need not 
be addressed at the present time. It is noted, however, that counsel does not address or dispute the second 
ground for denial, which focuses on the beneficiary's employment capacity in his proposed position. After 
conducting a de novo review of the record, the AAO finds that the petitioner has not overcome the second 
ground for denial in that it has failed to submit sufficient evidence to establish that the beneficiary's time 
would be primarily allocated to qualifying managerial or executive tasks. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties to determine what tasks will be performed and how much time the 
beneficiary would spent on qualifying tasks versus those tasks that that are necessary to produce a product or 
provide a service. See 8 C.F.R. § 204.50)(5). It is noted that an employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In the instant matter, the petitioner states that it is in the business of providing architectural services. In 
describing the beneficiary's role within its architectural firm, the petitioner has stated that the beneficiary's job 
duties include negotiating architectural and collaboration contracts, managing the budget of each project, 
relaying client needs to the petitioner's architects and designers, and developing business relationships with 
clients and business contacts. However, the petitioner has not established that any of these are qualifying 
tasks, nor has a specific time allocation been assigned to these job duties. Rather, the petitioner assigned time 
allocations to the general areas of responsibility into which the more specific job duties are categorized, thus 
failing to establish how much time the beneficiary would allocate to each ofthe listed job duties. 
The AAO further observes that the job duties listed under the category "Project Supervision" employ the 
plural forms of the words architect and designer, thus indicating that the beneficiary's job duties would be 
performed in the context of multiple architects and designers. However, by the petitioner's own admission, it 
did not employ multiple architects/designers at the time of filing the Form 1-140. In fact, the employee list 
that was included on page four of the petitioner's initial support letter indicates that a single person would 
assume responsibility for the architectural and design tasks. Although the petitioner indicated that it intends 
to hire another employee in the position of architect/designer, eligibility must be established at the time of 
filing, not at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971 ). It is unclear whether a single architect/designer is sufficient 
to relieve the beneficiary from having to allocate some portion of his time to providing these services. 
(b)(6)
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On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. The fact that an individual manages a 
small business does not necessarily establish eligibility for classification as a multinational manager or 
executive in a managerial or executive capacity within the meaning of section 10l(a)(44) of the Act. The 
record does not establish that a majority of the beneficiary's duties have been or will be primarily directing the 
management of the organization. Rather, the record indicates that the beneficiary will assume the sales role, 
as he will assume the responsibility of conceptualizing his firm's design ideas and attempting to sell those 
ideas, i.e., his firm's architectural and design services, to potential clientele. The petitioner further indicated 
that the beneficiary would maintain contact with existing clients to gauge their needs and relay those to the 
staff who will be responsible for completing the prqject. While the AAO does not dispute that the beneficiary 
would play a pivotal role within the petitioner's operational success, solely establishing the need for the 
beneficiary's services is not sufficient, particularly when the petitioner's operation depends on the beneficiary 
spending a significant portion of his time performing the tasks that are necessary to produce a product or to 
provide a service. 
The petitioner has not demonstrated that it has reached a level of organizational complexity wherein the 
hiring/firing of personnel, discretionary decision-making, and setting company goals and policies constitute 
significant components of the duties performed on a day-to-day basis. Nor does the record demonstrate that 
the beneficiary primarily manages an essential function of the organization. Based on the evidence furnished, 
it cannot be found that the beneficiary has been or will be employed primarily in a qualifYing managerial or 
executive capacity. For this reason, the petition may not be approved. 
Beyond the director's decision, the record lacks consistent and sufficient documentation to establish that the 
petitioner meets the regulatory requirements set forth in 8 C.P.R. § 204.5U)(3)(i)(C), which states that the 
petitioner must establish that it has a qualifYing relationship with the beneficiary's foreign employer. First, 
while the petitioner indicated on page four of its initially submitted support letter that the beneficiary has an 
80% ownership interest in the petitioner and is two foreign affiliates, the petitioner has not provided any 
evidence to support this claim. 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 Crqft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Despite the petitioner's submission of the articles of association of the two foreign entities, each document 
only names the beneficiary as one of two shareholders, but does not specifY the percentage of shares owned in 
either entity. 
Second, while the support letter indicates that the beneficiary is 80% owner of the petitioner's shares, the 
petitioner's IRS Form 1120S for 2008, which was submitted on appeal, indicates that the beneficiary owns 
I 00% of the petitioning entity's stock. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). While the petitioner's tax return does not alter the overall claim 
that the beneficiary has majority ownership of the petitioning entity, the unresolved inconsistency lends itself 
to further scrutiny and gives rise to doubt the veracity ofthe petitioner's claim. 
(b)(6)
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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; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In 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 l&N Dec. at 595. 
In the present matter, the petitioner has failed to provide documentation establishing that the beneficiary is 
majority owner of the petitioning entity or the two foreign entities that employed him abroad. As ownership 
is a critical element of this visa classification, the petitioner's failure to submit adequate documentation in 
support of its claim precludes the AAO from concluding that the petitioner has a qualifying relationship with 
the beneficiary's foreign employer. 
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), a.ff'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
Lastly, regarding counsel's reference to the petitioner's current approved L-1 employment of the beneficiary, 
the AAO notes that each nonimmigrant and immigrant petition is a separate record of proceeding with a 
separate burden of proof; each petition must stand on its own individual merits. USCIS is not required to 
assume the burden of searching through previously provided evidence submitted in support of other petitions 
to determine the approvability of the petition at hand in the present matter. The approval of a nonimmigrant 
petition in no way guarantees that USCIS will approve an immigrant petition filed on behalf of the same 
beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 
F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be illogical to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
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center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), a.ffd, 248 F.3d 1139 (5th Cir. 
2001 ), cert. denied, 122 S.Ct. 51 (200 1 ). 
Accordingly, 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.