dismissed EB-1C Case: Petroleum Consulting

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
LIN 06 193 50107 
PETITION: 
 lrnmigrant 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. 4 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. 
Robert P. Wiernann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Delaware corporation claiming to be a provider of insurance and bonding services. 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. $ 1153(b)(l)(C), as a multinational executive or manager. The director denied the petition 
based on two independent grounds of ineligibility: 1) the petitioner failed to establish that it has a qualifying 
relationship with a foreign entity; and 2) the petitioner failed to establish that it would employ the beneficiary 
in a managerial or executive capacity. Pursuant to a review of the record, the AAO concludes that the 
petitioner has submitted sufficient evidence and information to establish that the petitioner and the 
beneficiary's foreign employer have a qualifying relationship. As such, the AAO's discussion below will 
focus on the remaining basis for the director's denial. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of her 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 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. 
The primary issue in this proceeding is whether the beneficiary would be employed in a capacity that is 
managerial or executive. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), provides: 
Page 3 
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. 
 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 Form 1-140, the petitioner submitted a letter dated May 24, 2006, which included a general 
description of the beneficiary's proposed job responsibilities. The key portions of that description have been 
incorporated into the director's decision and, therefore, need not be repeated by the AAO. On July 21, 2006, 
the director issued a request for additional evidence. While the issue of the beneficiary's proposed job duties 
was not specifically addressed, the petitioner stated that through its presence in the United States it would be 
able to "provide its U.S. clients with the necessary expertise to serve its clients [sic] needs." In light of the 
fact that the beneficiary was indicated to be the petitioner's sole employee and in light of the responsibilities 
assigned to him in the initial support letter, the director determined that the beneficiary would directly provide 
the services offered by the petitioner to its clientele. Based on this determination, the director issued a 
decision dated October 25, 2006, concluding that the petitioner failed to establish that the beneficiary's 
proposed employment in the United States would be comprised primarily of duties within a qualifying 
managerial or executive capacity. 
On appeal, counsel asserts that the director's interpretation of the beneficiary's proposed role within the 
petitioning organization was oversimplified and led to an erroneous finding. In the appellate brief dated 
November 27, 2006, counsel provides a thorough explanation of the industry in which the petitioner operates 
and, more specifically, the petitioner's role within that industry. Counsel explains that the petitioner operates 
in the petroleum industry with its key role being to facilitate foreign companies in meeting all the necessary 
regulatory requirements imposed by the Mexican government with regard to petroleum projects. Counsel 
goes on to explain that the beneficiary's primary role within the petitioning entity is to interpret a wide variety 
of relevant Mexican statutes and effectively advise the petitioner's clients on how to obtain contracts within 
the petroleum industry, which is controlled by the Mexican government. Counsel provides the following 
summary of the beneficiary's duties and responsibilities: 
[The bleneficiary performs advisory and consultation services regarding the interpretation of 
the Laws of Acquisitions and of Public Works of Mexico. These consultation services assist 
in the participation of [the] [bleneficiary's clients in the process of public bidding that the 
[glovernment of Mexico has established for the contracting of its suppliers building 
PEMEX's oil infrastructure.' 
He advises his clients on the adequate compliance of the norms and rules that PEMEX has 
established for its acquisitions and service suppliers through PEMEX's purchasing 
committees. 
[The bleneficiary coordinates the rendering of these services with the personnel at the 
Mexican [plarent's office . . . . 
In the performance of his work[,] [the] [bleneficiary has been given the responsibility to cany 
out inspections in the oil fields to determine the protection measures against accidents and 
damages caused by natural disasters. 
[The] [bleneficiary also conducts meetings with clients during the bidding process to clarify 
with precision any necessary questions or doubts the contractors may bring up to determine 
clearly the extent of their work, as well as the guarantees they have to offer PEMEX to fulfill 
the contract and the quality of the products and services provided. 
In 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. 204.50)(5). In the present 
matter, counsel has provided a detailed explanation of the petitioner's role within the oil industry and, more 
specifically, the beneficiary's role with respect to the petitioner's clients within that industry. While no time 
increments were allotted to the specific job duties performed by the beneficiary, sufficient information was 
provided to allow the AAO to conclude that the beneficiary provides the services marketed to the petitioner's 
I 
 PEMEX stands for Petr6leos Mexicanos, which is Mexico's state-owned oil monopoly. 
clients. 
 As properly stated in the director's decision, 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). While the AAO acknowledges the complex nature of 
the beneficiary's duties as well as his integral role to the petitioner's continued existence, neither component 
by itself determines the beneficiary's employment capacity. Rather, 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), afd, 
905 F.2d 41 (2d. Cir. 1990). In the instant case, the description of the beneficiary's job duties as provided in 
counsel's appellate brief strongly suggest that the beneficiary would actually perform all of the duties 
underlying the essential functions of the petitioning entity. Furthermore, the organizational structure that has 
been illustrated is entirely lacking in support personnel, leaving the petitioner with no available means to 
relieve the beneficiary fiom having to primarily perform the daily operational tasks. Accordingly, as the 
record indicates that a preponderance of the beneficiary's duties will be directly providing the services of the 
business, it cannot be found that the beneficiary will be employed primarily in a qualifying managerial or 
executive capacity. For this reason, the petition may not be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 3 204.5(j)(3)(i)(D) states that the petitioner must establish that it has been doing business for at 
least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.5(j)(2) states that doing business 
means "the regular, systematic, and continuous provision of goods andlor services by a firm, corporation, or other 
entity and does not include the mere presence of an agent or office." The Form 1-140 that is at issue in thls 
proceeding was filed on June 13,2006. Based on ths date of filing, the petitioner must establish that it was doing 
business as of June 2005 and that it continued to do business up through the date the Form 1-140 was filed. While 
the petitioner provided a number of invoices showing business transactions that took place from June to August 
2005 and in October 2005, there are no invoices to show that the business transactions continued to take place 
during the remaining portions of the 12-month period prior to the date the petition was filed. The AAO may not 
assume that the petitioner was conducting business on a regular, systematic, and continuous basis for the entire 
12-month period simply because it provided documentation that business was ongoing during a portion of that 
time. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SofJci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Second, all documentation on record suggests that the beneficiary either directly or indirectly owns the U.S. 
petitioner, which leads to the final issue discussed below. 
Specifically, given the petitioner's description of its business organization and the beneficiary's proposed 
relationship to this business, it appears more likely than not that the beneficiary will not be an "employee" of 
the United States operation. As explained in 8 C.F.R. $ 204.56)(5), the petitioner must establish that the 
beneficiary will be "employed" in an executive or managerial capacity. It is noted that "employer," 
"employee," and "employed" are not specifically defined for purposes of the Act even though these terms are 
used repeatedly in the context of addressing the multinational executive and managerial immigrant classification. 
Section 203(b)(l)(C), 8 U.S.C. 5 1153(b)(l)(C), requires beneficiaries to have been "employed" abroad and to 
render services to the same "employer" in the United States. Further, section 101(a)(44), 8 U.S.C. fj 1101(a)(44), 
defines both managerial and executive capacity as an assignment within an organization in which an "employee" 
performs certain enumerated qualifying duties. Finally, the specific definition of "managerial capacity" in section 
10 l(a)(44)(A), 8 U.S.C. 8 1 10 1 (a)(44)(A), refers repeatedly to the supervision and control of other "employees." 
Neither the legacy Immigration and Naturalization Service nor CIS has defined the terms "employee," 
"empl~yer,'~ or "employed" by regulation for purposes of the multinational executive and managerial 
immigrant classification. See, e.g., 8 C.F.R. 8 204.5 and 8 C.F.R. 3 214.2(1). Therefore, for purposes of this 
immigrant classification, these terms are undefined. 
The Supreme Court of the United States has determined that where a federal statute fails to clearly define the 
term "employee," courts should conclude "that Congress intended to describe the conventional master-servant 
relationship as understood by common-law agency doctrine." Nationwide Mutual Ins. Co. v. Darden, 503 
U.S. 3 18, 322-323 (1992) (hereinafter "Darden") (quoting Community for Creative Non-Violence v. Reid, 490 
U.S. 730 (1989)). That definition is as follows: 
In determining whether a hired party is an employee under the general common law of 
agency, we consider the hiring party's right to control the manner and means by which the 
product is accomplished. Among the other factors relevant to this inquiry are the skill 
required; the source of the instrumentalities and tools; the location of the work; the duration 
of the relationship between the parties; whether the hiring party has the right to assign 
additional projects to the hired party; the extent of the hired party's discretion over when and 
how long to work; the method of payment; the hired party's role in hiring and paying 
assistants; whether the work is part of the regular business of the hiring party; whether the 
hiring party is in business; the provision of employee benefits; and the tax treatment of the 
hired party. 
Darden, 503 U.S. at 323-324; see also Restatement (Second) of Agency 
 220(2) (1958); Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). As the common- 
law test contains "no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the 
incidents of the relationship must be assessed and weighed with no one factor being decisive." Darden, 503 
U.S. at 324 (quoting NLRB v. United Ins. Co. of America, 390 U.S. 254,258 (1968). 
Within the context of immigrant petitions seeking to classify the beneficiary as a multinational manager or 
executive, when a worker is also a partner, officer, member of a board of directors, or a major shareholder, the 
worker may only be defined as an "employee" if he or she is subject to the organization's "control." See 
Clackamas, 538 U.S. at 449-450; see also New Compliance Manual at 9 2-III(A)(l)(d). Factors to be 
addressed in determining whether a worker, who is also an owner of the organization, is an employee include: 
Whether the organization can hire or fire the individual or set the rules and 
regulations of the individual's work. 
Whether and, if so, to what extent the organization supervises the individual's work. 
Whether the individual reports to someone higher in the organization. 
Whether and, if so, to what extent the individual is able to influence the organization. 
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Whether the parties intended that the individual be an employee, as expressed in 
written agreements or contracts. 
Whether the individual shares in the profits, losses, and liabilities of the organization. 
Clackamas, 53 8 U.S. at 449-450 (citing New Compliance Manual). 
Applying the Darden and Clackamas tests to this matter, the petitioner has not established that the beneficiary 
will be an "employee" employed in a managerial or executive capacity. As explained above, the petitioner is 
a corporation, which the petitioner claims is ultimately owned and controlled by the beneficiary, who purports 
to assume a role as the petitioner's principal. While the petitioner's organizational chart names another officer 
within its hierarchy, there is no evidence that this individual has an ownership interest or is in a position to 
exercise any control over the work to be performed by the beneficiary. 
In view of the above, it appears that the beneficiary will be a proprietor of this business and will not be an 
"employee" as defined above. It has not been established that the beneficiary will be "controlled" by the 
petitioner or that the beneficiary's employment could be terminated. To the contrary, the beneficiary is the 
petitioner for all practical purposes. He will control the organization; he cannot be fired; he will report to no 
one; he will set the rules governing his work; and he will share in all profits and losses. Therefore, based on 
the tests outlined above, the petitioner has not established that the beneficiary will be "employed" as an 
"employee," and the petition may not be approved for this and the other additional reasons discussed above. 
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), afyd, 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). Therefore, based on the additional grounds of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, counsel makes a brief reference to the petitioner's current approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant petitions. The AAO acknowledges that both the immigrant and nonimmigrant visa 
classifications rely on the same definitions of managerial and executive capacity. See $4 101(a)(44)(A) and 
(B) of the Act, 8 U.S.C. § 1 101 (a)(44). Although the statutory definitions for managerial and executive 
capacity are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions, not just the definitions of managerial and executive capacity. There are significant differences 
between the nonimrnigrant visa classification, which allows an alien to enter the United States temporarily for 
no more than seven years, and an immigrant visa petition, which permits an alien to apply for permanent 
residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen. 
CJ: $4 204 and 214 of the Act, 8 U.S.C. $8 1154 and 1184; see also 4 316 of the Act, 8 U.S.C. $ 1427. 
Moreover, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. CIS is not required to assume the 
burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. The approval of a nonimmigrant 
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petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same 
beneficiary. CIS denies many 1-140 immigrant petitions after approving prior nonimmigrant 1-129 L-1 
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. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petition was 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 CIS 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). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonirnmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
In conclusion, 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, afd, 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. 8 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.