dismissed EB-1C Case: Interior Design

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBL1CCOpy 
FILE: OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Date: 
NOV 1 6 2010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: SELF -REPRESENTED 
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. 
The fee for a Form I-290B is currently $585, but will increase to $630 on November 23,2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. 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 claims to be a corporation that seeks to employ the beneficiary as its manager. Accordingly, 
the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational 
executive or manager. The director denied the petition based on two independent grounds of ineligibility: 
I) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying managerial or 
executive capacity for the requisite time period; and 2) the petitioner failed to establish that it is a 
multinational entity that has a qualifying affiliate or subsidiary relationship with the beneficiary's foreign 
employer. 
On appeal, the petitioner disputes the director's conclusions and asserts that the director's decision was 
arbitrary and capricious. 
Section 203(b) ofthe 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)(1)(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 first issue in this proceeding is whether the beneficiary was employed abroad in a qualifying managerial 
or executive capacity for at least one year during the three years prior to her nonimmigrant entry into the 
United States. 
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A), provides: 
Page 3 
The term "managerial capacity" means an assignment within an organization III 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 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III 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. 
In support of the Form 1-140, the petitioner submitted a letter dated May 13, 2008 which mentioned the 
beneficiary'S prior managerial experience in the field of interior design. The letter further stated that the 
employment abroad involved operational policy and management, including supervising lower-level 
employees and performing sales tasks. The petitioner did not specify the identity of the beneficiary'S foreign 
employer or the time period during which she was employed abroad. 
In a decision dated April 2, 2009, the director denied the petition noting that the petitioner failed to include 
the name of the beneficiary'S foreign employer, the dates of the employment, or the duties performed during 
such employment. 
Page 4 
On appeal, the petitioner asserts that the director abused his discretion and denied the petitioner due process 
by failing to issue a request for additional evidence (RFE) or a notice of intent to deny (NOID) prior to 
issuing the final decision denying the petition. 
The petitioner's assertion, however, is incorrect. Contrary to the petitioner's apparent misconception, the 
regulation at 8 C.F.R. § 103.2(b)(8), which addresses the issuance of an RFE or a NOID, allows the director 
full discretion to decide whether or not to issue either notice prior to making a determination as to the 
petitioner's eligibility or ineligibility for the immigration benefit sought. Thus, the director acted well within 
his authority in deciding to deny the petition without issuing either an RFE or a NOID. Furthermore, the 
petitioner has failed to establish that it has been denied a right that is subject to constitutional due process 
protection. Additionally, the contention that failure to issue an RFE or NOID was equivalent to denying the 
petitioner "an opportunity to remedy perceived deficiencies" is simply inaccurate in light of the availability of 
the appeal process itself, which offers the petitioner the chance to supplement the record and provide further 
statements and legal arguments to overcome deficiencies and meet eligibility requirements. 
s employment abroad, the petitioner states that the beneficiary worked for 
the petitioner's claimed affiliate, from August 2003 until August 2004. The 
petitioner also states that the beneficiary was employed by from January 
2000 until April 2001. Although the petitioner provides a general job description of managerial duties, it is 
unclear whether the to the beneficiary'S employment with the claimed affiliate entity, her 
employment , or both. Regardless, the job description provided is 
devoid of necessary information regarding the beneficiary's actual daily tasks and primarily consists of 
paraphrased portions of the statutory definition used to describe managerial capacity. Specifically, the 
petitioner states that the beneficiary managed the organization or components thereof, supervised and 
controlled the work of supervisory staff, had authority to hire and fire subordinates and make decisions 
concerning the company's daily operations, set goals and policies, and received only general supervision. 
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), affd, 905 F.2d 41 (2d. Cir. 
1990). As such, a detailed delineation of the actual duties themselves is necessary to reveal the true nature of 
the employment. Id at 1108. Here, the petitioner has done nothing more than restate the statutory definition 
of managerial capacity. The petitioner provides no information describing the specific tasks the beneficiary 
carried out to manage the foreign organization and its staff. 
Additionally, the petitioner has provided no documentation to establish that the beneficiary was employed by 
a qualifying foreign organization for one year during the requisite three-year period. The regulation at 
8 C.F.R. § 204.5(j)(3)(i) requires, in part, that: 
A) If the alien is outside the United States, in the three years preceding the filing of the 
petition the alien has been employed outside the United States for at least one year in 
a managerial or executive capacity by a firm or corporation, or other legal entity, or 
by an affiliate or subsidiary of such a firm or corporation or other legal entity; or 
B) If the alien is already in the United States working for the same employer or a 
subsidiary or affiliate of the firm or corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
Page 5 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity[.] 
In light of the above, the petitioner must establish that the beneficiary entered the United States in order to 
work for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal entity by 
which the alien was employed overseas in order to fall under the provisions of 8 C.P.R. § 204.5G)(3)(i)(B), 
which allow the relevant three-year period of foreign employment to be based on the date of the beneficiary's 
nonimmigrant entry into the United States. Otherwise, a nonimmigrant entry that occurred for any purpose 
other than to work for the same employer or a subsidiary or affiliate of the firm or corporation, or other legal 
entity by which the alien was employed overseas would require the AAO to apply the provisions of 8 C.P.R. 
§ 204.5G)(3)(i)(A), which require the petitioner to establish that the beneficiary's one year of foreign 
employment occurred during the three-year period prior to the filing of the petition. As the petition in the 
present matter was filed on May 27,2008 and the beneficiary's employment abroad took place from August 
2003 to August 2004, such employment would fall outside the three-year period as determined by 8 C.P.R. 
§ 204.5G)(3)(i)(A). The petitioner has not established that the beneficiary's nonimmigrant entry into the 
United States was such that the petitioner falls under the provisions of 8 C.P.R. § 204.5(j)(3)(i)(B). As the 
petitioner has not provided evidence of the date of the beneficiary's nonimmigrant entry into the United States 
or the purpose of that entry, the AAO is unable to determine whether the provisions of 8 c'P.R. 
§ 204.5(j)(3)(i)(A) or (B) apply. 
In summary, not only has the petitioner failed to establish that the beneficiary was employed abroad in a 
qualifying managerial or executive capacity, but it has also failed to establish that the beneficiary's requisite 
one year of employment abroad occurred during the relevant three-year time period. Therefore, on the basis 
of this initial conclusion, this petition cannot be approved. 
The other issue addressed by the director in this proceeding is whether the petitioner has a qualifying 
relationship with a foreign entity. 
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; 
* * * 
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 
-Page 6 
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. 
In the present matter, the petitioner claims that it is an affiliate of the beneficiary's foreign employer. Among 
the initial the provided its corporate tax returns for 2006 and 2007 both of 
as owner of 100% of the petitioner's stock. No further documentation 
was submitted with regard to the petitioner's ownership and no documentation at all was submitted to 
establish the ownership and control of the foreign entity where the beneficiary was allegedly employed. 
Accordingly, the director concluded that the petitioner failed to establish that it has a qualifying relationship 
with the beneficiary's foreign employer. 
provides translated incorporation documents pertammg to 
beneficiary'S claimed foreign employer. Clause four of the document indicates that the 
foreign entity issued a total of 3,000 shares, which were evenly split three ways 
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 o/Church Scientology International, 19 I&N Dec. 593 (BrA 1988); see also 
Matter o/Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BrA 1986); Matter 0/ 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 
0/ Church Scientology International, 19 I&N Dec. at 595. 
In the present matter, based on the information presented in the petitioner's tax returns and the foreign entity's 
incorporation documents, the AAO cannot conclude that the two entities fall under the definition of affiliate 
as this term is defined at 8 C.F.R. § 204.50)(2). While the two entities in question do share a degree of common 
ownership in has an interest in each entity, it cannot be determined that the 
two entities are similarly owned and controlled. 00% ownership of the U.S. entity entitles her to 
complete control of that company. However,_shares ownership of the foreign entity with two other 
individuals, each of whom owns an equal portion of that entity. As such, all three owners have the same degree 
of control of the foreign entity with no one individual owning a majority or controlling interest. If one individual 
owns a majority interest in the U.S. and foreign entities, that person is said to have "de jure" control by reason 
of ownership of 51 percent of outstanding stocks of each. Control may also be "de facto" by reason of having 
control of voting shares through partia~ssion of proxy votes. Matter 0/ Hughes, 18 I&N 
Dec. 289. In the present matter, while_has de jure control of the U.S. entity, she does not 
have de jure control over the foreign entity and no evidence has been provided to indicate that she has de facto 
control over that entity. In light of the facts presented herein, the AAO cannot conclude that the U.S. 
petitioner and the foreign entity share common ownership and control such as to constitute a qualifying 
relationship pursuant to 8 C.F.R. § 204.5(j)(2). Therefore, on the basis of this conclusion, the AAO cannot 
approve the instant petition. 
Furthermore, while not addressed in the director's decision, the AAO finds that the petitioner has failed to 
establish eligibility on at least two additional grounds. 
· . 
Page 7 
First, the petitioner has failed to establish that it would employ the beneficiary within a qualifying managerial 
or executive capacity. It is noted that 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. at 604. Here, the petitioner failed to provide a detailed job description to establish that the primary 
portion of the beneficiary's time would be allocated to managerial or executive tasks. 
Second, the petitioner has failed to establish that it meets the criteria set forth in 8 C.F.R. § 204.5(j)(3)(i)(D), 
which requires the petitioner to establish that it has been doing business for at least one year prior to filing the 
Form 1-140. The regulation at 8 C.F.R. § 204.5(j)(2) states that doing business means "the regular, systematic, 
and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the 
mere presence of an agent or office." While the petitioner has submitted several of its bank statements and two 
corporate tax returns, these documents do not establish the petitioner's participation in ongoing business 
transactions. As such, they cannot be relied upon to determine whether an entity is conducting business on a 
"regular, systematic, and continuous" basis. See id. 
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. § l361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.