dismissed EB-1C Case: Communications

identifying data deleted to 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
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prevent clearly unwarranted u.S. Citizenship 
invasion of personal privacy 
 and Immigration 
PUBLIC 
COPY 
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MAY 0 1 2009 
FILE: OFFICE: NEBRASKA SERVICE CENTER Date: 
LIN 07 156 51645 
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. $ 1 153(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, as required by 8 C.F.R. 103.5(a)(l)(i). 
+2* L 
John F. Grissom 
d-74 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The director subsequently granted the petitioner's motion to reconsider and affirmed the prior 
adverse decision. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner claims to be a Florida corporation that seeks to employ the beneficiary as its 
presidentlchief executive officer (CEO).' 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. 5 1 153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition based on the conclusion that the petitioner failed to establish that it 
would employ the beneficiary in a managerial or executive capacity. 
On motion, counsel disputed the director's conclusions and submitted a brief addressing the adverse 
findings. 
In his subsequent decision, the director reaffirmed his prior findings, concluding that the record 
failed to establish that the beneficiary would primarily perform duties within a qualifying managerial 
or executive capacity. 
On appeal, counsel submits a brief asserting that the beneficiary's proposed job duties fit the 
statutory definition of executive capacity. A full discussion of the director's findings and counsel's 
responses is provided below. 
Section 203(b) of the Act states in pertinent part: 
(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 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 
1 
 It should be noted that, according to Florida state corporate records, the petitioner's corporate status in 
Florida was "administratively dissolved" on September 14, 2007. Therefore, since the corporation may not 
carry on any business except that necessary to wind up and liquidate its affairs, and the petitioner has not 
taken steps under Florida law to seek reinstatement, the company can no longer be considered a legal entity in 
the United States. See 607.1421, Fla. Stat. (2006). Therefore, this dissolution clearly and unequivocally 
renders the petitioner ineligible for the classification sought and, in fact, renders it subject to automatic 
revocation without prior notice even if the grounds of ineligibility discussed herein had been overcome on 
appeal. See 8 C.F.R. 
 205.1 (a)(3)(iii)(D). 
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 primary issue in this proceeding calls for an analysis of the beneficiary's proffered job duties. 
Specifically, the AAO will examine the record to determine whether the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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 of the 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 hire 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) of the Act, 8 U.S.C. 5 1 101 (a)(44)(B), provides: 
Page 4 . 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) 
 directs the management of the organization or a major component or 
function of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner submitted a letter dated April 30, 2007, claiming that it 
"merged" with Wireless +, Inc. in order to form 3 G Communications, Inc. However, in the context 
of corporations, a merger is defined as follows: 
An amalgamation of two corporations pursuant to statutory provision in which one of 
the corporations survives and the other disappears. The absorption of one company 
by another, the former losing its legal identity, and the latter retaining its own name 
and identity and acquiring assets, liabilities, franchises, and powers of former, and 
absorbed company ceasing to exist as separate business entity. It differs from a 
consolidation wherein all the corporations terminate their existence and become 
parties to a new one. 
Black's Law Dictionary 682 (Abridged 6th Ed. 1991). In the present matter, the record contains two 
stock certificates issued by 3 G Communications, Inc., transferring 500 shares to Wireless +, Inc. 
and another 500 shares to the petitioner, thus indicating that a merger has not in fact taken place. 
Rather, the documentation on record indicates that the petitioner and Wireless +, Inc. engaged in a 
joint business venture to form a third and separate legal entity, i.e., 3 G Communications, Inc. There 
is no indication that the creation of 3 G Communications, Inc. resulted in the termination of the 
petitioner's separate corporate e~istence.~ 
In addition to the above claim, the petitioner's support letter included the following description of the 
beneficiary's proposed employment in the United States: 
[The beneficiary] will establish the goals and policies of the business. He will plan, 
develop, and establish policies and objectives of [the] business organization and the 
overall direction of the company. He will explore new business investments for the 
* While the AAO previously noted that the petitioner's corporate status had been administratively dissolved due to its 
failure to meet annual reporting requirements, there is no evidence of a nexus between the petitioner's administrative 
dissolution and its claimed "merger," which, as discussed above, was merely a joint venture with another company that 
led to the creation of a newly formed entity in which the petitioner had a vested ownership interest. 
parent company. [The beneficiary] will dedicate approximately 70% of his time to 
these executive functions. 
He will review activity reports and financial statements to determine progress and 
status in attaining objectives and revise objectives and plans in accordance with 
current conditions. He will direct and coordinate formulation of financial programs 
to provide funding for new and continuing operations to maximize returns on 
investments, and to increase productivity. [The beneficiary] will dedicate 
approximately 15% of his time [to] performing these functions. 
He will plan the company's marketing campaign. He will devise plans to improve the 
company's image and relations with customers, employees, and the public. [The 
beneficiaryj dedicates approximately 10% of his time [to] performing these 
functions. 
He will evaluate performance of executives for compliance with established policies 
and objectives of the company and contributions in attaining objectives. When 
necessary, he hiredfires company personnel. [The beneficiary] dedicates 
approximately 5% of his time [tolperforming these duties. 
The petitioner stated that the primary portion of the beneficiary's time is spent performing executive- 
level tasks and further claimed that it is staffed with support personnel who will relieve the 
beneficiary from having to primarily perform non-qualifying tasks. Among the supporting 
documents, the petitioner has provided a list of managers and other staff employed at the two 
recently created entities wherein the beneficiary has been named president. It is noted that none of 
the personnel listed in this document is shown as belonging to the petitioner. Rather, the personnel 
is shown as belonging to 3 G Communications, Inc., the company that is jointly owned by the 
petitioner and Wireless +, Inc., and General Growth Development, the subsidiary of 3 G 
Communications, Inc. The petitioner did not provide information describing its own personnel 
structure. 
On July 23, 2007, the director issued a request for additional evidence (WE) instructing the 
petitioner to provide further information about the nature of its retail operation and W-2 statements 
for each of its employees as well as a duty roster or schedule showing each employee's work hours. 
The petitioner was also instructed to provide its organizational chart illustrating its staffing levels 
and the beneficiary's position compared to others within the hierarchy. Lastly, the petitioner was 
asked to expand on the beneficiary's previously provided position description by specifying actual 
tasks to be performed. 
In response, the petitioner provided an organizational chart showing the beneficiary as the head of 
three organizations-the petitioner, 3 G Communications, Inc., and General Growth Development, 
LLC. Although the organizational chart contains a complete list of names and position titles, 
illustrating what appears to be a fully-staffed organization, further analysis of the document shows 
that, other than the beneficiary himself, none of the employees are shown as being employed by the 
petitioning entity. Rather, the support personnel are shown as being employed either by 3 G 
Communications, Inc. or by General Growth Development, LLC. Although the petitioner also 
Page 6 
provided a letter from counsel dated October 10, 2007 in which counsel claimed that the petitioner 
and Wireless +, Inc. "ha[d] begun conduct[ing] business under 3G Communications, Inc.," as 
previously discussed, there is no evidence on record to establish that a merger took place or that the 
petitioner's corporate existence had otherwise been replaced with another corporation. Nor is there 
any evidence that the petitioner has been authorized to conduct its business under a different name. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 
Additionally, it is noted that the petitioner has submitted several 2006 W-2 wage and tax statements, 
all belonging to 3 G Communications, as well as a 2006 first quarterly wage report belonging to 
Wireless +. None of the submitted documents pertained to the petitioner. The petitioner did provide 
an undated document containing a supplemental job description for the beneficiary. However, the 
document expressly stated that the petitioner intended to employ the beneficiary for the purpose of 
managing its U.S. subsidiary. Thus, it appears that the supplemental job description applies to the 
work the beneficiary would perform for the newly created 3 G Communications, not for the 
petitioning entity. The supplemental job description is as follows: 
JThe beneficiary] will establish the goals and policies of the business. For instance, 
he will have to analyze operations to evaluate [the] performance of the company and 
staff in meeting the company's objectives, and to determine areas of potential cost 
reduction, program improvement, or policy change. [He] will be setting the 
objectives towards achieving the development and growth of 3 G Communications, 
Inc[.] by opening additional retail locations and enhancing the customer experience. 
He will establish and executive the strategy that would lead to a successful operation 
while maintaining increased customer satisfaction by implementing the customer 
follow[-]up program to ensure that customer satisfaction and to acquire repeated 
business. [The beneficiary] will also ensure that there is a level of training available 
to all employees including managers and executives through monthly classes for the 
employees at the company headquarters. 
He will plan. develop, and establish policies and obiectives of [the] business 
organization and the overall direction of the company. He will be responsible for 
overseeing operational functions of the company, specifically, sales, marketing, 
finance and administration to be able to maximize investments, and increase 
efficiency. He will also be directing all of the [flinance operations for General 
Growth Development, LLC, [sic] by maintaining efficient cash flow from the Deere 
Run Estate project and ensuring sales projections are met. He will review activity 
reports and financial statements to determine progress and status to maintain 
objectives and revise objectives and plans in accordance with current conditions of 
the operations. He will work closely with the company accountant while performing 
these duties. 
[H]e will be in charge of developing new projects. Therefore, he will explore new 
business investments for the parent company. He will provide immediate direction 
and credibility to new and existing projects encouraging creativity. He will create 
deadlines to meet targeted goals and objectives. He will identify and develop close 
strategic partnerships with customers, and investors, as appropriate. 
The petitioner also stated that 70% of the beneficiary's time would be spent directing and 
coordinating the formulation of financial programs to maximize returns on existing investments and 
to fund additional investments, which would require the beneficiary to work closely with a certified 
public accountant and financial analyst, develop investor relations services, and represent the 
company during investment presentations and in the course of meetings and discussions. 
The petitioner stated that another 15% of the beneficiary's time would be allocated to overseeing the 
company's marketing campaign, which would be jointly developed by the beneficiary, the vice 
president, and the managing director. He would also oversee digital marketing and sales materials as 
well as any plans to improve the company's image with customers, employees, and the public. The 
beneficiary would create relationships with marketing and media vendors and oversee the real estate 
brokers with regard to the Deere Run Estates project undertaken by General Growth Development, 
LLC, the subsidiary of the petitioner's joint venture company. 
Another 10% of the beneficiary's time would be devoted to evaluating the performance of 
executives, work with managers to meet weekly business goals, and ensure that managers are 
providing the employees with the necessary sales training to meet sales goals. The beneficiary 
would also hire and fire when necessary. 
Although the petitioner stated that the remaining 5% of the beneficiary's time would be spent 
"performing these duties," no duties were actually discussed in connection with this portion of the 
beneficiary's time. 
In the most recent decision, dated April 15, 2008, the director summarized the beneficiary's 
previously provided job descriptions, whose contents served as the ultimate basis for the director's 
conclusion. The AAO notes, however, that while the director pointed to the various deficiencies in 
the provided job descriptions, he failed to acknowledge a more relevant flaw that was briefly 
mentioned earlier in this decision. Namely, the record shows that the majority of the documentation 
and information regarding the beneficiary's proposed job duties directly concerned the beneficiary's 
position with a non-petitioning entity. In other words, there is no evidence to show that the 
petitioner is operating or conducting business in its own right or that the beneficiary would perform 
any of the previously cited job duties within the context of the petitioning entity. Rather, it appears 
that the beneficiary's role and associated responsibilities would be carried out in his capacity as an 
employee of 3 G Communications, Inc., a company that is partly owned by the petitioner. While the 
beneficiary's services may ultimately benefit the petitioner in light of its ownership interest in 3 G 
Communications, Inc., it appears that the services to be performed by the beneficiary would go 
directly toward the benefit of the latter company. It is further noted that despite the director's 
express request for further discussion of the petitioner's specific retail operation, i.e., an explanation 
of what namely the petitioner purports to sell, the petitioner failed to provide this relevant 
information. 
On appeal, counsel persistently argues that the beneficiary's proposed employment would consist 
primarily of qualifying job duties. Counsel accuses U.S. Citizenship and Immigration Services 
Page 8 
(USCIS) of overlooking information regarding the real estate arm of the business. However, this 
further shows counsel's apparent lack of awareness that the services the beneficiary intends to 
perform in the United States would not be performed for the petitioning entity, which appears to be 
nothing more than an investor in the companies for whom the beneficiary's services are intended. 
As the evidence of record indicates that the beneficiary would not be providing his services to the 
petitioning entity, but rather to the U.S. subsidiary of the petitioner, the AAO cannot conclude that 
the petitioner would employ the beneficiary in a qualifying managerial or executive capacity. 
That being said, even if the deficiency discussed in above the paragraph were not an issue in the 
present matter, the deficient job description provided by the petitioner would nevertheless warrant an 
adverse conclusion. In examining the executive or managerial capacity of the beneficiary, USCIS 
will look first to the petitioner's description of the job duties. See 8 C.F.R. $ 204.50)(5). 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. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 
(2d. Cir. 1990). In the present matter, the need for a detailed job description was stressed in the 
RFE, where the petitioner was asked to expand on the job description provided initially in support of 
the petition. The mere fact that the director asked for further information clearly indicated that the 
earlier job description lacked the necessary degree of detail. 
In the present matter, the beneficiary's job descriptions consist primarily of broad statements that 
focus on business objectives rather than the specific daily tasks, which would explain the means by 
which the beneficiary intends to meet those objectives. For instance, the petitioner stated that the 
beneficiary will establish goals and policies by analyzing operations to evaluate staff performance. 
While staff performance is clearly key to a successful business operation, the petitioner fails to 
explain how the beneficiary plans to execute performance evaluations of the staff, nor does the 
petitioner define what it means to "analyze operations." The petitioner does not illustrate how the 
analysis will take place or state what specific tasks the beneficiary will undertake on a daily basis. 
Equally unclear is the petitioner's claim that the beneficiary will establish and execute strategy. The 
petitioner has not identified any specific strategies, nor explained the beneficiary's specific role in 
the execution of these unknown strategies. In other words, how would the beneficiary's role in the 
strategy execution differ from the role of subordinate employees? Only by specifying the underlying 
tasks can the petitioner make this crucial distinction, as the actual duties themselves reveal the true 
nature of the employment. Id. At 1 108. 
Next, the petitioner stated that the beneficiary would oversee the company's sales, marketing, 
finance, and administration. However, oversight is not a specific task. Rather, there are most likely 
a number of specific actions the beneficiary would perform in order to ensure oversight over the key 
functions stated above. However, the petitioner does not provide this degree of detail, leaving the 
AAO to question how exactly the beneficiary plans to carry out his oversight responsibilities. 
The AAO further notes that while the petitioner attempted to describe the beneficiary's proposed 
employment with time allocations, this was not done in a sufficiently detailed manner. Rather, the 
petitioner allocated a percentage of time to a group of what it identified as executive functions. 
However, these executive functions were described using general job responsibilities and only a few 
specific tasks were actually mentioned. The petitioner did not enumerate the specific tasks that it 
deemed to be executive, nor did it indicate the percentage of time to be allocated to each specific 
task. More specifically, the petitioner claimed that the beneficiary would direct and coordinate the 
formulation of financial programs. However, the petitioner did not identify specific tasks the 
beneficiary would perform to reach this broad business objective. Although it appears that the 
beneficiary would meet with current and future business investors, the petitioner did not explain how 
this sales-task qualifies as executive. Similarly, the petitioner did not explain how making 
investment presentations and meeting with potential investors qualify as executive tasks. It is noted 
that 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 Dee. 
593, 604 (Comm. 1988). As the petitioner has failed to specify how much of the beneficiary's time 
would be allotted to those job duties that are deemed as non-qualifying, USCIS cannot determine 
whether the primary portion of the beneficiary's time would be spent performing qualifying tasks. 
On appeal, counsel introduces written expert opinions, claiming that such opinions support the 
petitioner's eligibility. However, while the AAO may, in its discretion, use as advisory opinion 
statements submitted as expert testimony, the AAO is not required to accept or may give less weight 
to any opinion that is not in accord with other information or is in any way questionable. Matter of 
Caron International, 19 I&N Dec. 791 (Cornrn. 1988). Here, there is no evidence or indication that 
any of the expert opinions are based on the respective experts' in-depth knowledge of immigration 
law or the specific statutory definitions provided in sections 101(a)(44)(A) and (B) of the Act. 
Therefore, the expert opinions offered on appeal will only be allotted minimal probative value in 
establishing the petitioner's eligibility in this proceeding. 
In general, counsel's objections to the director's findings lack sufficient merit. The core of the 
director's findings was the lack of sufficient detail in describing the beneficiary's proposed 
employment, which allowed for a number of the beneficiary's responsibilities to be interpreted as 
non-qualifying. While counsel argues that the director's interpretation is erroneous, he fails to 
provide further detail regarding the beneficiary's tasks and therefore fails to assist in conveying a 
true understanding of what specific tasks would consume the primary portion of the beneficiary's 
time on a daily basis. As such, counsel has failed to establish that the beneficiary would be 
employed in a qualifying managerial or executive capacity. 
Regardless, based on the AAO's prior finding that the beneficiary intends to remain in the United 
States in order to provide his services to an entity other than the petitioner, this petition cannot be 
approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
First, 8 C.F.R. 5 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing 
business for at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 4 204.5(j)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods andlor 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." In the present matter, the petitioner actually claims to have merged with another entity and to 
have commenced doing business as the newly formed entity. As previously discussed, the petitioner's 
definition of the term "merger" was incorrect and, as shown by the evidence of record, the petitioner did 
not merge with another company.' However, even where an entity maintains its corporate existence, 
doing so is not sufficient to establish that it meets the requirements of 8 C.F.R. fj 204.50)(3)(i)(D). In 
the present matter, while the record contains some sales invoices, two of which show the petitioner's 
business transactions dating back to January and February 2006, respectively, the current Form 1-140 
was filed in May 2007. Therefore, in order to meet the requirements, the petitioner would have to 
establish that it was doing business from the full one-year time period from May 2006 through April 
2007. As the petitioner's latest invoice is dated February 2006, the AAO cannot conclude that the 
petitioner has established that it was doing business in the manner and during the time period 
described above. 
Second, by virtue of the beneficiary's claimed ownership of the U.S. petitioner, it appears more 
likely than not that the beneficiary will not be an "employee" of the United States operation. As 
explained in 8 C.F.R. fj 204.50)(5), the petitioner must establish that the beneficiary will be 
"employed" in an executive or managerial capacity. It is noted that "employer," "employee," and 
"employed" are not specifically defined for purposes of the Act even though these terms are used 
repeatedly in the context of addressing the multinational executive and managerial immigrant 
classification. Section 203(b)(l)(C), 8 U.S.C. 1153(b)(l)(C), requires beneficiaries to have been 
"employed" abroad and to render services to the same "employer" in the United States. Further, section 
101(a)(44), 8 U.S.C. 5 1101(a)(44), defines both managerial and executive capacity as an assignment 
within an organization in which an "employee" performs certain enumerated qualifying duties. Finally, 
the specific definition of "managerial capacity" in section 101(a)(44)(A), 8 U.S.C. fj 1101(a)(44)(A), 
refers repeatedly to the supervision and control of other "employees." Neither the legacy Immigration 
and Naturalization Service nor U.S. Citizenship and Immigration Services (USCIS) has defined the 
terms "employee," "employer," or "employed" by regulation for purposes of the multinational 
executive and managerial immigration classification. See, e.g., 8 C.F.R. fj 204.5 and 8 C.F.R. 
5 214.2(1). Therefore, for purposes of this immigrant classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly 
define the term "employee," courts should conclude "that Congress intended to describe the 
conventional master-servant relationship as understood by common-law agency doctrine." 
Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992) (hereinafter "Darden") 
(quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989)). That definition is as 
follows: 
In determining whether a hired party is an employee under the general common law 
of agency, we consider the hiring party's right to control the manner and means by 
which the product is accomplished. Among the other factors relevant to this inquiry 
are the skill required; the source of the instrumentalities and tools; the location of the 
work; the duration of the relationship between the parties; whether the hiring party 
has the right to assign additional projects to the hired party; the extent of the hired 
party's discretion over when and how long to work; the method of payment; the hired 
3 
See Fn. 1. 
Page 11 
party's role in hiring and paying assistants; whether the work is part of the regular 
business of the hiring party; whether the hiring party is in business; the provision of 
employee benefits; and the tax treatment of the hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 5 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the 
common-law test contains "no shorthand formula or magic phrase that can be applied to find the 
answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor 
being decisive." Darden, 503 U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 
254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational 
manager or executive, when a worker is also a partner, officer, member of a board of directors, or a 
major shareholder, the worker may only be defined as an "employee" if he or she is subject to the 
organization's "control." See Clackamas Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 
449-450 (2003); see also New Compliance Manual at 5 2-III(A)(l)(d). Factors to be addressed in 
determining whether a worker, who is also an owner of the organization, is an employee include: 
a 
 Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's 
work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the 
organization. 
Whether the parties intended that the individual be an employee, as expressed 
in written agreements or contracts. 
a 
 Whether the individual shares in the profits, losses, and liabilities of the 
organization. 
Clackamas, 538 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the 
beneficiary will be an "employee" employed in a managerial or executive capacity. As explained 
above, the petitioner is a corporation, which the petitioner claims is ultimately owned and controlled 
by the beneficiary, who purports to assume a role as the petitioner's principal. There is no evidence 
that anyone other than the beneficiary himself is in a position to exercise any control over the work 
to be performed. As such, it appears the beneficiary would be the employer for all practical 
purposes. He intends to control the organization; set the rules governing his work; and share in all 
profits and losses. 
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. 
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 Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
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.