dismissed EB-1C Case: Transportation And Freight Shipping

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DATE: MAR 11 2013 
INRE: Petitioner: 
Beneficiary: 
I . 
OFFICE: TEXAS SERVICE CENTER 
\ 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and · Immigration 
Services 
·FILE: 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have bee~ returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the hiw in reaching its decision, or yo·u have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in · · 
accor~ance with the instructions on Form I-2908; Notice of Appeal or Motion, with a fee of $630. The : 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile ~my m9tion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen . . 
,. ~ Acting·· · ief, Administrative Appeals Office 
www.uscis.gov 
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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 engaged in "tra'nsportation and freight shipping," and 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)(1)(C) of the Immigration and Nationality. 
Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. · 
The director denied the petition on April 17, 2012, concluding that: (1) the petitioner failed to 
establish the existence of a qualifying relationship between the petitioner's foreign employer and the 
petitioner; and, (2) the petitioner failed to establish th~t the beneficiary's proposed employment with· 
th~ U.S. entity would be within a qualifying managerial or executive capacity. 
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)(1)(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 alitm. · · 
The first issue in this proceeding is whether the petitioner submitted· sufficient evidence to establish 
that it has a qualifying relationship with the beneficiary's foreign employer. To .establish a 
"qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S .. 
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entity with a foreign office) or related as a "parent and subs~diary" or as "affiliates." See generally 
· § 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5(j)(2)·· (providing 
definitions of the terms "affiliate" and "subsidiary"). · 
The regulation at 8 C.F.R. § 204.50)(2) states i"n pertinent part: 
Affiliate means: 
(A) . Orie 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 individtlals, 
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, . cond~cts 
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 own.s, 
directly or indirectly, more than half of the entity and controls the entity; or o-.yns, 
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 the director's decision, the director noted that the documents submitted did not establish a 
relationship between the foreign companies and the petitioner. On appeal, counsel contends that the 
petitioner and the foreign companies are "organizationally and purposefully_ linked as well as bound · 
by common ownership." Counsel further states that the beneficiary is the "majority owner~of ali three 
entities." 
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 · 
(Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm 'r 1986}; 
Matter of Hughes, 18 I&N Dec. 289 (Comm'r 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, corpor~te bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the total 
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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 comp;my 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., supra. Without full" disclosure of all relevant documents, ' USCIS is unable to 
determine the elements of ownership and control. 
The petitioner submitted Stock Certificates Number 3 and 4 for the petitioner. Stock certificate 
number 3 states that the beneficiary has 66 percent ownership of the petitioner, and stock certificate 
number 4 states that has 34 percent ownership of the petitioner. However, the 
petitioner did not submit stock certificates 1 and 2, and did not explain why they were not submitted. 
In addition, the petitioner did not submit a stock ledger or supporting documentation to corroborate 
the petitioner's ownership. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sot/ici, 22 I&N 
Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 141&N Dec. 190 (Reg. 
Comm'r 1972)). 
Furthermore, the petitioner submitted Schedule K-1, Form 1065, for 2011 that indicated that the 
beneficiary owned 99 .percent of the petitioner, and owned 1 percent of the petitioner. 
Thus, the ownership information on the tax records is conflicting with the stock certificates. 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). . 
The petitioner also submitted documents for the foreign companies such as articles of continuance, ~ 
notice of change of directors, notice of address change, bank statements, certificate of incorporation, 
and articles of incorporation. However, all of the documents submitted for the foreign companies do 
not indicate the ownership of these companies. Several documents name the beneficiary as director, 
secretary, incorporator or member but no document names the beneficiary as a majority owner of the 
two foreign companies. 
In. the request for evidence, the director specifically requested additional information to establish the'. 
qualifying relationship between the petitioner and the beneficiary's foreign employer. : Although · 
specifically requested by the director, the petitioner did not provide the requested evidence. The . 
petitioner's failure to submit this information cannot be excused. The failure to submit requested · 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. See 8 . 
C.F.R. § 103.2(b)(14). The director appropriately denied the petition, in part, for failure to submit 
requested evidence. 
The petitioner did not submit sufficient evidence to establish that it has a qualifying relationship with 
the beneficiary's foreign employer. 
The second issue that will be addressed in this proceeding call for an analysis of the beneficiary's job: 
duties. Specifically, the AAO will examine the record to determine whether the petitione~ submitted 
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sufficient evidence to establish that the beneficiary would be emp~oyed in the United States in a. 
qualifying managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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 perso·':lnel 
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 considered to be acting in a managerial capacity merely by virtue 
of the superviso_r's supervisory duties unless the employees superv~sed 
are professional. · · 
_ Section 101.(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides: 
. . 
The term "executive capacity" means an as-signment 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-making; . and ' .. 
(iv) receives only general supervision or direction from higher level 
executives, the'board of directors, or stockholders of the organization. 
) . 
In examining the executive or managerial capacity of the beneficiary, USCIS will look first to the · 
petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Published case law clearly· 
supports the pivotal role of a clearly defined job description, as the actual duties ttiemselve~ reveal the· 
r 
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true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y .. 
1989), affd, 905 F.Zd 41 (2d. Cir. 1990); see also 8 C.F.R. § 204.50)(5). That being said, however, 
USC IS reviews the totality of the record, which includes not only the beneficiary's job description, 
but also takes into account the nature of the petitioner's business, the employment and remuneration 
of employees, as well as the job descriptions of the beneficiary's subordinates, if any, and any other 
facts contributing to a complete understanding of a beneficiary's actual role within a given entity. 
The definitions of executive and managerial capacity have two parts. First, the petitioner : must show · 
that the beneficiary .performs the high-level responsibilities that are specified in the definitions. 
Second, the petitioner must prove that the beneficiary primarily performs these specified 
responsibilities and does not spend a majority of his or her time on day:.to-day functions . . Champion 
World, Inc. v. INS, 940 F.2d 1533(Table), 1991 WL 144470 (9th Cir. July 30, 1991). . . 
In the present matter, an analysis of the record does not lead to affirmative conclusion that the : 
beneficiary was employed abroad or would be employed in the United States in a. qualifying 
managerial or executive capacity. · 
Wit~ regard to the position in the U.S., the petitioner provided a vague and general job description 
such as the·beneficiary will, "analyze expenditures and other financial inforrilation to develop plans, ; 
policies, or budgets for increasing profits or improving services;" ''oversees the duties of marketing · 
and reviews the budget and plans and commercial marketing in order to secure new business;"; and. 
has wide latitude to develop or implement plans for facility modification or expansion." It is unclear : 
which specific tasks actually fell within these broad categories and whether the supervisory tasks the 
· beneficiary performed were of a qualifying nature. 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 provide arty detail or 
. explanation of the beneficiary's activities in the cdurse of her daily routine. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N .Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The petitioner's vague and general: . 
description of the beneficiary's position does not identify the actual duties performed, suth that they , 
could be classified as managerial or executive . in nature. 
The job description also includes several non-qualifying duties such as the beneficiary will "prepare · 
and manage budgets;" "has full latitude to negotiate and authorize contracts with equipment and 
materials suppliers and monitor contract fulfillment;" "plan, develop, . or implement : 
warehouse/transportation and storage safety and security programs and activities to ensure ttie secure 
function of the company;" "systematically review invoices, work orders, or ~emand forecasts and to 
issue work assignments accordingly;" "required to participate in setting transportation ~nd service 
rates while continuously evaluating and assessing contractor or business partners for operational 
efficiency of safety;" "make sure that the trucks and employees are up to code all the time;" "in 
charge of all personnel and scheduling;" and, "keeps track of all assignments and allots new ones in · 
the fairest manner possible." The petitioner does not provide sufficient evidence that the petitioner 
employed individuals to assist with the budgeting, bookkeeping, marketing, market research, contract 
negotiation, human ·resources, scheduling and code 
compliance and, thus, it appears that the 
beneficiary is performing the duties inherent in operating a business such as finances ; customer 
service, negotiations, contracts, human resources and 'scheduling. An employee who "primarily" 
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performs the tasks necessary to produce a product or provide a service 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 International, 19 I & N Dec. 593, 604 (Comm. 1988). : 
The petitioner indicated that it hired to market the petitioner ·and "assist in securing new 
business." The petitioner also stated that it employed two drivers and one administrative employee, · 
in addition to the beneficiary. The petitioner failed to provide an organizational chart indicating all of 
the employees, and a job description for each employee as requested by the director in the· request for · 
evidence. Failure to submit r~quested evidence that precludes a material line of inquiry shall be · 
grounds for denying the petition. 8 C.F.K § 103.2(b)(14) .. 
In addition~ it is not clear if the petitioner's employees are full-time employees or evep part-time 
employees. As noted in a letter from the petitioner's accountant, dated November 22~ 2011, the 
accountant stated that in 2010 the petitioner paid $54,725.55 in salaries and wages. 
However, it is not · 
clear 
how the petitioner can pay the beneficiary's salary of$50,000 a year, and the salary qf two truck 
drivers and the administrative employee with the amount paid in salaries and wages in 2010. The · 
petitioner did not provide a Form W-2 or Form 1099 to indicate the hours worked by each of these · 
individuals. As discussed above, the petitioner has not identified employees within the ·petitioner's . 
organization, subordinate to the beneficiary, who would relieve the beneficiary from 'performing· · 
routine duties inherent to operating the business. Going on record without supporting documentary · 
evidence is not sufficiendor purposes ofmeeting the burden of proof in these proceedings~. Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft ofCaliforriia, 14 I&N: 
Dec. 190 (Reg. Comm'r 1972)). 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). · 
On appeal, counsel for the p~titioner states that it provided "numerous rec~rds of various employees . 
both · part-time and independent contractors which were previously submitted." Upon re{riew of the · 
record, the petitioner did not provide contracts with independent contractors to understand the hours : 
and amount of work provided by the contract employees. In addition, the petitioner did ~ot provide ' 
paystubs or Form 1099 for any of the claimed independent contractors. Additionally, th~ petitioner 1 
has not explained how the services of the contracted employees obviate the need for the bepeficiary to · 
primarily conduct the petitioner's business. Without documentary evidence to support its statements, 
the petitioner does not meet its burden of proof in these· proceedings. Matter of Soffici, 22. I&N Dec. 
158, 165 (Comm'r 1998). 
While the AAO acknowledges that no beneficiary is required to allocate 100% of ~is time to 
managerial- or executive-level tasks, the petitioner must establish that the non-qualifying tasks the · 
beneficiary would perform are only incidental to his proposed position. An emp~oyee 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 International, 19 I&N Dec. 593, 604 (Comm. 1988) .. 
' ~ 
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In the present matter, the petitioner has failed to.establish that the beneficiary would be employed in a. 
qualifying capacity. ' 
I 
I. •. 
Furthermore, the record does not support .a finding of eligibility based on an additional ground that ~ · 
was not previously addressed in the director's decision. The record lacks substantive job ~escriptions 
establishing what job duties the beneficiary performed during his employment abroad. Conclusory 
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d.41 {2d. Cir. 1990); Avyr · 
Associates, Inc v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves will' 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 11?8. 
An application or petition that fails to comply with the technical requirements of the lfiw may be· 
denied by· the AAO even if the Service Center does not identify all of the grounds for &nial in the ; 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, }043 (E.D. 
Cal. 2001), affd; 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004)(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. · 
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. § :136L The ' 
petitioner has not sustained that burden. i 
ORDER: The'appeal is dismissed. /