remanded EB-1C Case: Business Management

US. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: OFFICE: TEXAS SERVICE CENTER Date: FEB 0 5 2010 
SRC 09 009 53659 
IN RE: Petitioner: 
Beneficiary: 
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. 3 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reopen or reconsider, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
W~erry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The 
petitioner subsequently filed a motion to reopen and reconsider, which the director dismissed. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The matter will be remanded for further 
consideration. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as its general manager. 
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 determined that the petitioner failed to submit a statement from an authorized official of the 
petitioning U.S. employer and denied the petition on the basis of this deficiency. The petitioner subsequently 
filed a combined motion to reopen and reconsider along with supporting evidence, which established that the 
basis for denial was erroneous, as the required letter from an authorized official had been submitted along 
with the petition at the time of filing. Nevertheless, the director dismissed the motion in a decision dated May 
4, 2009, expressly concluding that the petitioner did not meet the requirements of 8 C.F.R. 5 103.5(a)(3) for a 
motion to reconsider. Although the director acknowledged that the petitioner filed a combined motion to 
reopen and reconsider, he neither cited the requirements for nor did he discuss how the petitioner failed to 
meet the requirements for a motion to reopen pursuant to 8 C.F.R. 5 103.5(a)(2), which states, in pertinent 
part, that a motion to reopen must state the new facts to be provided in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 
On motion, the petitioner provided copies of letters that had been submitted in support of the previously filed 
non-immigrant petitions as well as a reconstructed support letter that mirrors the content of the letter the 
petitioner submitted initially in support of the current Form 1-140. 
With regard to the letters that were filed in support of prior L-1 nonimmigrant petitions, the AAO finds that 
such documentation is not persuasive evidence of the petitioner's eligibility for the immigration benefit sought 
in the present matter. Although the AAO acknowledges that the same statutory definitions for managerial and 
executive capacity apply to L-1 nonimmigrant petitions and to the Form 1-140 immigrant petition filed in the 
present matter, the question of overall eligibility requires a comprehensive review of other provisions, not just 
those that cite the definitions of managerial and executive capacity. See $5 101(a)(44)(A) and (B) of the Act, 
8 U.S.C. 5 1101(a)(44). Moreover, each nonimmigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof; each petition must stand on its own individual merits. U.S. 
Citizenship and Immigration Services (USCIS) is not required to assume the burden of searching through 
previously provided evidence submitted in support of other petitions to determine the approvability of the 
petition at hand in the present matter. The approval of a nonimmigrant petition in no way guarantees that 
USCIS will approve an immigrant petition filed on behalf of the same beneficiary. USCIS denies many 1-140 
immigrant petitions after approving prior nonimmigrant I- 129 L- 1 petitions. See, e.g., Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Given the director's apparent failure to review a relevant document that pertains to the petitioner's eligibility, 
the AAO concludes that the director's previous decisions were erroneous and must be withdrawn. 
Nevertheless, the AAO finds that the record as presently constituted does not warrant approval, as the 
petitioner has not established that it meets the eligibility requirements. 
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First, the record does not establish that the petitioner has satisfied the provisions set forth in 8 C.F.R. 
Q 204.5(j)(3)(i)(B), which states that the petitioner must establish that the beneficiary was employed abroad in 
a qualifying managerial or executive capacity 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. In the present matter, the petitioner's 
supporting documents include the foreign entity's current employee list, which is accompanied by a 
corresponding organizational chart. It is noted, however, that as this document is current and given the fact 
that the beneficiary is currently employed with the U.S. rather than the foreign entity, the beneficiary's former 
position with the foreign entity's organizational hierarchy is unclear, nor is there a definitive description of the 
job duties the beneficiary performed during his employment abroad. Without this crucial information, 
accompanied by evidence of the beneficiary's employment with the foreign entity during the relevant three- 
year time period, the AAO cannot conclude that the petitioner has satisfied the criterion discussed at 8 C.F.R. 
Q 204.5(j)(3)(i)(B). 
Second, 8 C.F.R. 5 204.5(j)(3)(i)(C) states that the petitioner must establish that it has a qualifying 
relationship with the beneficiary's foreign employer. The regulations 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 (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 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. In the present matter, the record is inconsistent with regard to the foreign entity's ownership. 
the foreign entity. 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). 
In the present matter, the petitioner did not provide any documentation indicating that a change in the foreign 
entity's ownership had occurred since the first Mercantile registry from 1979. As such, the latter submission, 
which indicates that -s the owner of 50% of the foreign entity, is inconsistent with the 
first document, which indicates that Vita Frinquello de Palermo is one of the two owners of the foreign entity. 
This significant inconsistency creates doubt as to who owns the foreign entity, a factor that is key in 
establishing that the U.S. petitioner and the beneficiary's foreign employer are similarly owned and 
controlled. 
Lastly, with regard to the beneficiary's proposed position with the U.S. entity, while the petitioner has 
provided a percentage breakdown of the beneficiary's proposed job responsibilities with the U.S. entity, the 
regulations and case law both require a detailed description of specific job duties, as this information is 
crucial to a determination of the beneficiary's employment capacity. See 8 C.F.R. 5 204.56)(5); see also 
Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The 
Page 4 
record as presently constituted fails to convey a meaningful understanding of the beneficiary's proposed daily 
tasks and illustrates an organizational hierarchy that lacks a level of complexity that is generally in place 
within an entity that requires an individual to perform primarily managerial or executive tasks. Rather, the 
organizational chart depicts an entity that is comprised of four employees including the beneficiary, an office 
manager, and two warehouse employees. It is unclear who other than the beneficiary would carry out the 
marketing, sales, and other tasks that require direct contact with customers on a regular basis. 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). 
While a final determination regarding the beneficiary's employment capacity is not solely based on the 
petitioner's organizational hierarchy, this factor can and should be considered, as it helps to assess a 
company's overall ability to relieve the beneficiary from having to primarily perform tasks outside of a 
qualifying managerial or executive capacity. See Family, Inc. v. US. Citizenship and Immigration Services, 
469 F.3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 
(D.C. Cir. 199 1); Fedin Bros. Co. v. Suva, 905 F.2d 4 1, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). In the present matter, the petitioner has not provided an 
adequate job description of the proposed employment nor established the ability to relieve the beneficiary 
from having to primarily perform non-qualifying tasks. As such, the beneficiary's proposed employment has 
not been shown to be within a qualifying managerial or executive capacity. 
Given the above analysis, while the AAO will remand this matter back to the director for further action, it 
finds that further evidence must be submitted in order to affirmatively find that the petitioner is eligible for 
the immigration benefit sought. In reviewing the record, the director may request the additional evidence per 
the above discussion as well as any other evidence the director deems necessary to determine the petitioner's 
eligibility for the immigration benefit sought. 
ORDER: The previous decisions of the director are withdrawn. The matter is remanded for 
further action and consideration consistent with the above discussion and entry of a 
new decision.