dismissed EB-1C Case: General Trade And Services

(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: JUN 2 9 2013 Office: CALIFORNIA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) ofthe 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 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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-2908, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request 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 that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
L~on Rosenberg 
~cting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The preference visa petition was initially approved by the Director, Nebraska Service Center, 
on October 5, 1998. The case was subsequently transferred to the California Service Center. Upon further 
review, the Director, California Service Center, issued a notice of intent to revoke the approval, and ultimately 
revoked approval of the petition. The petitioner appealed the revocation to the Administrative Appeals Office 
(AAO). The AAO withdrew the decision of the director and remanded the matter to the California Service Center 
for further consideration. The director issued a second notice of intent to revoke, and after reviewing the 
petitioner's response, revoked the approval of the petition and certified the decision to the AAO pursuant to 8 
C.F.R. § I 03 .4. The AAO will affirn1 the director's decision to revoke the approval of the petitioner's Form 1-
140. 
The petitioner is a California corporation engaged in general trade and services. It claims to be a subsidiary of a 
the beneficiary's claimed overseas 
employer. The petitioner seeks to employ the beneficiary as its president. Accordingly, the petitioner endeavors 
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)(I)(C), as a multinational executive or 
manager. 
The director concluded that the approval of the petition should be revoked based the petitioner's failure to 
establish: (1) that it has a qualifying relationship with the beneficiary's foreign employer; (2) that it will 
employ the beneficiary in a qualifying managerial or executive capacity. 
The director certified the decision to the AAO and advised the petitioner that it may submit a brief or other 
written statement for consideration within 30 days , pursuant to 8 C.F.R. § 1 03.4(a)(ii). The record reflects 
that the petitioner did not submit a brief within the given timeframe, and the record will be considered 
complete. 
I. The Law 
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 Executiv es 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 
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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 I-140 for classification of an alien under section 
203(b )( 1 )(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. 
Section 205 of the Act, 8 U.S.C. § 1155, states: "The Secretary of Homeland Security may, at any time, for 
what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under 
section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
MatterofHo, 19l&N Dec. 582, 590(BIA 1988)(citingMatterofEstime, 19 I&N Dec. 450(BIA 1987)). 
IL Procedural History 
The petition was initially approved by the Nebraska Service Center. Prior to the beneficiary's application for 
adjustment of status, the petitioner moved to California and the case was transferred to the California Service 
Center. Upon further review of the record and pursuant to an overseas investigation conducted on November 
19, 2002, the director of the California Service Center issued a notice of intent to revoke the approved 
petition . The director ultimately revoked the approval of the petition citing facts from the investigation 
report . The director found that the petitioner did not have a qualifying relationship with the beneficiary's 
claimed foreign employer, and that 
the beneficiary was never an employee of the foreign entity. 
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Through counsel, the petitioner appealed the revocation. The AAO withdrew the director's decision and 
remanded the matter back to the service center for further consideration. The AAO found that the director 
failed to fully comply with 8 C.F.R. § 103.2(b)(l6)(i), which states, in part: 
If the decision will be adverse to the applicant or petitioner and is based on derogatory 
information considered by the Service and of which the applicant or petitioner is unaware, 
he/she shall be advised of this fact and offered an opportunity to rebut the information and 
present information in his/her own behalf before the decision is rendered .... 
The AAO also noted that the record, as constituted, did not establish: (1) that the beneficiary would be 
primarily employed in a managerial or executive capacity as defined in sections 10 I (a)( 44)(A) and (B) of the 
Act, respectively; or (2) that the petitioner had been doing business for one year prior to filing the Form 1-140, 
as required by 8 C.F.R. § 204.5(j)(3)(i)(D). Finally, the AAO noted that the record contained inconsistencies 
in relation to the petitioner's incorporation documents. The AAO instructed the director to issue a new notice 
of intent to revoke to fully comply with 8 C.F.R. § I 03.2(b)(l6)(i), and to include the additional issues 
identified in the AAO's decision. 
The director issued a second notice of intent to revoke including the additional issues mentioned in the AAO 
remand. The petitioner responded to the notice and provided additional evidence. 
After reviewing the petitioner's response to the NOJR, the director revoked the approval of the petition, finding 
that a letter written by "the alleged president" of the foreign entity denying that he made the statements attributed 
to him in the investigation report is insufficient to establish that that the petitioner had a qualifying relationship 
with the foreign entity. The director found that although the petitioner submitted evidence to show business 
activities dating back to the time of its incorporation, it failed to establish a qualifying relationship with the 
foreign entity existed at the time of filing. The director stated that the president and other officials at the foreign 
entity stated that they knew the beneficiary and that the foreign entity gave her permission to open an office in the 
U.S., but that they did not have contact with the beneficiary after her arrival in the U.S. and that they were 
unaware of the existence of the petitioner's offices in California and Indiana. 
Ill. Analysis 
A. Qualifying Relationship 
Upon review, the AAO agrees with the director's determination that the petitioner has failed to 
establish a qualifying relationship with the beneficiary's overseas 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)(l)(C) of the 
Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" 
and "subsidiary"). 
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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; 
(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. 
As a preliminary matter, the petitioner's assertions that the NOIR failed to comply with regulation 
and binding precedent are unpersuasive. The regulation at 8 e.F.R. § 103.2(b)(l6)(i) requires that 
the petitioner be "advised" of derogatory information considered by the Service of which it is 
unaware and offered an opportunity for rebuttal. The decision in Matter of Estime requires that the 
notice include "a specific statement not only of the facts underlying the proposed action, but also of 
the supporting evidence." 19 I&N Dec. at 452. 
Although the petitioner asserts that users is required to provide the petitioner with a copy of the 
investigative report, 8 e.F .R. § 103 .2(b )(16)(i) requires only that a petitioner be "advised of' the 
derogatory information that USCIS would rely on in an adverse decision. The regulation does "not 
place upon users a requirement that the actual documents be provided to a petitioner in order to 
comply with due process." Mangwiro v. Napolitano, --- F.Supp.2d ----, 2013 WL 1499373 
(N.D.Tex., 2013) (adopting the reasoning ofnonprecedent BIA decisions). 
Here, the NOIR informed the petitioner that the evidence on record was insufficient to establish a 
qualifying relationship with the foreign entity and provided a specific statement describing the 
derogatory information contained in the overseas investigation report, including statements by the 
president of the foreign entity that there was no formal employment contract with the beneficiary. 
The NOIR also explained an employee of the foreign entity, identified as the personnel manager, 
stated that there was only an intention to establish a U.S. company and that there was a "loose 
association" between the petitioner and the foreign entity. 
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The NOIR gave the petitioner a chance to rebut the bases of denial, and the petitioner did, in fact, 
submit further evidence in response to the NOIR. The petitioner submitted a rebuttal letter from the 
General Director of the foreign entity denying that he made statements attributed to him in the 
investigation report and statements from the petitioner rebutting derogatory conclusions based on 
comments from an unidentified personnel manager. The evidence on record including the two 
NOIRs, AAO remand, and responses from the petitioner and the General Director of the foreign 
entity demonstrates that the petitioner was aware of the derogatory evidence and was provided 
sufficient detail to rebut the bases for the revocation. 
The petitioner asserts that without the actual investigation report, or at least the names and the time 
and date of the interview, it is unable to verify that the overseas investigator was at the correct 
location when conducting the interviews, and therefore, cannot verify that the personnel manager 
was privy to information regarding the beneficiary's employment or the existence of the U.S. 
subsidiary. This explanation is unpersuasive. It was the petitioner who provided the contact 
information of the foreign entity in the petition. Further, the petitioner claims that it relies heavily 
on the foreign entity to provide the cheap labor and to relieve the beneficiary from her non­
managerial non-executive tasks and the U.S. organization chart indicates that three of the employees 
subordinate to the beneficiary are compensated by the foreign entity. It seems unlikely that the 
personnel manager of the foreign employer would be unaware of the existence of a subsidiary using 
its personnel resources. Further the General Director submitted a rebuttal letter admitting that he 
was contacted by the overseas investigator, indicating the validity of the contact information used in 
the overseas investigation. 
Although the General Director submitted a letter rebutting that he made the statements in the 
investigation report, simply denying having made inconsistent statements that are documented in the 
record is insufficient to overcome the director's adverse finding. Rather, precedent case law requires 
the petitioner to resolve any inconsistencies in the record by submitting 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. at 591-92. Thus, while it is possible for an individual to make statements that may be 
interpreted in ways that are contrary to the petitioner's interests, the fact remains that the petitioner 
had the opportunity, both in response to the NOIR and on appeal, to rebut the adverse findings by 
submitted documentary evidence to support the intended claim. Here, such evidence was not 
submitted. Instead, the evidence on record supports the conclusion that there is no qualifying 
relationship between petitioner and 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 visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 
(Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 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 
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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. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder 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 ofthe subsidiary, and any other factor affecting actual control of the entity. See Matter 
of Siemens Medical Systems, Inc., 19 I&N Dec. at 362. 
In support of the Form 1-140, Immigrant Petition for Alien Worker, the petitioner appended a letter 
dated September 3, 1998, in which it claimed to be a wholly owned subsidiary of 
located in China, ("foreign entity"). The only 
stock certificate for the petitioner indicates that " owns 100,000 
shares of " _ ' The articles of incorporation for the petitioner were 
filed on October 23, 1995, and authorize the issuance of 100,000 shares of common stock.1 
The petitioner's IRS Form 1120, U.S. Corporation Income Tax Return, and the California Tax 
statements from October of 1996 through the time the petition was filed in 1998, indicate that the 
beneficiary, owns 1 00% of the petitioner's stock. The California Statement states 
names the beneficiary as the petitioner's sole officer This contradicts the petitioner's December 
1996 business license from the city of San Diego naming as 
the company's owners and the application to conduct business in Indiana as a foreign corporation 
file September 4, 1998, naming the corporate officers as: 
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). Without conclusive evidence showing the corporation's 
ownership and control, the petitioner cannot establish that a qualifying relationship exists with the 
foreign entity. 
The foreign entity's Instrument of Ratification submitted with the Form I -140 states that the foreign 
entity is a Sino-foreign joint venture owned by 
1 
It is noted that the articles of incorporation submitted with the Form I-140 were for a California corporation 
named · filed August 31, 1995. It does not appear this corporation is related to the 
instant matter. The petitioner submitted its articles of incorporation in response to the NOIR. 
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(20%); (20%); and 
_ _ (60%). The petitioner has failed to establish that the foreign entity 
possess an ownership interest and/or control over the U.S. company, such that the U.S. company 
qualifies as a subsidiary of the foreign entity. The petitioner has also not provided evidence that it is 
owned and controlled by the same group of individuals, such that it qualifies as an affiliate of the 
foreign entity. 
For the above mentioned reasons the petitioner has failed to establish a qualifying relationship with 
the foreign entity. 
B. Managerial or Executive Capacity 
The petition must also be revoked because the petitioner has failed to establish that the beneficiary 
would be employed in a managerial or executive capacity. 
Section 10l(a)(44)(A) of the Act, 8 U.S.C. § 110l(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. 
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Section 101(a)(44)(B) ofthe 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. 
In 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. § 204.50)(5). 
In response to the NOIR the petitioner submitted a detailed job description for the beneficiary's 
position in the U.S. indicating that her primary responsibilities include checking faxes and emails for 
important communications, directing the sales department to perform research and contact suppliers 
based on directions from the parent company, instructing the sales department to negotiate prices, 
meeting supplier executives in person to establish 
relationships, making ultimate decisions to meet 
parent company and customer needs, signing contracts and purchase orders, inspecting photos of 
products, reviewing the operation department's carrier bookings, dealing with Chinese inspection 
requirements, making sure a system is in place to track the customs and shipping documents, and 
directing the accounting department to make sure there are funds to pay business costs. 
A job description alone, no matter how detailed, is of little probative value unless the petitioner is 
able to support its claims by providing evidence to show that it had the human resources to support 
the beneficiary in a position where she is called upon to allocate the primary portion of her time to 
performing managerial- or executive-level tasks. It is reasonable to assume that any entity with 
limited staffing would require assistance from the individual(s) at the top of its organizational 
hierarchy to assist in carrying out the daily operational tasks. Thus, in reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that USCIS "may 
properly consider an organization's small size as one factor in assessing whether its operations are 
substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 
469 F.3d 1313, 1316 (9th Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F.2d 175, 
178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, it is appropriate for 
USCIS to consider the size of the petitioning company in conjunction with other relevant factors, 
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such as a company's small personnel size, the absence of employees who would perform the non­
managerial or non-executive operations of the company, or a "shell company" that does not conduct 
business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 
15 (D.D.C. 2001). 
The petitioner claims that it receives extensive support from the Chinese parent company and that 
the employees from the overseas company conduct the non-managerial functions to save on labor 
costs and the organization chart indicates that a Vice President in Charge of Sales, Senior Sales 
Agent, and Accounting Manager are compensated by the foreign entity. However, the petitioner has 
not provided any documents from the foreign entity to support these claims. The petitioner has not 
provided an organization chart for the foreign entity, pay records, communications, or any other 
documents to indicate the existence of sales, operation, or accounting departments to relieve the 
beneficiary of non-qualifying activities in her position with the petitioner. 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 ofCal~fornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner submitted federal and state employer quarterly tax returns for the first and second 
quarters of 1998, but did not submit the tax returns for the third quarter of 1998, the time period in 
which the petition was filed. The quarterly tax returns for the second quarter of 1998 indicate that 
the petitioner had three employees: the beneficiary; An organization 
chart provided in response to the NOIR, indicates that the is employed as a sales agent 
and · , is employed as an accountant. The tax return indicates that earned 
$2,400 and earned $2,200 in the second quarter of 1998. The fourth quarter tax 
return from 1997 indicated that the petitioner had one employee. 
While the AAO acknowledges that no beneficiary is required to allocate 100% of his or her time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the 
beneficiary performed or would perform were/are only incidental to the position in question. 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 International, 19 I&N Dec. 593, 604 
(Comm. 1988). It is therefore particularly important for the petitioner to provide enough information 
about the beneficiary's employment to establish how much of the beneficiary's time would be 
allocated to qualifying tasks versus those that are deemed non-qualifying. It is unclear how the 
beneficiary could allocate her time primarily to the performance of managerial or executive duties 
with a staff of one full-time employee, i.e., the beneficiary, and two potentially part-time employees. 
The petitioner has not provided evidence of sufficient staffing levels to relieve the beneficiary from 
performing the non-qualifying duties, and has failed to establish that the beneficiary would be 
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employed in a primarily managerial or executive capacity. For this additional reason, the approval 
must be revoked. 
IV. CONCLUSION 
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 decision of the director is affinned. The approval of the petition is revoked.