dismissed EB-1C Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 7, 2024 In Re: 29583693 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner is a manufacturer of aluminum and steel products. It seeks to permanently employ the 
Beneficiary as its marketing and business development manager under the first preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to 
permanently transfer a qualified foreign employee to the United States to work in an executive or 
managerial capacity. 
The Director of the Nebraska Service Center denied the petition. He concluded that although the record 
shows that the Petitioner is a multinational entity that has a qualifying relationship with the 
Beneficiary's foreign employer and had been doing business in the United States for at least one year 
as of the date this petition was filed, the Petitioner did not establish that that the Beneficiary was 
employed abroad and would be employed in the United States in a managerial or executive capacity. 
The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo's , Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner has not established that it would employ the 
Beneficiary in a managerial capacity. 1 Because the identified basis for denial is dispositive of the 
Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate regarding the 
Beneficiary's foreign employment. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and 
agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
Further, we will withdraw the Director's findings that the Petitioner is a multinational entity that has 
a qualifying relationship with the Beneficiary's foreign employer and had been doing business in the 
United States for at least one year at the time of filing, as these favorable determinations are not 
supported by the evidence ofrecord as discussed below. 
1 The Petitioner does not claim that the Beneficiary would be employed in an executive capacity. 
I. LAW 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). The petition must also be 
accompanied by evidence demonstrating the Petitioner's ability to pay the Beneficiary's proffered 
wage at the time of filing. 8 C.F.R. § 204.5(g)(2). 
II. ANALYSIS 
The discussion below will be two-fold. As a preliminary matter, we will explain the basis for 
withdrawing three of the Director's favorable findings, followed by a discussion in which we will 
explain the basis for affirming the Director's conclusion regarding the Beneficiary's proposed 
employment in the United States. And in the final part of our decision, we will identify another 
potential ground for ineligibility. 
A. Withdrawn Findings 
1. Qualifying Relationship 
We will first address the Director's favorable findings on the issue of a qualifying relationship between 
the Petitioner and the Beneficiary's foreign employer. The Petitioner claimed that it has a qualifying 
relationship withl Ithe Beneficiary's employer in El Salvador. To establish a "qualifying 
relationship," the Petitioner must show that it and the Beneficiary's foreign employer are the same 
employer (i.e., a U.S. entity with a foreign office) or that they are related as a "parent and subsidiary" 
or as "affiliates." See generally section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
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. See, 
e.g., Matter of Church Scientology Int'!, 19 I&N Dec. 593 (Comm'r 1988); Matter o_f Siemens Med. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter o_f Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
Ownership refers to the direct or indirect legal right of possession of the assets of an entity with foll 
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 Int'!, 19 
I&N Dec. at 595. 
In the matter at hand, the Petitioner referred tol Ias its "affiliated company," thus indicating 
that the nature of the qualifying relationship between the two entities is that of affiliates. To be deemed 
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affiliates, the Petitioner must establish that it and the Beneficiary's foreign employer are owned and 
controlled by a common individual or parent entity or that they are owned and controlled by the same 
group of individuals with each owning and controlling approximately the same proportion of each 
entity. See 8 C.F.R. § 204.5(j)(2) (for the definition of the term "affiliate"). 
Regarding the Petitioner's ownership, the record contains the Petitioner's operating agreement which 
discusses shifts and changes in ownership from the date of formation in 2016, until 2019 "and 
thereafter." The operating agreement consistently listsl las the Petitioner's majority owner, 
despite showing an incremental decrease in his ownership holding, starting with a 60% ownership 
interest in 2016 and 2017, 53% in 2018, and 52% from 2019 onward. Although the Petitioner did not 
document a chan e in this ownership structure, its tax return for 2021 list~ lrather 
tha with a 52% ownership interest. Because the record contains no documents showing 
as owner ofi Ithe Petitioner's tax return appears to be at odds with its ~---~ 
operating agreement. See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988) (stating that a petitioner 
must resolve inconsistencies in the record with independent, objective evidence pointing to where the 
truth lies). 
We further note that neither I I nor._________ __. is listed as the foreign entity's 
owner. Rather, the foreign entity's "Company Constitution," the document containing the company's 
ownership breakdown, lists the Beneficiary andl las each owning 1000 
shares of a total 2000 issued shares of the foreign company's stock. And although the Petitioner 
provided an affiliate agreement listing the Petitioner as "company" andl las "affiliate," this 
document only establishes that the two entities have a business relationship wherein the foreign entity 
agreed to serve as the Petitioner's "exclusive representative" in various business transactions within 
the territory specified in the agreement. The agreement does not, however, address the issue of 
company ownership or indicate that there is common or shared ownership between the two entities. 
Accordingly, the record as currently constituted does not establish that the Petitioner and~I___ ~ 
have an affiliate relationship pursuant to the regulatory definition, and the Director's determination 
that the two entities have a qualifying relationship must be withdrawn. 
2. Multinational 
Next, the record indicates that the Director incorrectly concluded that the Petitioner meets the criteria 
of a multinational organization. 
To be deemed a multinational organization, the Petitioner must demonstrate that it conducts business 
in two or more countries, one of which is the United States. See 8 C.F.R.
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204.5(j)(2). As determined 
above, the record lacks sufficient evidence showing that the Petitioner an Ihave a qualifying 
relationship. Further, aside from the lack of a qualifying relationship between the Petitioner andD 
I the record does not show that the Petitioner either conducts business abroad through a foreign 
office or that it has a foreign affiliate, parent, or subsidiary through which it conducts business outside 
of the United States. See 8 C.F.R. § 204.5(j)(2) (for definition of "subsidiary"). 
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I 
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Given the Director's favorable finding on this issue, the Petitioner did not provide additional evidence 
on appeal. However, because the record does not show that the Petitioner meets the criteria of a 
multinational organization, we hereby withdraw the Director's favorable conclusion on this issue. 
3. Doing Business 
Lastly, we find that the Director also incorrectly concluded that the Petitioner provided sufficient 
evidence to show that it had been doing business for at least one year as of the date this petition was 
filed. An entity is deemed to be doing business if it engages in regular, systematic, and continuous 
provision of goods and/or services. As noted earlier, to qualify for the immigrant classification sought 
in this matter, the Petitioner must demonstrate that it had been doing business for at least one year at 
the time of filing. 8 C.F.R. § 204.5(i)(3)(i)(D); see also 8 C.F.R. § 103.2(b)(l) (requiring the affected 
party to establish eligibility for the requested benefit at the time of filing the benefit request). Since 
this petition was filed in June 2022, the one-year time frame during which the Petitioner must show 
regular, systematic, and continuous provision of goods and/or services is from June 2021 to June 2022. 
The record at hand contains several industry inspection records and results forl I the 
records are dated March, July, August, September, and November 2020. Although on appeal, the 
Petitioner refers tol las "its construction brand," 
it does not further elaborate on the specific nature of its relationship with the latter entity, nor does the 
record contain evidence of a contractual relationship explaining each entity's roles and responsibilities 
to one another. Thus, while the record contains records belonging to I l it is unclear 
that those records are evidence of business activity that is attributable to the Petitioner. 
Moreover, the inspection records referenced above document transactions that took place in 2020 and 
thus they precede the relevant timeframe from June 2021 to June 2022. Although the record contains 
one commercial invoice from April 2022 listingl Ias the source 
of the shipment, there are no other documents showing business transactions within the relevant one­
year period. Thus, even if the Petitioner had adequately documented its relationship with ~ 
I a single invoice in a 12-month period is not sufficient to demonstrate that the Petitioner 
conducted business in a regular, systematic, and continuous manner during the period in question. The 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
Lastly, although the Petitioner provided its tax return for 2021 showing a gross and net income, the 
record does not contain corresponding evidence, such as invoices or sales and purchase receipts, to 
show when the income was earned or that the earnings stemmed from the provision of goods/and or 
services on a regular, systematic, and continuous basis during the one-year period in question. 
Accordingly, because the Petitioner has not established that it satisfied the doing business requirement 
at the time of filing, we hereby withdraw the Director's favorable conclusion on this issue. See 
8 C.F.R. § 103.2(b)(l). 
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B. U.S. Employment in a Managerial Capacity 
The next issue to be addressed is whether the Petitioner provided 
sufficient evidence in support of its 
claim that the Beneficiary's proposed position of marketing and business development manager would 
be that of function manager and that the Beneficiary would be employed in a managerial capacity. 
"Managerial capacity" means an assignment within an organization in which the employee primarily 
manages the organization, or a department, subdivision, function, or component of the organization; 
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; has authority over personnel actions or functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and exercises discretion over the 
day-to-day operations of the activity or function for which the employee has authority. Section 
10l(a)(44)(A) of the Act. 
The term "function manager" applies generally when a beneficiary does not primarily supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 10l(a)(44)(A)(ii) of the Act. A petitioner claiming that 
a beneficiary will manage an essential function must clearly describe the duties to be performed in 
managing the essential function. In addition, the petitioner must demonstrate that "(l) the function is 
a clearly defined activity; (2) the function is 'essential,' i.e., core to the organization; (3) the 
beneficiary will primarily manage, as opposed to perform, the function; (4) the beneficiary will act at 
a senior level within the organizational hierarchy or with respect to the function managed; and (5) the 
beneficiary will exercise discretion over the function's day-to-day operations." Matter of G- Inc., 
Adopted Decision 2017-05 (AAO Nov. 8, 2017). 
The Director denied the petition, finding that the Petitioner did not adequately describe the 
Beneficiary's proposed job duties or state how much of her time would be allocated to non-managerial 
tasks. The Director therefore concluded that the Petitioner did not establish that the Beneficiary would 
allocate her time primarily to duties of a managerial nature. 
On appeal, the Petitioner states that it did not provide "an articulate explanation" of the Beneficiary's 
duties and responsibilities either at the time of filing the petition or later, in response to a request for 
evidence; it claims that the previously deficient job description caused the Director to misunderstand 
the Beneficiary's job duties and resulted in a denial of this petition. As such, the Petitioner offers 
additional information and evidence on appeal, maintaining its original claim that the Beneficiary 
would assume the role of a function manager in her proposed position. 
Upon review of the evidence, we find that the Petitioner has not adequately demonstrated that it was 
prepared to employ the Beneficiary in the role of a function manager as of the date this petition was 
filed because it did not yet employ the support staff it claims would relieve the Beneficiary from having 
to perform the duties of the function she would be assigned to manage. Namely, the Petitioner claims 
on appeal that the Beneficiary "will be supported by a qualified team of existing personnel ... as well 
as personnel who [she] will be charged with onboarding" at the Petitioner's office in California. 
However, the Petitioner does not state precisely which "existing personnel" will support the 
Beneficiary in her proposed position; instead, it focuses mainly on the roles and duties of the 
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prospective team members whom the Beneficiary would be tasked with hiring upon assuming her 
position in the United States. 
Despite repeatedly referring to the Beneficiary's "team" and claiming that the Beneficiary "will direct 
her subordinates in the execution of nonmanagerial tasks," the record does not show that the Petitioner 
had such a team of subordinates in place for the Beneficiary to direct when this petition filed. Despite 
stating that the Beneficiary will look to the purchasing manager and production manager to perform 
tasks associated with daily project management, the Petitioner does not clarify which of its existing 
personnel, if any, would be available to relieve the Beneficiary from the various other nonmanagerial 
duties that are assigned to the subordinate team that was not yet in place at the time of filing. 
For instance, the Petitioner states that the Beneficiary will "rely on the Marketing and Communications 
Coordinator, Growth Marketing Specialist, and Sales Representatives to relieve her of the day-to-day 
duties of tracking the modes of communication and reaching out to customers for routine 
communication." Other operational duties to be performed by subordinates include conducting 
industry research and reporting the findings to the Beneficiary to incorporate into her "overall 
strategy," presenting the company business plan, handling billing and accounting, providing customer 
service, and other operational tasks. However, given the absence of a subordinate staff to perform 
these non-managerial duties, it is unclear who, if not the Beneficiary, would be required to perform 
such duties, at least until the process of hiring and training new staff is complete. 
We note that 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 capacity. See, e.g., 
section 101(a)(44)(A) of the Act (requiring that one "primarily" perform the enumerated managerial 
duties); Matter o_fChurch Scientology Int'!, 19 I&N Dec. 593,604 (Comm'r 1988). Here, the record 
indicates that the Beneficiary would assume her position without the support staff she would need to 
execute the duties of her position, thus leading us to believe that the Beneficiary would have to perform 
some, if not most of the duties of the marketing and business development function she is tasked with 
managing. Despite these staffing deficiencies at the time of filing, the Petitioner has not provided a 
hiring and training timeline to clarify how long the Beneficiary would be expected to operate without 
a fully staffed subordinate team. That said, the record unambiguously shows that the Petitioner was 
not staffed with personnel who were ready to execute the underlying duties of the marketing and 
business development function. As such the Petitioner was not able to relieve the Beneficiary from 
having to perform the numerous operational tasks assigned to her prospective subordinates. 
In sum, the Petitioner has not demonstrated that it satisfied the Matter ofG- Inc.' s third prong, which 
requires a showing that the Beneficiary will primarily manage, as opposed to perform, the function. 
Adopted Decision 2017-05. We therefore cannot conclude that the Petitioner established that it was 
ready to support the Beneficiary in a managerial capacity at the time of filing. See 8 C.F.R. 
§ 103.2(b)(l). 
C. Ability to Pay 
Finally, although not discussed in the denial, the 
record lacks sufficient evidence establishing that the 
Petitioner has the ability to pay the Beneficiary's proffered wage. Per 8 C.F.R. § 204.5(g)(2), the 
prospective U.S. employer must meet the following provisions: 
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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 either 
in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
The priority date for the petition in this matter is June 24, 2022, the date the petition was filed, and the 
Beneficiary's proffered wage is listed as $96,500 per year. However, the Petitioner has not provided 
evidence in the form of copies of annual reports, federal tax returns, or audited financial statements 
establishing its ability to pay as of the listed priority date. Although the record contains the Petitioner's 
tax returns for 2020 and 2021, both precede the priority date and therefore do not establish the 
Petitioner's ability to pay as of the date this petition was filed. 
While this additional deficiency is not a ground for our dismissal of this appeal, the Petitioner will be 
required to address it in any future filings where the ability to pay issue is relevant to eligibility. 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established that it was prepared to employ the 
Beneficiary in a managerial capacity at the time this petition was filed and on the basis of this 
conclusion the petition cannot be approved. Further, the additional adverse findings indicate that the 
Petitioner also has not established that: 1) it is a multinational entity; 2) it has a qualifying relationship 
with the Beneficiary's foreign employer; and 3) it had been doing business for one year prior to filing 
this petition. As with the issue of the Petitioner's ability to pay, these additional deficiencies are not 
grounds for our dismissal of this appeal. However, the Petitioner will be required to address such 
deficiencies in any future filings, whether in farther pursuit of the instant petition or with regard to 
any other employment-based petition where the above-listed issues are relevant to eligibility .. 
ORDER: The appeal is dismissed. 
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