dismissed EB-1C Case: Web Services

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services "t ~
FILE:
EAC 05 135 52253
Office: VERMONT SERVICE CENTER Date: MAY 0 ~2117
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker asa Multinational Executive or Manager Pursuant to
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.c. § 1I 53(b)(1)(C)
.ON BEHALF OF PETITIONER:
INSTRUCTIONS:
SELF-REPRESENTED
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.
~r'
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The preference visa petition was denied by the Director, Vennont 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 Delaware on July 11, 2003.. It claims to be engaged in the
business of providing a variety of web-related serVices and seeks to employ the beneficiary as its ,president
and chief executive officer (CEO). 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), 8U.S.C. §1153(b)(1 )(C), as a multinational executive or manager. The director denied the petition
based on the following independent grounds of ineligibility: I) the petitioner Jailed to establish that it has a.·
qualifying relationship with~he beneficiary's foreign employer as claimed in support of the Fonn 1-140; 2) the
petitioner failed to establish that it would employ the beneficiary in a managerial or executive capacity; 3) the
petitioner failed to establish·that the beneficiary was employed abroad in a qualifying managerial or executive
capacity; arid 4) the petitioner failed to establish that the claimed foreign affiliate continues to exist and do
business in the beneficiary's absence. . .
On appeal, the, beneficiary, on behalf of the petitioner, disputes the director's findings and submits a brief
along with supplemental documentation in support of his assertions:
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 subpanigraphs (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 intI;) the United States
under this subparagraph, has been employed for at least I year by a finn 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 finn, corporation or other legal entity, or an affiliate or subsidiary ofthat 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)(I)(C) of the Ayt asa multinational executive or manager. No labor certification is required for this
classification. The prospective employer in the United S~ates must furnish a job offer, in the fonn 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 perfonned by the alien.
The first issue is whether the petitioner has provided sufficient evidence to establish that it has a qualifying
relationship with the beneficiary's foreign employer.
Page 3
The regulation at 8 C.F.R. § 204.5(j)(2) states in pertinent part:
Affiliate means:
(A) One of two subsidiaries both of which ate 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 andcontr01ling 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 mo~e countries, one of which is the United States.
Subsidi~ry means a firm, corporation, or other legal entity of which a parerit 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 Forni I-140, the petitioner provided a letter dated April 4, 2005 in which it claimed that the·
foreign entity currently operates as a branch of the U.S. entity. The petitioner provided no documentation in
support of this claim.
Accordingly, Citizenship and Immigration Services (CIS) issued a request for additional evidence (RFE)
dated December 30, .2005 instructing the petitioner to substantiate .its claimed relationship with the
beneficiary's foreign employer by submitting docum~ntary evidence. The RFE specifically instructed the
petitioner to provide all issued stock certificates to show how much authorized stock was issued and to whom.. '. .. .
. .
In response, the petitioner provided a letter dated February 1\ 2006, claiming that the beneficiary owns 100%
of the U.S. entity. In suppot:t of this claim, the petitioner submitted its Articles of Incorporation and a blank
stock certificate. In a separate letter, which was also dated Februa~ 13, 2006, the petitioner stated that the'
beneficiary owns 80% of the foreign entity. In support of this claim, the' petitioner provided an English
translation of an Announcement of the Istanbul Trade Registry, which discusses the beneficiary's purchase of
80% of the foreign entity's shares. It is noted that the original foreign language document did not accompany
the translation.
On March 23, 2006, the director denied the petition stating that the petitioner failed to provide sufficient
documentary evidence to establish that it and the beneficiary's foreign employer shared common ownership
and control. The director properly pointed out that the petitioner's failure to identify the individual
responding to the RFE and making claims on the company's behalf. Each of the letters provided in response
. to the RFE and in support of the petition contains initials of the individual making the claims: However; the
initials are barely legible and even if they were legible are insufficient to properly identify the person making
the claims on behalf of the petitioner. In addition, the director specifically noted the petitioner's submission
of a blank stock certificate and concluded that ownership of the U.S. entity had not been established.
Page 4
On appeal, the petitioner identifies the beneficiary as the individual. acting on its behalf. The beneficiary
reiterates the prior claim that he is the majority owner of both ,entities and explains that the blank stock
certificate was submitted in. error. Although a completed stock certificate has been submitted in support of
the appeal, the petitioner failed to provide this requested documentation in response to the RFE. Where, as
here, a petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to
respond to that deficiency, the AAO will not accept' evidence offered for the first time on appeal. See Matter
ofSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533(BIA 1988). If the
petitioner had wanted the submitted evidence to be considered, it should have subI1).it~ed the document in
response to the director's request for evidence. Id.. Under the circumstances; the AAO need not and does not
consider the sufficiency of the stock certificate submitted on appeal. Consequently, the AAO concludes that
the petitioner failed to properly document its claimed qualifying relationship with the beneficiary's foreign
employer and, therefore, has failed to meet the requirements cited in 8 C.P.R. § 204.5(j)(3)(i)(C).
The next two issues in·this proceeding require an analysis of the beneficiary's employment capacity. The first
issue is whether the petitioner would employ the beneficiary in a qualifying managerial or executive capacity.
The second issue is whether the beneficiary was employed abroad in aqualifying capacity.
SectioI1lOl(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 10 which the
. employee primarily--
(i) . manages the organization, or adepartment, subdivision, function,or component of
the organization;
(ii) supervises arid controls the work 'of other supervisory, professional, ormanagerial
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,
furictionsat 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 supervisor's supervisory
duties ~nless the employees supervised are professional.
Section IOl(a)(44)(B) of the Act, 8 U.S.C. § lJOl(a)(44)(B), provides:
.. The term "executive capacity" means an assignment within an organization 10 which the
employee priniarily--
(i) directs the management of the organization or a major component or function of
the organization; ..
Page 5
(ii) establishes the goals arid 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 execu!ives, the
board of directors, or stockholders of the organization..
In the petitioner's support letter, the beneficiary was described as the U.S. company's president whose
responsibilities included overseeing company objectives, managing the company's corporate contacts, and
acquiring and maintaining corporate customers. The petitioner further added that the beneficiary is the U.S.
company's senior consultant to corporate clients. With regard to the beneficiary's position with the foreign
entity, the petitioner merely stated that the beneficiary served as the company's general manager for five
years. No additional information was provided with regard to the beneficiary's duties or responsibilities with
the foreign entity.
Accordingly, the RFE instructed the petitioner to provide specific information regarding the staffing structure
of the foreign entity including the job titles and job duties performed by the beneficiary's subordinates during
his employment abroad. The petitioner was also instructed to specify the duties performed by the beneficiary
on a daily basis.. With regard to the beneficiary's proposed employment with the U.S. petitioner, the RFE
instructed the petitioner to provide an hourly breakdown of the duties to be performed by the beneficiary on a
weekly basis. The RFE specifically noted the need for an official job offer which should include the specific
. employment capacity the beneficiary would assume in his proposed position. Additionally, the petitioner was
instructed to discuss the staffing of its organization, including the number of employees, the duties each
employee would perform, and the management structure of the organization.
The petitioner responded with a letter entitled "Job Description," dated February 13, 2006. The letter
inlcuded two lists--one containing the beneficiary's proposed duties and the other containing the beneficiary's
responsibilities:
Duties:
To set goals for sales,nlimber of customers and service transitions to achieve continuous
growth, [sic]
To oversee company operations to achieve goals and targets set based on [a] preset timeline,
[sic]
To understand changes in the market and customer needs to adopt new products and services
or transform existing services to fit customer needs, [sic]
To determine and formulate policies and provide the overalCdirection of the company, [sic]
To plan, direct, or coordinate operational activities at the highest level of management, [sic]
To create new business frameworks that will enhance current market position by creating new
customers, [sic]
Page 6
Responsibilities:
To achieve growth for the company to develop its own policies with a corporate body, [sic]
To hire and recruit employees that will serve company goals and enable growth, [sic]
To reduce costs in order to allow resources be used in development and marketing, [sic]"
With regard to the beneficiary's position abroad, the petitioner indicated that the company was comprise'd of
three employees-the, beneficiary as general manager, one customer support employee, and one
administrative employee who also dealt with customer relations. The petitioner stated that the customer
support employee would assume the beneficiary's role in the beneficiary's absence. However, the petitioner
provided no specific information as to the duties performed by the beneficiary during his employmentabroad.
Accordingly, the director noted the various deficiencies and overall lack of information with regard to the
beneficiary's duties abroad and in the United States. The director ultimately concluded that the petitioner
failed to provide sufficient evidence to establish that the beneficiary was employed abr~ad and would be
employed in the United States in a qualifying managerial or executive capacity.
The beneficiary disputes these findings on behalf of the petitioner, but focuses primarily on the proposed
position with the petitioning entity. No additional information is provided to clarify the actual duties
performed by the beneficiary during his employment with the foreign entity.
With regard to the proposed position with the U.S. petitioner, the beneficiary states that he developed
software to be used by the petitioner's clientele. The beneficiary further states that in 2005, the year during
which the Form 1-140 was filed, he spent six months out of the year servicing the petitioner's existing
clientele and the remaining six months developing software. .
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. § 204.5(j)(5). In the instant matter, while the petitioner has failed
to comply with the RFE request for a detailed hourly breakdown ofthe beneficiary's weekly job duties, the
summary of the beneficiaryis job description includes a large number of oversight responsibilities. However,
the record does not include a description of any subordinate positions that would actually' perform the
essential functions the beneficiary would be overseeing. Moreover, the beneficiary clearly states on appeal
that a majority of his time is split betWeen working directly with the petitioner's clientele in providing
consulting services and actually developing the product to be marketed by the petitioner. Thus, by the
beneficiary's own admission, a majority, of his time would be spent providing the services arid products
marketed and sold by the petitioner. However, 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 International, 19 I&N
Dec. 593, 604 (Comm. 1988). Accordingly, based on the evidence and information provided, the AAO
cannot concludethat the beneficiary was employed abroad and would be employed by the U.S. petitioner in a .
, qualifying managerial or executive capacity.,
The final issue discussed by'the director is whether the petitioner has provided sufficient evidence to establish
that the foreign entity continues to do business in the beneficiary's absence.
Page 7 .
The regulation at 8 C.-F.R. § 204.5(j)(2) states that doing business means lithe regular, systematic, and continuous
provision of good~' and/or semces by a fIrm, corporation, or other entity and does not include the mere presence
of an agent or offIce.II· .
In the instant matter, the benefIciary claimSthat the foreign company continues to do business in his absence and
further claims that the company operates with a shareholder lind one other employee. However, going on record
without supporting documentary evidence is not suffIcient for purposes of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As the petitioner has failed to provide evidence to
corroborate the bep~fIciary's claim, the AAO cannot conclude that the foreign entity continues to do business. '
Thus, even if the petitioner were able to provide suffIcient evidence to establish common ownership and
control over itself and the foreign entity at the time the Form 1-140 was fIled, the fact that the petitioner has .
failed to establish the ongoing business of the foreign. company undermines the overall claim that it is a
multinational entity. See 8 C.F.R. § 204.5(j)(2) for the defmition of multinational.
Additionally, the record indicates that the petitioner is' ineligible for the benefit sought on at least one
additional ground that was not specifically discussed in the director's decision. More specifically, 8 C.F.R.
§ 204.5(j)(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. In the present matter, the Form 1~140 was fIled on April 11,2005. However, the
..only documentation to suggest that the petitioner is doing business consist of invoices dated July 2005'and March
. 2006, both of which indicate that services were rendered after the Form 1-140 was fIled. Although the petitioner
has submitted it.s corporate tax return for 2005, this document is not an accurate indicator of on-going and
continuous business transactions. See id. Thus, the petitioner failed to submit suffIcient dOCumentationto
establish that it had been doing business for one year prior to,filing its Form 1-140.
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 al~ 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), 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 additionai ground ~f ineligibility discussed above, this
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 dis~retion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp.'2d at 1043, affd, 345 F.3d 683.
Th~ 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. § 1361. The petitioner has not
sustained that burden. .
ORDER: , The appeal is dismissed.