dismissed EB-1C Case: Freight Forwarding

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PUBLIC COpy 
DATE: JUN 1 9 2012 
INRE: Petitioner: 
Beneficiary: 
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 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(I)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with 
the field office or service center that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 8 C.F.R. 
§ 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) 
requires any motion to be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a Florida corporation that is engaged forwarding, and it seeks 
to employ the beneficiary as its Accordingly, the petitioner endeavors to classify 
the beneficiary as an pursuant to section 203(b)(l)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(l)(C), as a multinational executive or 
manager. 
On July 9, 201 0, the director denied the petition concluding the following: (1) the petitioner failed to 
establish that the beneficiary's employment abroad was within a qualifYing _or _ 
capacity; and, (2) the petitioner failed to establish that a qualifYing relationship exists between the 
beneficiary'S foreign employer and the U.S. petitioner. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel disputes the director's findings and 
provides an appellate brief laying out the grounds for challenging the denial. Counsel submits a brief 
and additional evidence in support of this assertion. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 frrm, 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. 
Page 3 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(I)(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 capacity. Such a statement must clearly describe the duties to be performed by the alien. 
See 8 C.F.R. § 204.S(j)(S). 
The first issue in this matter is whether the beneficiary'S employment abroad was within a qualifYing 
managerial or executive capacity. An analysis of the record does not lead to an affirmative conclusion 
that the beneficiary was employed abroad in a qualifYing managerial or executive capacity. 
Section I 01 (a)(44)(A) of the Act, 8 U.S.c. § I IOI(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other 
employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or 
function for which the employee has authority. A first-line supervisor is 
not considered to be acting in a managerial capacity merely by virtue of 
the supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § I I 01 (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; 
Page 4 
(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 examining the executive or managerial capacity of the beneficiary, USCIS will look first to the 
petitioner's description of the job duties. See 8 C.F.R. § 204.5G)(5). Published case law clearly 
supports the pivotal role of a clearly defined job description, as the actual duties themselves reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. lI03, lI08 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5G)(5). That being said, however, 
USCIS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the business, the employment and remuneration of 
employees, as well as the job descriptions of the beneficiary'S subordinates, if any, and any other facts 
contributing to a complete understanding of a beneficiary'S actual role within a given entity. 
petittoner stated that the beneficiary was employed by the 
The petitioner stated that in that position, the 
bellefici,rry was "re:sp,om,ible accounts: marketing decisions, sales goals, 
promotion of the services, handling distribution systems and training regarding the services, and 
developing new markets." 
director sent a notice of intent to deny and noted, in part, that the petitioner 
provided insufficient evidence to establish that the beneficiary was employed abroad in a managerial 
or executive capacity. In response, the petitioner submitted the job title and job duties of the 
beneficiary and other employees in that department. On the job duties, the petitioner listed the 
beneficiary as "Marketing/Supervisor;" however, on the organizational chart of the foreign company, 
the beneficiary was listed as the marketing assistant. The director noted this discrepancy in the denial 
decision. On appeal, counsel for the petitioner contends that the beneficiary held the position as 
Marketing Assistant with the foreign company which is "essentially a managerial job position." 
Counsel further states that "an error in the translation of a title should not result in a denial since the 
rest ofthe evidence should be given more weight." 
On review of the job description, the petitioner provided a vague and nonspecific description of the 
beneficiary'S duties that fails to demonstrate what the beneficiary was doing on a basis. 
For instance, the beneficiary's responsibilities with the foreign company included, 
of and sales"; "overseeing all management activities for 
marketing department are in place"; and "supervising all 
internal and external marketing and promotional efforts including merchandising, community 
relations, public relations, information, events." Reciting the beneficiary'S vague job responsibilities 
or broadly-cast business objectives is not sufficient; the regulations require a detailed description of 
Page 5 
the beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation of 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 petitioner's 
descriptions 0 f the beneficiary's position do not identify the actual duties to be performed, such that 
they could be classified as managerial or executive in nature. The job description submitted by the 
petitioner provides little insight into the true nature of the tasks the beneficiary performed. 
The job description also includes several non-qualifying duties such as the beneficiary was 
responsible for "developing marketing strategy and written action plans in order to achieve specific 
objectives"; "structuring and managed effective marketing strategies and programs that ensure a 
competitive edge"; "confers with marketing General Manager to develop methods and procedures to 
increase sales, expand markets and promote business"; and "consulting with clients to resolve any 
problems after a sale and provided ongoing support ensuring that all customer questions and requests 
are followed up in a timely manner." According to the organizational chart, the beneficiary is 
supervised by the president, general manager and the marketing sales manager. In addition, the 
beneficiary supervised the marketing coordinator and marketing clerk. It appears that the beneficiary 
will be in charge of several of the marketing and sales functions that are supervised by the general 
manager and the marketing sales manager, rather than directing all such activities through subordinate 
employees. A managerial or executive employee must have authority over day-to-day operations 
beyond the level normally vested in a first-line supervisor, unless the supervised employees are 
professionals. See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm'r 
1988). The petitioner did not establish that the beneficiary's subordinate employees were 
professionals. 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 IOl(a)(44)(A) and (8) ofthe Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); see also Matter of Church Scientology Intn 'I., 19 I&N Dec. at 604. 
Although the beneficiary is not required to supervise personnel, if it is claimed that her duties involve 
supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101(a)(44)(A)(ii) ofthe Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate 
whether the subordinate positions require a baccalaureate degree as a minimum for entry into the field 
of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he termprofession 
shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academies, or seminaries." 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'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.e. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 
1966). 
Page 6 
The AAO must focus on the level of education required by the position, rather than the degree held by 
a 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. In the instant case, the petitioner has not, in fact, established that a bachelor's 
degree is actually necessary, for example, to perform the administrative and marketing duties of the 
marketing coordinator and marketing clerk, who are the beneficiary's subordinates. 
The statutory defmition of the tenn "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 101(a)(44)(B) ofthe Act, 
8 U.S.c. § II01 (a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization. Inherent to the defmition, 
the organization must have a subordinate level of managerial employees for the beneficiary to direct 
and the beneficiary must primarily focus on the broad goals and policies of the organization rather 
than the day-to-day operations of the enterprise. An individual will not be deemed an executive under 
the statute simply because they have an executive title or because they "direct" the enterprise as the 
owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." !d. 
The beneficiary'S job duties, as described by the petitioner, are not indicative of an employee who is 
primarily focused on the broad goals and policies of the organization. The actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co .• Ltd. v. Sava, 724 F. Supp. 1103, 11 08 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). The petitioner has not established that the 
beneficiary is primarily engaged in directing and controlling a subordinate staff comprised of 
professional, managerial or supervisory employees, nor has it indicated that she is charged with 
managing an essential function ofthe petitioning organization. See section IOI(a)(44)(A) of the Act. 
Therefore, the AAO is not persuaded that the beneficiary was employed in a primarily managerial 
capacity. 
In addition, the evidence does not support the petitioner's claim that the beneficiary was employed by 
the foreign company for one year in the three years preceding the time of the beneficiary's application 
for classification and admission into the United States. The petitioner did not submit pay slips from 
the foreign employer or a letter from the foreign employer to confirm that the beneficiary was 
employed by the foreign company. 
The petitioner noted that USCIS approved the L-l petitions that had been previously filed on behalf of 
the beneficiary that had the same infonnation as the current petition. The director's decision does not 
indicate whether he reviewed the prior approvals of the other nonimmigrant petitions. If the previous 
nonimmigrant petitions were approved based on the same unsupported assertions that are contained in 
the current record, the approvals would constitute material and gross error on the part ofthe director. 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See. e.g. Matter of 
Page 7 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. 
Ltd. v. Montgomery, 825 F.2d 1084,1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory 
decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), 
afJ'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The second issue in this proceeding is whether the petitioner has established that it has a qualifying 
relationship with the beneficiary's foreign employer. 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)(I)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and 
"subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(8) 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 ofthe entity and controls the entity; or owns, directly 
or indirectly, half ofthe entity and controls the entity; or owns, directly or indirectly, 50 
percent of a 50-50 joint venture and has equal control and veto power over the entity; or 
owns, directly or indirectly, less than half of the entity, but in fact controls the entity. 
In the July 9, 2010 denial decision, the director stated that the petitioner did not present sufficient 
evidence to establish that the petitioner and the foreign employer are a qualifying organization. 
petitioner contends that the majority owner of the petitioner is 
located in Panama. Counsel also states that the majority 
Page 8 
employer is 
company are III essence 
-' 
and the beneficiary's foreign 
Thus, counsel contends that the "U.S. and the foreign 
nwnpcf and controlled by the same shareholder 
petition.er is owned by_ 
and "the rest of the stock are 
As evidence ofthe petitioner's ownership, the petitioner 
£!I~ill!:~ hlmm" Tax Return, 2008 for the petitioner that indicate that 
owns 65% and The tax 
documents do not indicate the minority stockholders. 
As general evidence of a petitioner's claimed qualifying relationship, a tax return alone is not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate 
entity. The stock certificates, 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.. supra. Without full disclosure of all relevant 
documents, useIS is unable to determine the elements of ownership and control. 
Furthermore, neither of the owners of the petitioner are the actual foreign employer of the beneficiary. 
On counsel contends that the majority stockholder of 
is also the majority stockholder ofthe beneficiary's foreign employer. 
On appeal, the petitioner submits a document entitled, "Capital Increase and Amendment of the Articles 
ofIncorporation" for the beneficiary's foreign employer. In that document, it lists the shareholders and 
number of shares held by each shareholder for the beneficiary's foreign employer. According to the list, 
the majority shareholder is On appeal, the petitioner also submits documents 
that state, "Certificate of Shares" for the claimed 
majority shareholder of the of this 
company IS 
As mentioned above, as general evidence of a petitioner's claimed qualifying relationship, a certificate 
of shares or an amendment of the articles of incorporation is not sufficient evidence to determine 
whether a stockholder maintains ownership and control of a corporate entity. The actual stock 
certificates, 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., supra. Without full disclosure of all relevant documents, USCIS is unable to determine 
the elements of ownership and control. 
Based on the evidence submitted, it is concluded that the petitioner has not established that a 
qualifying relationship exists between the U.S. and foreign organizations. 
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. § 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.