dismissed EB-1C Case: Industrial Equipment Sales

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
*BEB$w%! a -. $&? &@&@ Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 072 5 13 16 Office: CALIFORNIA SERVICE CENTER Date: 
IN RE: 
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. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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 Mher inquiry must be made to that office. 
?Administrative Appeals Office 
6 
WAC 03 072 51316 
Page 2 
DISCUSSION: The Director, California Service Center, denied the employment-based visa 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 Delaware in 1978 and authorized to conduct business 
in the State of California in June 1979. It markets and sells fabricated and installed vacuum insulated pipe 
and accqssories. It seeks to employ the beneficiary as its regional sales manager. 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 a qualifying relationship with the beneficiary's 
foreign employer. 
On appeal, counsel for the petitioner asserts that the petitioner wholly owns and subsidizes the beneficiary's 
foreign employer. 
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 fm 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 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 furnish 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. 
$ 204.5u)(5). 
WAC 03 072 51316 
Page 3 
The issue in this proceeding is whether the petitioner has established a qualifying relationship with the 
beneficiary's foreign employer. In order to qualify for this visa classification, the petitioner must establish that a 
qualiijlng relationship exists between the United States and foreign entities in that the petitioning company is the 
same employer or an affiliate or subsidiary of the foreign entity. See section 203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. 204.50)(2) states in pertinent part: 
Afiliate 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 qualiijlng entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 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 record shows that through May 2002, one individual, Gary Sandercock, owned 100 percent of the 
petitioner. The record also contains the foreign entity's certificate of incorporation and list of shareholders. 
The shareholders of the foreign entity are: 
The petitioner provides a copy of a representative agreement between the petitioner and the foreign entity. In 
the July 2002 agreement, the petitioner and the foreign entity agree that the foreign entity is an independent 
contractor that is remunerated for services as the petitioner's company representative in the Philippines. 
The director determined that the petitioner had not provided evidence of a qualifying relationship between the 
two entities. 
WAC 03 072 51316 
Page 4 
On appeal, counsel for the petitioner asserts that the Philippines foreign entity "nominally gives independent 
control and ownership to the Philippines business" to comport with Philippines law. Counsel provides a copy 
of the Philippines Foreign Investments Act of 1991. Counsel also asserts that the petitioner provides all 
funding for the foreign entity in the form of salary, bonuses, and business expenses and provides evidence of 
wire transfers to the foreign entity for salary, bonuses, and business expenses. Counsel contends that this 
evidence is sufficient to establish a qualifying business relationship between the two entities. 
Counsel's assertions are not persuasive. Although the petitioner and the foreign entity may have a business 
relationship, this relationship does not qualify as a subsidiary or affiliate relationship as defined above. The 
regulation and case law confm that ownership and control are the factors that must be examined in 
determining whether a qualifylng relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 1 8 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. 
The record indicates that the beneficiary's foreign employer had a contractual agreement with the petitioning 
company in the United States. The contractual agreement between the foreign organization and the United 
States corporation can be terminated1 as opposed to one in which the foreign organization and a domestic 
organization are permanently tied together and not limited to a single, specific venture. See Matter of Schick, 
13 I&N Dec. 647 (Reg. Comm. 1970). There is no evidence in the record that indicates an existing qualifylng 
relationship between the foreign entity and the U.S. petitioner. 
Beyond the decision of the director, the petitioner has not established that the beneficiary has been or will be 
employed in a managerial or executive capacity, for either the foreign entity or the petitioner. The beneficiary 
has been employed as a regional sales manager for the foreign entity and the petitioner proposes to continue 
his employment as a regional sales manager. The beneficiary's resume indicates that as the regional sales 
manager for the foreign entity he achieved sales targets, managed customer service and after sales service, 
headed project management on the installation of pipeline systems and cryogenic equipment, supervised a 
project engineer and subcontractor's activities, conducted training, and represented the entity at symposiums 
and exhibits. Although the foreign entity has included job descriptions for the three positions subordinate to 
the beneficiary, the job descriptions do not describe individuals performing managerial, supervisory, or 
professional tasks. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972). In addition, the beneficiary's job description includes duties that are non-managerial 
operational and administrative tasks. The description of the beneficiary's job duties does not establish what 
proportion of the beneficiary's duties is managerial or executive, and what proportion is actually 
1 The July 2002 representative agreement between the beneficiary's foreign employer and the petitioner states 
at Section 2.0.16: "This agreement may be terminated, by either party with or without cause after the initial 
12 month term, by giving to the other party written registered mail notice of thirty days." 
WAC 03 072 51316 
Page 5 
non-managerial and non-executive. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Based on the current record, the AAO is unable to conclude that the beneficiary performed primarily 
managerial or executive duties for the foreign entity as defined by the statute. See sections 101(a)(44)(A) and 
(B) of the Act. 
Likewise, the description of the beneficiary's duties as regional sales manager for the United States entity 
does not demonstrate that the beneficiary's proposed duties would be executive or managerial. In a July 17, 
2002 letter to the beneficiary, the petitioner attaches the regional sales manager job description. The job 
description includes duties such as: find and cultivate new customers and orders for the petitioner's products; 
learn, understand and perform the petitioner's order processing system; and, spend time in the office, training, 
making phone calls, setting appointments, preparing quotes, returning calls and general management of your 
sales activities. These are the duties of a salesperson. 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 record does not establish that the beneficiary has been or will be employed in a managerial or executive 
capacity for either the foreign entity or the United States petitioner. 
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), afd. 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 29 1 of the Act, 8 U.S.C. 8 136 1. Here, that burden has not been met. 1 
ORDER: The appeal is dismissed.