dismissed EB-1C Case: Business Technology Consulting

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prevent clearly unw arrant& 
invasion of personal privacy 
P'uBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N. W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: Office: TEXAS SERVICE CENTER Date: y~ ZOD6 
SRC 04 108 52959 
IN RE: 
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. tj 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
obert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based visa petition. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of Florida in March 2001. It provides business 
technology consulting services. It seeks to employ the beneficiary as its chief financial officer and director of 
consulting. 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. 
9 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition on May 24, 2005, determining that the petitioner had not established a 
qualifLing relationship between the U.S. company and the beneficiary's foreign employer. 
On appeal, counsel for the petitioner references Citizenship and Immigration Services (CIS) prior approvals 
of the beneficiary's L-1A intracompany transferee classification and concludes that CIS has previously 
determined that a qualifying relationship existed between the petitioner and the beneficiary's foreign 
employer. Counsel contends that the petitioner enjoys an affiliate relationship with the beneficiary's foreign 
employer and cites three cases in support of her conclusion that the petitioner and the beneficiary's foreign 
employer are affiliated as defined in the regulatory definition. 
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 the h, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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) 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 that indicates that the alien is to be employed in the United States in a managerial or executive 
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capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
0 204.5ti)(5). 
The issue in this proceeding is whether the petitioner is affiliated with the beneficiary's foreign employer. In 
order to qualify for thls visa classification, the petitioner must establish that a qualifjmg relationship exists 
between the United States and foreign entities in that the petitioning company is the same employer or an affiliate 
or subsidiary of the foreign entity. 
The regulation at 8 C.F.R. 5 204.56)(2) states in pertinent part: 
Afiliate means: 
(A) One of two subsidiaries both of whlch are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of inhviduals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
Multinational means that the qualifirlng 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 facts in this matter are not in dispute. The petitioner states that the beneficiary owns 25 percent of the 
petitioner, the beneficiary's brother owns 30 percent of the petitioner, a third individual owns 25 percent of 
the petitioner, and a fourth individual owns 20 percent of the petitioner. Counsel observes that the beneficiary 
and his brother together own a majority interest in the petitioner, that the beneficiary and his brother hold two 
of the three officer's positions for the petitioner, and that the beneficiary and his brother control the petitioner. 
The petitioner also states that the beneficiary owns 40 percent of the foreign entity, his brother owns 26 
percent of the foreign entity, two individuals each own 15 percent of the foreign entity, and two individuals 
each own 2 percent of the foreign entity. Counsel observes that the beneficiary is the director general of the 
foreign entity and that the beneficiary and his brother control the foreign entity. 
The director determined that the ownership and control of both the petitioner and the foreign entity did not 
satisfy the criteria set out in the definition of an affiliate. The director specifically determined that the same 
group of individuals did not own and control both the petitioner and the foreign entity. 
On appeal, counsel for the petitioner disagrees with the director's interpretation of Part B of the definition of 
affiliate. Counsel cites: (1) Matter of Tessel, Inc., 17 I&N Dec. 63 1 (Acting Assoc. Comm. 1981) wherein the 
beneficiary owned 93 percent of the foreign entity and 60 percent of the petitioner; (2) Matter of Chartier, 
16 I&N Dec. 284 (BIA 1977) wherein the BIA found that "the Service itself has consistently interpreted 
section 101(a)(15)(L) generously, so as to facilitate intracompany transfers;" and (3) Sun Moon Star 
Advanced Power, Inc. v. Chappel, 773 F. Supp. 1373 (N.D. Cal 1990), wherein the Court found that two 
companies may be affiliated even though they are not owned by the exact same individuals. Counsel asserts 
that the adjudicating officers who approved the beneficiary's eligbility as an intracompany transferee, the 
cited BIA decisions, the cited federal court decision, and Congressional intent support the position that the 
petitioner in this matter and the foreign entity are affiliates. 
Counsel's assertion is not persuasive. First, Matter of Tessel is not on point. The petitioner does not claim 
and the record does not substantiate that one individual owns a majority interest in both the petitioner and the 
foreign entity. Counsel's assertion that Sun Moon Star Advanced Power, Inc. v. Chappel, is analogous to the 
matter at hand is also not persuasive. In the Sun Moon Star decision, the Immigration and Naturalization 
Service (now CIS) refused to recognize the indirect ownership of the petitioner by three brothers, who held 
shares of the company as individuals through a holding company. The decision further noted that the same 
group of individuals did not own the two claimed companies. The court found that the Immigration and 
Naturalization Service decision was inconsistent with previous interpretations of the term "affiliate" and 
contrary to congressional intent because the decision did not recognize indirect ownership. After the 
enactment of the Immigration Act of 1990, the Immigration and Naturalization Service amended the 
regulations so that the current definition of "subsidiary" recognizes indirect ownership. See 56 Fed. Reg. 
61 1 1 1, 61 128 (Dec. 2, 199 1). Accordingly, the basis for the court's decision has been incorporated into the 
regulations. However, despite the amended regulation and the decision in Sun Moon Star, neither legacy 
Immigration and Naturalization Service nor CIS has ever accepted a random combination of individual 
shareholders as a single entity, so that the group may claim majority ownership, unless the group members 
have been shown to be legally bound together as a unit within the company by voting agreements or proxies. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
In this matter four individuals own the U.S. entity and six individuals own the foreign entity and in neither 
instance does one individual own a majority interest. Absent documentary evidence such as voting proxies or 
agreements to vote in concert so as to establish a controlling interest, the petitioner has not established that the 
same legal entity or individuals control both entities. Thus, the companies are not affiliates as both 
companies are not owned and controlled by the same individuals. Based on the evidence submitted, it is 
concluded that the petitioner has not established that a qualifying relationship exists between the U.S. and 
foreign organizations. Although counsel implies that the familial relationship between two brothers is 
sufficient to establish control of both entities, a familial relationship does not constitute a qualifLing 
relationship under the regulations. Again, the record does not contain any evidence that the two brothers are 
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legally bound to vote in concert. The petitioner has not established a qualifying relationship with the 
beneficiary's foreign employer. For this reason, the petition may not be approved. 
The AAO acknowledges that CIS approved other petitions that had been previously filed on behalf of the 
beneficiary. With regard to the similarity of the eligibility criteria, the AAO acknowledges that both the 
immigrant and nonimmigrant visa classifications rely on similar definitions of qualikng 
relationships/organization. See 8 C.F.R. $ 204.5(j)(2) and 8 C.F.R. $ 214.2(1)(l)(ii). Although the regulatory 
definitions are similar, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just these definitions. There are significant differences between the nonirnmigrant visa 
classification, which allows an alien to enter the United States temporarily for no more than seven years, and 
an immigrant visa petition, which permits an alien to apply for permanent residence in the United States and, 
if granted, ultimately apply for naturalization as a United States citizen. CJ: $9 204 and 214 of the Act, 
8 U.S.C. $$ 1154 and 1184; see also $316 of the Act, 8 U.S.C. $ 1427. 
In general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant petitions. Accordingly, many Form 1-140 immigrant petitions are denied after CIS 
approves prior nonimmigrant Form 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25 (D.D.C. 2003); 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). Because CIS spends less time reviewing 
Form 1-129 nonimmigrant petitions than Form 1-140 immigrant petitions, some nonimmigrant L-1A petitions 
are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. 
$ 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend an L-1A petition's 
validity). 
Moreover 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. The approval of a nonimmigrant petition does not 
guarantee that CIS will approve an immigrant petition filed on behalf of the same beneficiary. As the evidence 
submitted with this petition does not establish eligibility for the benefit sought, the director was justified in 
departing fi-om previous nonimmigrant approvals by denylng the immigrant petition. 
In addition, if the previous nonimmigrant petitions were approved based on the same unsupported 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 prior approvals 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 CIS 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). 
Further, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonirnmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
Page 6 
2001), cert. denied, 122 S.Ct. 51 (2001). The petitioner has not provided evidence or argument on appeal 
sufficient to overcome the director's decision. 
Finally, as the AAO observed above, the director was justified in departing from the previous nonimrnigrant 
approvals in this matter; as such, the director should review the previous nonimmigrant approvals for 
revocation pursuant to 8 C.F.R. $ 2 14.2(1)(9)(iii). 
Beyond the decision of the director, the petitioner did not establish that the beneficiary would be employed in 
a managerial or executive capacity for the United States petitioner. See $$ 101 (a)(44)(A) and (B). The 
petitioner indicated that the beneficiary's duties as chief financial officer would include: 
Responsib[ility] for strategic planning of financials & for the investments of the 
organization & their viability. 
Control cash flow. 
Manage administrative personnel. 
Responsib[ility] for accounting & managing of payables & receivables. 
The petitioner further indicated that the beneficiary's duties as director of consulting would include: 
Responsib[ility] for strategic planning of business area, including short & long-term 
business plan, implementation & on-going control. 
Responsib[ility] for planning & managing marketing plan for Peoplesoft consulting. 
Manage consultants & consulting teams. 
Responsib[ility] for development of projects & delivery, including scope, 
organization, deliverables, roles, project plans, staffing & contracts. 
Manage training budget & business area bottom line as well as results. 
Manage partner relationships. 
The petitioner provided three Internal Revenue Service (IRS) Forms W-2, Wage and Tax Statement for 2004, 
the year in which the petition was filed. The petitioner issued an IRS Form W-2 to the beneficiary in the 
amount of $94,850.62, to the beneficiary's brother in the amount of $17,758.53, and to a third individual in 
the amount of $8,945.38. The petitioner indicated that the beneficiary's brother held a bachelor's degree in 
information technology and that the third individual served as a part-time administrative assistant. The 
petitioner stated that it employed numerous consultants who worked on behalf of the petitioner but were 
employed in Mexico. 
The AAO determines that the description of the beneficiary's duties for the petitioner is general and does not 
establish that the beneficiary spent the majority of his time performing managerial or executive duties. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1103. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question in this 
case: What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise. Neither has the petitioner provided evidence that it has continuously employed individuals 
subordinate to the beneficiary that hold managerial, supervisory, or professional positions. 
Moreover, the record does not substantiate that the beneficiary was relieved of performing the daily 
operational tasks associated with the petitioner's consulting business. Although the petitioner indicates that it 
employed consultants in Mexico, the petitioner has not explained the necessity of the beneficiary's 
employment in the United States to supervise these individuals. An employee who primarily performs the 
tasks necessary to produce a product or to provide services is not considered to be employed in a managerial 
or executive capacity. Matter of Church Scientology International, 19 I&N Dec. at 604. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N Dec. 15 8, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner has not established that the beneficiary's position with the United States entity will be primarily 
managerial or executive. For this additional reason, the petition will not be approved. 
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), afyd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.