dismissed EB-1C Case: Information Technology Consulting

(b)(6)
DATE: AUG 2 9 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Securit)• 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
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 )(I )(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 (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.§ 1 03.5. Do not file a motion directly with the AAO. 
Thank you, 
~L 
f 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the preference visa petition. The matter is now 
befor e the Admini strative Appeal s Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Nevada information technology consulting company that claims to be the parent company 
of , the beneficiary's former employer located in Canada. The petitioner is see king to 
employ the beneficiary as its chie f executive officer. Accordingly, the petitioner ende avors to classify the 
beneficiary as an employment-ba sed 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. 
In support of the Form 1-140, the petitioner submitted a letter dated May 24, 2012 which contained relevant 
information pertaining to the beneficiary's 
prior foreign employment and the qualifying relationship between 
the petitioner and the foreign employer. The petitioner also provided supporting evid ence in the form of 
corporate, busine ss, and financi al documents pertaining to the beneficiary's foreign employer and the U.S. 
petitioner. 
The director reviewed the petitioner' s submissions and determined that the petition did not waiTant approval. 
Therefore, the director issued a request for evidence (RFE) dated July 11, 2012 informing the petitioner of 
evidentiary deficiencies. The director requested additional information relating to the beneficiary's foreign 
employment. Specifically, the director requested the foreign company 's description of the beneficiary ' s 
former position in Canada , including its title, specific daily duties, the percentage of time spent on those 
specific duties, and the job title , duties, and education level of all subordinate manager s/supervisors or other 
employees who reported to the beneficiary. The director also requested evidence to establish the qualifying 
relationship between the foreign employer and the petitioner but the request was limited to proof that the 
foreign employer continued to do business in Canada. 
The petitioner's response to the RFE included a letter dated October 26, 2012 and 41 exhibits. The petitioner 
reiterat ed that the beneficiary served as the foreign employer's CEO from April 2009 until he was tran sferred 
to work for the petitioning company on September 1, 2010 . The letter included a percentage breakdown of 
the beneficiary 's duties for the foreign employer and the names and full duty descriptions for the four 
employees that reported directly to the beneficiary. The petitioner described its claimed qualifying 
relationship with the foreign employer and provided evidence to establish that the foreign employer 
continu ed to do business in Canada . 
After reviewing the record, the director concluded that the petitiOner failed to establish: (1) that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity; and (2) that the petitioner 
has a qualifying relationship with the foreign employer. Therefore , the director denied the petition on 
December 4, 2012 . Specifically , the director found that the beneficiary ' s broadly described duties con sidered 
in conjunction with the foreign entity's limited staffing levels reasonably led to the conclusion that the 
staffing was insufficient to relieve the beneficiary from primarily performing non-qualifying duties. 
Additionally , the director found that the petitioner failed to support the claim that the four employees 
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subordinate to the beneficiary were professionals. In regards to the qualifying relationship, the director 
found that the petitioner failed to meet its burden of proof due to inconsistencies in the record. 
On appeal, counsel submits a brief disputing the director's findings and reiterates the petitioner's prior 
assertions with regard to the beneficiary's job description and the qualifying relationship between the 
petitioning company and the foreign employer. 
The AAO notes that counsel made a request for an additional 30 days to supplement the appellate brief filed 
on February 1, 2013. The record reflects that no additional documentation has been received and the record 
is considered complete. 
I. The Law 
Section 203(b) of the Act states in pettinent 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 descr ibed 
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 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. § 1101(a)(44)(A) , provides: 
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The term "managerial capacity" means an assignment within an organization m 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. § 110l(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization m 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; 
(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. 
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II. Employment Abroad in a Managerial or Executive Capacity 
The first issue to be addressed is whether the petitioner established that the foreign entity employed the 
beneficiary in a qualifying managerial or executive capacity. 
In 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(j)(5). Published case law clearly supports the 
pivotal role of a clearly defined job description , as the actual duties themselves reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. 
Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). The AAO reviews the totality of the record, which inc I udes not 
only the beneficiary's job description , but also takes into account the nature of the petitioner's business, the 
employment and remuneration of other employees, as well as the job descriptions of the beneficiary 's 
subordinates, if any, and any other facts contributing to a complete understanding of a beneficiary's actual 
role within a given entity. 
The definitions of executive and managerial capacity each have two patts. First, the petitioner must show 
that the beneficiary petforms the high-level responsibilities that 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). 
The petitioner stated in its initial letter in support of the petition that the beneficiary served in the dual role of 
Director of Consulting Services and CEO for from June 2007 until April 2009, and as 
CEO only from April 2009 until September 2010. However, the beneficiary stated on his Form G-325A, 
Biographic Information, submitted with his concurrently filed Form I-485, Application to Adjust Status, that 
he resided in the United States from June 2007 until March 2009. The beneficiary also stated on his Form G-
325A that he was employed as an "Accounting Consultant" for ' in Canada from 
February 2004 until April 2009, despite also indicating that he resided in New Jersey for a portion of this 
time. The beneficiary previously held an H-lB visa authorizing his employment with . in New 
Jersey, but he did not identify this company as a former employer on his Form G-325A. It is incumbent 
upon the petitioner to resolve any 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. Matter of Ho, 19 I&N Dec . 582 , 591-92 (BIA 1988) . 
In addition, the record of proceeding contains several different descriptions of the beneficiary's duties during 
his period of employment abroad. In a letter dated May 2, 2012, the petitioner stated that the beneficiary 's 
role as CEO involved: overseeing and managing all aspects of the day-to-day operations of the company and 
establishing performance indicators (25%); developing and administering operational and administrative 
policies , standards and practices (20%); developing and administering financial systems (15%), developing 
and administering sales and marketing strategies (15% ); developing and administering personnel-related 
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policies and practices (15%) and leading internal communications efforts (10%). These duties were broadly 
described and provided little insight into what the beneficiary did on a day-to-day basis. 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 (E.D.N.Y. 1989), aff'd, 905 F . 2d 41 (2d. Cir. 1990). 
The petitioner's initial evidence also included the beneficiary's resume, in which he indicated that his duties 
as the foreign entity's CEO were : create and implement objectives; create a Center for Excellence in Quality; 
drive the training division; strategic consulting, including business plan and sales strategy development; 
identify strategic areas for focus; and build capability in at least three areas to provide support across 
geographies. Further, the record contains the beneficiary's resume submitted in support of a prior Form l-140 
filed by the petitioner on October 14, 2010, shortly after his relocation to the United State s. The beneficiary 
stated that his role with involved account management, immigration process 
management, resource management, business development (including bringing in new clients), and fund 
sourcing . This older version of the beneficiary's resume did not identify his job title with the foreign entity 
as CEO . He indicated only that he was "employed as Manager Consulting Services in an IT organization 
since February 2004," and described similar, overlapping positions held with (United States), 
between January 2004 and 2010 . The 
information provided in the beneficiary's resumes did not corroborate the beneficiary's claimed duties or 
dates of employment with the foreign entity, but rather introduced inconsistencies in the record regarding the 
beneficiary's actual duties and employment history with the company. 
Overall, the initial evidence and the information already contained m the beneficiary's A-file was 
inconsistent with respect to his employment history, dates of employment and actual duties as the Canadian 
entity's CEO. Again, it is incumbent upon the petitioner to resolve any 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 I ies. Matter of Ho, 19 
I&N Dec . at 591-92. 
In response to the director's request for further evidence, the petitioner provided a letter dated October 26, 
2012 that consolidated the beneficiary's duties into five general areas instead of the six included in the initial 
petition. The petitioner stated that the beneficiary's duties included overseeing and managing key aspect s of 
the day-to-day operations and creating administrative policies, standard practices and personnel standards 
(35 %); establishing performance indicators, reviewing staff performance and reviewing and approving sales 
and marketing strategies (35% ); overseeing key aspects of development and administration of financial 
systems (20%); fostering a staff culture that supports the 
company's strategy and coaching senior executives 
as nece ssary (5%); and leading internal communication efforts (5%). 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established . 8 C.P.R. § 103.2(b)(8). The information provided by the petitioner in its 
(b)(6)
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response to the director's request for further evidence did not add the requested level of specificity to the 
duties as originally described. The petitioner reiterated many of the same general duties that had already 
been reviewed by the director and found to be insufficient to establish eligibility and provided little 
additional insight into what the beneficiary primarily did on a day-to-day basis during his tenure with the 
Canadian entity. 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 
petitioner has failed to provide any detail or explanation of the beneficiary's activities in the course of his 
daily routine . The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N .Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
In addition to the duties addressed above, the petitioner's letter also provided a narrative description of the 
beneficiary's duties which suggested he had a much greater role in the day-to-day operation of the business. 
Specifically, the letter stated "[t]he beneficiary had complete control of all financial matters affecting the 
company and entered into other financial arrangements on behalf of the foreign entity by directing the 
management, establishing the goals and policies, exercising discretionary decision-making, opening bank 
accounts, receiving and disbursing funds, signing company checks and business contracts." Further, the 
beneficiary was also expected to direct "the operations of the foreign entity including administering the sales , 
marketing, and technical support departments" even though no named employee had been identified to 
handle the day-to-day duties of these comprehensive areas. 
On appeal, counsel reiterates prior descriptions and prior assertions and submits evidence including 
documents that demonstrate the beneficiary's preparation and issuance of routine corporate policies . In 
addition, counsel submits a document reflecting an overview of the company's accounting system and the 
accounting procedures manual which highlight the beneficiary's significant participation in the company's 
day-to-day financial matter s. While the AAO acknowledges that no beneficiary is required to allocate 100% 
of his or her time to managerial- or executive-level tasks, the petitioner must establish that the non-qualifying 
tasks the beneficiary would perform are only incidental to the proposed position. An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform 
the enumerated managerial or executive duties); see also Matter of 
Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988) . 
An evaluation of the foreign employer's staffing begins with the petitioner's assertion that the beneficiary 
supervised four professional, senior level managers. According to the petitioner, in the foreign company had 
20 employees in 2008 but "they were affected by the economic downturn and had reduced to around $80,000 
per annum in 2010 and are now generating revenue of $250,000 in the current year." It is not clear how 
many employees the foreign employer had during the beneficiary's claimed tenure as CEO between April 
2009 and September 2010 . Nevertheless, the petitioner claims the foreign employer was an IT consulting 
company but provides no evidence to establish that the company actually employed consultants during this 
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period. In fact, the petitioner asserts that the foreign company is in the process of rebuilding and employed 
only four individuals at the time this petition was filed on May 31, 2012. 
The petitioner provided the foreign employer ' s undated organizational chart that depicted four employees 
who reported directly to the beneficiary, specifically: 1) 
Director Professional Services; 3) 
Accounting. Additionally, the chart depicted a recruiter named 
director of professional services and an analyst named 
who is s ubordinate to the 
who is subordinate to the project 
director. Subordinate to the project director were unidentified "consultants." The organization al chart 
depicts more employees than claimed by the petitioner. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence . Any attempt to explain or reconcil e such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. at 591-92. 
The director concluded that the petitioner failed to establish that the foreign employer' s staffing levels were 
sufficient to relieve the beneficiary from performing non-qualifying duties. 
On appeal, counsel asserts that the foreign employer had ample staff to handle the non-managerial tasks on a 
day-to-day basis and that the staff was sufficient to meet the reasonable needs of the business. The petitioner 
provide s no additional evidence or explanation in support of this claim. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner' s burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Laurean o, 19 I&N Dec . 1 (BIA 1983); Matter of Ramirez-San chez, 17 I&N Dec. 503, 506 (BIA 
1980). 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity , users must take into account the reasonable 
needs of the organization , in light of the overall purpose and stage of development of the organization . To 
establi sh that the reasonable needs of the organization justify the beneficiary 's job duties, the petitioner must 
specifically articulate why those needs are reasonable in light of its overall purpose and stage of 
development. In the present matter, the petitioner has not explained how the reasonable needs of the 
petitioning enterpri se justify the beneficiary's performance of non-managerial or non-executive duties. 
Going on record without supporting documentary evidence is not sufficient for purpo ses of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm ' r 1998). 
Furthermore , the reasonable needs of the petitioner will not supersede the requirement that the beneficiary be 
"primarily" employed in a managerial or executive capacity as required by the statute. See sections 
10l(a)(44)(A) and (B) of the Act, 8 U.S.C. § 110l(a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 
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Page 9 
percent, but those needs will not excuse a beneficiary who spends the majority of his or her time on non­
qualifying duties . 
Additionally, as determined by the director, the petitioner did not establish that the beneficiary supervised 
professionals because it failed to provide evidence that any of its four employees possessed higher education 
degrees or that any of the four employees actually required higher education credentials to hold their 
positions. Although the beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See § 101 (a)( 44 )(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not 
be limited to architects , engineers, lawyers , physicians, surgeons , and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, 
not merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction 
and study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matt er of Sea, t9 I&N Dec. 817 (Comm'r 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec . 686 (D.D. 1966) . 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In this case, the petitioner claimed that all four of the beneficiary's direct subordinates held a 
bachelor's degree but did not state that the positions required any specific educational credentials . 
Even if the educational requirements had been established, the petitioner did not provide evidence to support 
the assertion. On appeal, counsel submitted employee resumes and un-notarized affidavits regarding the 
bachelor degrees held by the employees, but the evidence is inadequate. For example, the HR director's 
certificate for her one year program at Katherine Gibbs School is not equivalent to a bachelor's degree. A 
United States baccalaureate degree is generally found to require four years of education . Matter of Shah, t 7 
I&N Dec. 244 (Reg. Comm'r 1977). Further, the director of professional services' resume states "University 
Bachelors Degree" without benefit of a school name, location, date or major. 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'r 1998) (citing Matter of Treasure Craft of 
California , 14 I&N Dec . 190 (Reg . Comm'r 1972)) . 
The statutory definition of "managerial capacity" allows for both "personnel managers" and a "function 
managers ." See section 10l(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101 (a)(44)(A)(i) and (ii). Personnel 
managers are required to primarily supervise and control the work of other supervisory, professional, or 
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managerial employees. Contrary to the common understanding of the word "manager," the statute plainly 
states that 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)(A)(iv) of the Act; 8 C.P .R.§ 214.2(l)(l)(ii)(B)(2). 
In this matter, the petitioner's assertion that the beneficiary supervised senior level managers is not supported 
by the record. None of the job descriptions for the beneficiary's four subordinates included management or 
supervision of subordinate personnel. The petitioner provided no evidence that the foreign employer paid 
anyone other than the beneficiary and provided no evidence of active consulting contracts while the 
beneficiary served as CEO in 2009 and 2010. Finally, the petitioner affirmatively states that the foreign 
employer did not utilize contract workers. Therefore, it is reasonable to conclude that there were no 
employees subordinate to the four claimed senior level managers and no employees for them to manage or 
supervise. 
Overall, the petitioner has submitted inconsistent and vague descriptions of the beneficiary's duties abroad, 
varying accounts of his employment history, and insufficient evidence of the foreign entity's organizational 
structure during the beneficiary's period of employment abroad. Accordingly , the petitioner has not 
established that the beneficiary was employed abroad in a primarily manageri al or executive capacity, as 
required by section 203(b)(l)(C) of the Act, and the appeal will be dismissed . 
III. Qualifying Relationship 
The second issue to be addressed is whether the petitioner has a qualifying relationship with the foreign entity, 
To establish a "qualifying relationship" under the Act and the regulations, the 
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§ 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.P.R.§ 204 .5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.P.R. § 204.5(j)(2) states in pertinent part: 
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; 
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* * * 
Multinational means that the qualifying 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 petitioner asserts that in February 2010 it established a qualifying relationship with the foreign employer 
when it acquired 80% ownership of the Canadian corporation, from 
U.S. company. The petitioner further states that it became a "success-in-interest" to 
2009 but provided no further explanation in this regard. 
a 
in December 
In support of these assertions, the petitioner provided: 
• Certificate of Incorporation for which indicates that the company is 
authorized to issue an unlimited number of common shares with no par value. 
• . stock certificate issued on February 1, 2010 which identifies the 
petitioner as the owner of 80 shares of common stock. 
• Letter dated February 5, 2010, from , addressed to 
the beneficiary in his capacity as the petitioner's CEO, which states: "This will confirm our 
agreement with regard to the sale of shareholding in by 
. to [the petitioner] for consideration received by us." The letter goes on to state 
that "80% of the ownership of shall be transferred" to the petitioner. 
• Corporations Canada Form 6, Changes Regarding Directors, which reflects that the 
petitioning company became a member of the board of directors of . on 
February 1, 201 0 and was no longer a board member effective on that 
date. 
• Canada 
Revenue Agency Schedule 50, Shareholder Information , which identifies the foreign 
entity's shareholders as (10% ), the petitioner (80%) and the beneficiary 
(10%) 
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• The petitioner's IRS Form 1120, U.S. Corporation Income Tax Returns, for 2010 and 2011. 
The petitioner responded "No" on both Forms Schedule K where asked to indicate whether 
the company owns voting stock in a foreign corporation . 
The record also contains the following documentation submitted in support of a previous Form I-140 filed on 
behalf of the beneficiary: 
• Letter dated February 3, 2010 from the petitioner to stating "[i]n consideration of 
the sale of to [the petitioner], we have agreed to assume the liability 
in the amount of $60,000 which is owed to -~-- . This will be converted as a 
preferred share capital in [the petitioner] at the appropriate time." 
• A consent letter dated July 1, 2010, signed by ......:::::====== 
and agreement that his $60,000 investment in 
shares of class A preferred shares in the petitioning company. 
reflecting his understanding 
will be replaced by 2400 
• A subscription agreement signed by on July I, 2010 , reflecting his 
subscription of 2400 shares of class A non-voting preferred stock in the petitioning company. 
The director found the evidence insufficient to establish a qualifying relationship between the United States 
and foreign employer. The director noted that the petitioner did not indicate any ownership in the foreign 
company on its IRS Form 1120, Schedule K for 2011, and that the petitioner's evidence of ownership was 
inadequate in light of this inconsistency. 
On appeal counsel provides no new evidence and repeats the same 
assertions already noted in the record. 
Upon review, the petitioner has not established that the U.S. and foreign entities have a qualifying 
relationship. 
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 (Comm ' r 1988); 
see also Matter of Siemens Medical Systems , Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter o.l Hugh es, 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 general evidence of a petitioner's claimed qualifying relationship, stock ce1tificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate entity. 
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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 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. Without full disclosure of 
all relevant documents, users is unable to determine the elements of ownership and control. 
The AAO finds the evidence submitted insufficient evidence to support its claim that it is the majority 
shareholder of 
First, the single un-numbered share certificate provided by the petitioner was incomplete and does not appear 
to have been transfen ·ed to the books of the corporation. The petitioner did not submit a share certificate 
ledger or registry or copies of all issued stock certificates to establish the foreign employer's shareholders. 
Without additional share certificates or a share registry it is not possible to determine that shares were 
actually transfen·ed from to the petitioning company, particularly in light of the petitioner's 
failure to identify its ownership in the foreign entity on its corporate tax returns. This inconsistency has not 
been explained by the petitioner. It is incumbent upon the petitioner to resolve any 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. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Second, the consideration for purchase of the shares requires additional explanation. 
According to the limited evidence submitted, the petitioning company agreed to assume a debt owed to 
in exchange for the 80% of shares 
also claims that it became the successor-in-interest to 
However, the petitioner 
in December 2009, two months prior to this 
claimed stock transaction, and as such, it appears that it would have acquired the parent-subsidiary 
relationship with the foreign employer, at that time. The petitioner has not fully explained 
its "successor-in-interest" claim or resolved inconsistencies regarding this issue. 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 r&N Dec. 158, 165 (eomm'r 1998) (citing Matter of Treasure Craft of 
California, 14 r&N Dec. 190 (Reg . eomm'r 1972)). 
For these reasons, the petitioner has not established that it has a qualifying relationship with the beneficiary's 
foreign employer and the petition cannot be approved. 
The USers approved other petitions that had been previously filed on behalf of the beneficiary. The 
director's decision does not indicate whether he reviewed the prior approvals of the other nonimmigrant 
petitions. If the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record, the approval would constitute material and 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
gross error on the part of the director. 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. 593, 597 (Comm'r 1988). It would be absurd 
to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D . La.), affd, 248 F.3d 1139 (5th Cir. 
2001) , cert. denied, 122 S.Ct. 51 (2001). 
IV. Conclusion 
The appeal will be dismissed for the above stated reasons, with each considered as an 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; Matter of Otiende, 26 
I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.