dismissed EB-1C Case: Business

· identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
MJBtlCCOPY 
DATE: MAY 1 7 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: 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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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 
information 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 Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(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 Texas organization that seeks to employ the beneficiary as its president and chief executive 
officer (CEO). 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. 
1153(b)(1 )(C), as a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner had failed to establish that it had 
been doing business in the United States for one year prior to filing this petition as required by 8 C.F.R. 
§ 204.5G)(3)(i)(D). On appeal, counsel asserts that the service center erroneously deemed the petitioner as a new 
office without taking into account the fact that the petitioner has an ownership interest in an entity that has been 
operating since 2005. 
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 
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 had been doing business for at least one year prior 
to the date the Form 1-140 was filed. 
The regulation at 8 C.F.R. § 204.5(j)(2) states that 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." 
Page 3 
The receipt date stamped on the Form 1-140 indicates that it was filed on January 29,2009. Therefore, according 
to the regulatory requirement specified in 8 C.F.R. § 204.SG)(3)(i)(D), the petitioner must establish that it has 
been engaged in the "the regular, systematic, and continuous" course of business since January 29, 2008. See 
8 C.F.R. § 204.SG)(2). However, as noted in the director's denial, the petitioner was established on September 4, 
2008, thus indicating that the U.S. entity was not in operation for one year prior to the date of filing. 
Accordingly, on May 24, 2009, the director issued a request for evidence (RFE) instructing the petitioner to 
submit evidence establishing that it had been doing business for the requisite one-year period prior to filing its 1-
140. 
The petitioner's response included a letter dated April 30, 2009 from counsel, who discussed the petitioner's 
acquisition of an ownership interest in an entity that has been operating in the United States since 200S. Counsel 
referred to regulations that pertain to the filing of nonimmigrant petitions seeking temporary employment of 
intracompany transferees. The petitioner did not provide evidence to establish that it had been engaged in "the 
regular, systematic, and continuous provision of goods and/or services" for at least one year prior to the filing of 
the Form 1-140. See 8 C.F.R. § 204.SG)(2). 
On August 4, 2009, the director denied the petition concluding that the petitioner failed to meet the initial filing 
requirement discussed at 8 c.P.R. § 204.SG)(3)(i)(D) because it had not been doing business for one year prior to 
filing the 1-140 petition. 
On appeal, counsel submits a brief in which he refers to various subsections of 8 C.F.R. § 214.2(1), which pertains 
to the filing of a nonimmigrant petition seeking to classifY the beneficiary as an L-l intracompany transferee. 
Counsel makes specific reference to the regulation pertaining to a "new office," which 8 C.F.R. § 
214.2(1)(1 )(ii)(F) defines as an organization which has been doing business in the United States through a parent, 
branch, affiliate, or subsidiary for less than one year. Counsel asserts that the director erred "in applying the 'new 
office' regulations apply [sic] to all cases where the petitioning corporation has been doing business for less than a 
year." 
Counsel's argument, however, is unpersuasive, as the regulations pertaining to nonimmigrant petitions do not 
apply in the present matter where the petitioner filed an immigrant petition. Although the AAO acknowledges 
that both the immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and 
executive capacity as well as the term "doing business," the filing requirements for the two classifications are 
significantly different. One significant distinction is the new office provision that is incorporated into the 
regulations pertaining to Form 1-129 nonimmigrant visa petitions. The regulation at 8 C.F.R. § 204.SG) has no 
similar provision that applies to the immigrant visa classification being sought by the instant petitioner. As such, 
the petitioner in the present matter is not subject to the limitations nor afforded treatment under the new office 
regulations. Rather, as the petitioner of an employment-based immigrant classification under section 
203(b)(1)(C) of the Act, the petitioner is subject to the filing requirements enumerated at 8 C.F.R. § 
204.SG)(3)(i). There is no regulation that exempts the petitioner from having to meet the provisions of 8 C.F.R. § 
204.SG)(3)(i)(D), which requires the petitioner to provide evidence to establish that it has been doing business for 
at least one year prior to filing the Form 1-140. 
In the present matter, the fact that the petitioner was formed as a corporate entity only four and a half months 
prior to the filing of the instant petition makes it factually impossible for the petitioner to have been doing 
business prior to the date of its own creation. 
... 
Page 4 
Counsel also points out that the petitioner purchased a 50% ownership interest in an entity that has been doing 
business since 2005, seemingly implying that the petitioner became the successor-in-interest to a previously 
existing entity. Counsel's argument, however, is inherently flawed and therefore does not overcome the basis for 
denial. The regulation at 8 CF.R. § 204.5G)(3)(i)(D) clearly requires the petitioner to establish that it, not a 
predecessor, had been doing business for one year prior to the filing of the Form 1-140. The language of the 
regulation is clear on its face, and is not subject to counsel's interpretation. 
The record in the instant matter shows that the petitioning entity purchased an existing business that predated 
the petitioner itself. However, the record is devoid of evidence establishing that the petitioner replaced or 
absorbed the rights and obligations of its predecessor. The fact that the petitioner was not officially 
established as of January 29, 2008 makes it factually impossible for it to have been doing business as of that 
date, as the petitioner could not have been doing business prior to the date of its own creation. Thus, even if 
the petitioner has the ability to establish that it was engaged in the "the regular, systematic, and continuous" 
course of business since the date of its incorporation, it could not have been doing business since January 29, 
2008, or one year prior to the date the petitioner filed the Form 1-140. See 8 CF.R. § 204.5G)(3)(i)(D). 
Additionally, the AAO will address two issues that were not previously discussed in the director's decision. 
First, the regulation at 8 C.F.R. § 204.5G)(3)(i)(B) requires that the petitioner establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity. The regulation at 8 CF.R. § 
204.5G)(5) requires the petitioner to provide a detailed description of the beneficiary'S proposed job duties 
establishing that the beneficiary'S proposed employment would also be within a qualifying managerial or 
executive capacity. In the present matter, the record lacks sufficient evidence to establish that the beneficiary 
meets these requirements. 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's 
description of the job duties. Published case law has held 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), affd, 905 
F.2d 41 (2d. Cir. 1990). In the present matter, the job descriptions that address the beneficiary'S foreign and 
proposed employment are overly vague and fail to disclose the specific job duties the beneficiary performed 
abroad and those he would perform in his proposed position with the U.S. entity. As such the AAO is unable 
to conclude that the beneficiary was employed abroad or that he would be employed in the United States in a 
qualifying managerial or executive capacity. 
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 Cir. 2003); see also Soltane 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 issues 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.