dismissed EB-1C Case: Nutrition Supplies

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Office: TEXAS SERVICE CENTER Date: 
SRC 07 800 07270 
 NOV 0 3 2008 
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. 
-?A/- 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
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' which claims to be in the business of nutrition supplies and to have a 
qualifying relationship with the beneficiary's previous employer in Brazil. 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 (the Act), 8 U.S.C. 3 1153(b)(l)(C), as a multinational executive or 
manager. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
On appeal, counsel to the petitioner disputes the director's findings, asserts that the beneficiary will be 
employed in a primarily managerial capacity, and submits additional evidence in support. Counsel further 
argues that the director's Request for Evidence was vague and failed to give the petitioner "the opportunity to 
correct any documentation deficiency." 
Section 203(b) of the Act states in pertinent part: 
(I) 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. 
1 
It must be noted that, according to Florida state corporate records, the petitioner's corporate status in Florida 
was "administratively dissolved" on September 26, 2008. Therefore, since the corporation may not carry on 
any business except that necessary to wind up and liquidate its affairs, and the petitioner has not taken steps 
under Florida law to seek reinstatement, the company can no longer be considered a legal entity in the United 
States. See Fla. Stat. 607.1421 (2006). If this appeal were not being dismissed for the reasons set forth 
herein, this would also call into question the petitioner's continued eligibility for the benefit sought. It is also 
noted that the petitioner's correct corporate name on file with the State of Florida appears to be 
 "= 
Page 3 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
A "United States employer" may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
Title 8 C.F.R. 9 204.50')(3) explains that a petition filed for a multinational executive or manager under 
section 203(b)(l)(C) must be accompanied by a statement from an authorized official of the "petitioning 
United States employer" which demonstrates that: 
(A) 
 If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or executive capacity by a firm or corporation, or other legal 
entity, or by an affiliate or subsidiary of such a firm or corporation or other legal 
entity; or 
(B) 
 If the alien 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 which the 
alien was employed overseas, in the three years preceding entry as a nonimmigrant, 
the alien was employed by the entity abroad for at least one year in a managerial or 
executive capacity; 
(C) 
 The prospective employer in the United States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by which the alien was 
employed overseas; and 
(D) 
 The prospective United States employer has been doing business for at least one year. 
The primary issue in this proceeding is whether the petitioner provided sufficient evidence to establish that it 
will employ the beneficiary in a primarily 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 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 hnction 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. 5 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 bction 
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. 
The petitioner described the beneficiary's proposed position in the United States in the Form 1-140 simply as 
"financial manager." The petitioner also claims to employ four workers. The initial petition is otherwise 
devoid of supporting evidence. 
On July 14, 2007, the director requested additional evidence. The director noted that the "petitioner failed to 
submit any of the required supporting evidence1' and requested that the petitioner "submit evidence that 
clearly establishes eligibility for the classification sought." 
On October 15, 2007, the petitioner responded to the director's Request for Evidence. The petitioner 
submitted the following documentation as explained in a letter from counsel dated October 1,2007: 
Page 5 
US corporation's Articles of Incorporation[;] 
US corporation's Occupational License[;] 
US corporation's Income Tax Returns[;] 
US corporation's invoices, utility bills, etc[.]; 
Foreign corporation's Articles of Incorporation[;] 
Foreign corporation's Income Tax Returns; 
Foreign corporation's utility bills, invoices, payroll records; 
Beneficiary's pay stubs for the period he worked for the Foreign corporation[.] 
However, the petitioner did not submit any evidence pertaining to the beneficiary's proposed job duties, his 
job duties abroad, the job duties of the beneficiary's subordinate employees, if any, both in the United States 
and abroad, or the ownership and control of the United States operation. 
On November 13, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed in a primarily managerial or executive capacity. 
On appeal, counsel to the petitioner asserts that the beneficiary will be employed in a primarily managerial 
capacity and submits, for the first time, descriptions of the beneficiary's job duties in the United States and 
abroad and an organizational chart for the United States operation. The petitioner describes the beneficiary's 
proposed duties as "financial director" in a letter dated December 4,2007 as follows: 
a 
 Prepare financial information so that outside accountants can complete tax returns. 
• 
 Prepare or direct preparation of financial statements, business activity reports, 
financial position forecasts, annual budgets, and/or reports. 
Maintain current knowledge of organizational policies and procedures, federal and 
state policies and directives, and current accounting standards. 
• 
 Conduct or coordinate audits of company accounts and financial transactions to 
ensure compliance with state and federal requirements and statutes. 
a Receive and record requests for disbursements; authorize disbursements in 
accordance with policies and procedures. 
Monitor financial activities and details such as reserve levels to ensure that all legal 
and regulatory requirements are met. 
• Develop and maintain relationships with banking, insurance, and non-organizational 
accounting personnel in order to facilitate financial activities. 
The petitioner also submitted an organizational chart for the United States operation. The chart shows the 
beneficiary, along with two other workers, reporting to an "executive director" who, in turn, is shown 
reporting to the president. Although the beneficiary is portrayed as supervising "finance & account," "budget 
planning," and "human resource," it does not appear as if the beneficiary actually supervises any existing 
subordinate workers. As noted in the Form 1-140, the petitioner claims to employ only four workers, and the 
chart already accounts for five individuals who are either equal or superior to the beneficiary. 
Page 6 
Finally, counsel argues on appeal that the director's Request for Evidence was vague and failed to give the 
petitioner "the opportunity to correct any documentation deficiency." 
Upon review, counsel's assertions are not persuasive in establishing that the beneficiary will be employed in a 
primarily managerial or executive capacity. 
As a threshold issue, it is noted that counsel's assertion that the director's Request for Evidence was 
insufficient under the regulations is not persuasive. The issuance of a Request for Evidence where a petition 
fails to demonstrate eligibility became entirely discretionary on June 18,2007. 8 C.F.R. 5 103.2(b)(8)(ii); 72 
FR 19100 (April 17, 2007). Accordingly, the director could have, in his discretion, denied the petition 
outright without issuing a Request for Evidence due to the lack of initial evidence sufficient to establish 
eligibility for the benefit sought. 8 C.F.R. 5 103.2(b)(8)(ii). It is emphasized that the burden of proof in these 
proceedings rests entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 1361. Furthermore, it is 
noted that the AAO reviews decisions of the director de novo. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989) (noting that the AAO reviews appeals on a de novo basis). If the petitioner believed that the record 
of proceeding was inadequate to establish eligibility for the benefit sought, it could have supplemented the 
record on appeal, and this is exactly what the petitioner chose to do in this case. Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988). Therefore it would serve no useful purpose to remand the case simply to afford the 
petitioner the opportunity to supplement the record with new evidence as the petitioner has already availed 
itself of this opportunity on appeal, and the AAO will consider this new evidence. 
Ln examining the executive or managerial capacity of the beneficiary, Citizenship and Immigration Services 
(CIS) will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 204.56)(5). The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 
1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. To the contrary, it appears that the beneficiary will 
primarily perform non-qualifying administrative and operational tasks which will not rise to the level of being 
managerial or executive in nature. For example, the petitioner claims that the beneficiary will prepare 
financial information for outside accountants, financial statements, business activity reports, forecasts, 
budgets, and reports; maintain knowledge of policies, procedures, directives, and standards; conduct or 
coordinate audits; administer disbursements of funds; monitor financial activities; and liaise with banks, 
insurers, and other organizations. However, it has not been established that any of these ascribed tasks 
constitutes a qualifying managerial or executive duty, especially given that it has not been established that the 
beneficiary will be relieved of the need to perform these tasks by a subordinate staff. The fact that the 
petitioner has given the beneficiary a managerial or executive title does not establish that the beneficiary will 
actually perform managerial or executive duties. An employee who "primarily" performs the tasks necessary 
to produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the 
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). 
Page 7 
Likewise, the petitioner has also failed to establish that the beneficiary will supervise and control the work of 
other supervisory, managerial, or professional employees, or will manage an essential function of the 
organization. As noted above, it has not been established that the beneficiary will supervise any subordinates. 
Furthermore, it has not been established that the beneficiary will manage an essential function of the 
organization. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101 (a)(44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary will manage an essential 
function, the petitioner must furnish a written job offer that clearly describes the duties to be performed in 
managing the essential function, i.e., identify the function with specificity, articulate the essential nature of 
the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential 
function. See 8 C.F.R. $5 204.56)(2) and (5). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary manages the function rather than performs the tasks related to the 
function. 
In this matter, the petitioner has not provided evidence that the beneficiary will manage an essential function. 
As explained above, the record indicates that the beneficiary will more likely than not primarily perform non- 
qualifying tasks. Absent a clear and credible breakdown of the time spent by the beneficiary performing his 
duties, the AAO cannot determine what proportion of his duties will be managerial, nor can it deduce whether 
the beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999). Accordingly, the petitioner has not established that the 
beneficiary will be employed primarily in a managerial capacity. 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section lOl(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. As explained above, it appears more 
likely than not that the beneficiary will primarily perform the tasks necessary to produce a product or to 
provide a service. Therefore, the petitioner has not established that the beneficiary will be employed 
primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "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 
Page 8 
F.3d 1313, 1316 (9~ 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 41,42 (2d Cir. 1990) (per curiarn); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). Furthermore, it is appropriate for CIS 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 perform 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,lS (D.D.C. 2001). 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner has also failed to establish that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
As noted in the petitioner's letter dated December 4, 2007, "[tlhere is little or no difference between the 
beneficiary's position abroad and the one he has been and will continue to occupy in the United States in 
terms of the level of hierarchy." Accordingly, the petitioner submitted a job description for the beneficiary's 
position abroad which is substantively identical to the description submitted for the proffered position. 
Therefore, as the petitioner failed to establish that the beneficiary will be employed in the United States in a 
primarily managerial or executive capacity, the petitioner also failed for the same reasons to establish that the 
beneficiary was employed abroad in a primarily managerial capacity. For the same reasons explained above, 
it appears more likely than not that the beneficiary primarily performed nonqualifying administrative and 
operational tasks as the foreign employer's "financial manager," and the petition may not be approved for this 
additional reason. 
Beyond the decision of the director, the petitioner has also failed to establish that it is an "affiliate or 
subsidiary" of the foreign employer in Brazil. 
A "subsidiary" is defined at 8 C.F.R. 5 204.5Cj)(2) as: 
[A] fm, 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. 
Likewise, an "affiliate" is defined in pertinent part at 8 C.F.R. 5 204.56)(2) as: 
(A) 
 One of two subsidiaries both of which are owned and controlled by the same parent 
or individual; 
Page 9 
(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[.] 
The regulations 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 Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Cornm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 
593. In the context of this 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 at 595. 
In this matter, the record is devoid of evidence pertaining to the ownership and control of the petitioner. In 
support of its petition, the petitioner submitted a copy of its articles of incorporation. However, the petitioner 
did not submit any evidence of its ownership and control. The record does not contain any stock certificates 
or other evidence which could establish the identity of the owner or owners of the petitioner. Absent such 
evidence, it cannot be determined whether the petitioner shares common ownership and control with the 
foreign employer, which appears to be majority owned and controlled by . Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). Once again, the burden of proof in 
these proceedings rests entirely with the petitioner. Section 291 of the Act. 
Furthermore, the petitioner's 2005 tax return, which is in the record, indicates in schedule K, question 5, that 
no individual owns, directly or indirectly, 50% or more of the petitioner's stock. It also indicates in schedule 
K, question 7, that no foreign entity owns at least 25% of the petitioner's stock. Accordingly, it appears 
unlikely that either or the foreign employer is the owner of a controllin interest in the petitioner. 
As appears to be the majority owner of the foreign entity, either *I or the foreign 
employer must own and control the petitioner in order for a qualifying relationship with the petitioner to exist. 
As this does not appear likely given the averments in the tax return, the petition may not be approved for this 
additional reason. 
Accordingly, as the petitioner has failed to establish that it has a qualifying relationship with the foreign 
employer, the petition may not be approved. 
The previous approval of L-1A petitions for this petitioner does not preclude CIS fkom denying a 
subsequently filed non-immigrant or immigrant petition based on a reassessment of the petitioner's 
qualifications. See Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). 
Despite any number of previously approved petitions, CIS does not have any authority to confer an 
immigration benefit when the petitioner fails to meet its burden of proof in a subsequent petition. See section 
291 of the Act. 
Page 10 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (noting that the AAO reviews appeals on a de novo 
basis). Therefore, based on the additional ground of ineligibility as discussed above, this petition cannot be 
approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, ayd, 345 F.3d 
683. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.