dismissed EB-1C Case: Business Management

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DATE: JUN 22 2012 
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 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § I 1 53(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 in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. 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. 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 an Alabama corporation that seeks to employ the beneficiary as its vice president/general 
manager. 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. 
§ 1 1 53(b)(1)(C), a& a multinational eKecutive Of manager. 
In support of the Form 1-140 the petitioner submitted a supplemental statement, dated July 10,2009, which 
contained relevant information pertaining to the petitioner's eligibility, including an overview of the 
petitioner's business and descriptions of the beneficiary's foreign and proposed employment. The petitioner 
also provided supporting evidence in the form of financial and corporate documents as well as documents 
pertaining to the beneficiary's employer abroad. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for additional evidence (RFE) dated May 6, 2010 informing the 
petitioner of various evidentiary deficiencies. The director determined that the record lacked evidence 
showing that I) the beneficiary was employed abroad in a qualifying managerial or executive capacity; 2) the 
petitioner has a qualifying relationship with the beneficiary's foreign employer; or 3) the beneficiary would 
be employed in the United States in a qualifying managerial or executive capacity. 
The petitioner provided a response, which included affidavits, bank and tax documents, stock certificates and 
a stock transfer ledger, andjob descriptions pertaining to the beneficiary's foreign and proposed employment. 
After reviewing the record, the director concluded that the petitioner failed to submit sufficient credible 
evidence to overcome the deficiencies cited in the RFE. The director therefore issued a decision denying the 
petition. 
On appeal, counsel submits a brief addressing the petitioner's qualifying relationship and the beneficiary's 
proposed employment with the U.S. entity. Additionally, the petitioner provided supplemental evidence, 
including affidavits, original amended tax returns, supplemental organizational charts and the beneficiary's 
job descriptions, the petitioner's bank documents, and business documents pertaining to the foreign entity. 
The AAO finds that neither counsel's arguments nor the supplemental documents are persuasive in 
overcoming the director's denial. The discussion below will provide an analysis of the relevant 
documentation and explain the basis for the AAO's conclusion. 
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)(1)(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 to be addressed in this proceeding is whether the petitioner submitted sufficient credible 
evidence to establish that it has a qualifYing relationship with the beneficiary's foreign employer. 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 that the two entities are related as a "parent and subsidiary" or as "affiliates." See 
generally § 203(b)(1)(C) of the Act, 8 U.S.C. § lI53(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. 
The regulation and case law confinn that ownership and control are the factors that must be examined in 
detennining 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 (Assoc. Comm'r 
1988); 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 general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to detennine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to detennine 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., 19 I&N Dec. 362. Without full disclosure 
of all relevant documents, US CIS is unable to detennine the elements of ownership and control. 
The record in the present matter shows that the petitioner submitted inconsistent documentation regarding its 
while the petitioner provided a photocopied stock certificate, No. 00, which indicates 
that (India), the beneficiary's foreign employer, was issued 1,000, or 100% of the 
petitioner's authorized stock, on July 31, 2006, Schedule E of the petitioner's 2007 and 2008 tax returns 
indicate owns 90% of the petitioner's common stock. 
The petitioner attempted to overcome the above inconsistency by submitting additional evidence in response 
to the RFE. Namely, the petitioner provided amended 2007 and 2008 tax returns, both striking the 
beneficiary as owner on Schedule E. Both tax returns show a filing date of May 19, 2010.' 
The petitioner also provided two affidavits-one signed by _ and the other signed by the 
beneficiary-both indicating that when the petitioner was initially incorporated~as issued 510 
shares and the beneficiary was issued the remaining 490 shares and that upon subsequent request from the 
beneficiary, both individuals transferred their shares to the foreign entity, thus giving the foreign entity 100% 
ownership of the petitioner's issued shares. Although the beneficiary claimed in his affidavit that •••• 
_ transfer of shares to the foreign entity represented his repayment of $100,000 that he owed the 
beneficiary, _ did not corroborate this claim in his own affidavit. Rather, he merely claimed that 
he personally "deposited such amounts" from his personal bank account to the personal bank account of the 
beneficiary as repayment of funds he borrowed from the beneficiary in India. The affidavit contains no 
clarification as to what_ meant by "such amounts." While he claimed to have transferred $75,000 
from the petitioner's lllinois bank account to the petitioner's Alabama bank account at the beneficiary's 
request on September 17, 2007, he did not explain the significance, if any, of the fund transfer, nor did he 
indicate that he transferred his ownership of the petitioning entity as a means of repaying a loan he incurred. 
The fact that the petitioner provided bank documents showing the petitioner's fund transfers from one of its 
, Although the director questioned the authenticity of the amended tax returns in light of the alteration of the date stamp, 
the petitioner submitted the original amended tax returns, thus establishing that the documents were authentic. 
Page 5 
accounts to another is not relevant to the overall issue of the petitioner's ownership, as these documents do 
not show that the funds originated from the foreign entity, which was purportedly the ultimate recipient of the 
petitioner's stock. 
Additionally, while the petitioner provided a copy of its stock transfer ledger showing the original issue of 
shares on March 28,2006 via stock certificate Nos. I and 2, the surrender of such shares on July 31, 2006, 
and the ultimate transfer of those same shares to the foreign entity on July 31, 2006, the record contains stock 
certificate Nos. I and 2, both dated August 1,2007, which purported to transfer 510 shares and 490 shares to 
the beneficiary and to Deven Patel, respectively, one year after those very shares were purportedly transferred 
to the foreign entity. It is noted that neither the stock transfer ledger nor any of the supporting statements 
made any mention ofthe 2007 stock issuance. 
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 ofHo, 19 r&N Dec. 582, 591-
92 (BIA 1988). Furthermore, doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Id. at 591. 
Counsel relies heavily on the previously approved nonimmigrant petition (which the same petitioner filed on 
behalf of the beneficiary) as evidence that the petitioner had a valid qualifYing relationship with the 
beneficiary's foreign employer. Each nonimmigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof; each petition must stand on its own individual merits. uscrs is 
not required to assume the burden of searching through previously provided evidence submitted in support of 
other petitions to determine the approvability of the petition at hand in the present matter. A prior 
nonimmigrant approval would not preclude uscrs from denying an extension petition. See e.g. Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Similarly, the approval of a 
nonimmigrant petition in no way guarantees that uscrs will approve an immigrant petition filed on behalf of 
the same beneficiary. uscrs denies many r-140 immigrant petitions after approving prior nonimmigrant r-
129 L-I petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989). 
Furthermore, if the previous nonimmigrant petition was approved based on the same contradictory assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of a prior approval that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Counsel also asserts that errors were made by the petitioner's incorporator, _ and by the 
petitioner's CPA, who filled out the original 2007 and 2008 tax returns. Specifically, counsel claims that 
••••• erroneously named himself and the beneficiary as shareholders at the time he incorporated the 
petitioning entity and similarly blames the petitioner's CPA for naming the beneficiary as 90% shareholder 
when completing the 2007 and 2008 tax returns. Counsel therefore relies on the amended tax returns to 
rectifY the latter error. However, neither of counsel's assertions is adequately corroborated by the evidence of 
Page 6 
record, which primarily consists of self-serving affidavits and amended tax returns, which the petitioner 
internally generated in response to the adverse findings listed by the director in the RFE. The AAO finds that 
none of these documents can be deemed as "independent objective evidence" which is needed in order to 
resolve the considerable inconsistencies catalogued above. 
With regard to the errors committed by __ the more recent affidavit, dated October 4,2010, which 
_ provides in support of the appeal, is inconsistent with the claims he made in his earlier affidavit, 
dated June 4, 2010, where he did not claim that he erroneously listed himself and the beneficiary as the 
petitioner's shareholders; rather, _ indicated that he intentionally claimed himself and the beneficiary 
as the petitioner's shareholders and that the beneficiary was well aware of and was "pleased with the idea," 
despite the fact that he ultimately wanted ownership of the petitioner to be transferred to the foreign entity. 
Regardless of the beneficiary's ultimate intent, the claims made i~October 2010 affidavit as to 
his intent regarding the petitioner's ownership are inconsistent with the statements the same individual 
previously made under oath with regard to the same issue. These contradictions and the petitioner's failure to 
resolve them cast further doubt on the veracity and reliability of the petitioner's claims. 
In light of the serious nature of the errors and anomalies concerning the issuance of the petitioner's shares, the 
AAO is unable to determine who in fact owns the petitioning entity. Without a proper determination of the 
petitioner's ownership, it cannot be concluded that the petitioner and the beneficiary'S foreign employer have 
a qualifYing relationship. On the basis ofthis conclusion, this petition cannot be approved. 
The two remaining issues to be addressed in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary was employed abroad 
and whether he would be employed in the United States in a qualifYing managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § I 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component ofthe 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. 
Page 7 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The tenn "executive capacity" means an assignment within an organization m 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. 
Turning first to the issue of the beneficiary's employment abroad, the AAO questions why the employment 
letter containing the beneficiary's job description was signed by an individual, whom the organizational chart 
identified as the beneficiary'S subordinate. Given that the director specifically instructed the petitioner to 
provide a detailed list of the beneficiary'S job duties, it is unclear how someone who is subordinate to the 
beneficiary would know the specific details of the beneficiary's daily activities. 
In reviewing the job description itself, the AAO finds the percentage breakdown to be significantly lacking in 
content. The job description is primarily comprised of general information that failed to convey a meaningful 
understanding of the beneficiary's daily tasks. For example, 25% of the beneficiary's time was said to be 
spent "directing and coordinating activities within the organization" for the purpose of increasing profit 
margin; planning, developing, and implementing goals and policies; ensuring that a strategy and business plan 
is in effect for each construction project; familiarizing himself with vendors; and maintaining technical 
expertise. These vague statements failed to explain how, precisely, the beneficiary would accomplish these 
broad business objectives. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient. The actual duties themselves will 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.2d41 (2d. Cir. 1990). 
Moreover, listing tasks that the beneficiary perfonns irregularly in isolated instances does little to clarify what 
specific tasks the beneficiary performed regularly on a daily basis. Claiming that the beneficiary hired and 
trained employees would not fall within the category of daily activity, as there is no evidence that changes in 
staffing occurred daily or even weekly such that hiring or firing comprised a significant portion of the 
beneficiary's time. 
The job description failed to isolate and assign a specific time allocation to the beneficiary'S non-qualifying 
administrative and marketing tasks, including generating accounts payable, compiling financial data, 
researching business opportunities, arranging for payroll services, preparing an annual budget, conducting due 
diligence, preparing a summary report, and conducting market research. As the petitioner failed to allocate 
specific time constraints to these non-qualifying tasks, it cannot be determined that the beneficiary did not 
spend the primary portion of his time performing them. While 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 performed are only incidental to the position in question. An employee who "primarily" performs 
Page 8 
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 10I(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. at 604. Although the beneficiary supported the appeal with an affidavit in which 
he provided an account of the job duties he claims to have performed during his employment abroad, this job 
description was virtually identical to the one submitted earlier in response to the RFE and is equally 
unpersuasive. 
The AAO cannot conclude that the petitioner provided sufficient evidence to establish that the beneficiary 
was employed abroad in a qualifying managerial or executive capacity. On the basis of this second adverse 
conclusion, the instant petition cannot be approved. 
Turning to the issue of the beneficiary's proposed employment with the U.S. entity, the AAO finds that the 
record lacks sufficient evidence showing that the beneficiary would be employed in a qualifying managerial 
or executive capacity. 
The description of the beneficiary's proposed job duties is a primary concern when determining whether a 
given position fits the statutory definition of executive or managerial capacity. See 8 C.F.R. § 204.5(j)(5). 
The AAO considers other relevant factors in making this determination, including the petitioner's 
organizational hierarchy, the beneficiary's position with respect to others within the organization, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. 
The petitioner's response to the RFE included a percentage breakdown where the petitioner indicated that 
45% of the beneficiary's time would be allocated to day-to-day operational management, including directing 
and coordinating activities for the purpose of increasing the company's profits; planning, developing, and 
implementing goals and policies; ensuring that a strategy and business plan is in effect for each construction 
project; familiarizing himself with projects, clients, and regulations; ensuring that realistic goals are set; 
becoming familiar with vendors; and maintaining a level of expertise. These statements are virtually identical 
to those used to describe the beneficiary's role in daily operational management with the foreign entity and as 
previously noted, the information provided fails to clarify how the beneficiary would accomplish these broad 
business objectives. Without a more detailed description of the beneficiary's actual daily job duties, the AAO 
is unable to determine the true nature of the proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. at 1108. 
The statements used to describe the beneficiary's role in finance and accounting, marketing, and employment 
and training were virtually identical to those used in describing the beneficiary's employment abroad and are 
deemed to be deficient for the same reason, i.e., both job descriptions list a number of non-qualifying tasks 
without any clarification as to how much of the beneficiary's time would be specifically allocated to the 
performance of such tasks. 
Reviewing the petitioner's organizational chart and comparing the information in the chart with the 
information provided in the petitioner's quarterly wage report for July of 2009 when the Form 1-140 was 
filed, it appears that the two documents are at odds with one another. While the petitioner's quarterly wage 
report (as well as the Form 1-140 itself) indicates that the petitioner had a total of seven employees, the 
petitioner listed a total of nine employees in its organizational chart. The AAO further notes that the salaries 
Page 9 
shown in the quarterly wage report indicate that some of the petitioner's employees-the retail services 
managers, three cashiers, and the design and drawings employee-were either employed on a part-time basis 
or were not employed for the entire quarter. This leaves the AAO to question whom specifically the 
petitioner employed at the time of filing the petition and whether that staffing composition was sufficient to 
relieve the beneficiary from having to allocate the primary portion of his time to the performance of non­
qualifying tasks. Thus, when reviewing the beneficiary'S job description in light of what appears to have 
been a limited staffing arrangement, the AAO questions how the petitioning entity was capable of supporting 
the beneficiary in a position where the primary portion of his time would be allocated to tasks within a 
qualifying managerial or executive capacity. 
While the beneficiary provides an additional job description in support of the appeal, the AAO is unable to 
make an affirmative determination as to the beneficiary'S employment capacity without full knowledge of the 
petitioner's staffing at the time of filing the petition. Moreover, a number of the job duties the beneficiary has 
listed in the most recent job description would be deemed non-qualifying operational tasks. As it is unclear 
what portion of the beneficiary'S time would be allocated to the qualifying tasks versus those that are deemed 
to be non-qualifying, the AAO cannot affirmatively conclude that the beneficiary's proposed employment 
with the u.s. entity would be within a qualifying managerial or executive capacity. On the basis of this third 
adverse finding, the instant petition cannot be approved. 
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.