dismissed EB-1C Case: Car Wash Franchising

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
pUBIJC copy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 08 246 53674 
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. 5 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
U Perry Rhew 
Chief, Administrative Appeals Office 
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 Florida corporation engaged in the franchising of car wash operations. The petitioner seeks 
to employ the beneficiary as its Chief Operating Officer. 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. $ 11 53(b)(l)(C), as a multinational executive or manager. The director 
denied the petition based on two independent grounds of ineligibility: 1) the petitioner failed to establish that 
it has a qualifying relationship with the beneficiary's foreign employer; and 2) the petitioner failed to establish 
its ability to pay the beneficiary's proffered wage. 
On appeal, counsel disputes the director's conclusions and submits a brief along with copies of previously 
submitted documentation in an effort to establish the petitioner's eligibility. 
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 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)(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 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 in this proceeding is whether the petitioner has a qualifying relationship with a foreign entity. 
The regulation at 8 C.F.R. tj 204.5(')(2) states in pertinent part: 
Afjliate 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 letter dated July 28, 2008 in which it claimed that the 
beneficiary's employer in Mexico and the petitioner itself are affiliates. In support of this claim, the petitioner 
provided the following documentation: 
1. A chart breaking down the ownership of the U.S. and foreign entities. The chart shows the 
and indirect ownership, his ownership interest is shown to total 52%. The chart shows that 
total adds up to only 99.5%. 
The other half of the chart tlertains to an Argentinean entitv. whose ownershitl is summed u , z 
up as follows:owing 
being distributed among a group of five 
(10%),(%),2.5%), and 
(I%).~ 
2. The petitioner's articles of organization showing that the petitioner was organized in the 
State of Florida on February 22, 2002. 
1 It is noted that the chart refers to the enti- as both a corporation and a limited liability company, which 
is an inconsistency, as the entity cannot be formed as both a corporation and an LLC. Based on the supporting evidence 
on record, it appears that the company was formed as a corporation. 
Petitioner's exhibit No. IS includes a translation of an extract, which indicates that is an entity that is 
domiciled in Argentina, thus indicating that this is not the beneficiary's foreign employer that was discussed in the 
petitioner's support letter. 
Page 4 
3. 
 A document entitled "Restatement of Operating Agreement of [the petitioner]," executed on 
December 6. 2004. The Certificate Dane includes signature from the follow in^ members: 
entities and individuals who signed on the Certificate page of the document were not listed 
as members of the petitioner in the chart discussed in No. 1 above, thus creating an 
inconsistency between the chart and the document discussed herein. 
4. 
 Stock certificate No. 1 issued by the petitioner to identifying the latter as a 
65% participant of the petitioning entity. 
5. 
 articles of incorporation date stamped February 19, 2002, its minutes of 
organizational meeting for February 19, 2002, and stock certificate No. 1 
issued to 
 and. in the amount of 30,000 shares. 
6. 
 A transfer certificate dated May 15, 2006 in whicmnd transferred its ownership 
interest in as follows: 80% to - and 20% to 
and transfer of interest is restated in a separate notarized document. w 
issued stock certificate Nos. 2 and 3, dated May 15, 2006, conveying 24,000 and 6,000 of 
In a notice of intent to deny (NOID) dated August 21, 2009, the director informed the petitioner of various 
shortfalls that would preclude an approval of the petition unless the petitioner submitted sufficient evidence 
and/or information to overcome the deficiencies. Among the most notable deficiencies was the lack of 
- 
evidence establishing a qualifying relationship between the petitioner and a 
Mexican entity. 
In response, the petitioner submitted a letter dated September 17, 2009 in which the petitioner indicated that 
the beneficiary was employed by during the relevant three-year time period. See 8 C.F.R. 
4 204.5(j)(3)(i)(B). The petitioner also provided a list of supporting documents, including a chart breaking 
down the ownership of the beneficiary's U.S. and foreign employers. The chart indicates thatl and = 
is the common entity with an ownership interest in ., and 
the petitioner. shown as owner shares. With regard to the U.S. 
and owning 50% and 
 owning 40% of - 
LLC, which is shown as the direct owner of 65% of the petitioner's shares. With regard to the ownership of 
the beneficiary's foreign employer, the chart shows that directly owns 61.844% of the Mexican 
entity. The petitioner also resubmitted the exhibits described in Nos. 2-6 above and provided a translated 
legai docum&, which listed as owner of 4,999 shares and - 
. as owner of 1 share of the Mexican entity. That document was accompanied 
by a translation of the unanimous resolutions issued by the Mexican entity on December 30, 2003. The latter 
document reiterated the initial ownership distribution and showed that the consideration was $10 per share 
with a total amount of $50,000 paid for the initial issuance. 
Among the resolutions listed in the above document was the Mexican entity's decision to increase its social 
capital, which resulted in an increase of the total shares outstanding from 50,000 to 160,000 shares. This 
change resulted in a decrease in the overall percentage of wnership from a 99.9% to a 
Page 5 
61 344% interest. The remainder of the issued shares was distributed as follows:- 
was issued 15.468% of the shares; the beneficiary and - were each issued 7.2 19% for a 
total of 14.438%, was issued 5.156%, and and = 
were each issued 1.03 1% for a total of 3.093%. 
In a decision dated October 5, 2009, the director denied the petition, concluding that the petitioner failed to 
submit sufficient evidence to establish that a qualifying relationship exists between the beneficiary's U.S. and 
foreign employers. 
On appeal, counsel submits a brief statement dated December 2, 2009, claiming that has 
controlling interest in the Mexican entity by virtue of owning 4,999 shares out of 5,000 shares outstanding. 
However, counsel's assertion indicates that he failed to take into account the subsequent list of unanimous 
resolutions that decreased ownership interest. Additionally, counsel's argument includes an 
assessment of ownership interests in the U.S. and Argentinean entities. However, as the 
beneficiary was not employed by the Argentinean entity, whether or not that entity shares common ownership 
and control with the petitioner is entirely irrelevant. Given the petitioner's claim and supporting evidence 
indicating that the beneficiary was employed abroad by the Mexican entity, the petitioner has the burden of 
establishing that the Mexican and U.S. entities share the necessary degree of common ownership and control 
sufficient to establish a qualifying relationship. 
In the present matter, the petitioner has not met its burden. The record shows that while 
maintains a 52% interest in the U.S. entitv by virtue of his direct and indirect ownership of - - 
maintains only a 49.4752% ownership interest in the Mexican entity, whichmeans that he has a 
majority interest only in the petitioning entity, not in the foreign 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 the 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 (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 establishment, management, and operations of an 
entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
In the present matter, the above analysis establishes that the beneficiary's prospective and foreign employers 
do not share a sufficient degree of common ownership and control. As stated above, while one individual 
owns a majority interest in the U.S. entity, that same individual owns less than a majority interest in the 
foreign entity. Therefore, the two entities do not have a qualifying relationship. As the petitioner has failed 
to meet the requirement specified in 8 C.F.R. 5 204.5(j)(3)(i)(C), this petition cannot be approved. 
The second issue in this proceeding is whether the petitioner has established its ability to pay the beneficiary's 
proffered wage. The regulation at 8 C.F.R. 5 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the present matter, the director concluded that the petitioner failed to establish the ability to pay the 
proffered wage, relying on the petitioner's 2006 and 2007 tax returns to make that determination. 
On appeal, counsel objects to the issue of ability to pay as a basis for denial, pointing out that the director did 
not note this deficiency in the NOID. While the AAO acknowledges the petitioner's preference to having had 
the opportunity to respond to the deficiency prior to the issuance of the denial notice, the director was under 
no legal obligation to cite all deficiencies in the NOID nor is there any legal provision for a mandatory 
issuance of a NOID or request for additional evidence (RFE). Rather, 8 C.F.R. 5 103.2(b)(8) allows the 
director the discretion to determine when to issue a NOID or RFE and, if the director decides to issue either of 
these notices, he has the discretionary authority to determine the subject matter that is to be addressed. The 
director is not precluded from basing the denial on an issue that had not been addressed in a previously issued 
NOID or RFE. Furthermore, it is not clear what remedy would be appropriate beyond the appeal process 
itself. In the present matter, the record has been supplemented with an appellate brief in which counsel refers 
to the petitioner's 2006 second quarterly wage report showing that the beneficiary was compensated 
$28,004.10. However, 8 C.F.R. 5 204.5(g)(2) clearly states that the petitioner must demonstrate its ability to 
pay the beneficiary's proffered wage at the time the priority date is established. The priority date in this case 
is August 11, 2008. While the AAO acknowledges the limited relevance of the director's comments regarding 
the petitioner's 2006 and 2007 tax returns, the record shows that the petitioner did not provide any relevant 
documents to establish its ability to pay as of the date the Form 1-140 was filed. The beneficiary's 
compensation at any time prior to the filing of the petition is irrelevant in establishing whether the petitioner 
meets the requirements of 8 C.F.R. 5 204.5(g)(2). 
Additionally, counsel cites Matter of Sonegawa, 12 I&N Dec. 612 (BIA 1967), indicating that USCIS has, in 
the past, considered factors other than the petitioner's tax returns, including reasonable expectations of 
increased business and future profits, in determining the petitioner's ability to pay. While the AAO 
acknowledges that 8 C.F.R. fj 204.5(g)(2) allows USCIS the discretion to consider additional material "in 
appropriate cases,'' the petitioner in this case has not demonstrated that the documentation expressly specified in 
the regulation would have been inapplicable or would have otherwise painted an inaccurate financial picture of 
the petitioner. Moreover, counsel does not explain how the petitioner in the instant matter is like the petitioner in 
Matter of Sonegawa such that it warrants similar treatment resulting in the AAO considering factors that fall 
outside of a petitioner's net income and net current assets. 
In summary, the record is not adequately supplemented with up-to-date documentation of the petitioner's ability 
to pay the beneficiary's proffered wage at the time the Form 1-140 was filed. 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)). As the petitioner has not provided a 2008 tax return or 
evidence that the beneficiary was compensated the proffered wage at the time the petition was filed, the AAO 
cannot conclude that the petitioner established its ability to pay. 
Page 7 
Additionally, beyond the decision of the director, the AAO has conducted a comprehensive review of the 
record and found further deficiencies that render the petitioner ineligible for the immigration benefit sought. 
First, the petitioner is required to provide descriptions of the beneficiary's foreign and proposed employment. 
With regard to the foreign employment, 8 C.F.R. 5 204.5(j)(3)(i)(B) requires the petitioner to establish that 
the beneficiary was employed abroad in a qualifying managerial or executive position for at least one out of 
the three years prior to his entry to the United States as a nonimmigrant to work for the same employer. With 
regard to the prospective employment with the U.S. petitioner, 8 C.F.R. 5 204.50')(5) requires a detailed 
description of the beneficiary's proposed job duties. In the instant matter, the petitioner responded to the 
NOID with supplemental job descriptions accompanied by percentage breakdowns indicating the time 
attributed to the beneficiary's foreign and proposed duties and responsibilities. However, neither job 
description expressly stated what specific tasks the beneficiary performed during his employment abroad or 
what specific tasks he would perform during his proposed employment in the United States. 
While both job descriptions sufficiently stress the beneficiary's discretionary authority with regard to daily 
operations and his placement in the organization relative to subordinate employees, the information provided 
does not explain the specific tasks the beneficiary performed and would perform on a daily basis that would 
enable him to carry out personnel management and policy-making responsibilities. It is noted that the actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). As the petitioner's job descriptions include very 
few actual tasks and are primarily focused on general job responsibilities, the AAO is unable to determine that 
the beneficiary's foreign and proposed employment has been and would be spent primarily performing tasks 
within a qualifying capacity. 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. 
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), afd 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). Therefore, based on the additional grounds 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. 8 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.