dismissed EB-1C Case: It Consulting

(b)(6)
DATE: MAR 1 9 2014 
IN RE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation Services 
Administrative Appeals Offic e (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appe als Office (AAO) in your case. 
This is a non-preced ent decision . The AAO does not announce new constructions of law nor establish age ncy 
policy through non-precedent decisions. If you believe the AAO incorr ectly 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:Uwww.uscis.gov/forms 
for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do 
not file a motion directly with the AAO. 
Than 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner, a Virginia limited liability company states that it is engaged in "Information 
Technology, Data Management and Health Care Consulting." The petitioner seeks to employ the 
beneficiary as its President. 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, finding: (1) the petitioner failed to establish that it had been doing 
business for one year prior to filing the current visa petition; (2) the petitioner failed to establish that it 
had the ability to pay the beneficiary's proffered wage; and, (3) the petitioner failed to establish that it 
would employ the beneficiary in a qualifying managerial or executive capacity. 
On appeal, counsel asserts 
that the director's decision was based on an erroneous application of the 
law and without reference to all of the evidence submitted. Counsel submits a brief in support of the 
appeal. 
I. THE LAW 
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 the firm , corporation or other legal entity, or an affiliate or subsidiary 
of that entity, and are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
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A United States employer may file a petition on Form 
I-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 that indicates that the alien is to be employed in the United States in a managerial or 
executive capacity. Such a statement must clearly describe the duties to be performed by the alien. 
See 8 C.F.R. § 204.5G)(5). 
Finally, the regulations at 8 C.F.R. § 204.5(j)(3)(i) state that the petitioner must provide the following 
evidence in support of the petition in order to establish eligibility: 
(A) If the alien is outside the United States, in the three years immediately 
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, the alien was employed by the entity abroad for at least one year 
in a manageri al or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by which 
the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
II. DOING BUSINESS 
The first issue in this proceeding is whether the petitioner submitted sufficient evidence to establish 
that it has been doing business for at least one year prior to the date of filing. See 8 C.F.R. 
204.5G)(3)(i)(D). 
The petitioner was established as a limited liability company in Virginia on March 22, 2011. The 
petitioner filed the current petition on April 12, 2012. The petitioner must establish that it was doing 
business for one year prior to filing the current petition. 
The term "doing business" is defined in the regulations as "the regular, systematic, and continuous 
provision of goods and/or services by a qualifying organization and does not include the mere 
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presence of an agent or office of the qualifying organization in the United States and abroad." 8 C.F.R. 
§ 204.5U)(2). 
The petitioner submitted several documents as evidence of doing business in 2011. The documents 
submitted were consulting agreements, reseller agreements and subcontract agreements which were 
all signed in 2011. In order to obtain these agreements and contracts , and in order to start providing 
the consulting services as indicated in these agreements , the petitioner was doing business. The 
petitioner has established that it was doing business for one year prior to filing the instant petition and 
was a fully operational business at the time of filing the petition . Thus , the petitioner has provided 
sufficient evidence to overcome the director's concerns, and the AAO will withdraw the director's 
determination with respect to this issue. 
III. ABILITY TO PAY 
The second issue in this proceeding is whether the petitioner has the ability to pay the beneficiary 's 
proffered wage. 
The regulation at 8 C.F.R. § 204.5(g)(2) states, in pertinent part: 
Any petition filed by or for an employment-based immigrant which requires an offer of 
employment must be accompanied by evidence that the prospective United States 
employer has the ability to pay the proffered wage. The petitioner must demonstrate 
this ability at the time the priority date is established and continuing until the 
beneficiary obtains lawful permanent residence. Evidence of this ability shall be in the 
form of copies of annual reports, federal tax returns, or audited financial statements. 
(Emphasis added.) 
The petitioner indicates on the Form I-140, at Part 6, that it will pay the beneficiary $240,000.00 per 
year. In determining the petitioner's ability to pay the proffered wage, USCIS will first examine 
whether the petitioner employed the beneficiary at the time the priority date was established. If the 
petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal to or 
greater than the proffered wage, this evidence will be considered prima facie proof of the petitioner's 
ability to pay the beneficiary's salary. 
In the present case, the priority date is April 12, 2012. In 2012, the beneficiary received a 
disbursement of $240,000.00. The petitioner submitted a copy of the bank receipt for the deposit of 
$240 ,000.00 into the beneficiary's account. The petitioner also submitted a profit and loss statement 
as of August 31, 2012 that indicated a distribution of $240,000.00 was made to the beneficiary. Thus, 
the petitioner has overcome the director's concerns and the AAO will withdraw the director's 
determination with respect to this issue. 
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IV. MANAGERIAL OR 
EXECUTIVE CAPACITY 
The third issue to be addressed is whether the petitioner submitted sufficient evidence to establish that 
it would employ the beneficiary in the United States in a qualifying managerial or executive capacity. 
Section 10l(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 in 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 in 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 
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(iv) receives only general supervisiOn or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
In examining the executive or managerial capacity of the beneficiary, USCIS 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), ajfd, 905 F.2d 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.5(j)(5). That being said, however, 
users reviews the totality of the record , which includes not only the beneficiary's job description , 
but also takes into account the nature of the petitioner's business, the employment and remuneration of 
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. 
Upon review, the petitioner has not established that it will employ the beneficiary in a qualifying 
managerial or executive capacity . 
The petitioner stated on the Form I-140 that'the beneficiary will serve as its president. The petitioner 
indicated that it had one employee as of the date of filing. 
In a letter dated April 12, 2012, counsel for the petitioner stated that the beneficiary's duties involve 
"high level negotiations for valuable contracts with U.S. and international companies," and the 
beneficiary is responsible for "leading the company and formulating its policy." Counsel further 
stated that the beneficiary "directs a multi-faceted group of companies with his expertise in securing 
new opportunities and deep understanding of the international scope of IT management and 
investing." 
On review, the petitioner provided a vague and nonspecific description of the beneficiary 's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner 
stated that the beneficiary will "directly be overseeing, directing the U.S. operations, developing long 
term goals, objectives and monitoring growth and profitability of the company ." In addition , the 
beneficiary will "direct the management of the organization; oversee all activities and policies of the 
U.S. branch including establishing of budgets, technical service, sales, marketing, and administrative 
policies. " Counsel also explained that the beneficiary will "lead formation of additional strategic 
partnerships;" "ensure timely execution of future partnerships and strategies;" "serve as the primary 
interface with external constituents;" and, "lead all future fund-raising activities ." 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. at 1108. The petitioner's descriptions of the beneficiary's position do not 
identify the actual duties to be performed, such that they could be classified as managerial or 
executive in nature. In the instant matter, the job description submitted by the petitioner provides 
little insight into the true nature of the tasks the beneficiary will perform. 
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The job description also includes several non-qualifying duties such as the beneficiary will "oversee 
design, marketing, promotion, delivery and quality of programs and products and services;" "develop 
yearly budget and prudently manages organizations' resources within those budget guidelines;" 
"identify and pursue new partnerships and business development opportunities;" and, oversee the 
research into new market sectors ." However, the petitioner did not indicate who will be in charge of 
the market research, the development of the marketing program, the development of the sales 
strategies, or business development strategies. It appears that the beneficiary will be developing and 
marketing the products of the business rather than directing such activities through subordinate 
employees. 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 10l(a)(44)(A) and (B) ofthe Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); see also Matter of Church Scientology Intn '!., 19 I&N Dec. 593, 604 
(BIA 1988). 
Moreover, a critical analysis of the nature of the petitioner's business undermines the petitioner's 
assertion that the beneficiary is employed in a managerial or executive capacity. The Form I -129, 
submitted on April 12, 2012 stated that the petitioner 
employs 1 individual. On appeal, counsel states 
that the "denial also failed to consider the numerous vendors and contractors employed by the 
petitioner." However, the petitioner did not submit any documentation evidencing that the petitioner 
employs contractors or additional employees at the time of filing. Thus, it appears that the petitioner 's 
only employee at the time of filing is the beneficiary. Thus, it appears from the record that the 
beneficiary may be performing several, if not all, of the finance operations, marketing and sales 
operations, and business development activities, and all of the various operational tasks inherent in 
operating a business on a daily basis, such as paying bills, handling customer transactions, and 
negotiating contracts. Based on the record of proceeding, the beneficiary's job duties are principally 
composed of non-qualifying duties that preclude him from functioning in a primarily managerial or 
executive role. 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 10l(a)(44)(A) and (B) of the Act (requiring that one "primarily " perform the enumerated 
managerial or executive duties); see also id .. 
The statutory definition of the term "executive capacity" focuses on a person's elevated pos1t10n 
within a complex organizational hierarchy, including major components or functions of the 
organization, and that person's authority to direct the organization. Section 10l(a)(44)(B) of the Act, 
8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the 
management" and "establish the goals and policies" of that organization. Inherent to the definition, 
the organization must have a subordinate level of managerial employees for the beneficiary to direct 
and the beneficiary must primarily focus on the broad goals and policies of the organization rather 
than the day-to-day operations of the enterprise. An individual will not be deemed an executive under 
the statute simply because they have an executive title or because they "direct" the enterprise as the 
owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
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discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." !d. 
The beneficiary's job duties , as described by the petitioner, are not indicative of an employee who is 
primarily focused on the broad goals and policies of the organization. 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). The petitioner has not established that the 
beneficiary is primarily engaged in directing and controlling a subordinate staff comprised of 
professional, managerial or supervisory employees, nor has it indicated that he is charged with 
managing an essential function of the petitioning organization. See section 101(a)(44)(A) of the Act. 
Therefore, the AAO is not persuaded that the beneficiary would be employed in a primarily 
managerial capacity. 
V. QUALIFYING RELATIONSHIP 
Beyond the decision of the director, petitioner did not submit sufficient evidence to establish that it 
has a qualifying relationship with the beneficiary's foreign employer. 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 )(1 )(C) of the 
Act, 8 U.S.C. § 1153(b )(1)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms 
"affiliate" and "subsidiary"). 
The regulation at 8 C.F.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 joint venture and has equal control and veto power 
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over the entity; or owns, directly or indirectly , less than half of the entity, but in fact 
controls the entity. 
In the AprillO, 2012 support letter , counsel for the petitioner explained that the petitioner is a "branch 
of in Egypt and has the authority to transact business in Virginia." Counsel also stated 
that is made up of five companies, including the petitioner. The petitioner submitted the 
certificate of organization , articles of organization and an operating agreement. The operating 
agreement has a document , entitled Schedule A, that states the beneficiary owns 100 percent of the 
petitioner. The petitioner also submitted a document entitled, "Cmrent Ownership Structme ," which 
lists and the five companies connected to the group. The document states that the 
beneficiary owns 100 percent of The chart also states that the beneficiary owns 60 
percent of the petitioner and the other 40 percent is owned by a technology development fund. The 
operating agreement stated that the beneficiary owns 100 percent of the petitioner but the document of 
the ownership structure stated that the beneficiary only owned 60 percent of 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). 
In addition, the chart of the ownership structure was prepared by and is not sufficient 
evidence to establish a qualifying relationship. As general evidence of a petitioner's claimed 
qualifying relationship, a certificate of formation or organization of a limited liability company (LLC) 
alone is not sufficient to establish ownership or control of an LLC. LLCs are generally obligated by 
the jurisdiction of formation to maintain records identifying members by name, address, and 
percentage of ownership and written statements of the contributions made by each member, the times 
at which additional contributions are to be made, events requiring the dissolution of the limited 
liability company, and the dates on which each member became a member. These membership 
records, along with the LLC's operating agreement, certificates of membership interest, and minutes 
of membership and management meetings, must be examined to determine the total number of 
members , the percentage of each member's ownership interest, the appointment of managers , and the 
degree of control ceded to the managers by the members. Additionally, a petitioning company must 
disclose all agreements relating to the voting of interests, the distribution of profit, the management 
and direction of the entity, and any other factor affecting actual control of the entity. See Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all relevant 
documents, USCIS is unable to determine the elements of ownership and control. 
In addition, the petitioner failed to provide sufficient documentation evidencing the ownership of the 
beneficiary's foreign employer. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N 
Dec. 158, 165 (BIA1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm'r 1972)). 
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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. DOl, 381 F.3d 143, 145 (3d Cir. 
2004)(noting that the AAO reviews appeals on a de novo basis). 
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.