dismissed EB-1C Case: Retail Distribution

identifying data deleted to 
prevent clearly unwarr~ted 
invasion of personal prtvac} 
PUBLIC COpy 
Date: Office: TEXAS SERVICE CENTER 
JUN '12 2011 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
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)(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 decided your case by filing a Form 1-290B, 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. 
l:Z°~/~L 
'LCRh~~ 
I Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas 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, a Texas corporation, claims to operate as a retail distributor of food, gasoline, and 
household items. The petitioner seeks to employ the beneficiary as its president and chief operating 
officer. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (Act), 8 U.S.C. § 
1153(b)(1 )(C), as a multinational executive or manager. 
On April 20, 2009, the director denied the petition, determining that the petitioner failed to establish 
that it has been doing business for at least one year prior to the date the petition was filed. 
On appeal, the petitioner submits a letter and additional documentation addressing the director's 
grounds for denying the petition. 
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 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)(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 that indicates that the alien is to be employed in the United States in a managerial or 
executive capacity. Such a statement must clearly describe the duties to be performed by the alien. 
See 8 C.F.R. § 204.50)(5). 
At issue in this matter is whether the petitioner has established that it was doing business for at least 
one year prior to the filing of the petition on July 31, 2008. 
The regulation at 8 C.F.R. § 204.5G)(3)(i), relating to initial required evidence for petitions filed 
pursuant to section 203(b)(1)(C) of the Act, states: 
A petition for a multinational executive or manager must be accompanied by a 
statement from an authorized official of the petitioning United States employer which 
demonstrates that: 
* * * 
(D) The prospective United States employer has been doing business for at 
least one year. 
The regulation at 8 C.F.R. § 204.5(j)(2) provides the following definition: 
Doing business means the regular, systematic, and continuous provision of goods 
and/or services by a firm, corporation, or other entity and does not include the mere 
presence of an agent or office. 
In the letter dated July 25, 2008 submitted with the initial petition, the petitioner claimed that it was 
"established for [the] operation of a retail distribution [of] food, . and household items." For 
that purpose, the petitioner claimed, it acquired a 50% share which 
has, since 2002, "engaged in marketing, and retail distribution of gas, automotive, and household 
products under the business name "Cotton Tops Smoke Shop." 
Documentation submitted relating to the U.S. petitioner include: the dated 
March 13,2008; the minutes of the company's reorganizational meeting on March 21, 2008 resolving 
~ will issue 100% of its authorized stock to the beneficiary's last foreign employer, 
~ and a document entitled dated March 21, 2008, 
certifying that the foreign company is owner of 1,000 shares, representing all of the authorized shares, 
of the U.S. company. The petitioner also submitted an undated business plan detailing its acquisition 
o~as part of its "short-term goal." 
In connection with_ the petitioner submitted that company's certificate of incorporation, with an 
effective date of February 19, 2002, and the minutes of a .. meeting on July 10, 2008 
approving a transfer of 50% of shares from the petitioner. In addition, the 
record contains copies of three stock certificates with numbers - one voided and dated 
March 10, 2002, representing 50% of _ shares held by one dated March 10, 
2002, representing 50% o~shares held and one dated July 10,2008, representing 
50% o~shares held by the beneficiary. The petitioner also submitted: _ federal tax returns 
for the years 2003 through 2006; Forms 941, Employer's Quarterly Reports for 2007 and 2008; a 
number of that company's invoices and bank statements; an organizational chart for _ with the 
Page 4 
beneficiary listed as president and CEO; and brief descriptions of the positions listed on the 
organizational chart. 
On January 30, 2009, the director issued a notice of intent to deny (NOID), in which the director 
indicated that the petitioner must submit, among other things, "concrete evidence that the [petitioner] 
has been doing business for a period of at least one year as of the date of filing [the] Form 1-140 
petition (July 31, 2008)." 
In response to the NOID, counsel referred to the "new office" regulations applicable to L-l petitions 
in addressing the director's request for evidence that the petitioner "has been doing business for a 
period of at least one year as of the date of filing." Citing a letter dated January 27, 1999 from 
Business and T 
Naturalization Service (INS) addressing a query by the 
on the new office provisions in L-l classification, counsel contends that "[t]he 
for established business with newly organized subsidiaries or divisions, the 'new office' stamp would 
not apply if the office is 'fully staffed and fully operational.'" Counsel argues that because ~ the 
company purportedly acquired by the foreign entity through the petitioner, has been doing business in 
the United States for more than one year and is fully staffed and fully operational at the time of filing, 
it is not subject to the "new office" '. Counsel resubmitted copies of the incorporation 
documents and stock certificates however, these stock certificates bear the names of ••• 
• and the petitioner, rather than and the beneficiary. Again, the numbers of the 
certificates are not visible. 
On April 20, 2009, the director denied the petition. The director noted that the record showed that the 
petitioner commenced doing business on March 13,2008 and purchased a majority ownership in_ 
on July 10, 2008. However, the director found the evidence does not show that any relationship 
existed between the petitioner and_ prior to the date of the acquisition. Therefore, the director 
concluded that the petitioner has failed to show that it has been doing business for at least one year 
prior to the filing of the petition. 
On appeal, counsel again formulates his arguments in the context of the "new office" regulatory 
provisions at 8 CFR §214.2(I)(7)(i)(A)(3), which are applicable to L-l petitions. Counsel again 
asserts that "Service erred in applying the 'new office' regulations apply (sic] to all cases where the 
petitioning corporation has been doing business for less than a year." Counsel argues that, in this 
instance, the company in which the petitioner has acquired a majority share has been engaging in 
business since 2002 and is "fully staffed and fully operational," and, therefore, is not subject to the 
new office regulations. Counsel claims that "Sec 214.2 clearly indicates that the U.S. or foreign entity 
may be doing business through a parent, branch, affiliate, or subsidiary.... The duration of the 
relationship between the Petitioner and its parent, branch, affiliate or subsidiary is not relevant as long 
as there was a qualifying relationship at the time of filing." 
Upon review, the AAO concurs with the director's conclusion that the petitioner has failed to establish 
that it has been doing business for at least one year prior to filing the petition, as required under 8 
C.F.R. § 204.5(j)(3)(i)(D). 
Page 5 
First, the AAO finds counsel's contention that the petitioner is exempt from the requirements 
applicable to a "new office" under the regulations at 8 CFR §214.2(I)(7)(i)(A)(3) irrelevant in the 
context of this petition. Those provisions govern nonimmigrant petitions for L-l classification, which 
is not the requested benefit in this instance. The present petition must meet the requirements set forth 
at 8 C.F.R.§ 204.5(j)(3)(i)(D), which unequivocally states that the petitioner must provide evidence 
that "[t]he prospective United States employer has been doing business for at least one year" at the 
time of filing. There is no question, based on the record that "the prospective United States 
employer" in this petition is the named U.S. petitioner, not_As the director noted, the record 
shows that the petitioner was established in March 2008, less than five months before the instant 
petition was filed in July 2008, and the petitioner has failed to provide any evidence that the petitioner 
itself was conducting business of any kind during that time period. 
With respect to counsel's claim that the petitioner was doing business through _, there is no 
evidence in the record that any relationship existed between the petitioner and _ prior to the 
petitioner's acquisition of shares in _ less than a month before the petition was filed. Moreover, the 
record as it stands is insufficient to support the petitioner's claim that it in fact has controlling interest 
in .. and, therefore, can be deemed to be "doing business" through _ operations. To 
demonstrate that the petitioner acquired a 50% interest in _in July 2008, the petitioner initially 
submitted the minutes of reorganizational meeting on July 10, 2008 approving a transfer of 
50% of _ shares to the petitioner, but the copy of the stock certificate issued on that date shows 
that 500, or 50%, of_ shares were issued to the beneficiary, instead of the 
petitione~ also submitted at that time~y of a cancelled stock certificate in the 
name of_for 500 shares, or 50%, of_ with a back page indicat~as 
certificate number one; and a copy of a certificate date~ 2002 in the name of_for 
500 shares, or 50%, of ~ which has not been cancelled. It is noted that the certificate number is 
not visible on either of the stock certificates in the name of_ or the beneficiary. 
Further, the AAO notes that_federal tax returns contain disclosures regarding the ownership of 
_ that conflicts with the information presented in the share certificates and meeting minutes 
deSCribed above. _IRS Form I 120S, U.S. Income Tax Return for an S Corporation, for the year 
2005 indicates that during that year the company had only one shareholder, _ rather than two 
as shown on the share certificates dated 2002. Not until 2006 did _ tax return indicate that the 
company has two shareholders. This inconsistency, unaddressed by the petitioner, necessarily raises 
doubts as to the petitioner's claim regarding the ownership 0_ 
Subsequently, in response to the NOID, the petitioner again submitted copies of • stock 
certificates, presumably representing the issued and outstanding shares of" at the time of the 
response. Again, one of the certificates is that dated _ 2002, for 500 shares issued to _ 
_ However, the other certificate, also for 500 shares, and dated July 10, 2008, is issued in the name 
of the petitioner this time rather than to Again no certificate number is visible on any 
of the copies, and the petitioner has failed to clarify the existence of these two certificates issued to 
two different shareholders on the same day, for the same 50% interest in the company. 
The petitioner has not addressed these inconsistencies in the record regarding the ownership of" 
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 0/ 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. Id. 
Moreover, the AAO finds that the record does not contain sufficient evidence to corroborate the 
purported issuance ofll shares to the petitioner. Stock certificates alone are not sufficient evidence 
to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of 
relevant annual shareholder meetings must also be examined to determine the total number of shares 
issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its 
effect on corporate control. Additionally, a petitioning company must disclose all agreements relating 
to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and 
any other factor affecting actual control ofthe entity. See Matter a/Siemens Medical Systems, Inc., 19 
I&N Dec. 362 (BIA 1986). Here, other than the conflicting share certificates and reorganizational 
meeting minutes, the petitioner has not provided the requisite supporting documentation to 
corroborate the claim of its ownership of" Without full disclosure of all relevant documents, the 
ownership and control of_by the petitioner has not been established. 
In light of the above described inconsistencies and deficiencies in the record with respect to the 
petitioner's ownership of ~ the AAO finds that the record as its stands fails to su~ the 
petitioner's claim of ownership in_ as well as its claim that it is doing business through _. As 
such, the AAO finds that the petitioner has not demonstrated that it has been doing business for at least 
one year prior to filing the petition, as required under 8 C.F.R.§ 204.5G)(3)(i)(D). 
Beyond the director's decision, the AAO finds that the petitioner has failed to demonstrate that the 
beneficiary would be employed in the United States in a primarily executive or managerial capacity. 
Section 1 01 (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; 
Page 7 
(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. 
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 performed by the beneficiary and indicate 
whether such duties are either in an executive or managerial capacity. Id. However, the AAO must 
also examine the claimed managerial or executive capacity of a beneficiary based on the totality of the 
record, including the petitioner's organizational structure, the duties of the beneficiary'S subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational 
duties, the nature of the 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. 
First, the AAO notes the record does not demonstrate that the U.S. company had any employee other 
than the beneficiary at the time the petition was filed. The petitioner claimed on the Form 1-140 that it 
has seven employees. The petitioner submitted an organizational chart showing the following 
positions: president/CEO, vice president/general manager, manager-retail, assistant manager, 
and two cashiers. However, aside from the beneficiary as president and 
none of the other positions appear to have been filled. 
Page 8 
In response to the director's NOID, in which further evidence of the petitioner's staffing was 
requested, the petitioner provided job descriptions and Forms W-2 for employees of_ The only 
Form W-2 showing the petitioner as employer is that of the beneficiary. In fact, the petitioner has not 
provided any evidence demonstrating that it has any employees other than the beneficiary. As 
previously discussed, the evidence of record is insufficient to show that the claimed parent-subsidiary 
relationship between the petitioner and .. actually exists. Without conclusive evidence of a 
corporate relationship between the two companies, it follows that the record also fails to show that the 
staffing of"is in any way relevant to or demonstrative of the beneficiary'S role or capacity within 
the named U.S. petitioner. 
The AAO notes that in the July 25, 2008 letter submitted with the Form 1-140, the petitioner stated 
that the beneficiary "will hire and assign other managers and employees" and "will supervise 
employees who run day-to-day operations." However, the petitioner must establish eligibility 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). Absent 
further evidence, the AAO must conclude that the petitioner has not shown that it employs any staff 
other than the beneficiary at the time the petition was filed. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. In describing the beneficiary'S job responsibilities, the petitioner 
stated in the July 25,2008 letter: 
[The beneficiary] will be employed at the highest position within the U.S. company, 
and will supervise employees who run day-to-day operations. [The beneficiary] will 
have the overall responsibility of planning and developing the U.S. investment, 
executing or recommending personnel actions, placing a management team to run the 
operations, supervising all financial aspects of the company and developing policies 
and objectives for the company. 
It remains the petitioner's obligation to establish that the day-to-day non-managerial tasks of the 
function managed are performed by someone other than the beneficiary. As discussed above, the 
petitioner has failed to provide evidence to substantiate its claim that the beneficiary has sufficient 
staff, or for that matter, any staff, to relieve him from having to primarily perform the non-qualifying 
tasks of the company. Absence evidence of other employees on the company's staff, it must be 
assumed that the beneficiary himself is performing the day-to-day operations of the company, rather 
than directing other employees who perform them. An employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in 
a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology Int'l., 19 I&N Dec. 593, 604 (Comm. 1988). 
Page 9 
Counsel asserts in the letter dated February 29, 2009 that "USCIS is required to consider an 
organization's reasonable staffing needs in light of the purposes and developmental stage of the 
organization." However, the AAO notes that, in reviewing the relevance of the number of employees 
a petitioner has, federal courts have generally agreed that USCIS "may properly consider an 
organization's small size as one factor in assessing whether its operations are substantial enough to 
support a manager." Family Inc. v. Us. Citizenship and Immigration Services 469 F. 3d 1313, 1316 
(9th 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 discussed, the petitioner did not submit sufficient evidence to demonstrate that there are any other 
full-time employees who would relieve the beneficiary from perform the actual day-to-day, non­
managerial operations of the company. Based on the petitioner's representations, it does not appear 
that the reasonable needs of the petitioning company might plausibly be met by the services of the 
beneficiary as president alone. 
Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff 
in the context of reviewing the claimed managerial or executive duties. The petitioner must still 
establish that the beneficiary is to be employed in the United States in a primarily managerial or 
executive capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the 
petitioner has not established this essential element of eligibility. For this additional reason, the 
petition will be denied. 
Finally, the AAO acknowledges that USCIS has previously approved an L-IA petition filed by the 
petitioner on behalf of the instant beneficiary. It must be noted that many 1-140 immigrant petitions 
are denied after USCIS approves prior nonimmigrant 1-129 L-l 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-IA visa classification, 
which allows an alien to enter the United States temporarily, and an immigrant E-13 visa petition, 
which permits an alien to apply for permanent residence in the United States and, if granted, 
ultimately apply for naturalization as a United States citizen. Cf §§ 204 and 214 of the Act, 8 U.S.C. 
§§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427. Because USCIS 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-l A 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 
Page 10 
in the current record, the AAO finds that 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 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). 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. 
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.