dismissed EB-1C Case: Construction

identifying data deleted to 
prevent clearly unw~teo 
invasion of personal pnvac)' 
pUBLIC Copy 
DATE: FEB 2 1 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland 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 
OFFICE: TEXAS SERVICE CENTER FILE: 
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, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 limited liability company that was organized in the State of Florida. The petitioner seeks to 
employ the beneficiary as its construction manager. 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 a written job offer dated October 14, 2008 as well as the 
petitioner's corporate, fmancial, and tax documents. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated March 26, 2009 in which he instructed the 
petitioner to provide documents establishing that: (1) the foreign entity is still doing business; (2) the 
petitioner and the beneficiary's foreign employer have a qualifying relationship; (3) the beneficiary was 
employed abroad in a qualifying capacity; and (4) the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. With regard to the two latter issues, the director instructed the 
petitioner to provide the beneficiary's position descriptions listing her foreign and proposed job duties with 
time allocations indicating the percentage of time the beneficiary spent and would spend on each listed task. 
The director also asked the petitioner to discuss the beneficiary's subordinates, including their respective job 
descriptions and levels of education. 
The petitioner provided a response, which included: (1) a statement dated April 20, 2009 describing the 
foreign entity's ownership breakdown; (2) the petitioner's membership certificate numbered one and two; 
(3) one statement dated April 20, 2009 and one statement dated April 17, 2009 addressing the beneficiary's 
proposed and foreign employment, respectively; (4) the foreign entity's organizational chart and the U.S. 
entity's proposed organizational chart; (5) unidentified foreign language documents; and (6) lists of contacts 
and companies who provide building-related services. 
After reviewing the record, the director found the petitioner ineligible based on three independent grounds. 
The director concluded that the petitioner failed to establish that: (1) it has a qualifying relationship with the 
beneficiary's foreign employer; (2) the beneficiary was employed abroad in a qualifying managerial or 
executive capacity; and (3) the beneficiary would be employed in the United States in a qualifying managerial 
or executive capacity. Accordingly, the director issued a decision dated February 10, 2010 denying the 
instant petition. 
On appeal, the petitioner submits a statement from counsel as well as supporting documentation to address the 
three grounds for denial. All relevant documentation that pertains directly to the key issues in this matter will 
be addressed in the discussion below. 
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): 
* * * 
-Page 3 
(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)(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 issue to be addressed in this discussion is whether the evidence submitted by the petitioner 
establishes that it has a qualifying relationship with the beneficiary's foreign employer. As noted previously, 
the director concluded that such a relationship does not exist given the facts presented in the instant record. 
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 the same employer (i.e. a U.S. entity with 
a foreign office) or that the two entities 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. § 204.50)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F .R. § 204.50)(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; 
* * * 
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 
Page 4 
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 the present matter, the AAO does not dispute the facts pertaining to the ownership breakdown of either 
entity. The record shows that on appeal, the petitioner submitted sufficient evidence to cure the documentary 
deficiencies pointed out in the director's February 10, 2010 decision. Specifically, the petitioner provided a 
certified translation of the foreign entity's minutes of a shareholder meeting in which the company's board of 
directors determined that of the 80 shares of stock that were being issued, four shares would be evenly 
divided among four individuals and the remaining 76 shares would be held jointly 
With regard to the U.S. entity, no new documentation was 
submitted. However, the record was previously supplemented with membership certificates numbered one 
and two, which accounted for 60% of the petitioner's ownership. Each of the certificates issued 30 units of 
membership interest to to be held jointly. In addition to the 
membership certificates, the record was supplemented with a letter dated April 20, 2009 in which ••• 
_in his capacity as CEO of the petitioning entity, stated that the remaining 40% of the petitioner's 
membership interests would be divided equally among six individuals giving each individual a 6.66% 
ownership interest. 
In the April 20, 2009 letter, asserted that the joint husband-wife ownership of the petitioner 
and the beneficiary's foreign employer allows the petitioner to meet the definition for affiliate in that the 
majority ownership of both entities belongs jointly to the same two individuals. assertions are 
contrary to published case law where similar issues have been addressed. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). The 
AAO notes that neither the legacy Immigration and Naturalization Service nor USCIS has ever accepted a 
combination of individual shareholders as a single entity, so that the group may claim majority ownership, 
unless the group members have been shown to be legally bound together as a unit within the company by 
voting agreements or proxies. Here, despite the petitioner's attempt to bind husband and 
•••••••• as one unit that jointly holds a majority ownership in each entity, no evidence has been 
submitted in the form of voting agreements or proxies to establish majority control. Despite the assertions 
made by the petitioner's CEO, the familial relationship between the husband and wife does not constitute a 
qualifying relationship under the regulations. 
Lastly, the evidence indicates that six individuals own the foreign company while eight individuals own the 
petitioning entity in the United States. The AAO therefore cannot conclude that the petitioner's affiliation 
with the beneficiary'S foreign employer rises to the level described in the definition of affiliate, as the two 
entities are not "owned and controlled by the same group of individuals, each individual owning and 
controlling approximately the same share or proportion of each entity .... " 8 C.F.R. § 204.5(j)(2). 
In summary, the petitioner does not have a qualifying relationship with the beneficiary's foreign employer. 
Therefore, the petition may not be approved. 
Page 5 
The next 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 her proposed position with the U.S. petitioner. 
Specifically, the AAO will examine the record to determine whether the petitioner submitted sufficient 
evidence to establish that it would employ the beneficiary was employed abroad and whether she would be 
employed in the United States in a qualifying managerial or executive capacity. 
Section 10 I (a)(44)(A) of the Act, 8 U.S.C. § l1Ol(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization m 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 frrst-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 1Ol(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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 the February 10, 2010 decision, the director determined that neither the contracted employees whom the 
beneficiary managed in her position with the foreign entity, nor the contracted employees whom the 
Page 6 
beneficiary would be expected to manage in her proposed position with the u.s. entity could be deemed 
managerial, professional, or supervisory employees. The director summarized the various characteristics of a 
managerial or executive employee and determined that the statements submitted to describe the beneficiary'S 
foreign and proposed employment do not indicate that the beneficiary's positions embody the requisite 
characteristics. On the basis of this determination, the director concluded that the beneficiary was not 
employed abroad and would not be employed in the United States in a managerial or executive capacity. 
While counsel's response on appeal indicates that the petitioner has acknowledged the director's above 
findings with regard to the beneficiary'S employment capacity, the petitioner has submitted no new 
information to address this issue in a meaningful way. Rather, the petitioner has introduced an updated 
statement dated February 22, 2010 from the petitioner's general manager as well as an updated statement 
dated February 26, 2010 from the foreign entity's president. However, both statements are replicas of the 
statements that the same two individuals submitted where the statement from the petitioner's general manager 
was originally dated April 20, 2009 and the original statement from the foreign entity's president was dated 
April 17, 2009. Despite the fact that the two statements submitted on appeal both contained February 2010 
dates to indicate that they were being submitted in support of the appeal, the AAO cannot overlook the fact 
that the information contained within these statements is the same as the information that was previously 
reviewed and deemed by the director to be insufficient to meet statutory requirements. 
By resubmitting the same deficient evidence, the AAO finds that the petitioner has failed to effectively 
contest and to fully address the key issues that served as grounds for the denial. The AAO will therefore 
affirm the director's findings regarding the beneficiary'S foreign and proposed employment, concluding that 
the petitioner has failed to establish that the beneficiary was employed abroad and that she would be 
employed in the United States in a qualifying managerial or executive capacity. 
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.