dismissed EB-1C Case: Precious Metal Reclamation

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
f 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 
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, ~'u.s.c. 3 1 153(b)(l)(C) 
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ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice 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. 
IY 
dministrative Appeals 6ffice 
DISCUSSION: The Director, California Service Center, denied the employment-based visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a corporation organized in the State of California in March 2000. It is engaged in marketing 
distribution for precious metal reclamation. It seeks to employ the beneficiary as its president and director. 
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 determined that the petitioner had not established a qualifying relationship with the beneficiary's 
foreign employer. 
On appeal, counsel for the petitioner asserts that the director incorrectly concluded that the petitioner and the 
beneficiary's foreign employer are not affiliates. 
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 fm 
or corporation or other legal entity or an affiliate or subsidiary thereof 
and who seeks to enter the United States in order to continue to render 
services to the same employer or to a subsidiary or affiliate thereof in a 
capacity that is managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. A United 
States employer may file a petition on Form 1-140 for classification of an alien under section 21)3(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 that indicates 
that the alien is to be employed in the United States in a managerial or executive capacity. Such a statement 
must clearly describe the duties to be performed by the alien. See 8 C.F.R. tj 204.5('j)(5). 
The issue in this proceeding is whether the petitioner has established a qualifying relationship with the 
beneficiary's foreign employer. In order to qualify for this visa classification, the petitioner must establish that a 
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qualimg relationship exists between the United States and foreign entities in that the petitioning company is the 
same employer or an affiliate or subsidiary of the foreign entity. 
The regulation at 8 C.F.R. 5 204.5Cj)(2) states in pertinent part: 
Afiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual; 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is the United States. 
Subsidiav 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. 
The petitioner and director both agree that one individual wns 100 percent of the 
:.petitioner. The record shows that four individuals own int following proportions: 
The director observed that the two entities were not each owned and controlled by the same parent or individual 
and concluded that although some commonality existed between the two entities, implicitly complete common 
control must exist. The AAO has determined, however, that if one individual owns a majority interest in both the 
petitioner and the foreign entity, and controls both companies, then the companies will be deemed to be affiliates 
under the definition even if one entity or both entities have multiple owners. 
In this matter, it appears at first glance that the petitioner and the foreign entity may be affiliates.' However, 
the petitioner has filed Internal Revenue Service (IRS) Forms 1120S, U.S. Income Tax Return for an 
I On appeal, counsel for the petitioner submits a letter and stock transfer forms transferring all outstanding 
shares of the foreign entity to the beneficiary. Counsel points out that the transfer was accomplished 
subsequent to filing the Form I-290B, Notice of Appeal. The AAO observes that a petitioner must establish 
S Corporation, in 2000, 2001, and 2002. To qualify as a subchapter S corporation, a corporation's 
shareholders must be individuals, estates, certain trusts, or certain tax-exempt organizations, and the 
corporation may not have any non-resident alien shareholders. See Internal Revenue Code, 5 1361(b)(1999). 
A corporation is not eligible to elect S corporation status if a foreign corporation or foreign individual owns it 
in any part. Accordingly, it appears that the U.S. entity is owned by one or more individuals residing within 
the United States rather than by a foreign individual. In this matter, the petitioner's claimed owner is the 
beneficiary, a non-resident foreign individual. This conflicting information has not been resolved. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). The conflicting evidence casts doubt on the qualifying relationship between the two entities. 
Beyond the decision of the director, the record does not contain an adequate description of the beneficiary's 
proposed duties for the petitioner. The director requested a more detailed description of the beneficiary's 
duties and the petitioner's organizational chart on May 15, 2003. The record does not contain a response to 
the director's request for evidence. The director requested additional evidence on June 24, 2003, including 
copies of the petitioner's California Forms DE-6, QuarterIy Wage Reports. In a response dated July 3, 2003, 
the petitioner provided its California Form DE-6 for the first quarter of 2003, the quarter in which the petition 
was filed. The California Form DE-6 shows that the petitioner employed four individuals including the 
beneficiary. The record does not contain information regarding the duties of each employee. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 3 204.5(i)(5). As the record does not contain the 
beneficiary's job description, other than that the beneficiary oversees daily management of the west coast 
office, the AAO cannot conclude that the beneficiary's proposed position is managerial or executive. The 
petitioner may have believed that its reference to the approval of the beneficiary's classification as an L-1A 
nonimrnigrant was sufficient to establish that the beneficiary's position was managerial or executive. 
However, each petition filing is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In 
making a determination of statutory eligibility, Citizenship and Immigration Services (CIS) is limited to the 
information contained in the record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). 
Moreover, 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 (Cornm. 1988). It would be absurd to suggest that Citizenship 
and Immigration Services 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). Further, the AAO's 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Moreover, a 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
Citizenship and Immigration requirements. See Matter of Izunznzi, 22 I&N Dec. 169, 176 (Assoc. Comm. 
1998). 
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 nonimrnigrant 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.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
In this matter the record does not establish that the beneficiary's proposed position would be managerial or 
executive. For this additional reason the petition will not be approved. 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 deniaI 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 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
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. 5 136 1. Here, that burden has not been met. 
ORDER: The appeal is dismissed.