remanded EB-1C Case: Business

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U.S. Department of Homeland Security 
U. S. Ci.tizenship and Immigr ation Ser vices 
Administrative Appeals Office (AAO) 
20 Massachusett s Ave .. N.W .. MS 2090 
Washington, DC 20529 -2090 
U.S. Citizenship · 
and Immigration 
Services 
DATE: MAR 1 9 2013 OFFICE: TEXAS SER VIC~ CENTER Fll...E: 
INRE: Petitioner: 
Beneficiary: 
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PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
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Section 203(b)( I )(C) of the Immigration and Nationality Act, 8 U.S.C . § 1153(b)( I )(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 inqui~ must be made to that office . 
If you believe the law was inappropriately applied by us inl reaching our decision , or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be fou~d at 8 C.F.R. § I 03.5. All motions must be 
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submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion , 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5Ca)(l )(i) require s that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsi~er or reopen. 
Thank you, 
~on Rose berg · 
/ --Acting Ch\ef, 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 ~ppeal. The matter will be remanded for further 
consideration. · 
The petitioner is a Florida corporation that seeks to emplo ,y the beneficiary in the pos1t1on of president. 
Accordingly, the petitioner endeavors to classify the beneficiJry 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)( I )(C), as a 
multinational executive or manager. 
Relying on the common law definition of the term "employee," the director determined that the petitioner and 
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the beneficiary do not have an employer-employee relationship. The director therefore denied the ·p¢tition, 
finding that the petitioner is ineligible for the visa classificaJio~ ·sought herein . The director's decision was 
based on the affirmative finding that the beneficiary is the oJ.ner of the petitioning entity and is therefore the 
employer rather than an employee of the petitioning entity. 
Pursuant to a comprehensive review of the record, the AAOI finds that the record contains inconsistent and 
insufficient supporting documents, which fail to establish wh0 in fact owns the petitioning entity . Therefore, 
to the extent that the director's finding was the direct reJult of an affirmative determination as 'to the 
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petitioner's ownership, such finding must be and hereby is withdrawn . 
As a preliminary matter, the AAO points to counsel's initiai .lpporting statement dated July 6, 2009, in which 
counsel stated that the beneficiary is the I 00% owner of thb foreign entity where he had been pieviously 
employed. Despite this claim, couns~l continued to refer to fhe foreign employer as the parent enti~y :of the 
petitioner. As supporting evidence, the petitioner provided its stock certificate No. I, which indicated that 
I 00 shares of the petitioner's stock were issued to the benefici~ry on July 2, 2008 . 
However, in the petitiOner's Request for Evidence (RFE) resJnse Exhibit No. 2, the petitioner provided stock 
certificate No. 2, dated August I, 2009, indicating that ahother 60 shares were issued to 
the beneficiary's foreign employer. Notwit~standing the two stock certificates, which, show 
a combined issued total of 160 shares, the petitioner's stoc~ transfer ledger, which was submined as RFE 
" I -response Exhibit No. 3, indicates that the benefi_ciary has 40
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shares of stock remaining. The petiti:oner has 
provided no evidence to show that the beneficiary relinql!ished any portion of his original issue of I op shares, 
nor is there any indication .that -the petitioner was authorizbd to issue more than I 00 shares of stock as 
indicated in Article IV of the petitioner's Articles of lncorpora~ion. . . , · · 
It is incumbent upon the petitioner to resolveany inconsislencies 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 t~th lies. Matter of Ho, 19 I&N Dec. S82, 591-
92 (BIA 1988). The petitioner has not provi~ed any objeptive ~vidence that would help to re~olve the 
damaging anomalies that are contained within the record with regard to ownership of the petitioning entity . 
Accordingly, as it is unclear whether the beneficiary or the b~neficiary's foreign employer owns the 'majority . ' 
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of the petitioner's stock, the AAO finds that it cannot support an adverse conclusion that is bas~d on an 
affirmative finding with regard to the petitioner's ownership. 
The withdrawal of the director's conclusion notwithstanding, the record indicates that the petitioner has failed 
to meet certain statutory and regulatory requirements and is th~refore ineligible to classify the beneficiary as a 
first preference 
employment-based immigrant. 
First, as indicated above, the record contains grave inconsistencies regarding the petitioner's ownership. Such 
inconsistencies preclude the AAO from being able to dete~mine whether the petitioner has a qualifying I . 
relationship wi~h the-beneficiary's empl.~yer abroad. See 8 C.,.R. § 204.50)(3)(i}(C}. : :. 
To establish a 'quahfymg relatiOnship under the Act and the regulations, the petitiOner must show that the 
beneficiary's foreign employer and the proposed U.S. employ~r are the same employer (i.e. a U.S. e~tity with 
a foreign office) or related as a "parent and subsidiary" or as '!affiliates." See generally§ 203(b)( I )(C) of .the 
Act, 8 U.S.C. § 1153(b)(I)(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. § 204.5(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, Oli its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a fi~, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half ofthe entity and controls t~e entity; or owns, directly or indirectly; 
half of the· entity and controls the entity; or owns, dirdctly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto powef over the entity; or owns, directly oi· 
indirectly, less than half of the entity, but in fact contrbls the entity . 
. The regulation and case law confirm that ownership and coLrol 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 Inter'fational, 19 I&N Dec. 593 (BIA 1988); see also 
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Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Assoc. Comm. 1986); Mauer (~l Hughes, 18 I&N 
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Dec. 289 (Comm. 1982) . 
Given the petitioner 's submission of Inconsistent evidence to
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establish its ownership, the AAO is unable to 
conclude that the petitioner and the beneficiary~s foreign employer are similarly owned and controlled. 
Second, the record lacks evidence to establish that t~e petitLer meets the provision discussed at '8 C.F.R. 
§ 204.5(j)(3)(i)(D), which requires the petitioner to establish jthat it has been doing busine ss for at (east one 
year prior to filing the Form 1-140. "Doing business" means the regular, systematic, and continuous provision 
of goods and/or services by a firm, corporation, or other entit!y and does not include the mere presence of an 
agent or office . 8 C.F .R. §. 204 .5(j)(2) . 
In an effort to establish that it meets the above regulatory criterion, the petitioner provided evidence, to show 
its purchase of 'a separate corporate entit~, and business activity during 
the time period in question . However, establishing that the' ~titioner purchased an entity that has been doing 
business is not sufficient to establish that the petitioner itself h1as been doing business during the requisite one­
year period. In fact, the record contains no evidence of the peiitioner's own business activity during that same 
time period, nor has the petitioner even stated wiih any degr~e of clarity what type of business it purports to 
operate. Again, the single transaction of purchasing a previously existing entity, which continues to exist 
simultaneously with the Petitioner, is not evidence that the. Jetitioner has been doing business on a regular, 
systematic, and continuous basis." 
Third, the record lacks sufficient evidence to establish that tile beneficiary would be employed in the United 
States in a qualifying managerial or. executive capacity. Bas~d on the deficient job description provided for 
the beneficiary's position and the petitioner's limited organizahonal hierarchy , the evidence of record 'does not 
establish that the beneficiary would allocate the primary Jortion of his time to carrying out t~sks at a 
managerial or executive level. 
Finally, the AAO find s that the petitioner provided a fraudulent document in an effort to establish a basis for 
sustaining the appeal. Specifically, the AAO ·observes thkt the document titled "Minutes," purports to 
establish that a meeting of the foreign entity's board of direc~ors took place on Monday, August 3, .2009 and 
thus preceded the filing of the Form 1-140. The document st~tes that the meeting was held for the pJrpose of 
confirming that the beneficiary "is an employee of [the petit!ionerr' and further asserts that "[a]n etnployer­
employee relationship exists" between the petitioner and! the beneficiary, given the board's ·majority 
ownership and ·control over the U.S. entity, which thereby ·g·i+s ~he b~ard contr~l ov~r the ben~ficiary's work 
performance. The document further stated that the beneficiary Is subject to bemg hired and fired , repons to 
the board of directors, and is controlled by directives that are ~anded down by_ the board of directors. 
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The AAO points out that prior to the director's denial, which was issued on May 4, 20 I 0, the record contains 
no references to an "employer-employee relationship" or the characteristics_of such a relationship. The fact 
that the petitioner submits a document that predates the denial by approximately nine months in which the I . 
exact language of the denial was incorporated is questionable, as the document seemingly suits no other 
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purpose than to address the adverse findings issued by the director in his May 4, 20 I 0 decision, issued nine 
months after the date shown in the minutes of meeting.-
Given the circumstances described above, the AAO does not believe 
that the foreign entity's board of 
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director's meeting memorialized in the "Minutes" took place nine months prior to the issuance of the director's 
denial, as indicated. There is simply no logiCal explanation ak to why the foreign entity would have.cause to 
hold a meeting to determine the employer-employee relationJhip between the petitioner and the beneficiary. 
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Merely generating and dating the document does not establish that the document was created on the date 
indicated. If USCIS fails to believe that a fact stated in th~ petition is true, USCIS may reject that fact. . I . . 
Section 204(b} of the Act, 8 U.S.C. § 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th 
Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. SupJ. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 
153 F. Supp. 2d 7, 15 (D.D.C. 2001). Here, the AAO has am~le reason to believe that the minutes d:ocument 
was not created pursuant to an August 3, 2009 meeting as th1e petitioner claims. Rather, the AAO believes 
that the director's adverse findings prompted the petitioner td create such document, thereby indicating that 
the date on the document is false. 
In light of the significant deficiencies discussed above, this matter will be remanded for a new decision, 
which shall take proper notice of the AAO's findings. Tlie director may issue a notice reques~ing any 
additional evidence he deems necessary in order to determine ihe petitioner's eligibility for the benefit sought. 
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ORDER: The decision of the director dated May 4, 2Da 0 is hereby withdrawn. The matter is 
remanded for further action and consideratio 1n consistent with the above discussion 
and 
entry of a· new decision, which, if adv~rse, shall be certified to the AAO fo~ 
review. J ,