dismissed EB-1C Case: Operations Management

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DATE: DEC! 2 2011 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
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. § 1 1 53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of$630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its operations manager. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(C), as a 
multinational executive or manager. 
The director denied the petition based on the following grounds of ineligibility: (1) failure to establish the 
existence of a qualifying relationship; (2) failure to establish that the beneficiary's employment abroad was 
within a qualifying managerial or executive capacity; (3) failure to establish that the beneficiary's proposed 
employment with the U.S. entity would be within a qualifying managerial or executive capacity; and (4) failure 
to establish the ability to pay the beneficiary's proffered wage. The director also questioned whether the 
petitioner had sufficient physical premises and permission to do business in Miami Dade County at the time 
the petition was filed. 
On appeal, counsel disputes the director's findings and provides an appellate brief laying out the grounds for 
challenging the denial. After reviewing the supporting documentation, the AAO finds that the petitioner has 
provided sufficient evidence to establish that it had the ability to pay the beneficiary's proffered wage and that 
it had sufficient physical premises and permission to do business as of the date the petition was filed. 
Accordingly, the AAO hereby withdraws the fourth ground as well as the adverse comment regarding the 
petitioner's physical premises as grounds for denial. The remainder of this decision will address the 
petitioner's qualifying relationship and the beneficiary's foreign and proposed employment to determine 
whether the petitioner met the applicable eligibility criteria. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
Page 3 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(1)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first two issues that will be addressed in this proceeding call for an analysis of the beneficiary's job duties. 
Specifically, the AAO will examine the record to determine whether the petitioner submitted sufficient 
evidence to establish that the beneficiary was employed abroad and would be employed in the United States in 
a qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily--
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or ifno other employee is 
directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily--
(i) directs the management of the organization or a major component or function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
Page 4 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the Form 1-140, the beneficiary, on behalf of the petitioner, submitted a statement dated March 6, 
2009 in which he stated that he would be responsible for managing U.S. operations, negotiating contracts with 
suppliers, planning the use of materials and human resources, purchasing and administrative services, directing 
and coordinating budget and finances, maximizing return on investments, increasing efficiency, reviewing 
financial statements and sales and activity reports, submitting daily reports to the board of directors regarding 
company operations, and determining the petitioner's staffing needs as well as hiring, firing, and training 
employees. 
With regard to his employment abroad, the beneficiary stated that he was responsible for presenting the board 
of directors with projects and ideas regarding advertising and promotion; maintaining contact with 
representatives of the community, clients, employees, and companies in need of the foreign entity's services; 
negotiating and entering into contracts on behalf of the foreign entity; and supervising the arts department. 
On May 8, 2009, the director issued a request for additional evidence (RFE) instructing the petitioner to 
provide, in part, supplemental descriptions of the beneficiary's foreign employment as well as his proposed 
employment with the U.S. entity. Namely, the petitioner was asked to provide a list of the beneficiary's job 
duties with each entity accompanied by a percentage breakdown indicating how much time the beneficiary 
spent on each task he performed during his employment abroad and how much time he planned to spend on 
each task assigned to him in his proposed position with the U.S. entity. The petitioner was also asked to 
provide an organizational chart for each entity illustrating their respective organizational hierarchies. 
Additionally, the director instructed the petitioner to submit evidence of each entity's staffing, including the 
number of employees as well as their job titles, job duties, and educational levels. 
In response, the petitioner provided two statements, both dated May 20, 2009, as part of Exhibits D-l and E-I 
pertaining to the beneficiary's foreign and proposed positions, respectively. Each statement contained a list of 
the beneficiary's functions followed by a separate list of duties and responsibilities, which was supplemented 
by an hourly and percentage breakdown. 
With regard to the beneficiary's employment abroad, the petitioner listed the following functions: 
• Planned and directed public relations programs designed to create and maintain a favorable 
public image. 
• Supervised and approved the final draft to be shown to the client[.] 
• Maximized sales and measured sales performance on a daily basis by reference to class sales 
reports from year prior on same day. 
• Developed, directed and implemented the strategic plan for this company in the most cost 
effective and time efficient manner. 
• Negotiated with clients in behalf of the company and contracts with suppliers. 
Page 5 
• Ensured all order entry is accurate and complete[.] 
• Established and implemented departmental policies, goals, objectives, and procedures, 
conferring with board members and staff members as necessary. 
• Developed and controlled sales program through evaluating staffing, training, and 
performance evaluation[.] 
• Coordinated sales distribution by establishing sales territories, quotas, and goals[.] 
• Analyzed sales statistics gathered by staff to determine sales potential and inventory 
requirements and monitor[ed] the preferences of customers[.] 
• Maintained communication with our clients, developed, promoted and managed programs to 
bring in more clients and give a better service to the public. 
• Advised executives on public relations issues; contributing [sic] to communications program 
planning; directing [sic] promotional initiatives; controlling [sic] publications channels[.] 
• Oversaw compliance of personnel with established [c ]ompany policies and standards, such as 
safekeeping of [c]ompany property, personnel practices, security, sales and record-keeping 
procedures. 
The above list was supplemented with the following hourly and percentage breakdown: 
25% (l0 Hrs.) Evaluated and implemented advertising and promotion programs for 
compatibility with public efforts. Identified main client groups and 
audiences and determined the best way to communicate publicity 
information to them. 
10% (4 Hrs.) 
40% (16 Hrs.) 
10% (4 Hrs.) 
15% (6 Hrs.) 
Evaluated and reviewed the services ultimately provided by the company 
to ensure it meets proper specifications as per customer and conformity 
with industry standards. 
Supervised Publicity, Art and PR department's operation and personnel. 
Evaluated and negotiated contracts to be engaged by the [c ]ompany with 
service providers and customers to obtain better profits and provide 
excellent service[.] 
Monitored customer preferences to determine focus of sales efforts. 
Conferred with customers and suppliers by telephone or in person 
regarding services needed and advise customers on [the] types of work 
[that] would better fit them. 
Page 6 
Exhibit D of the supporting documents included a copy of the foreign entity's organizational chart, which 
depicted two shareholders at the top of the structure, followed by the company president, who was directly 
above the administration department consisting of one employee, the production department consisting of three 
employees, and the department of publicity, art, and public relations consisting of the beneficiary and his 
subordinate. The chart showed a maintenance person as the subordinate of the productions department. 
With regard to the beneficiary's proposed employment the petitioner's statement at Exhibit E-l contained the 
following list of proposed job duties: 
• Manage the entire u.s. Entity and will continue to have the discretion over operation 
decisions for the company. 
• Supervises and approves the equipment investment required by the u.S. entity. 
• Supervises and has the authority to hire and fire personnel, guides and manages the overall 
provision of personnel for the entire company, such as recruiting and staffing, as well as other 
personnel actions, such as promotions and leave authorizations, he functions at a [s ]enior 
level with the organization[al] hierarchy. 
• Develop, direct and implement the strategic plan for his company in the most cost effective 
and time efficient manner, coordinating with department heads of department as required. 
• Negotiate contracts in behalf of the corporation and deal with the U.S. [s]upplies and service 
providers. Manage and overseeing the essential function within the organization to provide 
services. 
• Monitor functions of each of the US entity employees to ensure that they efficiently and 
effectively provide needed services while staying within budgetary limits. 
• Direct and coordinate the organization's financial and budget activities to fund operations, 
maximize investments and increase efficiency, as well as, evaluate performance of company 
and staff and determine area of costs reduction and new program improvement. 
• Submit a report to the Board of Directors relating the operations and situation of the 
company. 
• Establish and implement departmental policies, goals, objectives, and procedures, conferring 
with board members, organization officials, and staff members as necessary. 
• Review financial statements, sales and activities report[ s] provided by supervisors. 
The above list was supplemented with the following hourly and percentage breakdown: 
5% (2 Hrs.) Preparation of budget of company operations and monitor finances, 
determine employment needs of the U.S. [c ]ompany including level of 
supervisors required. 
Page 7 
5% (2 Hrs.) 
10% (4 Hrs.) 
5% (2 Hrs.) 
5% (2 Hrs.) 
40% (16 Hrs.) 
5% (2 Hrs.) 
15% (6 Hrs.) 
10% (4Hrs.) 
Evaluate contracts to be engaged by the u.s. [c]ompany with servIce 
providers and customers. 
Negotiate contracts in behalf of the corporation to obtain better profits and 
provide excellent service[.] 
Evaluate and review the services ultimately provided by the company to 
ensure it meets proper specifications as per customer and conformity with 
industry and government standards. 
Maintain regular communications with the foreign parent company. 
Supervise the activities of all employees, including supervisors and other 
personnel when they are to be hired. 
Establish goals and coordinate functions delegating responsibilities among 
subordinated supervisors of each department. 
Meet with supervisors to review [that] the work assigned has been done 
efficiently. 
Review documentation gIven by the subordinated employees such as 
estimates, load approvals and costs, etc. 
Exhibit E of the supporting documents included the petitioner's organizational chart, which showed three 
shareholders at the top of the hierarchy, followed by the beneficiary in the position of operations manager 
overseeing one administrative and dispatch supervisor with no subordinate personnel, and a drivers 
supervisor/truck driver overseeing one driver. Although the petitioner also provided an updated organizational 
chart reflecting personnel changes that were put in place as of May 2009, this information does not address the 
issue of whether the petitioner was able to employ the beneficiary in a managerial or executive capacity as of 
the date the petition was filed and thus the updated organizational chart need not be addressed in this 
proceeding. See 8 C.F.R. § 103.2(b)(12). 
In a decision dated July 20, 2009, the director denied the petition, concluding that the petitioner failed to 
establish that the beneficiary had been employed abroad or that he would be employed in the United States in a 
managerial or executive capacity. With regard to the beneficiary'S employment abroad, the director found that 
the list of duties the petitioner provided were not consistent with the personnel structure of the department that 
the beneficiary headed in that the entire department consisted of only one subordinate employee whom the 
director did not deem to be a professional based on the information that was provided. With regard to the 
beneficiary'S proposed employment, the director commented on the petitioner's limited personnel and 
determined that the beneficiary would not oversee the work of supervisory, managerial, or professional 
personnel. 
On appeal, counsel disputes the director's findings, pointing out that the beneficiary's subordinates do not have 
to be professionals if it can be established that they are managerial or supervisory. In the alternate, counsel 
Page 8 
asserted that the beneficiary can be deemed a function manager or an executive in his proposed position with 
the U.S. entity. In support of this assertion counsel cited an unpublished AAO decision and also urged the 
AAO to defer to USCIS' s prior approvals of the nonimmigrant L-l petitions filed by the petitioner on behalf of 
the same beneficiary. 
With regard to counsel's reliance on unpublished AAO decisions, it is noted that 8 C.F.R. § 103 J( c) provides 
only that AAO precedent decisions are binding on all USCIS employees in the administration of the Act; the 
regulations do not accord similar consideration to unpublished decisions. 
Additionally, the AAO notes that USCIS memoranda merely articulate internal guidelines for service 
personnel; they do not establish judicially enforceable rights. An agency's internal personnel guidelines 
"neither confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may rely." Loa­
Herrera v. Trominski, 231 FJd 984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 1264 (5th 
Cir.1987)). Thus, counsel's argument that USCIS should defer to a service memorandum which indicates that 
deference should be given to the approval of a nonimmigrant petition filed on behalf of the same beneficiary is 
without merit. 
Moreover, the AAO notes that, regardless of the fact that the petitioner had several L-l petitions approved on 
behalf of the same beneficiary, the fact remains that each nonimmigrant and immigrant petition is a separate 
record of proceeding with a separate burden of proof and as such, each petition must stand on its own 
individual merits. USCIS is not required to assume the burden of searching through previously provided 
evidence submitted in support of other petitions to determine the approvability of this petition. The approval 
of a nonimmigrant petition in no way guarantees that USCIS will approve an immigrant petition filed on behalf 
of the same beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-
129 L-l petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989). 
If the previous nonimmigrant petitions were approved based on the same unsupported assertions that are 
contained in the current record, the approval would constitute material and gross error on the part of the 
director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that USCIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 F.2d 
1084,1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. § 204.50)(5). Published case law clearly supports the pivotal role 
of a clearly defined job description, as the actual duties themselves reveal the true nature of the employment. 
Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990); see 
also 8 C.F.R. § 204.50)(5). That being said, however, USCIS reviews the totality of the record, which 
includes not only the beneficiary'S job description, but also takes into account the nature of the petitioner's 
business, the employment and remuneration of employees, as well as the job descriptions of the beneficiary'S 
subordinates, if any, and any other facts contributing to a complete understanding of a beneficiary'S actual role 
within a given entity. 
Page 9 
In the present matter, an analysis of the record does not lead to affirmative conclusion that the beneficiary was 
employed abroad or would be employed in the United States in a qualifying managerial or executive capacity. 
With regard to both the foreign and proposed positions the petitioner provided a list of job duties that was not 
accompanied by a percentage breakdown. Instead, the percentage breakdown was included in a more broad 
description of the beneficiary's general job responsibilities, which captured some of the elements of the first 
list and included more broadly stated job responsibilities. Due to the overly general information included in 
the percentage breakdown, the AAO is unable to gain a meaningful understanding of how much time the 
beneficiary spent performing qualifying tasks versus those that would be deemed non-qualifying. For 
instance, in describing the beneficiary'S employment abroad, the petitioner indicated that 40% of the 
beneficiary'S time was allocated to supervising the publicity, art, and public relations department's operation 
and personnel. However, it is unclear which specific tasks actually fall within this broad category. Merely 
using the term "supervised" to describe the beneficiary'S function does not establish that the supervisory tasks 
the beneficiary performed were of a qualifying nature, particularly where the beneficiary's subordinate 
personnel consisted of a single individual whom the petitioner has not established as being a professional, 
supervisory, or managerial employee. 
The petitioner indicated that another 25% of the beneficiary'S time was allocated to evaluating and 
implementing advertising and promotion programs and identifying client groups. However, the foreign 
entity's organizational chart did not identify any employees who actually produce the advertising and 
promotion programs, thus indicating that the beneficiary may have been the one to carry out these operational 
functions, which are clearly outside the parameters of what would be deemed as being within a managerial or 
executive capacity. That being said, the beneficiary'S regular communications with customers and suppliers, 
which consumed 15% of his time, also cannot be deemed as qualifying duties. 
After reviewing the beneficiary'S job description with the foreign entity and considering that information in 
light of the foreign entity's organizational structure as it specifically pertained to the beneficiary'S position, the 
AAO cannot conclude that the primary portion of the beneficiary'S time was spent performing tasks within a 
qualifying managerial or executive capacity. 
With regard to the beneficiary'S proposed employment, the information about the beneficiary'S proposed job 
duties is presented in two lists of job duties and responsibilities, with one list containing the requested time 
constraints. The petitioner indicated that the beneficiary would allocate 40% of his time to supervising the 
activities of all employees. This portion of the job description is particularly problematic for two reasons. 
First, the petitioner did not list which specific tasks fall within this supervisory role and second, the petitioner 
has not established that the beneficiary'S subordinates are supervisory, professional, or managerial employees. 
As properly noted by the director, the supervisory title of the administrative and dispatch supervisor does not 
establish that the nature of the position is in fact supervisory. The chart shows no positions subordinate to this 
allegedly supervisory position and based on this employee's educational credentials, she cannot be deemed a 
professional. See 204.5(k)(2). With regard to the beneficiary'S other subordinate-truck driver/driver 
supervisor-the director was right to point out that the contractual nature of the subordinate employee's 
position gives cause to question the true supervisory nature of the truck driver/supervisor position. 
In light of the above observations that lend doubt as to the supervisory or managerial nature of the 
beneficiary'S subordinates, the AAO must also question whether the 15% of the beneficiary'S time that would 
be allocated to meeting with supervisors can truly be deemed a qualifying task. Although counsel suggests 
that the beneficiary's position may be deemed as that of a function manager or an employee working in an 
Page 10 
executive capacity, neither of which focuses on the beneficiary's duties as a personnel manager, counsel 
cannot merely raise these alternate claims to avoid addressing the non-qualifying tasks the beneficiary would 
have to perform by overseeing the work of non-supervisory, non-professional, and/or non-managerial 
employees. Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Moreover, counsel's assertions are not consistent with 
the job description that the petitioner has provided in which considerable focus was placed on the beneficiary's 
supervision of subordinate employees. 
Additionally, the petitioner has not established that negotiating contracts, to which the beneficiary would 
allocate 10% of his time, and reporting to the foreign company, to which the beneficiary would allocate 
another 5% of his time, can be deemed as tasks within a qualifying managerial or executive capacity. Rather, 
both are indicative of routine operational tasks, which the beneficiary is called upon to perform based on the 
petitioner's needs at the time of filing the petition. More specifically, a review of the petitioner's personnel 
structure indicates that the petitioner may not have had the necessary human resources to relieve the 
beneficiary from having to primarily carry out its non-qualifying tasks. While the AAO acknowledges that no 
beneficiary is required to allocate 100% of his time to managerial- or executive-level tasks, the petitioner must 
establish that the non-qualifying tasks the beneficiary would perform are only incidental to his proposed 
position. An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
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). 
In the present matter, the petitioner has failed to establish that at the time of filing the petition it was able to 
employ the beneficiary in a qualifying capacity. 
In summary, the petitioner has failed to provide sufficient evidence to establish that the beneficiary was 
employed abroad and that he would be employed in the United States in a qualifying managerial or executive 
capacity and based on these two findings, the instant petition cannot be approved. 
The remaining issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that 
it has a qualifying relationship with the beneficiary's foreign employer. To establish a "qualifying 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity with a foreign office) or 
related as a "parent and subsidiary" or as "affiliates." See generally § 203(b)(l)(C) of the Act, 8 U.S.C. 
§ 1153(b)(l)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and 
"subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
Page 11 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts business 
in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
Counsel for the petitioner submitted a support statement dated March 6, 2009 in which he referred to the 
beneficiary's employer abroad as "the foreign parent corporation," and provided an breakdown 
which indicates that 95.85% of the shares issued by the U.S. entity are owned by 
while the remaining 4.15% are held by With regard to the 1"n"PlCfn 
that 50% of the shares are held by the remaining shares are evenly divided 
between the beneficiary and In a separate statement dated March 6, 2009, the beneficiary, on 
the petitioner's behalf, described a similar ownership scheme claiming that the same individual who holds 
98.85% of the foreign entity's shares also holds 50% of the U.S.~orting evidence included 
stock certificate nos. 1-3 issued by the U.S. entity showing _ as owner of 50 of the 
petitioner's shares with the beneficiary and_each holding 25 of the remaining shares. 
In the May 8, 2009 RFE, the director instructed the petitioner to supplement the record with the U.S. entity's 
stock ledger showing all stock certificates issued and the shareholders' names and prices paid for their 
respective shares. The petitioner was also instructed to provide evidence ofthe foreign entity's ownership. 
In his June 4, 2009 response statement, counsel contends that 
stock certificate no. 1 with a total of 50 shares of the lJ~lll1U'H~l 
ho owns 1,917 shares of the foreign entity's stock. 
the name that appeared on 
Additionally, the petitioner provided the requested stock ledger, which reiterated the information that was 
contained in the petitioner's stock certificates, and translated documents pertaining to the foreign entity's 
ownership. Evidence that pertained to the foreign entity included an undated document titled, "Constitutive 
Act," which stated at Chapter II that the foreign entity was authorized to issue a total of 250 "quotas" with a 
par value ofBs. 1,000. The same chapter stated that ~as issued 83 quotas valued at Bs. 
83 issued 8~s. 85,000, and 
at Bs. 82,000.1 The record also contains a translated document at Exhibit 
1 The number of quotas issued and the quantity that represented the u,vu".,u 
shareholder. It is note that, the numerical amount issued to 
written amount, which states 
amount paid was written out for each 
,000 quotas-does not match the 
quotas. Although this may be a 
Regardless, this information will not typographical error, it is unclear based a review of other documents in the record. 
change the adverse findings in this decision and thus need not be further addressed. 
Page 12 
C-l, which stated that on May 14, 1997 the foreign entity increased the "social capital" of the company from 
Bs. 250,000 to Bs. 2,000,000 and that the new ownership breakdown would be put into effect. Specifically, 
1,917 nd the remaining 83 quotas were issued to __ 
ajority ownership of the foreign entity. 
After reviewing the documentation submitted, the director determined that the petitioning entity and the 
beneficiary's foreign employer are not commonly owned and controlled and denied the petition. Specifically, 
the director pointed out that owns 50% of the petitioner's stock, he owns less than 5% 
of the foreign entity's stock. The director further noted that no evidence was submitted to establish that 
are the same person. 
On appeal, counsel reasserts the petitioner's original claim, asserting that 
majority owner of both entities. However, as previously stated, the not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 534. As the any 
evidence to support counsel's claim that the same 
person, the AAO cannot conclude that the same individual owns the majority of the shares of both entities and 
on the basis of this additional finding the instant 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. In visa petition proceedings, the burden of proving eligibility for the benefit sought 
remains entirely with the petitioner. Section 291 of the Act, 8 U.s.c. § 1361. The petitioner has not sustained 
that burden. 
ORDER: The appeal is dismissed.