dismissed EB-1C Case: Clothing Retail And Distribution

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLlC COPY 
identifying dats &leteel to 
prevent chly fawarranted 
invmim of privacy 
U. S. Citizenship 
and Immigration 
A4 
Office: TEXAS SERVICE CENTER 
 Date: DEC 2 7 lm 
SRC 06 039 50736 
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. f~ 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. 
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I ,-' 
/ A- - 62- 
RO~ f*. Wlernann, Chief 
Administrative Appeals Office 
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 claiming to be engaged in the distribution and retail of various 
clothing. It seeks to employ the beneficiary as its 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)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner failed to establish that it has a qualifying relationship with the beneficiary's 
foreign employer and denied the petition. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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 Iabor 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 as claimed. 
The regulation at 8 C.F.R. 3 204.56)(2) states in pertinent part: 
AfiIiaate 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 provided a statement dated June 2, 2005 in which it stated that it 
is a wholly owned subsidiary of Ramark Industria e Comercio, Ltda., the beneficiary's foreign employer, 
located in Brazil. In support of this claim the petitioner provided the following documentation: 
1. 
 The petitioner's Articles of Incorporation of which Article 111 states that the petitioner is 
authorized to issue 5,000 shares at a par value of $1 .OO per share. 
2. 
 Documentation verifying the filing of the petitioner's Articles of Incorporation indicating 
that the petitioner was incorporated in the State of Florida on July 27,2001. 
3. 
 The petitioner's federal tax return for 2004 with all of the attached schedules. 
4. 
 Stock certificate No. 1 issued by the petitioner to Ramark Industria e Comercio, Ltda. 
showing that 5,000 shares of the petitioner's stock were issued on September 3,2001. 
On December 8,2005, the director issued a notice of intent to deny (NOID) based on a discrepancy observed 
in the petitioner's 2004 tax return, which caste doubt on the petitioner's claimed ownership. Namely, the 
director noted that Schedule E of the petitioner's submitted tax return shows that the beneficiary, rather than 
the beneficiary's foreign employer, is the owner of the petitioner's issued stock. The director deemed this to 
be a significant inconsistency with the petitioner's original ownership claim and instructed the petitioner to 
provide further documentation reconciling the apparent conflict. 
In response, the petitioner provided a letter dated March 3, 2005 claiming that Schedule E of the 2004 tax 
return was filled out in error and that the petitioner has no paid officers. The petitioner also provided the 
following documentation: 
1. 
 Another copy of the petitioner's Articles of Incorporation and stock certificate No. 1 
reiterating the information discussed in Nos. 1 and 4 above, respectively. 
2. 
 A Windows screen in the Portuguese language.' 
3. 
 The foreign entity's wire transfer request and its English translation indicating that 
sought to transfer $4,500 to the U.S. petitioner. The 
request notice is dated November 13,2001. 
4. 
 The petitioner's transaction receipt showing that two deposits were made into the 
petitioner's bank accounts on November 13, 2001. The first sum was for $2,500 and the 
second sum was for $4,500. 
5. 
 Minutes of meeting dated January 9, 2002 identifying the petitioner as the wholly owned 
subsidiary of Ramark Industna e Comercio, Ltda. 
6. 
 Minutes of the petitioner's board meetings dated Januarv 6, 2004, Januarv 5. 2005. and 
parent company in each set of minutes. 
7. 
 The petitioner's stock ledger indicating that a single stock certificate (certificate No. 1) 
was issued in the amount of 5,000 shares, which were transferred to /- 
. The second page of the ledger indicates that the stock certificate was 
issued on September 3,2001 and indicated that the value of the issued stock was $5,000. 
8. 
 The petitioner's altered 2004 federal tax return in which Schedule E is left blank. 
On March 13, 2006, the director denied the petition based on the conclusion that the petitioner provided 
inconsistent documentation to support the claim regarding its ownership. The director specifically 
commented on Schedule E of the petitioner's initially submitted 2004 tax return in which the beneficiary was 
named as the owner. The director also commented on the petitioner's submission of the altered 2004 tax 
return and noted that the petitioner failed to provide evidence of its purported request for a certified copy of 
the corrected tax return. 
On appeal, counsel explains that the information initially provided in Schedule E of the petitioner's 2004 tax 
return was the result of an error made by a newly hired employee who filled out the Form 1 120. In support of 
this claim, counsel refers to the certified amended tax return submitted by the petitioner on appeal. 
While the newly submitted documentation addresses the single discrepancy cited in the director's denial, the 
record shows additional discrepancies, which preclude a favorable finding. Namely, the record contains 
numerous documents showing that the petitioner was authorized and did in fact issue 5000 shares of its stock. 
Both the stock ledger and Article I11 of the petitioner's Articles of Incorporation indicate that the par value of 
the petitioner's stock is $1.00 per share. Accordingly, the issuance of 5,000 shares should net $5,000. 
However, Schedule L, Item 22(b) of the tax return in question indicates that the petitioner received only $500 
in exchange for its issued stock. Furthermore, despite the information provided in the petitioner's stock 
I 
 Because the petitioner failed to submit a certified translation of the foreign Windows screen, the AAO cannot 
determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence 
is not probative and will not be accorded any weight in this proceeding. 
certificate and stock ledger, both of which indicate that 5,000 shares of stock were issued to .- 
the record shows that the purported parent entity transferred a total of $7,000 to the 
petitioner. The amount transferred is inconsistent with the amount that is claimed to represent the par value 
of petitioner's stock. 
Finally, the petitioner's stock ledger and stock certificate both indicate that the stock was transferred to the 
foreign entity on September 3, 200 1, which is two months prior to the foreign entity's transfer of $7,000 to the 
U.S. petitioner's bank account. In light of the discrepancy between the value of the shares transferred and the 
actual amount transferred as well as the discrepancy between the date of stock issuance and the date of the 
fund transfer, the AAO cannot conclude that the $7,000 transfer was used for the purpose of purchasing the 
petitioner's stock. It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). In the instant matter, the petitioner neither aclcnowledges nor provides 
documentation to resolve these considerable inconsistencies. 
Accordingly, the director improperly concluded that a qualifying relationship undoubtedly existed from the 
time of the petitioner's incorporation until 2003. To the contrary, the documentation submitted by the 
petitioner is inconsistent with regard to the value of the petitioner's stock and the amount of funds the 
petitioner actually received in exchange therefore. 
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 (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. Based on the documentation provided, the AAO 
cannot conclude with any degree of certainty that the purported parent entity paid for 5,000 shares of the 
petitioner's stock as claimed. Therefore, the petitioner has failed to establish the existence of a qualifying 
relationship with the beneficiary's foreign employer. 
Furthermore, the record supports a finding of ineligbility based on additional grounds that were not 
previously addressed in the director's decision. 
More specifically, 8 C.F.R. § 204.5Cj)(3)(i)(A) states that the petitioner must 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 filing the Form 1-140. Similarly, 8 C.F.R. $ 204.56)(5) requires the submission of a job offer, which 
should include a detailed account of the duties to be performed by the beneficiary in hisher position with the 
U.S. petitioner. In the instant matter, neither the description of the beneficiary's foreign position nor the 
description of her prospective position with the U.S. petitioner clearly identify any of the duties performed 
abroad or duties she would perform in the United States. Reciting the beneficiary's vague job responsibilities 
or broadly-cast business objectives is not sufficient. The actual duties themselves will reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), aff, 905 F.2d 
41 (2d. Cir. 1990). As the petitioner has failed to provide this required information, the AAO cannot 
Page 6 
determine whether the beneficiary was employed in a qualifying capacity abroad or whether the petitioner 
would employ her in a qualifying capacity in the United States. 
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), afjd, 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 in the above 
paragraph, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
229 F. Supp. 2d at 1043, aff 345 F.3d 683. 
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.