dismissed EB-1C Case: Food Distribution

identifying data deleted to 
prevent clearly unwmted 
invasion of personal pTiv&~y 
FILE: 
IN RE: 
LIN 08 013 58432 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
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. 
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 or reopen, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
Peny Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska 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 engaged in the distribution of food products. It seeks to employ the 
beneficiary as its general 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. $ 1153(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner failed to establish that it would employ the beneficiary in a 
managerial or executive capacity and denied the petition on that basis. On appeal, counsel submits a brief 
disputing the director's conclusions. All relevant submissions, including counsel's appellate brief, have been 
considered and will be addressed in the decision below. 
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 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 which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The primary issue in this proceeding is whether the beneficiary would be employed in the United States in a 
qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 3 
(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. 9 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. 
In support of the Form 1-140, the petitioner submitted a letter dated August 13, 2007, which includes the 
following list of the beneficiary's proposed duties and responsibilities: 
1. 
 To plan, develop, and establish policies and objectives of business organization in 
accordance with board directives and [the] corporation charter; 
2. 
 Confer with company officials to plan business objectives, to develop organizational 
policies to coordinate functions and operations between divisions and departments, and to 
establish responsibilities and procedures for attaining objectives; 
Page 4 
3. 
 Review activity reports and financial statements to determine progress and status in 
attaining objectives and revises [sic] objectives and plans in accordance with current 
conditions; 
4. 
 Direct and coordinate formulation of financial programs to provide funding for new or 
continuing operations to maximize returns on investments, and to increase productivity; 
5. 
 Plan and develop industrial, labor, and public relations policies designed to improve [the] 
company's image and relations with customers, employees, stockholders, and [the] public; 
6. 
 Evaluate performance of executives for compliance with established policies and objectives 
of [the] firm and contributions in attaining objectives. 
On July 18, 2008, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide a detailed description of the beneficiary's proposed day-to-day job duties with a percentage of time 
assigned to each duty; the job descriptions of the beneficiary's immediate supervisor and subordinates, also 
accompanied by the percentage of time to be spent on each of their respective job duties; copies of employee 
work schedules for 2007 and 2008; and any Forms W-2 and/or Forms 1099 that were issued to the petitioner's 
employees in 2007. 
In response, counsel submitted a statement dated August 28, 2008 in which he explained that the petitioner is 
a full-service natural food distribution company that supplies convenience and grocery stores as well as quick 
marts with high quality fruits and nuts. Counsel stated that the beneficiary's job duties are limited to 
overseeing and coordinating the corporate structure, which does not include any of the activities associated 
with stocking food on a daily basis. In addition, the petitioner provided the following percentage breakdown 
of the beneficiary's duties and responsibilities: 
25% Develops the basic objectives and operating plans of the [clorporation; submits these 
to the Board of Directors for approval. 
25% Insures that adequate plans for future development and growth of the business are 
prepared, and participates in their preparation; periodically presents such plans for general 
review and approval by the Board of Directors. 
15% Prescribes the specific limitations of the authority of employees regarding policies, 
contractual commitments, expenditures, and personnel actions. Reviews and approves the 
appointment, employment, transfer or termination of all key employees. Resolves any 
conflicts arising between operating groups, staff units and other elements under immediate 
supervision. 
10% Represents the [clompany as appropriate in its relationships with members, sponsor 
organization(s), major suppliers, competitors, government agencies, other financial 
institutions, professional societies, and similar groups. 
10% Analyzes operating results of the [clompany relative to established objectives and 
insures that appropriate steps are taken to correct unsatisfactory conditions. 
5% Insures that the [c]ompanyts policies are uniformly understood and properly 
interpreted and administered by employees. 
5% 
 Plans and directs all investigations and negotiations pertaining to mergers, joint 
ventures, acquisitions, or the sale of major business assets. 
5% 
 Presents proposed operating and capital expenditures budgets for review and 
approval by the Board of Directors. 
The petitioner also provided its organizat~onal chart, which depicts the beneficiary as the company's general 
manager, a position that is directly subordinate to that of president. The chart shows that the beneficiary's 
subordinates include a purchasing associate, an accounting/finance manager, and a sales manager who 
oversees five account associates. The organizational chart is accompanied by the IRS Forms W-2 and 1099 
statements that were issued to the petitioner's employees and service providers. It is noted that based on the 
wages paid to the sales manager and two of the account associates, it is unclear whether these employees 
worked for the petitioner on a full-time basis in 2007 and, if so, whether they were employed by the petitioner 
at the time the Form 1-140 was filed. 
In a decision dated January 20, 2009, the director denied the petition noting that the petitioner failed to 
provide its employees' work schedules. The director also referred to the beneficiary's job description, finding 
that the petitioner has failed to establish that the beneficiary has been effective in developing business plans 
and objectives or effecting growth and development of the entity, despite the fact that 50% of the beneficiary's 
time was assigned to these job responsibilities. 
On appeal, counsel contends that the director has taken several of the petitioner's previously made statements 
out of context, asserting that the beneficiary is at the top of the petitioner's organizational hierarchy and 
further stating that "the clear executive nature" of the beneficiary's proposed position has been established. 
Counsel goes on to discuss the beneficiary's supervisory control and states that the beneficiary has the 
managerial and executive experience "required in managing an essential function within the organization." 
Counsel's statements employ the terms executive and managerial almost interchangeably, while continuing to 
refer to the beneficiary as a function manager. The AAO notes, however, that a beneficiary may not claim to 
be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. If 
the petitioner chooses to represent the beneficiary as both an executive and a manager, it must establish that 
the beneficiary meets each of the four criteria set forth in the statutory definition for executive and the 
statutory definition for manager. 
Counsel next addresses the director's criticism of the petitioner's job description, claiming that it is not 
uncommon for the head of a corporation to devote 25% of his time to setting corporate objectives, developing 
a business plan, and preparing a strategy for attaining business goals. While counsel's assertion is valid, 
counsel is reminded that 8 C.F.R. fj 204.56)(5) requires the petitioner to clearly describe the duties to be 
performed by the beneficiary in hisher proposed position. This requirement is further supported by precedent 
case law, which has firmly established the need for specifics when describing the proposed employment, as 
the actual duties themselves reveal the true nature of the 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). In the present matter, the AAO finds 
that the job description lacks sufficient detail. Simply claiming that the beneficiary would spent 25% of his 
time developing objectives and operating plans fails to explain exactly what types of tasks the beneficiary 
performs in his efforts to develop objectives and operating plans, nor is there any indication as to how these 
broad job responsibilities apply specifically to the petitioner's food distribution business. 
The director also commented on the portion of the job description that allots 25% of the beneficiary's time to 
making plans for growth and development of the business. Specifically, the director questioned the validity 
of this portion of the job description in light of the lack of evidence to establish that the petitioner has in fact 
grown or progressed to a new stage of development. Counsel addresses this comment, explaining that while 
the petitioner experienced growth in 2005 and 2006, the subsequent changes in the U.S. economic climate 
caused the petitioner to move to "a survival maintenance mode," thereby implying that the beneficiary's job 
duties had somehow changed to accommodate the change in the economy. However, the petitioner did not 
explain how the beneficiary altered his job duties in light of the economic changes, nor did the petitioner's 
statement indicate that the petitioner had undergone any changes at all. In other words, if the economic 
climate had made it impossible for the petitioner to develop and grow, it would therefore make no sense for 
the beneficiary to commit 25% of his time to making plans for growth and development. This anomaly leaves 
the AAO to question what specific tasks the beneficiary would perform given the petitioner's current "survival 
maintenance mode," which, according to counsel, currently eliminates the need to plan for the petitioner's 
growth and development. 
Additionally, the petitioner indicated that another 10% of the beneficiary's time would be spent representing 
the company it its relationships with members, sponsors, suppliers, competitors, government agencies, and 
financial institutions. However, without further explanation, the AAO cannot conclude that this would be 
time spent performing qualifying managerial or executive tasks. Thus, in light of this observation as well as 
the above findings, it appears that 60% of the beneficiary's time may be spent performing non-qualifying 
tasks. Without more specific information as to the tasks that would consume 60% of the beneficiary's time 
and without further information establishing that the beneficiary's representation of the company can be 
deemed a qualifying responsibility, the AAO cannot conclude that the beneficiary's time would be primarily 
spent performing tasks within a qualifying managerial or executive capacity. See sections IOl(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). For this reason, the 
instant petition cannot be approved. 
Additionally, while the director did not issue a specific finding, he made several adverse comments about the 
petitioner's failure to establish its ability to pay the beneficiary's proffered wage. The regulation at 8 C.F.R. 
9 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In determining the petitioner's ability to pay the proffered wage, USCIS will first examine whether the petitioner 
employed the beneficiary at the time the priority date was established. If the petitioner establishes by 
documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, this 
evidence will be considered prima facie proof of the petitioner's ability to pay the beneficiary's salary. In the 
present matter, while the record shows that the petitioner employed the beneficiary since prior to the fiIing of the 
Form 1-140, the wage paid to the beneficiary at the time of filing was approximately $26,430, which is 
approximately $15,570 less than the proffered wage of $42,000. 
As an alternate means of determining the petitioner's ability to pay, the AAO will next examine the 
petitioner's net income figure as reflected on the federal income tax return, without consideration of 
depreciation or other expenses. In the present matter, while the RFE specifically instructed the petitioner to 
submit either its tax return or its audited financial statements for 2007, this information was not provided. 
Therefore, the AAO finds that the petitioner has failed to provide sufficient documentation establishing that it 
had the ability to pay the beneficiary's proffered wage at the time the Form 1-140 was filed and for this 
additional reason the petition cannot be approved. 
Next, the AAO must address another ground for eligibility which was not previously addressed in the 
director's decision. More specifically, 8 C.F.R. 8 204.56)(3)(i)(C) states that the petitioner must establish that 
it has a qualifying relationship with the beneficiary's foreign employer. 
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 visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 T&N Dec. 362 (HA 1986); Matter ofHughes, 18 T&N Dec. 289 (Comrn. 
1982). 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. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
In the present matter, the petitioner explained in its initial support letter that it is a subsidiary of the foreign 
entity that employed the beneficiary abroad. The foreign entity was also referred to as the petitioner's parent 
company. Contradicting these claims, the only documentation contained in the record regarding the 
petitioner's ownership is an ownership certificate dated March 24, 1999, which indicates that Hernando 
Valencia is the owner of 100% of the petitioner's units. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stoclolder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose 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. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362. Without full disclosure 
of all relevant documents, USCIS is unable to determine the elements of ownership and control. In the 
present matter, the petitioner contains nothing more that a share certificate, which directly conflicts with the 
petitioner's prior claims as to the issue of its ownership. It is noted that 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. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
 Furthermore, it is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In the present matter, there is an overall 
lack of sufficient documentation. This deficiency coupled with the anomaly regarding who actually owns the 
petitioning entity preclude the AAO from being able to conclude that the U.S. and foreign entities are 
similarly owned and controlled. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the MO 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), am, 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 MO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.