dismissed EB-1C Case: Business Management

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, ' \ 
·-.._ 
DATE: 
APR 1 
OFFICE: TEXAS SERVICE CENTER 
8 2013 ' . : 
INRE: Petitioner: 
Beneficiary: 
u.s: P.epartment or Ho01eland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 205i9-2090 
u.s. Citizenship 
and Imniigratioil 
Services · 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(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 m~de '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 cait 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 ofthe decision that the motion seeks to reconsider or reopen. 
T~. ~(-)1 .. ~~~' 
· - ~~~~ 
R~n Ro~~er~:: ~ . '• . 
Acting Chief, Administrative Appeals Office 
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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 a Virginia. entity that seeks to employ the beneficiary in the United States as its CFO and 
vice president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(I )(C), as a multinational executive or manager. · ' 
In support of the Form 1-140 the petitioner submitted an u'ndated statement, which contained relevant 
information pertaining to the petitioner's eligibility, including brief descriptions of the beneficiary's foreign 
and U.S. employment. The petitioner also provided a copy of its organizational chart and tax and financial 
documents addressing the petitioner's ownership. 
The director reviewed the· petitioner's submissions and determined that 
the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated February 9, 2012 informing the petitioner of 
various evidenti~ deficiencies. The RFE included a request for a more detailed job description pertaining to 
the beneficiary's proposed employment with a list of the beneficiary's job duties and their time allocations, 
Form W-2 wage and tax statements for the petitioner's employees, and the petitioner's organizational chart. 
Although the petition~r responded to the RFE, the statement dated April 16, 2012, which contained a 
description of the beneficiary's proposed U.S. employment, lacked any additional information elaborating on 
the previously provided job .description and failed to assign time constraints to individual tasks as requested. 
As the petitioner also failed to provide the requested organizational chart, the AAO will rely ori the chart that 
the petitioner provided initially in support of the Form 1-140. The record further shows that aside from the 
copy of the 2011 IRS Form W-2 that was issued to the beneficiary, the petitioner failed to provide the same 
tax forms pertaining to the remainder of its employees for 2011. It is noted that failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F .R. 
§ 103.2(b)(l4). 
After considering the petitioner's response, the director d_etennined that the petitioner failed to establish that 
the beneficiary would be empl<;>yed with the U.S. entity in a qualifying managerial or executive capacity. The 
director noted that the petitioner failed to provide much of the evidence requested in the RFE and denied the 
petition in a decision.dated May 11,2012. 
On appeal, counsel provides an appellate brief accompanied by supplemental documentation aimed to address 
the director's adverse findings. Counsel points to the recent additions in the petitioner's sta~ and attempts to 
elaborate on the significance of the beneficiary's position with the U.S. entity. 
The AAO finds that neither counsel's assertions nor the supplemental documents are sufficient to warrant 
approval of the petitioner's Form 1-140. Counsel's brief and any evidence that is pertinent to the matter at 
hand will be addressed in the discussion 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): 
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* * * 
(C) Certain Multinational Executives and Managers.-- Ari. 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, co~:poration 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)(l)(C) ofthe Aetas a multinational exec·utive 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. 
Section 101(a)(44XA) oftheAct, 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 9fthe 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 hir~ and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is . directly supervised, functions at. a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has· authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 110l(a)(44)(B), provides: . \ . 
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The term "executive capacity". means an assignment within an organization in which the 
employee primarily--
(i) 
(ii) 
directs the management of the organization or a major component or function 
of the organization; · 
establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; lmd 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
As a preliminary matter the AAO wishes to address the evidence submitted in support of the appeal where 
counsel seeks. to have recognition of the petitioner's growth as an organization in terms of its staffing and 
overall business progress. While the AAO duly acknowledges the increase In the petitioner's personnel, the 
fact remains that a petitioner must establish eligibility at the time of filing and cannot rely a new set of facts to 
establish eligibility at a future ·date. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971 ). In other words, 
the petitioner must establish that its staffing composition, as it ·existed at the time of filing, was sufficient to 
relieve the beneficiary from having to allocate his time primarily non-qualifying operational tasks. 
· Additionally, with regard to counsel's attempt to supplement the record with the previously requested 
evidence, including employee wage documents and an organizational chart with brief job descriptions of the 
participating employees, the RFE expressly shows that the petitioner was put on notice of required evidence 
and given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. As 
previously noted, the petitioner failed to submit the requested . evidence and now submits it on appeal. 
However, the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on 
the record of proceeding before the director. 
The AAO will now tum to the main basis for denial-the finding that the petitioner failed to establish that the 
beneficiary would be employed in a qualifying managerial or executive capacity. In general, when examining 
the executive or managerial capacity of the beneficiary, the AAO reviews the totality of the record, starting 
first with the petitioner's description ofthe beneficiary's job duties. See 8 C.F.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), a.ff'd, 905 
F.2d 41 (2d, Cir. 1990) . . The AAO often considers this information in ligh~ of other relevant factors, 
including (but not limited to) job descriptions of the beneficiary's subordinate employees, the nature of the 
business conducted by the entity in question, the size of that entity's subordinate staff, and any other facts 
contributing to a comprehensive understanding of the beneficiary's actual roles within a given entity's 
organizational· hierarchy. 
In the present matter, the director found that the petitioner failed to provide an adequate description of the 
beneficiary's proposed job duties. The director determined that the job descriptions provided were overly 
vague and .offered little insight as to .the actual tasks the beneficiary would perform daily as a· means of 
supervising, directing, and controlling the business and its employees. The director also pointed out that the 
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petitioner neglected to infonn U.S. Citizenship and Immigration Services (USC IS) of the roles of the 
beneficiary's subordinates in relieving the beneficiary from having to allocate his time primarily to the 
perfonnance of non-qualifying operational tasks. While the AAO acknowledges that no beneficiary is 
required to allocate 100% of his or her time to managerial- or executive-level tasks, the petitioner must 
establish that. the non-qualifying· tasks the beneficiary would perfonn are only incidental to the proposed 
position. An employee who "primarily" perfonns 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'~ perfonn the enumerated managerial or 
executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)~ 
Hence, the AAO cannot overlook the petitioner's failure to provide a list of the beneficiary's proposed tasks 
and their respective time constraints, as such evidence could potentially explain how the beneficiary would 
distribute his time among the qualifying and non-qualifying tasks assigned to his proposed position. 
In summary, the petitioner failed to provide USC IS with the evidence that is necessary in order to make a 
well-infonned detennination as to whether the beneficiary would be employed in a qualifying managerial or 
executive capacity and whether the petitioner's organizational hierarchy at the time of filing was adequately 
complex to support the beneficiary in such a capacity. Accordingly, in light of the deficiencies catalogued 
above, the AAO finds that the petition does not warrant approval. 
Additionally, while not previously addressed in the director's decision, the AAO finds that the record is 
unclear as to whether or not 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)(1)(C) of the Act, 8 U.S.C. § l153(b)(l)(C); see also 8 C.F.R. § 204.50)(2) (providing definitions of 
the tenns "affiliate" and "subsidiary"). 
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; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Assoc. Comm. 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. 
In the present matter, the petitioner stated that the beneficiary's foreign and proposed U.S. employers are 
"affiliated companies under the broad umbrella of and that the two entities are therefore 
commonly owned. However, looking to the record the evidence indicates that the beneficiary's foreign 
employer- -Is one of three owners who jointly own the petitioning entity in equal 
shares, each entity owning 32.730% of the petitioner's stock as shown in Schedule G, Part I of the petitioner's 
2010 corporate tax return. While the petitioner also provided a U.S. Securities and Exchange Commission 
Fonn ·20-F listing ownership interests in its various subsidiaries and in other entities, 
including the petitioner, the record lacks evidence to show that the petitioner and are 
similarly owned and.controlled, as the petitioner claims. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 
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22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
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.68) 
(9th Cir. 2003); see also So/lane 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 wjth the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.