dismissed EB-1C Case: Security Services

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
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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. 9 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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 3 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
un F. Grissom 
Acting Chief, Administrative Appeals Office 
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 engaged in the business of providing security guard services. It 
seeks to employ the beneficiary as its training and development manager. 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. 8 1153(b)(l)(C), as 
a multinational executive or manager. 
The director denied the petition based on the conclusion that the petitioner failed to establish that it 
has a qualifying relationship with the beneficiary's employer abroad. The AAO concurs with the 
director's conclusion. However, the AAO hereby withdraws the director's underlying analysis, 
which was based on an incorrect definition of the term "affiliate." See 8 C.F.R. 5 204.5(j)(2). A full 
discussion of the director's decision and the basis for the AAO's current findings is provided below. 
On appeal, counsel disputes the director's conclusions, asserting that 
 majority 
ownership of the U.S. and foreign entities is sufficient to establish that the two entities are affiliates. 
Counsel also asserts that a brief would be submitted within 30 days of filing the appeal. It is noted 
that the appeal was filed on September 13, 2006 and that counsel submitted a letter inquiring about 
the status of the petitioner's appeal as recently as November 2008. This record of proceeding has not 
been supplemented with any further submissions. Therefore, this record will be considered complete 
and the current decision will be rendered on the basis of the record as presently constituted. 
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 to the United States to work for the same entity, or its 
affiliate or subsidiary. 
Page 3 
The primary issue in this proceeding is whether the petitioner has a qualifying relationship with a 
foreign entity. 
The regulation at 8 C.F.R. 5 204.5(j)(2) states in pertinent part: 
AfJiate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(B) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity; 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientology International, 19 I&N 
Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 
1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In the context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct 
the establishment, management, and operations of an entity. Matter of Church Scientology 
International, 19 I&N Dec. at 595. 
In the present matter, the petitioner provided the following documents to establish a qualifying 
relationship with the beneficiary's employer abroad: 
1) A copy of the petitioner's certificate of incorporation. 
2) A copy of the petitioner's articles of incorporation. Article Four indicates that the 
petitioner is authorized to issue 10,000 shares of its common stock with a par value of 
one dollar per share. 
3) Copies of two stock certificates issued by the etitioner on April 3, 1997, purporting 
to issue 450 of its authorized shares to and 550 of its authorized 
Page 4 
shares t-. It is noted that the photocopies of these stock certificates 
are unclear and do not show the number of either certificate. 
4) A foreign document entitled, "," sequentially numbered from 
through This document's location is identified with a volume and 
page number. Although it appears that all of the submitted pages are located in the 
same volume, not all of the pages pertaining to this series of documents were 
submitted. Namely, pages 24-28,30,32,34, and 36-37 were submitted. 
5) Partial translation of the above for pages 24-26. 
6) The petitioner's 2003 and 2004 federal tax returns, each containing Schedules E and 
L. Schedule E in each tax return indicates that 
 and - 
each owns 50% of the petitioner's common stock and Schedule L, No. 22(b) of each 
tax return shows that the petitioner received $10,000 in exchange for issuance of 
common stock. 
On March 17, 2006, the director issued a request for additional evidence (RFE) instructing the 
petitioner to provide a statement discussing who owns and controls the U.S. and foreign entities as 
well as documentation corroborating the claimed ownership scheme. 
In response, the petitioner provided an additional foreign document and its translation indicating that 
the beneficiary and authorized the formation of the foreign entity in San Salvador 
on October 13, 1998. Copies of the documents described in Nos. 1-4 above were also resubmitted. 
Additionally, the petitioner provided what appears to be a stock certificate issued by the foreign 
entity and its translation. 
On August 15, 2006, the director issued a decision denying the petition, focusing the underlying 
analysis on the fact that the foreign and U.S. entities are not owned by identical groups of 
individuals. In reviewing the director's decision, the AAO finds that the director placed undue 
emphasis on the minority owners and failed to consider who owns the majority of the shares of each 
entity. In the present matter, the petitioner maintains the claim tham owns 99.5% of 
the foreign entity and 55% of the foreign entity. If the petitioner were to submit evidence to support 
this claim, such a distribution of ownership, where the same individual owns and controls the 
majority of the shares of each entity, would be sufficient to establish the existence of a qualifying 
relationship. 
 See 8 C.F.R. 5 204.5(j)(2). 
 It is noted that 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. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In the present matter, a thorough and 
comprehensive review of the record indicates that the petitioner has not provided sufficient and 
credible evidence to corroborate its claim. 
First, with regard to the translations of foreign documents enumerated above, the regulation at 
8 C.F.R. 5 103.2(b)(3) states the following: 
Page 5 
Any document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation which the translator has certified 
as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English. 
In the present matter, none of the translations are accompanied by the requisite translator 
certifications assuring the completeness and accuracy of the translations themselves as well as the 
translator's own competency. Therefore, as the petitioner failed to provide translations that meet the 
above regulatory requirement, the deficient documents cannot be considered when making a 
determination as to the petitioner's common ownership and control with a foreign entity. 
Additionally, a number of anomalies were observed in some of the remaining documents. Namely, 
the petitioner's articles of incorporation and the two stock certificates are inconsistent with the 
information conveyed in Schedules E and L of the petitioner's 2003 and 2004 tax returns, as 
described in Nos. 2, 3, and 6, respectively. While the petitioner's articles of incorporation indicate 
that its stock is valued at a par value of one dollar per share and while the accompanying stock 
certificates show that only 1,000 shares had been issued, Schedule L, No. 22(b) of the petitioner's tax 
returns show that the petitioner received $10,000 in exchange for issuance of its common stock. 
While the petitioner is authorized to issue 10,000 shares, as indicated in Article Four of the articles 
of incorporation, the stock certificates that the petitioner submitted indicate that only 1,000 shares 
were issued, which should result in only $1,000 being received rather than the $1 0,000 indicated in 
Schedule L. 
Furthermore, Schedule E shows that and 
 each owns 50% of the 
petitioner's common shares. However, this information is neither consistent with the petitioner's 
claims nor with the stock certificates submitted to establish ownership of the petitioning entity 
The AAO notes that 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, 59 1-92 (BIA 1988). In the present matter, such evidence has not 
been submitted. Therefore, the AAO cannot conclude that the petitioner has established the 
existence of a qualifying relationship between itself and the beneficiary's foreign employer and the 
appeal must be dismissed on this basis. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. 
First, 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 position 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. In the 
instant matter, the director specifically addressed this issue in the RFE by instructing the petitioner to 
provide a detailed analysis of the beneficiary's daily activities during his employment abroad. In 
response, the petitioner provided a translated corporate document that describes the functions of the 
beneficiary's shareholder-elected position. However, the wording of the document is confusing and 
lacks sufficient clarification about the beneficiary's job duties. While the petitioner generally 
indicates that the beneficiary's discretionary authority fits the definition of managerial or executive 
capacity, there is no information about the beneficiary's specific daily tasks. Without this 
information, the AAO cannot conclude that the beneficiary primarily performed job duties within a 
qualifying managerial or executive capacity. 
This brings the AAO to the second issue, which is key to the petitioner's eligibility, but was not 
previously addressed in the director's decision. Namely, 8 C.F.R. tj 204.5Cj)(5) requires the 
petitioner to provide a job offer, indicating that the beneficiary is to be employed in the United States 
in a managerial or executive capacity and clearly describing the duties the beneficiary would 
perform. Again, this issue was addressed in the WE, where the director asked the petitioner to 
specify the beneficiary's proposed job duties and to assign the percentage of time to be devoted to 
each duty. In response, the petitioner provided a letter dated June 8, 2006, which included the 
following statement: 
[The beneficiary's] contribution in percentage to the corporation is based on 19% of 
the overall service delivered. His duties are distributed amongst [oloperations 6%, 
[playroll [ilnput 5%, [rlecruitment 3%, [slupervision 3%, and [slales 2%. These 
percentages represent Dallas as 19% percent [sic] of the corporation operations. 
While the above statement attempts to quantify the beneficiary's contribution to the overall corporate 
entity, it fails to specify actual job duties the beneficiary would perform on a daily basis and how 
much of his time would be devoted to specific tasks. Rather, the job description categorizes the 
beneficiary's job into five areas of concentration, but fails to explain what underlying job duties the 
beneficiary would perform in relation to those broad categories. Case law has firmly established that 
it is the actual duties themselves that reveal the true nature of the beneficiary's employment. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
As the petitioner has failed to provide this highly relevant and crucial information, the AAO cannot 
conclude that the beneficiary's time would be primarily devoted to duties within a qualifying 
managerial or executive capacity. 
The final issue that the AAO would like to address is the petitioner's failure to establish that it was 
and continues to be a qualifying multinational entity. As defined above in 8 C.F.R. fj 204.50)(2), a 
multinational entity is one that, through its affiliate or subsidiary, conducts business in two or more 
countries, one of which is the United States. Thus, even if the petitioner were able to establish that it 
had a qualifling relationship with the beneficiary's foreign employer, the petitioner must also establish 
that it continues to do business abroad through a foreign affiliate or subsidiary. In the present matter, 
the only evidence of the foreign entity's business transactions is limited to a handful of invoices dated 
"01106.2005." Therefore, the petitioner has failed to establish: 1) that the foreign entity was still doing 
business in January 2006 when the Form I- 140 was filed; and 2) that the foreign entity continued to do 
business beyond the date of filing. Based on these findings, the AAO cannot conclude that the 
petitioner is a multinational entity and the petition must be denied on this additional basis. 
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), afd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
Page 7 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
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. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.