dismissed EB-1C Case: Education

identifying data deleted to 
pteVent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
FILE: OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeiand S«urity 
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: UAR242011 
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. § I I 53(b)(l)(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)(1)(i) requires that any motion must be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
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 New Jersey corporation that seeks to employ the beneficiary as its executive. 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. § IIS3(b)(I )(C), as a multinational 
executive or manager. 
The director denied the petition based on the determination that the petitioner failed to establish that it would 
employ the beneficiary in a managerial or executive capacity. On appeal, counsel challenges the director's 
decision, emphasizing the petitioner's early stage of development. 
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 I 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 [- I 40 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 alien. 
The primary issue in this proceeding is whether the petitioner established that 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. § I 10 I (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization In which the 
employee primarily--
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(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 10 1 (a)(44)(B) of the Act, 8 U.S.c. § llOl(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 support of the Form 1-140, the petitioner submitted a letter dated June 2, 2008, which includes the 
following description of the beneficiary'S proposed employment: 
The Executive Manager is charged with management of overall function, operations and 
profitability of [the petitioner]. The position requires that an applicant be knowledgeable 
about the language of Gujarati, the cultural background of the state of Gujarat and attuned to 
the demands of the local Indian population. An Executive Manager must also exhibit strong 
managerial skills, a background in education and curriculum implementation and adept 
financial instincts. Such a position also requires that such a Manager oversee the hiring of 
staff and general company management. 
On June 9, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a detailed description of the beneficiary'S proposed day-to-day duties with a percentage of time 
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assigned to each duty. The director also asked for a description of the beneficiary's proposed position within 
the U.S. entity's organizational hierarchy. 
In response, the petitioner provided the following job description supplemented by a percentage breakdown: 
1. Creation and direction as to overall mission of [the petitioner] and incorporation of [the] 
mission statement into organizational culture, including institution of all company-wide 
policies, ranging from salary configuration, individual job duties, employee conduct, etc. 
(30% of overall time spent towards this specific job duty (approximation)); 
2. Absolute discretionary control regarding all financial, employee or operational decisions for 
[the petitioner]. Supervision of professional employees, instructors and staff members, 
including the ability to hire and fire any and all U.S. employees (15%);; [sic] 
3. Implementation and oversight as to student admissions and cultivation of business 
opportunities to maximize admission rates and public interest (15%); 
4. Designing and preparation of completed cultural and educational curriculum for Gujurati­
specific [sic] classroom requirements. Oversight as to implementation of language-based 
curriculum, including gauging effectiveness of instruction, review of diagnostic examinations 
and participation in meetings geared towards improvement of student understanding (15%); 
5. Management as to business objectives and financial priorities. Provides additional directives 
as to the specific use of resources for purposes of salary distribution, securing physical 
premises, management of financial accounts, outlays, revenues and communication with all 
other professionals with regards to operational propriety (15%); 
6. Liaison to Bhagwathari-Prem Society (parent organization) as to proper functioning of [the 
petitioner] and counsel to BPS as to overall company health, needs and direction (5%); 
7. Arrangement of meetings with parent groups and New Jersey community to boost public 
profile and enhance awareness of Gujurati [sic] curriculum (5%)[.] 
Also included in the response to the RFE was an organizational chart in which the beneficiary was depicted at 
the top of the hierarchy supported by two language instructors, a clerical staff, and financial and legal 
employees and independent contractors. The petitioner's 2008 quarterly tax return for the third quarter shows 
that the petitioner had one employee during the time period when the Form 1-140 was filed. 
On August 4, 2009, the director denied the petition questioning the petitioner's need for a full-time executive 
when it had only one employee at the time of filing the petition. The director determined that in light of the 
fact that the petitioner did not employ a support staff to assist the beneficiary, the petitioner would be unable 
to relieve the beneficiary from having to primarily perform non-qualifYing tasks. 
On appeal, counsel focuses on the petitioner's business goal and points out that the petitioner has not been 
doing business long enough to rival other institutions of its kind. Counsel urges U.S. Citizenship and 
Immigration Services (USCIS) to consider the petitioner's stage of development, which required limited 
Page 5 
staffing due to its "fledgling" operations, and points out that the petitioner's staffing grew in the 2008 fourth 
quarter. Counsel cautions USCIS not to lose sight of the bigger issue by allowing the director to set a 
precedent that would preclude small businesses from petitioning for the continued employment of their 
executive officers. Counsel's statements, however, are not persuasive in establishing that the beneficiary 
merits immigrant classification as a multinational manager or executive. 
Counsel's emphasis on the petitioner's stage of development overlooks the fact that the petitioner ultimately 
has a statutory burden to establish that the beneficiary's proposed employment with the U.S. entity would 
primarily involve the performance of managerial- or executive-level tasks. See sections 101(a)(44)(A) and 
(8) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties). 
Despite the underlying implication in counsel's argument, the petitioner's stage of development does not 
excuse the petitioner from having to meet this burden. In other words, any petitioner that is not ready and 
able to employ their beneficiary in a qualifying managerial or executive capacity at the time the petition is 
filed is not eligible for the immigration benefit sought herein. This includes having the ability to relieve the 
beneficiary from having to primarily engage in non-qualifying operational tasks. In the instant matter, 
counsel argues that denying the petitioner's Form 1-140 is indicative of USCIS' prejudicial treatment of small 
entities. However, at the core of counsel's argument is the implied suggestion that different, more relaxed, 
statutory burdens should be applied to small entities. Counsel has offered no statute or precedent case law to 
support this argument. 
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. § 204.5Ul(5). The AAO will then consider this 
information in light of the petitioner's organizational hierarchy, the beneficiary'S position therein, and the 
petitioner's overall ability to relieve the beneficiary from having to primarily perform the daily operational 
tasks. In the present matter, a number of elements necessary to establish eligibility are missing. 
First, the AAO finds that the job description offered in response to the RFE is neither sufficient in the degree 
of detail offered about the beneficiary'S specific daily job duties, nor credible given the organizational 
hierarchy the petitioner had in place at the time of filing. The petitioner indicated that 30% of the 
beneficiary's time would be allocated to creating and directing the petitioner's overall mission, including 
instituting policies as well as assigning job duties and overseeing employee conduct. However, the petitioner 
did not clearly define the job duties associated with this broad set of responsibilities, nor did it justify its 
allocation of a considerable portion of the beneficiary'S time to human resource-related tasks when the 
beneficiary was the beneficiary's sole employee. While the AAO acknowledges the petitioner's subsequent 
hiring of additional employees after the petition was filed, eligibility must be established at the time of filing, 
not at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). As the additional staff does not help establish the petitioner's 
eligibility at the time of filing, they are irrelevant for purposes of this discussion. The petitioner also failed to 
establish what specific tasks the beneficiary would perform in maintaining "absolute discretionary control" 
over company finances and employees or managing business objectives and financial priorities. Pursuant to 
published case law, 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). 
Second, the AAO finds that the petitioner would have failed to establish eligibility even if an adequate job 
description had been submitted. Despite counsel's desire to disregard or to diminish the role of the petitioner'S 
organizational hierarchy, the AAO finds that this factor cannot be discounted, as it assists USCIS in being 
Page 6 
able to gauge the extent to which a petitioner is able to sustain the beneficiary in a qualifYing managerial or 
executive capacity. While the AAO acknowledges that a detailed job description is admittedly one major 
component in determining the petitioner's eligibility, the petitioner is expected to provide sufficient evidence 
to corroborate the proposed job description. Merely providing a job description that describes a set of 
primarily qualifYing tasks is meaningless if the organization that seeks to hire the beneficiary does not have 
the human resources necessary to relieve the beneficiary from having to primarily perform non-qualifYing 
operational duties. In the present matter, the petitioner's sole employee at the time of filing was the 
beneficiary himself. Despite whatever the beneficiary's job description suggests or what the petitioner's 
organizational hierarchy seemingly illustrates, the AAO cannot ignore the fact that the petitioner has failed to 
provide evidentiary documentation to establish that it was adequately staffed to relieve the beneficiary from 
having to primarily perform daily operational tasks to keep the entity running and to ensure its progression 
into the next stage of its development. It is unclear how, in a business that relies on a staff to provide services 
from which the petitioner derives its revenue, the petitioner can claim to employ the beneficiary in a 
managerial or executive capacity with the beneficiary as its sole employee. The claims put forth via the 
petitioner's organizational chart are not persuasive, as no evidence has been provided to establish that the 
teaching and administrative personnel identified in the chart were actually employed by the petitioner, either 
in-house or on a contractual basis, at the time the petition was filed. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
The record as presently constituted is not persuasive in demonstrating that the petitioner was able to employ 
the beneficiary in a primarily managerial or executive capacity. The fact that an individual manages a small 
business does not necessarily establish eligibility for classification as a multinational manager or executive 
within the meaning of section 101(a)(44) of the Act. As noted above, the record does not establish that a 
majority of the beneficiary's duties would be primarily within a qualifYing capacity. Rather, based on the 
level of organizational complexity that was in place at the time of filing, the record indicates that a 
preponderance of the beneficiary's duties would be directly providing the services of the petitioner's business. 
Thus, based on the evidence furnished, it cannot be found that the beneficiary has been or will be employed 
primarily in a qualifYing managerial or executive capacity. For this reason, the petition may not 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. § 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was employed 
abroad in a qualifYing managerial or executive position for at least one out of the three years prior to his entry 
to the United States as a nonimmigrant to work for the same employer. Although the petitioner supplemented 
the record with the foreign entity's organizational chart, the record lacks a definitive statement establishing 
what specific job duties the beneficiary performed on a daily basis during his employment with the foreign 
entity. As noted above, this information is crucial for the purpose of determining the nature of the 
beneficiary'S employment. Thus, as the record lacks this necessary information, USCIS cannot conclude that 
the beneficiary was employed abroad in a qualifYing managerial or executive capacity. 
Second, 8 C.F.R. § 204.5Ul(3)(i)(C) states that the petitioner must establish that it has a qualifYing 
relationship with the beneficiary's foreign employer. In the present matter, the only evidence submitted to 
corroborate the petitioner's claim that it is a subsidiary of the beneficiary's foreign employer was a single 
Page 7 
undated stock certificate. The regulation and case law confinn that ownership and control are the factors that 
must be examined in detennining whether a qualifYing relationship exists between United States and foreign 
entities for purposes of this visa classification. Malter of Church Scientology International, 19 I&N Dec. 593 
(BIA 1988); see also Malter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Malter 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. Malter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifYing relationship, stock certificates alone are not sufficient 
evidence to detennine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also 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 detennine the elements of ownership and control. As the 
petitioner has not submitted sufficient documentary evidence regarding its ownership, it has not shown that 
the requisite qualifYing relationship existed between the petitioner and the beneficiary's foreign employer at 
the time of filing the petition. 
Third, 8 C.F.R. § 204.50)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Fonn 1-140. The regulation at 8 C.F.R. § 204.50)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods and/or services by a finn, 
corporation, or other entity and does not include the mere presence of an agent or office." The petitioner has 
maintained the claim that it is an educational service provider and has been since the beneficiary commenced his 
employment in the United States in 2006. The AAO notes that no documentation has been provided to establish 
that the petitioner has, in fact, provided these services during the requisite time period and continued to provide 
such services when the petition was filed in 2008, or approximately two years after the beneficiary'S arrival. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even ifthe 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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(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. 
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.