remanded EB-1C Case: Consumer Goods Distribution

(b)(6)
DATE: NOV 2.1 2013 OFFICE: TEXAS. SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u,S; Department of.Homelaii.d Se¢1iiity 
U.S. Citizenship and Immigratio~Servict:. ~ 
Office ofAdministraiive Appeals 
20 Massachusetts Ave.,N.W., MS 2090 ·. 
Washington, DC 20529"2090 
u.s. Cit~en.ship 
.and _Jmn:PgratiOJ;l 
Services 
PETITION: . Immigrant Petition for Alien Wqr~er as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration andNa~.iQnality Act,'·su.s.c. §.1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appe~ds Offi_ce (MO) in your case. This is a non­
pteced~nt decisjon. The AAO does not announce new constructions of law not establish age11cy policy 
'through non-ptecedtint d¢.cisio.ns. ' 
Thlu, 
'/-Ron Roseiff.-
Chief, Administrative Appeals Office 
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DISCUSSION: The DirectOr, Texas Service Center, denied the preference visa petition. The 
matt¢r w~s stJ,mmarily dismissed by the Administrative Appeals Office (AAO) on appeal, The 
AAO -also dismissed the petitioner's .subsequent motion to reconsider. The matter is before the 
MO on a second moti6n_ to reopen and reconsider the decision. The MO will grant the motion 
and reconsider the petitioner's appeal. The matter will Qe remanded to the service center director for 
fUrther action and entry of ~ p.ew decision~ 
The petitioner is a .Georgia corporation engaged in the distribution of consum.er goods. The 
petitioner is seelc.il.lg to ernploy the beneficiary as its president/general manager.· Accordingly, the 
petitioner ertd.eavors
1 
to classify the beti.efi.giMy as an employment-based immigrant pursuant to 
section 203(b)(l)(C) of the. Imtnigtation and Nationality Act (the Act), 8 U.S.C, § ll53(b)(1)(C), as 
a multinational execuHve or manager. 
On Aprll12, 2010, the director denied this petition concluding th.at the beneficiary, as .owner of both 
the foreign ®d petitioning entity, is the petitioner's proprietor and not an employee subject to the 
petitioning ·company's control. Therefore, the director determined that the beneficiary does not 
qualify as an employee of the petitioner as required for eligibility under this petition. 
Although the AAO previously summarily ' dismissed the petitioner's appeal pursuant to the 
regulation at 8 C.F.R. § 103.3(a)(1)(v), we wHI grant the instant motion in order to reconsider the 
petiti<>ner's claim that the director's decision was based on an erroneous conclusion of la.w. 
I. The Law 
Section 203(b) of the Act
1 
$tates in pertinent part (with emphasis added): 
(1) Priority Workers. -- Visas shall first be made ~vail~Qle . to qu~lified 
immigrants wbo are aliens described in any of the following subparagraphs (A) 
through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
. d_escribed in thi.s subpar~gr~ph if the alien, in the 3 years preceding 
the time of the' alien's appl.ic~tion for classiijc~tion and admission into 
the United States un.der this subparagra:ph, has been employed for at 
least l year by a firm or corporation or other legal entity or an affiliate 
ot subsidiary thereof and who seeks to ent~r the Uilited State$ in ord~r 
to continue to 'render services to the same employer or to a subsidiary 
or affiliate thereof ill a capacity that is manageriaJ or executive. 
The la:ng11age of th.~ . ~tl,l.tute is specific in limiting this · provision to only thos.e executives and 
managers who have previously been employed by·a firm, corporation or otbC!r leg~l entity, or an 
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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 et:nplqyer may file a Form 1-140 to seek classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. 8 C.P.R. § 204.5(j)(l). The 
prospective .employer irt the United States must furnish a job offer in the form of a statement which 
indicates that tl:te alien 1s to be employed in the United States in a managerial or executive capacity. 
See section 101(a)(44) of the Act, Suc.h a statement must clearly describe the duties to be 
performed by the alien. /d. -, 
U. Beneficiary as Employee and Sole Owner 
The director denied the petition after concluding that the benefiCiary, as the sole owner of the 
petitionjpg corpor~tion, may not be considered an·employee of the petitioner . . The· director raised 
no other grounds for denying the petition. 
The director noted that, within the context of immigrant petitions seeking to classify the beneficiary 
as a multinational mal!ager or executive, a worker that is also a partner, officer, member of a board 
of directors, or a major shareholder may only be defined as an "employee" if he or sbe is subject to 
the organization's "control." Furthermore, the dite.ctot stated that it had not been established that 
the beneficiary wotJ.ld be comrolled by the petitioner. For example, the director observed that the 
beneficiary would report to no one, he would set the rules of his work, he could not be fired, and he 
would share in the losses and profits. As a result, the director fotiild that the petitioner did not 
establish tbaJ the beneficiary would be an ;'employee'' of the petitioner and for that reason the 
petition could not be approved. 
Sections 203(b)(1)(C) and 101(a)(44) of the Act, along with the.related regulations at 8 C.P.R. § 
204.5G), all make use of the tertl1S "employed,'' ''employee," and "Unite<} States employer.'' These 
terms are not defined by statute or the applicable regulations. Accordingly, the AAO must view 
how these terms are used in the statute and, considering the specific context in which that language 
is used, examine whether the terms are outcome determinative. 
Statutory interpretation begins with the la,ngu~ge of the statute itse.lf. Barnhqrt v .. Sigmon Coal Co., 
534 U.S. 438, 450 (2002). The AAO must "determine whether the language at issue has a plain and 
unambiguous meaning with regard to the particrtlat dispute in the case." /d. (quoting Robinson v. 
Shell Oil Co., 519 U.S. 337, 340 (1997)). The ''inquiry must cease if the statutory language is 
unambiguous a:nd 'the statutory scheme is coherent and consistent.'" Robinson, 519 US. at 340; see 
also 'Vnited States v. Abuagla, 336 F.3d 277,278 (4th Cir. 2003). 
While the StatUte Uses the tetrn "employee" in the definition of manager or executive, the AAO 
notes that the key elements of the statutory definitions focus on the duties and responsibilities of the 
employee a:nd not the person's employment status. Looking at the statutory sch~me as a whole, the 
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Page4 
AAO concludes that it is most appropriate to review tb:e. beneficiary's eligibility by makin~ a 
detellil.ination on his or her claimed managerial ot executive employment. 
The AAO recognizes that thete. is some tension betweep. t,l.te terms "employee'' and "executive ." In 
Matter qf Aphrodite In'vestments Ltd., the INS Commissioner expres~ed concern tb.at adopting the 
word "employee" would e{Cclude •isoine of the very people that the statute intends -to benefit: 
executives.' .' 17 I&N Dec. 530, 531 (Comro'r 1980); but see Clackamas Gastroenterology Assoc., 
P.l;. v. Wells, 538 p.~. 440, 448~49 (2003) (examining w.bether a di_rector-~hareholder is an 
employee under the comlllon-law touchstone of "controJ") .. This tension would generally lead the 
AAO to carefully consid_er the statu,tory definitions in their entirety, including the four critical 
su,bp~gagraphs of each definition . . See sec. 101(a)(44)(A) and (8) of the Act. If USCIS were to 
.focus solelyon an employer-employee analysis, without conSidering the constituenfelements of the 
deflnitiofis, the inqUiry WOUld be inCOIIlplete uhder the statute. l 
In the present matter, the director's use of the ernplbyet-ernployee issue appears to be an attemptto 
address the marginality of the petition..ing busi~ess or the use of the corporate fohfi as a shell Jot 
immigration purposes ·. While not irrelevant, the employer-employee iss1,1e is not the optimal rneans 
of a<idressing: these concerns. Instead, the director should focus on the funda_n:_ienta.l eligibility 
requirements. Marginality arni the validity of the job offer are best addressed by the regulation that 
requires ,the petitioner to establi_sh its abUity to pay. See 8 C.P.R. § 204.5(g)(2); see also Matter of 
Great Wall, 16 I&N Dec. 142, 145 (Acting Reg. Colllltl'r 1977) (noting that the fundamental focus 
of ability to pay ~s whether the employer is m~ing a "realisti<:( or crediblejob offer). 
Upon review; the beneficiary's employet=-employee relationship with the foreign entity is not the 
essential i_ssli¢ for consideration when evaluating the petitioner's . eligibility. The · decision of the 
director will be witbdrawp. as it relates to the beneficiary's status as an employee. The AAO finds 
no need to further explore the issue of an etnployer-emplqyee relationship between the beneficiary 
and its-foreign and U.S. employers. · 
UI._ .1\..dditiollal Iss~es 
The AAO reviews each appeal on a de novo basis. Soltarze v. [JOJ, 381 f.:3d 143, 145 (3d Cir. 2004). 
Although the directpr's sole ground for denial will be Withdrawn, the petition ca:nriot be approved as 
there is insuffi¢ient evidence that the petitioner has met all requirements for the requested 
immigrant classification. Accordingly, the matter will be remanded to the service center director 
for additional review and entry of a new decision. 
I The one area where the employment status of the beneficiary may be critical is the enabling statUte at 
section 203(b)(l)(C) of the Act; wl)jch requ.ires that the beneficiary has been ''employed for atleast one year'' 
by a qualifying entity abroad. In this regard, based on th_e plain language of the statute, tbe benefiqi)lty must 
be an employee ofthe foreig11 entity and not a contractor or consultant. 
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Firs~; the petitioner failed to provide sufficient evide11ce to esta]Jlish that the beneficiary had been 
employed abroad or would be. employed in the United States in a qualifying lllanagedal or exe~utive 
::capacity c,onsistent with the definitions at sections 101(a}(44)(A)and (B) of the Act. 111 reviewing . 
the petitioner's documentation su,bmitte<l in support of the petition and in response to the director's 
request for evidence (RFE), the petitioner · has not provided evidence ofthe fon~igp entity's starting 
illld otgan.izational structw-e corresponding with the benefiCiary's period of employment •. abroad. 
Further, the petitioner provided ip~onsistent information regarding its own staffing levels and the 
duties performed by subordinate employees:. It failed to provid.e p_ayroll go~uments corresponding to 
tbe dat~of filing, evidence which would assist iil resolVing these irtc.onsistencies. . . 
Moreover the information provided by the petitioner des~ribing the beneficiary's proposed duties 
Mid d\lti,es· abroad was vague and failed to provide adequate -information regarding the benefiGi'll:y's 
specific tasks. TherefQre, it is unclear how much time the beneficiary had allocated or would 
allocate to tasks within a qu,alify~ng Qapac,dty and how much ofhis time he wo;uld or had. allocated to 
perform1ng daily operational ta$ks. Whether the beneficiary is a managerial or-executive employee 
turns on wheth~r the petitioner has sustained itS blirden of proving that his duties ate "primarily" 
managerial ot executive. See sections· l0l(a)(44)(A) and (B) of the Act: 
. . 
While .tbe AAO a~kn<:>wledges that no beneficiary is required to allocate 100% of his 6t her time to 
·managerial~ or executive-.level t.asks, t:4e petitioner mus·t establish that the non-qualifying tasks the 
beneridary would .. perform ate only incidental to the proposed positiop. An employee _who 
"primarily;, pertomis the tasks necessary to produce ·a product or to provide serVices is . not . 
¢onsidered to be ''primarily" ~mployed in a managerial or execlJ.tive capacity. See sections 
·i01(a)(44)(A) ~d (B) of the Act (re_qu,iripg that · on~ "primarily" perform the enumerated 
I . .. . .. 
managerial or executive duties); see also Matter of Church Scientology International, 19 I&N Pep. · 
593, 604 (Co~ .. 1988). Therefore, in order to establish eligibility, it is irtiperatire that the 
petitioner establish tha.t the benefici;rry wou,ld primarily perform tasks of a qualifying nature. 
Finally, reg~rding the beneficiary's employment . abroad, the petitioner failed to provide any 
evidence to ~stab}ish that the ben.eflpiary was employed by the foreign employer in a managerial or 
ex~clitive capacity for at least OI.le full year in the three years preceding her admission to the United 
States. 8 C.P.R. § , 204 ~ 5(j)(3)(i)(B). 
Sec<:>nd. tbe l}AQ finds .. that the record lacks sufficient evidence to establish that the petitioner and 
the beneficiary's ·foreign e111ployer }].ave a qualifying relationship. To establish a ,;qualifying 
relationship'' under the Act and the regu,lations, the petit_ioper must show that. tlw lien~ficiary's 
foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. entity witb a 
foreign office) or .rel~ted as a "parent and subsidiary'' or as. ''affiliat.es.'' See generally 
1 § 203(b)(1)(C) of the Act, 8 U.S.C. § l153(b)(1)(C); see also 8 C.P.R. § 204.5(j)(2) (providing 
defin.iiion_s of the terms ''affiliate'' and ''subsidiary';); 
~ ! . • 
I ' 
The petjtioner claims that ·the. ·beneficiary is. ·the sole owner of the petitioning company and 
sublnitted __ ev~dence :in support of that claim. Neverthe.less, the petiti()ner also claims that the 
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petitioning company has a qualifying relationship with the foreign entity as its subsidiary, The 
petitioner did riot submit sufficient doctuhentation to establish a parent"'subsidiaty relationship. 
Further; the petjtione:r has n.ot resolved these competing and inconsistent claims regarding the 
. · qualifying relationship. Going on record without supporting docurnelltruy evidence is not sufficient 
for purposes of meeting the burden of proof ill these proceedings. Matter of :joffici, 22 I&N Dec·. 
158, 165 (Comm , ·1998) {citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
ComnL 1972)). It is incumbent upon the petitioner to resolve auy inconsistepcies in the record by 
independent objective evidence . Aiiy attempt to explain o:r re.concile such inconsistencies will not 
.. suffice unless the · petitioner sub.mits' COIIlpetent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). . ; 
j\cc<>rdingly, the m~Jter will be remanded for review and a new decision . The director niay issue a 
notiCe requesting · arty additional evidence he deems neceSSllfY ill Order to determjne the petitioner'S 
eligibility for the benefit sought. · 
ORDER: The director's April 1Z, ZOlO decision. ~d t:he AAO's decisions dated April 
11, 2012 and February 4, 2013 ate withdrawn . The matter is remanded for 
:furtJwr action and consideration consistent with the above discussion and 
entry of a new decision, wh._l.ch, if adverse, shall be certified to the AAO for 
review.