dismissed EB-1C Case: Business

identifying data deleted to 
prevent cleai-~y iii~warranted 
invasion of personal prlvacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
LIN 07 050 50324 
APR 0 8 2010 
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. 5 1 153(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. 3 103.5 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). 
V Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner subsequently filed a motion to reopen and reconsider. While the director granted the motion and 
reviewed the newly submitted documentation, the original decision was affirmed. The matter is now before 
the Administrative Appeals Office (AAO) on appeal.' The appeal will be dismissed. 
The petitioner is a limited liability company organized in the State of Delaware. It seeks to employ the 
beneficiary as its strategist. 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. 5 1153(b)(l)(C), as a multinational executive or manager. The director determined that the 
petitioner failed to submit reliable and consistent documentation establishing that it has formed a qualifying 
relationship with the beneficiary's foreign employer and denied the petition on that basis. 
On appeal, counsel asserts that the director's findings with regard to the beneficiary's and - 
ownership interests in the petitioning entity are irrelevant to the overall issue of the petitioner's qualifying 
relationship with the beneficiary's foreign employer. Counsel also submits a brief and additional evidence in 
support of the appeal. 
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. 
' The record shows that the director issued a decision dated July 14,2008, rejecting the petitioner's appeal. However, the 
authority to adjudicate appeals is delegated to the AAO by the Secretary of the Department of Homeland Security (DHS) 
pursuant to the authority vested in him through the Homeland Security Act of 2002, Pub. L. 107-296. See DHS 
Delegation Number 0150.1 (effective March 1, 2003); see also 8 C.F.R. § 2.1 (2003). Therefore, the director did not 
have jurisdiction to issue a decision on an appeal that questions the merits and propriety of the director's own decision. 
The record shows that the petitioner subsequently filed a second appeal, which has since been transferred to the AAO for 
adjudication. The petitioner's submissions have been accorded hll consideration. 
Page 3 
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. 
The primary issue in this proceeding is whether the petitioner formed a qualifying relationship with the 
foreign entity that previously employed the beneficiary. 
The regulation at 8 C.F.R. $ 204.56)(2) states in pertinent part: 
Aflliate 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; 
* * * 
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. 
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. 
Although the petitioner provided a letter dated October 31, 2006 in support of the Form 1-140, the letter did 
not include a discussion of the ownership and control of the beneficiary's U.S. and foreign employers. The 
petitioner did, however, provide the following supporting documents: 
1. A computer printout from the State of Delaware Division of Corporations website 
identifying the petitioner by name and listing its date of formation as July 10,2003. 
2. A certificate of amendment dated May 5, 2004, changing the petitioner's company name 
from to R- 
3. The petitioner's operating agreement dated July 10,2003. Exhibits A and B were appended 
to the operating agreement. The former lists the petitioner's four members and their initial 
monetary contributions, while the latter document lists each member's interest in the 
entity. , the beneficiary, and were each listed as 
having a 20% ownership interest in the petitioning enti was 
listed as a fourth member, owning the remaining 40% of the petitioner. 
Page 4 
4. Stock certificate no. 1, dated January 10, 2005, issuing 50 units of the petitioning entity to 
the beneficiary. 
5. Schedule K-1 of the etitioner's 2004 and 2005 partnership tax returns naming the 
beneficiary and as partners in their ownership of the petitioning entity, 
each partner having a 50% ownership interest. 
6. The petitioner's state tax return for 2003, including Schedule 3, which lists the beneficiary 
and as the two partners with ownership interests in the petitioning entity. 
The state tax return is accompanied by the petitioner's 2003 federal tax return, IRS Form 
1065, which lists the beneficiary andas owners of the petitioning entity, each 
owning 50% of the entity. 
With regard to the foreign entity, the petitioner provided the foreign entity's articles of incorporation and 
stock ledger, neither of which was accompanied by a certified English language translation as required by 8 
C.F.R. 5 103.2(b)(3). 
On July 23, 2007, the director issued a request for evidence (WE) in which he instructed the petitioner to 
submit, inter alia, evidence establishing that the beneficiary's foreign and proposed U.S. employers are 
commonly owned and controlled such as to form a qualifying relationship. 
In response, the petitioner provided the following documentation: 
1. The partnership tax return for 2006, including Schedule K, which named the beneficiary 
an as partners in their ownership of the petitioning entity, each partner 
having a 50% ownership interest. 
2. The foreign entity's articles of incorporation accompanied by an English language 
translation. Article Four of the incorporation document stated that the foreign entity would 
issue 12,000 shares of its stock and Article 18 of the same document stated that the 
beneficiary and each had ownership of 6,000 shares. 
3. Another copy of the petitioner's share certificate no. 1 issuing 50 units of membership to 
the beneficiary. The membership certificate was accompanied by a written record of issued 
and transferred certificates, which showed that certificate nos. 1 and 2 each issued 50 units 
to the beneficiary and , respectively, on January 10,2005. 
4. A second copy of the petitioner's operating agreement accompanied by exhibits A and B, 
which identify the petitioner's four members and their respective membership interests. 
In a decision dated October 27, 2007 the director denied the petition, concluding that the submitted 
documentation did not establish that the petitioner and the beneficiary's foreign employer shared common 
ownership and control. The director reviewed the information presented in the foreign entity's articles of 
incorporation, the U.S. entity's share register, and the U.S. entity's operating agreement and determined that 
these documents do not establish that the beneficiary's proposed and foreign employers qualify as affiliates. 
Page 5 
On motion, counsel asserted that the beneficiary has maintained control over both the U.S. and foreign 
entities by virtue of the petitioner's 51% ownership of the foreign entity. Counsel also provided an 
explanation citing the dates and changes in ownership that occurred within the foreign and petitioning entities. 
Counsel ex~lained that the foreinn entitv's owners hi^ changed in A~ril 2000 when 40% of the beneficiarv's 
controlling 51% interest in the foreign entity. The next change is shown as having taken place in June 2000 
when 5 1% ownership in the foreign entity was transferred to the petitioner. 
Counsel's letter of explanation also addressed the U.S. entity's ownership, stating that "[iln December 2004 
the [beneficiary] and became equal owners [of the petitioner]" through share transfers from 
- and - both of whom were named as original owners. In 
contradiction to this statement, counsel claimed that sold his shares in November 2004, which is 
factually inconsistent with the prior statement in which counsel claimed that and the beneficiary 
became equal owners of the petitioner in December 2004, one month after purportedly sold his 
ownership shares. 
The following supporting documents were also submitted: 
1. The foreign entity's share registry showing the initial issuance of certificate nos. 1 and 2, 
which conveyed 6,000 shares each to 
- 
and the beneficiary, respectively. 
The registry shows that on April 4, 2000 surrendered 1,200 shares and the 
beneficiary surrendered 4,801 of his shares resulting in the issuance of certificate nos. 3 and 
4, which conveyed the surrendered shares to The share register indicates 
that certificate no. 5 was issued on June 12,2000 when surrendered all 6001 of 
his shares to , who surrendered these shares to on 
July 10, 2003 via certificate no. 6, thereby indicating that the petitioner now owns 51% of 
the foreign entity's shares. Although the petitioner provided a copy of certificate no. 6 and 
its English translation as supporting evidence, copies of the five prior certificates that were 
purportedly issued were not submitted. 
2. The petitioner's stock ledger showing that five membership certificates have been issued 
commencing with certificates 1 and 2, which were shown as having issued 50 units to the 
beneficiary and , respectively, on January 10, 2005; followed by 
certificates 3 and 4 through which issued his 50 units to the beneficiary on 
April 20,2007; and ending with certificate no. 5 through which the beneficiary issued 30 of 
his units to thereby leaving the beneficiary with a total of 70 units. 
With regard to the above, it is noted that, while has been identified as one of the two original 
subscribers of the petitioner's membership certificates, it is unclear how his shares were issued, as certificate 
nos. 1 and 2 do not name as a subscriber. Rather, the registry indicates that the beneficiary, who 
was an original subscriber, is the recipient of certificate no. 1, and who was not an original 
subscriber, as the recipient of certificate no. 2. The AAO further notes that of the five certificates that were 
purportedly issued, only a copy of certificate no. 1 had been submitted into evidence at that time. While a 
copy of certificate no. 3 has since been submitted into evidence in support of the petitioner's latest appeal, 
which was filed on August 6, 2008, the other certificates are not in the record. 
Page 6 
In a decision dated April 22, 2008, the director granted the petitioner's motion and issued a full decision 
explaining why the petitioner's supporting evidence is insufficient to establish that a qualifying relationship 
exists between the petitioner and the beneficiary's foreign employer. In his decision, the director points out 
the various discrepancies that precluded him from concluding that a qualifying relationship had been formed. 
First the director reviewed the information provided in the petitioner's operating agreement, which showed 
- as holding only a 20% ownership interest and found that this information was therefore 
inconsistent with the petitioner's share registry, which indicated that surrendered 50 units, which 
would have been equivalent to a 50% ownership interest. The director pro erly notes that the petitioner did 
not explain or provide evidence establishing how or when precisely hacquired an additional 30% 
ownership interest in the petitioning entity. 
The director then pointed out that, despite the petitioner's date of formation on July 10, 2003, the petitioner's 
share registry only provides a record of actions that took place as of January 10, 2005, implying that the 
registry was silent about the petitioner's initial share issuance upon formation of the entity. Next, the director 
addressed a factual inconsistency that appeared in counsel's letter of explanation, which was submitted on 
motion, in which counsel claimed that sold his ownership in the petitioning entity in November 
2004 but became equal owners of the petitioner, along with the beneficiary, in December 2004. 
On first appeal, filed on May 19, 2008, and on second appeal, filed on August 6, 2008, counsel argues that 
neither the beneficiary's nor ownership interest in the petitioning entity is material, as the 
petitioner claims that the foreign entity is its subsidiary, implying that the petitioner's ownership is irrelevant. 
Counsel points out in the most recent appeal that was always a minority shareholder in the 
petitioning entity and actually had no ownership interest at all at the time the Form 1-140 was filed. Counsel's 
argument is based on the definition of the term subsidiary, where the primary focus is on the subsidiary 
entity's ownership, not on the ownership of the parent entity. Counsel objects to the director's focus on the 
ownership of the parent entity in the present matter. 
While counsel's interpretation of the relevant regulatory definition is correct, the fact remains that the 
petitioner must provide reliable supporting evidence to corroborate its factual claims, including those that are 
not material to the primary concern. See 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)). Furthermore, 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). 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Id. at 59 1. 
In the present matter, the evidence the petitioner has submitted with regard to its own ownership is 
inconsistent and therefore unreliable. Regardless of the fact that the described inconsistencies primarily 
involve an element of ownership that is not material to the petitioner's qualifying relationship with the 
beneficiary's foreign employer, the very existence of the inconsistencies is reasonable cause to question the 
sufficiency and reliability of the evidence the petitioner has submitted to establish the parent-subsidiary 
relationship it claims to have formed with the foreign entity that employed the beneficiary abroad. Therefore, 
the inconsistencies addressed above ought not and will not be overlooked when weighing the probative value 
of the remainder of the evidence that has been submitted. As the petitioner has failed to resolve these 
inconsistencies with independent objective evidence, the petitioner's credibility is considerably undermined, 
thereby significantly diminishing the probative value of the evidence submitted to establish the foreign 
entity's ownership and control. Based upon the inconsistent information provided, the instant petition cannot 
be approved. 
Furthermore, while not previously addressed in the director's decision, the record does not establish that the 
petitioner has satisfied the requirements specified in 8 C.F.R. 5 204.5(j)(3)(i)(B), which states that the 
petitioner must establish that the beneficiary was employed abroad in a qualifying managerial or executive 
position for at least one out of the three years prior to his entry to the United States as a nonimmigrant to work 
for the same employer, or that the petitioner has established that the beneficiary's proposed employment 
would be primarily within a qualifying managerial or executive capacity, per 8 C.F.R. 5 204.5(j)(5). The 
petitioner did not provide a detailed description of the beneficiary's specific job duties as instructed in the 
RFE. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 
724 F. Supp. 1 103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, the job description provided in response to the RFE with regard to the proposed employment 
briefly mentions managing consultants in Argentina and overseeing the work of a director of trading, a 
position that the petitioner is apparently trying to fill, or was attempting to fill at the time the Form 1-140 was 
filed. Thus, in assessing the petitioner's organizational hierarchy, there is no evidence to indicate that the 
petitioner has reached a level of complexity that requires the services of someone who would primarily 
perform managerial or executive job duties; nor is there evidence to suggest that the petitioner has a support 
staff that is sufficient to relieve the beneficiary from having to primarily perform non-qualifying tasks. 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 present matter, the AAO finds that the petitioner failed to provide sufficient information with regard to 
the job duties the beneficiary performed during his employment abroad and has provided information that 
indicates the beneficiary would not be employed in a primarily managerial or executive capacity in his 
proposed employment with the U.S. 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 identi% 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), agd 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 two additional grounds of ineligibility discussed above, 
this petition cannot be approved. 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.