dismissed EB-1C Case: Computer Services

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvacy 
PUBLIC COPY 
'\ 
-" u.s. Depa.rtment ofHo~eland Security 
u. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR 0 5 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was initially approved by the Director, Texas Service Center. 
After further reviewing the record, the director determined that the petitioner was not eligible for the benefit 
sought. Accordingly, the director properly served the petitioner with a notice of his intention to revoke the 
approval of the preference visa petition, and his reasons therefore. The director ultimately revoked the 
approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner is a Georgia corporation that seeks to employ the beneficiary as its vice president in a computer 
services and repair operation.· Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203 (b)(1 )(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
In support of the Form 1-140, the petitioner submitted corporate, tax, and bank documents. The petitioner did 
not provide a supporting statement describing the beneficiary'S job duties in her proposed position with the 
U.S. entity or in her prior position with the foreign entity. 
Accordingly, the director issued a notice of his intent to deny (NOID) dated December 24, 2008 instructing 
the petitioner to supplement the record with additional evidence and information addressing the beneficiary's 
qualifying employment with the U.S. and foreign entities, the petitioner's qualifying relationship with the 
beneficiary's foreign employer, the foreign entity's continued business activity, and the petitioner's financial 
ability to pay the beneficiary'S proffered wage. 
The petitioner responded by providing job descriptions for the beneficiary's positions with both entities as 
well as organizational charts for each entity. The petitioner also provided corporate documents pertaining to 
both entities and the petitioner's tax documents and business invoices. 
Although the petition was subsequently approved, the director later reexamined the record and determined 
that eligibility had not been adequately established. Accordingly, the director issued a notice dated January 5, 
2010, informing the petitioner of his intent to revoke (NOIR) the approval of the petition. The director 
revisited a number of issues and raised at least one new issue as grounds for the notice. Specifically, the 
director found that the petitioner had not provided sufficient evidence to establish that the beneficiary was and 
would be employed in a qualifying managerial or executive capacity, that the U.S. petitioner and the 
beneficiary'S foreign employer have a qualifying relationship, and that the petitioner had been doing business 
for at least one year prior to filing the petition. 
In response, the petitioner submitted a letter dated January 29, 2010 from counsel, who addressed the issues 
for the intended revocation. The petitioner also submitted additional documentation, including a copy of the 
job descriptions that were previously provided in response to the NO ill, employee wage documents, an 
occupational tax certificate, copies of cashed checks from the petitioner's client, and copies of checks written 
by the petitioner as payment for office space in 2007 and January 2008. 
Upon subsequent review of the record, the director concluded that the petitioner failed to meet certain 
eligibility criteria. Specifically, the director determined that the petitioner failed to establish the following: 
(1) that the beneficiary was employed abroad in a managerial or executive capacity; (2) that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity; (3) that the 
petitioner has a qualifying relationship with the beneficiary's foreign employer; and (4) that the petitioner had 
Page 3 
been doing business for a period of one year prior to filing the instant Form 1-140. The director therefore 
issued a decision dated March 17,2010 revoking the approval of the petition. 
Section 205 of the Act, 8 U.S.c. § 1155, states: "The Secretary of Homeland Security may, at any time, for 
what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter ofHo, 19 I&N Dec. 582,590 (BIA 1988)(citing Matter ofEstime, 19 I&N Dec. 450 (BIA 1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient cause for the 
issuance ofa notice of intent to revoke an immigrant petition. Jd.at 590. 
In the present matter, the petitioner appeals the director's decision disputing the adverse findings. The AAO 
has reviewed the record in its entirety and finds that the record warrants a withdrawal of the fourth adverse 
finding pertaining to the petitioner's business activity. Accordingly, this discussion will focus on the three 
remaining issues that served as grounds for the revocation. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who 
are alic"11s 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. 
Page 4 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, 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 I-140 for classification of an alien under section 
203(b)(1 )(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 two issues to be addressed in this proceeding call for an analysis of the beneficiary's employment 
capacity in her position with the foreign entity and in her proposed position with the U.S. entity. Specifically, 
the AAO will examine the record to determine whether the beneficiary was employed abroad and whether she 
would be employed in the United States in a managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. § 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. § 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III which the 
employee primarily--
(i) directs the management of the organization or a major component or function of the 
organization; 
PageS 
(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 his adverse finding regarding the beneficiary's employment capacity, the director focused his 
discussion on the petitioner's arid the foreign entity's organizational charts, fmding that the petitioner failed to 
address the issue of the foreign entity's staffing levels in the response to the NOIR. Namely, the director 
noted that the petitioner failed to specify the number of employees the foreign entity employed and pointed 
out that while the foreign entity's organizational chart identified seven positions, only three employees were 
specifically named, thus indicating that certain positions may have been vacant. 
The director also observed that the petitioner's organizational chart was nearly identical to that of the foreign 
entity in that it also identified seven positions of which only two appear to have been filled, as only two 
employees-the president and vice president-are specifically named in the chart. The director goes on to 
discuss a discrepancy between the organizational chart and the petitioner's Form 1-140, which indicates that 
the petitioner had a total of eight employees at the time of filing. While the director acknowledged the 
petitioner's claim that the beneficiary has two direct subordinates, he determined that the petitioner's limited 
personnel size must be considered and that this factor leads to valid concerns as to whether the beneficiary's 
role can be effectively limited to that of an executive or manager. Additionally, the director determined that 
the petitioner offered overly broad job descriptions to describe the beneficiary'S job duties in her respective 
positions abroad and with the u.s. entity. 
Lastly, the dir(,'ctor pointed out that the petitioner's business is housed on premises that are not commercially 
zoned and thus preclude the presence of clients or employees and prohibit sales deliveries and storage of 
inventory. The director duly questioned how the beneficiary can follow through with her supervisory role 
when the location of the petitioner's operation is subject to zoning limits that prohibit the petitioner's 
employees from working on the said premises. 
On appeal, counsel submits a brief claiming that the petitioner currently has a staff of six employees and 
further noting that the petitioner rented new office space in February 2010. Counsel further contends that the 
state of the u.s. economy over the past few years has precluded the petitioner from being able to "hire large 
numbers of employees" and to "consistently maintain a stable workforce." 
The AAO finds that counsel's assertions are not persuasive in establishing the petitioner's eligibility. While 
the state of the u.s. economy may explain why the petitioner functioned with relatively few employees 
during certain periods of operation, this hardship is irrelevant to the issues in this proceeding and will not 
serve to excuse the petitioner's failure to meet statutory requirements. The AAO also notes that the 
petitioner's current staff is equally irrelevant to the issue of whether the petitioner legally qualified for the 
immigration benefit sought at the time the Form 1-140 was filed. While the AAO acknowledges that the 
petitioner is required to maintain eligibility through the date the beneficiary adjusts status to that of a 
permanent resident, thus requiring U.S. Citizenship and Immigration Services (USCIS) to consider 
circumstances and events that occurred after the petition was filed, the petitioner must first establish that it 
was eligible for the benefit sought at the time the petition was filed. A visa petition may not be approved 
Page 6 
based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new 
set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm'r 1978); Matter of Katigbak, 
14 I&N Dec. 45, 49 (Comm'r 1971). Whether or not the petitioner maintains eligibility beyond the date of 
filing is separate from the issue of the petitioner's eligibility at the time of filing. 
The record does not contain sufficient evidence that would have allowed the director to conclude that the 
petitioner was adequately staffed to relieve the beneficiary from having to allocate the primary portion of her 
time to the performance of non-qualifying, daily operational tasks. While the petitioner's organizational chart 
indicates that a sales manager, a sales engineer, sales persons, a help desk specialist, and computer repair 
technicians were required for the petitioner to operate, the petitioner provided no evidence to establish that 
any of these positions were actually filled at the time of filing. The 2008 fourth quarterly wage report would 
be irrelevant in determining eligibility at the time of filing, as the petition in this matter was filed during the 
2008 second quarter. Moreover, the 2008 fourth quarterly wage report indicates that the petitioner had only 
two other employees aside from the beneficiary and thus indicates that most of the positions identified in the 
petitioner's organizational chart remained vacant well beyond the filing date. 
The record shows that the foreign entity is in a similar situation in that the petitioner provided yet another 
organizational chart that shows that there were numerous vacancies within the foreign organization at the time 
of the beneficiary's employment abroad. 
While the AAO acknowledges that a comprehensive analysis calls for consideration of a variety of factors and 
should not be limited to consideration of only an entity's staffing structure, the AAO fmds that staffing can 
and should be considered in order to determine the extent to which the entity in question has the ability to 
relieve the beneficiary from having to devote the primary portion of her time to non-qualifying tasks. 
Although a detailed job description is admittedly a key component in determining the beneficiary's 
employment capacity within a given organization, the petitioner is expected to provide sufficient evidence to 
corroborate the beneficiary's job descriptions. Merely providing a job description that describes a set of 
primarily qualifying tasks is meaningless if the organization that has employed or seeks to employ the 
beneficiary lacked or lacks the necessary human resources to relieve the beneficiary from having to primarily 
perform non-qualifying operational job duties. The AAO concurs with the director's finding that the job 
descriptions the petitioner provided lacked the necessary degree of specificity and thus failed to identify the 
beneficiary's actual job duties in the United States and abroad. 
The petitioner has offered job descriptions that seemingly fail to take into account either entity's staffing 
limitations. Both job descriptions indicated that the beneficiary worked and would work directly with 
employees in monitoring their work performance. Within the context of the petitioning entity the beneficiary 
would also work with employees to devise a goal-setting plan and review employee performance with the 
employees themselves. In an entity that seemingly had no employees for the beneficiary to oversee when the 
petition was filed, the AAO questions how factually accurate this description is in portraying the beneficiary's 
proposed employment given the petitioner's staffing when the petition was filed. Both the foreign and 
proposed job descriptions similarly incorporated an employee component into the beneficiary'S policy­
making role, thus leading the AAO to question the validity of both job descriptions. 
Even if the AAO were to accept the petitioner's claim that the beneficiary did and would oversee the work of 
a help desk specialist and a computer repair technician, there is no indication that either of these individuals is 
a supervisory, professional, or managerial employee. See section 101 (a)(44)(A)(ii) of the Act. 
· , 
Page 7 
In summary, the AAO finds that the petitioner has failed to provide adequate job descriptions specifically 
identifying the beneficiary's actual job duties in her positions with the foreign and u.s. entities. Moreover, 
the record does not establish that the foreign entity was adequately staffed during the period of the 
beneficiary's employment abroad or that the petitioning entity was adequately staffed at the time the Form 1-
140 was filed. Thus, the petitioner has presented supporting evidence that shows inadequate job descriptions 
and limited support staffs. In light of these considerable deficiencies, the AAO cannot conclude that the 
beneficiary was either employed abroad or that she would be employed in the United States in a qualifying 
managerial or executive capacity. Based on these two initial findings, the revocation of the approval must be 
affIrmed. 
The next issue to be addressed in this discussion is whether the petitioner has established that it has a 
qualifying relationship with the beneficiary's overseas employer. To establish a "qualifying relationship" 
under the Act and the regulations, the petitioner must show that the beneficiary'S foreign employer and the 
proposed U.S. employer are either the same employer (i.e. a U.S. entity with a foreign office) or that they are 
related as a "parent and subsidiary" or as "affiliates." See generally § 203 (b)(1 )(C) of the Act, 8 U. S.C. 
§ 1153(b)(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and 
"subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
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 petitioner provided evidence showing that the beneficiary and one other individual each owns 50% of the 
shares issued by the petitioning entity. The record also shows that while the beneficiary similarly owns 50% 
of the foreign entity, the remaining 50% of that entity is divided among two other individuals such that one 
individual owns 34% and the other individual 16% of the foreign entity. 
Focusing on subsection (B) of the definition for affiliate, the director determined that the two entities have 
different ownership schemes where the foreign entity has three owners while the U.S. entity has only two. 
Based on this analysis, the director concluded that the two entities are not owned and controlled by the same 
group of individuals, as the beneficiary is the only owner who is common to both entities. 
Page 8 
On appeal, counsel neither addresses nor disputes the director's finding that the petitioner has failed to 
establish that it has a qualifying relationship with the beneficiary's foreign employer. The AAO therefore 
finds that the petitioner has conceded this conclusion. The revocation will also be affirmed on this basis. 
The approval of the petition will remain revoked for the above stated reasons, with each considered as an 
independent and alternative basis for revocation. 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.