dismissed EB-1C Case: Business Management

(b)(6)
AUG 2 7 2014 
DATE: OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citi zenship and Immigration Service! 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions . If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration , you may file a motion to reconsider or a 
motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Nebraska Service Center Director denied the preference visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed the instant Form I-140, Immigrant Petition for Alien Worker, 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 petitioner, a Kentucky corporation engaged in "management , operations and development," 
claims to be an affili ate of the beneficiary's former 
employer in India. The petitioner seeks to employ the beneficiary as its Vice President. 
The director denied the petition, concluding that the petitioner had failed to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel submits a brief disputing the 
director's adverse findings. 
I. THE LAW 
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. 
Additionally , the regulations at 8 C.F .R. § 204.5G)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
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NON-PRECEDENT DECISION 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of 
such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which 
the alien was employed overseas, in the three years preceding entry as a 
nonimmigrant, the alien was employed by the entity abroad for at least one 
year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which 
the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
II. ISSUES ON APPEAL 
A. U.S. Employment in a Managerial or Executive Capacity 
The first issue to be addressed is whether the petitioner established that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
Section 101(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 in 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 
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(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 in which the 
employee primarily--
(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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, USCIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) of the Act. 
1. Facts 
The petitioner has offered the beneficiary the position of Vice President. In a letter dated January 
15, 2013, the petitioner explained that the beneficiary's assignment in the U.S. is to " analyze and 
develop overall corporate financial goals and objectives for our company, which is engaged in 
management, operations, development and consulting." The petitioner explained that it has 
purchased and is managing one location, and "we remain actively seeking other locations, business 
opportunities, and the like." The documentation in the record indicated that the petitioner purchased 
a gas station and convenience store in February 2011 and then sold it to in March 
2011. The petitioner also submitted a management agreement between and the 
petitioner whereby the petitioner will pursue all aspects of the business operation and manage the 
business of the gas station and convenience store on behalf of The beneficiary 
described the beneficiary's typical work week as follows: 
• Analyze and develop overall corporate financial goals 
and objectives. 
• Company representative on all 
tax and legal matters, procure and invest corporate 
fund: 5 hours per week. 
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NON-PRECEDENT DECISION 
Page 5 
• Analyze the market for gasoline and commodities costs, manage inventory, 
availability and demand, set sales and profit goals: 5 hours per week. 
• Review cost analysis, market survey, and other reports: 5 hours per week. 
• Authorize expenditures for costs: 5 hours per week. 
• Negotiate, execute contracts and purchases: 2 hours per week. 
• Oversee subordinate staff: 5 hours per week. 
• Plan and direct marketing, promotional and public relations activities, represent 
business to the public: 5 hours per week. 
• Research and develop new business opportunities: 5 hours per week. 
• Enforce safety, health and security rules: 2 hours per week. 
The petitioner stated on the Form I-140 that it currently had 4 employees and that the total number 
"may vary." The petitioner submitted an organizational chart listing a president, a vice president, a 
secretary/manager, an assistant manager, an assistant restaurant manager, a cashier/cook and a 
clerk/cashier. The petitioner provided a brief job description of each position. 
In a request for additional evidence (RFE), the director requested a detailed description of the 
offered position. The director also instructed the petitioner to submit a detailed organizational chart. 
In response to the RFE, the petitioner described the beneficiary's duties as follows: 
• Direct and guide policy development and execution on behalf of 
in coordination with the President of the U.S. 
entity. 
• Provide for the recruitment and training of personnel. 
• Provide for all human resources needs, including payroll, OSHA issue[s], 
employee relations. 
• Ensure business integrity through creation and supervision of proper conduct 
and application of business methods. Maintain secure records. General 
oversight of financial conduct to ensure accuracy of AIR, AlP, inventory, · 
projections, analytical information, communications, data control. 
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NON-PRECEDENT DECISION 
• Make recommendations as to investments and cash strategies, and make 
contribution for financial reports, including the annual budget and any and all 
audits. 
• Manage advertising and public relation opportunities in public venues, as well 
as on-site, by developing vendor relationships and relationships within the 
immediate community, both customer and at-large. 
The petitioner also submitted a Form W-2 from 2012 for all of its employees. The petitioner 
submitted seven Forms W-2 showing that five out of the seven employees received wages under 
$6,500. The beneficiary received $36,000 and another individual received $30,000. The petitioner 
also submitted a new organizational chart that listed the president, vice president, secretary/manager, 
assistant manager and clerk/cashier. The petitioner also submitted a copy of its IRS Form 941, 
Employer's Quarterly Federal Tax Return, for the first two quarters of 2013, which indicates that it 
had only four employees at the time of filing the Form I-140. 
The director denied the petition on October 30, 2013, concluding that the petttloner failed to 
establish that it will employ the beneficiary in a qualifying managerial or executive capacity. In 
denying the petition, the director determined that the petitioner provided an overly broad job 
description that failed to convey an understanding of what the beneficiary primarily does on a day­
to-day basis. The director concluded that the beneficiary would not supervise a staff comprised of 
subordinate managerial , supervisory or professional employees, or that he would otherwise be 
relieved from primarily performing non-managerial and non-executive functions associated with the 
operation of the petitioner's business. 
On appeal, counsel contends that the director placed undue emphasis on the petitioner ' s staffing 
levels, and undue influence has been placed on the small size of the business. Counsel also contends 
that the beneficiary will work in an executive capacity. 
2. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of 
the record, starting first with the petitioner's description of the beneficiary 's proposed job duties. See 
8 C.P.R. § 204.5(j)(5). A detailed job description is crucial, as the duties themselves will reveal the 
true nature of the beneficiary ' s foreign and proposed employment. Fedin Bros . Co., Ltd. v. Sava , 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The AAO will then 
consider this information in light of other relevant factors, including job descriptions of the 
beneficiary's subordinate employees, the nature of the business that is conducted, the petitioner's 
subordinate staff, and any other facts contributing to a comprehensive understanding of the 
beneficiary's actual role within the petitioning entity. While an entity with a limited support staff 
will not be precluded from the immigration benefit sought herein, it is subject to the same burden of 
proof that applies to a larger entity with a moderate or large subordinate staff. In other words, 
regardless of an entity's size or support staff, the petitioning entity must be able to provide sufficient 
evidence showing that it has the capability of maintaining its daily operations such that the 
beneficiary would be relieved from having to primarily perform the operational tasks. 
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NON-PRECEDENT DECISION 
Page 7 
In the present matter, upon review of the totality of the record, the evidence does not support a 
finding that the beneficiary would allocate his time primarily to the performance of tasks that are 
within a qualifying managerial or executive capacity. 
On review, the petitioner provided a vague description of the beneficiary's duties that fails to 
demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner stated 
the beneficiary will: "analyze and develop overall corporate financial goals and objectives;" "oversee 
subordinate staff;" and, "enforce safety, health and security rules." This description provides little 
insight into what the beneficiary will primarily do on a day-to-day basis as vice president, and the 
petitioner did not explain how the beneficiary will oversee the subordinate staff and define the corporate 
financial goals and objectives. The petitioner also did not clearly explain which employees and 
departments will assist the beneficiary in performing his job duties. Furthermore, reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The petitioner has 
failed to provide sufficient details of the beneficiary's daily activities. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
The beneficiary's job description also includes several non-qualifying duties such as responsibility 
for "all tax and legal matters, procure[ment] and invest[ment of] corporate fund[s];" "analyze the 
market for gasoline and commodities costs, manage inventory, availability and demand, set sales and 
profit goals;" "review cost analysis, market survey, and other reports;" "negotiate, execute contracts 
and purchases;" "plan and direct marketing, promotional and public relations activities, represent 
business to the public;" and, "research and develop new business opportunities." The petitioner did 
not indicate who will be in charge of market research and financial operations nor of the 
development of the marketing program and expansion strategies. In addition, representing 
management in negotiations is an operational duty that cannot be classified as a managerial or 
executive task. It appears that the beneficiary will be marketing the business rather than directing 
such activities through subordinate employees. 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 Intn 'l., 19 I&N Dec. at 604. 
In the instant matter, the job description submitted by the petitioner provides little insight into the 
true nature of the tasks the beneficiary will perform. While the petitioner has provided a breakdown 
of the percentage of time the beneficiary will spend on various duties, the petitioner has not fully 
articulated the nature of these duties. 
In addition, the petitioner provided two different organizational charts and did not explain the reason 
for the differences. The first organizational chart submitted with the initial petition listed a 
president, a vice president, a secretary/manager, an assistant manager, an assistant manager in 
restaurant, a cashier /cook, and a clerk/cashier. In response to the request for evidence, the petitioner 
submitted a second organizational chart that indicated a president, a vice president, a 
secretary/manager, an assistant manager and a clerk/cashier. The petitioner does not explain why it 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
no longer employs an assistant manager or a cook for the restaurant as listed in the initial 
organizational chart. It is not clear who is performing the duties of the restaurant as the new 
organizational chart does not list any employees working in the restaurant. 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) . 
The petitioner also provided documents entitled, "weekly employee work schedule," from January 1, 
2013 until August 25 , 2013. According to the work schedules, there were several hours during the 
week where only one individual is working at the gas station and convenience store. In addition, it 
does not appear that the work schedules submitted cover the entire time the store is open. For 
example, some weeks indicate that one employee was working on Sunday from 4 pm to 9 pm and 
other weeks it states that one employee was working on Sunday from 2 pm to 9 pm. It is doubtful 
that a gas station and convenience store has different hours of operation on a weekly basis. Thus, the 
employee work schedules submitted do not accurately indicate the hours employees worked each 
week. In addition , it is not clear how one employee can cover an entire shift alone which would 
include running the cashier, handling the restaurant, handling customer service, inventory and 
stocking. 
Furthermore, the Forms W-2 for 2012 submitted by the petitioner indicated that five out of the seven 
employees received wages that cannot possibly be full-time employment. For example, the wages of 
the employees were $5976.08, $1123.36, $6292.96, $3871.45, and $3847.52. It appears that only 
two employees received a full time salary, the beneficiary and the secretary /manager. 
The petitioner runs a gas station and convenience store that is most likely open seven days a week 
for at least several hours each day. Thus, it is not clear how a gas station and convenience store that 
is opened for several hours per week can run with two employees and one part-time employee and 
be in charge of inventory, purchasing, customer service, stocking, budget, financial operations and 
running the cash register. Thus, the petitioner did not explain who would handle the financi al 
operations such as budgeting and bookkeeping; purchasing of inventory; inventory management; 
marketing; sales; market research; and other important elements in successfully running a business . 
Since the petitioner must establish that the beneficiary would primarily perform qualifying duties , it 
must be determined that the beneficiary would not spend a majority of his time performing these 
non-qualifying duties. 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 summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity and based 
on these findings , the instant petition cannot be approved. 
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Counsel correctly observes that a company's size alone, without taking into account the reasonable 
needs of the organization, may not be the determining factor in denying a visa to a multinational 
manager or executive. See§ 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, 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. Family Inc. v. USCIS, 469 
F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size 
of a company may be especially relevant when USCIS notes discrepancies in the record and fails to 
believe that the petitioner 's assertions are true. See Systronics, 153 F. Supp. 2d at 15. 
Here, the petitioner contends that it has enough staff to establish a reasonable need for a vice 
president who primarily performs qualifying duties. However, as discussed, the record does not 
substantiate that the petitioner actually employs all of the individuals listed on the organizational 
chart or that it retains a sufficient number of employees to run the gas station/convenience store. 
In light of the foregoing discussion, the petitioner has not established that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity and on the basis of 
this second adverse conclusion, this petition cannot be approved. 
B. Qualifying Relationship 
Beyond the decision of the director, the petitioner did not provide sufficient evidence to establish a 
qualifying relationship between the petitioner and the entity where the beneficiary was employed 
abroad. To establish a "qualifying relationship" under the Act and the regulations , the petitioner 
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)(1)(C) of the Act, 8 U.S.C. § 1153(b)(1)(C). 
The regulation at 8 C.P.R. § 204.5G)(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. 
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NON-PRECEDENT DECISION 
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 petitioner claims to be an affiliate of 
located in India, where the beneficiary was employed prior to coming to the United 
States to work for the petitioner. This claim is based on the assertion that 
owns 51% of the petitioner. Counsel for the petitioner explained that "initially, 
in creating the corporation on February 22, 2011, Certificate #1 was erroneously made out to the 
benefit of for 1000 shares of [the petitioner]." Counsel also explained that in order to 
correct the error, 'created an addendum, signed by both parties and formalized in the 
Minutes, transferring 510 shares of stock to the [foreign company]." 
The petitioner submitted Certificate Number 1 issuing 1000 shares of the petitioner to 
dated February 22, 2011. The petitioner submitted a one paragraph document certifying 
that acquired 51% partnership in the petitioner, signed 
by and the beneficiary. The petitioner also submitted a document entitled, 
"Minutes of the Director's Meeting," stating that transferred 510 shares of the 
petitioner to 
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 forpurposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 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 general evidence of a petitioner's claimed qualifying relationship , a stock certificate alone and an 
addendum are not sufficient evidence to determine whether a stockholder maintains ownership and 
control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, 
corporate bylaws, and a new stock certificate of the new issued shares must also be examined to 
determine the total number of shares issued, the exact number issued to the shareholder, and the 
subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning 
company must disclose all agreements relating to the voting of shares, the distribution of profit, the 
management and direction of the subsidiary, and any other factor affecting actual control of the 
entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all relevant 
documents, USCIS is unable to determine the elements of ownership and control. 
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Page 11 
Given that ownership of the petitioning entity is germane to establishing the existence of an affiliate 
relationship between the petitioner and the beneficiary's employer abroad, the petitioner's failure to 
provide sufficient and reliable evidence to identify its owner(s) precludes the AAO from concluding 
that the petitioning U.S. employer and the beneficiary's employer abroad are commonly owned and 
controlled. See Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Assoc. Comm'r 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm'r 1982). Thus, the petitioner has not established that it maintains 
the requisite qualifying relationship with the beneficiary's foreign employer. 
III. CONCLUSION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us 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. DOl, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that the AAO conducts appellate review on a de novo basis). 
Moreover, when we deny a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it shows that we abused our discretion with respect to all of our enumerated 
grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 
683. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each 
considered as an independent and alternative basis for the decision. In visa petition proceedings, it is 
the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.