dismissed EB-1C Case: Ice Cream Manufacturing

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S~ Citizenship
and Immigration
Services
SRC 05 228 50740
Office: TEXAS SERVICE CENTER . Date: MAYO 3 ..25fT
INRE: 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)(1)(C)
I .
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.
~~Robe .' WIemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
. 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 was organized in the State of Florida as a limited liability company. It is engaged in the
manufacture and distribution of Ice cream and seeks to et;nploy the beneficiary as its president and general
manager. Ac~ordingly, the petitioner endeavors to classify the beneficiary, as an employ~ent-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 director detennined that the petitioner failed to
establish that it has a qualifying rela!ionship with the beneficiary's foreign employer and denied the petition.
On appeal, counsel 'submits additional documents to address the director's adverse finding.
Section 203(b) of the Act states in pertinent part:
(l)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
allen's application for classification and admission into the. United States
under this subparagraph, has been employed for at least I year by a finn 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 finn, corporation or other legal entity, or an affiliate or subsidiary of that entity,
and who are coming to the Uriited States to,work for the same entity, or its affiliate or subsidiary.
A United States employer may file a petitlon on Fonn 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 fonn 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 perfonned by the alien.
The primary issue in this proceeding is whether the petitioner, has a qualifying relationship ~ith a foreign
entity.
The regulation at 8 C.F.R.,§ 204.5(j)(2) states in pertinent part:
Affiliate means: ,,'
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(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;
* * *
Multindtional 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,, "
halfof the entity and control~ the entity; oriowns, directly or indirectly, 50 percent ofa 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 factcontrols the entity..
In support of the Form 1-140, the petitioner provideddoc~mentation, which included the: following:
1. The petitioner's Articles of Organization, dated June 27, 2000. The document states that'
the petitioner would b~ a member-managed company and names a single member~
2. The petitioner's Article's of Amendment to the Articles of Incorporatio~.1 This docum~nt
names the·five managing members of the petitioning company.
3. Membership certificates nos. 1-5, naming each ine~ber and that 'member's respective
ownership interest. The beneficiary's ownership isteflected on certificate no. 2 and.shows
that he owns 51% of the petitioner.
4. The petitioner's 2004 partnership tax r~turn including Schedule K-l, which identifies ·only
four owners and their respective ownership interests. The beneficiary is shown as have a
56.67% share of the company's profits a~d losses. . .'
The director concluded that the petitioner failed to establish that its relationship with the beneficiary's foreign
employer fits one of the definitions cited in 8 C.F.R. § 204.5(])(2). More specifically, the director found that
the foreign entity is owned 60%/40% by the. beneficiary and one other .individual respectively and tl1at the
. petitioner is owned by five members. The director concluded that based on the ownership breakdowns of the
foreign and U.S. entities, the two companies are not similarly owned and controlled. Based on this
c()nclusion, the director ultimately determined that the petitioner failed to establish that it has a qualifying
relationship with the beneficiary's claimed foreign employer.
While the' AAO .concurs in the director's ultimate· determination, the director's unde:rIying analysis is
erroneous .. More specifically, the director primarily focuses on the fact that the foreign entitY is owned by
only two individuals, while the U.S. petitioner, according to the documentation submitted, is owned by
I It is unclear why this document refers to the petitioner's Aiticles of Incorporation (which applies to a corporate entity)
rather than the Articles of Organization,·as the petitioner has submitted evidence to clearly establish its organization as a
limited liability company, not as a corporation. This discrepancy is not explained in the record..
Page 4
multipleindivi,duals. Such an analysis would only be warranted where there is no claimed majority owner of
both entities. In this case, based on the membership certificates issued, by the petitioner and the foreign
entity's translated ownership documents, each entity appears to be majority owned by the beneficiary, which
suggests an affiliate relationship.
However, despite the director's oversight as to the alternate definition of an affiliate relationship, the record
contains a considerable inconsistency, which precludes a favorable determination. More specific.ally, even
though the record as a whole appears to suggest that the petitioner is majority owned by the beneficiary, the
, ,ownership breakdown described in the petitioner's five membership certificate:s,which identify a total ,of five
meTI.1bersincluding the beneficiary's 51% interest, are inconsistent with Schedule,K-1 of the petitioner's 2004
partnership tax return" which identifies only four members and indicates' that the beneficiary ownership
interest is 56.67%. 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 evidencepQinting to where the truth.1ies. Matter o[Ho, 19
I&N Dec. 582, 591-92 (BIA 1988).
In the'instantmatter, while both sets of ownership breakdoWns suggest that the beneficiary is the majority
owner of the U.S. petitioner, the AAO cannot overlook the inconsistency discussed above. It is, noted that the
petitionef has not provided any documentation to suggest that a change in ownership o~curied between June
of 2002, when the membership certificates were issued, and 2004, the date of the relevant partnership tax
return. The AAO further notes that on appeal, coUnsel maintains that the beneficiary owns 51 % of the
petitioning entity and fails to even acknowledge the information found in Scheduk·'K~l. of the 2004
partnership return.
Going on record without supporting documentaryeviderice 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)). In the.present matter, the petitioner,
has failed to provide documentation to reconcile the two distinct ownership breakdowns, thereby casting
doubt as to the entire claimed qualifying relationship. If CIS fails to believe that a fact stated in the petition is
true, CIS may reject that fact. Section 204(b) of the Act,' 8.U.S.C. § 1154(b); see also Anetekhai v. INS., 876
F.2d 1218;1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Stipp; 7, 10 (D.D.C.1988);
Systronics Corp. v. INS, 153 F. Supp.2d 7, 15 (D.D.C. 2001). As such, the petitioner has failed to establish
that it has a qualifying relationship with the beneficiary's foreign empl~yer.."
Additionally, the record supports a finding of ineligibilitY based on additional grounds' that were not
previously addressed in the director;s decision. More specifically, the record does not contain sufficient
evidence and information to establish that the beneficiary would be employed by the U.S. petitioner in a
managerial or executive capacity..
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). 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). As such, an accurate determination of the beneficiary's employment capacity
requirys a thorough description of the duties to be, performed by, the beneficiary on a daily basis. In the
,instant matter, the petitioner's letter dated July 20, 2005 provides a general overview of the beneficiary's
responsibilities. While those responsibilities as well as the beneficiary's position within the petitioner's
Page 5
hierarchy suggest that the beneficiary has ultimate detlsion-making authority; the petitioner has not provided
a detailed description of the beneficiary's ,dailyjob duties sufficient to determine what specific tasks are part
of his routine day on the job: The record also lacks 'sufficient information to. establish whom the petitioner
employed within its hierarchy to pefform the daily operational tasks at the time the Form 1-140 was filed. In
addition to the 'beneficiary's proposed job duties, the petitioner must establish that it was adequately staffed at
the time of filing such that the beneficiary would be relieved from having to primarily perform non-qualifying
duties. Such evidence is not a part of the petitioner's record. Therefore, the AAO cannot find, based on the
evidence of record, that the.beneficiary would be primarily employed in a managerial or executive capacity.
An application or petition that fails to comply with the technical requirements of the,law may be denied by
the AAO 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.n. Cal: 2001), ajJ'd, 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 AAO reviews
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this
petition cannot be approved. . "
When the AAO denies a petition ~rimultiple alternative gr~uI1ds, a plaintIff can ,succeed on a challenge oIlly
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v, United States, 229 F. Supp. 2d at 1043, ajJ'd, 345 F.3d 683.
The petition will be denied for the above stated r~asons, with each considered as an independent artd
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 h~s not
sustained that burden.
ORDER: The appeal is dismissed.