dismissed EB-1C Case: Import/Wholesale Of Handicrafts And Gifts

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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.-. and Immigration 
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FILE: WAC 03 021 54602 Office: CALIFORNIA SERVICE CENTER Date: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(lXC) of the Immigration and Nationality Act, 8 U.S.C. 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
Administrative Appeals Office 
WAC 03 021 54602 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based petition. 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 California in November 1999. It imports and 
wholesales handicrafts and gifts. It 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)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(C), as a multinational 
executive or manager. 
The director determined that the petitioner had not established: (1) that the beneficiary would be employed in 
a primarily managerial or executive capacity for the United States entity, or (2) that it has a qualifying 
relationship with the beneficiary's foreign employer. 
On appeal, the petitioner submits a letter and attachments in response to the director's decision. 
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 affdiate 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 fm, 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 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 fkmish a job offer in the form of a 
statement that 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. See 8 C.F.R. 
204.5QX5). 
WAC 03 02 1 54602 
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The first issue in this proceeding is whether the beneficiary will be employed in a managerial or executive 
capacity for the United States entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 1 101(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; 
. . 
11. supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a dqprtment or subdivision of the or'ganization; 
... in. 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 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101(a)(44)@3), 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; 
... in. 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. 
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In an October 25,2002 letter appended to the petition, the petitioner provided a statement of the beneficiary's 
current position and credentials: 
[The beneficiary] is our chief Executive OEcer and was manging [sic] Partner in India, he is " managing day to day [sic] operations of the corporation and represents corporation in 
numerous trade Shows [sic] and fairs and deals with the buyers and wholesalers of the 
company products, He [sic] also hires sales executives who book orders for the company and 
ship the orders. He is assisting the corporation to get more new products, buyers and arrange 
fimds fiom banks and other lending organizations. Marketing Research and and [sic] 
incorporation sales strategy and he takes all decision on day to day [sic] running of the 
corporation. He Has [sic] masters degree in Business Management and Diplomas in 
International and Business Management (Copies attached). 
The director requested, among other things: (1) the petitioner's organizational chart as of October 28, 2002, 
the date of filing the petition, including the names of all executives, managers, supervisors and number of 
employees within each department or subdivision; (2) a list of all employees under the beneficiary's 
supervision by name and job title and brief description of job duties; (3) a more detailed description of the 
beneficiary's job duties in the United States; and, (4) the petitioner's California Forms DE-6, Employer's 
Quarterly Wage Report, for the fourth quarter of 2002 and the first quarter of 2003. 
In a June 19, 2003 response, the petitioner provided its organizational chart showing the beneficiary in the 
position of president, an honorary secretary, a sales representative, and a shipping clerk. The petitioner 
described the beneficiary's duties as including: 
Defining the marketing strategies and implantation mechanism. 
Managing all the operations and taking all the major decisions of the corporation. 
Representing the corporation in numerous trade shows, fairs and deals with the buyers and 
the wholesale buyers of the company products. 
Hiring sales executives who books [sic] orders for the company and other staff who ship 
orders. 
Assists the corporation in getting more new products, buyers. 
Arranges funds from banks and other leading organizations. 
His experience in the gem industry and knowledge of handicraft in evaluating and valuing 
them makes him the best individual available to communicate with the buyers. 
The petitioner stated that: the petitioner's "honorary secretary" provided legal work for the company but 
received no annual wage; the petitioner's sales representative sold products to shopkeepers and other retailers, 
WAC 03 02 1 54602 
Page 5 
assisted in trade shows by setting up and dismantling the booth and received an annual salary of $14,400 plus 
commission; and, the petitioner's shipping clerk was responsible for cargo pickup and delivery and collection 
of payments and received an annual wage of $10,800. The petitioner's California Form DE-6 for the quarter 
in which the petition was filed confirmed the employment of the beneficiary, the sales representative, and the 
shipping clerk. 
The director determined that the petitioner's job description of the beneficiary's duties did not establish that 
the beneficiary would primarily direct the management of the organization, establish the company's policies 
and goals, exercise wide latitude in discretionary decision-making, and maintain autonomy over the 
petitioner's operations. The director, quoting Matter of Church Scientology International, 19 I&N Dec. 593, 
604 (Comm. 1988), observed that a beneficiary who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. The 
director determined that it was reasonable to believe that with the petitioner's organizational structure and 
type of business, the beneficiary would assist with the petitioner's day-to-day non-supervisory duties. The 
director concluded that the beneficiary "is only a first-line manager who is not supervising professional 
employees." 
On appeal, the petitioner claims that the beneficiary is its decision-maker and policy and goal setter and that 
he is the key man in the United States office. The petitioner asserts that there should be no discrimination 
against a company because of its small size. The petitioner notes that it has created two jobs in addition to the 
beneficiary. 
The petitioner's assertions are not persuasive. 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@(5). The petitioner has not established that the beneficiary's tasks for the petitioner are primarily 
executive or managerial tasks. For example, the beneficiary is responsible for "[dlefining the marketing 
strategies," and "[rlepresenting the corporation in numerous trade shows, fairs and deals with the buyers and 
the wholesale buyers of the company products," and "[assisting] the corporation in getting more new 
products, buyers." These are the duties of an individual performing the petitioner's marketing, promotion, and 
sales tasks. As the director observed, an employee who primarily performs the tasks necessary to produce a 
product or to provide services is not considered to be employed in a managerial or executive capacity. Matter 
of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner correctly observes that a company's size alone may not be the determining factor in denying a 
visa to a multinational manager or executive. See section 101(a)(44)(C), 8 U.S.C. !j 1101(a)(44)(C). 
However, it is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the 
petitioning company in conjunction with other relevant factors, 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. LNS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). In this matter, the petitioner has not provided evidence 
that the beneficiary will be relieved from primarily performing the petitioner's operational, saIes, and 
marketing tasks. Going on record without supporting documentary evidence is not sufficient for purposes of 
WAC 03 021 54602 
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meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). 
The petitioner's claim that the beneficiary is its decision-maker and policy and goal setter and that he is the 
key man in the United States office does not establish the beneficiary's executive or managerial capacity. 
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 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, 
Znc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Moreover, the petitioner has not articulated how its 
reasonable needs justify the beneficiary's performance of primarily nonqualifying duties. 
On review, the petitioner has not presented sufficient evidence to establish that the beneficiary's duties for the 
petitioner will include primarily executive or managerial duties. 
The next issue in this proceeding is whether the petitioner has established a qualifyrng relationship with the 
beneficiary's foreign employer. In order to qu* for this visa classification, the petitioner must establish that a 
qualifying relationship exists between the United States and foreign entities in that the petitioning company is the 
same employer or an afliliate or subsidiary ofthe foreign entity. See section 203(b)(I)(C) of the Act. 
The regulation at 8 C.F.R 204.5@(2) states in pertinent part: 
Aflliate 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 afliliate, 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. 
The petitioner has presented the following evidence in support of its claim that it is a wholly owned 
subsidiary of the beneficiary's foreign employer. 
Stock certificate number 1 issued to in the amount of 100 shares 
WAC 03 021 54602 
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An undated statement from the foreign entity's accountant that the beneficiary is an equal 
partner in the foreign entity and that his profit sharing ratio is one-third. 
The petitioner's 1999 Internal Revenue Service (IRS) Form 1 120, with Attachment Form 
5473 showing as a direct 25 percent or more foreign shareholder; 
A copy of a wire transfer advice dated November 19, 1999, showing partner 
as the originator and the petitioner as beneficiary of a $20,000 tmnsfer less fees; 
The petitioner's checking account statement for November 1999 showing a credit of 
$19,932.45 from a wire transfer deposit; 
California Notice of Transaction dated February 2, 2000 showing the petitioner's total 
offering for the value of stock sold was $40,000 and that $20,000 in money had been paid for 
the stock; 
The petitioner's explanation that in 2002 a partner of the foreign entity wire transferred 
$20,000 to the petitioner as application and allotment money; and that in April 2001 the 
foreign entity gave the beneficiary an additional $6,000 by traveler's check for deposit to the 
petitioner's account and that in July 2001, the foreign entity gave - one of the 
foreign entity's partners, an additional $15,000 in traveler's checks for deposit to the 
petitioner's account in response to the petitioner's call for the remaining purchase price. 
Copies of traveler's check receipts and the petitionex's checking account statements 
confirming these transactions. 
The petitioner's IRS Form 1120 for 2000, Schedule L, Line 22(b) showing common stock 
valued at $20,000 at the beginning and end of the year, 
The petitioner's IRS Form 1120 for 2001, Schedule L, Line 22@) showing common stock 
valued at $20,000 at the beginning of the year and $40,000 at the end of the year; 
The petitioner's IRS Form 1120 for 2002, Schedule L, Line 22(b) showing common stock 
valued at $40,000 at the beginning and end of the year; 
The director observed that the petitioner's 2000, 2001, and 2002 IRS Forms 1120 also show on attached 
statements that the beneficiary owns 100 percent of the petitioner. The director also noted that the petitioner 
had not indicated that the petitioner was a subsidiary in an affiliated group or parent-subsidiary controlled 
group on its IRS Forms 1120. 
The petitioner explained on appeal that the discrepancies regarding ownership in the petitioner's IRS Forms 
1120 are due to the United States accountant who prepared the petitioner's tax returns. The petitioner also 
states ' is the 100% owner of the corporation is not correct as the corporation was incorporated -. 
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by - and money was send [sic] by - The petitioner also references the 
business relationship between the two concern, the use of the name in both concerns, and the 
previous approval of the beneficiary's L-1A intracompany transferee petition, as evidence of a qualifying 
relationship. 
The petitioner's evidence is not persuasive. 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.at 593; see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 
1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In 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 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 examinedto 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 of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. In this matter the record does not 
contain the foreign entity's partnership agreement. In light of the inconsistencies in the petitioner's IRS Fonns 
1120 regarding the beneficiary's ownership of the petitioner and the method that the foreign entity allegedly 
used to fund the petitioner, the AAO cannot conclude that the Indian partnership owns and controls the 
petitioner. Without full disclosure of all relevant documents, CIS is unable to determine the elements of 
ownership and control. 
The AAO notes that a business relationship and the use of the same or similar name do not establish a 
qualifying relationship. The AAO also notes that many 1-140 immigrant petitions are denied after CIS 
approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INSS, 293 F. Supp. 2d 
25 (D.D.C. 2003); IKEA US V. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. 
v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989). Examining the consequences of an approved petition, there is a 
significant difference between a nonimmigrant L-1A visa classification, which allows an alien to enter the 
United States temporarily, and an immigrant E-13 visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
C! $4 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also $ 316 of the Act, 8 U.S.C. $ 1427. 
Because CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant L1-A petitions are simply approved in error. Q Data Consulting, Inc. v. NS, 293 F. Supp. 2d 
at 29-30; see also 8 C.F.R. 3 214.2(1)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L-1A petition's validity). Further, the AAO is not required to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, 
e.g. Matter of Church Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that CIS 
WAC 03 02 1 54602 
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or any agency must treat aclcnowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084,1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Beyond the decision of the director, the petitioner has not provided evidence of the beneficiary's actual duties 
for the foreign entity. The actual duties themselves reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), am, 905 F.2d 41 (2d. Cir. 1990). Without a 
specific description of the beneficiary's duties for the foreign entity, the petitioner has not established that the 
beneficiary was employed in a managerial or executive capacity for the foreign entity. 
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), affd. 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). 
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. 3 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.