dismissed EB-1C Case: Manufacturing

U.S. Department of Homeland Security 
IJ s Clt~zensh~p and Imm~gratlon Ser~ces 
ihtifying data deleted to 
 Office ofAdnz~rnstratfve Appeals, MS Dl90 
Wash~ngton, DC 20529-2090 
Prevent ck2rly unwarranted 
invasion of personal privacy 
 U. S. Citizenship 
and Immigration 
PUBLIC COPY 
Office: NEBRASKA SERVICE CENTER 
LIN 07 008 50215 
Date: JUL 2 0 2009 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for the 
specific requirements. 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 $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 103.5(a)(l)(i). 
/? 
K;/ -- <.+-"*+ 
John F. Grissom ' 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner claims to be a corporation organized in the State of Nevada that engages in the 
manufacturing and installation of fleet cleaning equipment for the transportation industry. The 
petitioner seeks to employ the beneficiary as its president. Accordingly, the petitioner endeavors to 
classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(l)(C) of the 
Immigration and Nationality Act (Act), 8 U.S.C. 5 1 153(b)(l)(C), as a multinational executive or 
manager. 
On November 13, 2007, the director denied the petition determining that the petitioner failed to 
establish that: (1) the beneficiary will be employed in the United States in a qualifying managerial or 
executive capacity; (2) the beneficiary was employed abroad in a qualifying managerial or executive 
capacity; and (3) there exists a qualifying relationship between the beneficiary's foreign employer and 
the U.S. petitioner. 
On appeal, the petitioner, represented by new counsel, asserts that the petitioner's previous counsel 
was negligent in his representation of the petitioner. The petitioner submits further evidence, which 
the petitioner claims previous counsel failed to submit to the petitioner's detriment, and requests that 
the appeal be treated as a motion to reconsider and reopen. Counsel for the petitioner submits a brief 
addressing each of the grounds for denial in the director's decision. 
The director has declined to treat the appeal as a motion and forwarded the appeal to the AAO for 
review. The AAO will first address the petitioner's claim of ineffective assistance by previous 
counsel. Any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that 
the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the 
agreement that was entered into with counsel with respect to the actions to be taken and what 
representations counsel did or did not make to the respondent in this regard, (2) that counsel whose 
integrity or competence is being impugned be informed of the allegations leveled against him and be 
given an opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has been 
filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal 
responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), afd, 857 F.2d 10 
(1 st Cir. 1988). 
It is noted that the petitioner's submission on appeal includes an affidavit from the beneficiary setting 
forth a summary of events from his decision as president of the U.S. company to hire previous counsel 
through the filing and eventual denial of the instant petition. In his appeal brief, present counsel for the 
petitioner explains that the petitioner is "seriously contemplating filing a complaint to the bar association, 
followed by legal action for legal malpractice." However, counsel states that the petitioner has been 
advised by counsel to concentrate on the current petition, thus no bar complaint has been filed to date. In 
addition, there is no indication in the petitioner's submission on appeal that previous counsel has been 
informed of the allegations leveled against him and been given an opportunity to respond. As such, the 
petitioner has not met all of the requirements set forth in Matter of Lozada, 19 I&N Dec. 637, and 
therefore has failed to substantiate its claim of ineffective assistance by previous counsel. Id. 
With respect to the director's grounds for denying the petition, section 203(b) of the Act states in 
pertinent part: 
(1) 
 Priority Workers. -- Visas shall first be made available . . . to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(C) 
 Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years 
preceding the time of the alien's application for classification and 
admission into the United States under this subparagraph, has 
been employed for at least 1 year by a firm or corporation or 
other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate 
thereof in a capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers 
who have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary 
of that entity, and are coming to the United States to work for the same entity, or its affiliate or 
subsidiary. 
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 hish a job offer in the form 
of a statement that indicates that the alien is to be employed in the United States in a managerial or 
executive capacity. Such a statement must clearly describe the duties to be performed by the alien. 
See 8 C.F.R. fj 204.56)(5). 
The first issue in this matter is whether the beneficiary would be employed in the United States in a 
primarily executive or managerial 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 in which the 
employee primarily 
(i) 
 manages the organization, or a department, subdivision, function, or 
component of the organization; 
Page 4 
(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 
(iv) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
On the Form 1-140, Immigrant Petition for Alien Worker, filed on September 27, 2006, the petitioner 
indicated that it proposed to employ the beneficiary as the president of the company. The petitioner 
submitted a letter dated May 17, 2006 confirming that it is employing the beneficiary as its president, 
with annual remuneration composed of a based salary of $100,000 plus benefits. The petitioner 
submitted a copy of a letter dated November 8, 2005 from Frontier Capital Partner (FCP), one of the 
three claimed beneficial stockholders of the petitioner, along with various exhibits purporting to 
describe the beneficiary's position with the U.S. company as well as the company's organizational 
structure and staff. The letter and its exhibits appear to have been provided to U.S. Citizenship and 
Immigration Services (USCIS) in response to a request for further evidence in connection with a 
previous L-1A petition filed by the petitioner on behalf of the beneficiary. The petitioner did not 
submit with the current Form 1-140 any updated information regarding the beneficiary's position with, 
or the staffing of, the U.S. company. 
On July 30, 2007, the director issued a request for further evidence (WE). In connection with the 
beneficiary's position in the U.S., the director acknowledged the information provided, but noted that 
there was insufficient information about the beneficiary's specific duties and contradictory disclosures 
regarding the structure and staffing of the company. Consequently, the director requested additional 
information regarding the beneficiary's position in the United States, including a clear description of 
his specific day-to-day duties and the proportion of time devoted to such duties. The director also 
requested additional information regarding the duties of other claimed employees and evidence of the 
existence of such employees, such as the company's most recent tax returns, Internal Revenue Service 
(IRS) Forms 941 for all quarters since the petition was filed, and IRS Forms W-2 and 1099 for the 
company's employees and independent contractors for the year 2006. 
In response to the WE, the petitioner submitted a letter dated August 23, 2007, again written by the 
president of FCP on behalf of the petitioner. With respect to the beneficiary's position within the U.S. 
company, FCP stated that the beneficiary has been president of the U.S. company since 2002, but 
conducted business out of Canada until his transfer to the United States in 2004. The petitioner also 
provided a detailed job description for the beneficiary's position in the United States under the 
following categories of responsibilities: 
Establish U.S. bases in Las Vegas, Nevada and Little Rock, Arkansas 
Establish and manage demonstrations sites in Las Vegas 
Hiring and direction of staff and professionals 
Establishment and maintenance of strategic alliances with banks, leasing companies 
and other sources of funds as required to provide financing for various purposes 
Receive prospective customers and conduct on site sales demonstrations 
Acting as a partner, share in the development of corporate policy and objectives 
Acting as president, implement policy and objectives set forth by the partners 
through the development and implementation of short and long term business 
strategies 
Oversee sales and marketing activities (a direct responsibility of the directors of 
regional and national account customer support program) 
Oversee Canadian product operations (a direct responsibility of the production 
manager in Winnipeg) 
Maintain direct responsibility for: 
-- Research and Development 
-- Purchasing 
-- Accounting and Administration 
-- Forecasts and Projection 
-- All expenditures and operating costs 
-- Ensuring daily operations are conducted in accordance with sound business 
practices and are conducive to achieving corporate objectives 
In view of the length and level of detail of the job description, it will not be repeated in its entirety 
here. However, it is noted that for each general heading above, the petitioner provided details or 
examples of the tasks involved and named the direct subordinates who work under the beneficiary in 
connection with such tasks. For example, the petitioner noted that most of the work in research and 
development is first run through the Director of Advanced Technologies; in purchasing, the 
beneficiary approves contracts that are first vetted by the production manager and the vice president of 
finance; and the work done in the remaining areas of operation listed above are first run through the 
vice president of finance. 
With respect to the staffing of the company, FCP states in the August 2007 letter that the beneficiary 
has eight persons reporting directly to him, including the Vice President, Finance; the Director of 
Advanced Technologies (employee of the Canadian company); the Production Manager (employee of 
the Canadian company); the Director of Engineering and Design; the Director of National Account 
Customer Support Programs; the Director, Field Services; the Director of Regional Account Customer 
Support Programs; the Production Manager, Las Vegas Assembly Operations; and the Director, 
Installations. The August 2007 letter also set forth brief descriptions of the job responsibilities of 
these direct subordinates of the beneficiary, along with their educational levels and salaries. 
In addition, the petitioner provided an organizational chart which places the beneficiary at the top as 
president with the vice president, finance directly below him. The level directly below the vice 
president includes ten employees - the director of advanced technologies, who in turn supervises five 
unnamed subcontracting companies; the director of engineering and design; the manager of 
purchasing and inventory control; an accounting employee; the director of national account customer 
support program; the director of installation, who in turn supervises two team leaders (only one of 
whom is named) of technical support groups made up of two-person installation teams and "local 
trades" (no employees at this level were named); a director of regional account customer support 
programs who supervises three regional director customer support programs and unnamed local 
distributors; a local production manager who supervises three unnamed production personnel; a 
director of field service, and a production manager for Canada. 
The petitioner submitted IRS Form 941 for: the third quarter of 2006, which shows eight employees 
on the payroll of the company; the fourth quarter of 2006, which shows thirteen employees on the 
payroll; and the first quarter of 2007, which shows fifteen employees on the company's payroll. The 
petitioner also submitted IRS Forms W-2 for fifteen employees. It is noted that eight of the 
employees named in the Forms W-2 appear on the organizational chart, including the beneficiary, the 
vice president of finance, and six employees in the third tier of management. The salary levels of the 
remaining seven persons whose Forms W-2 were submitted indicate that they may be among the 
unnamed lower level employees on the chart. 
In denying the petition, the director found that the petitioner failed to establish that the beneficiary 
would be employed in a primarily executive or managerial capacity in the U.S. company. The 
director observed that the August 2007 statement from FCP primarily reiterates the information 
previously provided regarding the beneficiary's U.S. position; the job description provided in response 
to the RFE still concentrates more on past rather than future duties and reiterates information 
previously provided, changing only references to specific projects or employees. The director also 
noted that the request for time spent on specific duties was not addressed. The director acknowledged 
that it appears that the beneficiary does have authority within the organization, but without additional 
details, the director found that the record does not demonstrate that the beneficiary will be primarily 
acting in an executive capacity as claimed. 
On appeal, counsel for the petitioner submits new evidence regarding the beneficiary's position in the 
U.S. company "to remedy the deficiency created by [previous counsel]." The additional evidence 
includes a letter dated December 13, 2007 from the petitioner reiterating the offer of employment to 
the beneficiary and describing in further detail the beneficiary's anticipated job responsibilities as 
president of the company. Counsel also submits a new, undated organizational chart for the U.S. 
company; a copy of the U.S. company's 2006 IRS Form 1 120, U.S. Corporation Income Tax Return, 
and the company's payroll check register with a process date of November 27,2007. 
As noted at the outset, the petitioner's claim of ineffective assistance of counsel is rejected since the 
petitioner has failed to meet all of the Lozada requirements. See Matter of Lozada, 19 I&N Dec. 637. 
Furthermore, a 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). Accordingly, to the extent the evidence submitted on 
appeal, such as the new organizational chart and the company's payroll for November 2007, reflect the 
current staffing structure of the company rather than that which was in place at the time the petition 
was filed, such new evidence submitted on appeal will not be considered, and the issue of the 
beneficiary's qualifying employment with the U.S. company will be determined based on the record of 
proceeding before the director. 
Notwithstanding the foregoing, the AAO finds that the evidence of record is sufficient to demonstrate 
that the beneficiary would be employed by the U.S. company in a primarily executive or managerial 
capacity. The director's decision with respect to that issue will be withdrawn. 
The petitioner has established that the beneficiary will be employed in a primarily executive capacity. 
The petitioner has provided thorough explanations and sufficient documentary evidence to 
demonstrate that the beneficiary does in fact direct the management of the organization; establish the 
goals and policies of the organization, component, or function; exercise wide latitude in discretionary 
decision making; and receive only general supervision or direction from the board of directors or 
stockholders of the organization. The AAO notes the director's concern that the beneficiary's job 
description focuses on past rather than future duties and reiterates information provided in previous L- 
1A petitions, changing only references to specific projects or employees. However, the AAO notes 
that the job description reflects the beneficiary's responsibilities in his position as president of the U.S. 
company, a position he has occupied since 2002 and is seeking to continue to occupy. As such, the 
job description properly reflects duties that the beneficiary has performed and would continue to 
perform in his current role. Further, the petitioner need only establish by a preponderance of the 
evidence that the beneficiary's duties are primarily executive managerial in nature. Based on the 
otherwise detailed description of the beneficiary's otherwise provided by the petitioner, and the 
evidence of subordinate staffing available to the beneficiary, the AAO is satisfied that the beneficiary 
would perform the high-level duties associated with the statutory definition of executive capacity and 
that he would reasonably be required to devote more than half of his time to such duties. The 
petitioner has adequately demonstrated that that the majority of the day-to-day, non-managerial 
functions of the company would be performed by the beneficiary's subordinate managers and 
employees. 
The second issue in this matter is whether the beneficiary was employed by the foreign entity in a 
primarily executive or managerial capacity. 
Since the petitioner failed to submit any information regarding the beneficiary's employment with the 
foreign entity when the Form 1-140 was filed, the director requested further evidence to establish that 
the beneficiary had at least one year of full-time employment abroad in an executive or managerial 
capacity within the three years immediately preceding his entry into the United States. In the WE, 
the petitioner was asked to identify the beneficiary's employer and dates of employment abroad, the 
position held within three years of his entry into the United States, and the dates he had been present 
in the United States as a nonimmigrant. The petitioner was also asked to provide: a detailed 
description of the beneficiary's position abroad, including the specific, day-to-day duties and the 
proportion of time devoted to each duty; a description of the overall structure of the foreign entity and 
the beneficiary's placement within such structure, supported by an organizational chart; and specific 
information regarding the beneficiary's subordinate employees, including job titles, job duties, 
minimum position requirements, and actual qualifications. 
In its August 2007 response, FCP stated that the beneficiary had been working for Washtronics Ltd., 
the claimed Canadian affiliate of the petitioner, as its managing partner since 1992, until he became 
president of the U.S. company in 2002. With respect to the beneficiary's job duties while employed 
by the foreign entity, FCP referred to the job description and the beneficiary's resume submitted in 
response to the RFE. It is noted that the job description to which FCP referred discusses primarily the 
beneficiary's duties with respect to the U.S. operations. The only reference to his involvement in the 
Canadian operations reads: 
Oversee Canadian Production Operations (which are a direct responsibility of 
the Production Manager in Winnipeg) 
On a monthly basis, [the beneficiary] receives regular reports from the Production 
Managers which contains information on the following: 
Status of systems in production 
Report on any cost increase. 
Suggestions for product improvement. 
Recommendations for new Sub-Contractors. 
Page 9 
In the beneficiary's resume, his position with the foreign entity is described as: 
Director, Washtronics Ltd., Winnepeg, Canada 
Managing partner since 1992 
Responsible for all aspects of the operation and development of the 
company, including: 
Research and Development, design of patented truck wash systems 
Sales and Marketing 
Accounting and Finance 
Purchasing, Production and Installations 
Establishment of U.S. operations 
Budget, forecasts and projections 
All expenditures and operating costs 
Hiring and directions of staff and professionals (legal, accounting, etc.) 
With respect to the beneficiary's subordinates in the foreign entity, FCP stated in its August 2007 letter 
that the Canadian and U.S. companies have integrated operations, and the organizational chart 
submitted in connection with the beneficiary's position in the U.S. company also describes Canadian- 
based employees and contractors who reported directly and indirectly to the beneficiary. As noted in 
the previous section in this decision discussing the beneficiary's U.S. position, the organizational chart 
and description of the beneficiary's subordinate staff show two employees who are employed by the 
Canadian company - the Director of Advanced Technologies, who is depicted as supervising 5 
unnamed subcontractors, and the Production Manager, Canada, who does not appear to supervise any 
employees. Further, it is noted that this information apparently reflects the U.S. and foreign 
companies' organizational structure as of the date of the FCP letter responding to the WE. No 
information has been provided in connection with the staffing of the foreign entity at the time the 
beneficiary was serving as director and managing partner in that company prior to his transfer to the 
United States. 
In denying the petition, the director found that the petitioner failed to establish that the beneficiary was 
employed abroad in a primarily executive or managerial capacity for the requisite time period. The 
director observed that the record lacks a detailed description of the beneficiary's position with the 
foreign entity. The director noted that the initial submission provided no information regarding the 
beneficiary's employment abroad, and found that the description in the beneficiary's resume provided 
in response to the WE revealed no specific information regarding the beneficiary's actual duties. 
Further, the director noted that the statement from FCP indicated that the beneficiary began working as 
president of the U.S. company while he was still abroad, specifically from 2002 through October 2004, 
when he entered the U.S. to continue in that position. However, the director found, it is not clear how 
much of the beneficiary's time abroad was devoted to acting as president of the U.S. company as 
opposed to performing the duties of his position in the foreign entity. 
On appeal, the petitioner's new counsel did not identify any error in the director's finding with respect 
to the petitioner's failure to establish the beneficiary's qualifying employment abroad. Counsel 
explained that the deficiencies in the evidence relating to the beneficiary's foreign employment were 
due to the petitioner's previous counsel's failure to convey to the petitioner all the requirements 
included in the RFE. Counsel refers to a letter submitted on appeal dated December 12, 2007, again 
from the president of FCP, which sets forth in greater detail the duties and responsibilities of the 
beneficiary in his role as Director or Managing Partner of the foreign entity prior to his transfer to the 
U.S. company. The letter also indicated that the beneficiary had three persons reporting directly to 
him in the foreign entity: the Director of Advanced Technologies and the Production Manager, as 
described in FCP's response to the WE, and a Vice-President of Business Development, who has not 
appeared in previously submitted organizational charts or descriptions of either company's staff. 
Upon review, the AAO concurs with the director's conclusion that the petitioner failed to establish that 
the beneficiary was employed by the foreign entity in a primarily executive or managerial capacity for 
at least one of the three years preceding his entry into the United States. 
It is noted that the petitioner was put on notice of required evidence and given a reasonable 
opportunity to provide it for the record before the visa petition was adjudicated. The petitioner failed 
to submit the requested evidence and now submits it on appeal. The petitioner claims on appeal that 
the failure to submit the requested evidence was due to ineffective assistance of previous counsel. 
However, as discussed earlier, the petitioner has not met all of the requirements set forth in Matter of 
Lozada, 19 I&N Dec. 637, and therefore has failed to substantiate its claim of ineffective assistance by 
previous counsel. Therefore, the AAO will not consider evidence in response to the RFE presented on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter ofobaigbena, 19 I&N Dec. 533 
(BIA 1988). The appeal will be adjudicated based on the record of proceeding before the director. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). The petitioner's description 
of the job duties must clearly describe the duties to be performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. 
Here, with regards to the beneficiary's overseas employment, the petitioner has provided a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary did on 
a day-to-day basis as a director of the foreign company. As noted earlier, although the petitioner 
claimed that the operations of the U.S. and foreign companies are integrated, to the extent the 
petitioner provided a detailed description of the beneficiary's job responsibilities in response to the 
WE, that description appears to apply to the beneficiary's duties in the U.S. operation at the time the 
petition was filed rather than his duties in the foreign entity prior to his transfer to the United States. 
In its letter, FCP also referred USCIS to the beneficiary's resume for further information regarding the 
beneficiary's position with the foreign entity. However, the resume listed only the general categories 
of the beneficiary's responsibilities, such as "Research and Development," "Sales and Marketing," 
"Accounting and Finance, and "Purchasing, Production and Installations," without providing any 
Page 11 
detail as to what the beneficiary did in each category of responsibility. Reciting the beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require 
a detailed description of the beneficiary's daily job duties. The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afyd, 905 F.2d 41 (2d. Cir. 1990). Further, 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)). 
Additionally, it is noted that the director also requested a breakdown in terms of proportion of time 
devoted to each of the beneficiary's job duties in his position with the foreign entity. The petitioner 
has also failed to provide this information. This failure of documentation is crucial to the 
determination of whether the beneficiary performed primarily in an executive or managerial capacity, 
especially in this instance, where the descriptions of the beneficiary's job duties and support personnel 
are lacking in detail. 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 Int 'l., 19 I&N 
Dec. 593,604 (Comm. 1988). 
Moreover, the petitioner has failed to provide sufficient information relating to the organizational 
structure of the foreign entity and, more specifically, the beneficiary's subordinate staff in that 
company. As previously noted, out of the eight employees described as the beneficiary's direct reports 
in FCP's August 2007 letter in response to the RFE, only two -- the Director of Advanced 
Technologies and the Production Manager -- were noted as employees of the Canadian company. 
FCP claimed that the organizational chart submitted in connection with the beneficiary's position in 
the U.S. company describes Canadian-based employees and contractors who reported directly and 
indirectly to the beneficiary as well as U.S. employees. However, although the petitioner provided 
Forms W-2 for employees on the payroll of the U.S. company, no evidence was submitted to establish 
which of the employees on the chart, if any, were on the payroll of the Canadian company. Further, it 
is noted that the August 2007 letter purports to describe the companies' staffing structure at the time of 
the filing of the petition; there is no evidence indicating that the staff described existed at the time the 
beneficiary was employed by the foreign entity. 
Given these deficiencies in the evidence, the AAO cannot determine who was actually on the staff of 
the foreign entity while the beneficiary was employed as its director or managing partner. 
Consequently, it cannot be determined whether the beneficiary had sufficient staff to relieve him from 
performing the non-qualifying duties in connection with the day-to-day operations of the foreign 
entity, such that he could be deemed to have been "primarily" functioning in a managerial or 
executive capacity in that company. 
In light of the above, the AAO finds that the evidence is insufficient to establish that the beneficiary 
was employed by the foreign entity in a primarily executive or managerial capacity. For that reason, 
the petition will be denied. 
The third issue in this proceeding is whether the petitioner has established that it has a qualifying 
relationship with the beneficiary's foreign employer. In order to qualifjr for this visa classification, the 
petitioner must establish that a qualifying relationship exists between the United States and foreign 
entities in that the petitioning company is the same employer or an affiliate or subsidiary of the foreign 
entity. See section 203(b)(l)(C) of the Act. 
The regulation at 8 C.F.R. 5 204.5(j)(2) states in pertinent part: 
AfJiliate 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. 
Subsidialy 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. 
In his letter dated September 7,2006, submitted with the Form 1-140, previous counsel for the petitioner 
referred to the petitioner as the "U.S. subsidiary of the Canadian parent company." However, the 
petitioner failed to provide any evidence of this alleged relationshp between the two entities. 
Consequently, in the RFE, the director requested evidence that would "establish common ownershp 
and/or control between the two entities, including, but not limited to, annual reports, statements from the 
organization's president or corporate secretary, articles of incorporation, financial statements, and/or 
evidence of ownership of outstanding stock for both entities." 
In its August 2007 letter, FCP asserted that the U.S. company and the Canadian company are affiliates as 
they are both owned by the same three shareholders - FCP, the beneficiary, and Manitoba Capital Fund 
Limited Partnership (MCFLP). FCP states that each of the three shareholders owns 113 of the shares in 
the Canadian company. With respect to the U.S. company, FCP owns 43 113 shares, and MCFLP and the 
beneficiary each owns 28 113 shares, of, which in turn is the sole shareholder of 
the U.S. company. The petitioner submitted an intra-company relationship chart which depicts the 
ownership of the companies as at December 3 1,2006, as described above. 
FCP also indicated in its letter that the three shareholders have entered into a Unanimous Shareholders' 
Agreement to govern their relationship with respect to both companies. FCP claimed that the agreement 
gives each party veto power over major decisions within the entire group of companies. FCP also 
described the beneficiary as "holding the key decision making position in both companies." The 
referenced shareholders' agreement was not submitted into evidence. The petitioner submitted copies of 
commitment letters dated June 22,2007 from FCP and MFCLP, each committing to convert loans made 
to the U.S. and Canadian companies to subscription shares that would result fiom an anticipated 
amalgamation of the Canadian company and to form a third company named 
~ashtronics Canada Inc. (WCI). Go other documentation relating to the ownership of the U.S. and 
foreign companies was submitted. 
In denying the petition, the director determined that the record lacks any objective documentary evidence 
to support the claimed ownership structures of the companies as described by FCP. The director hrther 
observed that, even if there is sufficient evidence, the companies would not qualify as affiliates under the 
regulations, as the shareholders do not own and control approximately the same share or proportion of 
each entity, nor does it appear that any one shareholder has control over both entities. Regarding the 
merger referenced in the June 2007 commitment letters from the two corporate shareholders, the director 
noted that there is no evidence of the execution of the merger, nor does it appear that any such merger has 
occurred as of the filing date of the petition. The director concluded that the record lacks evidence of the 
actual ownership of the companies, and, therefore, is insufficient to demonstrate that the U.S. petitioner is 
the same employer or a subsidiary or affiliate of the beneficiary's foreign employer. 
On appeal, counsel for the petitioner indicates that the merger referred to in the decision had already 
taken place by the time the RFE was issued. However, no documentation of the merger was provided at 
that time because the petitioner's previous counsel believed that only the structure which existed at the 
time the petition was filed should be revealed and explained. Counsel asserts that the qualifying 
relationship between the U.S. and foreign entities continues to exist through the post-merger ownership 
structure. 
 Counsel explains that the former Canadian company, ~aihtronics Ltd., and the U.S. 
company's former holding company,, have merged to form WCI, which is owned 
by the same shareholders of the predecessor companies. WCI, in turn, now owns 100% of the U.S. 
company. 
 To support these assertions, the petitioner submitted intra-company relationship charts 
demonstrating the new ownership structure of the U.S. company; share certificates of WCI and the U.S. 
company; the Amalgamation Agreement dated July 1, 2007; the Articles of Amalgamation of WCI; and 
the Termination Agreement dated June 27, 2007 between -1. and its shareholders. 
No hrther evidence was provided with respect to the ownership of the U.S. and foreign companies as at 
the time the petition was filed. Nonetheless, counsel disputes the director's finding that, even if there is 
sufficient evidence of ownership, the petitioner has not established that the two entities are affiliates 
under the regulatory definition. 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to establish 
that a qualifying relationship between the petitioner and the beneficiary's foreign employer existed at the 
time the petition was filed. 
The AAO acknowledges counsel's explanation on appeal that the merger between the former Canadian 
company and the petitioner's holding company had taken effect as of July 1,2007. The AAO takes note 
of the evidence submitted on appeal to demonstrate the ownership structure of the U.S. company after the 
merger. However, without reaching the issue of whether the evidence submitted on appeal establishes 
that there is, post-merger, a qualifying relationship between the U.S. company and the beneficiary's 
former employer, the AAO notes that the petitioner must establish that the qualifying relationship 
between the U.S and foreign entities existed at the time the petition was filed in September 2006. A 
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. at 49. 
As the director observed in his decision, the petitioner has failed to provide any evidence to 
substantiate the claimed ownership structure of the U.S. company or the beneficiary's Canadian 
employer at the time the petition was filed. 
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 
(BIA 1988); 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. 
As general evidence of a petitioner's claimed qualifying relationship, in addition to stock certificates, 
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 of the entity. See Matter of Siemens Medical Systems, Inc., 
supra. 
In this instance, no documentary evidence has been submitted to substantiate FCP's claims in its 
August 2007 letter regarding the ownership structure of the petitioner and Washtronics Ltd. The 
petitioner has not submitted share certificates, share ledgers, corporate formation documents, minutes 
of shareholder meetings, shareholder agreements, or any other evidence that document the issuance of 
shares or the effects of the shareholders' respective ownership interests on corporate control. The two 
commitment letters document only the agreement of certain shareholders of the original Canadian 
entity to take certain action in view of the impending merger, but in and of themselves are insufficient 
proof of the ownership of that company, nor do they constitute proof of any aspect of the U.S. 
company's ownership. Without full disclosure of all relevant documents, USCIS is unable to 
determine the elements of ownership and control with respect to either entities. 
In the absence of evidence substantiating the claimed ownership structures of the petitioner and the 
beneficiary's foreign employer at the time the petition was filed, it must be concluded that the petitioner 
has failed to sufficiently demonstrate that a qualifying relationship existed between the two entities. For 
this additional reason, the petition will be denied. 
The petition will be denied, and the appeal dismissed, 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. Here, that burden has not been met. Accordingly, the director's decision will 
be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.