dismissed EB-1C Case: Business Management

DATE: DEC 0 8 2012 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Securit)' 
U. S. CitiLenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd 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 Porm 1-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request can be found at 8 C.P.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. 
Thank you, 
j Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
wn'w.uscis.go\' 
Page 2 
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 Georgia corporation that seeks to employ the beneficiary in the United States as its 
president/managing director. 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. § IIS3(b)(I)(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated December 16, 2010, which contained 
relevant information pertaining, in part, to the beneficiary's employment with the foreign and U.S. entities, 
respectively. The petitioner also provided evidence of corporate and financial documentation pertaining to 
the beneficiary's foreign and U.S. employers. 
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 March 16, 20 II informing the petitioner of 
various evidentiary deficiencies. The director instructed the petitioner to provide evidence of its qualifying 
relationship with the beneficiary's employer. Additionally, the director requested more detailed job 
descriptions pertaining to the beneficiary's foreign and proposed employment. The petitioner was asked to 
list the beneficiary's job duties and to indicate what percentage of time he allocated and would allocate to 
each ofthe listed tasks. 
Although the petitioner responded to the RFE, the response addressed only the qualifYing relationship issue. 
Specifically, the petitioner's prior counsel asked the director to review various documents that were 
previously submitted in support of the Form 1-140. Counsel specifically listed the petitioner's articles of 
incorporation, stock certificate, and tax returns and the foreign entity's registration certificate, business 
profile, tax returns, and balance sheet as evidence of the petitioner's qualifYing relationship with the 
beneficiary's employer abroad. The petitioner did not provide any supplemental information pertaining to 
the beneficiary's employment abroad and in the United States, nor did the petitioner address the matter of the 
beneficiary's employment with either entity in any way. 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)(14). 
After reviewing the petitioner's response, the director concluded that the petitioner failed to demonstrate that 
I) the beneficiary was employed abroad in a qualifying managerial or executive capacity; 2) the beneficiary 
would be employed in the United States in a qualifYing managerial or executive capacity; or 3) the petitioner 
has a qualifying relationship with the beneficiary's U.S. foreign employer. The director therefore issued a 
decision dated May 16, 2011 denying the petition. 
On appeal, the petitioner's prior counsel disputed the director's decision, asserting that the RFE did not 
address the beneficiary'S employment capacity and further contending that sufficient evidence was submitted 
to establish the existence of an affiliate relationship between the petitioner and the beneficiary's employer 
abroad. 
Section 203(b) of the Act states in pertinent part: 
Page 3 
(I) 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 subpara/,>raph 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 I 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 tile 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. 
A thorough review of the record indicates that counsel's assertions are not factually correct and are therefore 
not persuasive in overcoming the grounds for denial. Although counsel provided a photocopy of an RFE that 
somewhat resembles the one issued to the petitioner, the photocopy that counsel provided omits a large 
portion of the original RFE, which included express instructions for the petitioner to provide supplemental 
job descriptions pertaining to the beneficiary'S foreign and proposed employment as well as specific time 
allocations indicating the percentage of time the beneficiary spent performing each duty assigned to him 
during his employment abroad as well as the time he would allocate to the duties of his proposed 
employment with the U.S. entity. Counsel's mere submission of a partially photocopied RFE is not 
sufficient to dispute the director's findings, which are based in the original RFE that is part of the current 
record. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N 
Dec. 533, 534 (ElA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503, 506 (BIA 1980). 
As the petitioner failed to address the director's findings regarding the beneficiary's managerial or executive 
employment capacity with the foreign and U.S. entities, the AAO cannot conclude that sufficient evidence 
has been provided to demonstrate that the beneficiary was employed abroad and would be employed in the 
United States in a qualifying managerial or executive capacity. In light of these two adverse findings, the 
instant petition cannot be approved. 
The other issue in this proceeding is whether the petitioner has a qualifying relationship with the entity that 
employed the beneficiary abroad. To establish a "qualifying relationship" under the Act and the regulations, 
Page 4 
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)(l)(C) of the Act, 8 U.S.c. § 1153(b)(I)(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 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 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. 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 determine 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 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 a/Siemens Medical Systems, Inc., 19 I&N Dec. 362. Without full 
disclosure of all relevant documents, USCIS is unable to determine the elements of ownership and control. 
As indicated above, the director addressed the issue of ownership in the RFE when he instructed the 
petitioner to provide evidence showing that the petitioner and the beneficiary's foreign employer are 
commonly owned. Rather than providing additional evidence in the response, counsel asserted that sufficient 
evidence had been originally submitted in support of the Form 1-140 and asked the director to refer to 
specific exhibits, which he found to corroborate the petitioner's claimed affiliate relationship with the 
beneficiary's foreign employer. Counsel reasserted that same claim on appeal. However, a review of the 
record does not show that sufficient evidence of the foreign entity's ownership was provided in support of 
the petition. Although the foreign entity's registration certificate named the beneficiary as the employer, the 
specific extent of his ownership interest, if any, was not provided in that document or in any of the other 
documents that were submitted in support of the petition. 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 Craft of California, 14 I&N Dec. 190 (Reg. 
Comm.1972)). 
The AAO finds that the petitioner did not provide sufticient documentation to establish who owns the 
petitioning entity. Without this information, the AAO cannot conclude that the petitioner and the foreign 
entity are similarly owned. Therefore, the AAO finds that the petitioner has titiled to provide sufticient 
evidence to show the existence of a qualifying relationship. On the basis of this additional 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.