dismissed EB-1C Case: Business Management

identifying data deleted to 
prevent clearly unwan'anted 
invasion of personal privacy 
PUB LTC COpy 
DATE: JUL 24 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: NEBRASKA SERVICE CENTER 
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)(l)(C) 
ON BEHALF OF PETITIONER: SELF -REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
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 tiling 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)(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, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an Ohio corporation that seeks to employ the beneficiary as its vice president. Accordingly, 
the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1 )(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § IIS3(b)(1 )(C), as a multinational 
executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement under the heading "Exhibit I" describing the 
beneficiary's proposed employment with the U.S. entity. The petitioner also provided a brief description of 
the beneficiary's employment abroad, and supporting evidence addressing various eligibility factors, 
including the beneficiary'S alleged qualifying relationship with the beneficiary's foreign employer. 
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 January 29, 2010 informing the 
petitioner of various evidentiary deficiencies. The director determined that the record lacked evidence 
showing that (I) the petitioner has a qualifYing relationship with the beneficiary's foreign employer; (2) the 
beneficiary was employed abroad in a qualifying capacity; and (3) the beneficiary would be employed in the 
United States in a qualifying capacity. 
The petitioner provided a response, which included supplemental job descriptions, organizational charts, and 
documents addressing the claimed parent-subsidiary relationship between the petitioner and the foreign entity 
where the beneficiary was previously employed. 
After reviewing the record, the director concluded that the petitioner failed to overcome the adverse findings 
that were previously noted in the RFE. The director therefore issued a decision dated June 7,2010 denying 
the petition based on the three [mdings discussed above. 
On appeal, the petitioner submits a brief as well as additional documentation addressing the director's three 
adverse findings. The petitioner stressed the preponderance of the evidence standard of proof, asserting that 
the petitioner submitted sufficient evidence and information to meet this relatively relaxed burden. 
The AAO finds that the petitioner's arguments are not persuasive and fail to overcome the director's denial. 
The discussion below will provide an analysis of the relevant documentation and will explain the underlying 
reasoning for the AAO's decision. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall tirst 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 3 
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)(I)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first issue to be addressed in this proceeding is whether the petitioner has a qualifying relationship with 
the beneficiary's foreign employer. To establish a "qualifying relationship" under the Act and the regulations, 
the petitioner 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)(I)(C) of the Act, 8 U.S.C. § 1 IS3(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: 
Aj]iliate 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 petitioner claims to be the parent entity in a parent-subsidiary relationship with the beneficiary's foreign 
employer. The basis for this claim is the petitioner's alleged purchase of the majority of the foreign entity's 
stock. In support of this claim, the petitioner provided the foreign entity's original ownership documents as 
Page 4 
well as a share purchase agreement, dated July 30, 2009, showing the petitioner's share purchase, and the 
foreign entity's minutes of special meeting, dated July 31, 2009, showing the new ownership structure with 
the petitioning entity holding 60% of the foreign entity's shares. 
In denying the petition, the director observed that the purchase agreement lacked sufficient information 
regarding the petitioner's receipt of compensation in exchanged for acquisition of the foreign entity's shares. 
Namely, the director noted that while the petitioner indicated that it would pay 10% of its profit towards 
consideration of the acquired shares, it did not specifY the length of time this arrangement would continue or 
any contingency provisions. The director further noted that no evidence was provided to establish the 
petitioner's transfer of funds towards the alleged purchase. 
On appeal, the petitioner attempts to overcome the above evidentiary deficiency by providing a document 
titled "Addendum to Agreement for Purchase of Shares," which has an execution date of August 6, 2009 and 
specifies the amount, duration, contingency, and timing of the payment schedule that had been previously 
referenced in the purchase agreement. According to the contingency terms, the petitioner would only pay 
compensation if it realized a net profit. It would therefore appear that if the petitioner did not realize a net 
profit during any given year, it could avoid having to compensate the foreign entity for the issued shares. In 
fact, this contingency scenario could hypothetically lead the petitioner to acquiring the foreign entity's shares 
free and clear ifno net profit is realized during the five-year duration of the agreement. 
As previously noted in the director's decision, any time U.S. Citizenship and Immigration Services (USCIS) 
fails to believe that an assertion of fact stated in the petition is true, US CIS may reject that fact. Section 
204(b) of the Act, 8 U.S.C. § I 154(b); see also Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir.1989); Lu­
Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7,10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 
7, 15 (D.D.C. 2001). 
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 ol 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 establisliment, management, and operations of an 
entity. Matter olChurch Scientology International, 19 I&N Dec. at 595. 
The AAO finds that the terms of the addendum are questionable at best, leaving the foreign entity in a 
vulnerable and possibly disadvantageous position where it may receive no compensation at all for the transfer 
of its shares. 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. 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 Craji ol California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As the petitioner has provided no 
evidence showing that it has offered some form of consideration in exchange for its receipt of the foreign 
entity's stock, the AAO finds that the petitioner has failed to meet its evidentiary burden in establishing the 
existence of a qualifying relationship between the petitioner and the beneficiary's foreign employer. On the 
basis of this initial finding, the instant petition will not be approved. 
Page 5 
The two remaining issues in this proceeding call for an analysis of the beneficiary's positions with the U.S. 
and foreign employers. Specifically, the AAO will examine the record to determine whether the petitioner 
submitted sufficient evidence to establish that the beneficiary was employed abroad and whether he would be 
employed in the United States in a qualifying managerial or executive capacity. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § 1 10 1 (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 
tor 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 10 I (a)(44)(B) of the Act, 8 U.S.c. § I 10 I (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. 
In examllllllg 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. § 204.5(j)(5). The AAO also finds that it is appropriate 
to consider other relevant factors, such as the type of business the petitioner operates, the petitioner's 
· . 
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organizational hierarchy, which shows the complexity of a given entity and the beneficiary's placement in 
relation to other employees, the petitioner's overall staffing, which allows the AAO to gauge the extent to 
which the petitioner is able to relieve the beneficiary from having to focus the primary portion of his time on 
the performance of non-qualifying operational tasks. 
Turning first to the beneficiary's proposed position, the AAO finds that the director properly pointed out that 
the job descriptions offered by the petitioner in the present matter are virtually devoid of substance, as they 
focus primarily on the beneficiary's elevated position aud the discretionary authority that inevitably 
accompanies that position. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient. 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). 
The petitioner fails to specifically identify the beneficiary's actual daily job duties within the scope of the 
petitioner's business, which entails the operation of a gas station/convenience store that the petitioner owns 
and providing management and consulting services to two other entities that the petitioner does not own. 
Furthermore, as the director accurately pointed out, it is unclear how the beneficiary, who resides in the State 
of New York, can be tasked with managing an Ohio-based gas station/convenience store. Although the 
petitioner stated in the RFE response (Exhibit #2) that the beneficiary "performs unique work of exceptional 
difficulty," none of the follow-up statements elaborated as to what in particular is unique and exceptionally 
difficult about the beneficiary's employment in the scope of a gas station/convenience store operation. The 
petitioner also failed to explain how procuring new business, negotiating franchise agreements, selecting 
vendors, and engaging in various banking activities can be deemed as anything other than daily operational 
and administrative job duties. 
In light of the petitioner's two separate business ventures-operation of a gas station/convenience store and 
providing management and consulting services-the beneficiary's job duties with respect to these two types 
of business activities must be further clarified. In other words, the petitioner must differentiate and explain 
what specific tasks the beneficiary would carry out in the course of managing a retail operation that the 
petitioner owns versus the tasks the beneficiary would carry out in the scope of a management and consulting 
agreement. Instead, the petitioner seemingly focuses on the beneficiary's management responsibilities with 
respect to the gas station/convenience store, which is physically far removed from where the beneficiary 
actually resides. If the petitioner's claim is that the beneficiary can successfully manage its retail operation 
from a remote location, it is unclear why the beneficiary's U.S. residence is necessary to the position being 
offered. It is also unclear how the beneficiary can control schedules, job assignments, and employee training 
or effectively make any personnel decisions (all of which are attributed to the beneficiary's proposed 
employment) when the beneficiary remains in another state. 
The petitioner's organizational chart depicts the beneficiary's pOSItIOn as vice president overseeing the 
petitioner's own retail operation and the retail operations of the two entities that contracted with the petitioner 
for management and consulting services. The AAO notes, however, that if the beneficiary himself is charged 
with actually providing the management and consulting services to the two entities that contracted with the 
petitioner, then the beneficiary's employment can be described as one that is primarily comprised of tasks that 
are necessary to provide the very services that are the source of the petitioner's revenue generation, i.e., 
management and consulting services. 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 
· . 
Page 7 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. at 604. 
Turning to the beneficiary's employment overseas, the AAO similarly finds that the job descriptions offered 
by the petitioner are lacking sufficient information and thus fail to convey a meaningful understanding of the 
actual tasks the beneficiary performed in the course of his daily activity. As previously indicated, specific 
information about the beneficiary's actual day-to-day tasks is necessary in order to determine the 
beneficiary's employment capacity. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. Instead of 
providing information about the beneficiary's actual daily tasks, the petitioner focused on the beneficiary's 
discretionary authority and elevated position within the foreign entity's organizational hierarchy. The director 
of the foreign entity stated that the beneficiary was charged with overseeing the accounts, finance, sales, 
personnel, and operations departments by hiring and firing as well as overseeing the work of subordinate 
managers, scheduling work assignments, evaluating subordinates' performances, and developing and 
recommending policies and procedures for effective operation of the company. As noted above, relying on 
general terminology to establish that the beneficiary had a high degree of discretionary authority and worked 
at an elevated position within the company's hierarchy is not sufficient; the petitioner must establish that the 
beneficiary allocated the primary portion of his time to primarily managerial- or executive-level job duties. 
Although the petitioner disputes the director's adverse decision on appeal, the petitioner has not supplemented 
the record with evidence and information pertaining to the beneficiary'S foreign and proposed employment. 
The evidence of record falls far short of establishing that the beneficiary was employed abroad and would be 
employed in the enited States in a qualifying managerial or executive capacity. In the case of the proposed 
employment, the facts presented strongly indicate that the primary portion of the beneficiary's time would be 
allocated to carrying out daily operational tasks and actually providing the management and consulting 
services that the petitioner was contracted to perform. The AAO finds that the petition does not warrant 
approval and the director's decision will be affirmed. 
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.