dismissed EB-1C Case: Retail Management

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DATE: DEC 2 7 2011 OFFICE: NEBRASKA SERVICE CENTER 
INRE: 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)(1 )(C) of the Immigration and Nationality Act, 8 U. S.c. § 1153(b)(1 )(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 I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 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 reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was initially approved by the Director, Nebraska Service 
Center. Upon further review of the record, the director determined that the petitioner was not eligible for the 
benefit sought. Accordingly, the director properly served the petitioner with a notice of his intention to 
revoke the approval of the preference visa petition, and his reasons therefore. The director ultimately revoked 
the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is a California corporation that seeks to employ the beneficiary as its president/general 
manager. 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 (the Act), 8 U.S.C. 
§ 1153(b)(1 )(C), as a multinational executive or manager. 
The director determined that the petitioner failed to establish eligibility based on three grounds. Two of the 
findings are based on express statutory and regulatory requirements. Specifically, the director determined that 
the petitioner failed to establish that (1) the beneficiary was employed abroad in a qualifying managerial or 
executive capacity and (2) that it would employ the beneficiary in a managerial or executive capacity. After 
looking to the statute and the common law definition of employee and weighing information offered by the 
petitioner regarding the beneficiary'S proffered wage against the evidence of actual wages paid to the 
beneficiary since the 1-140 approval, the director also determined that the petitioner failed to establish that the 
beneficiary is an employee of the petitioning entity. 
On appeal, counsel disputes the director's findings and submits a brief in support of his assertions. 
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 
Page 3 
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. 
Section 205 of the Act, 8 U.S.C. § 1155, states: "The Attorney General may, at any time, for what he deems to 
be good and sufficient cause, revoke the approval of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter of Estime, ... this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will be 
sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter ofHo, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter ofEstime, 19 I&N 450 (BIA 1987)). 
The first two issues to be addressed in this revocation proceeding call for a discussion of the beneficiary's 
position with the foreign entity as well as his proposed position with the U.S. petitioner. Specifically, the 
AAO will examine the relevant documentation in order to establish whether the petitioner submitted sufficient 
evidence to establish that the beneficiary was employed abroad and that he would be employed in the United 
States in a managerial or executive capacity. 
Section 101(a)(44)(A) ofthe 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 
Page 4 
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 ill 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. 
In support of the Form 1-140, the beneficiary, on behalf of the petitioner, provided a statement dated October 
22, 1997. With regard to the beneficiary's foreign position, the beneficiary stated that he was the company's 
senior manager from its inception in 1984. The beneficiary stated that his position abroad involved managing 
the following activities: purchasing land and buildings, obtaining building permits, arranging financing, 
hiring contractors, and supervising all aspects of construction and renovation. In his discussion of the 
proposed position, the beneficiary stated that the U.S. entity consists of two businesses-one involving the 
operation of a convenience store and another involving the operation of a convenience store and gas station. 
The beneficiary stated that in his position of president and general manager with the U.S. petitioner, he would 
supervise the purchase of inventory, personnel matters, administration of the lease of the gas 
station/convenience store such as to allow for the operation of a and the development of 
other investment opportunities. The petitioner also provided an employee list, which shows that one of the 
store locations employs a manager, and three cashier clerks, while the other store location employs an 
assistant manager and a cashier clerk. 
The director reviewed the petitioner's submissions and issued a notice of intent to revoke (NOIR) dated 
November 3,2009 calling into question the beneficiary's employment capacity in his position abroad with the 
foreign entity as well as the position the beneficiary sought to occupy in the United States at the time the 
Form 1-140 was filed. The director observed that the petitioner provided only general job descriptions of the 
beneficiary's position with the foreign entity and his proposed position with the U.S. entity and determined 
that the job descriptions currently on record fail to define the actual job duties the beneficiary performed 
abroad or those he intended to perform in his employment with the U.S. entity. The director's observations 
focused on the petitioner's 1996 tax return, which showed a net income loss and salaries paid in the amount of 
$18,297, and the petitioner's 1997 quarterly wage report, which showed only two employees working during 
the second quarter. Based on a review of the evidence submitted in support of the petition, the director 
gauged that the beneficiary's time from the date of filing and beyond would not have been primarily allocated 
to managing either an essential function or the work of managerial, supervisory, or professional personnel and 
that instead, the beneficiary would most likely have allocated the primary portion of his time to non­
qualifying operational tasks. 
Page 5 
The director asked the petitioner to provide additional supporting information pertaining to the beneficiary's 
foreign and proposed u.s. employment. Specifically, the petitioner was asked to provide a detailed job 
description of the beneficiary's duties with the foreign entity as well as his proposed job duties with the U.S. 
entity. The petitioner was also asked to provide each entity's organizational chart naming all departments and 
teams within each organization and listing the names and job duties of the beneficiary's subordinates. 
Additionally, with regard to the U.S. entity, the petitioner was asked to provide all IRS Form W-2 statements 
issued to employees from 1996 through 2008 as well as the petitioner's hours of operation and each 
employee's recent work schedule. 
In response, counsel for the petitioner provided a statement dated December 2, 2009 in which he summarized 
the events that led up to the issuance of the NaIR. Counsel expressed his confusion at the fact that no action 
had been taken since the beneficiary's adjustment interview on January 28, 2002. Counsel argued that the 
director's authority to commence revocation proceedings is limited to circumstances involving "superseding 
evidence" obtained during consular processing or during a subsequent investigation, or if approval is barred 
by section 204(c) ofthe Act, which deals with marriage fraud. 
In an attempt to address the director's concerns, counsel first approached the issue of the beneficiary's 
employment abroad, asserting that the foreign entity was a general contractor in the real estate construction 
and development industry where the standard practice is to hire subcontractors to carry out operational duties. 
With regard to the beneficiary's employment with the foreign entity, counsel pointed out that the petition was 
filed and approved during the fourth quarter of 2007 and that the information pertaining to the petitioner's 
1996 tax return and a 1997 second quarterly wage report are not inconsistent with the petitioner's staff 
description at the time of filing. Counsel also faulted the director for failing to take into account a fire that 
allegedly took place at one of the petitioner's store locations causing a stop of operations until the damages 
could be repaired. The AAO notes, however, that 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)). Here, the petitioner did not provide documentary evidence establishing that a fire occurred, the dates 
of the alleged incident and any resulting damage, and, if the event actually occurred as claimed, when the 
petitioner resumed regular business activity. 
Additionally, in an effort to comply with the NaIR requests, the beneficiary provided the following 
description of his position with the foreign entity: 
My duties were follows [sic] the projects in plan[n]ing. Preparing the bids and negotiation 
with the client and finalize [sic] the contracts. Hiring the skilled staff either as subcontractor 
or work directly for [the foreign entity.] 
All the codes for construction, health and safety required standard maintained on site. 
Always have one supervisor on site to achieve the required quality of work man ship [sic] and 
keep site hazards free [sic]. 
My duties also involving [sic] the purchase of material, renting necessary equipment on site. 
At [the] same time [the] company had our development projects, for which I had to find the 
site. Negotiate with the seller, hire [an] Attorney to purchase the properties. Hiring local 
Page 6 
engineers and architect[s] to make to [sic] necessary drawings for [the] fmal map. Follow the 
process from submission to final approval. Prepare the estimate cost to complete the project. 
Prepare profit and loss projection report for the Bank to obtain the necessary bank loan to 
complete the project. After this stage then [sic] the project will go into normal construction[.] 
The beneficiary indicated that his ex-wife was responsible for the administrative tasks, including keeping all 
bank records and making deposits, paying the construction bills and receiving payments, and paying for all 
labor and materials. An organizational chart was not submitted with regard to the foreign organization. 
With regard to the u.s. entity, the beneficiary stated that his job duties include hiring and firing staff, making 
financial decisions as well as decisions concerning the health and safety of staff, handling customer 
complaints, corresponding with "dealing companies" and government agencies, meeting the city, county, and 
state licensing requirements, reviewing daily sales receipts and continuously monitoring the company's 
financial status, planning sales to attract customers, and work at the counter when necessary. Although the 
beneficiary indicated that he is responsible for "other" job duties in addition to those specifically mentioned, 
he did not specify what those responsibilities are. The beneficiary also stated that the store operating hours 
are from Monday through Saturday 6 AM until 10 PM and on Sunday from 7 AM until 10 PM. The 
beneficiary listed himself, an assistant manager, and two cashier clerks as the store employees. As this 
document is not dated, it is unclear when the petitioner actually had the staffing composition described above. 
The beneficiary also provided the petitioner's organizational chart, which shows the beneficiary at the top of 
the hierarchy as the president and general manager, followed by a director/manager who oversees four cashier 
clerks. It is noted that the organizational chart the petitioner submitted described an organizational hierarchy 
as of January 28, 2002. It is therefore unclear whether this document reflects the petitioner's organizational 
hierarchy at the time the petition was filed. 
In a decision dated January 5, 2009, the director determined that the petitioner failed to establish that it was 
eligible for the immigration benefit sought at the time the petition was filed and therefore revoked the 
approval of the petitioner's immigrant petition. The director's decision was based, in large part, on the 
conclusion that the beneficiary was not employed abroad in a qualifying capacity or that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity. 
On appeal, counsel objects to the director's decision asserting that the director did not have good and 
sufficient cause to issue a NOIR. By itself, the director's realization that a petition was incorrectly approved 
is good and sufficient cause for the issuance of a notice of intent to revoke an immigrant petition. Matter of 
Ho, 19 I&N Dec. at 590. Further, with regard to counsel's reference to 8 C.F.R. § l03.2(b)(16), which states 
that the petitioner must be permitted to review the record that constitutes the basis of denial, the AAO notes 
that no evidence has been provided to establish that USCIS was not in compliance with this regulation. 
USCIS is not required to provide the petitioner with a copy of the record merely by virtue of having issued a 
NOIR. If counsel wished to review the record he should have submitted a request to that affect. The record is 
devoid of any evidence that either counselor the petitioner was denied a review of the record after submitting 
a formal request. 
Counsel also argues that a properly issued NOIR focuses on the record as it existed at the time the petition 
was approved. Simultaneously, counsel introduces a contravening argument, which faults the director for 
issuing a decision based on evidence that he claims has been known to USCIS since the initial review. 
Page 7 
The AAO finds that counsel's contradictory arguments are unpersuasive and fail to overcome the director's 
decision. Based on the evidence presented, it is clear that the record was devoid of required evidence, which 
therefore could not have been reviewed prior to the issuance of an approval. More specifically, the record 
shows brief and overly broad descriptions of the beneficiary's foreign and proposed employment. 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. § 204.5(j)(5). It is the beneficiary's actual job duties themselves 
that reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. l103, l108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In light of the fact that a specific account of the 
beneficiary's job duties was not submitted in support of the petition initially, at the very least a request for 
evidence should have been issued prior to determining the beneficiary's eligibility. It is apparent in this 
matter that no such notice was issued, thus indicating that the decision to approve the petition was made 
without any knowledge of information that is deemed by both regulation and published case law to be 
essential for an accurate determination of the petitioner's eligibility. 
The AAO further notes that an approval of a visa petition vests no rights in the beneficiary of the petition, as 
approval of a visa petition is but a preliminary step in the visa application process. The beneficiary is not, by 
mere approval of the petition, entitled to an immigrant visa. Matter of Ho, 19 1&N Dec. 582. There is no 
statute or regulation that misinforms the beneficiary about the visa application process or guarantees the 
beneficiary that an immigrant visa will be issued if the underlying visa petition is approved. Furthermore, not 
only must the petitioner bear the ultimate burden of proving eligibility at the time of filing, that burden is not 
discharged until the immigrant visa is issued. Tongatapu Woodcraft of Hawaii, Ltd. v. Feldman, 736 F.2d 
1305, 1308 (9th Cir. 1984). Thus, while the issue of establishing initial eligibility focuses exclusively on the 
facts and circumstances that existed at the time the petition was filed, until the beneficiary is granted an 
immigrant visa, USC1S may and should consider any new evidence that comes into existence after the filing 
ofa Form 1-140 should the petitioner become ineligible after the petition is approved. 
In the present matter, the record does not establish that the petitioner was eligible for the immigration benefit 
sought either at the time the Form 1-140 was filed or subsequent to such filing. 
With regard to the beneficiary's employment abroad, the AAO finds that the job description the beneficiary 
provided lists primarily non-qualifying operational tasks, such as preparing bids, engaging in contract 
negotiation with clients, purchasing material and renting equipment, finding sites for development projects, 
and preparing cost projections for projects. Although the beneficiary stated that his wife assumed all 
administrative tasks once the projects progressed to the construction stage, the beneficiary's preconstruction 
tasks cannot be deemed as being within a qualifying managerial or executive capacity. The beneficiary did 
not specify what tasks he performed during the construction phase of each project, nor was any evidence or 
information provided to establish that the non-qualifying tasks listed above did not consume the primary 
portion of the beneficiary'S time. As such, the AAO concludes that the petitioner failed to establish that the 
beneficiary was employed abroad in a qualifying managerial or executive capacity. 
With regard to the beneficiary's proposed employment with the U.S. entity, the supplemental job description 
the beneficiary provided in response to the NOIR is overly broad and fails to provide a detailed account of the 
specific tasks the beneficiary has been performing for the petitioner on a daily basis. For instance, while the 
elevated position with the petitioner's organizational hierarchy helps to establish the beneficiary'S 
discretionary authority with regard to hiring and firing staff and making all financial decisions, these 
statements do not provide insight as to the beneficiary'S daily functions. Although the beneficiary stated that 
Page 8 
he makes managerial decisions daily, no specific examples were provided to establish what types of decisions 
he has made. The beneficiary also stated that he addresses customer complaints and works the counter when 
necessary. It is noted that neither duty is of a qualifying managerial or executive nature, despite the 
beneficiary's position with the company or his position title. To summarize, most of the job description listed 
broad job responsibilities without defining those responsibilities with specific tasks and even though the 
beneficiary did list a few specific tasks, they were outside the realm of what is classified as being within a 
qualifying managerial or executive capacity. 
Additionally, the AAO notes that the size of the petitioning organization appears to have diminished since the 
petition was filed. While the petitioner claimed six employees on the Form 1-140 and further indicated that it 
operated two store locations at the time of filing, the evidence of record strongly indicates that neither is an 
accurate description of the petitioner's current operation. As noted above, counsel claimed in response to the 
NOIR that the petitioner experienced hardship due to a fire, which caused the petitioner to temporarily stop 
operations. However, without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). As previously pointed out, the petitioner has 
not provided any supporting evidence to establish when the alleged fire occurred or that it occurred at all. 
Although counsel stated that supporting evidence was submitted with a previously filed E-2 nonimmigrant 
petition, such evidence is not "incorporated by reference" as counsel suggests. 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. USCIS is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand. 
Moreover, while counsel indicates that the petitioner was only temporarily affected by the alleged fire, the 
record does not show that the petitioner has continued to operate two different store locations. Rather, the 
record indicates that the only store still doing business is the gas station/convenience store that is located in 
Lindsay, California. Additionally, the petitioner's claim regarding the number of employees it had at the time 
of filing is inconsistent with its 1997 tax return, which shows that the beneficiary received officer 
compensation in the amount of $17,608, but does not show that any salaries or wages were paid to any 
company employees. If the petitioner employed six people at the time the Form 1-140 was filed, it is unclear 
why this claim was not reflected in the corresponding tax return for that year. As has been heavily stressed 
throughout this proceeding, the petitioner is expected 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. at 591-92. The AAO further notes that while the NOIR expressly requested that the petitioner 
submit all IRS Form W-2s that were issued from 1996-2008, none of the submitted W-2s predated the year 
2004. The petitioner attempts to explain the lack of requested documentation by providing a statement dated 
November 20, 2009 from its accounting firm stating that no records were retained prior to 2004 because the 
firm is not legally required to keep records beyond a five-year period. However, the petitioner was not 
precluded from approaching the IRS directly for the requested evidence. It is noted that the non-existence or 
other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § 1 03.2(b )(2)(i). 
Additionally, the record indicates that the petitioner reduced its operations and personnel size after the 
petition was filed and approved. As the petitioner is required to maintain eligibility until the issuance of an 
Page 9 
immigrant visa, information pertaining directly to changes in the petitioner's organization is relevant and 
should be addressed. 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). 
Accordingly, the AAO finds that a reduction in the petitioner's operations is a critical factor in the petitioner's 
gas station/convenience store operation and would likely affect the beneficiary's daily job duties with the u.s. 
entity. In other words, the petitioner must establish that the beneficiary primarily performs tasks within a 
managerial or executive capacity despite the reduction in its operations to only one store front as well as a 
reduction in its personnel size, which the most recent tax documents indicate consists of four employees. The 
AAO finds that the petitioner has failed to adequately describe the beneficiary's proposed employment or 
submit sufficient evidence to establish that the beneficiary was eligible for classification in the immigrant 
category of multinational manager or executive. The AAO further notes that, even if the petitioner had 
established eligibility at the time of filing, the record lacks evidence to establish that eligibility was 
maintained beyond the date the petition was filed and approved. See Tongatapu Woodcraft of Hawaii, Ltd. v. 
Feldman, 736 F.2d at 1308. 
In view of the above, the AAO finds that the NOIR and the subsequent notice of revocation were both 
properly issued, as the petitioner has failed to establish that the beneficiary was either employed abroad or 
that he has been employed in the United States within a qualifying managerial or executive capacity and 
based on these first two grounds, the approval that was previously issued will remain revoked. 
The third issue in this matter is whether the petitioner and beneficiary have an employer-employee 
relationship. 1 
In the revocation decision, the director focused on the petitioner's tax documents, which show that the 
beneficiary has owned 50-100% of the petitioning entity since 1997, the year the petition was filed. The 
director concluded that the petitioner and beneficiary did not have an employer-employee relationship as 
required by the relevant statutory provisions. See subsections 101(a)(44)(A) and (B) of the Act (referring to 
"an assignment within an organization in which the employee primarily .... " (Emphasis added.)). In support 
of the decision, the director cited to a United States Supreme Court decision, Nationwide Mutual Ins. Co. v. 
Darden, 503 U.S. 318 (1992) (hereinafter "Darden"), that defined "employee" in terms of the common law 
master-servant relationship. 
On appeal, counsel merely points out that the director's analysis did not mention the beneficiary'S ownership 
interest in the foreign entity. However, neither the petitioner nor counsel attempted to articulate how the 
The AAO notes that USCIS issued guidance discussing the factors that must be considered when 
determining whether an employer-employee relationship exists in an H-1B nonimmigrant visa petition. The 
AAO emphasizes that while the subject matter is very similar, the memorandum's application is limited to H-
1B nonimmigrant cases only; it does not apply to the present case. See Memorandum 
Associate Director, Servo Ctr. Operations, USCIS (Jan. 8, 2010); see also Broadgate Inc. v. USCIS, 730 
F.Supp.2d 240,246 (D.D.C., 2010). 
Page 10 
beneficiary would be considered an employee under terms of the common-law master-servant relationship 
test in light of the Darden and Clackamas decisions. Accordingly, the petitioner has conceded the issue. 
Additionally, while a new NOIR will not be issued, the AAO has observed additional grounds of ineligibility 
that were not cited in the director's decision. First, the record shows that the petitioner has provided 
insufficient evidence to establish that a qualifying relationship existed at the time of filing between the 
petitioner and the beneficiary's foreign employer. 8 C.F.R. § 204.5G)(3)(i)(C). 
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 United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (Assoc. Comm'r 
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. 
The petitioner submitted a stock certificate dated November 4, 1996, which shows that 100,000 shares of the 
petitioner's stock were issued to the beneficiary. The 1996 tax return that was also submitted in support of 
the petition showed that the beneficiary and his wife, each owned 50% of the 
petitioner's stock. Although the same information was conveyed in the Schedule Es of the petitioner's tax 
returns from 2004-2008, the Schedule Es of the petitioner's tax returns from 1999-2003 all show the 
beneficiary as owning 94.5% of the petitioner's stock and the beneficiary's wife as owning 5.5% of the 
petitioner's stock. Lastly, Schedule Es of the petitioner's tax returns from 1997 and 1998 both show the 
beneficiary as the sole stock holder. It is noted that the record contains no evidence documenting the 
numerous changes in the petitioner's ownership. 
Further, with regard to the foreign entity's ownership, the petitioner claims that after the beneficiary and his 
wife divorced, the beneficiary signed over ownership of the foreign entity to his ex-wife. Thus, even if there 
were no discrepancies or missing evidence clearly establishing ownership of the U.S. entity, by the 
petitioner's own admission, any qualifying relationship that may have previously existed between the 
petitioner and the beneficiary's foreign employer was severed when the beneficiary no longer had an 
ownership interest in the foreign entity. In keeping with the above determination, the AAO further observes 
that the petitioner is no longer a multinational entity conducting business in two or more countries, one of 
which is the United States. 
The AAO notes that because the NOIR did not include the additional adverse fmdings that have been cited 
beyond the director's decision, the dismissal of the appeal in the present matter will be limited strictly to those 
issues that were addressed in by the director. 
Accordingly, the approval of the petition will remain revoked for the above stated reasons, with each 
considered as an independent and alternative basis for revocation. In visa petition proceedings, the burden of 
proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 US.c. 
§ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.