dismissed EB-1C Case: Investment Management

I identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PtmLICCOPY 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration SelVices 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
DATE: OFFICE: TEXAS SERVICE CENTER FILE: 
MAY 0 5 2011 
INRE: Petitioner: 
Beneficiary: 
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 Texas corporation that provides administrative services to investment management 
companies. The petitioner seeks to employ the beneficiary as its administrative director. 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 the finding that the petitioner failed to 
establish that the beneficiary would be employed in the United States in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief asserting that the petition was 
denied in error. In a separate appellate brief, counsel argues that the director only considered the beneficiary's 
employment in the role of a personnel manager but failed to consider whether the beneficiary qualifies as a 
function manager. 
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 I 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 primary issue in this proceeding whether the petitioner provided sufficient evidence to establish that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) ofthe 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 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 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. 
In support of the Form 1-140, in his capacity as the petitioning entity's corporate secretary, 
submitted a letter dated October 31, 2007 in which he provided the following description of the beneficiary'S 
proposed employment with the U.S. entity: 
The Director of [the petitioner] manages the daily operations of the [c]ompany. She is in 
charge of incorporating and managing offshore companies used by clients as investment 
holdings and providing other professional administrative services to investment management 
companies and investors. She provides investment advise [sic] to the [c]ompany's clients, 
including a large Mexican clientele, by analyzing financial opportunities, forecasting 
profitability and monitoring the present investment climate. She monitors clients' 
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investments and make [sic] recommendations based on sound financial analysis using her 
expertise of the financial markets. 
In addition to her investment management duties, the Director manages the [c]ompany's day­
to-day operations, which will include preparing financial statements, monitoring expenses 
and supervising personnel. The Director has a budgetary authority of at least $250,000. The 
Director functions at a senior level within the [c ]ompany and exercises 100% discretion and 
authority of the day-to-day operations. 
On April 30, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, a more detailed description of the beneficiary's proposed employment. The petitioner was 
asked to list the beneficiary's specific job duties and to indicate the percentage of time she would devote to 
each of the listed tasks. The director also instructed the petitioner to discuss the beneficiary's subordinates by 
providing their respective job titles and educational backgrounds and by briefly describing each individual's 
job duties. 
In response, the petitioner provided a statement, dated May 28, 2009, from counsel, who included a list of 
twelve duties and responsibilities accompanied by percentage breakdowns showing the beneficiary's time 
allocations in her proposed position with the u.s. entity. As the director included the supplemental position 
description in the denial, the AAO need not repeat this information at the present time. Also included in the 
response was a copy of the petitioner's organizational chart, which depicts a four-person entity comprised of 
the company president, the beneficiary and a company secretary as the president's direct subordinates, and an 
administrative assistant as the beneficiary's direct subordinate. 
On July 7, 2009, the director issued a decision denying the petition based on the finding that the petitioner 
failed to establish that the beneficiary's proposed position with the u.s. entity would be primarily comprised 
of qualifying tasks within a managerial or executive capacity. Rather, the director determined that the 
primary portion of the beneficiary's time would be allocated to performing operational tasks, which, while 
essential to the petitioning entity, could not be deemed as qualifying under the statutory definition of 
managerial or executive capacity. 
On appeal, counsel disputes the director's finding, referring to the decision as "an error of fact." Counsel 
asserts that the director erroneously focused on the requirements that apply to a personnel manager while 
failing to consider the beneficiary's position in the role of a function manager. In support of these assertions, 
counsel states that the beneficiary has professional and managerial responsibilities, which include daily 
management of the petitioning entity as well as management of the investments of the petitioner's investor 
clientele. 
Counsel holds the beneficiary out as someone who will be employed in both an executive and managerial 
capacity. In support of the claim that the beneficiary would be employed in an executive capacity, counsel 
states that the beneficiary will allocate "100% of her time managing the core functions of the company on a 
daily basis." Counsel states that the beneficiary will establish the company's financial targets and business 
objectives and she will create and enact policies to meet those objectives while maintaining authority over 
company initiatives and exercising her discretionary decision-making authority with minimal supervision 
from the company's president. In essence, counsel paraphrased the statutory definition of executive capacity. 
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In support of the claim that the beneficiary would be employed in a managerial capacity, counsel asserts that 
the beneficiary will manage the investment consulting function. Counsel claims that the beneficiary 
"supervises the provision of investment consulting to [the petitioner]'s clients, manages the methods by which 
the client companies' profitability is forecast and monitors the current investment climate." 
The AAO finds that counsel's arguments are not persuasive and fail to overcome the director's adverse 
finding. First, the AAO notes that counsel's conclusory assertions regarding the beneficiary's employment 
capacity and his restatements of the statutory language does not satisfY the petitioner's burden of proof. The 
regulatory provisions found at 8 C.F.R. § 204.5(j)(5) clearly state that a detailed description of the 
beneficiary's proposed job duties is key in determining whether the proposed employment will be in a 
qualifYing managerial or executive capacity. Second, counsel places undue emphasis on the beneficiary's 
discretionary authority in the proposed position, ignoring published case law that emphasizes the significance 
of the beneficiary's actual daily job duties in determining 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); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). That being said, in reviewing the description of the 
beneficiary's proposed employment as provided by counsel in the response to the RFE, the AAO finds that the 
director properly concluded that the primary portion of the beneficiary's time would be allocated to 
performing the petitioner's daily operational tasks. 
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. As pointed out in the director's decision, 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 10 l(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). Based on the time 
allocations provided in the present matter, it appears that the beneficiary would primarily perform tasks that 
are necessary to provide investment services that the petitioner provides to its clientele. While counsel asserts 
that the director should have considered the beneficiary's job description in light of the beneficiary's alleged 
role as a function manager, he overlooks the requirement that the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. The main function in this instance appears to be the provision of investment services 
to the petitioner's clientele. The description of the beneficiary's proposed employment strongly indicates that 
the beneficiary herself would be providing those investment services in addition to other operational tasks, 
including managing external providers and carrying out daily administrative tasks. 
Despite the beneficiary's crucial role within the petitioning entity, the AAO cannot overlook the fact that the 
beneficiary would allocate the primary portion of her time to dealing with clientele and directly providing the 
investment and consultation services offered by the petitioning entity. The record as presently constituted 
does not establish that at the time of filing the petitioner was ready and able to relieve the beneficiary from 
having to primarily perform non-qualifYing operational tasks. Therefore, on the basis of this finding, the 
AAO cannot approve the instant petition. 
Additionally, the AAO finds that the petitioner failed to meet other eligibility requirements that were not 
previously addressed in the director's decision. 
Page 6 
First, 8 C.F.R. § 204.5U)(3)(i)(B) 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 her entry 
to the United States as a nonimmigrant to work for the same employer. In the instant matter, the description 
of the beneficiary's foreign employment, which counsel provided in his response to the RFE, strongly 
indicates that the primary portion of the beneficiary'S time was allocated to providing investment and 
consultation services to the foreign entity's clientele. Therefore, the AAO cannot conclude that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. 
Second, 8 C.F.R. § 204.5U)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary'S foreign employer. Although the petitioner claims that it is an affiliate of 
the beneficiary'S foreign employer by virtue of being commonly owned by the same majority shareholder, the 
record lacks sufficient documentation to corroborate this claim. 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)). In the present matter, the record does not contain the complete list of 
stock certificates that were issued with regard to either entity. Although the record indicates that at least 
seven stock certificates were issued with regard to the U.S. entity, the petitioner submitted only certificate 
nos. 2, 5, 6, and 7 and provided no stock ledger to establish which certificates were still valid and how much 
total stock was issued. 
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; 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. 
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 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. Although the petitioner provided three stock purchase agreements, it is unclear whether these 
agreements represent all of the changes in ownership. Without full disclosure of all relevant documents, 
USCIS is unable to determine the elements of ownership and control. Moreover, the stock purchase 
agreement that was executed on May 15, 2009 contains inconsistent information about the value of the 
petitioner's stock. Although the document purports to reassign ownership of 10,000 shares of stock, it 
indicates that the consideration for these shares was $25,000, which is inconsistent with the petitioner's 
Articles of Incorporation, where the petitioner's stock was valued at ten cents per share. Issuance of 10,000 
shares of stock, according to the Articles of Incorporation, should be valued at $1,000, not $25,000 as 
indicated in the stock purchase agreement. 
The record is also incomplete with regard to the foreign entity's ownership. The petitioner provided stock 
certificate no. 3 showing that one share of the foreign entity's stock was issued to 
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•••••• on June 19,2001, as well as a document indicating that share certificate nos. 3 and five were 
canceled and that share certificate no. six was issued to . The petitioner did not provide 
documentation to establish what happened to share certificate nos. 1, 2, and 4, nor is there any evidence to 
establish that has an ownership interest in the foreign entity or had an 
ownership interest in the U.S. entity as of November 13,2007 when the Form 1-140 was filed. 
Third, 8 C.F.R. § 204.5(j)(3)(i)(D) states that the petitioner must 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." Although the 
petitioner provided its tax return as well as quarterly tax documents for 2007, these documents do not 
establish that the petitioner had been doing business as of November 2006, or one full year prior to filing. 
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 Soltane v. DOJ, 381 F.3d 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. 
Lastly, with regard to counsel's reference to the petitioner's current and previously approved L-l employment 
of the beneficiary, the AAO finds that the prior approvals are not instructive on the issue of the petitioner's 
eligibility for the immigrant visa petition that was filed in the matter at hand. It is noted that each 
nonimmigrant and immigrant petition is a separate record of proceeding with a separate burden of proof. As 
such, each petition must stand on its own individual merits. USCIS is not required to assume the burden of 
searching through previously provided evidence submitted in support of other petitions to determine the 
approvability of the petition at hand in the present matter. The approval of a nonimmigrant petition in no way 
guarantees that USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS 
denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-l petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; 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. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals would constitute material and 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. 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). 
Finally, 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). 
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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.