dismissed EB-1C Case: Electronic Components

identifying davt deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immfgratlon 
Services 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of be Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
dministrative Appeals Office 
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 organized in South Carolina on November 19,2003. It claims to 
be engaged in the business of selling electronic components worldwide and seeks to employ the beneficiary as 
its president and chief executive off~cer (CEO). Accordingly, the petitioner endeavors to classify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner failed to establish that the beneficiary would be employed in the United States 
in a managerial or executive capacity and denied the petition. 
On appeal, counsel disputes the director's conclusion and submits a brief in support of his arguments. 
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 Fonn 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 Wsh 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 beneficiary would be employed in a managerial or 
executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 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 fmt-line supervisor is not 
considered to be acting in a managerial caiacity 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. 9 1 101 (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 level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the petitioner provided a letter dated December 14, 2004, which contained the 
following information regarding the beneficiary's proposed employment in the United States: 
[The beneficiary] oversees all financial, management and administrative duties within the 
new U.S. facility. He exercises substantial discretionary decision-making authority for all 
corporate operating policy and strategy. Additionally, he has 111 responsibility for 
determining and approving corporate operation proposals, marketing and corporate financing. 
[The beneficiary] analyzes and forms business plans for short-term and long-term corporate 
operating strategy. Finally, he appoints managers for each department and oversees all 
executive meetings. 
On October 24,2005, the director issued a notice of her intent to deny (NOID) the petition and suggested that 
additional evidence may assist in establishing the petitioner's eligibility for the benefit sought. The director's 
notice included a request for the W-2 wage and tax statements issued by the petitioner as well as a number of 
the petitioner's quarterly tax returns. 
In response, the petitioner provided a 2004 W-2 wage and tax statement for the international 
sales manager, as well as four of its quarterly tax returns---the last quarterly return of 2004 and the first three 
quarterly returns of 2005. It is noted that all three of the quarterly returns from 2005 indicate that the 
petitioner had no payroll expenses. 
On December 7, 2005, the director denied the petition concluding that the documentation submitted in 
response to the NOD suggests that the petitioner lacked a sufficient support staff in the United States to 
relieve the beneficiary from having to primarily perform the petitioner's non-qualifymg operational tasks. 
The director specifically noted the petitioner's quarterly tax returns for 2005, all of which indicated that the 
petitioner had no payroll expenses. 
On appeal, counsel for the petitioner submitted a letter dated February 2,2006 in which he explained that the 
petitioner has 15 employees who are primarily based in Singapore and India. Counsel Mer stated that 80% 
of the products sold by the petitioner and its foreign affiliate are supplied by U.S. vendors. Counsel provided 
the following statements with regard to the beneficiary's role within the petitioning entity: 
[The beneficiary] directs the myriad [of) sourcing activities which are carried out by the 
company's workforce; additionally, he directs and manages design, manufacturing and sales 
teams who produce electronic parts that are customdesigned for critical government accounts 
in India and Singapore. He exercises wide latitude in discretionary decision[-]making by 
directing all of the operations and management functions of the company. He founded the 
company in 1997 and is a pioneer in sourcing obsolete products in the electronics industry. 
Counsel's assertions are not persuasive. 
 In examining the executive or managerial capacity of the 
beneficiary, Citizenship and Immigration Services (CIS) will look first to the petitioner's description of the 
job duties. See 8 C.F.R. 9 204.50')(5). 
In the instant matter, the various statements that address the petitioner's business transactions indicate that the 
beneficiary's presence in the United States has been and would be extremely limited by the continued need for 
his direct involvement with the business activity taking place abroad within the foreign entities. Although the 
petitioner indicated in Part 5, Item 2 of the Form 1-140 that it had three employees at the time of filing, the 
record lacks any evidence to corroborate this claim. To the contrary, the petitioner's third quarterly tax return 
for 2005, which includes the time period the Form 1-140 was filed, indicates that the petitioner had no 
employees during the relevant time period.1 If the petitioner continued to engage in business transactions as 
' Although the petitioner claimed one employee on the Form 1-140, no salaries or wages were paid and the alleged 
employee was not identified. Moreover, the employees the petitioner claims it employs in India and Singapore have not 
been shown to be employed by the U.S. entity. Contrary to the petitioner's claims, the evidence indicates that these 
employees were employed by a separate legal entity abroad, not by the petitioner. 
claimed, the AAO is entirely unclear, based on the lack of evidence, how the business activity was conducted 
without a US.-based support staff. It 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 of 
Ho, 19 1&N Dec. 582,591-92 (BLA 1988). 
Furthermore, while the petitioner's broad statements regarding the beneficiary's proposed employment in the 
United States indicate that the beneficiary would have the discretionary authority of someone employed in a 
qualifylng managerial or executive capacity, the statements lack a detailed description of the beneficiary's 
proposed daily activities. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afld, 905 F.2d 
41 (2d. Cir. 1990). Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is 
not sufficient. As stated above, the regulations require a detailed description of the beneficiary's daily job 
duties. See 8 C.F.R. 5 204.5(j)(5). Where, as in the instant case, the petitioner fails to provide CIS with a 
specific list of duties, the AAO cannot affmtively conclude that the beneficiary would primarily perform 
tasks of a qualifylng nature. 
Finally, the AAO must question, as the director did in her prior decision, how the petitioner would enable the 
beneficiary to primarily focus on performing qualifyrng tasks in light of the lack of a support staff to relieve 
him from having to directly engage in the performance the petitioner's daily operational tasks which would be 
a necessary part of the petitioner's daily business operation. The record does not indicate who performs the 
petitioner's daily administrative, bookkeeping, and sales-related tasks. Despite the indication that the 
petitioner employs an international sales manager, the record does not establish that this individual was 
employed in the United States at the time of or subsequent to the petitioner's established priority date. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofici, 22 1&N Dec. 158, 165 (Cornm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg, Comm. 1972)). 
While the AAO acknowledges that the petitioner's eligibility cannot hinge entirely on the issue of the 
petitioner's staffing structure, the relevant statute and regulations state that the petitioner must establish that 
the beneficiary's proposed employment in the United States would primarily consist of qualifylng tasks. 
Without evidence establishing that the petitioner is able to relieve the beneficiary from having to directly 
engage in nonqualifymg tasks despite the apparent lack of a support staff, the AAO cannot conclude that the 
beneficiary would primarily perform tasks of a qualifylng nature. 
Consequently, a review of the record indicates that the petitioner's ambiguous organizational structure, the 
lack of corroborating evidence regarding its staff, and its failure to submit a detailed description of the 
beneficiary's proposed list of duties support the director's decision to deny the petition. The petitioner fails to 
establish that it has reached the point where it can support a primarily managerial or executive capacity 
position. As such, the petition may not be approved for this reason. 
Furthermore, the record supports a finding of ineligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. § 204,50)(3)(i)(C) states that the petitioner must establish that it has a qualifjmg relationship 
with the beneficiary's foreign employer. The regulation at 8 C.F.R. 5 204.5Cj)(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; 
@) 
 One of two legal entities owned and controlled by the same group of individuals, 
each individdl 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. 
petitioner claims that it is a subsidiary of the beneficiary's foreign employer 
m 
a Singapore company. In support of this claim, the petitioner provides its operating 
agreement. Article I, Section L of the agreement identifies the beneficiary's foreign employer as the 
petitioner's only member. Article N, Section 4.1 further indicates that Exhibit A (which is found at the end 
of the operating agreement) will address the issue of the capital contribution purportedly made by the 
petitioner's only member. However, the only information contained in Exhibit A is the name of the foreign 
entity that was named in Article I, Section L of the operating agreement. There is no indication as to the 
amount of capital purportedly contributed in exchange for the foreign entity's membership. 
Furthermore, the petitioner provided a U.S. Income Tax Return for an S Corporation (Form 1120S), which 
was purportedly filed to declare the petitioner's earnings in 2004. To qualify as a subchapter S corporation, a 
corporation's shareholders must be individuals, estates, certain trusts, or certain tax-exempt organizations, and 
the corporation may not have any foreign corporate shareholders. See Internal Revenue Code, 
9 1361 (b)(1999). A corporation is not eligible to elect S corporation status if a foreign corporation owns it in 
any part. In the present matter, the petitioner claims that a qualifjmg organization exists because it is wholly- 
owned by the Singapore parent company. If true, the petitioner would be ineligible to file as a subchapter S 
corporation. 
Accordingly, since the petitioner would not be eligible to elect S-corporation status with a foreign parent 
corporation, it appears that the U.S. entity is owned by one or more individuals residing within the United 
States rather than by a foreign entity. Confiig this fact, Schedule K-1 of the Form 1120s identifies 
Mwli Gopal, the petitioner's alleged international sales manger, as the petitioner's sole shareholder rather 
than the Singapore parent company. This significant inconsistency has neither been resolved nor even 
acknowledged by the petitioner. It 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 of 
Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Contrary to 8 C.F.R. 8 204.5(i)(3)(i)(C), the petitioner has not established that it has a qualifyrng relationship 
with the beneficiary's foreign employer. For this additional reason, the petition may not be approved. 
Second, 8 C.F.R. 3 204.5('j)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R !j 204.50)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods and/or services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." 
In the instant matter, the petitioner provided a number of invoices documenting the expenses incurred as a result 
of maintaining office space in the United States. However, as suggested by the definition of doing business, "the 
mere presence of an agent or office" is not sufficient to establish that the petitioner has been actively providing its 
products andlor services on a "regular, systematic, and continuous" basis. See id. Although the petitioner has 
submitted lists of U.S. vendors that supply the foreign entity's products, the petitioner has submitted 
insufficient evidence to establish that it had been doing business prior to or since the filing the Form 1-140. 
Again, the petition may not be approved for this additional reason. 
Finally, the AAO notes that the beneficiary was previously granted L-1A nonimmigrant classification based 
on the same purported quali%ng relationship and managerial or executive duties. This nonimmigrant 
petition (SRC 05 137 50428) has been incorporated into the record of proceeding. Upon review, the 
petitioner again claims that it is wholly owned by the purported Singapore parent company and yet again 
submitted its 2004 IRS Form 1120s S-Corporation tax returns. As previously noted, the corresponding 
Schedule K-1 states that the sole shareholder is d not Cirrus Electronics PTE Ltd., the 
Singapore company. Accordingly, the petitioner has not established that a qualifjmg relationship exists for 
purposes of the L-1A nonimmigrant petition. Additionally, the petitioner has submitted the same vague and 
broadly cast description of the beneficiary's duties. The AAO concludes that the statement of facts in the 
petition were not true and correct and that approval of the nonimrnigrant petition involved gross error. 
Because the petitioner failed to establish eligibility for the nonimrnigrant visa classification and the director 
approved the petition in gross error, the director shall review the approved nonirnmigrant petition and initiate 
revocation proceedings. See 8 C.F.R. 5 2 14.2(1)(9). 
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. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(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 
Page 8 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed. 
FURTHER ORDERED: The director shall review the approved nonimrnigrant petition (SRC 05 137 
50428) for revocation pursuant to 8 C.F.R. § 214.2(1)(9).