dismissed EB-1C Case: Construction Management

DATE NOV 2 3 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Securit)" 
u. S_ Cltizemhlp and Immigration Services 
Administrative Arpeals Office (AAO) 
20 Massachuseus Ave_ N.W .. MS 2()IJO 
Wa"hHlg.\Un. DC 20529-20l)() 
U.S. Citizenship 
and Immigration 
Services 
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. ~ 1153(b)( I )(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 Illotion to reopen in 
accordance with the instructions on Form 1-290B. Notice of Appeal or Motion. with a fee or $630. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)( I )(i) requires that any motion Illust be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you. 
www.ustis.gov 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its managing director. 
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 Us.c. § 1153(bH I HC), as a 
multinational executive or manager. 
In support of the Form I~ 140, counsel submitted a statement dated June 4, 2010, which contained information 
pertaining to the petitioner's eligibility, including an overview of the petitioner's business, the business of the 
beneficiary's foreign employer, and descriptions of the beneficiary's foreign and proposed employment. The 
petitioner also provided supporting evidence in the form of financial and corporate documcnts pertaining to 
the petitioner and the foreign entity. 
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 July 29, 2010 informmg the petitioner of 
various evidentiary deficiencies. The director instructed the petitioner to provide, in pal1, supplemental 
documents describing the beneficiary'S proposed position with the U,S. entity in much greater detail, listing 
the beneficiary's specific daily tasks and the percentage of time the beneficiary would devote to each listed 
item. The petitioner was also instructed to provide a copy of its organizational chart reflecting its staffing at 
the time the Form I~140 was filed. 
The petitioner's response included another statement from counsel, who stated that the beneficiary's duties 
"were detailed in the original submission." Counsel described the petitioner's business purpose and added 
that the beneficiary would not be responsible for providing engineering design or construction management 
services, but rather that he would direct a professional staff comprised of architects, civil and structural 
engineers, and project engineers who would carry out the petitioner's daily operational tasks. Counsel further 
stated that the project engincers will manage the projects and oversee construction. It is noted that the 
petitioner did not comply with the director's request for a list of the beneficiary'S specific day~to~day tasks 
and their respective time allocations. Failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. § I 03.2(b)( 14). 
The petitioner did, however, provide a copy of its organizational chart and a 20 I 0 first qual1erly wage repolt, 
which identified four paid employees-a financial controller, a construction manager, a general coordinator, 
and a structural engineer. Although the Chat1 also included positions for an architcctural designer and an 
unpaid civil engineering intern, there were no specific individuals identified as holding these positions and 
none of the evidence submitted was sufficient to establish that either position was filled. 
After reviewing the record, the director concluded that the petitioner failed to establish that the beneficiary 
would be employed in the United States in a qualifying capacity and therefore issued a decision dated May 
19, 20 II denying the petition. 
On appeal, counsel disputes the director's conclusion, contending that the evidence does not establish that the 
preponderance of the beneficiary's duties would bc of a non~qualifying nature. Counsel focuses on the 
beneficiary's experience in having successfully established a similar company in Turkey. Counsel also 
Page 3 
asserts that the petitioner's daily operational tasks would be carried out by subordinate personncl. not by the 
beneficiary. He further states that the beneficiary's subordinate staff would consist of professional personnel. 
The AAO finds that counsel's assertions are unpersuasive and are therefore insufficient to overcome the 
director's decision. The discussion below will provide an analysis of the relevant documentation and will 
explain the underlying reasoning for the AAO's decision. 
Section 203(b) of the Act states in pertinent part: 
(l) 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 I year by a finn 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 i.s 
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)(I)(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 alicn. 
The primary issue in this proceeding calls for an analysis of the beneficiary's employment capacity in his 
proposed position with the U.S. entity. Specifically, the AAO will examine the record to determine whether 
the pctitioner submitted sufficient evidence to establish that the beneficiary would bc cmployed in the United 
States in a qualifying managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.s.c. § IIOI(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; 
Page 4 
(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. § 110I(a)(44)(B), provides: 
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 le\'LI L'XC'ClItivcs, 
the hoard of directors, or stockholders of the organization. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the beneficiary's proposed job duties. See 8 C.F.R. § 204.5U)(5) Published case 
law supports the pivotal role of a clearly defined job description, deeming the actual duties themselves as the 
factors that determine the true nature of the employment. Fedin Bros. Co .. Ltd. v. Sa va, 724 F. Supp. 1103, 
I 108 (E.D.N. Y. 1989), affd, 90S F.2d 41 (2d. Cir. 1990). The AAO also finds that it is appropriate and often 
necessary to consider other relevant factors, such as an entity's organizational hierarchy and its overall 
staffing. Proper consideration of these factors often provides clarifying information as to who peti'orms the 
daily operational tasks within a given entity and how that entity is able to relieve the beneficiary from having 
to focus the primary portion of his time on the perfonnanee of non-qualifying operational tasks. 
Applying the above analysis to the beneficiary's position, the AAO finds thai the petitioner has failed to 
establish that the beneficiary's proposed employment with the U.S. entity would be comprised primarily of 
tasks within a qualifying managerial or executive capacity. 
Turning first to the beneficiary's job description, as previously noted, the petitioncr failed to provide the 
requested information in response to the RFE and instead asked the director to refer back to information 
which the petitioner had previously provided and which the director had already established to be insufficient 
for the purpose of conveying a meaningful understanding of the actual tasks the beneficiary would perform on 
a daily basis, Furthermore, repeated references to the job duties the beneficiary currently performs for the 
foreign entity is insufficient, as such assertions lack probative value in terms of establishing the nature of the 
beneficiary's proposed employment with the U.S. petitioner. whose organizational hierarchy is considerably 
less complex than that of the foreign entity. 
Additionally, in reviewing the initial job description provided, the AAO notes that a number of the job duties 
that would be part of the beneficiary's U.S. job assignment are more akin to operational tasks, which are 
necessary to provide services and thus could not be deemed as being within a qualifying managerial or 
executive capacity. For instance, counsel indicated in his June 4,2010 support statemcnt that the bencficiary 
would be responsible for finding appropriate projects, conducting due diligence to ensure that the projccts will 
be profitable, developing business relationships with suppliers and contractors, addressing unforeseen 
problems during the course of project development, and maintaining client relationships throughout the 
duration of ongoing projects. While it is true that no beneficiary is required to allocate 1000/< of his or her 
time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to the proposed position. An employee who "primarily" 
performs the [asks 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) (lfthe Act (requiring that 
one "primarily" perform the enumerated managerial or executive duties); see a/so MlllIer oj Chllreh 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). 
In light of the above, the AAO finds that the director's request for a percentage breakdown and the 
beneficiary's list of job duties was a reasonable means of addressing a key issue in this matter. While the 
AAO has referred to the proposed job description counsel provided in his original support letter, the requested 
time allocations for the listed tasks were not included in that description, nor were they included among any 
of the documents the petitioner submitted in response to the RFE. Without this critical information 
establishing how much time the beneficiary would allocate to the performance of non-qualifying tasks, the 
AAO cannot conclude with any degree of certainty that the beneficiary would allocate his time primarily to 
the performance of tasks within a qualifying managerial or executive capacity. 
Finally, the AAO finds that it cannot determine whether the organizational composition at the tillle of filing 
was sufficient to support the beneficiary within a qualifying managerial or executive capacity. While the 
record indicates that the individuals the petitioner employed directly prior to the filing of the petition were 
professional, thus indicating that any time the beneficiary would spend overseeing their work would be 
considered as time spent performing tasks within a qualifying capacity, the evidence of record does not 
establish that the petitioning entity had attained a level of organizational complexity such that the beneficiary 
would he relieved from having to allocate his time primarily to the performance of non-qualifying tasks. 
Counsel's repeated references to the relatively complex organizational composition of the foreign entity and 
the beneficiary's placement therein is insufficient to establish that the beneficiary's job duties and his role 
within the petitioner's considerably less complex organizational hierarchy would be similar to the duties the 
beneficiary performed and the role he assumed during his employment abroad. 
Page 6 
In summary, the AAO finds that the petitioner has failed to provide sufficient evidence and information in 
order to establish that the beneficiary would be employed in the United States in a qualifying managerial or 
executive capacity. Therefore, on the basis of this conclusion, the instant petition cannot be approved. 
Additionally, while not previously addressed in the director's decision, the record contains inconsistent 
documentation with regard to the petitioner's ownership, thus indicating that the petitioner has not established 
that a qualifying relationship exists between it and the beneficiary's employer abroad. 
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)(l)(C) of the Act, 8 USc. § 1153(b)(l)(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 indircctly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, dircctly or 
indirectly, less than half of the entity, but in fact controls the entity. 
The regulations 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 I(lr purposes 
of this visa classification. Matter of Church Scientology International, 191&N Dec. 593: see al", Malia oj 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm. 1986); Maller of HU/ilzes, 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 petitioner has indicated that it has an affiliate relationship with the foreign entity by 
virtue of both entities being majority owned and controlled by the beneficiary. However, in reviewing 
schedule K-I of the petitioner's 2008 and 2009 IRS Forms 1120S, U.S. Income Tax Return for an S 
the petitioner's organizational chal1 identified as the general coordinator, 
Page 7 
was named as 100% owner of the petitioner's stock. [t 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 ojHo, 19 I&N Dec. 582, 591-92 (BIA 1988). As the petitioner's stock celtificate is 
entirely at odds with the information provided by the petitioner in its corporate tax returns, the AAO cannot 
conclude that the petitioner provided sufficient evidence to establish the existence of a qualifying relationship. 
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. 200 I ), a[/,d. 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground for ineligibility that was discussed in 
the paragraph above, the instant 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. [n 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.