dismissed EB-1C Case: Retail

data deleied to 
PeVm clearly unwammted 
hurria3 &personal privacy 
U.S. Department of TIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
u. s. Citizenship 
and Immigration 
IN RE: 
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: 
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. 
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Robert mmn, Ch~ef 
Administrative Appeals Off~ce 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a Texas corporation involved in the operation of retail stores. 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 petitioner 
based on three separate grounds of ineligibility: 1) the petitioner failed to establish its ownership and control 
and, therefore failed to establish that it has a qualifying relationship with the beneficiary's foreign employer; 
2) the petitioner failed to establish that the beneficiary would be employed in the United States in a 
managerial or executive capacity; and 3) the petitioner failed to provide sufficient evidence to establish that 
the beneficiary's foreign employer continues to do business. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his 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 fo 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 first issue in this proceeding is whether the petitioner has a qualifying relationship with the beneficiary's 
foreign employer. 
The regulation at 8 C.F.R. § 204.50)(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. 
Subsidialy 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. 
In support of the Form 1-140, the petitioner provided a letter dated August 15, 2005 claiming to be a wholly 
owned subsidiary of the beneficiary's foreign employer. In support of this claim, the petitioner provided a 
number of its corporate tax returns containing Schedules K, which indicate that the petitioner is 100% foreign 
owned, and supplemental Forms 5472, which identify the beneficiary's foreign employer as a foreign entity 
that owns at least 25% of the U.S. petitioner. 
On October 22,2005, the director issued a notice of intent to deny (NOID) indicating that the record does not 
clearly establish the petitioner's ownership. The director also indicated that documentation establishing a 
qualifying relationship with the foreign entity must include proof of capital contribution by the petitioner's 
owner(s). 
In response, counsel submitted a letter dated November 21, 2005 stating that the petitioner's tax returns, 
particularly Schedule K, adequately establish the petitioner's ownership. 
On December 20, 2005, the director denied the petition basing his decision, in part, on the petitioner's failure 
to properly document its ownership claim. The director addressed the lack of evidence in the form of 
negotiable instruments, including stock certificates, and the lack of proof of payment in exchange for the 
petitioner's stock. 
On appeal, counsel asserts that the instant matter warranted the issuance of a request for evidence (WE) and 
states that the director's failure to issue an WE shows noncompliance with 8 C.F.R. § 103.2(b)(8), which 
specifically discusses instances requiring the issuance of an WE. However, even if the director had 
committed a procedural error by failing to solicit further evidence, it is not clear what remedy would be 
appropriate beyond the appeal process itself. The petitioner has in fact supplemented the record on appeal, 
and therefore it would serve no useful purpose to remand the case simply to afford the petitioner the 
opportunity to supplement the record with new evidence. 
Page 4 
Additionally, the NOID and the RFE are similar in their effect. Namely, both notices inform the petitioner of 
insufficiencies, which, if left unaddressed, would lead to an adverse finding regarding the petitioner's overall 
eligibility. Counsel's main contention is that the RFE allows a response period of 12 weeks, or 84 days, while 
the NOID allows only a 30-day response period. However, there is no indication in the record to suggest that 
the director did not consider the supplemental evidence provided by the petitioner after submission of its 
response to the NOID. Furthermore, as previously indicated, the AAO provides a de novo review of the 
entire record once the matter is appealed. Therefore, the AAO cannot offer any better remedy aside from 
affording the petitioner full consideration of a11 of its submissions thus far. 
Counsel further argues that the director's analysis is erroneous and ignores the fact that the petitioner is a close 
corporation, which does not issue stock. While counsel's statement explains the reason for the lack of 
negotiable instruments, the AAO notes that all of the Schedule Ls submitted as part of the petitioner's 
corporate tax returns indicate some capital contribution by the owner of the U.S. entity, namely the issuance 
of $1,000 worth of common stock. Thus, despite the claim that the petitioner is a closely held corporation, 
the director's request for proof of capital contribution was reasonable. The mere fact that the petitioner's 
corporate tax documents identify the beneficiary's foreign employer as the owner of the petitioner merely 
shows that the petitioner has maintained a uniform claim regarding its ownership. It does not, however, 
establish any capital contribution by the claimed owner. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 
22 I&N Dec. 15 8, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
Furthermore, counsel's reference to state law and the petitioner's compliance therewith does not lead to the 
conclusion that the petitioner has established eligibility as required by the relevant regulatory provisions that 
govern matters concerning immigration benefits. Thus, while the petitioner may have met the state law 
requirements for filing the proper documentation for a closely held corporation, the issue of the petitioner's 
eligibility for the immigration benefit sought in this matter is governed by the regulations set forth in 8 C.F.R. 
9 204.5Cj). The director has concluded that the petitioner has failed to meet the requirements discussed in the 
relevant regulatory provisions. Based on the documentation submitted, the AAO supports the director's 
conclusion, which serves as the first basis for dismissal of this appeal. 
The second issue in this proceeding is whether the beneficiary would be employed in the United States in a 
managerial or executive capacity. 
Section 1 Ol(a)(#)(A) of the Act, 8 U.S.C. 9 1 101 (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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In the August 15, 2005 letter submitted in support of the Form 1-140, the petitioner submitted the following 
description of the beneficiary's proposed employment in the United States: 
Establish and approve policies and objectives of the parent and subsidiary operations in 
consultation with the parent company and management and in accordance with the charters. 
Approve [the] company budget and investment projects. 
Appoint the other members of the managing team and other officers. 
Approve public relation policies. 
Approve hiring of professional services. 
Confer with the management team and the company officials of the corporations to plan 
business objectives, to develop organizational policies to coordinate functions and 
operations between divisions and departments of the corporations, and to establish 
responsibilities and procedures of attaining objectives. 
Review activity reports and financial statements of all operations to determine progress and 
status in attaining objectives and revise objectives and plans in accordance with current 
conditions. 
Direct and coordinate formulation of financial programs to provide funding for new or 
continuing operations to maximize returns on investments, and to increase productivity of 
both [ofl the corporations. 
Plan and develop industrial, labor, and public relations policies designed to improve image 
of the group and relations with customers, employees, and public. 
Evaluate performance of executives for compliance with established policies and objectives 
of the group and contributions in attaining objectives. 
In the NOID, the director pointed out what she perceived as a discrepancy in the documentation submitted. 
Namely, the director discussed the fact the beneficiary's proposed position of president is currently filled by 
his son, who has also been identified as the petitioner's president by thes well as his own 
Form 1-140 petition. 
In response, counsel provides an adequate explanation for the perceived discrepancy. Namely, counsel stated 
that the beneficiary's son has assumed the position of the petitioner's president in the absence of the 
beneficiary, the claimed patriarch of both the U.S. and foreign entities. Counsel further stated that should the 
instant petition be granted, the beneficiary would then assume the position of president and that the 
petitioner's current president would then assume the subordinate position of vice-president. 
Nevertheless, the director concluded that the petitioner failed to provide sufficient evidence establishing that 
the beneficiary would be employed in a managerial or executive capacity. While the AAO concurs in the 
director's overall conclusion, it is noted that the director's underlying reasoning is flawed. Despite the 
questions that might have arisemregarding the beneficiary's son's eligibility to be classified as a multinational 
manager or executive, this issue is one that is part of a separate record of proceeding and must, therefore be 
addressed separately from the matter at hand. 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. 4 204.5(j)(5). 
Accordingly, a proper determination as to the beneficiary's eligibility for the immigration benefit sought must 
include an analysis of the position description provided by the petitioner. The actual duties themselves reveal 
the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), 
am, 905 F.2d 41 (2d. Cir. 1990). 
In the instant matter, the description of the beneficiary's proposed employment consists primarily of broad job 
responsibilities, which fail to convey an understanding of what specific duties the beneficiary would perform 
on a daily basis in an effort to meet his overall responsibilities. More specifically, the petitioner indicated that 
the beneficiary would establish and approve policies and objectives, direct and coordinate the formulation of 
financial programs, and plan and develop industrial, labor, and public relations policies. However, the 
petitioner's use of such general terminology, aside from the apparent intent to illustrate a heightened degree of 
discretionary authority, precludes the AAO from determining the actual duties the beneficiary would be 
expected to perform. Specifics are clearly an important indication of whether a beneficiary's duties are 
Page 7 
primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103. 
Moreover, the AAO is entirely unclear as to how several of the responsibilities fit within the context of the 
petitioner's retail business. Namely, the petitioner indicates that the beneficiary would be responsible for 
appointing a management team. However, at the time the petitioner filed the Form 1-140, the company's 
"managing team" consisted of a president, who would assume the position of vice president under the 
beneficiary's approved petition, and a store manager. Given the petitioner's existing organizational hierarchy, 
the AAO questions the likelihood that a management team would be in place for the beneficiary to manage or 
that appointing this team would consume any significant portion of the beneficiary's time. Further, the 
petitioner claimed that the beneficiary would confer with the alleged management team with regard to 
developing organizational policies that would govern operations between divisions and departments. 
However, the petitioner's organizational chart does not identify any divisions or departments. Additionally, 
the petitioner fails to explain how, in light of its limited support staff, a management team would be assigned 
to policy development. 
Accordingly, the director properly concluded that the record is not persuasive in demonstrating that the 
beneficiary's duties under his proposed position would be primarily managerial or executive. The petitioner 
has provided Citizenship and Immigration Services (CIS) with a broad set of job responsibilities, a number of 
which are inconsistent with its current organizational structure. Most importantly, the petitioner has failed to 
provide a detailed description of duties to be performed on a daily basis. 
The third issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the beneficiary's foreign employer continues to do business. The regulation at 8 C.F.R. 9 204.5Cj)(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." 
In the decision denylng the petition, the director concluded that the petitioner failed to provide the requested 
documentation in its response to the NOlD in order to establish that the foreign entity continues to do business. 
However, the AAO has reviewed the record in its entirety (including the petitioner's submissions dated December 
21, 2005) and concludes that the petitioner has submitted sufficient documentation to establish that the foreign 
entity continues to engage in "the regular, systematic, and continuous" course of business. As such, the third 
ground for the director's denial is hereby withdrawn. 
Nevertheless, the petitioner remains ineligble for the immigration benefit sought based on the two remaining 
grounds of ineligibility discussed above. 
Furthermore, the record supports a finding of ineligibility based on at least one additional ground that was not 
previously addressed in the director's decision. 
More specifically, 8 C.F.R. 9 204.5Cj)(3)(i)(A) states that the petitioner must establish that the beneficiary was 
employed abroad in a qualifying managerial or executive position for at least one out of the three years prior 
to filing the Form 1-140. In the instant matter, much like the description of the beneficiary's proposed 
employment, the petitioner's description of the beneficiary's employment abroad consists entirely of a broad 
list of responsibilities, which convey an overall sense of discretionary authority but fail to identify the actual 
duties performed. As previously stated, the actual duties themselves will reveal the true nature of the 
Page 8 
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. As the petitioner failed to identify any of 
the duties performed by the beneficiary during his employment abroad, the AAO cannot conclude that he was 
employed in a qualifying managerial or executive capacity. 
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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
As a final note, counsel refers to the petitioner's approved Form 1-140 of another beneficiary who purportedly 
fills the current position of president. However, 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. 
The approval of a prior nonimmigrant or immigrant petition filed by the same petitioner in no way guarantees 
that CIS will approve an immigrant petition filed on behalf of another beneficiary. 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 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). 
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, affd, 345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.