dismissed EB-1C Case: Information Technology

.. 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PlffiLICCOPY 
DATE: SEP 1 4 20" OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation that seeks to employ the beneficiary as its information technology 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. § I I 53(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition based on the determination that the petitioner failed to provide evidence to 
establish that the beneficiary was employed abroad by an affiliate or subsidiary for the requisite time period. 
On appeal, counsel asserts that, due to the passage of time, the beneficiary was unable to get access to his 
employment record with the foreign entity at the time of the director's request for additional evidence (RFE). 
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. 
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 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. 
The primary issue in this proceeding is whether the petitioner meets the requirements specified at 8 C.F.R. 
§ 204.5G)(3)(i)(B), which states that the petitioner must establish that the beneficiary was employed abroad in 
a qualifYing managerial or executive position for at least one out of the three years prior to his entry to the 
United States as a nonimmigrant to work for the same employer. 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III which the 
employee primari1y--
(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 101(a)(44)(B) ofthe Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primari1y--
(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; 
(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. 
The record shows that the petitioner did not address the beneficiary's employment abroad in the statement 
dated April 29, 2008. 
Accordingly, on June 16, 2009, the director issued an RFE instructing the petitioner to provide, in part, a 
definitive statement describing the job duties the beneficiary performed during his employment abroad as well 
as a percentage breakdown of the time the beneficiary allocated to each job duty on the list. The petitioner 
was also asked to provide the foreign entity's organizational chart depicting the beneficiary's position in the 
Page 4 
company with respect to others as well as a list of the foreign entity's employees and their respective job 
duties and educational credentials. 
Although the petitioner provided a response to other portions of the RFE dealing with the beneficiary's 
proposed employment with the U.S. entity, no documentation or supplemental information was provided with 
regard to the beneficiary's employment abroad. 
In light of the above, the director issued a decision dated November 16, 2009 denying the petition based on 
the conclusion that the petitioner failed to establish that the beneficiary was employed abroad for the requisite 
time period in a qualifying capacity. 
On appeal, counsel asserts that the petitioner did not have access to the necessary documentation with regard 
to the beneficiary's employment abroad and asks the AAO to consider newly submitted documentation in an 
attempt to overcome the documentary deficiency. 
The AAO finds that counsel's argument is not persuasive in overcoming the ground cited as the basis for 
denial. 
The regulation states that the petItIoner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 c.P.R. §§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 c.P.R. § 103 .2(b )(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter ojSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ojObaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Merely claiming that the petitioner did 
not have access to such basic information as the beneficiary'S job description or position within the foreign 
entity is not sufficient. Moreover, the non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. 8 c.P .R. § 103 .2(b )(2)(i). Under the circumstances, the AAO need not and does 
not consider the sufficiency of the evidence submitted on appeal, which leads the AAO to conclude that the 
petitioner failed to submit sufficient evidence to establish that the beneficiary was employed abroad in the 
requisite capacity and during the statutorily required time period. See section 203(b)(1 )(C) of the Act; see 
also 8 c.P.R. § 204.5(j)(3)(i)(B). 
Additionally, while not addressed in the director's decision, the AAO finds that the job description the 
petitioner submitted in response to the RFE does not contain sufficient information to enable the AAO to 
conclude that the beneficiary'S proposed employment would be within a qualifying capacity. Although the 
job description indicates that the beneficiary would be employed in the United States as an IT professional, 
the record does not establish who would be actually carrying out the IT-related tasks such that the 
beneficiary'S role would be limited to one of supervision. Moreover, the beneficiary'S oversight duties were 
not specifically explained as the organizational chart does not clarify who will be performing the tasks the 
beneficiary is assigned to oversee. 
j •• ,. 
Page 5 
The AAO further notes that the record is devoid of documentation establishing that the petitioner has a 
qualifying relationship with the beneficiary's foreign employer as required by 8 C.F.R. § 204.5(j)(3)(i)(C). 
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 Dec. 593 (BIA 1988); 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 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. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). Here, there is no evidence to establish that the beneficiary's foreign and proposed employers 
are commonly owned. 
Lastly, the record lacks evidence to establish that the petitioner was doing business during the one year prior 
to filing the petition as required by 8 C.F.R. § 204.5U)(3)(i)(D). 
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 FJd 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 FJd 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.