dismissed EB-1C Case: Silicon Metal Supply

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
Ydentifving data &leM U.S. Citizenship 
prrvent cbrly unwae and Immigration 
isv& of uersond Drivae 
PUBLIC COPY 
FILE: LIN 05 045 51368 Office: NEBRASKA SERVICE CENTER Date: JUL ~1 0 2006 
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. 8 1 153(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. 
/-",---+ 
~oberty~iemann, Chief 
Administrative Appeals Office 
LIN 05 045 51368 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a limited liability company operating as a silicon metal supplier. It seeks to employ the 
beneficiary as its executive director. 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. 3 1153(b)(l)(C), as a multinational executive or manager. The director determined that the 
petitioner failed to establish that it has a qualifying relationship with a foreign entity and denied the petition. 
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 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)(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 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. 
 204.56)(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; 
LIN 05 045 5 1368 
Page 3 
(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. 
In support of the Form 1-140, the petitioner submitted a statement dated November 18,2004 claiming that the 
beneficiary's foreign employer and the U.S. petitioner are affiliates by virtue of the beneficiary's majority 
ownership and control over both entities. More specifically, the petitioner indicated that the beneficiary owns 
89% of the foreign entity and 50% of the petitioning entity. The petitioner provided the following 
documentation in support of its claim: 
1. 
 The petitioner's Articles of Organization indicating that the petitioner was organized under 
the laws of the state of Michigan in December of 1998. 
2. The petitioner's operating agreement, effective December 21, 1998. Page 11 of the 
agreement contained a breakdown of capital contribution and the profit/loss distribution. It 
is noted that while the profit was shared equally by the beneficiary and his partner, the 
partner contributed 5 1% of the initial contribution and assumed 80% of the company's loss. 
3. 
 A document indicating a state error in not filing the petitioner's Articles of Organization. 
The document is dated March 4, 2003 and acknowledges that the petitioner would be 
treated as a limited liability company as of December 21, 1998, as previously intended by 
the petitioner. 
4. 
 A filing endorsement document dated March 5, 2003 acknowledging receipt of the 
petitioner's Articles of Organization. 
5. 
 Schedule K-1 of the petitioner's 2003 partnership tax return showing that the petitioner's 
profit and loss sharing as well as the capital contribution are equally split between the 
beneficiary and his partner. 
On March 22, 2005, the director issued a request for additional evidence (WE) based on the conflicting 
information he found with regard to the beneficiary's ownership interest in the petitioning entity. Namely, the 
director pointed out that the petitioner's original claim that it is 50% owned by the beneficiary is contradicted 
by the petitioner's own operating agreement, which indicates that the beneficiary only owns 49% of the entity. 
The petitioner was asked to provide documentation of any changes to the ownership structure as well as 
evidence to document that the beneficiary actually has control over the petitioner. 
LIN 05 045 51368 
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The petitioner responded with a statement dated June 1, 2005. The petitioner explained that its profit sharing 
scheme where each partner shares equally in the profits signifies the intent of both partners "to maintain an 
essentially equal share of ownership over the long-term life of the [petitioner]." The petitioner also submitted 
excerpts from its 2002, 2003, and 2004 partnership tax returns. The excerpts are titled "Reconciliation of 
Partners' Capital Accounts" and indicate that the beneficiary and his partner, May Engineering Co., are equal 
contributors to the petitioner's capital. 
On August 15, 2005, the director denied the petition based on the conclusion that the evidence of record does 
not support the petitioner's claim that it is equally owned by the beneficiary and his partner. As the petitioner 
has claimed to be an affiliate of the beneficiary's foreign employer by virtue of the beneficiary's ownership, 
failure to establish that the beneficiary owns and controls the petitioning entity resulted in the director's 
determination that a qualifying relationship does not exist. 
On appeal, counsel asserts that the beneficiary's equal sharing in the petitioner's profits qualifies him as an 
equal owner and in fact conveys the intent that the beneficiary also shares in the petitioner's ownership. 
Counsel also explained the reasons for not having included the equal ownership in the initial operating 
agreement. However, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Thus, 
regardless of any valid reasons for the initial distribution of ownership as provided in the petitioner's 
operating agreement, the record lacks any evidence to suggest that the petitioner has since altered the initial 
ownership scheme. Furthermore, while the petitioner has provided documentation to indicate that it has 
claimed equal capital contribution in its 2002, 2003, and 2004 tax returns, these claims are in direct conflict 
with the petitioner's operating agreement. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In the instant matter, the petitioner does not explain or 
reconcile the conflicting information. 
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. As the petitioner has failed to provide adequate 
documentation establishing that the beneficiary owns and controls the foreign and U.S. entities, the AAO 
cannot conclude that it has the requisite qualifying relationship as mandated by 8 C.F.R. tj 204.50')(3)(i)(C). 
Beyond the director's decision, the regulations require a detailed description of the beneficiary's daily job 
duties in order to determine whether the beneficiary would be employed in an executive or managerial 
capacity. See 8 C.F.R. 
 204.56)(5). While the petitioner in the instant matter provided a description of the 
beneficiary's job responsibilities, the record remains unclear as to what the actual duties the beneficiary would 
perform on a daily basis. Specifics are clearly an important indication of whether a beneficiary's duties are 
LIN 05 045 51368 
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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 (E.D.N.Y. 1989), affd, 905 F.2d 
41 (2d. Cir. 1990). The petitioner must establish that the beneficiary would primarily perfom duties of a 
managerial or executive nature. As the record does not specify actual duties, the AAO cannot conclude that 
the beneficiary would be employed in a 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), aff. 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 for ineligibility discussed above, this 
petition cannot be approved. 
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, afd. 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. fj 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.