dismissed EB-1C Case: Auto Parts

U.S. Department of Homeland Security 
20  ass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: JiJW 0 1 2005 
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. 9 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. 
o ert P. Wiemann, Direct w /I Administrative Appeals 0fdce 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of Texas in October 2000. It exports auto parts. It seeks 
to employ the beneficiary as its purchasing manager. 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. fjl 1153(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner had not established a qualifying relationship between the petitioner 
and the foreign entity. 
On appeal, counsel for the petitioner asserts the petitioner submitted evidence demonstrating that the foreign 
entity both owns and controls the petitioner. 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 that 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. See 8 C.F.R. 
4 204.50)(5). 
The issue to be considered in this proceeding is whether the petitioner has established a qualifying 
, - .-- relationship with the beneficiary's foreign employer. In order to qualify for this visa classification, the 
-- -$ petitioner must establish that a qualifying relationship exists between the United States and foreign entities in that 
the petitioning company is the same employer or an affiliate or subsidiary of the foreign entity. See section 
203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. 5 204.5QX2) states in pertinent part: 
AfJiliate 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. 
MuZtinationaZ means that the qualifying entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is the United States. 
Subsidimy 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 ofthe entity, but in fact controls the entity. 
The petitioner avers that employer owns a 50 percent interest in the petitioner, the 
president of the owns a 40 percent interest in the petitioner, and, the beneficiary 
owns a 10 percent provided: (1) its by-laws signed October 10, 2000; 
(2) stock certificates one through three, all signed October 30, 2001 showing 500,000 shares had been issued 
to the foreign entity in this matter, 400,000 shares had been issued to the individual identified as the 
petitioner's president, and 100,000 shares had been issued to the beneficiary in this matter; and. (3) minutes of 
the annual meeting of shareholders dated October 30,2001 listing the shareholders and their number of shares 
corresponding to the stock certificates issued. The petitioner also provided evidence that the foreign entity is 
99 percent owned b- 
In response to the director's July 15, 2004 request for evidence, the petitioner's president submitted an undated 
statement detailing the relationship between the U.S. petitioner and the beneficiary's foreign employer. In the 
statement, the petitioner's president indicated that the U.S. petitioner is "controlled" by its president. 
The director determined that the president's statement that she controlled the petitioner undermined the 
foreign entity's control of the petitioner; thus a subsidiary relationship could not be established. 
Page 4 
On appeal, counsel for the petitioner points out that the petitioner's by-laws establish that the petitioner's 
president is subject to the petitioner's board of directors and that the board of directors is elected by the 
shareholders. Counsel asserts that the foreign entity not only owns a 50 percent interest in the petitioner but 
also controls the petitioner because it holds the majority of shares issued. Counsel also submits a clarifying 
statement from the petitioner's president wherein she explains that her previous statement regarding her 
control of the petitioner referred to the management of the day-to-day affairs and operations of the company. 
Counsel's assertion is not persuasive. The record contains discrepancies regarding the ownership of the 
petitioner and does not contain evidence that the foreign entity paid for the shares issued to it. The petitioner 
has provided its Internal Revenue Service (IRS) Forms 1 120 for 2002 and 2003. Both 1RS Forms 1120 on 
Schedule K, Line 5, show that at the end of the tax year, an individual, partnership, corporation, estate or trust 
owned directly or indirectly 5 1 percent of the petitioner. The petitioner does not provide any attachment to the 
IRS Forms 1 120 identifying the 5 1 percent owner. 
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 (BIA 1988); 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 I&N at 595. The petitioner states that the foreign entity owns 50 
percent of the petitioner, but the IRS Forms 1120 show that an individual, partnership, corporation, estate or 
trust owned directly or indirectly 51 percent. 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. Mutter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Moreover, although the director did not request evidence that the foreign entity had paid for the shares issued 
to it, the record does not contain evidence substantiating that the foreign entity provided money or other 
consideration in exchange for the issuance of stock. As ownership is a critical element of this visa 
classification, the director may reasonably inquire beyond the issuance of paper stock certificates into the 
means by which stock ownership was acquired. Evidence of this nature would include documentation of 
monies, property, or other consideration furnished to the entity in exchange for stock ownership. Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
In this matter, the record does not contain sufficient consistent evidence to overcome the director's 
determination on this issue. The petitioner's IRS Forms 1120, are incomplete and contain information on 
Schedule K, Line 5, that does not comport with the petitioner's claims regarding its ownership. The record 
does not contain evidence that the foreign entity paid for its interest in the petitioner. Without consistent 
evidence that the foreign entity has a viable, controlling interest in the petitioner, the AAO will not overturn 
the director's decision on this issue. The director's decision will be affirmed. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's position for the 
petitioner is managerial or executive. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. $ 1 1 Ol(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; 
. . 
11. 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; 
... 
111. 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. 3 1 101(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; 
. . 
11. 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. 
The petitioner, on the Form 1-140, Immigrant Petition for Alien Worker, filed June 17, 2003 stated that it 
employed three people. The petitioner identified these individuals as the president, the beneficiary's position 
which is identified as vice-president on the petitioner's organizational chart and as purchasing manager on the 
petition, and a logistical coordinator and salesperson. However, the evidence in the record does not 
substantiate that the individual identified as the logistical coordinator and salesperson was employed 
full-time. The record contains evidence that this individual was paid approximately $2,000 in 2003. 
The petitioner described the beneficiary's duties as managing all purchasing decisions, obtaining merchandise, 
determining which commodities or services are best for the company, choosing suppliers, negotiating prices 
and terms, evaluating suppliers, and awarding contracts. The petitioner also indicated that the beneficiary 
exercised discretionary decision-making in carrying out these duties. The petitioner further indicated that the 
beneficiary, as purchasing manager, controlled an integral function. 
However, the petitioner in this matter has only provided evidence that the beneficiary performs the day-to-day 
operational tasks associated with the duties of a purchasing agent. An employee who primarily performs the 
tasks necessary to produce a product or to provide services is not considered to be employed in a managerial 
or executive capacity. Mutter of Church Scientology Internutionul, 19 I&N Dec. 593, 604 (Comm. 1988). 
The petitioner has not provided evidence that the petitioner employs sufficient personnel to relieve the 
beneficiary from primarily performing the purchasing and market research duties. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Mutter of Sof3ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Mutter of Tremure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner's indication that the beneficiary controlled an integral function is not sufficient to establish that 
the beneficiary manages an essential function. The term "essential function" is not defined by statute or 
regulation. However, if a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must furnish a written job description that clearly describes the duties to be performed, i.e. identify 
the function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. 8 C.F.R. § 204.56)(5). In addition, 
the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related to the function. As observed above, an employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Mutter of Church Scientology Znnternutionul, 19 IBrN at 604. 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
Likewise, the petitioner's description of the beneficiary's position as purchasing manager for the foreign entity 
is not comprehensive. The record does not contain sufficient evidence that the beneficiary's position for the 
foreign entity comprised primarily managerial or executive duties. 
Page 7 
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. Unitedstates, 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). 
On review, the petitioner has not presented sufficient evidence to establish that the beneficiary's duties for the 
petitioner or her duties for the foreign entity comprise primarily executive or managerial duties. 
Beyond the decision of the director, the petitioner has not submitted sufficient evidence to establish that it has 
been doing business for one year prior to filing the petition on June 17, 2003 as required by the regulation at 
8 C.F.R. 9 204.5(j)(3)(i)(D). The regulation at 8 C.F.R. 8 204.5(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." The petitioner has submitted 
evidence of doing business only since February 2003. 
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. 200 l), 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 a% novo basis). 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.