dismissed EB-1C Case: Real Estate

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac\ 
PUBLIC COpy 
U.S. Department of Homeland Security 
V.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
21) Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529·2090 
u.s. Citizenship 
c.nd Immigration 
Services 
Date: 
JUL 06 2011 
Office: NEBRASKA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § lI53(b)(I)(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 de"ided your case by filing a Form 1·290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware thai 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reqler,. 
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Perry ew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based 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 that claims to be engaged in real 
estate consulting and development. It seeks to employ the beneficiary as its chief executive officer 
and president. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(I)(C) of the Immigration and Nationality 
Act (the Act), 8 U.S.c. § IIS3(b)(I)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner had not established that the 
beneficiary will be employed by the United States entity in a primarily managerial or executive 
capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner contends that the 
director's decision is in error. Counsel submits a brief and additional evidence on appeal. 
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. 
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 203(b)(I )(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 
Page 3 
a managerial or executive capacity. Such a statement must clearly describe the duties to be 
performed by the alien. See 8 C.F.R. § 204.50)(5). 
At issue in the present matter is whether the beneficiary would be employed In a primarily 
managerial or executive capacity in the United States. 
Section IOI(a)(44)(A) of the Act, 8 U.S.C. § I 10 I (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 if no 
other employee i~ 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 IOI(a)(44)(B) of the Act, 8 U.S.C. § IIOI(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 a letter dated April 22, 2008 submitted with the Form 1-140, Immigrant Petition for Alien Worker, 
the petitioner provided the following description of the beneficiary's responsibilities in the U.S. 
company: 
that is currently Illv'Ol1/eo 
projects in the CIS 
Republics) .... 
most expensIve de1{el,~plnellt 
of Independent States, ex-Soviet Union 
As the company, the beneficiary] was responsible for 
setting up ultimately the contracting of several U.S. firms 
that are now responsible for different stages of the projects' development .... 
Essentially, [the beneficiary] has been the principal representative and consultant of 
our Russian clients in the United States for the past year. After the initial stage of 
contracting the above-mentioned design teams, [the beneficiary] continues to playa 
major role as a coordinator and a consultant until the projects are completed. 
The petitioner added that the beneficiary "continues to direct the overall operations and growth" of 
the U.S. company, and that the beneficiary "has been the primary executive in the United States 
who's been in charge of coordination, management and input on all the projects" of the 
•••••• and_. In the letter, the petitioner included descriptions of the 
projects and the responsibilities of the beneficiary and "his teanl" at the U.S. company (see, e.g., 
pages 8-20 of the petitioner's April 22, 2008 letter). 
The petitioner stated in the Form 1-140 that it has six employees but did not submit along with the 
Form 1-140 any information regarding the U.S. company's other employees. 
On February 5, 2009, the director issued a request for further evidence (RFE) asking the petitioner to 
provide, among other things: a copy of the U.S. company's organizational chart, descriptions of the 
duties performed by the company's employees, the company's Form 941 for the latest quarter of 
2008, all Forms W-2 issued in 2008, and the company's federal incone tax return for 2007. 
In response, the petitioner submitted an organizational chart which shows the beneficiary at the top 
of the hierarchy with an assistant and four direct reports: 
• 
• • 
• 
Page 5 
According to the chart, the vice president of business development supervises a project manager, two 
project coordinators, and an IT administrator, all unnamed . Director 
supervise~ and and 
_ has under his direction and two unnamed junior 
accountants; and the Regional Director, East Coast, supervises a project manager and two "analytic" 
positions, all unnamed contractors. 
The petitioner submitted its Form 941 for the last quarter of 2008, which shows that it had two 
employees and paid $27,000 in wages, tips and compensation in that three-month period. The 
~ovided 2008 W-2 Forms for only two employees, the beneficiary and 
_. No information was provided with respect to remuneration of contractors. 
The response to the RFE included a description of the position of president/CEO, which states: 
The main goal of the President/CEO of the [U.S. company] is to provide executive 
leadership to build and grow the business on two continents and beyond to the new 
markets. Responsibility of the CEO is to direct the overall operations of the 
[company] and its branches in th~ USA and other countries (Russia and CIS), select 
properties to acquire/develop, define corporate strategy and promote it through 
leadership. In addition, CEO and president builds lasting relationships with partners, 
that include developers, property owners, profe~sional service companies to ensure 
the company retains level of $800,000 in annual revenue and to drive the company to 
next level of business excellence. 
President/CEO mission is to: 
I. Be the face and voice of [the company] as he oversees business development, 
ongoing business activities and marketingiPR campaigns targeting clients, 
partners, local authorities and prospects. 
2. Oversee day-to-day operations and P&L goal; expertly manage [the 
company's 1 properties and projects in the USA and overseas. 
The petitioner also submitted job descriptions for the following positions: chief financial officer, 
regional director, project manager, real estate & construction, project coordinator, executive 
administrative assistant, IT administrator, and real estate research assuciate. 
On April 21, 2009, the director denied the petition, concluding that the petitioner had not established 
that the beneficiary would be employed by the U.S. entity in a primarily managerial or executive 
capacity. Specifically, the director fourld that while the record indicates that the beneficiary 
performs some executive duties in the U.S. company, it does not demonstrate that the beneficiary 
primarily performs executive duties. The director observed that "the petitioner acknowledged that 
the beneficiary's 'main focus has always been in providing consulting services' [and] that it is 
essential for the beneficiary to remain in the United States 'to provide his consulting services in 
choosing and securing deals with U. S. urban design teams. '" As further evidence that the beneficiary 
primarily works in the United States as a consultant, the director referred to a service agreement 
Page 6 
between the petitioner and one of its clients which "names the beneficiary as the consultant who 
would render professional project management services." 
The director further noted that the petitioner's tax documentation for 2008 and 2007 does not support 
the petitioner's claim that it has nine employees as shown on its organizational chart. The director 
found the evidence indicates that the petitioner's only employee other than the beneficiary serves as 
its east coast regional director and lives and works in Massachusetts, and, therefore, "on the west 
coast [the beneficiary] alone performs the task necessary to provide consulting services to the 
petitioner's clients and further indicates this to be his primary duties in the United States." 
On appeal, counsel contends that the beneficiary's duties "are of executive capacity" and that he is 
not a consultant for the petitioner. Counsel claims that the words "consulting" and "consultant" in 
the petition refer to the work of the u.S. company, not of the beneficiary. Rather, counsel asserts, 
the beneficiary "has previously or is currently managing the design and architectural teams" from a 
number of U.S. companies hired for the real-estate development projects in Russia in which the 
petitioner is involved. Counsel claims: 
Besides the work [the beneficiary] performs as an executive in charge of multiple real 
estate projects developed by architectural and design firms, he is also in charge of 
facilitating all the work between the American contractors and their Russian 
employers by planning and arranging meetings and telephonic conferences, ensuring 
deadlines are met and projects are completed, planning the budgets, compensation for 
the cultural differences and complexities that might face those involved in this large 
scale Real Estate project, providing leadership, making decisions for the company, 
and advising its employees and clients. 
Counsel submits a "master chart" of design and architectural project teams purportedly supervised 
by the beneficiary, listing ten companies with two to six individuals in each company. Counsel 
contends that the director "misconstrued the evidence regarding the beneficiary's duties," and that the 
beneficiary "does not provide any consulting services himself, rather he possesses the executive 
power to manage the company that does." 
With respect to other employees within the U.S. company itself, counsel claims that the director 
wrongly concluded that the company only has one or two other employees aside from the 
beneficiary. Counsel claims that the company "currently has a staff of eight," including: 
• 
• 
• 
• 
• • 
• 
In addition to the 2008 Fonns W-2 for the 
counsel submitted Fonns 1099-MISC for 
Counsel stated that the company as 
compensation for his work. Counsel also submitted the company's bank statements for January 2008 
through April 2009, which counsel claims show "moneys transferred" to the staff members listed. 
Upon review, the AAO finds that the petitioner has failed to establish at the time the petition was 
filed that the beneficiary would be employed in a primarily executive or managerial capacity in the 
United States. 
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. § 204.50)(5). The petitioner's description 
of the job duties must clearly describe the duties to be perfonned by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. Beyond the required 
description of the job duties, the U.S. Citizenship and Immigration Services (USCrS) reviews the 
totality of the record when examining the claimed managerial or executive capacity of a beneficiary, 
including the petitioner's organizational structure, the duties of the beneficiary'S subordinate 
employees, the presence of other employees to relieve the beneficiary from perfonning operational 
duties, the nature ofthe petitioner's business, and any other factors that will contribute to a complete 
understanding of a beneficiary's actual duties and role in a business. 
Further, it is noted that the definitions of executive and managerial capacity each have two parts. 
First, the petitioner must show that the beneficiary performs the high-level responsibilities that are 
specified in the definitions. Second, the petitioner must prove that the beneficiary primarily 
perfonns these specified responsibilities and does not spend a majority of his or her time on day-to­
day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 
30, 1991). Whether the beneficiary is a managerial or executive employee turns on whether the 
petitioner has sustained its burden of proving that the beneficiary'S duties are "primarily" managerial 
or executive. See sections I 01 (a)(44)(A) and (B) of the Act. 
Counsel claims on appeal that the beneficiary'S role within the U.S. company are of an "executive 
capacity," and that the director erred in concluding that the beneficiary's duties are those of a 
consultant. The AAO does not find thiit the evidence supports counsel's claim. To the contrary, the 
job descriptions provided by the petitioner expressly describe the beneficiary as a consultant. For 
example, in the April 22, 2008 letter, the petitioner stated that the beneficiary "has been the principal 
representative and consultant of our Russian clients in the United States for the past year" and that, 
after the initial stage of contracting the design teams for each project, the beneficiary "continues to 
playa major role as a coordinator and a consultant until the projects are completed." 
Moreover, in response to the RFE, the petitioner provided a job description stating that the 
responsibility of the CEO is "to direct the overall operations of the [company] and its branches in the 
USA and other countries"; to "select properties to acquire/develop, define corporate strategy and 
promote it through leadership"; to "uuild lasting relationships with partners, that include developers, 
property owners, professional service companies"; to "be the face and voice of [the company] as he 
oversees business development, ongoing business activities and marketinglPR campaigns targeting 
clients, partners, local authorities and prospects"; to "[0 ]versee day-to-day operations and P&L 
goal"; and to "expertly manage [the company's] properties and projects in the USA and overseas." 
These phrases describe the beneficiary's duties in vague and nonspecific terms that fail to 
demonstrate what the beneficiary does on a day-to-day basis. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary'S daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary'S activities in the course of his daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), ajJ'd, 905 F.2d 41 (2d. Cir. 1990). 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. 
The AAO notes that in the April 22, 2008 letter, the petitioner did describe in some detail the U.S. 
company's role and responsibilities within the real estate development projects. However, the 
responsibilities listed were attributed to the beneficiary "and his team" generally, without specifYing 
which individual was responsible for which task (see, e.g., pp. 8-10 of the April 22, 2008 letter, 
describing the petitioner's involvement in the '_" project). The responsibilities listed therein 
include many which would be categorized as the day-to-day operational tasks of a consultancy and, 
therefore, may not be considered managerial or executive in nature. If the beneficiary actually 
performs these non-qualifying tasks himself rather than directs or manages them, he is performing 
tasks necessary to provide a service or product, and as such, time spent on such tasks will not be 
considered time spent functioning in a managerial or executive capacity. 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 o/Church Scientology Int'!., 19 I&N Dec. 593, 604 (Comrn. 
1988). 
In addition, the evidence of record presents an inconsistent picture of the company's staffing and 
reveals a lack of subordinate employees who would relieve the bt'neficiary from performing non­
qualifying tasks. 
On the Form 1-140, the petitioner claimed that it has six employees, although no evidence relating to 
the company's staffing was submitted with the initial petition. The organizational chart submitted in 
response to the RFE, on the other hand, identifies by name eight other employees in addition to the 
beneficiary and also indicates that there are additional positions in the corporate hierarchy that may 
or may not be filled by contractors. However, the petitioner's IRS Form 941 for the last quarter of 
2008 indicates that the company only has two employees on and the submitted 
Forms W-2 for 2008 for only two employees, 
There were no explanations for these inconsistencies relating to the petitioner's personnel in the 
record before the director. 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). Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). 
The AAO notes counsel's contention on appeal that the director misinterpreted the information 
relating to the petitioner's staff in concluding that there is only one other employee in addition to the 
beneficiary. However, the AAO notes that a beneficiary's eligibility for the benefit sought must be 
established based on the facts that exist at the time of filing; a petition cannot be approved at a future 
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). In this instance, the relevant staffing composition for 
the U.S. company is that which was in existence at the time the petition was filed in April 2008. 
Based on the record as presently constituted, it appears that, at the time of filing, the petitioner had 
no more than one or two employees in addition to the beneficiary. 
Counsel claims on appeal that the petitioner has a staff of eight, but he lists only seven individuals. 
Counsel resubmits Forms W-2 for 2008 for the beneficiary and Counsel asserts 
that the chief financial officer chooses to receive company shares as compensation, but counsel 
offers no evidence to support this claim. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter o.lTreasure Craft of California, 14 I&N Dec. 
190 (Reg. Comm. 1972)) 
listed on the organizational chart a ••••••••• 
1099-MISC, Miscellaneous Income, in their names for the year 2008. It is noted that counsel offers 
no explanation as to the status of their employment or why their compensation would be reported on 
Forms 1099-MISC rather than Forms W-2. Counsel claims that payments made to these individuals 
are duly reflected on the company's bank statements, also submitted on appeal. If the bank 
statements in fact reflect all payments of wages to the petitioner's staff, as counsel claims, it is noted 
that the bank statements for , March, and April of 2008 only show payments to ••• 
and Payments for thl;: remaining persons listed as part of the 
petitioner's staff did not appear on the statements until later on in the year. Thus, at best, the record 
shows that other than the beneficiary, the only~ in the petitioner's employ at the time the 
petition was filed were~d_ 
It is noted that the petitioner submitted job descriptions for the positions of pre~ 
director, presumably reflecting the job of and ____ 
However, no description was provided for position of planning director. Thus, there 
is no information in the record . assuming he was on the 
petitioner's staff along with the beneficiary at the time the petition was filed. 
Without further information, it remains unclear how the day-ta-day operational tasks of the company 
were apportioned among the beneficiary and the two other employees whose employment by the 
company at the filing of the petition is actually supported by the record. Again, if the beneficiary 
actually performs the non-qualifying tasks himself rather than directs or manages them, he is 
performing tasks necessary to provide a service or product, and as such, time spent on such tasks 
will not be considered time spent functioning in a managerial or executive capacity. 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 
10 I (a)(44)(A) and (8) of the Act; see also Matter of Church Scientology Int'I., 19 I&N Dec. at 604. 
Federal courts have generally agreed that USCIS "may properly con~ider an organization'S small size 
as one factor in assessing whether its operations are substantial enough to support a manager." 
Family Inc. v. u.s. Citizenship and Immigration Services, 469 F. 3d 1313, 1316 (9 Cir. 2006) (citing 
with approval Republic ofTranskei 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 curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS 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, 15 (D.D.C. 2001). 
As required by section IOI(a)(44)(C) of the Act, if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, USCIS must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. However, to establish that the reasonable needs of the organization justify the 
beneficiary'S job duties, the petitioner must specifically articulate why those needs are reasonable in 
light of its overall purpose and stage of development. In the present matter, the petitioner has not 
sufficiently explained how the reasonable needs of the U.S. company, particularly its non­
managerial, day-to-day functions, are met through the beneficiary and at most two other employees. 
Again, on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter ofSojjici, 22 I&N Dec. at 165. 
Furthermore, the reasonable needs of the petitioner will not supersede the requirement that the 
beneficiary be "primarily" employed in a managerial or executive capacity as required by the statute. 
See sections IOI(a)(44)(A) and (8) of the Act, 8 U.S.C. § 1101(a)(44). As discussed above, the 
petitioner has not established this essential element of eligibility. 
The AAO notes that, on appeal, counsel submitted a chart listing the design and architectural project 
teams purportedly supervised by the beneficiary. However, the petitioner has presented no evidence 
that would explain the nature and scope of the beneficiary'S supervision over these individuals. 
Without documentary evidence to support its statements, the petitioner does not meet its burden of 
proof in these proceedings. MatterofSoffici, 22 I&N Dec. at 165. 
Page II 
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has 
failed to establish that the beneficiary would be employed in the United States in a primarily 
executive or managerial capacity. For that reason, the petition will be denied. 
Beyond the decision of the director, the AAO finds the evidence is insufficient to establish that the 
petitioner has a qualifying relationship with the beneficiary's foreign employer. In order to qualifY 
for this visa classification, the petitioner must establish that a qualifYing 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. See section 203(b)(1 )(C) ofth.: Act. 
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; 
(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. 
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 U.S. 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 (BIA 1986); 
Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa 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 Dec. at 595. 
In the April 22, 2008 lette~ the initial petition, the petitioner claimed that it is a 
wholly-owned subsidiary of_located in Russia. The petitioner submitted its 2006 tax 
return, Schedule K 1 of which indicates that the foreign entity owns 100% of its shares. The 
Page 12 
petitioner also submitted copies of a number of wire transfers from the foreign entity to the petitioner 
in 2006 and 2007. The first of these wire transfers, made on August 15, 2006, indicates that it was a 
transfer ofUS$50,000 in "payment for shares." However, the subsequent transfers only indicate that 
they were payments made per an addendum of an agent agreement, without further elaboration. No 
other evidence relating to the ownership of the U.S. company's shares were submitted. Again, the 
AAO must note that a beneficiary's eligibility for the benefit sought must be established based on the 
facts that exist at the time of filing. Matter of Katigbak, 14 I&N Dec. at 49. No evidence was 
submitted that would support a finding that, at the time the petition was filed in April 2008, the 
foreign entity had any ownership interest in the U.S. company. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing Marter of Treasure Craft o.f California, 
14 I&N Dec. 190 (Reg. Comm. 1972)). 
In the absence of further evidence definitively demonstrating that the foreign entity held ownership 
interest in the petitioner as claimed, the AAO finds the petitioner has failed to demonstrate that there 
exists a qualifYing relationship between the U.S. company and the beneficiary's foreign employer. 
For this additional reason, the petition will be denied. 
Finally, the AAO acknowledges that USeIS has previously approved an L-IA petition filed by the 
petitioner on behalf of the instant beneticiary. It must be noted that many 1-140 immigrant petitions 
are denied after USCIS approves prior nonimmigrant 1-129 L-I petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA uS v. US Dept. of Justice, 48 F. 
Supp. 2d 22; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103. Examining the consequences of 
an approved petition, there is a significant difference between a nonimmigrant L-I A visa 
classification, which allows an alien to enter the United States temporarily, and an immigrant E- \3 
visa petition, which permits an aliell to apply for permanent residence in the United States and, if 
granted, ultimately apply for naturalization as a United States citizen. Cf §§ 204 and 214 of the Act, 
8 U.S.C. §§ 1154 and 1184; see also § 316 ofthe Act, 8 U.S.C. § 1427. Because USC IS spends less 
time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant L­
IA petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; 
see also 8 C.F.R. § 214.2(l)(14)(i)(requiring no supporting documentation to file a petition to extend 
an L-IA petition's validity). Despite the previously approved petition, USCIS 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. Based on the lack of required evidence of eligibility 
in the current record, the AAO finds t.hat the director was justified in departing from the previous 
nonimmigrant petition approval by denying the instant petition. 
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 Stales, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aird. 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). When the AAO denies a petition 
on multiple alternative grounds, a plaintiff can succeed on a challenge only if it is shown that the 
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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. 
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. Here, 
that burden has not been met. Accordingly, the director's decision will be affirmed and the petition 
will be denied. 
ORDER: The appeal is dismissed.