dismissed EB-1C Case: Packaging And Printing Services

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: ; Office: CALIFORNIA SERVICE CENTER Date: FEIf 0 1 
WAC 04 174 5 1678 
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. 3 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. 
.c- -7. 
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Robert P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a California corporation engaged in the business of providing specialized international 
packaging and printing services to U.S. publishers and printing professionals. The petitioner is also engaged 
in disseminating U.S. technologies, equipment, and materials in China's printing industry. It 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 (the 
Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational executive or manager. The director determined that the 
petitioner failed to submit sufficient evidence to establish that the beneficiary would be employed in the 
United States in a managerial or executive capacity and denied the petition. 
On appeal, the petitioner disputes the director's conclusion, providing a brief statement and additional 
documentation in support of its arguments. 
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 fm, 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. 
The issue in this proceeding is whether the beneficiary will be employed in a capacity that is managerial or 
executive. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
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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 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 function 
of the organization; 
(ii) establishes the goals and policies of the organization, component, or 
function: 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In support of the petition, the petitioner submitted a letter dated May 18, 2004, which provided the following 
description of the duties to be performed by the beneficiary under an approved petition: 
As president of the U[.]S[.] company, [the beneficiary] has been responsible for the overall 
financial, administrative and business projects of the company. She has been formulating 
company business policies and directives for the implementation by the department 
managers. She is directing the coordination among the company departments and the 
Chinese parent company. She has directed the lower managers in the establishment and 
improvement of systematized marketing transactions with the pertinent U.S. companies. 
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She also manages company officers in planning business objectives to increase sales volume 
and products [sic] quality. In the process, [the beneficiary] also allocates responsibilities [sic] 
for the different company departments according to the company general business plan and 
parent company's directives. She supervises and evaluates performance of lower managers in 
compliance with company business policies and objectives. She reviews activity reports and 
business documents. Finally, she interviews and recruits corporate employees in accordance 
with the subsidiary's corporate needs. 
The petitioner also stated that it has six positions filled within its hierarchy and indicates that all six 
employees are professional. 
On January 28, 2005, the director issued a request for additional evidence (RFE) instructing the petitioner to 
submit its organizational chart describing the company's managerial hierarchy and staffing levels as of the 
date the petition was filed in April 2004. The petitioner was asked to clearly identify the beneficiary's 
position in the chart, her subordinates' names and job titles as well as their job duties and educational levels. 
The beneficiary was also instructed to submit a more detailed description of the beneficiary's job duties to 
include a breakdown of the duties that comprise the beneficiary's typical day of work. Additional 
documentation was also requested in the form of the petitioner's wage report for the second quarter of 2004. 
In response, the petitioner provided a letter dated March 31, 2005, which refers to the description of the 
beneficiary's duties included in exhibit three of the petitioner's submissions. As the duties listed in the 
petitioner's description have been incorporated into the director's decision, the AAO will not repeat that list in 
the instant decision. It is noted that the description does not address the director's specific request for a 
detailed account of the beneficiary's typical day of work. The petitioner did, however, provide the requested 
organizational chart, descriptions of duties for the petitioner's employees, and the petitioner's quarterly wage 
report for the quarter during which the petition was filed identifying the individuals listed in the 
organizational chart. 
On May 17, 2005, the director denied the petition concluding that the petitioner failed to submit sufficient 
evidence to warrant a finding that the beneficiary would primarily perform managerial or executive duties. 
While the record supports the director's overall conclusion, the AAO notes that the decision contains various 
erroneous comments, which will be discussed below and subsequently withdrawn. 
First, the director recited the petitioner's organizational structure and deemed it unreasonable that a primarily 
managerial employee could be adequately relieved of having to perform nonqualifying duties with the 
existing organizational structure. The director did not explain how the structure was deficient and instead 
noted that the beneficiary's "performance of those menial tasks" would preclude her from primarily 
performing tasks of a qualifying nature. The director did not, however, provide an analysis of the specific 
duties he perceived to be nonqualifying and gave little indication that the descriptions of duties of the 
beneficiary's subordinate staff, as provided in response to the Request for Evidence, were considered. As 
there is no basis for the director's specific finding discussed herein, the comment with regard to the 
beneficiary's performance of "menial tasks" is hereby withdrawn. 
Second, the director noted that the beneficiary's subordinates cannot be deemed professionals and that the 
beneficiary can therefore only be deemed a first-line supervisor who supervises nonprofessional employees. 
However, section 101(a)(44)(A)(ii) of the Act allows for a beneficiary who supervises and controls the work 
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of other supervisory or managerial employees, not just subordinates that are deemed professional. There is no 
indication this provision has been considered in its entirety. Therefore, the director's finding with regard to 
the employment capacity of the beneficiary's subordinates is also hereby withdrawn. 
Notwithstanding the director's inaccurate comments, the director properly concluded that the record lacks 
sufficient evidence to conclude that the beneficiary would primarily perform duties of a qualifying nature. 
On appeal, the beneficiary provides a written statement on behalf of the petitioner discussing the progress in 
the petitioner's development since June of 2001 when the beneficiary assumed her current position as 
president of the petitioning entity. The beneficiary also claims that some of her employees are professional 
and refers the AAO to the attached documentation that reveals the educational credentials of the beneficiary's 
subordinates. Although the beneficiary emphasizes the large contributions she has made to the overall 
success of the petitioning entity, she does not provide any additional information regarding her specific 
duties. 
In examining the executive or managerial capacity of the beneficiary, CIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. 5 204.5(j)(5). As precedent case law has established, the actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In the instant matter, the petitioner has been 
consistent in providing a broad range of the beneficiary's responsibilities, clearly indicating that the 
beneficiary has been and would continue to exercise a high degree of discretionary authority over the 
individual aspects of the business as well as the petitioner's future business projects. The descriptions also 
suggest that the beneficiary's direct subordinates occupy managerial or supervisory positions. However, the 
petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The director stressed the importance of this information when he issued the RFE, which 
specifically instructed the petitioner to provide a detailed account of the beneficiary's daily duties. Specifics 
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Id. 
Although the petitioner has provided a sufficient illustration of its organizational hierarchy and has provided 
sufficient information as to the duties of the beneficiary's direct and indirect subordinates, the record lacks a 
detailed description discussing the duties the beneficiary herself would perform on a day-to-day basis. The 
AAO cannot conclude that the beneficiary would primarily perform managerial or executive duties based on 
information about the petitioner's personnel and the beneficiary's dominant role within the petitioner's 
organizational hierarchy. The regulations require a detailed description of the beneficiary's daily job duties. 
See 8 C.F.R. 3 204.5(j)(5). As the record lacks sufficient information to indicate what specific duties the 
beneficiary would perform on a daily basis, the AAO cannot affirmatively conclude that the beneficiary 
would primarily perform managerial or executive duties. 
Additionally, though not discussed in the director's decision, the regulation at 8 C.F.R. 5 204.5(j)(3)(i)(C) states 
that the petitioner is required to submit evidence that the prospective United States employer and the beneficiary's 
foreign employer have a qualifying relationship as defined in 8 C.F.R. 5 204.5(j)(2). 
In the instant matter, the petitioner claims to be a wholly owned subsidiary Ltd., located in 
China. In support of this claim, the petitioner has provided a number of documents including stock certificates, a 
stock transfer ledger, a California Notice of Transactions, and evidence of a wire transfer in the amount of the 
purchased stock. However, the documentation of the wire transfer indicates that Foreign 
Co., Ltd. was the originator of the funds used to purchase the petitioner's stock. The 
petitioner has explained that the foreign parent entity entrusted the actual fund transfer to a third party company, 
which the petitioner claims was legally authorized by the Chinese government to handle foreign exchange 
petitioner has not provided any documentation to support its claims regarding the 
authority to engage in foreign exchange matters; nor has the petitioner provided any 
documentation establishing what China's foreign monetary exchange policies were at the time the fund transfer 
took place. 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. Comm. 1972)). 
Furthermore, in the response to the Re uest for Evid nce, the petitioner provided a translated explanation 
from the foreign entity reiterating a role in the transfer of funds used to purchase the 
petitioner's stock. The explanation indicated that a copy of the original Authorization Agreement regarding the 
details of the fund transfer was submitted to Citizenship and Immigration Services (CIS) in 2001. However, the 
Form 1-140, which is at issue in the instant matter, was not filed until 2004. Thus, even if the claimed copy of the 
Authorization Agreement was submitted to CIS, it was submitted in a separate proceeding and is not part of the 
instant record of proceeding. As such, the record, as presently constituted, does not establish that the beneficiary's 
foreign employer actually purchased the petitioner's stock as claimed. 
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 (BL4 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). The regulations specifically allow the director to request additional evidence in appropriate 
cases. See 8 C.F.R. 5 204.5(j)(3)(ii). As ownership is a critical element of this visa classification, the director 
may reasonably inquire beyond the issuance of paper stock certificates into the means by which stock 
ownership was acquired. In the instant matter, the record does not clearly establish that the claimed foreign 
entity actually paid for its ownership of the U.S. petitioner's stock. Therefore, the AAO cannot conclude that 
the beneficiary's foreign employer and the U.S. petitioner have a qualifying relationship as claimed. 
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 Entelprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Accordingly, the petition cannot be approved pursuant to the additional ground 
of ineligibility discussed above. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd. 345 F.3d 683. 
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. 5 1361. The petitioner has not 
sustained that burden. 
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ORDER: The appeal is dismissed.