dismissed EB-1C Case: Business

identifying data deleted to 
prevent clearly unwarrantec 
invasion of per~onal oriv'lc' 
PuBLIC COpy 
DATE: JUL 0 6 2Dll OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts 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) of the Immigration and Nationality Act, 8 U.S.C. § I I 53(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Fonn 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § I03.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 Florida corporation that seeks to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant to section 
203(b )(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1 )(C), as a multinational 
executive or manager. 
The director denied the petition finding the petitioner ineligible for the immigration benefit sought. First, the 
director concluded that the petitioner failed to establish that it has a qualifYing relationship with the 
beneficiary's claimed foreign employer. Second, the director found that the petitioner failed to show that the 
beneficiary was employed abroad in a managerial or executive capacity for at least one out of the three years 
prior to entering the United States as a nonimmigrant. 
On appeal, the petitioner disputes the adverse decision, asserting that the petItIOner has the requisite 
qualifYing relationship with the beneficiary's foreign employer and that the U.S. and foreign entities are both 
actively doing business. The petitioner also provided translations of the foreign entity's corporate documents. 
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)( I )(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 first issue in this proceeding is whether the petitioner has a qualifYing relationship with the beneficiary's 
foreign employer. To establish a "qualifYing relationship" under the Act and the regulations, the petitioner 
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must show that the beneficiary's foreign employer and the proposed U.S. employer are the same employer 
(i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally 
§ 203(b)(l)(C) of the Act, 8 U.S.c. § I I 53(b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of 
the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
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; 
* * * 
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. 
In the present matter, the director found that the petitioner failed to provide certified English translations of 
the foreign entity's corporate documents and, on the basis of this finding, concluded that the petitioner failed 
to establish the existence of a qualifying relationship with the foreign entity. However, in light of the 
evidence of record indicating that the petitioner is a subsidiary of the foreign entity, the AAO finds that the 
director placed undue emphasis on the foreign entity's ownership and overlooked the essence of the 
petitioner's claim, which focuses on the foreign entity's ownership of the U.S. entity. 
Here, the record includes a stock certificate showing that the petitioner issued 400 out of an authorized 500 
shares of its stock to the foreign entity, thus indicating that the foreign entity is the majority owner, or the 
parent entity, in a parent-subsidiary relationship with the petitioner. The AAO further notes that with the 
additional evidence the petitioner submitted on appeal, the documentary deficiency the director cited in the 
denial has been adequately addressed and rectified. Therefore, the AAO withdraws the first ground as a basis 
for finding the petitioner ineligible. 
The second issue in this proceeding calls for an analysis of the beneficiary's employment abroad in an effort 
to determine whether the petitioner meets the provisions of 8 C.F.R. § 204.5(j)(3)(i)(B), which requires the 
petitioner to establish that the beneficiary who is already employed in the United States by the same 
employer, or by a subsidiary or affiliate of the beneficiary's foreign employer, was employed abroad in a 
qualifying managerial or executive position for at least one out of the three years prior to his or her entry to 
the United States as a nonimmigrant. Thus, prior to determining whether the petitioner meets the provisions 
of 8 C.F.R. § 204.5(j)(3)(i)(B), two key elements must be considered. First, U.S. Citizenship and 
Page 4 
Immigration Services (USCIS) must consider whether the beneficiary was employed abroad in a qualifying 
managerial or executive capacity. Second, USCIS must consider whether the beneficiary's qualifying 
employment took place during the prescribed period for the required duration. 
In the present matter, the director focused on the second element and thus issued a request for additional 
evidence (RFE) dated November 4, 2008, informing the petitioner that the record lacked clarity as to whether 
or not the beneficiary was employed abroad for one year during the required three-year time period. The 
director instructed the petitioner to specify the following: the name of the foreign entity where the beneficiary 
was employed abroad, the beneficiary's period of employment, and the date when the beneficiary entered the 
United States as a nonimmigrant. 
The AAO notes that, while the petitioner's June 27, 2007 support letter indicates that the beneficiary was 
employed by Ltda. as the company president, the specific dates 
of the beneficiary's employment with the foreign entity were not provided. The AAO further notes that the 
foreign entity's payroll documents were not accompanied by certified English language translations. 
Accordingly, the director denied the petition, concluding that the petitioner failed to establish that the 
beneficiary was employed abroad for the required duration within the relevant three-year time period. This 
finding was based on the director's determination that the foreign and U.S. entities' payroll records provided 
conflicting information with regard to the beneficiary's employment abroad in that the beneficiary was shown 
as being simultaneously employed by both entities during overlapping time periods. 
On appeal, although the petitioner restates the grounds for denial, the appellate brief focuses primarily on 
establishing that the U.S. and foreign entities have a qualifying relationship and are both doing business. See 
8 C.F.R. § 204.5Gl(2) for a definition of the term doing business. The petitioner did not provide any evidence 
establishing the specific time period of the beneficiary's employment abroad with the qualifying entity. 
Therefore, the petitioner failed to establish that the beneficiary meets the specific provisions of 8 C.F.R. § 
204.S(j)(3)(i)(B) and on the basis of this conclusion, the instant petition cannot be approved. 
Additionally, while not addressed in the director's decision, the AAO finds that the petitioner failed to 
adequately address the first element of 8 C.F.R. § 204.SGl(3)(i)(B), which requires the petitioner to establish 
that the beneficiary's foreign employment was within a qualifying managerial or executive capacity, or the 
primary element of 8 C.F.R. § 204.S(j)(S), which requires that the petitioner provide a detailed description of 
the beneficiary's proposed job duties to establish that the beneficiary would be employed in a qualifying 
managerial or executive capacity. In order to meet either element, a detailed description of the beneficiary's 
job duties is crucial. Published case law establishes that the actual duties themselves reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afJ'd, 90S F.2d 41 
(2d. Cir. 1990). 
In the present matter, the AAO acknowledges that the petitioner provided percentage breakdowns in an 
attempt to specify how the beneficiary allocated her time during her employment abroad and how she would 
allocate her time during the proposed employment with the U.S. entity. However, both job descriptions are 
overly broad and fail to establish that the beneficiary was employed abroad and that she would be employed 
in the United States in a primarily managerial or executive capacity. See sections 101(a)(44)(A) and (B) of 
the Act, 8 U.S.C. § I 101(a)(44)(A) and (B). 
Page 5 
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), affd, 345 F.3d 683 
(9th CiT. 2003); see a/so So/tane 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. 
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.