dismissed EB-1C Case: Import/Export

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizen ship and Immigration Services 
Office of Admini slralive Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: AUG 2 7 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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. § 1153(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.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
[;~ 
J(R~g 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the nonimmigrant visa petition and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of Texas which operates an import and export business 
and a restaurant. The petitioner states that it is an affiliate of located in Mexico. 
The petitioner seeks to employ the beneficiary as its President and Chief Executive Officer. 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 manager. 
The director denied the petition , finding that the petitioner failed to establish that it has a qualifying 
relationship with the foreign employer. Further, the director concluded that the petitioner had not established 
that the beneficiary will be employed in a managerial or executive capacity. 
On appeal, counsel asserts that the director ignored evidence submitted by the petitioner and reached an 
erroneous conclusion with respect to both grounds for denial. Counsel submits a brief in support of the 
appeal. 
I. TheLaw 
· 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 . 
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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 performed by the alien. 
Section 101(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 111 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 10l(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization 111 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; 
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(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. 
I. The Issues on Appeal 
A. Qualifying relationship between the petitioner and the foreign employer 
The first issue to be discussed is whether the petitioner has established that a qualifying relationship exists 
between the petitioner and the foreign employer. To establish a "qualifying relationship" under the Act and 
the regulation s, the petitioner must show that the beneficiary's foreign employer and the propo sed 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)(I)(C); see also 8 
C.P.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The pertinent regulation at 8 C.P.R. § 205.5(j)(2) defines "affiliate" and "subsidiary" as follows: 
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; 
* * * 
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. 
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 class ification. Matter of Church Scientology International, 19 I&N Dec . 593 (Comm ' r 1988); 
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Page 5 
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. 
As a preliminary matter , while the AAO will affirm the director's finding that the petitioner failed to establish 
a qualifying relation ship with the foreign entity, the petitioner conectly observes that the director's 
determination was based on a misunderstanding of the petitioner's claimed ownership . Specifically, the 
director appears to have reviewed only the ownership of the petitioner's partially-owned subsidiary, 
, and the ownership of the foreign entity, without acknowledging the evidence submitted to 
establish the common ownership and control between the petitioner and the foreign entity. Accordingly, the 
director's stated reasons for denial of the petition on this basis will be withdrawn. The AAO maintains 
plenary power to review each appeal on a de novo basis. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 
Accordingly, we will address the petitioner's evidence below . 
The petitioner asserted that the foreign employer is jointly owned by the beneficiary and his brother 
with each owning 175,000 of the 350,000 outstanding shares in the company. However, in a 
letter submitted in support of the Form I-140 Petition for an Immigrant Worker that the petitioner was a 
wholly-owned subsidiary of the foreign employer. The petitioner submitted a stock certificate suppotting the 
foreign employer's ownership of the petitioner's 1000 shares . However, the petitioner's IRS Form 1120 U.S. 
Corporation Income Tax Returns for 2009, 2010, and 2011, and related supporting IRS forms, all indicated 
that the beneficiary is the sole owner of the company. 
Subsequently, in response to the director's request for evidence (RFE), counsel stated that he had mistakenly 
failed to include evidence of a stock transaction that took place in the latter part of 2011 whereby the foreign 
employer transferred 500 of its shares in the petitioner to the beneficiary and the other 500 shares in the 
petitioner to Counsel stated that the petitioner is therefore an affiliate of the foreign 
employer because the beneficiary and his brother each own the same proportion of shares in each entity. In 
support of this assertion, the petitioner submitted stock certificates, a resolution of the petitioner's board 
approving the transaction, and a stock transfer ledger. 
However, the additional evidence submitted fails to address the material discrepancies on the record in the 
petitioner's IRS Form 1120s for 2009, 2010 and 2011, which all indicate that the petitioner is wholly owned 
by the beneficiary. Previous to the asserted stock transaction on November 18, 2011, the record included a 
material discrepancy with respect to ownership as the IRS Form 1120s for 2009 and 2010 were inconsistent 
with the assertion that the petitioner's assertion that it was wholly owned by the foreign employer. This 
discrepancy was not addressed or corrected in the IRS Form 1120 for 2011, and its accompanying IRS forms, 
despite these forms being completed and submitted after the date of the stated stock transfer to the 
beneficiary and in November 2011. It is incumbent upon the petitioner to resolve any 
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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. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the 
reliability and sufficiency of the remaining evidence offered in support of the visa petition . Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988) . 
Due to this unexplained inconsistency, the evidence on the record fails to establish that the petitioner and the 
foreign employer have a qualifying relationship. For this reason , the appeal must be dismissed. 
B. Employment with the petitioner in a managerial or executive capacity 
The next issue to be addressed is whether the petitioner has established that it will employ the beneficiary in 
a qualifying managerial or executive capacity . 
In denying the petition, the director noted the petitioner's failure to demonstrate that the beneficiary's 
subordinates are managers, supervisors, or professionals who will relieve the beneficiary from performing 
non-qualifying day-to-day operational duties . Also, the director reasoned that the petitioner described the 
beneficiary as a hybrid "executive/manager" and therefore failed to satisfy all elements of the statutory 
definition of either managerial capacity or executive capacity. 
On appeal, counsel states that the director's finding is "untenable," reasoning that the definitions of executive 
and manager are bound to overlap, thereby suggesting that a beneficiary may be described as a hybrid 
"executive/manager." Further, counsel contends the director mistakenly analyzed whether the beneficiary 
was a manager, and not an executive. Counsel also contends that a beneficiary need not have profe ssional 
subordinates to qualify under the statutory definition of "executive capacity", and that the petitioner has 
submitted sufficient evidence to establish the beneficiary as an executive consistent with the Act. 
The AAO does not find counsel's assertions persuasive. Upon review of the petition and the evidence , and 
for the reasons discussed herein , the petitioner has not established that it will employ the beneficiary in an 
executive capacity. 
First , the AAO does not concur with counsel's assertion that a beneficiary may be offered as a hybrid 
"executive/manager" or that it is untenable to require a petitioner to establish a beneficiary either as an 
executive or a manager, or both separately. In fact, this is the exact intent of the Act and regulations . The 
petitioner must clarify whether it is claiming that the beneficiary will be primarily engaged in managerial 
duties under section l0l(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of 
the Act. A petitioner cannot claim that a beneficiary will be employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. At a minimum, the petitioner must establish that the 
beneficiary meets all eligibility criteria under either section l01(a)(44)(A) or section 101(a)(44)(B) of the 
Act. Regardless, on appeal, the petitioner clearly claims that the beneficiary will be employed in an 
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executive capacity and, therefore, the AAO will analyze whether the beneficiary qualifies as an executive as 
defined at section 10l(a)(44)(B) of the Act. 
In order to determine whether the beneficiary would be employed in a qualifying executive capacity, USCIS 
will look first to the petitioner's description of the job duties. See 8 C .P.R. § 204.5(j)(5). In the RFE, the 
director requested that the petitioner submit a detailed description of the beneficiary's duties in the United 
States, including an estimate as to the percentage of time the beneficiary will dedicate to each duty. In 
response, the petitioner stated that the beneficiary "provides a leadership position to the company working 
towards developing a strong market position in the United States." Additionally , the petitioner submitted the 
following additional duties for the beneficiary in his capacity as president and chief executive officer: 
• Establishes goals (weekly, monthly and yearly) and policies of the organization. The 
President is in charge of setting goals for each employee. As to sale the product or 
gain clients. 5% 
• Exercises wide latitude in discretionary decision-making. The President decides the 
future of the company. There are certain risks he can take to try to achieve their goal 
of growing the business. I 0% 
• Know all of the information about the company, as to how it works, financial 
position, employees, and goals to meet with future clients to discuss what the 
company has to give. The President should be 100% prepared and knowledgeable 
about the company as a whole and how it works . He needs to be ready to answer 
questions and describe the product or services the organization provides. 5% 
• Create, communicate and implement the organization's vision, mission and 
overall direction. The president has to create and inform the staff of the different 
short term goals and the mission of the corporation. He implements the ideas so 
the staff and the company can achieve success. 10% 
• Create and manage a budget for the corporation and use the resources efficiently 
as possible within the guidelines. The President ensures a yearly budget for all 
the enterprise's present and future projects. He has an overview of the progress 
of the company monthly and yearly to achieve the budget goal. 10% 
• Approve any company operational procedures, policies, and standards. The 
President has to create the operational procedures for each of the employees and 
what the policies and standards of the company are. 5% 
• Review all of the accounting documentation to determine the progress and know 
the status of the business. The President has a total communication with the 
Public Accountant to make sure the company is advancing. He should know the 
position of the company and from the financial results he can change different 
technique s of the company to achieve its financial goals. 5% 
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• Promote the company to the general public, locally, region al [sic], nationally, and 
internationally constituencies. The President is in charge of approving any 
publicity of the company so it can be known locally through nationally . 5% 
• Directs the management of the organization or major component or function of 
the organization . The President will meet with the managers of the company to 
discuss the improvement of the company such as the progress of the staff . 10% 
• Rece ives only general supervision or direction from higher level executive s, the 
board of director s, or stockholders of the organization . The President will meet 
with any shareholder or director of the corporation to discuss the position of the 
company and to make new ideas for the success of the organization. 10% 
The definitions of executive and managerial capacity have two parts. First , the petitioner must show that the 
beneficiary perform s the high-level responsibilities thai are specified in the definitions. Second, the 
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 1533 
(Table) , 1991 WL 144470 (9th Cir. July 30, 1991) . 
Although the petitioner has provided a lengthy duty description for the beneficiary, the duty description is 
insufficient as it fails to provide details and specifics regarding his day-to-day tasks. Reciting the 
beneficiary's vague job responsibilities or broadly-cast business objectiv es is not sufficient ; the regulations 
require a detailed description of the beneficiary's daily job duties. The duties offered by the petitioner are 
vague and provide little probative value as to the beneficiary's actual daily activities. For instance, the 
petitioner provide s no specifics, details or supporting documentation regarding: goals established by the 
beneficiary ; visions, missions or direction implemented, scale of budgets managed ; or operational 
procedures, policie s, or standards implemented. In fact , the beneficiary 's listing of duties is less a duty 
description then a discussion of general attributes of any executive, such as "a President should be prepared 
and knowledgeable about the company ," "the President decides the future of the company ," or "the President 
has to create and inform the staff of the different short term goals and the mission of the corporation." 
Indeed, the dutie s provided for the beneficiary in the United States could apply to any executive with any 
company, in any industry. 
Given that the beneficiary currently serve s as the petitioner's president pursuant to an approved 
nonimmigrant petition , it is reasonable to expect a detailed description of the beneficiary 's actual day-to-day 
duties within the context of the petitioning organization based on its cunent staffing structure and stage of 
development. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in natur e. Merely repeating the language of the statute or regulations does not satisfy 
the petitioner's burden of proof . Fedin Bros. Co., Ltd. v. Sava , 724 F. Supp . 1103, 1108 (E.D.N.Y . 1989), 
affd , 905 F. 2d 41 (2d. Cir. 1990) ; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y .). 
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Overall, while the duty description suggests that the beneficiary possesses the appropriate level of authority 
as president of the company, the lack of detail regarding his specific day-to -day duties raises questions as to 
whether the broadly described responsibilities require 100% of his time . Further , while the petitioner 
indicates that it operates an import-export business and has a subsidiary that operates a restaurant , the duty 
description provided has no direct correlation to either of these businesses and does not distinguish how the 
beneficiary divides his time among his claimed managerial responsibilities for these two distinct operations. 
When examining the managerial or executive capacity of a beneficiary , USCIS reviews the totality of the 
record, including descriptions of a beneficiary's duties and those of his or her subordinate employees, the 
nature of the petitioner's business, the employment and remuneration of employees, and any other facts 
contributing to a complete understanding of a beneficiary's actual role in a business. The evidence must 
substantiate that the duties of the beneficiary and his or her subordinates correspond to their placement in an 
organization's structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not 
probative and will not establish that an organization is sufficiently complex to support an executive position. 
The petitioner asserts that it owns 50% of another company called _== 
in California. The petitioner further states that the other 50% of 
that operate s a sushi restaurant 
is owned by 
, an unrelated company. The petitioner is based in San Antonio, TX and described as being 
engaged in the import and export of goods, mainly from China . The petitioner indicated that it employs the 
beneficiary , a manager, a logistics representative and an assistant, although in respon se to the RFE, the 
petitioner stated that it had only two employees. The petitioner also stated in a support letter submitted with 
the petition that the company earned $808,130 in revenue from January through July 2012, $258,408 of 
which was generated from its import and export activities. As such, the majority of the petitioner's revenue 
is generated from the operation of . Indeed, the petitioner stated in response to the director' s RFE 
that "the San Antonio office continues to operate, but the company's primary focus is expansion into food 
services." The petitioner indicated that has eleven employees, including a manager with a 
subordinate sushi chef, chef, and head of waitresses. Additionally, an assistant sushi chef reports to the sushi 
chef , a cook and dishwasher to the chef , and four waitresses to the head of waitresses . 
On appeal, counsel contends that the director mistakenly analyzed whether the beneficiary qualified as a 
manager, and more specifically , whether the beneficiary was required to have professional subordinates. 
Counsel asserts that the petitioner will employ the beneficiary in an executive capacity, and therefore, is not 
required to establish that the beneficiary's subordinates are professionals . The statutory definition of the term 
"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) of the Act, 8 U.S.C. § ll0l(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 definition, 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 
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Page 10 
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 exerci se "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." I d. 
The petitioner has not submitted sufficient evidence to establish that the beneficiary will be employed in an 
executive capacity . The petitioner has presented as part of the petitioner's organizational 
hierarchy and indicates that is under the beneficiary's sole direction in his role as the petitioner's 
president and chief e xecutive officer. However, the record shows that is owned 50-50 by the 
petitioner and The petitioner has described as a joint venture, 
but has not provided e vidence of a joint venture agreement , shareholder agreement or any other docum ents to 
establish that the petitioner and/or beneficiary were given full direction and control over the subsidi ary and 
its restaurant business . The petitioner submitted 
contributed $53,000 to 
bank records which demon strate that 
operations from December 2011 to April 2012. 
However , the petitioner provide s no explanation or evidence regarding the involvement of this comp any or 
its management, despite it owning 50% of , an operation that is critical to the petitioner' s claim 
that the beneficiary is employed in an executive capacity. Going on record wit,hout supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceeding s. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). 
Further, even if the petitioner had submitted sufficient evidence to support its claim that the beneficiary has 
sole management authority over the restaurant business, the petitioner's description of the beneficiary's duties 
is vague and contain s no detail s specific to the operation of either an import-export busine ss or a restaurant. 
In addition, the petitioner submitted evidence that the restaurant is open daily for a total of 72 hours per 
week. While the restaurant appears to have one subordinate manager, the record does not establish how a 
single employee would relieve the beneficiary from all non-managerial tasks associated with the operation of 
the restaurant, including first-l ine supervisory and admini strative tasks . Given that the beneficiary works on­
site at the restaur ant, it is unclear why the petitioner's description of his job duties make s no specific mention 
of the restaurant operations. The evidence is insufficient to establish that the restaurant supports an executive 
position or that the petitioner has sole authority for management of this 50% owned business. 
Similarly , the petitioner has failed to establish that its Texas-based import-export business is able to support 
an executive position . At the time the petitioner responded to the RFE, it stated that the San Antonio office 
had only two employees. In fact, IRS Form W-2 Wage and Tax Statements for 2011 reflect that the three 
subordinates to the beneficiary working directly for the petitioner made less than the federal minimum wage 
of $15,080 for a fulltime employee . Also , the same IRS Form W-2's for 2011indicat ed that the stated 
manager working directly for the petitioner made less than her subordinate logistics representative and the 
same as her subordinate assistant. Again, artificial tiers of subordinate employees and inflated job titles are 
not probative and will not establish that an organization is s ufficiently complex to support an executive 
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position. The petitioner's claim s fail, in large part, because it is left unclear from the record what specific 
duties the benefici ary will be performing as the petitioner has provided a vague and non-speci fic duty 
description for the beneficiary that explains no specific executive decisions, goal s, policie s, or other 
qualifying level dutie s performed that relate to either the petitioner 's or operations . In sum, the 
totality of the evidence present ed on the record does not support a conclusion that the beneficiary will be 
employed in a qualifying executive capacity or that he primarily performs executive dutie s. 
For the reasons discussed above, the petitioner has not established that it will employ the beneficiary in a 
qualifying managerial or executiv e capacity. For this additional reason, the appeal must be dismissed . 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as a n 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; Matt er of Otiende, 26 
I&N Dec . 127, 128 (BIA 2013). Here , that burden has not been met. 
ORDER: The appeal is dismissed.