dismissed EB-1C Case: Technology

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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. fj 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
'> 
* 4- 
~okrt P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner was incorporated in the State of California in 1997. It seeks to employ the beneficiary as its 
president. 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(b)(l)(C), as a multinational executive or manager. The director denied the petition based on the 
following independent grounds of ineligibility: 1) the petitioner failed to establish that it has a qualifying 
relationship with a foreign entity; 2) the petitioner failed to establish that it would employ the beneficiary in a 
managerial or executive capacity; 3) the petitioner failed to establish its ability to pay the beneficiary's 
proffered wage; and 4) the petitioner failed to establish that it continued to do business after filing the 
petition. 
On appeal, counsel disputes the director's conclusions and submits additional documentation in an effort to 
overcome the grounds for denial cited by the director. 
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 first issue in this proceeding is whether the petitioner has a qualifying relationship with a foreign entity. 
The regulation at 8 C.F.R. 5 204.5Cj)(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; 
(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 April 29, 2005 in which it described its 
relationship with the beneficiary's foreign employer as that of parent and subsidiary, the latter term applying 
to the petitioner. More specifically, the petitioner claimed to be 80% owned by the foreign entity. The 
petitioner also provided a separate list of subsidiary companies and shareholders, which identified the 
petitioner as a subsidiary of LabMetnx Technologies with 60% of its stock held by the parent entity. 
Additionally, the petitioner provided stock certificate No. 1 showing that 200,000 shares of stock was issued 
to Mohammed Zoubair El Fallah and stock certificate No. 3 showing that LabMetrix Technologies I&T, S.A. 
was issued 200,000 of the petitioner's stock. 
On January 3 1, 2006, Citizenship and Immigration Services (CIS) issued a request for additional evidence 
(RFE) instructing the petitioner to provide the following documentation to establish the petitioner's 
relationship, if any, with the beneficiary's foreign employer: 1) documentation showing the foreign entity's 
payment for the petitioner's stock; 2) all stock certificates issued by the petitioner; 3) the petitioner's stock 
ledger; 4) Notice of Transactions Pursuant to Corporations; and 5) the foreign entity's annual report with a full 
list of its affiliates, subsidiaries, and branch offices. 
In response, the petitioner resubmitted the stock certificates and the list of subsidiaries and shareholders, both 
of which were previously submitted in support of the petition. The petitioner also provided its tax return for 
2004 in which Statement 9, supplement to Schedule K, states that LabMetrix Group owns 75% of the U.S. 
entity. Although, the petitioner provided the foreign entity's Articles of Incorporation, they do not assist CIS 
in determining the foreign entity's ownership interests in the petitioning entity. The petitioner failed to 
provide documentation establishing the foreign entity's payment for the petitioner's stock, and the record does 
not explain the absence of stock certificate No. 2 or the discrepancy regarding the percentage owned by the 
parent entity. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. fj 103.2(b)(14). 
On May 17, 2006, the director denied the petition citing as the first ground for denial the petitioner's failure to 
provide sufficient evidence and to reconcile certain discrepancies regarding its ownership. More specifically, 
the director questions the validity of the petitioner's initial claim and supporting documentation suggesting 
80% ownership by the foreign entity, in light of subsequent documentation which suggest 60% or possibly 
75% ownership by the foreign entity. 
On appeal, the petitioner provides a letter dated June 12, 2006 in which its operations supervisor, 
reiterates the petitioner's initial claim of 80% ownership by the beneficiary's foreign employer. 
resubmits the petitioner's tax returns, claiming that they show the amount of money the foreign entity has 
contributed to funding the petitioner's operations. However, the tax returns, all of which account for time 
periods prior to the filing of the Form 1-140, merely indicate the amount of funds borrowed by the U.S. 
petitioner. 
 Moreover, even though the petitioner's tax returns through 2003 indicate that LabMetrix 
Technologies, S.A. was the owner of 80% of the petitioner's stock, the petitioner was the direct source for this 
information. In light of other conflicting documentation, i.e., the petitioner's stock certificates, the statement 
of subsidiaries and shareholders, and the petitioner's tax return for 2004, the reliability of information 
provided by the petitioner is dubious at best. The petitioner must submit competent objective evidence to 
reconcile the considerable inconsistencies presented by the petitioner with regard to the percentage of stock it 
has issued to its claimed parent entity. See Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In the 
instant matter, such evidence has not been provided. Doubt cast on any aspect of the petitioner's proof may, 
of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition. Id. Therefore, even though a qualifying relationship may exist regardless of whether the 
foreign entity owns 60%, 75%, or 80% of the U.S. entity, the fact that all three claims have been made at 
various times throughout this proceeding without reconciling the apparent inconsistency leads to overall 
doubts as to the petitioner's credibility. Accordingly, the AAO concludes that the petitioner has failed to 
overcome the adverse evidence cited in the director's decision and, therefore, has failed to establish that a 
qualifying relationship exists between the U.S. petitioner and the beneficiary's foreign employer as claimed. 
The second issue in this proceeding is whether the petitioner would employ the beneficiary in a managerial or 
executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 8 1 10 1 (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 
Page 5 
considered to be 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. § 1 lOl(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in 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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In the denial, the director restated the beneficiary's job descriptions provided by the petitioner in support of 
the Form 1-140. As such, the AAO need not restate the petitioner's statements in this discussion. The AAO 
notes that CIS found the petitioner's initial statement describing the beneficiary's proposed position to be 
insufficient. As such, the RFE specifically instructed the petitioner to provide a detailed list of the 
beneficiary's proposed duties and the percentage of time the beneficiary would spend on each individual duty. 
The petitioner was also instructed to list the employees under the beneficiary's supervision. 
In response, the petitioner provided the following description of the beneficiary's proposed U.S. employment: 
The position of CEO is an executive-level position primarily responsible for the entire 
company. It involves management of critical technical, research, marketing, and sales 
departments for the company. The CEO controls, plans, and oversees the company's major 
functions and works with department heads to achieve the company's goals. He is charged 
with guiding the business' growth, setting goals/objectives, and maintaining its reputation 
within the industry. He has wide-latitude in discretionary decision-making and serves as the 
company representative when meeting with partners, clients, and other industry players. 
70% of his time is spent supervising and guiding the different departments at LabMehix 
France. He spends his time meeting with different department heads as they report to him the 
current operations of each department. He provides guidance and directs the head of each 
department; however, he does not directly supervise the employees within each department, 
leaving that responsibility up to the department leader. 
[The beneficiary] does possess unique technical expertise which is particularly useful in 
supervising the [rlesearch & [dlevelopment department. Occasionally, he will provide his 
Page 6 
input to solve a challenging technical problem. However, his relationship with the R&D 
department is to provide guidance and supervision, not to be engaged in low-level production 
tasks. The beneficiary also does not engage in customer troubleshooting or customer service 
calls. 30% of his time will be spent on working with the [rlesearch & [dlevelopment team. 
As noted by the director in the subsequent denial, the petitioner did not provide a quarterly wage report for the 
third quarter of 2005, the three-month period during which the petitioner filed its Form 1-140. While the 
petitioner provided the quarterly wage reports for the three remaining quarters of 2005, the AAO notes, as did 
the director, that the petitioner's number of employees drastically dropped from the second quarter to the 
fourth quarter. The director further pointed out the discrepancy between the petitioner's initial claim of 12 
employees and the organizational chart, which identified three employees under the beneficiary's supervision. 
Although the AAO notes that the RFE requested a current organizational chart, none of the petitioner's 
submitted quarterly wage reports for 2005 identified 12 employees during any one month. Rather, the largest 
number of employees in 2005 was during the first quarter when the petitioner had nine employees. 
On appeal, the petitioner's operations supervisor,, provides a general overview of the beneficiary's 
discretionary authority. 
 However, she does not elaborate or provide any specific duties, as had been 
previously requested in the RFE. Nor does she offer a plausible explanation for the petitioner's failure to 
provide the most relevant of the four quarterly wage reports, which would have provided CIS with an 
indication as to the personnel make-up of the petitioning entity during the relevant time period. 
In examining the executive or managerial capacity of the beneficiary, CIS will look first to the petitioner's 
description of the job duties. See 8 C.F.R. 5 204.5Cj)(5). In the instant matter, the petitioner has provided a 
general description of the beneficiary's overall job responsibilities, which primarily include supervision over 
a staff of employees whose existence has not been substantiated by the submission of documentary evidence. 
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 Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Despite the RFE request for a 
specific list of the beneficiary's proposed day-to-day duties, the petitioner provided general information, 
which failed to disclose what the beneficiary would actually be doing on a daily basis. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
On review, the record as presently constituted is not persuasive in demonstrating that a majority of the 
beneficiary's duties would be primarily of a qualifying nature. The record is inconclusive as to the petitioner's 
staffing at the time the petition was filed. As such, the AAO cannot determine whether the petitioner was 
adequately staffed to relieve the beneficiary from having to primarily perform the petitioner's daily 
operational tasks. 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 10 1 (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 International, 19 I&N Dec. 593, 604 (Comm. 
1988). Based on the evidence furnished, it cannot be found that the beneficiary has been or will be employed 
primarily in a qualifying managerial or executive capacity. 
The third issue in this proceeding is whether the petitioner has established its ability to pay the beneficiary's 
proffered wage. 
The regulation at 8 C.F.R. 5 204.5(g)(2) states, in pertinent part: 
Ability of prospective employer to pay wage. Any petition filed by or for an employment- 
based immigrant which requires an offer of employment must be accompanied by evidence 
that the prospective United States employer has the ability to pay the proffered wage. The 
petitioner must demonstrate this ability at the time the priority date is established and 
continuing until the beneficiary obtains lawful permanent residence. Evidence of this ability 
shall be in the form of copies of annual reports, federal tax returns, or audited financial 
statements. 
In the April 29, 2005 letter submitted in support of the Form 1-140, the petitioner stated that the beneficiary 
would receive a net salary of $1 18,784.00 annually. Part 6, Item 9 of the Form 1-140, however indicates that 
the beneficiary would receive $3,173 .OO per week, which is approximately $165,000 annually. While it is 
possible that the latter figure is a representation of the beneficiary's proffered gross salary, the petitioner did 
not clarify or explain the two distinct claims. 
In the denial, the director enumerated the petitioner's net current assets as listed in tax returns 2001-2004. The 
director also discussed the beneficiary's W-2 statements for 2004, which showed a salary of $1 18,784.74, and 
2005, which showed a salary of $93,669.63. Additionally, the director reviewed the letter submitted from the 
petitioner's CPA attesting to the petitioner's ability to pay the beneficiary's proffered wage as well as the letter 
from the petitioner's operations supervisor claiming that the beneficiary has been employed by the petitioner 
since July 2003 and has received a salary of $165,000. The director properly found that neither letter was 
reliable evidence of the petitioner's ability to pay. The AAO further notes the petitioner's failure to provide 
evidence to support the claims made in the operations supervisor's letter. 
On appeal, the petitioner provides a letter dated June 12, 2006 from the operations supervisor. - 
maintains the statements made in her prior letter and further explains that in addition to compensation 
provided directly by the petitioner, the beneficiary also received compensation from the petitioner's claimed 
foreign affiliate and that combined these two sources of compensation provided the beneficiary with a total of 
$165,000. The petitioner also provides a letter from the French entity's account reiterating the financial 
figures in 
 statement. However, despite any compensation provided by the foreign entity, the 
above regulation specifically states that the prospective U.S. employer must be able to compensate the 
proffered wage. Therefore, the foreign entity's contribution is irrelevant. The record as presently constituted 
lacks evidence to show that the U.S. petitioner was able to pay the beneficiary a proffered wage of $165,000 
annually as indicated in the Form 1-140. While the initial support letter indicates a proffered wage that is 
significantly lower than what was indicated in the petition, this discrepancy merely shows an inconsistency in 
the petitioner's claim. 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. at 591-92. In the instant matter, the petitioner has provided no plausible explanation for claiming 
two significantly different proffered wages in two documents that were submitted simultaneously. Thus, not 
only has the petitioner failed to provide evidence to support claims made in the Form 1-140, the record also 
contains statements that are clearly inconsistent with the petition itself. As such, the AAO concludes that the 
petitioner has failed to provide evidence that is sufficiently consistent and reliable to establish its ability to 
Pay - 
The remaining issue in this proceeding is whether the petitioner has continued to do business since the filing 
of its Form 1-140. In the denial, the director points out information provided in the petitioner's fourth 
quarterly wage report for 2005, which indicates that the petitioner went from having three employees during 
the first two months of the fourth quarter to having no employees during the last month of the same quarter. 
The regulation at 8 C.F.R. 5 204.5(j)(2) states that doing business means "the regular, systematic, and continuous 
provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence 
of an agent or office." The director expressed doubt as to the petitioner's ability to continue doing business at 
a time when it had no staff. 
On appeal, the petitioner provides employee earning records for checks dated through December 3 1, 2005. 
The records identify four employees and indicate that each employee was paid biweekly through and 
including December 15, 2005, which falls squarely in the last month of the fourth quarter. However, the 
earning records and the petitioner's fourth quarterly wage report are inconsistent in a number of ways. First, 
the petitioner provided Laming records for 
 and - neither of whom was 
identified in the petitioner's fourth quarterly wage report. Second, while the quarterly wage report shows the 
beneficiary as an employee of the petitioner, no earning record was provided for him. Thus, between the 
quarterly wage report and the earning records, the petitioner is hypothetically claiming to have had five 
employees from November through December of 2005. The AAO cannot overlook the fact that these two 
documents are entirely inconsistent as to the number of employees the petitioner may have had at any time 
during the third month of the fourth quarter of 2005. While the director's analysis does not review the 
"regular, systematic, and continuous" nature of the petitioner's business transactions, the petitioner's credibility is 
undermined by its submission of inconsistent documentation. Doubt cast on any aspect of the petitioner's proof 
may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. at 591. Based on the unreliable and inconsistent 
evidence provided, the AAO cannot conclude that the petitioner continued to carry on business in a "regular, 
systematic, and continuous" manner after the filing of its Form 1-140. For this additional reason, the petition may 
not 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 1025, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9th Cir. 2003). 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.