dismissed EB-1C Case: Telecommunications / Software

U.S. Department of fxomeland 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. $ I 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. 
-*jj- -6- 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was initially approved by the Director, Texas Service Center. 
Upon further review of the record, the director determined that the petitioner was not eligible for the benefit 
sought. Accordingly, the director properly served the petitioner with a notice of her intention to revoke the 
approval of the preference visa petition (NOR), and her reasons therefore. The director ultimately revoked 
the approval of the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
In Part 5 of its Form 1-140, the petitioner indicated that it was established in July 2001 as a joint venture entity 
created by Internet Payment Services, Inc. (IPS), a Florida corporation, and Startcomrn Corp., a Florida 
corporation. The petitioner claimed that it was established for the purpose of conducting business as a 
telecommunications and communications security software entity. The petitioner seeks to employ the beneficiary 
as its executive director. Accordingly, the petitioner endeavors to classify the beneficiary as an employrnent- 
based immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
1153(b)(l)(C), as a multinational executive or manager. The director revoked approval of the petition based on 
the determination that the petitioner had failed to establish that it had been doing business in the United States for 
one year prior to filing ths petition as required by 8 C.F.R. § 204.5(')(3)(i)(D). 
On appeal, counsel disputes the director's findngs and submits a brief, asserting that the regulatory provision 
upon which the director based her revocation is irrational and erroneous and must not be given deference in 
determining the petitioner's eligbility for the immigration benefit sought. 
Section 203(b) of the Act states, in pertinent part: 
(1) Pnority 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 ths provision to only those executives and managers who have 
previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, and 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 ths proceeding is whether the petitioner had been doing business for at least one year prior 
to the date the Form 1-140 was filed. 
The regulation at 8 C.F.R. tj 204.5(j)(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." 
As briefly discussed above, the petitioner provided the month and year it claimed to have been established. More 
specifically, the petitioner indicated in Part 5 of the Form 1-140 that it was established in July 2001. According to 
the receipt dated stamped on the first page of the petition, Citizenship and Immigration Services (CIS) received 
the completed Form 1-140 on February 7, 2002. Therefore, according to the regulatory requirement specified in 
8 C.F.R. tj 204.5(j)(3)(i)(D), the petitioner must establish that it has been engaged in the "the regular, systematic, 
and continuous" course of business since February 7,2001. See 8 C.F.R. 8 204.5(j)(2). No such evidence was 
submitted in support of the Form 1-140 because, as claimed by the petitioner, the joint venture entity that filed the 
Form 1-140 on behalf of the beneficiary had not yet been formed. 
Although the Form 1-140 was approved, CIS reviewed the supporting documentation subsequent to the 
beneficiary's interview regarding his adjustment of status application, Form 1-485, and determined that the 
petitioner would need to present further documentation in order to establish eligbility for the immigration benefit 
it was seeking. Accordingly, on January 23, 2006, the director issued a NOIR notifying the petitioner that the 
record shows that Startcornrn Corp., one of the alleged members of the joint venture, became inactive on August 
23,2001 and Mer noting that the record does not contain evidence establishing that IPS was in existence and 
doing business for one year prior to filing the instant petition. In light of the director's observations, additional 
documentation was requested. 
In response, the petitioner provided StartComm of Venezuela's board meeting of shareholders and directors as 
well as the English translation of this document, which states that on October 4, 2001, StartComm of Venezuela, 
C.A.'s shareholders unanimously voted to form a joint venture alliance with IPS. The record also contains a copy 
of the joint venture agreement signed on October 4, 2001 by representatives of StartCornm Venzuela and IPS, 
respectively. It is noted that the joint venture agreement states that the newly created company will be called 
SCIP and further addresses how SCIP will be operated and managed. 
On August 23, 2006, the director issued a final notice revokmg the prior approval of the Form 1-140. 
Specifically, the director restated that StartComm Corp. became inactive on August 23, 2001 and further noted 
that IPS failed to establish that it was in existence and doing business in the United States for at least one year 
prior to filing the Form 1-140. The AAO notes that StartCornm Corp.'s inactive business status brings to light 
questions as to how an inactive entity can partake in a joint venture or in any business transaction. 
Additionally, while the director's observations are accurate, the AAO notes that the more relevant issue in the 
present matter is the lack of documentation establishing the existence of SCIP, the entity discussed in the joint 
venture agreement, and, more importantly, the entity that is purportedly the petitioner that filed the Fonn 1-140 in 
order to permanently employ the beneficiary. There is no evidence that SCIP, as a separate entity, was actually 
formed. 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)). Without the fundamental 
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documentation establishing the petitioner's legal existence, the AAO must question which entity would actually 
employ the beneficiary in the United States in the proffered position. 
Moreover, even if the existence of the U.S. petitioner were not in any way in question, the mere fact that Part 5 of 
the Form 1-140 indicates that the petitioning entity was established in July 2001 clearly establishes that the 
petitioner could not have been doing business for longer than seven months prior to filing the Form 1-140. As the 
petitioner could not have been doing business for at least one year prior to filing a Form 1-140, it fails to meet the 
criteria specified in 8 C.F.R. $204.56)(3)(i)(D). 
On appeal, counsel disputes the validity of 8 C.F.R. 3 204.5(j)(3)(i)(D), urging the MO to find the regulation 
invalid. Counsel bases hs dubious argument on case law precedent set by the U.S. Supreme Court as well as a 
number of circuit courts where various regulatory requirements had been invalidated based on the respective 
courts' adverse findings. Counsel's argument is premised on the assumption that the MO may ignore various 
regulations at its own discretion. This conjecture, however, is absolutely without basis, as the AAO has no legal 
authority to disregard or nullify any regulation, including the one at issue in the present matter. As counsel has 
not presented any case law precedent nullifying 8 C.F.R. $204.5Cj)(3)(i)(D), the petitioner must comply with that 
regulation by establishing, first and foremost, its legal existence and second, that it was doing business during the 
course of the one-year period prior to the date the Form 1-140 was filed. In the present matter, counsel does not 
contend, nor is there any doubt, that the petitioner has failed to establish that it was doing business for the 
prescribed one-year time period. Rather, in light of the petitioner's claimed date of establishment and the date the 
Form 1-140 was filed, doing business since February 2001 is a factual impossibility. Therefore, the petitioner has 
failed to meet the provisions of 8 C.F.R. $ 204.56)(3)(i)(D). On this initial basis, the AAO cannot approve this 
petition. 
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. Similarly, 8 C.F.R. $ 204.5(j)(5) also 
instructs the petitioner to provide a job offer in the form of a statement, containing a description of the job 
duties to be performed by the beneficiary. In the present matter, the beneficiary's past and proposed 
employment is described using vague and ambiguous terms that give the impression of a manager or 
executive, but in essence, fail to convey a meaningful understanding of the actual tasks the beneficiary has 
performed and would perform on a daily basis. 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
1989), affd, 905 F.2d 41 (2d. Cir. 1990). Without sufficient information about the beneficiary's actual job 
duties and his position with respect to others in each entity's organizational hierarchy, the AAO does not have 
sufficient information in order to determine that the beneficiary's foreign and proposed employment can be 
classified as being in a managerial or executive capacity. 
Second, 8 C.F.R. $ 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. In the present matter, the support letter dated January 
3 1, 2002 stated that the joint venture entity, created by IPS and StartComm Communications (a Venezuelan 
entity), would be the U.S. petitioner and that the beneficiary's foreign employer was OEM. The regulations 
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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, I9 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 present matter, there is no information or evidence that would lead to the conclusion that the 
petitioning entity (assuming that it is a legally created entity) and the beneficiary's foreign employer shared 
common ownership and control. Rather, the petitioner primarily focused on common ownership between the 
two entities that created the joint venture agreement, despite the fact that neither entity was claimed to be the 
official foreign employer of the beneficiary. As the record contains no documentation establishing the 
ownership of the beneficiary's foreign employer, the AAO cannot conclude that this entity and the proposed 
petitioning entity share common ownership and control. 
Lastly, the regulation at 8 C.F.R. § 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 present matter, the petitioner is claimed to be an entity that purportedly resulted from a joint venture 
agreement. However, as previously discussed, the legal existence of this entity has not been established. 
Accordingly, it serves to reason that an entity whose legal existence has not been established cannot establish 
the ability to pay the beneficiary's proffered wage, which, in the present matter, was claimed to be in excess of 
$150,000 annually. 
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, lnc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 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 issues discussed above, this petition cannot be 
approved. 
When the AAO revokes approval of a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if she shows that the AAO abused it 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 approval of the petition is revoked for the above stated reasons, with each considered as an independent 
and alternative basis for revocation. 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.