dismissed EB-1C Case: Business Management

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FILE: CALIFORNIA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: NOV 2 3 2010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
rry Rhew 
hief, Administrative Appeals Office 
www.ulcis.gov 
Page 2 
DISCUSSION: The preference visa petition was granted on December 12, 1997. After subsequent review of 
the record, the Director, California Service Center, issued a motion to reopen dated April 2, 2003. Based on 
the petitioner's failure to respond to the service motion, the director issued a denial on January 29,2004 citing 
abandonment as the basis for denial. The matter came before the Administrative Appeals Office (AAO) on 
appeal. The AAO withdrew the director's decision and remanded the petition to the California Service 
Center. The director subsequently issued a decision revoking the approval of the petition. An appeal was 
then filed with the AAO where the director's decision was withdrawn and the matter was again remanded to 
the service center. The director then took the appropriate remedial steps and subsequently issued a notice of 
intent to revoke approval of the petition. After receiving the petitioner's response, the director issued a final 
revocation notice and certified the decision to the AAO. The AAO will affirm the director's decision to 
revoke the previously issued approval ofthe petitioner's Form 1-140. 
I. Background and procedural history 
The petitioner was a California corporation that sought 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)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § IIS3(b)(l)(C), as a 
multinational executive or manager. 
The petitioner filed a Form 1-140 petition on November 3, 1997. The preference visa petition was granted on 
December 12, 1997. After subsequent review of the record, the Director, California Service Center, issued a 
Motion to Reopen dated April 2, 2003. Based on the petitioner's failure to respond to the service motion, the 
director issued a denial on January 29, 2004 citing abandonment as the basis for denial. The matter came 
before the AAO on appeal. The AAO withdrew the director's decision and remanded the petition to the 
California Service Center. The director subsequently issued a decision revoking the approval of the petition. 
An appeal was then filed with the AAO where the director's decision was withdrawn and the matter was 
remanded back to the service center. The director then took the appropriate remedial steps by first issuing a 
notice of intent to revoke approval of the petition. The petitioner then responded to the notice, which the 
director reviewed and concluded that the petition was approved in error. 
The director has since issued a notice dated September 21, 2009 in which the approval of the petitioner's 
Form 1-140 was revoked on the basis of the following grounds of ineligibility: 1) the petitioner failed to 
establish at the time of filing that it would employ the beneficiary in a qualifying managerial or executive 
capacity; and 2) the petitioner failed to establish that it had a qualifying relationship with the beneficiary's 
employer at the time of filing. Additionally, the director noted, based on information provided by the 
petitioner, that the petitioner ceased its business operations in June 2001 and that the beneficiary's foreign 
employer, which was earlier claimed to be the petitioner's parent entity, closed in 2004. 
II. Automatic revocation upon cessation and forfeiture of the petitioner's business 
The regulation at 8 C.F.R. § 20S.1(a)(3)(iii)(D) indicates that a petition approved under section 203(b)(2) of 
the Act shall be automatically revoked upon "termination of the employer's business." 
In the present matter, the beneficiary has submitted a letter dated August 7, 2009 in which he stated that both 
the petitioning entity and the entity that was claimed as the beneficiary's foreign employer both ceased their 
respective business operations. As noted above, the petitioner is claimed to have ceased its business operation 
Page 3 
in June 2001 and the foreign entity is claimed to have ceased its business operation in 2004. Accordingly, 
approval of the petitioner's Form 1-140 is automatically revoked. 
III. The petition's approval would have been revoked on notice if it had not been revoked by 
operation of law because it was not approvable when filed. 
Even though the petition's approval was automatically revoked by operation of law in June 2001 when the 
petitioner ceased its business operations, the petition should never have been approved in the first place. The 
AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). In 
this matter, the petition should not have been approved, and was not approvable when filed, because the 
petitioner did not establish a continuing ability to pay the proffered wage and because the job offer became 
invalid from the time the petitioner ceased its business operations. 
a. Ability to pay the proffered wage 
The regulation at 8 C.F.R. § 204.5(g)(2) states in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment­
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be either in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the present matter, the beneficiary has provided no evidence to suggest that he obtained lawful resident 
status prior to the date the petitioner stopped doing business. As such, the petitioner's burden to establish its 
continued ability to pay was not met due to the petitioner's termination. Additionally, the petitioner's 
corporate authority to seek the immigration benefit in question had been extinguished by such termination. 
Notwithstanding the above, the director made a determination with regard to the petitioner's eligibility and 
addressed these issues in a full decision whose merits the AAO has been asked to review. As such, the 
director's findings will be comprehensively reviewed in the discussion below. 
b. The beneficiary's managerial or executive capacity at the time of filing 
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 
Page 4 
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 first issue in this proceeding is whether the petitioner was able to establish at the time of filing that it 
would employ the beneficiary in a managerial or executive capacity. 
Section I 01 (a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 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; 
(iii) 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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III which the 
employee primarily--
-Page 5 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) 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 original job description that the petitioner provided in support of the petition has been restated in the 
director's September 21,2009 decision and therefore need not be repeated in the current decision. The record 
also shows an organizational chart for the U.S. entity, which shows the combined position of president and 
general manager at the top of the hierarchy, the position of manager as the direct subordinate of the latter 
position, and the positions of business/trading, finance/account, and market research as the manager's direct 
subordinates. 
Although the record shows that the petition was approved on December 12, 1997, U.S. Citizenship and 
Immigration Services (USCIS) reopened the proceeding via service motion, which was issued on April 2, 
2003. On January 29, 2004, the director erroneously denied the petition for abandonment. The petitioner 
appealed the denial, which the AAO withdrew, resulting in the matter being remanded back to the service 
center. The director subsequently issued a notice of intent to revoke (NOIR) and ultimately revoked approval 
of the petition in a decision dated December 14, 2005. That decision was also appealed resulting in the 
AAO's decision to withdraw the revocation and once again remand the matter to the service center. 
USCIS's more recent series of notices includes an NOIR, dated August 9, 2009, in which the director 
informed the petitioner that the previously submitted evidence failed to establish that the petitioner, at the 
time of filing, was prepared to employ the beneficiary in a managerial or executive capacity. The director 
commented on the originally submitted organizational chart, which lacked any employee names, and further 
noted that the petitioner failed to provide evidence documenting exactly whom it employed at the time the 
petition was filed. 
In response, counsel for the petitioner provided a letter dated August 7,2009 in which he notified USCIS that 
the petitioner closed its business in 2001 and that the claimed foreign parent entity closed its business in 2004. 
Counsel's letter was accompanied by a letter dated August 7,2009 from the beneficiary in her capacity as the 
petitioner's former president. The benefi~d an organizational chart identifying herself as the 
company's president and general manager, _as the person in charge of sales, in the 
position of business/trading,_Tsao in the position of finance/accounting, and who was 
not assigned a position title but was depicted as the direct subordinate of the sales person. The beneficiary 
provided brief job descriptions for the three positions shown as her subordinates and indicated that the records 
regarding these individuals' dates of employment, educational levels, and salaries were no longer available 
due to the lapse of time. The beneficiary claimed that although sealed quarterly wage reports were requested 
from the California EDD, such documents had not yet been delivered. The beneficiary did, however, provide 
the petitioner's third quarterly wage report, which named the beneficiary as the petitioner's sole employee. 
The beneficiary also provided account transcript printouts from the IRS showing the petitioner's earnings and 
-Page 6 
deductions for tax years 1996 through 2000. The transcripts show a steady decline in the petitioner's income 
commencing with the 1997 tax year and continuing through the year 2000. The beneficiary also provided a 
list of her proposed job duties, which the director subsequently included in the decision that has been certified 
to the AAO. Accordingly, the AAO need not repeat the job description in the current discussion. 
The record shows that the director reviewed the petitioner's submissions and determined that the petitioner 
failed to establish that it was prepared to employ the beneficiary in a qualifying managerial or executive 
capacity at the time of filing and therefore concluded that the petition did not merit approval. Accordingly, 
the director issued a decision revoking the approval and certified that decision to the AAO. After conducting 
its own comprehensive review of the record, the AAO concludes that the director's adverse decision was 
warranted and that the approval of the petition was properly revoked. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5G)(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 job description provided by the beneficiary in response to the July 10, 2009 
NOIR indicates that while the beneficiary was vested with a high degree of discretionary authority, she was 
also charged with numerous daily operational tasks, including contacting and communicating with 
manufacturers in China, meeting with u.s. customers to obtain feedback about the company's products, 
attending trade shows, and visiting product manufacturers in China. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his time to managerial- or 
executive-level tasks, the petitioner must establish that the non-qualifying tasks the beneficiary would 
perform are only incidental to her proposed position. 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). Here, as properly determined by the director, it appears 
that the non-qualifying tasks would have accounted for a considerable portion of the beneficiary's time and 
that such tasks would not have been merely incidental to the proposed position with the u.s. entity. 
As indicated above, in addition to providing an adequate job description that depicts the beneficiary in a 
position that is comprised primarily of managerial- or executive-level tasks, the petitioner must provide 
supporting evidence to establish that its organizational hierarchy at the time the Form 1-140 was filed was 
sufficient in its ability to relieve the beneficiary from having to allocate the primary portion of her time to 
performing non-qualifying tasks. In the present matter, the record lacks the requisite supporting 
documentation. First, the AAO notes that the organizational chart submitted initially in support of the petition 
illustrated a more complex tier structure than the one illustrated in the organizational chart that was submitted 
in the beneficiary'S response to the July 10,2009 NOIR in that the former chart depicted a managerial position 
that purportedly separated the beneficiary'S position from the three employees whose positions were at the 
bottom hierarchical tier. In the chart that was submitted recently, the beneficiary'S proposed position is shown 
as directly overseeing a sales person, a business/trading employee, and an accounting/finance employee. The 
more recent chart also identifies one employee directly subordinate to the sales person, which is another 
anomaly, as neither a sales position nor a sales person's subordinate were positions that were included in the 
original organizational chart. It is incumbent upon the petitioner to resolve any inconsistencies in the record 
Page 7 
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). 
In the present matter, the record lacks sufficient documentation to resolve the anomalies described above. 
While the AAO acknowledges the beneficiary's submission of the petitioner's quarterly wage report for the 
1997 third quarter, this document indicates that the beneficiary was the petitioner's sole employee at that time. 
The record contains no evidence to indicate that the petitioner employed anyone other than the beneficiary at 
the time of filing. As the petitioner's initially submitted organizational chart lacks any employee names, this 
omission creates further doubt as to whom the petitioner actually employed at the time of filing and whether 
the petitioner was adequately staffed at that time to relieve the beneficiary from having to primarily perform 
non-qualifying tasks. It is noted that in reviewing the relevance of the number of employees a petitioner has, 
federal courts have generally agreed that USCIS "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. Us. 
Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic of 
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) 
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In light of the above, the director was justified in revoking the approval of the petition, as the petitioner failed 
to establish that it had either the need or the ability to employ the beneficiary in a managerial or executive 
capacity. The record has been supplemented with a job description that indicates that the beneficiary'S 
proposed position would have consisted in large part of non-qualifying job duties. When this information is 
considered in tandem with the lack of evidence to establish who within the petitioner's organizational 
hierarchy was available to assume the burden of performing the daily operational tasks, the AAO cannot 
conclude that the petitioner has satisfied its burden of establishing that it was able to employ the beneficiary 
in a managerial or executive capacity at the time the Form 1-140 was initially filed. It is noted that eligibility 
must be established at the time of filing, not at a future date after the petitioner or beneficiary becomes 
eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
With regard to counsel's prior assertion that USCIS has failed to "provide substantial evidence to support" the 
NOIR findings, the AAO finds this argument to be lacking merit. Section 205 of the Act, 8 U.S.C. § 1155, 
expressly states: "The Attorney General may, at any time, for what he deems to be good and sufficient cause, 
revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
-Page 8 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter of Estime, 19 I&N 450 (BIA 1987)). 
Accordingly, both statute and case law precedent uphold USCIS's authority to revoke a previously issued 
approval in the presence of "good and sufficient cause." Thus, counsel is incorrect in asserting that USCIS 
bears the burden in revocation proceedings. In proceedings to revoke the approval of a visa petition, the 
burden of proof to establish eligibility for the benefit sought is on the petitioner. Id. at 589; Matter of 
Cheung, 12 I&N Dec. 715 (BIA 1968); see also Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The 
Board's decision in Matter of Ho is also relevant to this matter in clarifYing that, by itself, the director's 
realization that a petition was incorrectly approved is good and sufficient cause for the issuance of a notice of 
intent to revoke an immigrant petition. Matter of Ho, 19 I&N Dec. at 590. Furthermore, the Board has held 
that the approval of a visa petition vests no rights in the beneficiary of the petition, as approval of a visa 
petition is but a preliminary step in the visa application process; the beneficiary is not, by mere approval of 
the petition, entitled to an immigrant visa. Id. 
In summary, the AAO finds that the director properly explained the findings that formed the basis for the 
adverse action. Therefore, the revocation was properly issued and will not be withdrawn. 
c. The petitioner's qualifying relationship with the beneficiary's foreign employer 
The AAO will now tum to the director's second basis for revoking the prior approval of the petitioner's Form 
I-140-the finding that the petitioner failed to establish that it had established a qualifYing relationship with 
the beneficiary'S foreign employer. 
The regulation at 8 C.F.R. § 204.50)(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. 
-Page 9 
Additionally, 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; 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 Dec. at 595. 
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. As requested by 
the director, evidence of this nature should 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 the present matter, the petitioner had stated that it was owned by the beneficiary's foreign employer and 
that the two entities shared a parent/subsidiary relationship as a result of the claimed ownership scheme. 
However, when asked to provide evidence to establish that the foreign entity actually paid for its claimed 
ownership of the petitioner's stock, the petitioner was unable to provide the requested documentation. In the 
response to the most recently issued NOIR, the beneficiary merely reiterated that the petitioner and the 
foreign entity are no longer in business and that as a result no further evidence would be submitted to 
establish the previously alleged qualifying relationship. 
It is noted that 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). Furthermore, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
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». In the present matter, the petitioner has failed to provide the requested 
evidence to establish that a qualifying relationship existed between the petitioner and the beneficiary's foreign 
employer at the time the petition was filed. Therefore, on the basis of this additional finding, the AAO finds 
that the instant petition does not merit approval. 
The approval of the petition will remain revoked for the above stated reasons, with each considered as an 
independent and alternative basis for revocation. 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 decision by the director to approve the petition was erroneous and the petition's approval is 
automatically revoked by operation of law and is deemed to never have been valid.