dismissed EB-1C Case: Business

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
identifying data deleted to 
U.S. Citizenship 
prevent clear\ y unwarranted 
and Immigration 
Senices 
invasion of personal priva" 
 P~LIC COPY 
LIN 07 152 52596 
IN RE: 
JUL 08 2009 
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. fj 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). 
.I&&. Grissom 
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 New York corporation that seeks to employ the beneficiary as its presidentlchief 
executive officer.' 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 11 53(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on the conclusion that the beneficiary would not be an 
"employee" of the petitioning entity. 
On appeal, counsel disputes the director's findings and submits a brief in support of his arguments. 
A full discussion of the petitioner's submissions and the director's analysis will be provided below. 
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. 
1 
 It is noted that in the petitioner's support letter, dated April 27, 2007, the petitioner describes itself as a New Jersey 
corporation. However, the supporting documents, including the stock certificate issued by the petitioner as well as the 
document entitled "Certificate of Incorporation" both identify the petitioner as a New York corporation. 
Page 3 
The primary issue in this proceeding is whether the beneficiary will be an employee of the 
petitioning entity. 
In a letter dated April 27, 2007, the petitioner claimed that the beneficiary owns 95% of the foreign 
entity, which owns 100% of the U.S. entity. In support of this claim, the petitioner provided the 
foreign entity's articles of association, published in a Turkish publication entitled Turkish Trade 
Register Gazette (December 2, 1992), in which Article 6 states that the beneficiary funded 80% of 
the foreign entity by providing 80 million of a total 100 million Turkish Liras. The petitioner also 
provided an amendment to the foreign entity's capital structure, also published in the Turkish Trade 
Register Gazette (July 3, 2003), which shows a board of shareholders resolution to increase the 
amount of capital to 250 billion Turkish Liras. Of the 250 billion Turkish Liras, the beneficiary 
contributed 237 billion Turkish Liras, thereby giving him ~wnership of a total of 95% of the foreign 
entity's shares. In light of the beneficiary's ownership interest in the petitioning entity at the time of 
filing, the director was led to question whether there is an actual employer-employee relationship 
between the petitioner and the beneficiary. If there is no employer-employee relationship, then the 
beneficiary's services will not satisfy the statutory definition of managerial or executive capacity. 
In a June 9, 2008 notice, the director requested that the petitioner provide additional evidence 
establishing who controls the U.S. entity and who shares in its profits and losses. The director also 
asked the petitioner to provide evidence establishing that the foreign entity paid for its interest in the 
U. S. petitioner. 
In response, the petitioner resubmitted a copy of the publication memorializing the amendment to 
the foreign entity's capital contribution. No new evidence was submitted to address the director's 
concerns specifically regarding the U.S. entity's ownership. The submitted document also fails to 
address the issue of who shares in the profits and losses of the U.S. entity. 
On July 30,2008, the director issued a notice denying the petition on the basis of the finding that the 
beneficiary ultimately owns and controls the U.S. petitioner and therefore is not truly an employee of 
a U.S. employer as statutorily required. See section 203(b)(l)(C) of the Act. 
On appeal, counsel submits a letter dated August 20, 2008 in which he disputes the director's 
decision, asserting that the petitioner has been identified as an employer in the Form 1-129 
nonimmigrant petition as well as the Form 1-140 immigrant petition. Counsel argues that the 
petitioner repeatedly holds itself out as the beneficiary's employer in various tax documents and in 
company support letters, suggesting that the employer/employee relationship is primarily based on 
the beneficiary's perception and the fact that the U.S. entity pays the beneficiary's wages. Counsel 
introduces several unpublished AAO decisions in support of his arguments. However, while 
8 C.F.R. § 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. 
Counsel also argues that the director's reasoning is contrary to existing case law precedent, citing 
Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm. 1980) (hereinafter Aphrodite) 
and Matter of M--, 8 I&N Dec. 24 (BIA 1958) in support thereof. 
In Matter of Aphrodite, the Immigration and Naturalization Service (INS) Commissioner addressed 
whether a petitioner may seek to classify a beneficiary as an intracompany transferee even though 
the beneficiary was a part owner of the foreign entity and, apparently, not an "employee" of either 
the foreign entity or the petitioner. The district director and regional commissioner had determined 
that the beneficiary could not be classified as an intracompany transferee because "he is 'an 
entrepreneur, a speculative investor, and not an employee of an international company."' 17 I&N 
Dec. at 530. Relying on Matter of M--, the Commissioner disagreed, declined to require that 
intracompany transferees be "employees," and specifically noted that the word "employee" is not 
used in section 101(a)(15)(L), 8 U.S.C. § 1 101(a)(15)(L). 17 I&N Dec. at 53 1. The Commissioner 
further reasoned that adopting the word "employee" would exclude "some of the very people that the 
statute intends to benefit: executives" and noted that the Webster's New Collegiate Dictionary did 
not define "employee" to include "executives." Id. 
Upon review, counsel's reliance on Aphrodite and Matter of M-- is insufficient to overcome the 
director's basis for denying the petition on this ground. The 1980 Aphrodite and the 1958 Matter of 
M-- decisions, while otherwise sound, predate the 1990 codification of the definitions of "managerial 
capacity'' and "executive capacity" in 8 U.S.C. 8 1 101(a)(44), Pub. L. No. 101-649, 5 123, 104 Stat. 
4978, 5 123 (1990), and the Supreme Court's decision in Nationwide Mutual Ins. Co. v. Darden, 503 
U.S. 318 (1992) (hereinafter "Darden"), that defined "employee" in terms of the common-law 
master-servant relationship. As the definitions of both "managerial capacity" and "executive 
capacity" now clearly use the word "employee" in describing intracompany transferee managers and 
executives, the Commissioner's decision in Aphrodite declining to impose an employment 
requirement upon intracompany transferees, while correct at the time, ceased being a valid approach 
to determining an alien's eligibility for L-1 classification in 1990.~ Furthermore, as discussed in the 
director's decision, given that Congress did not define the term "employee" in codifying the 
definitions of "managerial capacity" and "executive capacity," the Supreme Court instructs that one 
should conclude "that Congress intended to describe the conventional master-servant relationship as 
understood by common-law agency doctrine." Darden, 503 U.S. at 322-323. 
Therefore, while the Aphrodite decision remains instructive as to whether a petitioner may seek L-1 
classification for a beneficiary who has a substantial ownership interest in the organization, the 
determination that an intracompany transferee employed in an executive capacity need not be an 
"employee" has been superseded by statute. Intracompany transferees, by definition, must now be 
"employees" in order to be eligible for classification as a managerial or executive employee pursuant 
to section 101(a)(15)(L) of the Act. As the preference immigrant classification sought in the present 
matter relies on the same statutory definitions of "managerial capacity" and "executive capacity," the 
same reasoning would apply to the petitioner under section 203(b)(l)(C) of the Act. 
2 
 The INS adopted regulations substantially similar to the definitions of "managerial capacity" and "executive capacity" 
ultimately codified in 1990 at 8 U.S.C. 3 1101(a)(44). See 8 C.F.R. $5 214.2(1)(l)(ii)(B)-(C); 52 F.R. 5738-01 (Feb. 26, 
1987). These regulations, which also require that L-1 managers and executives be employees, were generally upheld as 
consistent with the Act even prior to the 1990 codification of these definitions. See National Hand Tool Corp. v. 
Pasquarell, 889 F.2d 1472 (5& Cir. 1989). Therefore, an employment requirement was arguably imposed upon 
managers and executives seeking L-1 classification as early as 1987. 
Counsel further asserts that Matter of M-- supports the notion that a corporation is a legal entity that 
is separate and distinct from its stockholders, who are not liable for the debt incurred by the 
corporation. However, the issue of debts and liabilities of the corporation is separate from the issue 
of employer/employee, which is not addressed in the cited case. 
Lastly, with regard to the director's citing of six factors to be considered in determining when a 
beneficiary is considered an employee, counsel asserts that the beneficiary can be fired through 
shareholders' action or by the Board of Directors, similarly arguing that the Board of Directors 
supervises the beneficiary in his capacity as president. However, counsel's argument lacks merit as 
the beneficiary is the majority shareholder by virtue of owning 95% of the shares of the entity that 
wholly owns the petitioner. Thus, the beneficiary himself would be the driving force behind any 
shareholder resolution. The record also lacks evidence establishing who sits on the petitioner's 
Board of Directors. Therefore, the AAO cannot conclude that either a Board of Directors' or 
shareholders' action can be deemed as controlling or supervisory of the work performed by the 
beneficiary for the petitioning entity. Counsel again emphasizes the intention of the petitioner and 
beneficiary to have an employerlemployee relationship. However, regardless of the intent, 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 (Reg. Comm. 1972)). Thus, simply meaning to 
have the beneficiary as an employee of the petitioning entity and actually having him fit that role are 
not one and the same. 
Accordingly, as counsel has failed to present persuasive arguments establishing how the beneficiary 
would be considered an employee under terms of the common-law master-servant relationship in 
light of the Darden decision, the AAO will uphold the decision of the director. 
Additionally, while not expressly addressed in the director's decision, the AAO finds that there are 
additional grounds that warrant a finding of ineligibility. 
First, the petitioner must establish that it will employ the beneficiary in a qualifying managerial or 
executive capacity. In assessing the supporting documents, the AAO will first look to the 
petitioner's description of the beneficiary's proposed job duties. See 8 C.F.R. § 204.50')(5). The 
AAO will then consider this information in light of the petitioner's organizational hierarchy, the 
beneficiary's position therein, and the petitioner's overall ability to relieve the beneficiary from 
having to primarily perform the daily operational tasks. In the present matter, the RFE specifically 
instructed the petition to provide a copy of its organizational chart as well as a detailed description of 
the beneficiary's proposed job duties. The petitioner's response included an organizational chart, 
which listed a total of three employees: the beneficiary, one sales manager, and an account assistant. 
Although the petitioner listed - as its sales representative, no evidence was 
submitted to establish that this individual was actually employed at the time the Form 1-140 was 
filed. 
Furthermore, while the petitioner provided a supplemental description of the beneficiary's proposed 
employment, the description was comprised, at least in part, of non-qualifying tasks, including 
preparing technical seminars and responding to client questions, and overly broad job 
responsibilities, such as directing the sales manager and supervising the accountant in the 
preparation of various tax documents. 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 10 1 (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). Here, the petitioner has not 
provided sufficient information about the beneficiary's proposed job duties, nor has the petitioner 
provided sufficient evidence to establish that the petitioner, given its organizational structure at the 
time of filing, was capable of employing the beneficiary in a managerial or executive capacity. 
Therefore, the petitioner has failed to establish that the beneficiary would be employed in a 
qualifying capacity. 
Second, 8 C.F.R. $ 204.5(j)(3)(i)(B) 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. Here, 
the director specifically addressed this issue in the RFE by instructing the petitioner to provide a 
detailed analysis of the beneficiary's daily activities during his employment abroad as well as the 
foreign entity's organizational chart depicting the beneficiary's position and the names, job titles, and 
job duties of the beneficiary's immediate supervisor and subordinates. While the petitioner provided 
a copy of an organizational chart that seemingly pertains to the foreign entity, the chart does not 
include the beneficiary's position. As such, the AAO cannot make an accurate determination as to 
who the beneficiary's subordinates were or the job duties they performed during the beneficiary's 
employment. Without this highly relevant information, the AAO cannot determine how or whether 
the beneficiary was relieved from having to spend the primary portion of his time performing non- 
qualifying tasks. 
Third, 8 C.F.R. 
 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. The RFE specifically addressed the issue of 
common ownership and control between the U.S. petitioner and the beneficiary's foreign employer. 
The petitioner was expressly instructed to provide evidence that the foreign entity paid for its 
ownership in the U.S. entity. The purpose of the request for evidence is to elicit further information 
that clarifies whether eligibility for the benefit sought has been established, as of the time the 
petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). 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). 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 
(Reg. Comm. 1972)). In the present matter, the petitioner did not provide the requested information. 
As such, the AAO cannot make a determination as to whether the petitioner and the foreign entity 
have a qualifying relationship as required by 8 C.F.R. 8 204.5(j)(3)(i)(C). 
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), afld 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 
grounds 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, ufld 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.