dismissed EB-1C Case: Software Development

U.S. Department of IIorneland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
i;l, .I/ 
Office: TEXAS SERVICE CENTER Date: ET 2 4 2006 
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. 5 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. 
7 
'f-e, 
ROW P. Wrernann, 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 Florida corporation engaged in the development of diagnostic software and tools designed 
for use in the automotive and property management industries.* It seeks to employ the beneficiary as its vice 
president. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Ikmigration and Nationality Act (the Act), 8 U.S.C. 
5 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 the beneficiary's foreign employer and denied the petition. 
On appeal, counsel disputes the director's conclusion and underlying analysis and submits a brief in support 
of her 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 primary 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. 5 204.50)(2) states in pertinent part: 
AfJiliate 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. 
In support of the Form 1-140, the petitioner submitted.a letter dated November 2, 2005, which states that the 
beneficiary's foreign employer is the petitioner's affiliate. Counsel supplemented the petitioner's statement 
with a letter dated November 4, 2005' in which she identified the four individuals who cumulatively own 
96% of the foreign entity and the same four individuals who cumulatively own 80% of the U.S. entity. 
Counsel emphasized that four of the five individuals who own the petitioner also own the foreign entity.' 
Based on this common ownership, counsel asserted that the petitioner has an affiliate relationship with the 
foreign entity. 
On November 21, 2005, the director issued a notice of intent to deny (NOD) the petitioner's Form 1-140 and 
requested that additional documentation be submitted. The director stated that the intended ground for denial 
was the petitioner's lack of a qualifying relationship with the beneficiary's foreign employer. 
In response, counsel submitted a letter dated December 20, 2005 discussing her reasons for disagreeing with 
the director's finding. Primarily, counsel discussed case law, which she claimed supported her interpretation 
of the definition of affiliate and cited what she perceived as the relevant section of the ~ct.~ 
On January 9, 2005, the director denied the petition concluding that the case law discussed by the petitioner is 
consistent with the regulatory definition of affiliate. 
I 
 On the first page of counsel's supplemental statement, counsel stated that the petitioner filed a Form 1-140 on behalf of 
the petitioner pursuant to 3 101(a)(15)(L) of the Act. The AAO notes, however, that the portion of the Act cited by 
counsel defines the various categories of nonimmigrants and is therefore irrelevant in the instant matter, which involves 
the filing an immigrant petition. While the AAO duly notes counsel's error, it will rely on the statutory and regulatory 
provisions that are relevant to the type of immigration benefit sought by the petitioner in the instant matter. 
2 
 It is noted for the record that, although'counsel claims 96% of the foreign entity is owned by four individuals, based on 
the evidence of record presented, it appears instead that these four individuals own 100% of the foreign entity, each 
owning 24 shares. 
3 
 Contrary to counsel's assertion, 9 101(a)(15)(L) of the Act does not contain the provisions that are relevant to the filing 
of an immigrant petition. 
On appeal, counsel cites Sun Moon Star Advanced Power, Inc. v. Chappel, 773 F. Supp. 1373 (N.D. Cal 
1990), asserting that two companies may be affiliated even though they are not owned by the exact same 
individuals. In the Sun Moon Star decision, the-Immigration and Naturalization Service (now CIS) refused to 
recognize the indirect ownership of the petitioner by three brothers, who held shares of the company as 
individuals through a holding company. The decision further noted that the two claimed affiliates were not 
owned by the same group of individuals. The court found that the Immigration and Naturalization Service 
decision was inconsistent with previous interpretations of the term "affiliate" and contrary to congressional 
intent because the decision did not recognize the indirect ownership. After the enactment of the Immigration 
Act of 1990, the Immigration and Naturalization Service amended the regulations so that the current 
definition of "subsidiary" recognizes indire~t ownership. See 56 Fed. Reg. 61 11 1, 61 128 (Dec. 2, 1991). 
Accordingly, the basis for the court's decision has been incorporated into the regulations. However, despite 
the amended regulation and the decision in sun Moon Star, neither legacy Immigration and Naturalization 
Service nor CIS has ever accepted a random combination of individual shareholders as a single entity, so that 
the group may claim majority ownership, unless the group members have been shown to be legally bound 
together as a unit within the company by voting agreements or proxies. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 5 1 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
In this case the U.S. entity is owned by five individuals, and the foreign entity is owned by four individuals. 
Absent documentary evidence such as voting proxies or agreements to vote in concert so as to establish a 
controlling interest, the petitioner has not established that the same individuals own and control both entities. 
Thus, the companies are not affiliates as both companies are not owned and controlled by the same 
individuals. 
Counsel also cites Matter of Tessel, Inc., 17 I&N Dec. 631 (Acting Assoc. Comm. 1981) as case law 
precedent, which she perceives as supporting her reasoning and definition of an affiliate. However, counsel 
has misconstrued the decision. In the Tessel decision, the beneficiary solely owned 93% of the foreign 
corporation and 60% of the petitioning organization, thereby establishing a "high percentage of common 
ownership and common management . . . ." It was further determined that "[wlhere there is a high percentage 
of ownership and common management between two companies, either directly or indirectly or through a 
third entity, those companies are 'affiliated' within the meaning of that term as used in section 101(a)(15)(L) 
of the Act." Id. at 633. The facts in the present matter can be distinguished from Matter of Tessel because no 
one shareholder holds a majority interest in either corporation. The record, therefore, fails to demonstrate that 
there is a high percentage of common ownership and common management between the two companies. 
Accordingly, based on the evidence submitted, it is concluded that the petitioner has not established that a 
qualifying relationship exists between the U.S. and foreign organizations. 
Furthermore, the record supports a finding of ineligibility based on additional grounds that were not 
previously addressed in the director's decision. 
First, 8 C.F.R. 
 204.50)(5) states that the petitioner must provide a detailed description of the beneficiary's 
proposed duties in order to establish that it would employ the beneficiary in a qualifying managerial or 
executive capacity. When examining the executive or managerial capacity of the beneficiary, the AAO will 
look first to the petitioner's description of the job duties. Id. In the instant matter, the petitioner has stated that 
the beneficiary's proposed position in the United States would include overseeing software development and 
equipment maintenance, directing the general management of the business, and exercising discretionary 
authority over the petitioner's personnel and its overall business activity. However, reciting the beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. The petitioner has failed to answer a critical question 
in this case: What would the beneficiary primarily do on a daily basis? The actual duties themselves will 
reveal the true nature of the employment. Fedin Bros, Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, in light of the nature of the petitioner's business whose primary focus is the provision of services, 
the petitioner must identify who is actually providing those services. It is noted that 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). Thus, the petitioner must establish that the 
beneficiary himself is not providing the petitioner's services. In the instant matter, the petitioner's 
organizational chart does not identify any employees aside from the beneficiary who would actually provide 
services to the petitioner's clientele. Based on both the lack of a detailed job description and an adequate 
support structure, the AAO cannot conclude that the Form 1-140 was filed at a time when the petitioner was 
able to sustain the beneficiary in a primarily managerial or executive capacity. 
Second, 8 C.F.R. 9 204.56)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Fonn 1-140. The regulation at 8 C.F.R. 8 204.56)(2) states that doing 
business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." Although the 
petitioner has described itself as a service providing entity, there are no invoices to show that it was providing 
its services on a "regular, systematic, and continuous" basis in November and December of 2004, or in February, 
March, and May of 2005. See id. Therefore, the AAO cannot conclude that the petitioner was doing business in 
the prescribed manner during the requisite time period as specified in 8 C.F.R. 9 204.56)(3)(i)(D). 
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 @.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the three additional grounds of ineligibility, th~s 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 
Page 6 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.