dismissed EB-1C Case: Restaurant

(b)(6)
Date: MAR O 8 2013 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
lJ : ~ ~ Dep~e~( of::lf(;JJi_e~iJ ~dtY 
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 
FILE: 
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. § 1153(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 coneerning your case must be made. to that office, 
If you believe the law was inappropriately applied by us in r~ching 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 I-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, 
Ron Rosenberg · 
~Acting Chief, Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner subsequently flied a motion to reconsider. Although the director determined thafthe petitioner's 
submissions met the requirements of a motion to reopen and r~consider and thus warranted a full decision, the 
denial was affirmed. The matter is now before the Adininistrative Appeals Office {AAO) on appeal. The 
AAO will dismiss appeal. . 
The petitioner is a Washington corporation that operates two pizza restaurants and had a reported net income 
of $2228 at the time of ftling . . The petitioner is seeking to employ . the beneficiary as its president and chief 
operating officer {COO). Accordingly, the petitioner endeavors to classify the beneficiary as a multinational 
executive or manager pursuant to section 203{b)(l)(C) of the Immigration and Nationality Act (the Act), 
8 u.s.c. § 1153{b){l)(C). 
I. Procedural History 
The director based the original denial on ~o gr~unds of,inel~gibility. 
First, the director found that the petitioner provided inconsistent documentation regarding the foreign entity's 
ownership and thus failed to establish that the beneficiary's foreign and proposed employers have a qualifying 
relationship. In support of her finding, the director pointed to inconsistencies with regard to the ownership of 
· both the foreign and U.S. entities. While the director ultimately determined that the petitioner submitted 
sufficient information to resolve the inconsistency regarding the foreign entity's ownership, she did not ·make 
a similar finding with regard to the petitioner's ownership. Specifically, the director noted that while the 
petitioner claimed to be a wholly-owned subsidiary of the foreign entity, the petitioner's corporate tax returns 
identified the beneficiary as owner of all outstanding stock. 
. The second 
ground for denial was based on the · finding that the petitioner failed to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. 
The petitioner filed a motion. On motion, counsel addressed both grounds of ineligibility and provided 
additional documentation regarding ownership of the petitioning entity. Counsel also provided information 
regarding the beneficiary's propo'sed position with the U.S. entity. 
In the ultimate decision, the director granted the motion alid · affirmed her original decision, adding two 
additional grounds for denial. Namely, the director determined that the petitioner failed to establish eligibility 
based on the following statutory grounds: 1) the petitioner failed to resolve inconsistencies regarding its 
ownership and therefore failed to establish that it has a qualifying relationship with the beneficiary's foreign 
employer; and 2) the petitioner failed to establish that the beneficiary was employed abroad in a qualifying 
managerial or executive capacity. Additionally, relying on the common law defmition of the term 
"employee," the director determined 
that the petitioner failed to e~tablish .that the beneficiary was an 
employee of the foreign entity and that he would be an employee of the U.S. petitioner. 
On appeal, counsel submits a brief disputing each ground that setVed as a basis for denial. 
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D. TheLaw 
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 year~ 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 ctintinue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. · 
J 
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 theUnited•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)(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. 
ill. Discussion 
A. Qualifying Relationship 
The first ground of eligibility to be addressed is whether . the petitioner submitted sufficient documentation to 
establish that it .has a qualifying relationship with the beneficiary's foreign employer as required by 8 
C.F.R. § 
204.5G)(3)(i)(C). To establish a "qualifying relationship" under the Act and the regulations, the petitioner 
. must show that the bene~ciary'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)(1)(C) of the Act, 8 U.S.C. § 1153(b)(1)(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: 
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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 arid 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 ent.ity; 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 the United States and foreign entities. 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 petitio~, 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. 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 present matter, the record contains the petitioner's articles of incorporation, a stock certificate, stock 
ledger, a: subscription agreement, and a letter from the president of the beneficiary's foreign employer 
indicating that the foreign entity is the sole owner of the U.S. petitioner. 
On March 11, 2009, the director issued a request for additional evidence (RFE) in which he made note of 
various anomalies regarding the ownership of both the foreign and petitioning entities. Accordingly, the 
director instructed the petitioner to provide evidence resolving these anomalies and establishing that the 
beneficiary's employer abroad and his proposed U.S. employer have a qualifying relationship. 
The petitioner responded 
with information and further documentation in an attempt to resolve the 
inconsistency regarding the foreign entity's ownership. With regard to inconsistencies in the petitioner's tax 
returns concerning the petitioner's ownership, the petitioner · provided amended tax returns and · a letter from 
(b)(6)PageS 
the company accountant, claiming that the-petitioner's tax returns from 2004 to 2007, in which the beneficiary 
was claimed as the petitioner's owner, were incorrect. . 
In a decision dated February 18, 2010, the director concluded -that the petitioner provided adequate supporting 
evidence to resolve the inconsistencies previously cited with regard to the foreign entity's ownership.1 
However, the director found that the evidence submitted .to resrilve the discrepancy regarding the petitioner's 
ownership was not sufficient and denied the petition on the basis of this initial finding. In the subsequent 
denial, dated June 28, 2010, the director reiterated the previous findings and addressed the evidence that the 
petitioner previously submitted atong with the motion to reopen and reconsider. In his latest decision, the 
director piaced considerable emphasis on the petitioner's failure to provide bank records establishing that the 
foreign entity paid $3,600 for the petitioner's stock as was claimed in a document titled "Stock Subscription." 
Given the fact that the petitioner created considerable inconsistencies regarding its ownership by submitting 
tax returns in which the beneficiary was identified as the petitioner's sole owner, the AAO finds that the 
director's decision was justified. 
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). Necessarily, independent and objective evidence would be evidence that is contemporaneous 
with the event to be proven and existent at the time of the director's notice. 
The submission of stock' certificates, stock ledgers, statements from .company officers, and subscription 
agreements would be sufficient to establish the elements of ownership and control under ordinary 
circumstances. However, given the evidence that contradicts the petitioner's original ownership claim, the 
petitioner must submit objective documentation to clarify the actual ownership of the petitioning company.· 
See id. 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. As 
noted by the director, evidence of this nature would include documentation of monies, property, or other 
consideration furnished to the entity in exchange for stock ownership. 
On appeal, counsel defends the petitioner's failure to provide bank documents showing the requisite fund 
transfer, stating. that due to the seven years that have passed since the ~ate the relevant bank statement was 
issued, the petitioner would have to overcome considerable obstacles to obtain evidence showing the foreign 
entity's payment of funds as consideration for the petitioner's sto~k . . However, counsel provides contradictory 
statements with regard to the retrieval of the required bank records. On the one hand counsel asserts that any 
bank records that date back beyond a seven-year period are "unobtainable." However, counsel goes on to 
state that the passage of seven years' time would require banks to search their archives to produce the outdated 
bank records. Counsel's latter statement indicates that;while the petitioner would have to go to great lengths 
· 1 The AAO notes further that the ownership of the foreign entity is not of primary concern in light of the 
petitioner's claim that it is the 'subsidiary of the foreign parent entity. The focus in a claimed parent­
subsidiary relationship ·is to determine .the ownership of the claimed subsidiary, i.e., the petitioner, which 
should corroborate the claim that the foreign entity is the petitioner's majority. shareholder. 
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to obtain the required documents, such documents are not, in fact, "unobtainable," but rather would require 
greater effort on the part of the petitioner. 
The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
§ 103.2(b)(2)(i). If a required document does not exist or cannot be obtained, the petitioner must demonstrate 
this .and submit secondary evidence pertinent to the facts at issue. /d. Where a record does not exist, the 
petitioner must submit an original written statement from the relevant government or other authority 
establishing this as fact. The statement must indicate the reason the record does not exist and indicate 
whether similar records for the time and place are available. 8 C.F.R. § 103.2(b)(2)(ii). 
In reviewing the record, the AAO finds no evidence to suggest that the petitioner made any effort to contact 
bank officials; The unsupported statements of counsel on appeal or in a motion are not evidence and thus are 
not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183,188-89 n.6 (1984); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Additionally, counsel interprets the director's decisions as being inconsistent on the issue of a qualifying 
relationship, claiming that the director deemed .the issue to have been resolved in the February 18, 2010 
decision, but later raised the issue again. Counsel's interpretation of the director's statements is incorrect. 
While the director admittedly used the phrase "this issue appears to have been resolved," in discussing 
ownership and control, this phrase was used in reference to ownership of the foreign entity . . The subsequent 
paragraph in the director's February 2010 decision went on to discuss the ownership of the U.S. entity, where 
the director found additional discrepancies. In the director's June 28, 2010 decision, the director did not 
revisit the issue of the foreign entity's ownership since any anomalies previously discussed in this regard were 
deemed to have been resolved. The director did, however, maintain her position regarding prior findings. 
concerning the ownership of the U.S. entity. 
The AAO finds no contradiction on the part of the director in bifurcating what' are clearly two separate 
issues-one issue dealing with the ownership of the foreign entity and the other issue dealing with the 
ownership of the U.S. petitioner-,-and finding that the anomalies concerning the first issue had been resolved, 
while those concerning the latter issue were not. 
In summary, the record shows that the petitioner provided inconsistent documentation with regard to the 
ownership of the U.S; entity. While the petitioner has maintained the claim and has provided company­
generated documents indicating that the beneficiary's foreign employer is the owner of the U.S. entity, the 
petitioner's Initially submitted tax return identified the beneficiary as the company's sole owner. As discussed 
above, the petitioner has provided no evidence to show that any effort has been made to obtain the bank 
documents necessary to resolve the considerable inconsistency and establish the petitioner's ownership. 
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 
of Treasure Craft of California, 14 I&N Dec .. 190 (Reg. Comm. 1972)). 
Accordingly, in light of the petitioner's failure to provide objective evidence e~tablishing who in fact owns the 
petitioning U.S. entity, the petitioner has not met the burden of proof to establish a qualifying relationship. 
See 8 C.F.R. § 204.5G)(3)(i)(C). 
(b)(6)Page 7 
B. Managerial or Executive Capacity 
The next issue to be addressed ·is the beneficiary's position with the foreign entity and whether that position 
was in a primarily 
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 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, 
(b)(6)Page 8 
In support of the Form 1-140, the beneficiary submitted a letter dated July 10, 2008 in which he discussed his 
employment with the foreign entity. The beneficiary signed the letter in his capacity as the petitioner's 
president and COO. The beneficiary explained that from February 1998 until January 2001 he was employed 
as the foreign entity's president. He further noted that due to an accident he had in the year 2000, he was on 
. sick leave until the spring of 2001 when he acquired a new business and subsequently assumed a position as 
head of the marketing and development division of the purchased entity. · 
In the March 11, 2009 RFE, the director instructed the petitioner to provide a detailed description of the 
beneficiary's employment abroad, specifying the beneficiary's duties and assigning a percentage of time to 
each one. The petitioner was also asked to submit the foreign entity's organizational chart corresponding with 
the benefidary's employment abroad, including all departments, teams, and employees and depicting an 
illustration of the foreign entity's organizational hierarchy. 
In response, the petitioner described the beneficiary's position as general manager Of the foreign entity's pizza 
restaurant. In a separate submission, the petitioner also provided a description of the beneficiary's position as 
head of the marketing and development division of the entity that the beneficiary's foreign employer acquired 
prior to the beneficiary's arrival to work for the U.S. entity. As the director included both job descriptions in· 
the February 2010 and the June 2010 decisions, the AAO need not restate the same information at this time. 
The petitioner also provided a copy of the foreign entity's organizational hierarchy, which depicts the 
beneficiary's position as the restaurant's general manager. The chart shows the beneficiary at the top of the 
. hierarchy with a restaurant manager and a supplies and bookkeeping employee as his two immediate 
subordinates. The remainder of the hierarchy included cooks, food preparation and delivery staff, and one 
cu·stomer care employee. All employees at this level are depicted as being the direct subordinates of the 
restaurant manager. 
After reviewing the petitioner's submissions, the director determined that neither of the beneficiary's positions 
. I 
abroad fit the definition of qualifying managerial or executive capacity. In the February 2010 decision, the 
director questioned the reliability of one aspect of the beneficiary's job description. Namely, the director 
found that the petitioner's claim that 40% of the beneficiary's time was allocated to analyzing revenue and 
income reports lacked credibility. In the June 2010 decision, the director addressed oounsel's objection to the 
adverse finding. The director noted that, while the service's opinion regarding business matters will not serve 
to substitute for the opinion of the petitioner, the. director may use his discretionary authority to weigh the. 
evidentiary value and overall credibility of the petitioner's statements. The director advised the petitioner that 
U.S. Citizenship and Immigration Services (USCIS) is not obligated to accept the petitioner's statements when 
they are not corroborated by other evidence on record. 
On appeal, counsel again disputes the director's finding by restating, verbatim, the same argument she initially 
put forth on motion. However, counsel's argument does not address the core of the director's analysis nor 
does it dispel the director's doubt as to the credibility of the information that was being offered. 
Counsel also restates the previously provided description of the beneficiary's foreign employment and asserts 
that the organizational chart that was submitted in the RFE response clearly identified the beneficiary as the 
foreign entity's general manager. Counsel points out that the AAO has previously considered the complexity 
of an entity's organizational hierarchy and the beneficiar}r's position within that structure in order to determine 
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whether a position is within a qualifying managerial or executive capacity. Counsel's argument, however, 
relies heavily on one element without duly taking into account the fact that neither the beneficiary's title nor 
his elevated position within the foreign entity's organizational hierarchy is sufficient by itself to establish the 
beneficiary's employment in a managerial or executive capacity. Published case law strongly supports 
USCIS's analysis of the actual job duties as an indicator of the bene.ficiary's employment capacity. See Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Additionally, the AAO finds that a comprehensive analysis cannot exclude consideration of the nature of the 
business that employed the beneficiary. 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. Family Inc. v. USCIS, 
469 F.3d 1313 (9th Cir. 2006); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a 
company may be especially relevant when USCIS notes discrepancies in the record and fails to believe that 
the facts asserted are true. Systronics, 153 F. Supp. 2d at 15. 
Here, the foreign entity was a pizza restaurant in which thirteen out of a claimed sixteen employees, thus an 
overwhelming majority, were involved in food preparation and delivery. Given the foreign entity's staffing, it 
is unclear who was providing the beneficiary with the revenue and income reports, which he purportedly 
analyzed for 16 hours per week, or two full workdays. The petitioner also failed to identify the specific tasks 
the beneficiary carried out in establishing goals and policies, which consumed 7% of the beneficiary's time, or 
directing and coordinating sales and pricing, which consumed another 8% of the beneficiary's. Although the 
petitioner expressly stated that the beneficiary spent a total of 40% of his time conducting market research 
and carrying out other marketing-related activities, the director properly determined that such job duties 
cannot be deemed as time spent in a managerial or executive capacity. 
When the beneficiary's overly broad and deficient job description is considered in the context of the described 
retail pizza restaurant operation, the AAO concludes that a favorable finding is not warranted. Counsel's 
assertion that the beneficiary was managing a 15-person staff and was responsible for "managing" the foreign 
entity's finances is inconsistent with the organizational chart that was submitted in response to the 
RFE. That 
chart clearly separated the beneficiary's position from the remainder of the restaurant staff by placing a 
restaurant manager squarely between the non-professional staff and the beneficiary . 
. Moreover, even if the AAO were to assume that counsel's assertions are factually correct, the petitioner would 
need to establish how supervising a non-managerial and non-professional staff falls within the parameters of 
the definition for managerial or executive capacity. As previously pointed out by the director, merely 
establishing that the beneficiary was not engaged in food service and preparation does not establish that the 
beneficiary primarily performed tasks within a qualifying capacity. See sections 101(a)(44)(A) and (B) ofthe 
Act. The petitioner failed to explain who, if not the beneficiary, performed the company's various 
administrative tasks that would have been essential for' the foreign entity's continued daily operation. 
Furthermore, even if the AAO were to disregard the director's adverse finding concerning the time attributed 
to analyzing revenue and income reports, the beneficiary's position abroad would still fall short of meeting the 
criteria for managerial or execuf.ive capacity. The record simply does not identify with specificity the 
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. . 
beneficiary's managerial or executive tasks nor does it establish that the beneficiary's time was primaiily 
allocated to the performance of such tasks. 
As required by section 101(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 aecount the reasonable. 
needs of the organization, in light of the overall purpose and stage of development of the organization. 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 explained how the reasonable needs of the petitioning enterprise 
justify the beneficiary's performance of non-managerial or non-executive duties. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter ofSoffici, 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 
101(a)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may justify 
a beneficiary who allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, 
but those needs will not excuse a beneficiary who spends the majority of his or her time on non-qualifying 
duties. 
The regulation at 8 C.F.R. § 204.5(j)(3)(i)(B) states that the petitioner must establish that the beneficiary was 
employed abroad in a qualifying managerial or executive capacity for at least one out of the three years prior 
to his entry to the United States as a nonimmigrant to work for the same employer. Based on the evidence of 
record, the AAO cannot conclude that the petitioner satisfied the burden of proof. 
C. Employer-Employee Relationship 
The AAO will now address the remaining grounds for denial, which focused on whether or not the 
beneficiary was an employee of the foreign entity and whether he would serve as an employee of the U.S. 
petitioner. 
Although section 101(a)(44) of the Act and the related regulations make use of the terms "employee" and 
"employer," these terms are not defined either by statute or regulation. As mentioned by the director, the U.S. 
Supreme Court expects agencies to use common law definitions when certain terms, such as "employee" and 
"employer," are not expressly defined by Congress via statutory provisions. See Nationwide Mutual Ins. Co. 
v. Darden, 503 U.S. 318, 323-324 (1992) (hereinafter "Darden"); see also Restatement (Second) of Agency§ 
220(2) (1958); Clackamas Gastroenterology Associates, P.C. v. Wells, ~38 U.S. 440 (2003) (hereinafter 
"Clackamas"). 
However, as a preliminary step, it is critical to first review how these terms are used in the statute and then to 
determine whether the terms are outcome determinative. Statutory interpretation begins with the language of 
the statute itself. Penn. Dept. of Public Welfare v. Davenport, 495 U.S. 552 (1990). 
(b)(6)
Page 11 
' 
While the statute uses the term "employee" in the definition of manager or.exec1:1tive, the AAO notes that the 
key elemen~s of the definitions fo~us on the duties of the employee and. not the person's employment status. 
See sec. 101(a)(44}(A} and (B) of the Act. The AAO concludes, therefore, that it is most appropriate to 
examine the beneficiary's eligibility in the context of his or' her claimed managerial or executive duties, 
looking at the statutory definition as a whole.2 
Here, the director's use of the employer-employee issue appears to be an attempt to address the marginality of 
the petitioning business or the use .of the corporate forum for immigration purposes. While not irrelevant, the 
employer-employee issue is not the optimal means of addressing these concerns. Instead, as in the present 
case, the director should focus on the fundamental eligibility requirements. Marginality is best addressed by 
the regulation that requires the petitioner to establish its ability to pay. See 8 C.P.R. § 204.5(g)(2). The 
functions of the beneficiary as a manager or executive, however, are best viewed through the prism of the 
definitions of managerial and/or executive capacity at sectiol}S 101(a)(44}(A) and (B) of the Act. 
The one area where the status of the beneficiary as an employee may be critical is the enabling statute at 
section 203(b)(1)(C) of the Act; which requires that the beneficiary has been "employed for at least one year" 
by a qualifying entity abroad. In this regard, the beneficiary must be an actual employee of the foreign entity 
and not a contractor or consultant. · 
In the present case, the record doe~ not indicate that the beneficiary worked in the capacity of either a 
contractor or a consultant during his period if employment abroad. Therefore, the beneficiary's employer­
employee relationship with the foreigit entity is not essential to matters concerning the petitioner's eligibility. 
The above discussion provides a detailed analy~is of the eligibility criteria enumeratc;:d at 8 C.P.R. 
§ 204.5G)(3)(i) and explains how the petitionerfalls short of meeting those requirements. 
As the record indicates that the beneficiary was working directly for the foreign entity arid now works directly · 
for the petitioning entity, the decision of the director will be withdrawn as it relates to the beneficiary's status 
as an employee. The AAO finds no need to further explore the issue of an employer,-employee relations,hip 
between the beneficiary and its foreign and U.S. employers. 
ill. Conclusion 
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 
2 The AAO recogniZes that there is some tension between the terms "employee" and "executive." In Matter 
of Aphrodite Investments Ltd., the INS Commissioner expre~ed concern that adopting th(: word "employee" 
would exclude "some of the very people that the statute intends to benefit: executives." 17 I&N Dec. 530, 531 
(Comm'r 1980); but see Clackamas, 538 U.S. at 440. This tension would lead the AAO to carefully consider 
the statutory definitions in their entirety, including the four critical subparagraphs of each definition. If 
USCIS were to focus· solely on an employer-employee analysis, without considering the constituent elements 
of the statutory definitions, the inquiry would be incomplete and rould lead to the denial of legitimate 
executives. 
(b)(6)
Page 12 
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.