dismissed EB-1C Case: Electronics Distribution

U.S. Citizenship 
and Immigration 
Services 
In Re : 18353061 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEPT . 24, 2021 
Form 1-140, Immigrant Petition for Multinational Managers or Executives 
The Petitioner is a warehouse and distribution center for electronic eguipment manufactured in China 
by its majority shareholder....._ ______________ ...., and related companies . It seeks 
to permanently employ the Beneficiary as a business analytics director, at a salary of$91 ,000 per year, 
under the first preference immigrant classification for multinational managers or executives. 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C . § 1153(b)(l)(C) . 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer; (2) the Petitioner will employ the Beneficiary in the United States in a managerial or 
executive capacity; and (3) the Beneficiary has been employed abroad in a managerial or executive 
capacity. 
The Petitioner appealed the decision to us, and we dismissed the appeal. In the decision, we adopted 
and affinned the Director's decision, directly addressing only one ground for denial , specifically the 
qualifying relationship between the two employers . The matter is now before us on a combined motion 
to reopen and reconsider. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will grant the Petitioner's motion to 
reconsider; dismiss the motion to reopen as moot; and dismiss the appeal. 
I. LAW 
An immigrant visa is available to a beneficiary who , in the three years preceding the filing of the petition, 
has been employed outside the United States for at least one year in a managerial or executive capacity, 
and seeks to enter the United States in order to continue to render managerial or executive services to the 
same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker , must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same employer 
or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.5(i)(3). 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must 
state the reasons for reconsideration and establish that the decision was incorrect based on the evidence 
ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
II. QUALIFYING RELATIONSHIP 
In our appellate decision, we adopted and affirmed the Director's denial decision in full. But, while 
the Director's decision rested on three different grounds, our appellate decision only discussed one of 
those grounds. Specifically, we agreed with the Director's determination that the Petitioner did not 
establish that it has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a 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 
section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The regulations and case law confirm that ownership and control are the factors that determine whether 
a qualifying relationship exists between United States and foreign entities for purposes of this visa 
classification. 1 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. 2 Minority ownership of a company does not necessarily preclude control over that company. 
See the definition of "subsidiary" at 8 C.F.R. § 204.5(i)(2). 
Before entering the United States to work for the Petitioner, the Beneficiary worked forl I I later renamed! I The Petitioner asserts that it ~-------~ has a qualifying relationship with that company through the following chain of ownership: 
• ~. wns 34.32% of 
~ l which owns 77. 9% of 
• ~I ______________ ___,[ which owns 70% of 
• The Petitioning U.S. employer. 
The Director concluded, and we agreed, that the Petitioner had not establishedD control overD 
On motion, the Petitioner establishes that relevant authorities recognize □ as D "controlling 
shareholder." We need not discuss all the technical information submitted on motion, but as an 
1 See Matter of Church Scientology Int'!. 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Med. Sys., Inc., 19 I&N 
Dec. 362 (BIA 1986); Matter of Hughes. 18 l&N Dec. 289 (Comm'r 1982). 
2 Matter of Church Scientology Int 'l, 19 l&N Dec. at 595. 
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example, the Petitioner quotes the China Securities Regulatory Commission, which states: "In case 
that there is a relatively dispersed ownership of shares in an issuer, but a single shareholder controls 
30% of its shares, the shareholder shall in principle be determined as a controlling shareholder or 
actual controller, absent evidence to the contrary." In this case, Downs more than 30% ofD a 
considerably lhigler percentage than what any other shareholder owns. The submitted materials also 
indicate that has wielded a disproportionate influence over D in matters such as election of 
members of the board of directors. 
By a preponderance of evidence, the Petitioner has established □ de facto control overO and, as 
a result, a qualifying relationship between D and the petitioning entity. Because this information 
overcomes the only specified ground for dismissal of the appeal, we will grant the motion to 
reconsider. 
As noted above, our appellate decision did not address all the grounds for denial of the petition. As a 
result, reconsideration of that decision does not fully reverse the underlying denial or result in approval 
of the petition. Rather, granting the motion to reconsider effectively reinstates the underlying appeal. 
As such, we will dismiss the motion to reopen as moot. 
III. U.S. EMPLOYMENT IN A MANAGERIAL CAPACITY 
The Director determined that the Petitioner did not establish that it seeks to employ the Beneficiary in 
a managerial capacity. We agree, for the reasons explained below. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act, 8 U.S.C. § l 10l(a)(44)(A). 
To establish that a beneficiary is eligible for immigrant classification as a multinational manager, a 
petitioner must show that the beneficiary will perform all four of the high-level responsibilities set 
forth in the statutory definition at section 101(a)(44)(A) of the Act. If a petitioner establishes that the 
offered position meets all four elements set forth in the statutory definition, the petitioner must then 
prove that the beneficiary will be primarily engaged in managerial duties, as opposed to ordinary 
operational activities alongside the petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 
1313, 1316 (9th Cir. 2006). In determining whether the beneficiary's duties will be primarily 
managerial, we consider the description of the job duties, the company's organizational structure, the 
duties of the beneficiary's subordinate employees, the presence of other employees to relieve the 
beneficiary from performing operational duties, the nature of the business, and any other factors that 
will contribute to understanding the beneficiary's actual duties and role in the business. 
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In our initial appellate decision, we adopted and affirmed the Director's denial decision in its entirety. 
Nevertheless, when we did so, we did not address all the grounds for denial of the petition, and 
therefore the other grounds remain ripe for appellate review. 
In the denial notice, the Director stated that the Petitioner had provided only a vague and general 
description of the Beneficiary's duties, and had not shown that she would primarily manage a 
department, subdivision, function, or component of the organization. As discussed below, we agree 
with this conclusion. 
The Beneficiary entered the United States in December 2018 to work for the Petitioner in L-1 
nonimmigrant status. On the petition form, the Petitioner states that the Beneficiary "[s]upervises 
business operations such as customer service, purchasing, logistics, finance and administration (Please 
see Company Petition Letter for details)." In that letter, the Petitioner makes essentially the same 
assertion, stating that the Beneficiary "supervises directly and indirectly a team of supervisory and 
professional employees engaged in different aspects of business operation such as customer service, 
purchasing, logistics, finance and administration." But the Petitioner's accompanying organizational 
chart does not corroborate this claim. That chart indicates that employees engaged in customer service, 
purchasing, logistics, finance, and administration report to the vice president of operation. The 
Beneficiary's position appears on a different portion of the chart, as shown below: 
Vice President, Sales 
Sales Director, 
Automotive 
Business Development 
Director 
Sales Manager, Automotive 3 Engineers 
I 
Automotive Engineer 
Regional 
Sales Director 
Sales Manager 
I 
3 Inside Sales 
Director of Business 
Analytics (Beneficiary) 
This chart does not show any direct subordinates under the Beneficiary's authority. We note that the 
complete chart identifies 30 U.S. positions, but tax documents from early 2019 identify only 19 
employees - 15 in California, and one each in Illinois, Michigan, North Carolina, and Texas. A payroll 
report from February 2020 shows payments to only 10 employees. 
These conflicting claims regarding the Beneficiary's authority raise questions of credibility that the 
Petitioner must resolve with independent, objective evidence pointing to where the truth lies. See 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Because the Petitioner states that the Beneficiary 
had already served in this same position for six months at the time of filing ( and therefore her duties, 
responsibilities, and authority would already have been established), the conflicting assertions raise 
questions as to the actual duties that the Beneficiary has been performing since 2018. 
In a request for evidence, the Director asked the Petitioner to identify the individuals under the 
Beneficiary's authority. In response, the Petitioner stated that the Beneficiary "is responsible for 
directly and indirectly overseeing eight (8) subordinate employees in the U.S. including the following 
positions: Sales Manager, Inside Support, Service Specialist, Application Engineer, Accounting 
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Manager, and Staff Accountant. She also oversees various Sales Representatives that work for our 
company on a contract basis." The Petitioner submits a revised organizational chart that lists the 
following positions under the Beneficiary's direct or indirect oversight: 
Direct: 
Sales Manager 
r Inside Support 
t Inside Sales Representatives [ unspecified number] 
Sales Contractors [ unspecified number] 
Indirect: 
Application Engineer 
3 Service Specialists 
Accounting Manager 
L Staff Accountant 
The positions of "Inside Support," "Accounting Manager," and "Service Specialist" do not appear on 
the first version of the Petitioner's organizational chart. The "Staff Accountant" is on the chart, but 
not in the same chain of authority as the Beneficiary. Instead, the chart shows the "Staff Accountant" 
reporting to the "Admin. Mgr. / Financial Accounting," under the "VP Operation." The Petitioner 
does not explain why the two organizational charts are so different from one another, in terms of 
structure, the names of the positions, and the size of the staff 
The Petitioner's RFE response indicates that the Beneficiary has "two subordinate managers under her 
supervision (Sales Manager and Accounting Manager)." The initial organizational chart did not show 
the title of accounting manager, and the revised chart submitted in response to the RFE shows that the 
accounting manager reports directly to the vice president of operation, and only indirectly to the 
Beneficiary. 
The Petitioner asserts that the Beneficiary has authority over "sales contractors," but the Petitioner 
does not submit evidence (such as contracts and IRS Forms 1099-MISC, Miscellaneous Income 
Statements) to show the engagement of these contractors. 
There are other questions about the Beneficiary's job description apart from the staffing issues. The 
Petitioner states that the Beneficiary performs the following "major job duties," shown with the 
approximate percentage of time devoted to each: 
• Directing the service team and material planner, use customers' demands data and 
statistical methods to provide insight into business performance and production 
volume, inventory levels; making suggestions on methods on improving 
operations; (20%) 
• Implementing analytical approaches and methodologies and assisting in the 
interpretation of results; collecting and analyzing external market data to provide 
benchmarks for comparison purposes; (10%) 
• Presenting reports to management for use in decision making and strategic 
planning; (10%) 
• Providing input to strategic decisions that affect the functional area of 
responsibility; offering input into developing the budget; (10%) 
• Resolving escalated issues arising from operations and undertaking coordination 
with other departments; (10%) 
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• Directing the development and execution of analytical and/or research activities to 
provide senior leadership with information and tools for strategic decision making 
and planning; (10%) 
• Developing and preparing departmental scorecards & dashboards showing high 
level results and trends; (10%) 
• Collaborating with business units to advance the company's reporting capabilities 
and improve accuracy of data; (10%) [ and] 
• Maintaining relationships with and providing reporting & analytical support to 
business units and support cross-functional projects. (10%) 
In the RFE, the Director stated that the initial job description did not specify the Beneficiary's "day­
to-day tasks." The Petitioner's response included the same job description shown above, and a 
"Typical Day Summary" showing activities such as reviewing emails and sales reports; discussing 
sales performance with the vice president of sales; formulating financial models, and meeting with 
staff. The tasks described have only a partial and general relation to the initial assertion that the 
Beneficiary has authority over "customer service, purchasing, logistics, finance and administration." 
On appeal, the Petitioner asserts that the Beneficiary's position is "managerial in nature" because it 
"require[ s] the exercises of discretionary authority over key personnel matters and decisions 
[regarding] essential functions." The Petitioner quotes from its RFE response, but as discussed above, 
that response does not resolve the issues. The Petitioner notes that it "provided an organizational 
chart," but it actually provided two conflicting charts. 
The Petitioner asserts that the Beneficiary primarily manages the essential function of"the company's 
business analytics," and that the Beneficiary "is critical in ensuring that business data from various 
departments ... is analyzed and synthesized." The record does not show who performs the analytics 
function, if not the Beneficiary herself Job descriptions for the positions said to be directly or 
indirectly subordinate to the Beneficiary do not include analysis and synthesis of business data. 
The Petitioner asserts that the Director addressed only one item in the Beneficiary's job description, 
but there are several issues with the description. Several of the described responsibilities are worded 
vaguely and do not show the actual tasks that the Beneficiary performs to carry out those 
responsibilities. For example, the sixth item does not show who performs "the analytical and/or 
research activities" that the Beneficiary is said to oversee. The reference to "production volume" in 
the first item raises questions because the Petitioner produces no products of its own; it acts as a sales 
and distribution center for its foreign parent company and other entities. The first item also indicates 
that the Beneficiary directs "the service team and the material planner," but neither version of the 
Petitioner's organizational chart shows a "material planner." In the second item, it is difficult to 
interpret the phrase "[i]mplementing analytical approaches and methodologies and assisting in the 
interpretation ofresults," and it is not evident whom she would be assisting in this way. 
The Petitioner has not provided consistent information and evidence to establish the true nature of the 
Beneficiary's role with the company in the United States. Therefore, the Petitioner has not established 
that the Beneficiary will work in a primarily managerial capacity as required. 
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The Director also determined that the Petitioner had not established that the Beneficiary worked in a 
primarily managerial capacity abroad. Because the issues regarding her proposed U.S. employment 
determine the outcome of this decision, we reserve the separate issue of her past employment abroad. 3 
IV. CONCLUSION 
The Petitioner has established error in our prior determination regarding its qualifying relationship 
with the Beneficiary's foreign employer, but the Petitioner has not overcome a separate ground for 
denial of the petition. Therefore, we will grant the motion to reopen for the limited purpose of 
reinstating the appeal; dismiss as moot the motion to reopen; and dismiss the appeal. 
ORDER: The motion to reconsider is granted. 
FURTHER ORDER: The motion to reopen is dismissed as moot. 
FURTHER ORDER: The appeal is dismissed. 
3 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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