dismissed EB-1C Case: Business Management

icentlifying data deleted to 
~ .... lead"''j· unwarranted 
prevent~.§ . ac invasion 3f personal prlv y 
PUBLIC COpy 
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 
DATE: DEC! 7 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. § 1 153(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, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
petitioner subsequently filed a timely motion to reopen, which the director denied in a comprehensive 
decision dated January 30, 2006. The petitioner then appealed the matter to the Administrative Appeals 
Office (AAO). Instead of forwarding the matter to the AAO to be treated as an appeal, the director issued a 
decision on March 16, 2006, rejecting the petitioner's appeal as untimely filed. In a follow-up service motion 
to reopen dated February 5, 2010, the director withdrew the March 16, 2006 decision, concluding that the 
appeal was improperly rejected, and forwarded the matter to the AAO. The appeal will be dismissed. 
As a preliminary matter, it is noted that, regardless of the timely or untimely filing of an appeal, the service 
center does not have jurisdiction over any matter that deals with an appeal of an adverse service center 
decision. 8 C.F .R. § 103.3(2)(iv). Therefore, even in matters concerning the untimely filing of an appeal, the 
AAO, not the director, maintains jurisdiction over the appellate matter. That being said, in the February 5, 
2010 motion to reopen the director expressly determined that the petitioner's appeal was not untimely, thus 
indicating that this matter merits full consideration of the petitioner's eligibility. Accordingly, the AAO will 
address all factors that are relevant to the issue of the petitioner's eligibility for the immigration benefit 
sought. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its 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. § 1153(b)(1)(C), as a 
multinational executive or manager. 
The director initially denied the petition based on the determination that the petitioner failed to establish that 
the petitioner meets the regulatory requirement described at 8 C.F.R. § 204.5G)(3)(i)(C), which states that the 
petitioner must establish that it has a qualifying relationship with the beneficiary's foreign employer. The 
director later affirmed the original denial and the underlying basis in the January 30, 2006 decision. 
On appeal, counsel challenged the director's decision, claiming that a qualifying relationship does exist 
between the petitioner and the beneficiary's foreign employer. Counsel indicated that an appellate brief 
would be submitted specifically explaining the basis for withdrawing the director's adverse decision. The 
record shows that an appellate brief was in fact submitted and will be fully addressed in the decision below. 
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 
Page 3 
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 finn, 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 primary issue 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 related as a "parent and subsidiary" or as "affiliates." See 
generally § 203(b)(I)(C) of the Act, 8 U.S.c. § 1153(b)(1)(C); see also 8 C.F.R. § 204.5G)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
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. 
In support of the Form 1-140, the petitioner submitted a statement dated October 22, 2004. Although the 
petitioner was referred to as the subsidiary of the beneficiary'S foreign employer, a full explanation with an 
ownership breakdown of each entity was not expressly provided in the statement. Among the supporting 
documents that accompanied the Form 1-140, the petitioner provided a foreign document with a certified 
English translation, which stated that ownership of the foreign entity, 
was evenly divided among two individuals-the beneficiary and 
Page 4 
owning 700 shares of the foreign entity's stock. The petitioner also provided a copy of its Articles of 
Incorporation, executed on July 22 and filed with the State of Florida on July 25, 1996, in which Article Four 
identified the beneficiary as owner of 100% of the petitioner's stock. 
On May 3, 2005, the director issued a request for additional evidence (RFE) in which the petitioner was 
instructed to provide further documentation establishing the existence of a qualifYing relationship between the 
petitioner and the foreign entity where the beneficiary was previously employed. 
In response, counsel submitted a statement dated July 20, 2005 in which he indicated that the foreign entity 
owns 51 % of the U.S. petitioner and that the beneficiary owns the remaining 49%. In support of counsel's 
statement, the petitioner provided stock certificate nos. 2 and 3, both undated, issuing 51 and 49 out of 100 
shares of its stock to and the beneficiary, respectively. 
On July 29, 2005, the director issued the first of two decisions denying the petition based on the petitioner's 
failure to establish the existence of a qualifying relationship with the beneficiary's foreign employer. In her 
decision, the director relies on the petitioner's Articles of Incorporation, which named the beneficiary sole 
owner of the petitioning entity, and on the ownership described in the foreign document, which indicated that 
the beneficiary had only a 50% ownership interest in the foreign entity. 
In response, counsel provided a statement dated August 25, 2005 in which he explained that the petitioner 
issued 350 shares of voting class stock and 350 shares of non-voting class and that the voting shares were all 
issued to the foreign entity, thus giving the foreign entity control over the petitioner despite the appearance of 
split ownership between the beneficiary and the foreign entity due to the issuance of the same number of 
shares. In support of counsel's statement, the petitioner provided a copy of a document titled "Shareholder 
and Ownership Agreement Between [the petitioner] and All of the Shareholders." The execution date of the 
agreement was shown as July 25, 1996, the date the petitioner filed its Articles of Incorporation. As 
previously indicated in counsel's statement, the ownership agreement identified two classes of stock-voting 
and non-voting-and two shareholders-the foreign entity and the beneficiary-where the foreign entity was 
shown as owner of the voting shares while the beneficiary was shown as owner of the non-voting shares. 
On January 30, 2006, the director issued a second adverse decision in which she pointed out the anomalies in 
the previously submitted documents. Namely, the director referred to the fact that neither of the submitted 
stock certificates were dated and further commented on the discrepancies between information provided in the 
petitioner's Articles ofIncorporation, the stock certificates, and the shareholder agreement that the petitioner 
submitted in response to the director's first adverse decision. The director properly cited relevant case law, 
which places the evidentiary burden on the petitioner to resolve any inconsistencies in the record by providing 
independent objective evidence that establishes where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). 
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 the United States and foreign entities. 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 
Page 5 
authority to direct the establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N Dec. at 595. 
Counsel argued on appeal that the record adequately documents the beneficiary's ownership of 50% of the 
foreign entity and 100% of the u.s. entity. Counsel's argument, however, fails to overcome the director's 
adverse findings regarding the issue of the petitioner's qualifying relationship. 
As discussed in the director's January 30, 2006 decision, the petitioner has provided inconsistent evidence 
regarding its ownership. While Schedule E of the petitioner's 2003 tax return and Article Four in the Articles 
oflncorporation both identify the beneficiary as 100% owner of the petitioner's stock, neither the petitioner's 
two undated stock certificates-nos. 2 and 3-nor the petitioner's stockholder agreement from July 25, 1996 
corroborate the information conveyed in the previously named documents. In fact, the petitioner's stockholder 
agreement is not only inconsistent with regard to the ownership distribution, but it also is entirely inconsistent 
with the original Articles of Incorporation with regard to the number of shares that the petitioner is authorized 
to issue. Namely, the latter document indicates that the petitioner is only authorized to issue 100 shares of its 
stock. The stockholder agreement, however, indicates that the petitioner issued a total of 700 shares and 
further indicates that the petitioner had two different classes of stock-voting and non-voting-a factor not 
discussed in the Articles of Incorporation. The petitioner's stock certificates are also inconsistent with the 
Articles of Incorporation in that the latter indicates that the beneficiary is the sole stockholder, while the stock 
certificates indicate that the beneficiary is not only not the sole stockholder but is also the minority owner 
with the foreign entity owning more than 50% of the petitioner's stock. 
In light of the above inconsistencies, the AAO simply cannot concede to counsel's claim regarding the 
beneficiary's 100% ownership of the petitioning entity. While it is true that some of the submitted documents 
do indicate that the beneficiary is the petitioner's sole stockholder, there are just as many documents that 
contradict this claim. The petitioner has not supplemented the record with any documentation to reconcile or 
resolve these inconsistencies regarding facts that are highly relevant to the petitioner's eligibility. See Matter 
ofHo, 19 I&N Dec. at 591-92. 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer 
seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. U.S., 345 F.3d 683, 694 (9th Cir., 2003). 
Anytime a petition includes numerous errors and discrepancies, and the petitioner fails to resolve those errors 
and discrepancies after USCIS provides an opportunity to do so, those inconsistencies will raise serious 
concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the petitioner's proof 
may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. at 591. As noted above, the discrepancies and errors catalogued above 
lead the AAO to conclude that the evidence pertaining to the petitioner's ownership, which directly affects its 
alleged qualifying relationship with the foreign entity, is not credible. Accordingly, the petitioner has not 
established its eligibility for the requested immigrant visa classification and on the basis of this conclusion the 
instant petition cannot be approved. 
Furthermore, while not previously addressed in the director's decision, the record does not support the finding 
that the petitioner, at the time of filing, adequately established that the beneficiary would be employed in a 
qualifying managerial or executive capacity. While the AAO finds that the job descriptions provided by the 
petitioner both initially in support of the petition and subsequently in response to the RFE were overly 
generalized, both the descriptions and the facts provided regarding the petitioner's support staff at the time of 
Page 6 
filing the petition lead the AAO to conclude that the beneficiary was most likely allocating the primary 
portion of his time to non-qualifying operational tasks. 
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 the 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. at 604. Here, the AAO finds that the petitioner has failed to establish that the 
petitioner was ready and able to employ the beneficiary in a managerial or executive capacity at the time the 
petition was filed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.