dismissed EB-1C Case: Wholesale Merchant

(b)(6)
DATE: MAR 0 2 2015 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. DepartmentofHomeland 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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
2Kou, 
CJ>v Ron Rosenberg 
Chief, 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 a U.S. entity that claims to operate as a "wholesale merchant" of herbal supplements, 
gasoline, and convenience store sundries. It seeks to employ the beneficiary in the United States 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. 
§ 1153(b)(l)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish that it has a qualifying 
relationship with the beneficiary's former employer abroad or that the beneficiary would be employed in the 
United States in a qualifying managerial or executive capacity. 
I. TheLaw 
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 subs idiary 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 I -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. 
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--
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(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 
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. § 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee prima rily--
(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. 
II. Procedural History 
The record shows that the petition was filed on November 12, 2010 and was accompanied by the petitioner's 
supporting statement, dated November 3, 2010, in which the petitioner described the nature of its relationship 
with the beneficiary's former employer abroad and provided, in part, a list of the beneficiary's duties and 
responsibilities in his proposed position with the U.S. entity. The petitioner also provided corporate and 
financial documents pertaining to the U.S. and foreign entities. 
On August 15, 2012, the director issued a request for evidence (RFE), informing the petitioner that the record 
lacked sufficient evidence establishing that the petitioner has a qualifying relationship with the beneficiary's 
employer abroad or that the beneficiary would be employed in the United States in a managerial or executive 
capacity as claimed in the petitioner's supporting documents. Accordingly, in an effort to determine whether 
the beneficiary would be employed in the United States in a qualifying capacity, the director instructed the 
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petitioner to provide a list of the beneficiary's specific daily job duties and the percentage of time the 
beneficiary would allocate to each of the enumerated tasks. The director also asked the petitioner to provide 
its organizational chart with job descriptions of the beneficiary's subordinates as well as tax documents 
showing wages paid to its employees along with evidence documenting the petitioner's use of contractors, if 
contractors were used. With regard to the petitioner's qualifying relationship with the beneficiary's employer 
abroad, the director indicated that the record lacks evidence establishing who owns the U.S. and foreign 
entities, thus precluding the director from determining whether the two entities are commonly owned and 
controlled. 
In response, the petitioner provided a statement from counsel, dated November 29, 2012. Counsel states that 
the U.S. and foreign entities are affiliates by virtue of being owned by More specifically, 
counsel stated that the beneficiary and his wife own the petitioning entity with the beneficiary owning 60%, 
or the majority, of the petitioner's shares. Counsel further explains that the beneficiary owns 32.51% of the 
foreign entity, that his brother owns another 35.66%, and that together, with their spouses, 
owns more than 74% of the foreign entity and controls the fdreign entity by virtue of service as the foreign 
entity's director's, as shown in the foreign entity's 2012 tax return. The petitioner also submitted evidence in 
the form of the foreign entity's share capital statement and the U.S. entity's tax return corroborating the 
ownership distributions discussed in counsel's supporting statement. 
With regard to the beneficiary's proposed employment with the U.S. entity, the petitioner provided an 
"unsworn declaration" from , the petitioner's general manager, with the following list of job 
duties: 
• Directing company goals and targets. (10%) 
• Researching and keeping up to date with all Government, legal, and technical issues for 
products, consumer rights, and federal, state, and county regulations in order to advise 
subordinate employees on how to legally carry out their duties. (5%) 
• Analyzing yearly, quarterly, monthly, and all other periodical reports for the company ... and 
focus pints and strategies to promote continual business growth on a day[-]to[-]day basis. 
(10%) 
• Analyzing and reviewing day[-]to[- ]day product movement/sales reported by subordinate 
employees. (3%) 
• Observing and researching changes in the market in order to determine the strengths and 
weaknesses of the company's current product lines to communicate to subordinate employees 
as they carry out their functions. (5%) 
• Planning the most competitive strategies to strengthen marketing saturation to allow for 
growth of the company's product lines and directing subordinate employees to execute them. 
(15%) 
• Directing marketing programs and charging marketing strategies as required .. .. (15%) 
• Overseeing all banking relations of the company. (10%) 
• Allocating finances and developing budgets for existing and new ventures . .. . (10%) 
• Reviewing and finalizing all financial reports to ensure the company is operating [in] the 
most efficient and cost effective manner possible. (5%) 
• Acquiring reports from subordinate employees on the strengths and weaknesses of the 
company after attaining various stages of the product movement strategy. (2%) 
• Directing the negotiation of product supply contracts. (6%) 
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• Determining and negotiating new product cost and selling prices, distributions rights, and 
operational area allotment. ( 4%) 
The petitioner also provided quarterly federal tax returns showing that it had three employees in 2011 and 
2012. Although the petitioner provided a copy of its 2010 tax return showing that it paid a total of $71,756 in 
salaries and wages, of which $20,877 was apportioned to the beneficiary and his wife as the petitioner's two 
owning partners, the response did not include the requested organizational chart or any evidence depicting the 
U.S. entity's organizational structure at the time of filing. We note that failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C. P. R. § 103.2(b)(14). 
In a decision dated July 30, 2014, the director denied the petition, concluding that the petitioner failed to 
establish that it had a qualifying relationship with the beneficiary's employer abroad or that the beneficiary 
would be employed in the United States in a qualifying managerial or executive capacity. The director found 
that the ownership distributions provided for each entity do not fit the definition of subsidiary or affiliate, thus 
indicating that the two entities do not have a qualifying relationship. With regard to the beneficiary's 
proposed employment with the petitioning entity, the director determined that the petitioner failed to establish 
that the claimed staff of four employees would be sufficient to support the beneficiary in a position that is 
comprised primarily of managerial or executive tasks. The director also found that the beneficiary's job 
description was overly vague and failed to adequately specify what actual job duties the beneficiary would 
perform. 
The petitioner subsequently filed an appeal supported by an appellate brief in which counsel asserts that the 
director subjected the petitioner to a heavier evidentiary burden than the preponderance of the evidence 
standard that is applicable in the matter at hand. Counsel reiterates the ownership breakdowns that were 
previously provided in the petitioner's earlier submissions, asserts that owns and controls the 
beneficiary's former employer abroad as well as the petitioning U.S. entity. With regard to the beneficiary's 
U.S. employment, counsel restates the beneficiary's original job description, which was provided in the initial 
supporting statement that accompanied the Form I-140. 
Upon review, and for the reasons stated below, we find that the petitioner has failed to overcome the director's 
findings. 
lll. Issues on Appeal 
As indicated above, the two primary issues to be addressed in this proceeding are whether the petitioner 
provided sufficient evidence to establish that it has a qualifying relationship with the beneficiary's employer 
abroad and whether the evidence of record supports the claim that the beneficiary's proposed employment 
with the U.S. entity would be primarily comprised of tasks within a qualifying managerial or executive 
capacity. 
A. Qualifying Relationship 
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. entity with 
a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally § 203(b)(l)(C) of the 
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Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.P.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" 
and "subsidiary"). 
The regulation at 8 C.P.R. § 204.5(j)(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 the present matter, the record indicates that the beneficiary owns 60%, or the majority, of the shares issued 
by the petitioning entity. The record also shows that the beneficiary owns 32.51% and that the beneficiary's 
brother, , owns 35.66% of the foreign entity where the beneficiary was previously employed. On 
appeal, counsel asserts that the beneficiary and his brother, together with their respective spouses own and 
control over 74% of the foreign entity's stock and that the beneficiary, his brother, and sister-in-law serve as 
three out of four directors of the company. Counsel contends that the ownership schemes of the U.S. and 
foreign entities indicate that both entities are owned and controlled by the Shah fa mily, thus indicating that 
they are affiliates. 
Counsel's assertions, however, are not in line with the above cited regulatory definition of an affiliate or a 
subsidiary. The record clearly indicates that the petitioning enterprise does not maintain a qualifying 
"affiliate" relationship with the overseas company. 
If one individual owns a majority interest in a petitioner and a foreign entity, and controls those companies, 
then the companies will be deemed to be affiliates under the definition even if there are multiple owners. 
However, the facts presented here show that while the beneficiary owns a majority interest in the petitioning 
entity, he owns less than one third of the foreign entity, where the beneficiary's brother owns a slightly greater 
portion, and that another 23 shareholders individually own various portions that comprise the remaining 32% 
of the foreign entity's issued shares. The evidence indicates that a total of 25 individuals own the foreign 
company, while only two individuals own the U.S. petitioner with the beneficiary owning the majority of the 
petitioner's shares. Accordingly, while the beneficiary and his wife have ownership interests in both entities, 
the two distinct ownership schemes preclude a finding that these entities are "owned and controlled by the 
same group of individuals, each individual owning controlling approximately the same share or proportion of 
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each entity .. . . " 8 C.P.R. § 204.50)(2) (emphasis added). In addition, there is no parent entity with 
ownership and control of both companies that would qualify the two as affiliates. Although counsel 
emphasizes that the petitioning company and the overseas company are majority owned by members of the 
same family, the familial relationships do not constitute a qualifying relationship under the regulations. For 
this reason, the petitioner has failed to establish that a qualifying relationship exists between the U.S. and 
foreign entities and the petition may not be approved. 
B. Qualifying Employment in the United States 
The next issue we will address in this proceeding is whether the evidence supports the finding that the 
beneficiary would be employed in the United States in a qualifying managerial or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, we review the totality of 
the record, starting first with the description of the beneficiary's proposed job duties with the petitioning 
entity. See 8 C.P.R. § 204.5(j)(5). Published case law bas determined that the duties themselves will reveal 
the true nature of the beneficiary's 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). We then consider the beneficiary's job description in the 
context of other relevant evidence to determine which employees comprise the petitioner's organizational 
hierarchy, what duties they carry out, and who within the organization was available to relieve the beneficiary 
from having to carry out the daily operational tasks at the time the petition was filed. As such, the petitioner's 
organizational chart and evidence of employee salaries are both highly relevant in helping to establish the 
petitioner's ability to support the beneficiary in a position where the primary portion of his time would be 
allocated to tasks of a managerial or executive nature. 
Turning first to the beneficiary's job description, we note that a number of the job duties were described using 
general terminology and thus failed to convey a meaningful understanding of what specific daily activity the 
beneficiary would actually carry out. Namely, it is unclear what underlying daily tasks are involved in 
directing company goals and targets, planning competitive strategies, directing marketing programs and 
strategies, overseeing banking relations, or directing contract negotiations. These activities, as well as a 
number of others, inherently imply that the beneficiary's directorial role is dependent upon the availability of 
others to carry out the underlying tasks .whose execution the beneficiary would oversee. However, the 
petitioner has provided little probative evidence to establish who, other than the beneficiary, was available to 
carry out those necessary underlying tasks at the time the petition was filed. Despite the director's request for 
the submission of an organizational chart, the petitioner failed to submit the requested evidence, thus 
precluding us from having the capability of more fully understanding what staffing composition the petitioner 
had at the time of filing and how the petitioner's organizational hierarchy functioned to effectively relieve the 
beneficiary fr om having to allocate his time primarily to the performance of non-qualifying operational tasks. 
In other words, merely asserting that the beneficiary would direct various aspects of the business, review 
financial and sales reports, and exercise discretionary authority with regard to the petitioner's finances and 
daily operations is not sufficient without corresponding evidence demonstrating how the beneficiary's 
subordinates, both direct and indirect, would work together to carry out the petitioner's daily tasks while 
limiting the beneficiary's role to one that primarily focuses on management and/or supervision. 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 California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
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While no beneficiary is required to allocate 100% of his time to managerial- or executive-level tasks, the 
petitioner must establish that the non-qualifying tasks the beneficiary would perform are only incidental to the 
proposed position. 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). Here, despite the petitioner claiming that its organization has the staffing capability to produce reports 
and create marketing programs for the beneficiary to review or oversee, the record does not contain the 
evidence necessary to corroborate the existence of an underlying staff. 
Furthermore, based on information provided in the petitioner's 2011 and 2012 quarterly reports, the 
petitioner's staff did not exceed three employees in 2011 or 2012, and in fact even dropped to two employees 
during the 2011 fourth quarter. Thus, while the petitioner claimed four employees at Part 5, No. 2 of the 
Form I-140, no evidence has been provided to corroborate that claim. In fact, even if the petitioner had a staff 
that was comprised of four employees at the time of filing, the record indicates that the petitioner did not 
maintain that staffing composition after the petition was filed. In fact, the petitioner has failed to provide the 
requested evidence establishing whom it employed at the time of filing or what job duties they performed. 
Without this critical information, the broadly stated job duties that were previously attributed to the 
beneficiary's proposed employment cannot be properly evaluated within the context of a valid organizational 
hierarchy. While we do not dismiss or trivialize the beneficiary's discretionary authority and prior work 
experience, the record does not establish that a support staff of three employees (with the beneficiary being 
the fourth employee) existed at the time of filing and, if so, that such a support staff would be sufficient to 
relieve the beneficiary from having to spend his time primarily carrying out non-qualifying operational tasks. 
On appeal, counsel focuses on the beneficiary's academic background as well as his experience working for 
the foreign entity, asserting that the beneficiary has the credentials necessary to lead the petitioner in its 
continued development. Counsel also points to new business ventures that the petitioner has undertaken since 
the filing of the petition. However, neither the petitioner's needs nor its recent participation in forming new 
business entities serve as probative evidence of the petitioner's eligibility at the time of filing. As previously 
stated, the petitioner's eligibility is based, in large part, on the petitioner's ability to employ the beneficiary in 
a qualifying managerial or executive capacity as of the date the petition is filed. In the present matter, the 
record lacks an adequate job description of the proposed employment and is not supported by sufficient 
evidence of an organizational hierarchy capable of relieving the beneficiary from having to allocate his time 
primarily to tasks of a non-qualifying nature. Therefore, the petitioner has failed to establish that it would 
employ the beneficiary in a qualifying managerial or executive capacity and on the basis of this second 
adverse conclusion, the instant petition cannot be approved. 
IV. Conclusion 
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, it is the petitioner's burden to establish eligibility for 
the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 
127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.