dismissed EB-1C Case: Design Services

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
SEP 1 5 2011 
IN RE: 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 
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. § ll53(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 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.llscis.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 established in the State of Connecticut. It 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 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
The director denied the petition finding that the petitioner is ineligible for the immigration benefit sought 
based on five independent grounds of ineligibility. Namely, the director found that the petitioner failed to 
establish that 1) the beneficiary would be employed in the United States in a managerial or executive 
capacity; 2) the beneficiary was employed abroad in a qualifying managerial or executive capacity; 3) the 
petitioner had been doing business for at least one year prior to filing the Form 1-140; 4) the foreign entity that 
previously employed the beneficiary continues to do business; and 5) the beneficiary's foreign and proposed 
U.S. employers have a qualifying relationship. 
On appeal, counsel disputes all five grounds of ineligibility and contends that the director failed to consider 
the petitioner's previously approved L-l petitions that were filed on behalf of the same beneficiary. Counsel 
provided an appellate brief in support of his assertions. 
The AAO has reviewed the record in its entirety and, while the determination has been made to affirm the 
director's denial of the petitioner's Form 1-140, the AAO finds that sufficient documentation has been 
submitted to establish by a preponderance of the evidence that the petitioner meets the provisions of 8 C.F.R. 
§ 204.5(j)(3)(i)(D). The AAO also finds that the record contains sufficient evidence to establish that foreign 
entity is currently doing business. As such, the AAO hereby withdraws the third and fourth grounds as bases 
for denial and will address the three remaining grounds in a full 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): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No 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 in this proceeding call for an analysis of the beneficiary's job duties. Specifically, the 
AAO will examine the record to determine whether the beneficiary was employed abroad and whether he 
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. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III 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. § 1101(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; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
Page 4 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders ofthe organization. 
In support of the Form 1-140, the beneficiary, in his capacity as managing director of the petitioning entity, 
submitted a statement dated September 16, 2008 in which he stated that during his position as managing 
director of _ the foreign entity where he was previously employed, he was responsible for 
directing expansion initiatives, developing and approving marketing strategies, directing and developing 
corporate sales, communicating with department managers, and creating means to ensure effective use of staff 
and capital resources. 
With regard to his proposed posltlOn with the U.S. entity, the beneficiary listed the following nme 
components that would comprise his U.S. employment: 
• Direct instruction of SOP's and various checks and balance systems; 
• Oversee incorporation and implementation of new and cutting-edge design technologies; 
• Direct market development and distribution throughout the United States and the world 
through defined distribution channels; 
• Actively participate in consulting with high-end clients and promoting [the petitioner]'s brand 
of creative solutions and services; 
• Ensure the company's ability to meet its corporate obligations; 
• Ensure the company's ability to realize its projected annual sales figures; 
• Develop and staff the U.S. enterprise; 
• Direct and implement marketing initiatives; and 
• Set overall budgets for the U.S. enterprise. 
The director subsequently issued a notice of intent to deny (NOlO) the petition, instructing the petitioner to 
provide additional documentation in order to overcome the deficiencies cited in the NOlO. The list of 
deficiencies included insufficient evidence establishing that the beneficiary was employed abroad and would 
be employed in the United States in a qualifying managerial or executive capacity. Accordingly, the director 
requested that the petitioner provide definitive statements listing the beneficiary's job duties with the foreign 
entity and his proposed job duties with the U.S. entity. Each statement was to include a list of the 
beneficiary's job duties accompanied by a percentage breakdown indicating how much time the beneficiary 
allocated and would allocate to each ofthe listed duties. The petitioner was also asked to indicate the number 
of employees the beneficiary supervised and would supervise, whether such employees can be deemed 
managerial or supervisory, and their respective educational levels and functions within each organization. As 
additional supporting evidence, the petitioner was instructed to provide any IRS Form W-2 and or Form 1099 
statements issued to employees in 2008. 
In response, counsel provided a letter dated March 17, 2009 in which he challenged the issuance of a NOID, 
citing an interoffice USCIS memorandum in support of his argument. The AAO notes, however, that USCIS 
memoranda merely articulate internal guidelines for service personnel; they do not establish judicially 
enforceable rights. An agency's internal personnel guidelines "neither confer upon [plaintiffs] substantive 
rights nor provide procedures upon which [they] may rely." Loa-Herrera v. Trominski, 231 F.3d 984, 989 (5th 
Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th Cir.1987)). Furthermore, the provisions of 
8 C.F.R. § 103.2(b)(8)(ii) permit the director to use his discretion in issuing a Nom or request for evidence 
when a determination is made that the petitioner has not established eligibility either as a result of failure to 
submit required initial evidence or some other deficiency. 
Although counsel restated the job description provided earlier in support of the petition with regard to the 
beneficiary's proposed employment, none of the requested information detailing the beneficiary's specific job 
duties and time allocated to those duties was provided. Instead counsel stated that the beneficiary devotes 
100% of his time to expanding the petitioner's market share and directing the company's daily operations. 
Counsel referred to the petitioner's previously approved L-1 petitions filed on behalf of the same beneficiary 
as evidence that the beneficiary qualifies for the immigrant classification sought in the present matter. 
Counsel declined to have the petitioner submit any employee financial records, stating that such records are 
confidential and asserting that there is no legal authority specifically requiring the petitioner to comply with 
the director's request for such documentation. As previously noted, however, the director's authority to 
request additional evidence is expressly stated in 8 C.F.R. § 103.2(b)(8)(ii), which allows the director ample 
discretion in determining which evidence to request in order to assess eligibility. Based on the provisions of 
8 C.F .R. § 103 .2(b )(8)( ii), the director need not be given express authority to request specific documentation. 
Rather, it is implied that any request is reasonable so long as it is directly relevant to the type of benefit 
sought. Here, the petitioner seeks to classify the beneficiary as a multinational manager or executive. Given 
that this classification requires the petitioner to establish that the beneficiary'S job duties with the petitioning 
U.S. entity are primarily within a qualifying capacity, the director is justified in requesting information about 
the employees who would be relieving the beneficiary from having to perform non-qualifying operational 
tasks. Where there is no staff or where staffing is extremely limited, the petitioner's ability to employ the 
beneficiary in a primarily managerial or executive capacity will logically come into question. See Family, 
Inc. v. Us. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval 
Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d 
Cir. 1990) (per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). 
The AAO notes that the petitioner failed to provide any additional information regarding the beneficiary'S job 
duties during his employment abroad, despite the fact that the director expressly instructed the petitioner to 
supplement the record with this pertinent information. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103 .2(b )(14). 
The petitioner did, however, provide two organizational charts--one pertaining to the foreign entity where the 
beneficiary was previously employed and the other pertaining to the U.S. entity that is now seeking to employ 
the beneficiary. With regard to the foreign entity's hierarchy, the chart depicts the beneficiary at the top-most 
level with the senior creative designer and the creative director as his two direct subordinates, followed by 
three designers at the bottom tier of the hierarchy. The chart shows that two designers are the direct 
subordinates of the senior creative designer and one designer is the direct subordinate of the creative director. 
Page 6 
The petitioner's organizational chart also depicts the beneficiary at the top of the organizational hierarchy. 
However, the hierarchy itself is comprised of three individuals with the design engineer depicted as the 
beneficiary's direct subordinate and a prepress designer is depicted as the subordinate of the design engineer. 
Although instructed to provide information about the educational credentials and job duties pertaining to the 
beneficiary's subordinates at each entity, the petitioner failed to do so. 
In a decision dated September 27, 2009, the director denied the petition, concluding that the petitioner failed 
to establish that the beneficiary was employed abroad and that he would be employed in the United States in a 
qualifying managerial or executive capacity. The director found that the petitioner provided a vague 
description of the beneficiary's foreign and proposed employment, citing broad job responsibilities rather than 
specific tasks. The director also noted that an organization that is lacking in sufficient support personnel may 
be unable to employ the beneficiary in a managerial or executive capacity in which the primary portion of the 
beneficiary's time is allocated to qualifying tasks. 
On appeal, counsel challenges the director's findings, relying heavily on the previously approved L-l petitions 
as indicators of the petitioner's eligibility for the immigrant preference visa sought herein. Counsel asserts 
that the director applied a heightened burden of proof in rendering an erroneous determination with regard to 
the petitioner's eligibility. 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the director's adverse 
decision. When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Published case law also focuses on 
the significance of a detailed job description, finding that the actual duties themselves reveal the true nature of 
the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 
(2d. Cir. 1990). The AAO will then consider the beneficiary's job description in light of the employer's 
organizational hierarchy, the beneficiary's position therein, and the employer's overall ability to relieve the 
beneficiary from having to primarily perform the daily operational tasks. 
While the petitioner provided a considerably lengthier job description regarding the beneficiary's proposed 
employment than the description pertaining to the foreign employment, neither job description was adequate 
in conveying a meaningful understanding of the beneficiary's actual job duties in either position. Both job 
descriptions focus on the beneficiary's discretionary authority and both organizational charts depict the 
beneficiary at the top-most level within the respective hierarchies. However, as noted above, these elements 
alone, without a detailed job description, are not sufficient to establish that the beneficiary was employed 
abroad and would be employed in the United States in a qualifying managerial or executive capacity. With 
regard to the foreign job description, the petitioner focused on the beneficiary's directorial and leadership 
roles within the hierarchy. However, as for the beneficiary's actual daily job duties, the record is devoid of 
any specific information, despite the fact that the director expressly requested a detailed statement of job 
duties in the NOID. Similarly, the petitioner focused on the beneficiary's directorial and oversight 
responsibilities in his proposed employment. However, little was conveyed about what tasks the beneficiary 
would actually be performing on a daily basis. Moreover, in light of the petitioner's limited support staff, the 
AAO questions how the beneficiary's role in market development and marketing initiatives can be limited to 
directing these functions when the organizational hierarchy at the time of filing did not include any marketing 
personnel. The petitioner also failed to explain what specific tasks the beneficiary would perform in order to 
ensure that the company is able to meet its corporate obligations and realize annual sales figures. 
Page 7 
Lastly, the AAO observes that an unspecified portion of the beneficiary's time would be allocated to 
consulting with "high-end" clients and promoting the petitioner's services, which are non-qualifying 
operational tasks. While the AAO acknowledges that no beneficiary is required to allocate 100% of his time 
to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary would perform are only incidental to hislher proposed position. 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 10 1 (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 Dec. 593, 604 (Comm. 1988). As the petitioner failed to comply with the 
director's request for a percentage breakdown showing how the beneficiary'S time will be allocated, the AAO 
cannot determine with any degree of certainty that the beneficiary would allocate the primary portion of his 
time to performing tasks within a qualifying capacity. 
In summary, the AAO finds that the petitioner failed to provide requested information that the director and the 
AAO both find necessary in order to approve the petition. While counsel repeatedly mentioned the 
petitioner's reliance on previously approved nonimmigrant petitions and further indicated that such approvals 
should guide USCIS's decision in the present matter, the AAO finds that counsel's assertions are not 
supported by any statute, regulation, or precedent case law. It must be noted that each nonimmigrant and 
immigrant petition is a separate record of proceeding with a separate burden of proof. As such, each petition 
must stand on its own individual merits. USCIS is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. The prior nonimmigrant approvals do not preclude USCIS from 
denying an extension petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). The approval of a nonimmigrant petition in no way guarantees that USCIS will 
approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 immigrant 
petitions after approving prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that USCIS or any agency must 
treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th 
Cir. 1987), cert. denied, 485 u.s. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), ajj'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The AAO concludes that the evidence furnished is insufficient to establish that the beneficiary was employed 
abroad and would be employed in the United States in a qualifying managerial or executive capacity. 
Therefore, based on these two initial independent findings, the instant petition may not be approved. 
Page 8 
The remammg issue in this proceeding is whether the petitioner has a qualifying relationship with the 
beneficiary's foreign 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 the same 
employer (i.e. a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See 
generally § 203(b)(l)(C) of the Act, 8 U.S.C. § 1 1 53(b)(l)(C); see also 8 c.P.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.P.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; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In support of the Form 1-140, the petitioner provided articles of organization in which the beneficiary was 
named as a manager. Although item 7b of the SS-4 Application for Employer Identification Number 
indicated that the beneficiary is the petitioner's principal officer, general partner, grantor, owner or trustor, no 
further information was provided specifying which of these titles is applicable. With regard to the foreign 
entity, the petitioner provided a certificate of incorporation as well as a corporate document (untitled) 
identifying the beneficiary as one of the company's two directors. The documentation submitted did not 
establish the ownership of either the foreign or U.S. entity. 
Accordingly, the director denied the petition, citing the petitioner's failure to provide evidence of a qualifying 
relationship with the beneficiary's foreign employer as one of the grounds for denial. The director 
acknowledged the petitioner's submission of its articles of organization, but pointed out that this document 
does not establish who owns the petitioning entity. The director further noted that the foreign entity's 
certificate of registration establishes the identities ofthe company's directors, but does not establish who owns 
the foreign entity. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
Page 9 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
In general, to determine ownership, a company's corporate stock certificate ledger, stock certificate registry, 
corporate bylaws, and the minutes of relevant annual shareholder meetings must be examined to determine 
the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage 
ownership and its effect on corporate control. Additionally, a petitioning company must disclose all 
agreements relating to the voting of shares, the distribution of profit, the management and direction of the 
subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, 
Inc., 19 I&N Dec. 362. Without full disclosure of all relevant documents, USCIS is unable to determine the 
elements of ownership and control. 
In the present matter, while the petitioner has supplemented the record on appeal with documentation that 
establishes the beneficiary as owner of 50% of the foreign entity, no additional evidence was provided to 
determine who owns the u.s. entity. In light ofthe claim that the petitioner is an affiliate of the foreign entity 
by virtue of the beneficiary'S 50% ownership of the latter and 100% ownership of the former, the fact that the 
petitioner has failed to provide evidence establishing its ownership precludes the AAO from being able to 
determine whether the two entities are commonly owned. Despite counsel's numerous assertions claiming 
that the beneficiary is the sole owner of the U.S. entity, the only evidence on record establishes only that the 
beneficiary is the sole manager of that entity. The documents that the petitioner submitted are silent as to the 
issue of ownership. The AAO notes that the unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
In conclusion, the AAO finds that the record lacks sufficient evidence establishing the petitioner's eligibility 
for the immigration benefit sought. While counsel asserts that the director is obligated to provide the 
petitioner with an explanation to clarify why an adverse decision has been issued after the approval of several 
nonimmigrant petitions, there is no statutory or regulatory provision that supports this assertion. 
Accordingly, 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. § l36l. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.