dismissed EB-1C Case: Electronics

identieicg data deleted to 
prevse cl ssdy vw~srranted 
hvzsio~a of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 08 151 51761 
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. 9 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
~ohnv Grissom 
Acting Chief, Administrative 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 Florida corporation that claims to be engaged in the import, export, and wholesale 
of electronics. The petitioner seeks to employ the beneficiary as its manager. 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. 5 1153(b)(l)(C), as 
a multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to provide 
evidence establishing that it has satisfied the criteria cited in 8 C.F.R. $5 204.5(j)(3)(i)(B) and (C), 
which require that the petitioner establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity during a specified time period and that it has a qualifying 
relationship with the beneficiary's foreign employer, respectively. 
On appeal, the petitioner disputes the director's conclusions, asserting that the director abused his 
discretion in denying the petition and violated the beneficiary's right to due process. 
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 Iabor 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 regulation at 8 C.F.R. tj 204.5(j)(3)(i) requires that the following initial evidence be submitted in 
support of the Form 1-140: 
(A) If the alien is outside the United States, in the three years immediately preceding 
the filing of the petition the alien has been employed outside the United States for at 
least one year in a managerial or executive capacity by a firm or corporation, or other 
legal entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which the 
alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least one 
year. 
The director determined that the petitioner failed to meet the requirements discussed at 8 C.F.R. 
$5 204.5(j)(3)(i)(B) and (C), as described above. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 110l(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 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. 
 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. 
Additionally, the regulation at 8 C.F.R. 
 204.5(j)(2) states in pertinent part: 
AfJiliate 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 submitted two letters---one dated April 2, 2008 and the 
other undated-both of which were signed by the company's president. The dated letter was 
subdivided into five categories, including a discussion of the petitioner's status as a qualifying entity, 
the beneficiary's qualifications, the beneficiary's level of authority, the proposed position with the 
U.S. entity, and the nature and size of the petitioning entity. It is noted that neither letter specifically 
addressed the beneficiary's employment abroad, other than to state that the beneficiary was 
employed in Brazil in a similar industry. The petitioner also failed to provide the name of the 
beneficiary's employer(s) abroad or to discuss the beneficiary's position title or job duties during 
such employment. Although the undated letter briefly indicated that the petitioner has experience "at 
a national and international levels [sic]," the petitioner did not claim to have a qualifying relationship 
with any foreign entity. 
Accordingly, in a decision dated December 8, 2008, the director denied the petition, finding that the 
petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity and that it has a qualifying relationship with the beneficiary's foreign employer. 
The director observed that the statements made in the above support letters indicated that the 
petitioner was unaware of the requirements specified in 8 C.F.R. $tj 204.5(j)(3)(i)(B) and (C). 
On appeal, the petitioner asserts that the director's failure to issue either a request for additional 
evidence (WE) or a notice of intent to deny (NOID) establishes that the director acted arbitrarily or 
capriciously and generally abused his discretion. However, 8 C.F.R. tj 103.2(b)(8)(ii) states the 
following: 
If all required initial evidence is not submitted with the application or petition or does 
not demonstrate eligibility, [U.S. Citizenship and Immigration Services ] USCIS in its 
discretion may deny the application or petition for lack of initial evidence or for 
ineligibility or request that the missing initial evidence be submitted within a 
specified period of time as determined by USCIS. 
In light of the above provisions, the director has the discretionary authority to determine whether the 
issuance of an RFE or a NOID is necessary. In the present matter, the directly clearly felt that a 
denial was warranted and determined that no further evidence was necessary. Contrary to the 
petitioner's contention, the director's authority to deny the petition without first issuing an RFE or a 
NOID is expressly provided for in the regulations and does not amount to an abuse of discretion. 
Additionally, although the petitioner argues that the beneficiary's rights to procedural due process 
were violated, the petitioner has not shown that any violation of the regulations resulted in 
"substantial prejudice" either to the beneficiary or to the petitioner. See De Zavala v. Ashcroft, 385 
F.3d 879, 883 (5th Cir. 2004) (holding that an alien "must make an initial showing of substantial 
prejudice" to prevail on a due process challenge). Contrary to the assertions made, the petitioner has 
fallen far short of meeting this standard. A review of the record and the adverse decision indicates 
that the director properly applied the statute and regulations to the petitioner's case. The petitioner's 
primary complaint is that the director denied the petition without first issuing an WE or a NOID. 
As previously discussed, there is no mandate requiring the director to issue either notice prior to a 
denial. The record clearly supports the director's determination that the petitioner has not met its 
burden of proof and the denial was the proper result under the regulation. Accordingly, the 
petitioner's claim is without merit. 
As noted above, the petitioner has not adequately addressed the beneficiary's employment abroad, 
failing to identify the beneficiary's foreign employer, the dates of the beneficiary's employment 
Page 6 
abroad, or the job duties performed during such employment. Without this relevant information and 
documentary evidence establishing that the beneficiary was employed abroad during the requisite 
time period in a qualifying managerial or executive capacity, the AAO cannot conclude that the 
petitioner has met the criteria specified in 8 C.F.R. 5 204.50)(3)(i)(B). 
Additionally, although the petitioner has submitted its corporate tax returns for 2004 and 2005 in 
which Schedule K indicates that the petitioner is 100% Brazilian-owned, the petitioner provided no 
supplemental documentation specifically identifying its owner. Furthermore, aside from vaguely 
implying that it has an international presence, the petitioner has neither claimed nor provided 
evidence to establish that it shares common ownership and control with the beneficiary's foreign 
employer. See Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); 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). Therefore, the AAO cannot conclude that the petitioner has met the criteria 
specified in 8 C.F.R. 5 204.5(j)(3)(i)(C). 
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(')(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. 5 204.5(j)(2) 
states that doing business means "the regular, systematic, and continuous provision of goods andlor 
services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." Although the petitioner claims that it has been doing business for at least one year prior to 
filing the instant Form 1-140, 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 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972)). In the present matter, the petitioner claims to be in the business of acquiring 
and distributing electronics, thus indicating that purchase and sales transactions are at the heart of its 
business operations. While the petitioner has provided its bank account statements as well as the tax 
returns discussed above, these documents do not show the frequency of the petitioner's business 
transactions and therefore are insufficient for the purpose of establishing that the petitioner has been 
engaged in the "regular, systematic, and continuous" course of business during the requisite time 
period. See id. 
Second, 8 C.F.R. 5 204.5(j)(5) requires that the petitioner submit a letter of employment describing 
in detail the job duties to be performed during the course of the beneficiary's employment in the 
United States. In the present matter, the petitioner indicated that it currently has two employees and 
stated that the beneficiary would manage a retail store, which would include formulating pricing 
policies, coordinating sales promotions, placing product orders, and hiring and firing employees. 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). Neither the description of the beneficiary's proposed employment nor the 
petitioner's personnel composition at the time of filing indicates that the petitioner was capable of 
employing the beneficiary in a primarily managerial or executive capacity. 
Page 7 
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), afd, 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. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.