dismissed EB-1C Case: Immigration And Investment Services

(b)(6)
DATE: SEP 2. 7 201l OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b )(I )(C) of the Immigration and Nationality Act, 8 U.S. C. § II 53(b )(I )(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://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § I 03.5. Do not file a motion directly with the AAO. 
Thank you, 
l:~ 
~on Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the immigr ant visa petitio n and the matter is 
now before the Administrative Appeals Offic e (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corpora tion engaged in immigration and investment serv ices. The petitioner 
states that it is a subsidiary of in China. The petitioner 
seek s to employ the beneficiary as its managing director. 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. § ll53(b)(l)(C), as a multinational executive or mana ger. 
The director denied the petition, finding that the petitioner had not timely and adequ ately responded to a 
reque st for evidence (RFE). Specifically, the director noted that the petitioner had failed to submit the 
following directly requested evidence: (1) evidence that the petitioner has a qualifyin g re lationship with the 
foreign employer; and (2) evidence that the beneficiary had at least one year of full-tim e employment with 
the foreign employer in the three years preceding the filing of the petition. The director further observ ed that 
the petitioner fail ed to provide detailed descriptions of the beneficiary 's position with the foreign employer 
and proposed position with the petitioner or organizational charts depicting the personnel structure of the 
forei gn and U.S. companies. 
On appeal, counsel states that the petitioner submitted a timely respon se to the RFE . Further, counsel 
asserts that the petitioner provided sufficient evidence to establish that it has a qualifying relation ship with 
the foreign employ er and to establish that the beneficiary had one year of full-time qualify ing manag erial or 
executive employment abroad. Finally, counsel contends that the petitioner submitted detail ed job 
descriptions and organizational cha1ts. Coun sel indicated on the Form I-290B , Notice of Appeal or Motion, 
that he would submit a brief or additional evidence to the AAO within 30 days of filing the appeal. A review 
of the record indicates that neither counsel nor the petitioner submitted a brief or evidence within the 
required timeframe . Accordingly , the record will be considered complete. 
I. The Law 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immi grants who 
are aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is desc ribed 
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 
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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 I-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 petformed by the alien. 
II. The Issues on Appeal 
A. Timeliness of the petitioner's RFE response 
As noted above, the director denied the petition, in part, based on a conclusion that the petitioner did not 
respond in a timely fashion to his RFE. The director's RFE, issued on September 6, 2012, stated that the 
petitioner must respond by November 29, 2012 and that evidence received at the service center after the due 
date would not be considered. The director noted that the service center did not receive the petitioner's 
response to the RFE until December 3, 2012 , and therefore, the petitioner's response was untimely. 
On appeal, counsel states that the petitioner's response was in fact timely submitted. Counsel's assertion is 
correct. While the director instructed the petitioner to submit its response on or before November 29, 2012, 
the regulation at 8 C .F.R. § 103.8(b) provides that whenever an affected party "is required to do some act 
within a prescribed period after the service of a notice upon him, and the notice is served by mail, 3 days 
shall be added to the prescribed period." Therefore, taking into account this prescribed three-day period, the 
petitioner's response to the RFE was timely submitted. The director's finding that the response was untimely 
will be withdrawn. Nevertheless , the director did briefly reference the evidence submitted and found that 
even if had been timely submitted, it did not fully respond to the RFE. 
In this regard, counsel asserts that, contrary to the conclusion of the director, the petitioner did in fact submit 
evidence of the petitioner's qualifying relationship with the foreign entity, evidence of the beneficiary's one 
year of full-time employment abroad, and the required detailed position descriptions and organizational 
charts. 
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The AAO maintains authority to review each appeal on a de novo basis. Soltane v. DOl, 381 F.3d 143, 145 
(3d Cir. 2004). Accordingly, the AAO will address the merits of the petitioner's claims with respect to the 
remaining grounds for denial. 
B. Qualifying Relationship 
As noted above, the director denied the petition, in part, due to the petitioner's failure to provide evidence 
that the petitioner had a qualifying relationship with the 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)(l)(C) of the Act, 8 U.S.C. § 
ll53(b)(l )(C); see also 8 C.F .R. § 204 .5(j)(2) (providing definitions of the terms "affiliate" and 
"subsidiary"). 
The pertinent regul at ion at 8 C.P.R.§ 205.5(j)(2) defines a "affiliate" as follows: 
(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; 
The pertinent regulation at 8 C .P.R. § 205.5(j)(2) defines a "subsidiary" as follows: 
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 own s, 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. 
At the time of filing, the petitioner submitted the following evidence: 
• Articles of incorporation dated February 23, 2009 reflecting that the petitioner was authorized 
to issue 10,000 shares; 
• An amendment to the articles of incorporation dated February 12, 2012, which reflects that 
the petitioner increased its number of authorized shares to from I 0,000 to I ,000 ,000 ; 
• Copies of its initial and amended by-laws; 
• Minutes of an organizational meeting dated February 15, 2012 reflecting the following 
owners: 
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(1) ' 
and, This document references the corporation's 
authorization to issue up to 1,000,000 shares and its intention to issue new shares to 
the beneficiary; 
• An action of the petitioner's directors confirming the above-stat ed share owner ship and the 
issuance oC new shares to thebeneficiary; 
• Notice of Transaction dated February 20, 2012 stated that the beneficiary, as a representative 
of the foreign employer, paid o the petitioner, on behalf of the foreign employer, in 
exchange fo shares; 
• The petitioner's stock transfer ledger and stock ledger which identify a total of 90,000 shares 
of stock issued, including shares issued to the beneficiary on February 15, 2012 and 
the remaining shares distributed to 
• Minutes of the petitioner's organizational meeting dated March 26, 2012 indicated that the 
director's approved the transfer of the beneficiary's ,hares to the foreign entity; and 
• Copies of the petitioner's lRS Form 1120S , U.S. Income Tax Return for an S Corporation for 
2009 and 2010, which indicate at Schedule K that the petitioner was jointly and equally 
owned by 
In the RFE , the director reque sted that the petitioner submit additional documentation to establish that the 
petitioner had a qualifying relationship with the foreign employer. The director noted that this evidence 
could include annual repmts, statements from the organization's president or corporate secretary, articles of 
incorporation, financial statements , stock ledgers, and/or other evidence of ownership of all outstanding 
stock for both entities . 
In response, the petitioner re-submitted the same documentation relevant to its ownership. Also, the 
petitioner provided an lRS Form 1120S U.S. Income Tax Return for an S Corporation for 2011 indicating on 
Schedule K that the petitioner was wholly owned by With respect to foreign employer's 
owner ship, the petitioner provided a copy of the foreign entity's published Annual Report which includes a 
complete list of shareholders and identifies the beneficiary as the owner o1 of the company's shares 
as of September 20 1 1. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining wheth er 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 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 . 
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Pag e 6 
The petitioner has sub mitted conflicting evidenc e of its ownership. For insta nce, the petitioner's IRS Forms 
1120S for both 2009 and 2010 state that the petitioner was jointly owned by 
during those tax years . Also, the petitioner's provided IRS Form ll20S for 2011 states that the petition er is 
wholly owned by the afo rementioned However, the petitioner 's meeting minut es and stock ledger 
reflect that the petitioner was never jointly owned by or wholly owned by Mr. 
For instanc e, the stock ledge r indicates that the petitioner issued 
and on July 12, 2011. None of the petitioner's 
supporting documentation substantiates the information reported in the company's tax returns. In addition, 
the petitioner's stock ledger does not reflect the issuance of stock in 2009 when the petition er was 
incorporated. 
Further, the submitted meeting minutes from March 26, 2012 indicat e that the beneficiary assigned his 
"lhares to the foreign employer. However, the petitioner's stoc k ledger does not reflect this 
transfer ence nor doe s the petitioner submit a stock certificate indicating the foreign employer's acqui sition of 
the shares. It is incumbent upon the petitioner to resolve any inconsistenci es in the record by 
independent objective evidence . Any attempt to explain or reconcile such inconsistenci es will not suffice 
unles s the petitioner submits competent objective evidence pointing to where the truth lies. Doubt cast on 
any aspec t of the petitioner's proo f may, of course, lead to a reevaluation of the reliability and suffici ency of 
the remaining evidence offered in support of the visa petition . Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988) . 
The evidence of the petitioner's ownership is inconsistent and incomplete and thus fails to establish that the 
petitioner is a subsidiary of the foreign employer as claimed . As such, it cannot be deter mined whether the 
petitioner has a qualifying relation ship with the foreign employer. For this reason , the appeal will be 
dismi ssed. 
C. Employment in a Managerial or Executive Capacity 
In denying the petition, the director determined that the petitioner failed to submit a detailed posit ion 
description and organizational chatt pettaining to the beneficiary's U.S. and foreign employment. Therefor e, 
a remaining issue in this matter is whether the petitioner established that the beneficiary has been employed 
abroad, and would be employed in the United State s, in a qualifying manag erial or executive ca pacity . 
Upon review, the record cont ains sufficient evidence to establish that the foreign ent ity employ ed the 
beneficiary in an exec utive capacity . While the petitioner did not fully comply with the director's RFE with 
respect to the foreign employment, a review of the totality of the evidence of record reflects that the 
benefi ciary is the sen ior executive of a publicly traded company. The foreign entity's annual report co ntains 
executive biographies for the beneficiary and other senior managers and executives who report to him . 
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Page 7 
However, upon review of the petition and the evidence, and for the reasons discussed herein, the petitioner 
did not adequately respond to the director's RFE with respect to the beneficiary's proposed employment in 
the United States. 
In order to determine whether the beneficiary would be employed in a qualifying executive or managerial 
capacity, U.S. Citizenship 
and Immigration Services (USCIS) will look first to the petitioner's description of 
the job duties. See 8 C.F.R. § 204.5U)(5) . In a support letter submitted along with the petition, the petitioner 
described the beneficiary ' s duties as managing director of the petitioner as follows: 
• Work with CEO in developing business in furtherance of its objectives stated in 
the Articles of Incorporation 
• Balance, forecast, and amend budget 
• Manage high level employees and officers of the Company and take 
responsibilities for the tasks on hand 
• Attend various business trips, public meetings, international conferences, and 
public events to both national and international to promote the busines s 
• Cast vision and future direction and position of the company in a fast changing 
environment 
• Train staff on policies and procedures and monitors compliance 
• Ensure staff follows safety standards and guidelines 
• Perform duties of guest services staff as needed 
• Enforce strict compliance of the uniform and grooming standards 
• Oversee training of staff in customer service standards 
• Provide leadership to leads, staff and assists with overall management of 
department 
• Assist with new hire training and handles on-boarding tasks 
• Assist with the preparation of staff evaluations 
• Assist with staff disciplinary matters 
• Work extended hours as needed for special events, holidays and trouble calls 
• Assist management with other projects as needed 
As noted , the director found the above duty description insufficient to establish that the beneficiary would be 
employed in a managerial or executive capacity in the United States and requested that the petitioner submit 
a very detailed duty description for the beneficiary, including estimates of the percentage of time he would 
spend on each task . However, the petitioner did not submit any additional explanations relevant to the 
beneficiary's duties in the United States in response to the RFE. Again, failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R . § 103.2(b)(l4). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
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Page 8 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions . Champion World, Inc. v. INS, 940 F.2d I 533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Here, the petitioner fails to document what proportion of the beneficiary's duties would be managerial 
functions and what proportion would be non-managerial. The petitioner lists the beneficiary's duties as 
including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on the stated tasks . This failure of documentation is important because some of the 
beneficiary's daily tasks , such as performing dutie s of guest services staff, do not fall directly under 
traditional managerial or executive duties as defined in the statute. For this reason, the AAO cannot 
determine whether the beneficiary is primarily performing the duties of a manager or executive. See IKEA 
US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). 
Additionally, reciting the beneficiary's vague job responsibilities or broadly-cast busine ss objectives is not 
sufficient; the regulations require a detailed description of the beneficiary's daily job duties. The director 
correctly determined that the dutie s offered by the petitioner, such as developing business in furtherance of 
its objectives, balancing, forecasting and amending budget, attending various bus iness trips, casting vision 
and future direction, and providing leadership, are overly vague and provide little probative value as to the 
beneficiary's actual day-to-day activities. The duties , and the record generally, include no specific examples 
or documentation to support the beneficiary's vaguely proposed U.S. duties. Further, the petitioner does not 
specifically describe any specific management actions that will be carried out, budgets that will be managed, 
or vision or direction of the company that will be driven by the beneficiary . Specific s are clearly an 
important indication of whether a beneficiary's duties are primarily executive or man age rial in nature. 
Overall, 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. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Beyond the required description of the job duties, USCIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the company's organizational 
structur e, the duties of the beneficiary's subordinate employees, the presence of other employees to relieve 
the beneficiary from performing operational duties, the nature of the business, and any other factors that will 
contribute to a complete understanding of a beneficiary's actual duties and role in a busine ss. The petitioner 
indicates that it operates a "concierge & investment services" business with two current employees and gross 
annual income of $43,123. 
The director requested that the petitioner submit a detailed organizational chait including the name s of its 
employees, their titles and job duty descriptions. However, the petitioner failed to respond to this request 
and provided an organizational cha1t indicating that the beneficiary had two subordinates, a "CEO & 
operation manag er" and another subordinate "employee" below the aforementioned CEO. Although the 
petitioner identified these employees by name, the petitioner did not provide duty descriptions for these 
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Page 9 
employees as necessary to understand their functions and corroborate that they would primarily relieve the 
beneficiary from performing day-to-day operational duties. Once again, failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § I 03.2(b)(l4). In 
sum, the petitioner has not provided sufficient evidence with respect to the beneficiary's subordinates and the 
petitioner's organizational structure to establish that the beneficiary will act in a managerial or executive 
capacity. 
For the foregoing reasons, the petitioner has not established that it will employ the beneficiary in a qualifying 
managerial or executive capacity. For this additional reason, the appeal will be dismissed. 
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.D. Cal. 2001 ), aff'd. 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO review s 
appeals on a de novo basis). 
III. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 
I&N Dec . 127, 128 (BIA 2013) . Here, that burden has not been met. 
ORDER: The appeal is dismissed.