dismissed EB-1C Case: Logistics

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and· Immigration 
Services 
DATEMAR . 0 . 9 2013 OFFICE: TEXAS SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: · Immigrant Pet.ition 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 ~EHALF 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 retunled 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 offi9e: 
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 in 
accordance with the instructions on Form ·I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a reque8t can be found' at 8 C.F.R. § 103.5. Do not me any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be ftled 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
· · Acting Chief, Administrative Appeals Office 
www.uscls.gov 
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\ 
DISCUSSION: The preference visa petition was denied b:r 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 Florida corporation that seeks to employ the beneficiary in the United States .as its general 
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)(l)(C), as a multinational executive or manager. 
In support of the· Form 1-140 the petitioner submitted a statement dated August 25, 2011, confirming the 
beneficiary's employment abroad with and a statement dated September .22, 
2011 from the U~S. entity, describing the beneficiary's foreign and proposed positions. The petitioner also 
provided a copy of its organizational chart as well as a number of corporate, tax, and business documents in 
support of the petition. 
The directorreviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for" evidence (RFE) dated March 13, 2012 informing the petitioner of 
vari<;>us evidentiary deficiencies. The RFE included requests for more detailed job descriptions· pertaining to 
the beneficiary's foreign and proposed positions, listing the beneficiary's job duties and their time allocations, 
and job descriptions of the beneficiary's subordirultes in each entity, listing their respective job duties and 
educational leve~s. The petitioner was also asked to provide various tax documents showing the w~ges and 
salaries paid to its employees during relevant time periods. Additionally, the ilirector asked the petitioner to. 
provide documentation showing that·it has a qualifying relationship with the beneficiary's employer abroad. 
Although the petitioner responded to the RFE, it failed. to provide any additional documentation addressing 
the issue of its claimed qualifying rel~tionship with the beneficiary's employer abroad. The petitioner did, 
however, provide organizational charts depicting the beneficiary's positions with· the foreign and U.S. 
employers, respectively. Additionally, the petitioner provided 
the beneficiary~s job description pertaining to 
the U.S. entity only, omitting any further information about the job duties performed by the beneficiary 
during her employment abroad. It is noted that failure to submit requested evidence that precludes a material 
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
After considering the petitioner's response, the director determined that the petitioner failed to establish that 
the beneficiary was .employed abroad or -that she would be employed with the U.S. entity in a qualifying 
managerial or executive capacity. The director found that the job descriptions the petitioner submitted lacked 
the necessary degree of detail and thus failed to properly convey the true nature of the beneficiary's tasks with 
either entity. The director also concluded that the petitioner failed to establish that it has a qualifying 
relationship with the beneficiary's foreign employer._ In light of these adverse fmdings, the director issued a 
decision dated April24, 2012 denying the petition. 
On appeal, the petitioner provides a statement asserting that the beneficiary acquired managerial skills during 
her years of experience with the foreign entity. The petitioner reiterated the beneficiary's list of job duties 
and time breakdown, which were included in the initial support letter dated September 22, 2011, claiming that 
the beneficiary's main focus will be on expanding the logistics market and overseeing the company's staff to 
ensure that each account is serviced properly and on schedule. The petitioner also provides additional 
evidence in the form of stock certificates to address the issue of a qualifying relationship. 
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The AAO fmds that the petitioner's assertions and ·supporting documents are not persuasive in overcoming 
the director's decision. The issues raised will be fully addressed in a comprehensive discussion to follow. 
Seetion 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 fum or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation 
or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary . 
. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
" classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by 
the alien. 
The frrst two issues to be addressed in this matter pertain to the beneficiary's employment with the U.S. and 
foreign entities. The AAO will review the record in an effort to determine whether the petitioner· submitted 
sufficient evidence to establish that the beneficiary was employed abroad and whether she would be 
employed in the Uriited States in a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization 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; 
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(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 frrst-line supervisor is not 
considered to be ac'ting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) ofthe Act, 8 U.S.C. § 110l(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 org~ation, 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 general, when examining the executive or managerial capacity of the beneficiary, the AAO reviews the 
totality of the record, starting frrst with the description of the beneficiary's job duties. See 8 C.F.R. 
§ 204.5(j)(5). A detailed job description is crucial, as the duties themselves will reveal the true nature of the 
beneficiary's foreign and proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), a.ffd, 905 F.2d 41 (2d. Cir. 1990). The AAO will consider this information in light of other 
relevant factors, including, but not limited to, job descriptions of the beneficiary's subordinate employees, the 
· nature of the businesses conducted by both entities, the respective sizes of the subordinate staff of the foreign 
and U.S. entities, and any other facts that may contribute to a comprehensive understanding of the 
beneficiary's actual roles in the two respective entities. 
Turning ftrst to the job description provided in the initial supporting statement with regard to the beneficiary's 
·employment abroad, the petitioner. indicated that the beneficiary performed such non-qualifying tasks as 
maintaining infon:ilation files and processing paperwork, using computers to program and write software as 
well as ·to perform data entry, scheduling programs and events, and 
presenting reports before a general 
assembly. Although the RFE expressly instructed the petitioner to supplement this job description with a 
more detailed list of tasks and time co~traints showing how much of the beneficiary's time ·would be 
. . I 
allocated to each of her previously assigned tasks, the petitioner failed to provide this information and thus 
left open the possibility that the beneficiary's time was not primarily allocated to the performance of tasks 
within a qualifying managerial or executive capacity. 
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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 
performed and ·would perform- were/are only incidental to the position in question. 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). 
Given the petitioner's failure to assign time constraints to the beneficiary's job duties with her former 
employer, the AAO cannot affirmatively conclude that she primarily spent her time performing tasks in a 
qualifying managerial or executive capacity. On the basis of this initial adverse conclusion, this petition 
cannot be approved. 
Turning to the beneficiary's proposed employment with the U.S. entity, the AAO will examine the description 
· ofthe beneficiary's job duties. Although the petitioner's initially provided a job description containing the 
clesired time constraints, the AAO concurs with the director's fmding that the information provided was 
overly vague and failed to convey a meaningful understanding of the tasks to be performed within the context 
of the petitioner's import-export operation. While the petitioner indicated that 20% of the beneficiary's time 
would be allocated to analyzing, developing, and executing new alliances to increase the company's business 
opportunities and profitability, the petitioner failed to affrrmatively establish that the beneficiary would 
refrain from actively seeking out new clientele, thus leaving open the possibility that the beneficiary's role 
contains a non-qualifying sales component. 
The petitioner also failed to state what actual tasks the beneficiary would carry out in her supervision of'two 
managerial employees, only one of whom: was included in the relevant quarterly wage report, which reflects 
the petitioner's stafi.ing at the time the instant Form 1-140 was filed. Not only is the record vague as to the 
tasks the beneficiary would carry out in supervising her direct subordinates, the record does not support the 
claim that the petitioner employed two managerial employees for the beneficiary to oversee. 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 (Comm. 1998) (citing Matter ofTreasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
· While the petitioner claimed that the beneficiary would allocate a total of 15% of her time to implementing 
long- and short-term goals and exercising wide latitude in discretionary decision making, these statements are 
little more than mere paraphrases of the statutory definition for executive capacity l¥ld impart no further 
understanding of the actual tasks the beneficiary would perform in her role as general manager of an import­
export business. 
Finally, while the beneficiary's job description indicates that she would allocate 10% of her time to reviewing 
various reports and budgets, the record does p.ot establish that the employee who has been assigned the duties 
of generating such reports was actually working for the petitioner at the time the petition was filed. The 
petitioner's organizational chart includes who was originally identified in the position 
of administrative manager. According to the job descriptions provided on appeal, assumes the 
responsibilities of preparing financial reports, budgets, and profit-loss projections. The record does not 
establish that this individual was employed by the petitioner during the fourth quarter of 2011, as her name 
was not included among the list of employees to whom the petitioner paid. a wage or salary.· The AAO is 
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therefore unable to determine who within the: organization was available to undertake job 
duties; nor can the AAO tule out the possibility that the beneficiary would have assumed the responsibility of 
carrying out these non-qualifying tasks in the absence of an employee to whom those tasks would normally be 
assigned. Despite the petitioner's offer of an updated organizational chart as part of its submissions on 
appeal, the AAO cannot consider. events that took place since the filing of the petition in determining the 
petitioner's eligibility. The petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971 ). 
In summary, the AAO finds that the petitioner has failed to provide the evidence necessary to affirmatively 
establish that the petitioner was ready and able to employ the beneficiary in a qualify~g managerial or 
executive capacity. On the basis of this second adverse conclusion, the instant petition may not be approved. · 
. Lastly, the AAO will address the third ground that served as a basis for denial-the director's finding that the 
petitioner failed to establish the existence of a qualifying relationship between itself and 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 relatedas 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.F.R. § 204.50)(2) (providing defmitions of the terms "affiliate" 
and "subsidiary"). 
The regulation at 8 C.F.R. § 204.50)(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 
indireetly, 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 co:ntrols the entity. 
· The record indicates that ownership of the foreign entity is evenly divided among two individuals. The record 
also shows that the petitioning entity is authorized to issue a total of 20 shares eleven of which were originally 
issued to the foreign entity, as shown in stock certificate No. 00. Stock certificate No. 01 shows that tl;te 
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petitioner issued another six shares to Both stock certificates were dated April 1, 2009. 
However, the record indicates that on October 1, 2010 the petitioner sought to change its ownership by 
transferring the originally issued shares belonging · to the foreign entity and to 
and the beneficiary, respectively, such that would own 51% of the petitioner's shares 
while the beneficiary would own the remaining 49%. However, the petitioner only provided documents 
showing the original parties' forfeitures of their respective· shares. The petitioner did not provide new stock 
certificates to show that the forfeited shares were issued to the intended parties- and the 
beneficiary, respectively. Despite the petitioner's attempt to resolve this anomaly by submitting stock 
certificate Nos. 3 and 4, both certificates were issued on November 10, 2011. As previously noted, eligibility 
must be established based on facts that existed at the time of filing the petition; a petition cannot be approved 
at a future date after the petitioner or beneficiary becomes eligible under a· new . set of facts. Matter of 
Katigbak, 14 I&N Dec. at 49. Here, the stock certificates that purport to transfer shares to and, 
the beneficiary were not issued until after the petition was filed . 
. The AAO finds that the newly issued stock certificates are not valid, as they purport to transfer more shares 
than the petitioner is actually authorized to issue. More specifically, the petitioner's Articles of Incorporation, 
Article IV, indicates that the petitioner is authorized to issue a total of 20. shares. However, certificate Nos. 3 
and 4 
. attempt ·to issue a total of 100 shares, which is an amount greater than the number of shares the 
petitioner is authorized. to issue. 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 (BIA1988). 
The regulation and case law confirm that owners_hip and control. are the factors that must be examined in 
determining whether a qilalifying 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 (Assoc. Comm. 1986); Matter ofHughes, 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. 
In light of the conflicting and inconsistent evidence with regard to the petitioner's ownership, the AAO 
cannot conclude that the petitioner and 
the beneficiary's foreign employer are similarly owned and controlled. 
On the basis of this third adverse fmding, the instant petition cannot be approved. 
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.