dismissed EB-1C Case: Food Distribution

(b)(6)
U.S. Department of Homeland Security 
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: OCT 3 0 2014 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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. § 1153(b)(l)(C) 
ON BEHALF OF 
PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:/Jwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Nebraska Service Center Director denied the preference visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed this Form I-140, Immigrant Petition for Alien Worker, 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. § 1153(b)(1)(C), as a multinational executive or manager. The 
petitioner is engaged in the "distribution and sale of food products," and claims to be an affiliate of 
the beneficiary's former employer located in 
Mexico. The petitioner seeks to employ the beneficiary in the position of President/CEO. 
On August 12, 2010, the director denied the petition concluding: (1) the petitioner failed to establish 
that the beneficiary's employment abroad was within a qualifying managerial or executive capacity; 
(2) the petitioner failed to establish that the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity; and, (3) the beneficiary, as 50% owner of the foreign 
entity and the majority owner of the petitioning company, cannot be considered an employee of the 
petitioner. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to us for review. On appeal, counsel submits a brief disputing the director's 
adverse findings. 
I. THELAW 
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. 
------------------------------"----··-·----------------------------
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Additionally, the regulations at 8 C.F.R. § 204.5G)(3)(i) state that the petitioner must provide the 
following evidence in support of the petition in order to establish eligibility: 
(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. 
II. THE ISSUES ON APPEAL 
A. Employment Abroad in a Managerial or Executive Capacity 
The issue to be addressed is whether the petitioner established that the beneficiary has been 
employed abroad in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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 
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NON-PRECEDENT DECISION 
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. § 1101(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. 
Finally, if staffing levels are used as a factor in determining whether an individual is acting in a 
managerial or executive capacity, US CIS must take into account the reasonable needs of the 
organization, in light of the overall purpose and stage of development of the organization. Section 
101(a)(44)(C) of the Act. 
1. Facts 
In a letter dated August 24, 2009, the petitioner explained that the beneficiary established the foreign 
company for the "purpose of importing and distributing cheese and related food products from the 
United States under his control and leadership, [the foreign company] grew from an importer of 
cheese products to a major distributor of a wide array of food products." 
The petitioner also submitted an organizational chart of the foreign company that indicated 19 
employees. The beneficiary was the general director who oversaw the entire company that included 
the following positions: Sales Department; Human Resources; Storage; Production; Design; Quality 
Control; Cashier; Maintenance; Storage Assistant and Route Designer; Accounting; Income; 
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Purchase and Logistics; Accounting Assistant; Logistics Accountant; Income Assistant; and two 
Accountant's Assistants. 
On April 8, 2010, the director sent a request for evidence ("RFE"). In part, the director requested a 
detailed job description of the beneficiary's specific tasks on a normal business day including the 
percentage of time spent on each task when employed by the foreign company. 
In response, the petitioner provided a statement that provided the duties performed by the 
beneficiary as owner and president of the foreign company as follows: 
As 50% owner and President, [the beneficiary] was principally in charge of the 
oversight of the company's day-to-day operations including but not limited to the 
implementation of the company's business plan; marketing, sales and customer 
portfolio expansion; approval of processes for marketing and sales goals; negotiates 
contracts for major equipment purchases and/or lease and service providers; met with 
major suppliers and clients. 
[The beneficiary] ensured the company's financial viability by overseeing the 
accountancy department (reviewing and approving financial statements and sales 
reports). He ensured that product lines met market demands in Mexico depending on 
his own on-line market research; approved strategies for the effective and efficient 
ordering, receipt, marketing and distribution of products at large; determined pricing 
margins; determined program effectiveness based on review of reports from 
managers. He recruited, hired and supervise management personnel; designated 
duties and responsibilities for management personnel; oversaw quality control 
management team; ensured that systems were in place for product compliance with 
Mexican import and sales regulations; ensured that the company provided for the 
proper transportation and storage of products. Negotiated service essential contracts 
with U.S. brokerage, transportation and storage service providers. As President, he 
planned, oversaw the incorporation and launching of [the petitioner's] operations in 
the United States. He implemented policies and customer/supplier relationship 
between [the foreign entity] and [the petitioner]. 
In general, [the beneficiary] kept a variation of the following schedule: 
[The foreign entity] 
(70% of his time toward the end of his post) 
4:00 to 6:00 a.m. (20%) - On-line market examination/price tracking related to dairy 
product market including the 
Spoke with contacts in Wisconsin and Chicago who are 3 hours 
ahead and are open for business. and act 
on information as it becomes available for the purchase or sale of product. 
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7:00 to 9:00a.m. (20%)- Reviewed banks accounts with financial team. Authorized 
electronic deposits, transfers and payments to suppliers. Monitored cash flow, 
reviewed approved accounts receivables and payables. Determined purchase 
feasibility and sales requirements. 
11:00 to 2:00 p.m. (25%) - Met with the purchasing and sales departments 
managerial teams. Obtained reports and information regarding market events and 
purchases. Received reports on merchandise status (expected merchandise in the 
purchasing department; expected merchandise to be delivered to customers; amount 
of merchandise to cross into Mexico); oversee contact/meetings with U.S. contracted 
services providers as required. 
Other activities (10%) - Met with suppliers including providers from China, 
Wisconsin, Los Angeles, Chicago, etc. Once or twice a week traveled to meet with 
customers or suppliers to strengthen or initiate business relationships. Met once a 
week with all departments to plan sales and marketing strategies. Additionally, [the 
beneficiary] visited expos and conventions in Chicago, Las Vegas, San Francisco and 
Los Angeles (among other cities) related to the food and dairy equipment industry. 
[The petitioner] 
(Approximately 25% of [the beneficiary's] time toward the end of his post at [the 
foreign entity). 
Daily checking-in with managers for approximately 30 minutes. Meet with general 
management and accounting teams once per week where [the beneficiary] received 
departmental reports, status on general company operations, identified areas that need 
attention and/or design plan of action if needed on any issues. Once per month on a 
Saturday, visit the company's retail sites. Once per month hold strategy sessions with 
the sales, purchasing and marketing departments where financials including taxes, 
credit lines, collections, accounts receivables and payables are reviewed. 
The director denied the petition on August 12, 2010, concluding that the petitioner failed to establish 
that the beneficiary was employed abroad in a qualifying managerial or executive capacity. 
2. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of 
the record, starting first with the petitioner's description of the beneficiary's job duties. See 8 C.P.R. 
§ 204.5(j)(5). A detailed job description is crucial, as the duties themselves will reveal the true 
nature of the beneficiary's foreign and proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), ajfd, 905 F.2d 41 (2d. Cir. 1990). We will then consider this 
information in light of other relevant factors, including job descriptions of the beneficiary's 
subordinate employees, the nature of the business that is conducted, the petitioner's subordinate 
staff, and any other facts contributing to a comprehensive understanding of the beneficiary's actual 
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Page 7 
role within the petitioning entity. While an entity with a limited support staff will not be precluded 
from the immigration benefit sought herein, it is subject to the same burden of proof that applies to a 
larger entity with a moderate or large subordinate staff. In other words, regardless of an entity's size 
or support staff, the petitioning entity must be able to provide sufficient evidence showing that it has 
the capability of maintaining its daily operations such that the beneficiary was relieved from having 
to primarily perform the operational tasks. 
In the present matter, upon review of the totality of the record, the evidence does not support a 
finding that the beneficiary allocated his time primarily to the performance of tasks that are within a 
qualifying managerial or executive capacity. 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties 
with the foreign company that fails to demonstrate what the beneficiary did on a day-to-day basis. 
For example, the petitioner stated the beneficiary spent 25 percent of his time meeting with the 
purchasing and sales departments' managerial teams, and "obtained reports and information 
regarding market events and purchases;" and "received reports on merchandise status (expected 
merchandise in the purchasing department; expected merchandise to be delivered to customers; 
amount of merchandise to cross into Mexico)." However, it is not clear how the beneficiary utilized 
all of these reports and what duties he performed with the marketing and sales, and the business 
operations he managed. Reciting the beneficiary's vague job responsibilities or broadly-cast 
business objectives is not sufficient; the regulations require a detailed description of the beneficiary's 
daily job duties. The petitioner has failed to provide sufficient details about the beneficiary's 
activities in the course of his daily routine. The actual duties themselves will reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
The job description also includes non-qualifying duties such as the beneficiary would spend 20 
percent of his time doing "On-line market examination/price tracking related to dairy product market 
including the "spoke with 
contacts in Wisconsin and Chicago who are 3 hours ahead and are open for business;" and "watched 
and act on information as it becomes available for the purchase or 
sale of product." The organizational chart of the foreign company did not indicate a marketing 
department and the petitioner did not explain who was in charge of the market research or the 
development of the marketing program. It appears that the beneficiary was in charge of marketing 
rather than directing such activities through subordinate 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 101(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 Intn 'f., 19 I&N Dec. at 604. 
In the instant matter, the job description submitted by the petitioner provides little insight into the 
true nature of the tasks the beneficiary performed abroad. While the petitioner has provided a 
breakdown of the percentage of time the beneficiary spent on various duties, the petitioner has not 
articulated whether each duty was managerial or executive. 
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Page 8 
In light of the foregoing discussion, the petitioner has not established that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity. 
B. U.S. Employment in a Managerial or Executive Capacity 
The next issue to be addressed is whether the petitioner established that it will employ the 
beneficiary in a qualifying managerial or executive capacity. 
1. Facts 
In response to the director's RFE, the petitioner provided the following description of the duties to be 
performed by the beneficiary in the proffered position as follows: 
As President and CEO, [the beneficiary] is responsible for the overall management of 
day-to-day affairs of the company including but not limited to the implementation of 
the company's business plan; marketing, sales and customer portfolio expansion 
approval of processes for marketing and sales goals; oversees major product 
purchases (typically those over $20,000); negotiates contracts for major equipment 
purchases and/or lease; meets with major suppliers and clients. 
[The beneficiary] ensures the company's financial viability by overseeing the 
accountancy department (reviewing financial statements and sales reports). As 
President/CEO he oversees [the petitioner's] operations with its affiliate [the foreign 
entity]. He ensures that product lines meet market demands depending on his own 
market research; approves strategies for the effective and efficient ordering, receipt, 
marketing and distribution of products at large; determines pricing margins; 
determines program effectiveness based on review of reports from managers and 
respective departments. He is responsible for the recruitment, hiring and supervising 
of management personnel; designates duties and responsibilities for management 
personnel; oversee quality control management team; ensures that systems are in 
place for product compliance with United States regulations; ensures that the 
company provides for the proper storage of products. 
In general, [the beneficiary] keeps a variation of the following schedule: 
[The petitioner] 
(Approximately 90% of [the beneficiary's} time.) 
4:00 to 6:00 a.m. (20%) - On-line market examination/price tracking related to dairy 
product market including the 
Speak with contacts in Wisconsin and Chicago who are 3 hours 
ahead and are open for business. and act 
on information as it becomes available for the purchase or sale of product. 
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7:00 to 9:00 a.m. (20%) - Reviewed banks accounts. Review and authorize 
transactional deposits, transfers and payments to suppliers. Check cash flow, review 
accounts receivables and payables. Determine purchase feasibility and sales 
requirements. 
11:00 to 2:00 p.m. (25%) - Check in with the purchasing and sales departments. 
Share information regarding market events and purchases, if necessary. Receive 
reports on merchandise status (expected merchandise by the purchasing department; 
expected merchandise which will be delivered to customers; amount of merchandise 
to cross into Mexico; reports on U.S. warehouse and products sold in USA). Make 
appointment with various stores to visit customers and our own retail outlets. 
Other activities (25%) - Met with suppliers including providers from China, 
Wisconsin, Los Angeles, Chicago, etc. Once or twice a week travel to meet with 
customers or suppliers to strengthen or initiate business relationships. Meet once a 
week with all departments to plan sales and marketing strategies. Additionally, [the 
beneficiary] visits expos and conventions in Chicago, Las Vegas, San Francisco and 
Los Angeles (among other cities) related to the food and dairy equipment industry. 
[The foreign entity] 
(Approximately 10% of [the beneficiary's] time.) 
Daily checking-in with Mexican Executives and Managers for approximately 30 
minutes for daily status update reporting. Meet with general management and 
accounting teams once per week where [the beneficiary] receives departmental 
reports, status on general company operations, identify areas that need attention 
and/or design plan of action if needed on any issues. Once per month on a Saturday, 
visit the company's sites and retail stores. Once per month hold strategy sessions with 
the sales, purchasing and marketing departments where financials including taxes, 
credit lines, collections, accounts receivables and payables are reviewed.' 
The petitioner also submitted an organizational chart of the petitioner that indicated the beneficiary 
as President who supervises the purchases department, the administrative department, and sales 
department who in turn supervise warehouse, driver, warehouse assistant, and administrative 
assistant. 
The director denied the petition on August 12, 2010, concluding that the petitioner failed to establish 
that the beneficiary would be employed in a qualifying managerial or executive capacity. 
2. Analysis 
When examining the executive or managerial capacity of the beneficiary, we review the totality of 
the record, starting first with the petitioner's description of the beneficiary's proposed job duties. See 
8 C.P.R. § 204.5G)(5). A detailed job description is crucial, as the duties themselves will reveal the 
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Page 10 
true nature of the beneficiary's foreign and proposed 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). The AAO will then 
consider this information in light of other relevant factors, including job descriptions of the 
beneficiary's subordinate employees, the nature of the business that is conducted, the petitioner's 
subordinate staff, and any other facts contributing to a comprehensive understanding of the 
beneficiary's actual role within the petitioning entity. While an entity with a limited support staff 
will not be precluded from the immigration benefit sought herein, it is subject to the same burden of 
proof that applies to a larger entity with a moderate or large subordinate staff. In other words, 
regardless of an entity's size or support staff, the petitioning entity must be able to provide sufficient 
evidence showing that it has the capability of maintaining its daily operations such that the 
beneficiary would be relieved from having to primarily perform the operational tasks. 
In the present matter, upon review of the totality of the record, the evidence does not support a 
finding that the beneficiary would allocate his time primarily to the performance of tasks that are 
within a qualifying managerial or executive capacity. 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties 
with the foreign company that fails to demonstrate what the beneficiary did on a day-to-day basis. 
For example, the petitioner stated the beneficiary spent 25 percent of his time meeting with the 
purchasing and sales departments' managerial teams, and "receive reports on merchandise status 
(expected merchandise in the purchasing department; expected merchandise to be delivered to 
customers; amount of merchandise to cross into Mexico; reports on U.S. warehouse and products 
sold in USA)." However, it is not clear how the beneficiary will utilize all of these reports and what 
duties he will perform to manage and run the business operations. Reciting the beneficiary's vague 
job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. The petitioner has failed to provide 
sufficient details about the beneficiary's activities in the course of his daily routine. The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. at 1108. 
The job description also includes non-qualifying duties such as the beneficiary would spend 20 
percent of his time doing "On-line market examination/price tracking related to dairy product market 
including the " "speak with 
contacts in Wisconsin and Chicago who are 3 hours ahead and are open for business;" and "watch 
and act on information as it becomes available for the purchase or 
sale of product." The organizational chart of the petitioner did not indicate a marketing department 
and the petitioner did not explain who will be in charge of the market research or the development of 
the marketing program. It appears that the beneficiary will be in charge of marketing rather than 
directing such activities through subordinate 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 101(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 Intn 'l., 19 I&N Dec. at 604. 
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In the instant matter, the job description submitted by the petitioner provides little insight into the 
true nature of the tasks the beneficiary will perform. While the petitioner has provided a breakdown 
of the percentage of time the beneficiary will spend on various duties, the petitioner has not 
articulated whether each duty is managerial or executive. 
In light of the foregoing discussion, the petitioner has not established that the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity and on the basis of 
this second adverse conclusion, this petition cannot be approved. 
C. Beneficiary as Employee and Majority Owner 
The director denied the petition after concluding that the beneficiary is an equal shareholder of the 
foreign company and the majority shareholder of the petitioner. The director stated that the 
beneficiary is the "person ultimately in charge and responsible of the two companies." The director 
cited to Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448-49 (2003) to support 
the assertion that a worker may only be defined as an "employee" if he or she is subject to the 
organization's control. The director found that the beneficiary is not controlled by the petitioner and 
stated, "To the contrary, it appears the beneficiary controls both organizations; he cannot be fired; he 
will report to no one; he will set the rules governing his work; and he will share in all profits and 
losses." 
Sections 203(b)(1)(C) and 101(a)(44) of the Act, along with the related regulations at 8 C.F.R. § 
204.50), all make use of the terms "employed," "employee," and "United States employer." These 
terms are not defined by statute or the applicable regulations. Accordingly, we must view how these 
terms are used in the statute and, considering the specific context in which that language is used, 
examine whether the terms are outcome determinative. 
Statutory interpretation begins with the language of the statute itself. Barnhart v. Sigmon Coal Co., 
534 U.S. 438, 450 (2002). We must "determine whether the language at issue has a plain and 
unambiguous meaning with regard to the particular dispute in the case." /d. (quoting Robinson v. 
Shell Oil Co., 519 U.S. 337, 340 (1997)). The "inquiry must cease if the statutory language is 
unambiguous and 'the statutory scheme is coherent and consistent."' Robinson, 519 U.S. at 340; see 
also United States v. Abuagla, 336 F.3d 277, 278 (4th Cir. 2003). 
While the statute uses the term "employee" in the definition of manager or executive, the key 
elements of the statutory definitions focus on the duties and responsibilities of the employee and not 
the person's employment status. Looking at the statutory scheme as a whole, it is most appropriate 
to review the beneficiary's eligibility by making a determination on his or her claimed managerial or 
executive employment. 
We recognize that there is some tension between the terms "employee" and "executive." In Matter 
of Aphrodite Investments Ltd., the INS Commissioner expressed concern that adopting the word 
"employee" would exclude "some of the very people that the statute intends to benefit: executives." 
17 I&N Dec. 530, 531 (Comm'r 1980); but see Clackamas Gastroenterology Assoc., P.C. v. Wells, 
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538 U.S. 440, 448-49 (2003) (examining whether a director-shareholder is an employee under the 
common-law touchstone of "control"). This tension would generally lead us to carefully consider 
the statutory definitions in their entirety, including the four critical subparagraphs of each definition. 
See sec. 101(a)(44)(A) and (B) of the Act. If U.S. Citizenship and Immigration Services were to 
focus solely on an employer-employee analysis, without considering the constituent elements of the 
definitions, the inquiry would be incomplete under the statute. 2 
Upon review, the beneficiary's employer-employee relationship with the foreign and petitioning 
entities is not the essential issue for consideration when evaluating the petitioner's eligibility. The 
decision of the director will be withdrawn as it relates to the beneficiary's status as an employee. We 
find no need to further explore the issue of an employer-employee relationship between the 
beneficiary and its foreign and U.S. employers. 
D. Qualifying Relationship 
Beyond the decision of the director, the petitioner did not establish a qualifying relationship with the 
entity where the beneficiary was employed abroad. To establish a "qualifying relationship" under 
the Act and the regulations, the 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 § 203(b)(1)(C) of the Act, 8 U.S.C. § 
1153(b )(1 )(C). 
In the present matter, the petitioner claims that the beneficiary is a 50% owner of the foreign entity 
and a majority owner of the U.S. company. However, the petitioner did not submit any evidence of 
the ownership of the foreign entity. The regulation and case law 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 classification. Matter of Church 
Scientology International, 19 I&N Dec. 593 (Comrn'r 1988); see also Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (Comrn'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 
1982). 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'r 
1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
The petitioner has not established that it maintains the requisite qualifying relationship with the 
beneficiary's foreign employer and thus, the appeal will be dismissed. 
2 The one area where the employment status of the beneficiary may be critical is the enabling statute at 
section 203(b)(l)(C) of the Act, which requires that the beneficiary has been "employed for at least one year" 
by a qualifying entity abroad. In this regard, based on the plain language of the statute, the beneficiary must 
be an employee of the foreign entity and not a contractor or consultant. 
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III. CONCLUSION 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by us 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 Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
ground of ineligibility discussed above, this petition cannot be approved. 
The petition will be denied and the appeal dismissed 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner 
has not sustained that burden. 
ORDER: The appeal is dismissed.