dismissed EB-1C Case: Management

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: SEP 0 7 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
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)(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)(l)(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 Massachusetts corporation that seeks to employ the beneficiary as its executive 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 three grounds of ineligibility. The director concluded that the 
petitioner failed to establish that: 1) the beneficiary was employed abroad in a qualifying managerial capacity 
for the requisite time period; 2) the petitioner operates as a multinational entity; and 3) that the petitioner 
would employ the beneficiary in the United States in a managerial or executive capacity. The director made 
note of numerous anomalies discovered while reviewing the beneficiary'S Form G-325A Biographic 
Information Sheet. 
On appeal, counsel disputes the director's decision and offers a statement from the petitioning entity's 
managing director addressing the adverse findings. 
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 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 to be addressed in the present matter is whether the petitioner met the regulatory provisions 
cited in 8 C.F.R. § 204.5(j)(3)(i)(B), which applies to a beneficiary who 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 
Page 3 
which the beneficiary was employed overseas. The petitioner must establish that the beneficiary, during the 
three years preceding his entry as a nonimmigrant, was employed by the entity abroad for at least one year in 
a managerial or executive capacity. 
Although the petitioner provided a statement in support of the Form 1-140, claiming that the beneficiary was 
employed abroad as "the highest ranking India-based employee," the beneficiary's exact period of 
employment was not specified. The director subsequently issued a request for evidence (RFE) dated October 
24, 2008 in response to which the petitioner provided an undated statement claiming that the beneficiary 
commenced his employment abroad as an executive manager for the petitioner's India-based subsidiary on 
August 1, 2004 and subsequently resumed his employment with the U.S. petitioner in February 2007. 
After reviewing the record in its entirety, the director issued a decision dated June 9, 2009, concluding that 
the petitioner failed to establish that the beneficiary was employed abroad by the petitioner's Indian subsidiary 
for at least one year during the requisite three-year time period. The director noted that the information the 
beneficiary provided in his Form G-325A contradicted assertions made in the RFE response with regard to the 
beneficiary's residence and employment history. Specifically, the director pointed out that while the 
petitioner claimed the beneficiary's period of employment with its Indian subsidiary was from August 1, 2004 
until February 2007, the beneficiary's Form G-325A indicates that the beneficiary has resided in the United 
States from August 2002 through July 15, 2008. Next, the director pointed out that, according to the 
beneficiary's Form G-325A, the beneficiary was employed by the foreign entity from July 2004 until March 
2006, not until February 2007. Lastly, the director pointed that U.S. Citizenship and Immigration Services 
(USCIS) records show that the beneficiary entered the United States as a nonimmigrant on June 12,2004 and 
did not depart until November 17,2004, thus making it impossible for the beneficiary to have been working 
and residing abroad from August 2004 through February 2007. The AAO notes that the petitioner must 
resolve any inconsistencies in the record by submitting 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). 
On appeal, the petitioner has failed to provide adequate information resolving the above inconsistencies. 
While the AAO acknowledges the monthly pay slips that the petitioner submitted to establish that the 
beneficiary was employed by the foreign entity during the one-year period from July 2005 through July 
2006,1 the pay slips were clearly internally generated either by the petitioner or by the foreign entity and 
cannot be deemed as objective evidence. Moreover, the AAO notes that the pay slip for July 2005, which 
spans two pages, shows that the date of employment commencement, contained on the second page, was July 
31,2000, not August 1,2004 as was shown in the other pay slips. Additionally, closer review of the pay slips 
covering January through March 2006 shows that no income tax amount was assessed for those three months. 
These anomalies indicate that the information contained within the internally generated pay slips is not 
reliable and that the documents containing the information may have been fabricated for the specific purpose 
of overcoming the inconsistencies that were pointed out in the director's decision. 
Although the petitioner asserts on appeal that the beneficiary maintained a U.S. address during his residence 
abroad for the purpose of receiving mail in the United States, neither the new claim nor the beneficiary'S 
revised Form G-325A is insufficient to overcome the director's adverse findings. The AAO further questions 
the consistency of two claims that are contained within the statement the petitioner has offered on appeal. In 
one instance the petitioner claims that the beneficiary was employed by the foreign entity in the position of 
1 It is noted that a pay slip for June 2006 was not included. 
Page 4 
general manager until February 2007? In another portion of the appeal statement, the petitioner claims that 
the beneficiary "formally transitioned towards the role he now occupies in the United States" in November 
2006.3 It is unclear how the beneficiary can maintain employment abroad until February 2007 when a second 
claim is being made that the beneficiary transitioned to his employment with the U.S. entity by November 
2006, which is approximately three months prior to the date that was originally claimed as the 
commencement date of the U.S. employment. 
The AAO notes that doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of 
the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 
19 I&N Dec. at 591. In the present matter, rather than clarifying and resolving the anomalies that were 
originally pointed out in the director's decision, the petitioner provided statements and documentation that 
only caused further doubt about the reliability of the petitioner's claim and supporting documents. As the 
petitioner has not resolved the inconsistencies that have been addressed in this discussion, the AAO finds that 
the petitioner has failed to establish that the beneficiary was employed abroad during the statutorily required 
time period and on the basis of this initial finding, the instant petition cannot be approved. 
Next, the AAO will address the second ground cited as a basis for denial-whether the petitioner is doing 
business abroad such that it fits the definition of multinational. 
Based on the definitions found at 8 C.F.R. § 204.5(j)(2), the term multinational applies to a qualifying entity, 
or its affiliate or subsidiary, that conducts business in two or more countries, one of which is the United 
States. The term doing business is defined as 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. Id. 
In the present matter, the director determined that the documentation submitted initially in support of the 
petition was not sufficient to establish that the beneficiary conducts business abroad through an affiliate or 
subsidiary entity. Accordingly, this issue was addressed in the October 24, 2008 RFE in which the director 
instructed the petitioner to submit evidence such as invoices, bills of sale, and/or product brochures, to 
establish that the foreign entity has continued to do business. 
In response, the petitioner provided a spreadsheet of the foreign entity's 2008 actual expenses as well as a copy of 
the foreign entity's balance sheets and profit and loss statements for 2006 and 2007. 
In the June 9, 2009 denial, the director determined that the documents submitted in response to the RFE were 
insufficient to establish that the petitioner continues to do business abroad through its foreign subsidiary. The 
AAO concurs with the director's conclusion. 
First, the AAO notes that the petitioner failed to submit any objective evidence. Instead, all of the documents 
offered in response to the RFE were internally generated without any indication from an independent or 
objective source to verify that the information contained within the documents is factually accurate. As noted 
above, any doubt cast on any aspect of the petitioner's proof may cause USCIS to reassess of the reliability 
and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 
at 591. Second, the AAO notes that, even if the reliability of the submitted documents were not an issue, the 
AAO cannot gauge the frequency of the foreign entity's sales transactions on the basis of a company's 
2 See page 2, subsection (b) in the appeal statement. 
3 Id. at subsection (c). 
expenses, balance sheets, or profit and loss statements. As indicated above, the director properly advised the 
petitioner of the types of documents that would determine whether the foreign entity was doing business. 
However, the petitioner failed to provide the types of documents that were recommended in the RFE. As the 
submitted documents fail to establish that the foreign entity has been conducting business on a "regular, 
systematic, and continuous" basis, the AAO cannot conclude that the petitioner is a multinational entity and on 
the basis of this second conclusion, the instant petition cannot be approved. 
The final issue to be addressed in this proceeding is the beneficiary's employment capacity in his proposed 
position with the U.S. entity. Specifically, the AAO will examine the record to determine whether the 
petitioner submitted sufficient evidence to establish that the beneficiary would be employed in the United 
States in a qualifying managerial or executive capacity. 
Section 10 1 (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 
Page 6 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
The petitioner's initial support letter included the following list of the duties and responsibilities the 
beneficiary would carry out during the course of his proposed employment: 
1. Responsible for executing Outsourcing Feasibility Analysis with clients; 
2. Responsible for negotiating pricing and business terms of contractual relationships with 
clients; 
3. Exclusively responsible for defining job responsibilities, skills requirements, and 
compensation targets for [the p ]etitioner's client service teams; 
4. Responsible for interviewing prospective candidates for client service teams; 
5. Exclusively responsible for providing hiring recommendations, and having final decision 
rights over hiring and firing of client service team members; 
6. Exclusively responsible for final version of Standard Operating Procedures for various client 
contracts; 
7. Exclusively responsible for managing service transitions to outsourced models; 
8. Exclusively responsible for running Project Status Update calls with client project sponsors; 
9. Exclusively responsible for overall client satisfaction with [the p]etitioner's services; and 
10. Exclusively responsible for overall profitability of contracts managed by [the] Executive 
Manager. 
The petitioner also stated that the beneficiary will be the main point of contact in terms of negotiating contract 
costs and managing client relationships. 
The director determined that additional information was necessary in order to determine whether the proposed 
employment fits the definition of managerial or executive capacity. Accordingly, this issue was addressed in 
the RFE, which instructed the petitioner to provide a list of the beneficiary'S proposed job duties and to 
indicate what percentage of time would be allocated to each item on the list. The director also asked the 
petitioner to identifY the job titles and discuss the job duties of the beneficiary'S subordinates. 
In a response statement, the petitioner restated the list of duties and responsibilities that were included in the 
initial support statement and further indicated that the beneficiary would allocate 33% of his time to each of 
three categories: directing the management of employees; designing and coordinating business structure, 
systems, and operations; and directing and coordinating information technology and customer support 
functions. The petitioner stressed the beneficiary'S discretionary authority to hire and fire employees located 
at the U.S. office and at the subsidiary office in India. The petitioner further indicated that the managers, 
senior analysts, analysts, and processing analysts provide the day-to-day services. 
Page 7 
After reviewing the petitioner's submissions, the director determined that the supporting evidence failed to 
establish that the beneficiary would be employed in the United States in a qualifying managerial or executive 
capacity. The director noted that the petitioner failed to submit a job title or job description for the 
beneficiary's subordinate employee and pointed out that the beneficiary would be required to carry out certain 
non-qualifying tasks according to the job description that was provided in response to the RFE. 
On appeal, the petitioner's managing director, submits a statement indicating that 
commencing in 2008 ~issued IRS Form W-2s to two employees and paid wages to one 
independent contractor. ~rther claims that the remainder~oner's employees received 
a Schedule K-l as they provided services from abroad. Additionally, ~ provides a supplemental 
job description in which he restates the elements that were included in the original job description and 
supplements this information by categorizing the items in the list and allocating hourly time constraints to 
each of five categories. 
After reviewing the information submitted, the AAO finds that the petitioner has failed to overcome the 
director's adverse conclusion. 
As a preliminary matter, the AAO notes that when examining the executive or managerial capacity of the 
beneficiary, the description of the beneficiary's job duties is examined first. See 8 C.F.R. § 204.5(j)(5). The 
AAO will then consider this information in light of the petitioner's organizational hierarchy, the beneficiary's 
position therein, and the petitioner's overall ability to relieve the beneficiary from having to primarily perform 
the daily operational tasks. 
In the present matter, the beneficiary's job description does not establish that the primary portion of the 
beneficiary's time will be allocated to tasks of a qualifying nature. While the AAO acknowledges that no 
beneficiary is required to allocate 100% of his time to managerial- or executive-level tasks, the petitioner 
must establish that the non-qualifying tasks the beneficiary would perform are only incidental to his/her 
proposed position. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See 
sections lOl(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). Here, it is unclear precisely how much of the beneficiary's time will be allocated to qualifying 
managerial or executive tasks. For instance, the petitioner indicates that some portion of the beneficiary's 
time will be allocated to calling clients to maintain status updates. While the petitioner allocated six hours to 
the general category in which this job duty was placed, it is unclear just how much of the six hours would be 
specifically allocated to this non-qualifying job duty. The beneficiary's job description also contains other 
non-qualifying job duties, including negotiating pricing and contract terms with clients, meeting with clients 
and ensuring client satisfaction, and executing an outsourcing feasibility analysis. The record shows that the 
petitioner was expressly instructed to assign time allocations to specific tasks in order to determine precisely 
how much of the beneficiary's time would be spent performing non-qualifying tasks. The time allocations 
provided on appeal fail to adequately respond to this request, which was included in the RFE. 
With regard to the petitioner's staffing, while the petitioner claims that certain non-U.S.-based employees 
were issued K-1 s, the record lacks any specific information about the actual employees, i.e., the number of 
employees working in 2008 when the petition was filed, their respective job titles, and the job duties they 
were assigned to perform. In fact, even though the petitioner states that two of its U.S. employees were 
issued Form W-2s in 2008, neither their job titles nor job duties were specified. Furthermore, the record has 
Page 8 
not been supplemented with either of these employees' Form W-2. 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 summary, the AAO finds that the record lacks an adequate job description and fails to establish that the 
petitioner was adequately staffed to relieve the beneficiary from having to primarily carry out the petitioner's 
daily operational tasks. As previously noted, the beneficiary's job description is considered in the context of 
the petitioner's organization and the organizational hierarchy that existed at the time the petition was filed. 
Here, the AAO is unable to gauge who was part of the petitioner's organizational hierarchy and how the 
petitioner was able to support the beneficiary in a primarily managerial or executive capacity. Therefore, in 
light of these findings, the AAO concludes that the record lacks sufficient evidence to establish that the 
beneficiary would be employed in a qualifying managerial or executive capacity and on the basis of this 
determination the instant petition cannot be approved. 
Furthermore, while not addressed in the director's decision, the AAO finds that the petitioner has failed to 
establish that it has a qualifying relationship with the beneficiary's foreign employer as required by 8 C.F.R. 
§ 204.5U)(3)(i)(C). Although the petitioner claims that it owns the foreign entity that has been deemed the 
beneficiary's foreign employer, the record does not contain evidence of the claimed parent-subsidiary 
relationship. See 8 C.F.R. § 204.5U)(2) for the definition of subsidiary. 
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"" Here, the petitioner has failed to establish the element of 
common ownership and as such the record is inconclusive as to the alleged qualifying relationship between 
the petitioner and the beneficiary's foreign employer. 
As a final note, the petitioner has made brief references to the petitioner's current approved L-l employment 
of the beneficiary. The AAO notes, however, that each nonimmigrant and immigrant petition is a separate 
record of proceeding with a separate burden of proof; 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 
prior nonimmigrant approvals do not preclude USCIS from denying an extension petition. See e.g. Texas 
A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004). Similarly, 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 a previous nonimmigrant petition was approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
Page 9 
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). 
Accordingly, 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.