dismissed EB-1C Case: Management

DATE: OCT 1 1 2012 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Offiee (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529~2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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 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 request can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. 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, 
rtfs~\01 ~ 
\J Perry Rhew 
Chief, Administrative Appeals Office 
www,oscis.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 Florida corporation that seeks to employ the beneficiary as its general manager. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(I)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(C), as a 
multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated October IS, 2008, which contained 
relevant information pertaining to the petitioner's eligibility, including an overview of the beneficiary's 
proposed employment, an organizational chart, and a list of supporting documents that were being submitted 
with the petition. The supporting evidence included bank, tax, and other business documents pertaining to the 
petitioner and the beneficiary's foreign employer. 
The director reviewed the petitioner's submissions and determined that the petition did not warrant approval. 
The director therefore issued a request for evidence (RFE) dated December 8, 2009 instructing the petitioner 
to provide evidence and/or information pertaining to various eligibility requirements, including the 
petitioner's qualifying relationship with the beneficiary's foreign employer and the beneficiary's managerial 
or executive employment capacity in his proposed position with the petitioning entity. 
The petitioner provided a response, which included a list of the beneficiary's responsibilities in his proposed 
position and brief job descriptions pertaining to the petitioner's other employees. Other submissions included 
the 2009 IRS Form W -2 statements issued to the petitioner's employees, the petitioner's 2008 tax return, the 
foreign entity's translated tax return for 2008, translated bank statements for September and October 2009, 
and translated business invoices for various dates in August, September, October, and November 2009. 
After reviewing the record, the director concluded that the petitioner failed to meet certain eligibility criteria. 
First, the director determined that the petitioner failed to establish that the beneficiary would be employed in 
the United States in a qualifying managerial or executive capacity. The director found that the petitioner 
provided a deficient job description which lacked details about the beneficiary's daily tasks and further noted 
that the petitioner's limited support personnel would be unable to relieve the beneficiary from having to 
allocate his time primarily to the performance of non-qualifying tasks. Second, the director concluded that 
the record contains conflicting documentation pertaining to the petitioner's ownership and that as a result it 
cannot be concluded that the petitioner has a qualifying relationship with the beneficiary's former employer 
abroad. The director therefore issued a decision dated February 17, 2010 denying the petition. 
On appeal, counsel submits a brief asserting that the petitioner is not ineligible and offering an explanation for 
the petitioner's submission of inconsistent documents pertaining to its ownership. With regard to the 
beneficiary'S proposed employment, counsel states that the director erroneously focused on the size of the 
petitioning entity in making the determination regarding the beneficiary's U.S. employment capacity. 
The AAO finds that counsel's statements are not persuasive and fail to overcome the director's denial. The 
discussion below will provide an analysis of the relevant documentation and will explain the underlying 
reasoning for the AAO's decision. 
Section 203(b) of the Act states in pertinent part: 
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(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 first issue to be addressed in this proceeding is the beneficiary's employment capacity in his proposed 
position with the petitioning U.S. entity. Specifically, the AAO will examine the record to determine whether 
it supports the finding that the beneficiary would be employed in the United States in a qualifYing managerial 
or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization III which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or ifno other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
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(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization III which the 
employee primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In examining the managerial or executive capacity of the proposed employment, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. § 204.5(j)(5). Additionally, contrary to counsel's 
assertions on appeal, the AAO also finds that it is appropriate to consider the petitioner's organizational 
hierarchy and overall staffmg, as these factors allow the AAO to gain an understanding of how the petitioning 
entity functions, who performs its daily operational tasks, and whether the petitioner has the overall ability to 
relieve the beneficiary from having to focus the primary portion of his time on the performance of non­
qualifying operational tasks. 
The RFE specifically instructed the petitioner to formulate its response in a manner that would list the 
beneficiary's job duties and indicate how much of the beneficiary's time would be allocated to each item 
listed. The petitioner's response was comprised of four bullet points-each listing broad job responsibilities 
rather than specific job duties-and lacked the requested time constraints intended to inform uscrs how the 
beneficiary would allocate his time on a daily basis. For instance, while the petitioner indicated that the 
beneficiary would be responsible for managing the company's finances and report his findings to the foreign 
entity, the petitioner provided no explanation that would clarify the specific tasks the beneficiary would 
perform in his efforts to manage the company's finances. Although the petitioner generally indicated that the 
beneficiary would analyze the sales department's performance, this general information does not clarify what 
actual tasks would be entailed in such analysis. Similarly, the claim that the beneficiary would make "general 
inquiries" regarding current projects does not translate to an explanation of daily tasks. Furthermore, 
indicating that certain tasks, such as conducting an annual performance review of the design department 
manager and attending an annual board meeting, would be done on yearly basis does little to further uscrs's 
understanding of the actual tasks the beneficiary would engage in on a daily basis. 
Page 5 
As indicated above, in order to meet regulatory criteria discussed at 8 C.F.R. § 204.5(j)(5), the petitioner must 
provide a statement in the form of a job offer containing a detailed description of the beneficiary's proposed 
job duties. It is noted that published case law 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), affd, 905 F.2d 41 (2d. Cir. 1990); see also. Furthermore, 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)(l4). While the petitioner provided some supplemental information pertaining to the 
beneficiary's prospective employment, the response lacked the substantive content necessary to allow for an 
accurate assessment of the tasks the beneficiary would perform on a daily basis, the nature of those tasks, and 
the quantity of time allotted to qualifying versus non-qualifying tasks. 
Further, while counsel disputes the director's reliance on the petitioner's staffing as a means of determining 
the beneficiary's managerial or executive capacity, federal courts have generally agreed that uscrs "may 
properly consider an organization's small size as one factor in assessing whether its operations are substantial 
enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 1313, 
1316 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175,178 (D.C. Cir. 1991); 
Fedin Bros. Co. v. Sava, 905 F.2d at 42; Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 
2003). Furthermore, it is appropriate for uscrs to consider the size of the petitioning company in 
conjunction with other relevant factors, such as a company's small personnel size, the absence of employees 
who would perfonn the non-managerial or non-executive operations of the company, or a "shell company" 
that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. 
Supp. 2d 7,15 (D.D.C. 2001). 
In light of the above, the AAO finds that the director reasonably inquired into the petitioner's staffmg 
hierarchy as a relevant factor in determining the petitioner's ability to employ the beneficiary in a managerial 
or executive capacity. The number of employees the petitioner had at the time of filing the petition is not the 
sole factor used to determine whether the beneficiary would be employed in a qualifYing capacity. However, 
the instant record lacks sufficient information and evidence to establish that the staffing composition at the 
time of filing was adequate to relieve the beneficiary from having to allocate the primary portion of his time 
to tasks of a non-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 the proposed position. An employee who 
"primarily" perfonns 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 IOI(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 r&N Dec. 593, 604 (Comm. 1988). 
The record fails to establish that the beneficiary would be employed in a qualifying managerial or executive 
capacity. For this reason, the instant petition cannot be approved. 
The other issue to be addressed in this proceeding is whether the petitioner 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 that the two entities are related as a "parent and 
subsidiary" or as "affiliates." See generally § 203(b)(I)(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"). 
Page 6 
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 over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
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. 
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 
E',malgem"nt, and operations of an entity . •••• 
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. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control ofthe entity. Without full disclosure 
of all relevant documents, USCIS is unable to determine the elements of ownership and control. 
The director properly notified the petitioner that the responses provided in the petitioner's 2008 tax return 
with regard to its ownership were not consistent with the claim that the petitioner is a wholly owned 
subsidiary of the beneficiary's foreign employer. 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. 
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On appeal, the petitioner neither acknowledged the director's adverse finding regarding the inconsistent 
evidence presented in the director's decision, nor did the petitioner provide evidence to resolve the 
inconsistency. The AAO finds that the petitioner has failed to overcome the adverse finding that served as the 
second ground for the director's denial. 
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.