dismissed EB-1C Case: Export/Trade

U.S. Department of Homeland Security 
20 Mass. Ave.; N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: JUL 1 1 
LIN 03 139 52606 
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: 
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. 
Director 
Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation initially organized in the State of Oregon in May 1994. It exports commodity 
items to the Russian Far East. It seeks to employ the beneficiary as its vice-president. 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 determined that the petitioner had not established: (1) a qualifying relationship between the 
petitioner and the foreign entity; or (2) that the beneficiary would be employed in a primarily managerial or 
executive capacity for the United States petitioner. 
On appeal, counsel for the petitioner asserts: (1) that it is a 50-50 joint venture and that a qualifying 
relationship exists between the petitioner and the beneficiary's foreign employer; and (2) that the director 
erred when determining that the beneficiary would not be employed in a primarily managerial or executive 
capacity for the United States entity. 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 that indicates that the alien is to be employed in the United States in a managerial or executive 
rage 3 
capacity. Such a statement must clearly describe the duties to be performed by the alien. See 8 C.F.R. 
9 204.5fi)(5). 
The first issue to be considered in this proceeding is whether the petitioner has established a qualifying 
relationship with the beneficiary's foreign employer. In order to qualify for this visa classification, the 
petitioner must establish that a qualifying relationship exists between the United States and foreign entities in that 
the petitioning company is the same employer or an affiliate or subsidiary of the foreign entity. See section 
203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. 5 204.56)(2) states in pertinent part: 
AfJiliute 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. 
The petitioner averred in support of its qualifying relationship with the beneficiary's foreign employer that it 
is the subsidiary of both Too an-and that each of the two companies own an equal 
50 percent of the petitioner's stock and have equal control of the petitioner. The petitioner initially submitted: 
(I) its undated stock certificate number 3 issued to Too for 100 shares; (2) its undated stock certificate 
number 4 issued to Too or 100 shares; and, (3) evidence that the beneficiary had been 
employed by TOO- prior to his entry into the United States. 
On September 11, 2003, the director requested evidence clarifying the petitioner's status and relationship with 
the beneficiary's foreign employer. The director specifically requested: (1) documentation pertaining to the 
petitioner's involuntary dissolution in July 1999 and application for reinstatement submitted in June 2003; (2) 
documentation to evidence a qualifying relationship that could include annual reports, statements from the 
organization's president or corporate secretary, financial statements, and ownership of all outstanding stock; 
(3) articles of incorporation showing the authorized number of shares and evidence of the number of 
outstanding shares; (4) an explanation for the undated stock certificates; (5) stock certificates number 1 and 
Page 4 
number 2; and (6) the petitioner's Internal Revenue Service (IRS) Form 1120, U.S. Corporation Tax Return, 
for the 2002 year. 
In a December 2, 2003 response, the petitioner provided: (1) its articles of incorporation showing the 
corporation had authority to issue 1,000 shares; (2) stock certificates number 3 and number 4 amended to 
include the date of issuance as March 1, 1999; (3) stock certificate number 1 issued to Igor Surits and stock 
certificate number 2 issued to(4) a letter signed by the petitioner's secretary attesting that the 
petitioner had only 200 outstanding shares as evidenced by stock certificates 3 and 4; and (5) its 2002 IRS 
Form 1120 for the period covering June 1, 2002 through May 31, 2003 showing that Too and Too 
, each owned a 50 percent interest in the petitioner. 
Counsel also offered the following explanations: (1) that the petitioner did not receive a corporate renewal 
notice due to the petitioner's move to a new address in February 1999 resulting in its involuntary dissolution 
and that when the petitioner learned of its corporate status in June 2003, it took the necessary steps to resolve 
the involuntary dissolution and is in good standing with the Oregon Secretary of State; (2) stock certificates 
number 3 and number 4 were undated due to corporate oversight and have been amended to reflect the date of 
issuance, March 1, 1999; and, (3) that stock certificates number 1 and number 2 had been voided and 
cancelled when the interest of Igor Surits and Sergey Kiselow had been transferred to Too 'm and Too 
espectively, on March 1, 1999. 
On April 27, 2004, the director determined that the petitioner had not provided evidence that the beneficiary's 
foreign employer controlled the United States entity. The director, citing Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982), stated that control may be "de jure" by reason of ownership of 51 percent of outstanding 
stocks of the other entity or it may be "de facto" by reason of control of voting shares through partial 
ownership and possession of proxy votes. The director observed that evidence of control includes, but is not 
limited to, 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. The director concluded 
that without such evidence, Citizenship and Immigration Services (CIS) could not find that a qualifying 
relationship existed. 
On appeal, counsel asserts that the director erred when determining that control of an entity can be 
categorized only as "de jure" by reason of ownership of 5 1 percent of outstanding stocks of the other entity or 
"de facto" by reason of control of voting shares through partial ownership and possession of proxy votes. 
Counsel argues that this definition excludes the joint venture concept that contemplates that an owner of a 
fifty percent interest in a 50-50 ownership relationship, absent any other agreement, has the ability to exercise 
negative control by its right to vote its fifty percent of shares. Counsel cites an unpublished decision in 
support of his argument. Counsel also provides the petitioner's by-laws, subscription agreements, and 
resolutions that relate to the voting of the petitioner's shares, management, and direction. 
Counsel's assertions and documentation are not persuasive. The regulations and applicable precedent' 
decisions 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 of this visa 
classification. 8 C.F.R. 3 204.5(j)(2); Matter of Church Scientology International, 19 I&N Dec. 593 (Comm. 
1988); Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N 
Dec, 289 (Comm. 1982). 
In this matter, the petitioner has provided documentation to establish that the beneficiary's foreign employer 
owns a 50 percent interest in the petitioqer. The petitioner has provided evidence that its two owners each 
voted their corporate shares for the petitioner's directors and officers in March 1999. However, the petitioner 
has not supplied evidence that either stockholder has agreed to relinquish his control, such that if the two 
equal stockholders disagreed, the petitioner could continue operations. The petitioner has not provided 
evidence that it is a joint venture, but only that it has two stockholders, each holding a 50 percent interest. 
Without evidence that one or the other of the stockholders exercises control of the petitioner, the petitioner 
has not established a qualifying relationship. In this matter, the question of actual control still remains. The 
record does not include any evidence of voting proxies or other agreements showing that one of the 
stockholders has relinquished control. The definition of a subsidiary includes a provision for a parent 
company that owns 50 percent of a 50-50 joint venture. There are no provisions in statute, regulation, or case 
law that allow for the recognition of veto power of negative control in other than a 50-50 joint venture. 
For this reason, the petition will not be approved and the director's decision must be affirmed 
The second issue in this proceeding is whether the beneficiary will be employed in a managerial or executive 
capacity for the United States entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1 101(a)(44)(A), provides: 
The term "managerial capacity'' means an assignment within an organization in which the 
employee primarily 
1. manages the organization, or a department, subdivision, function, or 
component of the organization; 
. . 
11. 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; 
1 Counsel's citation to an unpublished decision is not probative in this matter. While 8 C.F.R. 3 103.3(c) 
provides that AAO precedent decisions are binding on all CIS employees in the administration of the Act, 
unpublished decisions are not similarly binding. 
. . . 
111. 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 
1. directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
111. 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. 
The petitioner, on the Form 1-140, Immigrant Petition for Alien Worker, filed March 27, 2003 stated that it 
employed seven people. In a March 19, 2003 letter appended to the petition, the petitioner stated: 
As Vice President, [the beneficiary,] will be responsible for negotiating settlements between 
foreign and domestic shippers, negotiating with domestic customers as intermediaries for 
foreign customers to resolve problems and arrive at mutual arrangements, and negotiating 
with foreign shipping interests to contract for reciprocal freight-handling agreements. He will 
plan and direct the flow of air and surface traffic moving to overseas designations and 
supervise workers engaged in receiving and shipping the freight, documentation, waybilling, 
assessing charges, and collecting fees for shipments. [The beneficiary] will also be 
responsible for budgeting and financial planning. Due to the countries to which the products 
are shipped to, this position requires an individual who is bilingual in Russian and English. 
The petitioner also provided its organizational chart showing its president associated with tasks relating to 
sales, purchasing, and personnel; the beneficiary in the position of vice-president/controller involved in 
logistics, accounting, and finance; an individual involved in logistics and cargo booking, a receptionist who 
assisted with purchasing and sales, a website designerladministrator; two sub-contractors involved with 
quality control; and several individuals located in various cities in Russia involved in sales, logistics, 
inspection, custom clearance, and quality assurance. 
On September 11, 2003, the director requested: (1) evidence establishing that the beneficiary satisfied all four 
criteria contained in the definition of manager or executive; (2) evidence that the petitioner employed seven 
individuals, by IRS Forms W-2, Wage and Tax Statement, issued to the employees or pay vouchers issued to 
each employee since the commencement of their employment; (3) a detailed job description for each of the 
seven employees; (4) examples of how the beneficiary exercised discretion in the petitioner's day-to-day 
operations; and, (5) evidence that the beneficiary would plan, organize, direct and control the petitioner's 
operations through other individuals. 
In response, counsel for the petitioner asserted that the beneficiary satisfied the criteria set out in the 
definition of managerial capacity. Counsel claimed that the beneficiary managed the petitioner's logistical 
and financial components and supervised five employees. Counsel contended that the employees under the 
beneficiary's supervision were professional employees who performed essential functions. The petitioner 
provided payroll statements for the month beginning February 16, 2003 and ending March 15, 2003 and for 
the month beginning March 16, 2003 and ending April 15, 2003. The payroll statements indicated the 
individual employed in the position of international trafficllogistics manager, the logistics specialist 
(previously identified as the receptionist), and the website designer were employed part-time. The petitioner 
provided checks issued to the two individuals identified as sub-contractors in the total amount of $125 for the 
month of January 2003, $310 in the month of February 2003, $264 in the month of April 2003, and $210 in 
the month of October 2003. The petitioner's 2002 IRS Form 1 120 for the period beginning June 1,2002 and 
ending May 31, 2003 showed $107,481 issued to the beneficiary and the individual in the position of 
president as officers of the corporation and $1 1,471 issued as salaries and wages. 
The director determined that the description of the job duties of the beneficiary's claimed subordinates did not 
show that the subordinate positions were professional positions and did not indicate that the subordinates 
supervised other individuals. The director also determined that the beneficiary's job description was 
indicative of an individual performing the petitioner's functions rather than managing them. The director 
concluded that the petitioner's organizational structure and the job descriptions of the petitioner's employees 
would not support a primarily managerial or executive position. 
On appeal, counsel claims that the beneficiary's duties fulfill the criteria detailed in the definition of executive 
capacity. Counsel contends that the petitioner's contracts with major shipping lines set the tone for the 
petitioner's long-term goals and plans and requires that top-level management negotiate the contracts. 
Counsel also asserts that the beneficiary supervises five subordinates who are professionals as evidenced by 
their educational degrees. Counsel notes the increased complexity of the organization and asserts that the 
beneficiary qualifies as an executive or manager because he not only directs major components of the 
organization; he also supervises "numerous" employees of the organization. Counsel also observes that the 
small size of a company does not exclude it from petitioning for individuals to fill managerial or executive 
positions. 
Counsel's assertions are not persuasive. 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. 
fj 204.5Cj)(5). Counsel, in response to the director's request for evidence, claimed that the beneficiary fulfilled 
the criteria set out under section 101(a)(44)(A) of the Act. On appeal, counsel claims that the beneficiary 
qualifies as both a manager under section 101(a)(44)(A) of the Act, and an executive under section 
101(a)(44)(B) of the Act. However, a petitioner may not claim a beneficiary is to be employed as a hybrid 
"executive/managerl' and rely on partial sections of the two statutory definitions. A petitioner must establish 
that a beneficiary meets each of the four criteria set forth in the statutory definition for executive and the 
statutory definition for manager if it is representing the beneficiary is both an executive and a manager. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high level responsibilities that are specified in the definitions. Second, the petitioner 
must prove that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). In this matter, the petitioner has not provided evidence to 
demonstrate that the beneficiary performs high-level responsibilities, rather than performing the day-to-day 
operational tasks associated with exporting commodities to Russia. The petitioner's job description indicates 
that the beneficiary is primarily responsible for negotiating contracts for shipping and providing the customer 
services necessary to move the commodities from one location to another. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 
1988). The petitioner has not provided evidence that the beneficiary's negotiation of contracts is a primarily 
executive duty, rather than the necessary task to enable the petitioner to operate its business. 
The petitioner's description of the beneficiary's duties also indicates that the beneficiary is responsible for 
planning the flow of air and surface traffic associated with moving the petitioner's commodities overseas. 
Although the petitioner states that the beneficiary supervises workers engaged in receiving and shipping the 
freight, the record does not substantiate that the petitioner employs sufficient personnel to relieve the 
beneficiary from primarily performing these duties daily. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
When the petition was filed in March 2003, the petitioner employed the individuals allegedly subordinate to 
the beneficiary part-time. The record reflects that for the first six months of 2003, the petitioner paid salaries 
of only $1 1,471 to all individuals subordinate to the beneficiary. Moreover, the petitioner paid its two 
sub-contractors less than $500 for the first quarter of 2003. In this matter, a petitioner must establish 
eligibility at the time of filing; a petition cannot be approved 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). The 
petitioner has not substantiated that the petitioner employs sufficient personnel so that the beneficiary does 
not spend the majority of his time on day-to-day functions. 
Counsel's claim that the beneficiary's subordinates are professional employees is not specifically relevant to 
the matter at hand. First, as noted above, the record does not substantiate that the beneficiary's subordinates 
relieve the beneficiary from performing primarily operational tasks; and, second, when evaluating whether the 
beneficiary manages professional employees, the AAO must focus on the level of education required by the 
position, rather than the degree held by the subordinate employee. The possession of a bachelor's degree by a 
subordinate employee does not automatically lead to the conclusion that an employee is employed in a 
professional capacity as that term is defined above. The AAO must evaluate whether the subordinate 
positions require a baccalaureate degree as a minimum for entry into the field of endeavor. The term 
"profession" contemplates knowledge or learning, not merely skill, of an advanced type in a given field 
gained by a prolonged course of specialized instruction and study of at least baccalaureate level, which is a 
realistic prerequisite to entry into the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 
1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). In this 
matter, the descriptions of the duties of the petitioner's part-time employees do not persuade that the positions 
require knowledge or learning beyond that of a skill in the logistics of moving cargo from place to place. 
The petitioner also fails to quantify the time the beneficiary spends on his various duties. This failure of 
documentation is important because providing first-line supervisory duties to part-time non-professional 
employees and negotiating contracts do not fall directly under traditional managerial or executive duties as 
defined in the statute. For this additional reason, the AAO cannot conclude that the beneficiary is primarily 
performing the duties of an executive or a manager. See e.g. IKEA US, Inc. v. US. Dept. of Justice, 48 F. 
Supp. 2d 22,24 (D.D.C. 1999). 
Counsel correctly observes that the small size of a company does not preclude the beneficiary from qualifying 
for classification under section 203(b)(l)(C) of the Act. However, in the present matter, the petitioner has not 
explained how the reasonable needs of the petitioning enterprise justify the beneficiary's performance of 
non-managerial or non-executive duties. As observed above, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. at 165. Furthermore, the reasonable needs of the petitioner will not supersede 
the requirement that the beneficiary be "primarily" employed in a managerial or executive capacity as 
required by the statute. See sections 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 9 1101(a)(44). 
On review, the petitioner has not presented sufficient evidence to establish that the beneficiary's duties for the 
petitioner comprise primarily executive or managerial duties. 
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. Here, that burden has not been met. 
ORDER: The appeal is dismissed.