dismissed EB-1C Case: Import/Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF WMI-&E- CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 28, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an import/export company, seeks to permanently employ the Beneficiary as its president 
under the first preference immigrant classification for multinational executives or managers. 
Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § l 153(b)(l)(C). This 
classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United 
States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that: (1) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer; (2) the Beneficiary has been employed abroad in a managerial or executive capacity; 
and (3) the Petitioner will employ the Beneficiary in the United States in a managerial or executive 
capacity. 
On appeal, the Petitioner asserts that the Director erred by requesting evidence that does not exist and 
by mischaracterizing detailed job descriptions. 
Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the petition, 
has been employed outside the United States for at least one year in a managerial or executive capacity, 
and seeks to enter the United States in order to continue to render managerial or executive services to the 
same employer or to its subsidiary or affiliate. Section 203(b )(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same employer 
or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing 
business for at least one year. See 8 C.F.R. § 204.50)(3). 
Matter ofWMI-&E- Corp. 
11. EMPLOYMENT ABROAD IN AN EXECUTIVE CAPACITY 
The Director found that the Petitioner did not establish that the Beneficiary has been employed abroad 
in an executive capacity. The Petitioner did not claim that the Beneficiary's foreign employment was 
in a managerial capacity. 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 10l(a)(44)(B) of the 
Act. 
Based on the statutory definition of executive capacity, the Petitioner must first show that the 
Beneficiary performed certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 
1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the 
Beneficiary was primarily engaged in executive duties, as opposed to ordinary operational activities 
alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 
2006); Champion World, 940 F.2d 1533. 
When examining the claimed executive capacity of a given beneficiary, we will look to the petitioner's 
description of the job duties. The petitioner's description of the job duties must clearly describe the 
duties to be performed by the Beneficiary and indicate whether such duties are in a managerial or 
executive capacity. See 8 C.F.R. § 204.5G)(5). Beyond the required description of the job duties, we 
examine the company's organizational structure, the duties of a beneficiary's subordinate employees, 
the presence of other employees to relieve a beneficiary from performing operational duties, the nature 
of the business, and any other factors that will contribute to understanding a beneficiary's actual duties 
and role in a business. 
The foreign entity stated that the Beneficiary spent 35% of his time directing management and 
discretionary functions; 35% directing development functions; and 30% directing financial functions. 
In each of these three categories, the foreign entity listed five to seven responsibilities. For instance, 
the Beneficiary's direction of management and discretionary functions included these responsibilities: 
• Established goals and policies and approved Company's operational procedures, 
standards; 
• Analyzed the operations of the Company to evaluate performance and staffing 
needs; 
• Supervised the recruitment for personnel as needed; oversaw the Company's 
management and delegated supervision to the Vice President and/or the General 
Manager; 
• Planned, developed and established management, operations, sales and marketing 
policies and objectives of the company by reviewing activity reports and market 
conditions; 
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Matter ofWMI-&E- Corp. 
• Evaluated work performance for compliance with established policies and 
objectives of the Company and contributions in attaining objectives; 
• Conferred with the General Manager on daily issues and pending matters; 
• Supervised productivity in order to maximize returns for the Company. 
The Petitioner stated that, as president of the foreign entity, the Beneficiary had authority over the 
following subordinates: 
• Vice President 
• General Manager 
• Managing Director 
• Sales Manager 
• Operations Manager 
• Administrative Assistant 
• Freight Collections 
• Technical System Supervisor 
• Reception and Office Supervisor 
• Transportation and Deliveries 
• Maintenance Supervisor 
• Maintenance 
The foreign entity indicated that the Beneficiary "directed our organization at the highest level of 
management through two (2) professional executive/managerial employees, our Vice President ... 
and our General Manager," who "supervised the work of managerial employees our Company 
employed." 
The Director discussed elements of the Beneficiary's foreign job description, and concluded: "While 
the petitioner attributed categories of duties to the beneficiary, the petitioner did not identify specific 
duties which the beneficiary performed on a daily basis." The Director also concluded that the foreign 
subordinates' job descriptions lacked detail. 
On appeal, the Petitioner states: "A four and a half page definitive statement from the foreign company 
with a description of the Beneficiary and his subordinates' duties cannot be deemed to be non­
specific." 
The Beneficiary's foreign job description filled a page and a half, and the subordinates' job 
descriptions occupied two more pages. (The "four and a half page" figure includes a page of prefatory 
language that addresses level of authority rather than identifiable duties.) But many of the items in 
the Beneficiary's job description listed goals or responsibilities rather than the specific tasks that the 
Beneficiary performed to meet those goals. For example, the description indicated that the Beneficiary 
"[e]stablished relationships," "arranged for funds" and "[s]upervised productivity." 
Also, the foreign entity stated that the Beneficiary "[d]irected marketing strategies," "[s]upervised the 
recruitment for personnel," and "[o]versaw accounts receivable and accounts payable," but the 
Petitioner did not identify any subordinate staff that performed the tasks relating to marketing, 
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Matter ofWMI-&E- Corp. 
recruitment, and accounts. Likewise, the foreign entity stated that the general manager would 
"[o]versee contractual negotiations with suppliers," but the company did not specify who actually 
participated in those negotiations. Several individuals were said to review reports, but the record did 
not identify who prepared those reports. 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive 
or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 
41 (2d. Cir. 1990). Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job 
duties. The actual duties themselves will reveal the true nature of the employment. Id Without 
information as to who performed the company's operational tasks, it cannot suffice to assert that the 
Beneficiary and his highest-ranking subordinates oversaw or supervised those tasks. 
III. QUALIFYING RELATIONSHIP 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, a 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 
section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5G)(3)(i)(C). 
The regulation and case law confirm that ownership and control are the factors that determine whether 
a qualifying relationship exists between United States and foreign entities for purposes of this visa 
classification. 1 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 Int'l, 19 I&N Dec. at 595. 
The Petitioner's articles of incorporation authorized the issuance of 1000 shares, and a copy of a share 
certificate indicates that the Beneficiary's foreign employer owns those 1000 shares. The Petitioner 
asserts that this evidence establishes that the Petitioner is a wholly-owned subsidiary of the foreign 
entity. 
The Director found the certificate alone to be insufficient, and stated: 
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 
1 See Matter of Church Scientology Int 'l, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Med. Sys., Inc., 19 I&N 
Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
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Matter ofWMI-&E- Corp. 
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 profits, 
the management and direction of the subsidiary, and any other factor affecting control 
of the entity. 
Without full disclosure of all relevant documents, USCIS [(U.S. Citizenship and 
Immigration Services)] is unable to determine the elements of ownership and control. 
The Director's assertions derive from Matter of Siemens Med Sys., Inc., 19 I&N Dec. 1632. 
The Petitioner notes that Florida law does not even require the issuance of share certificates, and 
therefore the Director has required the submission of evidence, such as a stock ledger, that does not 
exist. This proceeding, however, does not center on the Petitioner's compliance with Florida 
corporation law, and claims that the Petitioner has made to the State of Florida are not controlling in 
this proceeding. Rather, the Petitioner seeks a benefit from the federal government, and it bears the 
burden of proof to establish eligibility for that benefit. The Petitioner acknowledges that it "does not 
have additional probative evidence to establish that it is owned by the foreign company." The non­
existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F .R. 
§ 103.2(b)(2)(i). An uncorroborated photocopy of a share certificate is not sufficient to establish 
ownership and control of the petitioning entity. 
The Petitioner asserts that "the foreign company was unable to transfer funds through its corporate 
bank account ... due to Venezuela's foreign exchange control at the time." The Petitioner submits a 
letter from an attorney, contending that these currency controls have led to a "black market." Rather 
than resolve the issue, this information highlights the need for reliable documentary evidence to 
support the Petitioner's claims. 
The Petitioner has not established that it has a qualifying relationship with the Beneficiary's foreign 
employer. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director also found that the Petitioner had not established that it will employ the Beneficiary in a 
managerial or executive capacity as required by 8 C.F.R. § 204.50)(5). However, because the issues 
regarding the Beneficiary's employment abroad and the qualifying relationship between the U.S. and 
foreign employers are dispositive in this case, we need not reach this other issue, and therefore reserve 
it. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative 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. The Petitioner 
has not met that burden. 
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Matter ofWMI-&E- Corp. 
ORDER: The appeal is dismissed. 
Cite as Matter of WMI-&E- Corp., ID# 1939766 (AAO Mar. 28, 2019)