dismissed EB-1C Case: Architecture

(b)(6)
DATE: JUL 0 9 2015 
IN RE: Petitioner : 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Admini strative Appeals Office {AAO) 
20 Massac husetts Ave., N.W .. MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision ofthe Administrative Appeals Office (AAO) for your case. 
If you believe we incoJTectly decided your case , you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03 .5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision . The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location , and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
~nbcrg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office on appeal. We will dismiss the 
appeal. 
The petitioner , an architectural firm, seeks to employ the beneficiary in the United States as an 
architectural design lead. The petitioner filed Fom1 1-140, Immigrant Petition for Alien Worker , on 
June 4, 2012, seeking to classify the beneficiary as an employment-based immigrant under 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 on May 28, 2014, concluding that the petitioner had 
not established 
a qualifying relationship between the beneficiary ' s foreign employer and the petitioning U.S. entity . 
The director also found that the petitioner had not established that the beneficiary ' s duties , abroad or 
in the United States, qualify as managerial. 
On appeal, the petitioner submits a legal brief, asserting that the director did not consider relevant 
evidence, and that the denial notice contains errors of fact and law. The petitioner also submits 
supporting evidence including reference materials and copies of Internal Revenue Service (IRS) 
documents. 
I. 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 executive s and managers. An alien is described in this 
subparagraph ifthe 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 the alien 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 only to 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. 
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A United States employer may file Form I-140 to classify a beneficiary under section 203(b)(l)(C) of 
the Act as a multinational executive or manager. The regulation at 8 C.F.R. § 204.5G)(5) states: 
No labor certification is required for this classification ; however, 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 letter must clearly describe the duties to be performed by 
the alien. 
Section 10l(a)(44) ofthe Act, 8 U.S.C. § 110l(a)(44), provides: 
(A) 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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
10l(a)(44)(C) ofthe Act. 
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II. Issues on Appeal 
A. Qualifying Relationship 
The first issue under consideration concerns the relationship between the beneficiary's foreign employer 
and the petitioning U.S. entity. The regulation at 8 C.F.R. § 204.5(j)(2) provides the following 
relevant definitions: 
Affiliate means: 
(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; or [a third provision which relates only to 
certain partnerships organized in the United States to provide accounting 
services, along with managerial and/or consulting services.] 
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. 
1. Facts 
The petitioner submitted an introductory letter, stating that the petitioning firm has "[ n ]ine offices 
worldwide," including locations in New York and The petitioner's general counsel, in a 
letter dated April4, 2012, stated that the office: 
is wholly-owned by an Ohio Limited Liability Company, which formerly 
operated under the name _ and [the 
petitioning entity] are affiliates being 100% beneficially owned and controlled 
pursuant to nominee agreements by the same parent, a 
Washington Limited Liability 
Partnership .... 
To comply with New York and Ohio requirements regarding oversight of 
architectural firms, nominees, all of whom hold partnership interest in 
have been appointed to hold the ownership interest in the New York and Ohio 
business entities on behalf of 
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A January 1, 2009 nominee agreement designated two architects licensed in New York C 
1 as nominees , who "hold record title to _ 
beneficial interest in PLLC." The nominee agreement refers to the New York entity's "Operatin g 
Agreement . . . dated June 16, 1999." 
A similar agreement , dated June 30, 2008, designated three licensed Ohio architects ( 
as nominees to hold title to -
interest in The nominee agreement refers to the Ohio entity's "Operating 
Agreement ... dated January 31, 2003." 
A 2011 IRS Form W-2, Wage and Tax Statement, identified the benefici ary's employer as ' 
"with a mailing address in , Washington. The Employer Identification Number 
(EIN) shown on the Form W-2, matches the EIN on Form I-140. Pay receipts from 
2012 also identified the employer as , but with the petitioner's New York address. 
The legend " ' followed by the mailing address, appears at the bottom of the pay 
receipts. 
On April 18, 2013, the director issued a request for evidence (RFE), instructing the petitioner to 
submit additional documentation to establish a qualifying relationship between the petitioner and the 
entity in The director acknowledged the petitioner 's submission of nominee 
arrangements, but expressed concern that "the most recent nominee agreement was signed in 2009." 
The director stated: "If the petitioner is a limited liability company, please submit a copy of the 
petitioner 's Articles of Organization , the Operating Agreement (OA), meeting minutes , or other 
documentation 
that establishes ownership and control." 
In response, the petitioner repeated the assertion that , based in Washington, is the 
parent entity of both the petitioner and the Ohio-based entity that controls the 
beneficiary's employer in China. The petitioner asserted that Ohio law had recently changed, 
allowing the parent entity to take direct ownership of99% of the Ohio entity' s shares. 
A copy of IRS Form 1065, U.S. Return of Partnership Income, for 2011, showed that 
each owned 50% ofthe petitioning entity. This is consistent with the 
earlier documentation that named those two individuals as the parent entity's nominees. 
Another IRS Form 1065, for in Ohio, included copies of Schedule K-1, Partner 's Share 
of Income, Deductions , Credits, etc., for the tax year ending January 31 , 2012. These documents 
indicated that (the parent entity in Washington) owned a 99% share of the Ohio 
entity, with each owning 0.3333%. 
The director denied the petition on May 28, 2014, stating "[t]he percentage amounts listed on the 
Schedules K -1 account for one hundred ninety-eight percent of stock." The director 
concluded: "The petitioner failed to submit documentar y evidence to show who owns the petitioner 
and the foreign entity's common stock." 
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On appeal, the petitioner observes that the percentages shown on the referenced Schedules K-1 add 
up to 100%, not 198%. The petitioner also observed that, under the terms of the nominee 
agreements, control over the companies remains with the Washington LLP, not the nominees . 
2. Analysis 
The record supports the petitioner's assertion that the director did not give sufficient attention to the 
nominee agreements , which do not confer actual control ofthe entities to the nominees. Section 5(b) 
of each agreement requires the nominees to "vote ... in accordance with instructions delivered by 
Owner." The petitioner is also correct in asserting that the director's discussion of the tax 
documentation contains arithmetical errors. A more fundamental issue, however, remains 
unresolved. 
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 o.f 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 o.f Church Scientolo gy 
International , 19 I&N Dec. at 595. 
As general evidence of a petitioner 's claimed qualifying relationship , a certificate of formation or 
organization of a limited liability company (LLC) alone is not sufficient to establish ownership or 
control of an LLC. LLCs are generally obligated by the jurisdiction of formation to maintain records 
identifying members by name, address, and percentage of ownership and written statements of the 
contributions made by each member, the times at which additional contributions are to be made, 
events requiring the dissolution of the limited liability company, and the dates on which each 
member became a member. These membership records, along with the LLC's operating agreement , 
certificates of membership interest, and minutes of membership and management meetings , must be 
examined to determine the total number of members, the percentage of each member 's ownership 
interest, the appointment of managers, and the degree of control ceded to the managers by the 
members. Additionally , a petitioning company must disclose all agreements relating to the voting of 
interests, the distribution of profit, the management and direction of the entity, and any other factor 
affecting actual control of the entity. See Matter a,[ Siemens Medical Systems, Inc., 19 I&N Dec. 362 
(BIA 1986). Without full disclosure of all relevant documents, we cannot find that the petitioner has 
established common ownership of the entities involved. 
The nominee agreements address the issue of control, to the extent that they limit the authority of the 
nominees . They do not, however, settle the underlying issue of ownership. The nominee 
agreements mention the existence of operating agreements, and the director, in the RFE, specifically 
(b)(6)
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requested a copy of the petitioner's operating agreement as evidence of ownership. The petitioner , 
however, neither submitted the operating agreement nor explained its failure to do so. 
The regulations give the director discretion to issue an RFE in order to elicit further information that 
clarifies whether the petitioner has established eligibility for the benefit sought as of the petition 's 
filing date. See 8 C.F.R. §§ 103.2(b)(8) and (12), 204.5(j)(3)(ii). The 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)(14). 
The letter from the petitioner's general counsel sets forth the petitioner's claim, but is not evidence 
in support of that claim. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 I&N Dec. 
158, 165 (Comm'r 1998) (citing Matter a_{ Treasure Craji ofCal?forni a, 14 I&N Dec. 190 (Reg'! 
Comm 'r 1972) ). That letter cited an organizational chart in the record, but no primary 
documentation to establish the ownership arrangement described on that chart. 
The petitioner notes the approval of several nonimmigrant petitions that it had previously filed on 
the beneficiary's behalf. The director's decision does not discuss these prior approvals of the other 
nonimmigrant petitions, and the record does not include or identify the evidence submitted in 
support of those approved nonimmigrant petitions. We are 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 qf Church Scientology International , 19 I&N Dec. 593, 597 
(Comm'r 1988). 
While the director erred by g1vmg insufficient consideration to the nominee agreements , those 
agreements do not establish the required qualifying relationship between the foreign employer and 
the petitioning U.S. employer. Rather, they presume that relationship, based on reference to primary 
documents that are absent from the record even after the director specifically requested them. 
Accordingly, we cannot conclude based on the evidence of record that the petitioner has a qualifying 
relationship with the foreign entity. 
B. U.S. and Foreign Employment in a Managerial Capacity 
The second and final stated ground for denial concerns the finding that the beneficiary's duties, both in 
the offered U.S. position and in his last position abroad, are not in a managerial capacity as defined at 
section 101(a)(44)(A) ofthe Act. The petitioner does not claim that the beneficiary has served, or 
will serve, in an executive capacity, and therefore we need not consider that question. 
1. Facts 
The petitioner 's introductory letter of May 31 , 2012 indicated that the beneficiary "served as the 
Architectural Design Lead for ... substantial projects" in from May 2006 to September 
2007 and thereafter in the United States. The petitioner further stated that the individuals reporting 
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to the beneficiary for each project included "an average of 3 to 4 professional architects, " "an 
average of 4 architectural interns," and various others including engineers , consultants, and others. 
The petitioner asserted: "state licensure is not necessary for this position as all drawing s are 
approved and signed by the Principal or Managing Partner." 
The 
beneficiary 's resume identified six projects that he undertook since atTiving in the United States. 
The document indicates that he served as "Design Lead" on two of the projects ; "Design 
Lead/Project Manager" on two others; and as "Project Architect" on the remaining two. The resume 
indicated that the beneficiary "is now part of the Senior Design Leadership." The resume also 
identified eight projects that the beneficiary undertook while employed by the foreign entity in 
He served as a "Design Lead" on four of the projects, "Architectural Design Lead" on 
one, and "Project Architect" on two. The remaining project showed no title for the beneficiary , but 
indicated that he provided the "Concept & Schematic Design." 
A capsule biography provided by the petitioner 
shows the word "Associate " next to the beneficiar y' s 
name, and the word "Architect" on the line below; it is not clear if these two words are separate or 
intended to form the title "Associate Architect." The document 's list of "Relevant Project 
Experience" identified nine projects. Of those, the document indicated that the beneficiary was a 
"Designer" on seven projects, "Architect, Designer" on the eighth, and ·served in "Construction 
Administration" in the remaining project. 
The petitioner indicated that each project has its own hierarchy . The petitioner submitted "Team 
Structure" organizational charts for the petitioning entity and the entity in showing four 
levels. The top level included a "Design Principal" and a second official, identified as "Partner in 
Charge" on the petitioner 's chart and as "Managing Partner (U.S.)" on the chart. On the 
second level, reporting to the "Design Principal ," were the beneficiary , a "Technical Delivery Lead" 
and a "Project Manager. " The beneficiary supervised a three-memb er "Design Team" which, in 
tum, oversaw five specialized design teams comprising architects, engineers, and others, based 
variously in the United States and China. 
Other organizational charts, arranged in levels but not specifying who reports to whom, pertain to 
individual , identified projects. These project-spec ific charts did not strictly conform to the 
standardized charts submitted with them. The chart for " Residential Masterplan ," for 
example, placed a "Principal" at the top of the chart, with the beneficiary and a "Delivery Lead" on 
the second level, followed by two "Project Architects" and a "Landscape Design[ er]," with the 
bottom row comprising three "Architect[s]" and one "3D Model, B/M Designer." 
In the April 2013 RFE, the director stated that the petitioner had not established that the 
beneficiary's duties in the United States qualify as managerial. The director requested "definitive 
statement[ s ]" from the petitioner and from the foreign employer , addressing the regulatory and 
statutory requirements of a managerial position . 
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The petitioner's response included statements from two current or former officials of the entity in 
, principal and operations leader at 
, stated: 
As is standard within ... , as an Architectural Design Lead [the beneficiary] 
would typically have at least 3 professional architects reporting to him for each 
project. ... 
Further, 2-4 design interns with Bachelor's degrees reported to each of these 
professionals who in tum reported to [the beneficiary]. In his position, [the 
beneficiary] was responsible for supervising and controlling the work of these 
professional design staff. He also had the authority to recommend and approve 
personal [sic] actions including promotions, discipline and leave. 
now a senior associate/architect at office, stated that he supervised 
the beneficiary's work in . during which time the beneficiary "had an average of 3 to 4 
professional architects reporting to him for each project." Mr. provided the following 
breakdown of the beneficiary's daily duties: 
~4 hours Exercise discretion over the day-to-day operations of 2-3 large-scale 
commercial agricultural design projects including determination of time­
lines, budgets, staffing requirements, assignment of specific architectural 
duties, oversight of design work, and direct supervision of 9-12 architects. 
~2 hours Mentor project architects, conduct performance audits on design work, 
evaluate performance. 
~2 hours Interact with clients concerning project details. 
The petitioner did not submit comparable statements from any identified official of the petitioning 
U.S. entity. The petitioner did, however, submit an unattributed list of specific duties, titled "Job 
responsibilities in China & United States (Architectural Design Lead I Lead Architect I Project 
Manager)." The list contained three broad categories, each with several 
subsections. The list 
indicated that an individual in the named position devotes 50% of his time to "managing large scale 
commercial projects," which encompassed eight activities such as "[ n ]egotiating with contractors, 
consultants, engineers and manufacturers" and "devising Dynamic Project Calendar and accountable 
for controlling workload to reach project milestones governing team members, consultants and 
contractors." The individual devotes 30% of his time to "supervising professional project team 
members and instructing consultants." This function is subdivided into nine categories, including 
"[a]ssess deliverables & divide workload accordingly and continuously monitor progress" and 
"[ o ]verse the drafting of specifications for the nature and quality of materials required." The 
remaining 20% of the responsibilities involve "interacting with client," which encompasses five 
tasks, including "[p ]rovide advice and counsel to determine appropriate contracting with clients and 
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guiding contract negotiations" and "[r]egular video conferences & conference calls for client design 
presentations & progress updates." By grouping 22 different functions together under three broad 
headings, the petitioner did not establish the amount of time allocated to each specific duty. 
The petitioner submitted copies of IRS Form W-2 Wage and Tax Statements for individuals named 
as the beneficiary's subordinates, some working in New York, others in Ohio. The petitioner has 
heavily redacted the copies to remove most of the salary information. The petitioner also submitted 
copies of diplomas and other credentials held by subordinate architects. 
In the May 20 14 denial notice, the director stated that the organizational charts were not consistent 
with one another, and that "[t]he petitioner failed to submit any evidence to show that the beneficiary 
manages subordinate personnel." The director also found that "the beneficiary spent and will spend 
the majority of his time performing non-managerial activities" involving budgets, negotiations, and 
other "operational tasks necessary for the success of the petitioner's business." The director also 
stated: "There is no evidence that the ... personnel mentioned on the organizational charts ... are 
professionals. " The director concluded that the petitioner had not established that the beneficiary's 
duties, either abroad or in the United States, qualify as managerial or executive. 
On appeal, the petitioner observes that the statutory definition of"professional" at section 10l(a)(32) 
of the Act includes architects. The petitioner contends the majority of the beneficiary's "duties 
consist specifically of supervision and controlling the professional and supervisory employees under 
him." The petitioner also asserts that director was wrong to conclude that "[m]anagers cannot create 
work plans, budgets, [or] control assignments and calendars." 
2. Analysis 
The percentage breakdown that the petitioner submitted in response to the RFE does not include any 
time spent actually executing architectural designs, but materials in the record, including the 
beneficiary's own resume, indicate that the beneficiary's role has changed from project to project, 
both in New York and in Specifically , this evidence shows that the beneficiary sometimes 
serves as a "Project Architect" as distinct from a "Design Lead" and/or "Project Manager." Work 
performed as an architect or designer involves perfonning a function of the architectural firm rather 
than managing that function. By focusing only on projects for which the beneficiary was a design 
lead or project manager, the petitioner has not shown that the beneficiary has worked or will work 
primarily as a manager rather than as an architect. 
Furthermore, the petitioner indicated that the beneficiary has the authority to "[r]ecommend and/or 
approve personnel actions including promotions , discipline and leave," but the petitioner has not 
claimed or established that the beneficiary had the authority to hire and fire his subordinates, or to 
recommend those actions, as required by section 101 (a)( 44 )(A)(iii) of the Act and the regulation at 
8 C.F.R. § 204.5(j)(2)(C) . 
Based on the current record, we are unable to determine whether the claimed managerial duties 
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs 
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non-managerial administrative or operational duties. The petitioner 's description of the 
beneficiary's job duties does not establish what proportion of the beneficiary's duties is managerial 
in nature, and what proportion is actually non-managerial. See Republic o.fTranskei v. INS, 923 F.2d 
175, 177 (D.C. Cir. 1991). 
While the petitioner has established some shortcomings in the director 's decision , the petitioner has 
not established that the beneficiary works or has worked primarily in a managerial capacity rather 
than as a provider of architectural services, either abroad or in the United States. 
III. Conclusion 
We will dismiss the appeal 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 Q/ 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.