dismissed EB-1C Case: Software Development And Consulting

i~~*~to 
preva chdy -ted 
invasion of personal privacy 
US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
b(-/ 
SRC 07 800 09393 
section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. $ 11 53(b)(l)(C) 
ON BEHALF OF PETITIONER: 
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. 
uobert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
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 petiticier is a limited liability company organized under the laws of the State of Texas. It claims to be a 
software development and consulting entity, which seeks to employ the beneficiary as its director of business 
development and operations. 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. 5 1153(bXl)(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 that basis. 
On appeal, counsel disputes the director's conclusion 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. 5 204.5(j)(2) states in pertinent part: 
Aflliate 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. 
Subsidiay 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 a letter dated March 13, 2007, the petitioner stated that Atlantic-Crossing India Pvt. Ltd. (AC-India), the 
beneficiary's foreign employer, owns 30% of the petitioning entity. No information was provided regarding 
the ownership of the remaining 70%. However, the petitioner claimed that it is controlled by the Indian 
company, which has claimed to be 99% owned by the beneficiary. In support of its claim, the petitioner 
provided a stock purchase agreement, dated August 1, 2006, which memorializes the foreign entity's 
ownership interest and consequent voting privileges that accompany the 30% ownership. 
After reviewing the material provided, the director issued a decision dated October 15, 2007 denying the 
petition on the basis that the petitioner failed to establish that it has a qualifying relationship with the 
beneficiary's foreign employer. The director noted that ownership of the remaining 70% of the U.S. entity 
would have to be so widely dispersed as to give the Indian entity effective control. 
On appeal, counsel asserts that the petitioner is the foreign entity's subsidiary, claiming that even though the 
foreign entity owns less than half of the U.S. petitioner, it in fact controls the company. In support of this 
assertion, counsel provides a copy of an agreement dated March 5, 2007 between the U.S. petitioner and the 
beneficiary's foreign employer. The agreement provides that the foreign entity will control the petitioner's 
board and management, govern the petitioner's corporate framework, establish how the petitioner will be 
managed and overseen, and recognize the roles and responsibilities of the board and management of the 
petitioner. However, regardless of the significance of this agreement on the petitioner's business relationship 
with the foreign entity, the document's signature page shows that the foreign entity's representative did not 
sign the document until "5-04-2007." Case law precedent has established that a 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). In the 
present matter, the Form 1-140 was filed on March 29, 2007. Even though the agreement was signed by the 
petitioner's representative on March 5, 2007, it could not have gone into effect prior to the other party's 
signing the agreement, which, based on the date provided by the signing party, had not taken place as of the 
date the petition was filed. 
Furthermore, 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 ofHughes, 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 general evidence of a petitioner's claimed qualifying relationship, 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 of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362. Without full disclosure 
of all relevant documents, CIS is unable to determine the elements of ownership and control. 
In the present matter, the petitioner has provided no documentation establishing who owns the remaining 70% 
of the company or what role that 70% ownership had in controlling the petitioner prior to the above discussed 
agreement. Depending on the latter factor, the validity of the above agreement may be in question. While the 
petitioner provides a memorandum dated March 1, 2007 indicating that the petitioner's board of directors has 
agreed to the new controlling structure, there is no documentation establishing who sits on the petitioner's 
board of directors. This overall lack of documentation detracts from the validity of the agreement that is 
meant to restructure who has control over the petitioning entity. 
Accordingly, based on the above findings, the AAO concludes that the petitioner has failed to establish that it 
has a qualifiing relationship with the beneficiary's foreign employer. On this basis, this petition cannot be 
approved. 
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, the petitioner must establish that the beneficiary's foreign employment and her proposed employment 
under an approved visa petition can be classified as managerial or executive. With regard to the foreign 
employment, 8 C.F.R. 5 204.5(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 her entry into the United States as a nonimmigrant to work for the same employer. Similarly, 8 C.F.R. 
5 204.5Q)(5) requires that the petitioner provide a statement describing the beneficiary's duties in order to 
establish that the beneficiary would be employed in rhe United States in a qualifying managerial andlor 
executive capacity. In the instant matter, while the petitioner addresses the beneficiary's foreign and proposed 
positions, the respective descriptions are primarily comprised of generalized job responsibilities that fail to 
establish what actual duties the beneficiary performed abroad and the duties she would perform while 
employed by the petitioner. 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. 5 204.56)(5). Specifics are 
clearly an important indication of whether a beneficiary's duties are 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. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). As the petitioner 
has not provided critical information regarding the beneficiary's specific job duties, it cannot be concluded 
that the beneficiary was employed abroad and would be employed in the United States in a qualifying 
managerial or executive capacity. 
Second, 8 C.F.R. 5 204.56)(3)(i)(D) states that the petitioner must establish that it has been doing business for 
at least one year prior to filing the Form 1-140. The regulation at 8 C.F.R. 5 204.56)(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." In the present matter, 
the petitioner has provided its balance sheet representing its profits and liabilities as of March 19, 2007. 
However, this document does not establish that the petitioner has been selling its services in a manner that is 
consistent with doing business. That being said, in order to establish that it is multinational entity; the 
petitioner must establish that its foreign counterpart with whom it claims to have a qualifying relationship 
continues to do business. See 8 C.F.R. 5 204.5Cj)(2) for definition of multinational. In the present matter, the 
petitioner has not provided any documentation to establish that the foreign entity continues to provide 
services on a regular, systematic, and continuous 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), 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 grounds of ineligibility discussed above, this 
petition cannot be approved. 
Lastly, counsel makes a brief reference to the petitioner's current approved L-1 employment of the 
beneficiary. With regard to the beneficiary's L-1 nonimmigrant classification, it should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by Citizenship and Immigration Services (CIS) than nonimmigrant petitions. The AAO acknowledges that 
both the immigrant and nonimmigrant visa classifications rely on the same definitions of managerial and 
executive capacity. See $8 101(a)(44)(A) and (B) of the Act, 8 U.S.C. 5 1101(a)(44). Although the statutory 
definitions for managerial and executive capacity are the same, the question of overall eligibility requires a 
comprehensive review of all of the provisions, not just the definitions of managerial and executive capacity. 
There are significant differences between the nonimmigrant visa classification, which allows an alien to enter 
the United States temporarily for no more than seven years, and an immigrant 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: $5 204 and 2 14 of the Act, 8 U.S.C. $5 1 154 and 1 184; see also 5 3 16 of the 
Act, 8 U.S.C. 3 1427. 
In addition, because CIS spends less time reviewing Form 1-129 nonimmigrant petitions than Form 1-140 
immigrant petitions, some nonimmigrant L- 1 petitions are simply approved in error. Q Data Consulting, Inc. 
v. INS, 293 F. Supp. 2d 25,29-30 (D.D.C. 2003) (recognizing that CIS approves some petitions in error). 
Moreover, 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. CIS 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 in the present matter. The approval of a nonimmigrant 
petition in no way guarantees that CIS will approve a subsequently filed immigrant petition on behalf of the 
same beneficiary. CIS denies many 1- 140 immigrant petitions after approving prior nonimmigrant I- 129 L- 1 
petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. ofJustice, 48 
F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AA.0 would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
200 1 ), cert. denied, 122 S.Ct. 5 1 (2001). 
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. 8 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.