remanded EB-1C Case: Dietary Supplements

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Km. A3042 
Washington. DC 20529 
FILE: WAC 03 102 523 12 OFFICE: CALIFORNIA SERVICE CENTER Date: JUN i) 7 1@5 
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. 5 1153(b)(l)(C) 
ON REHALF 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. 
(C LC. -'-?- - 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 102 52312 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The case will be remanded for 
further consideration. 
The petitioner is a Minnesota corporation engaged in dietary and herbal supplement network distribution. 
The petitioner indicates that it is an affiliate of Canada Limited, the beneficiary's foreign employer. It seeks 
to employ the beneficiary as its vice president of operations. 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 1 1 53(b)(l)(C), as a multinational executive or manager. The director 
determined that the petitioner failed to establish that it has a qualifying relationship with the beneficiary's 
foreign employer and denied the petition. 
On appeal, counsel disputes the director's finding and submits a brief along with additional evidence in 
support of the petitioner's claim. 
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 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 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 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certitication 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. Sucb a statement must clearly describe the duties to be performed by the alien. 
The issue in this proceeding was whether the petitioner established that the petitioner has a qualifying 
relationship with the beneficiary's foreign employer. 
The regulation at 8 C.F.R. 3 204.5(i)(2) states in pertinent part: 
WAC 03 102 52312 
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AfJiliate 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; 
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 support of the initial petition, the petitioner submitted copies of the stock certificates issued tom 
he petitioner's foreign parent entity. The petitioner also submitted a list of all of% 
each stockholder, the stock certificates issued in their names, the number of shares 
~ - 
issued, and the issue date of each certificate. The list included all stock certificates that had been issued from 
May 1998 through October 10, 2002. A comprehensive review of this documentation indicates that as of 
October 10, 2002, 59% of the petitioner's stock was owned by which, like the 
beneficiary's foreign employer, is entirely owned by Anthony Jurak. 
In response to the director's request for additional evidence, the petitioner submitted an additional list of 
stockholders, which reflects the petitioner's owaership distribution as of July 12, 2004. It is noted that a 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
Therefore, documentation that reflects the petitioner's stock distribution at some point after the petition is filed 
has no probative value in determining whether the petitioner was eligible for the immigration benefit sought 
at the time the petition was filed. Rather, such documentation is a relevant indicator of whether the petitioner 
continued to demonstrate eligibility up through the filing of the application for adjustment of the beneficiary's 
The petitioner's response to the request for evidence also included its Form 1120 corporate tax return for 
2002, which accounts for the one-year period beginning on June 1, 2002 and ending on May 3 1, 2003. As 
this tax return includes the time period during which the petition was filed, it is an accurate indicator of the 
petitioner's ownership during the relevant time period. According to Schedule K. items 5 and 7, of the 
relevant tax return, 60% of the petitioner's stock was owned by a Canadian individual, corporation, or 
partnership. Statement 9, which is appended to the relevant tax return, clarifies tha is the 
owner of 60% of the petitioner's voting stock; and Form 5472, which is also 
further indicates tha the direct owner of more than 25% of the petitioner's stock. 
Based on the chart, Vs which shows the direct owner of-dw 
e information provided in the petitioner's tax return corroborates the pet~tioner's cla~m regar 1ng its 
WAC 03 102 523 12 
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ownership and control at the time the petition was filed. The fact that 
e both named as owners of the petitioner is consistent with the petitioner's initial claim that 
wnership of the petitioner is derivative through his direct ownership -- o 
Despite the submitted documentation, the director denied the petition on August 11, 2004 noting that*~ 
voting proxies or other agreements were submitted to show common ownership and control. The director 
primarily focused on the petitioner's ownership breakdown, which consists of 49 differ t shareholders, and 
ownership of the beneficiary's foreign employer, which consists of Anthony Pas the sole 
shareholder. 
On appeal, counsel submits a brief stating that the petitioner did, in fact, submit evidence of proxy votes, . . - 
which were discussed in a voting trust agreementAsigned on "Oct. '03" by ne of the 
petitioner's shareholders. However, the voting trust agreement did not exist when the petition was filed. 
Therefore, it cannot be considered for the purpose of determining the petitioner's eligibility. See Mutter of 
Katigbuk, 14 I&N Dec. 45,49. 
In the instant list, which was issued shortly prior to the filing of the 
petition, states tha 9.9 million of a total 15.5 million issued 
proximately 59% of the petitioner's voting stock when the 
tax return. The evidence of 
record indicates that at the time the petition was filed, ned and controlled 100% of the 
by virtue of his 100% 
ownership o Therefore, the petitioner has submitted sufficient evidence to establish 
that at the time the petition was fiEd, the U.S. entity and the beneficiary's foreign employer were affiliates by 
virtue of being majority owned and controlled by the same individual, regardless of the voting trust 
agreement. As such, the director's decision is hereby withdrawn. 
However, pursuant to a thorough review of the record, the AAO concludes that the record lacks sufficient 
evidence to establish that the petitioner had been doing business for one year prior to the filing of the petition 
and continued to do business after the petition was filed. See 8 C.F.R. 204.5Cj)(3)(i)(D). Although the director 
instructed the petitioner to submit various tax information in the request for additional evidence, this 
documentation is not an accurate indicator of whether a company is doing business. The regulation at 
8 C.F.R. $ 204.5Cj)(2) defines doing business as "the regular, systematic, and continuous provision of goods 
and/or services by a firm, corporation, or other entity and does not include the mere presence of an agent or 
office." Although the petitioner claims to be engaged in retail of a particular product, the record lacks any 
documentation that would indicate that the product has been sold on a regular, systematic, and continuous basis. 
Additionally, the record does not contain sufficient information as to the beneficiary's job duties and the 
petitioner's organizational structure at the time the petition was filed. Although the petitioner submitted an 
organizational chart in response to the director's request for evidence, the chart is dated May 2004, which is one 
year and three months after the petition was filed. As previously stated, the petition must establish that it was 
eligible to classify the beneficiary as a multinational manager or executive at the time the petition was filed. See 
Adotter of K~figbak, 14 I&N Dec. at 49. Furthermore, when examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
Q: 204.5Cj)(5). In the instant matter, the petitioner has not provided an adequate description of the duties 
performed by the beneficiary at the time the petition was filed. Specifics are clearly an important indication 
WAC 03 102 523 12 
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of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bras. Co., Ltd. v. Sava, 724 F. 
Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 4 1 (2d. Cir. 1990). 
Accordingly, this matter is remanded. The director is instructed to review the record of proceedings in light 
of the AAO's findings and issue an additional request for evidence addressing the relevant issues discussed 
above. 
ORDER: The director's decision, dated August 11, 2004, is hereby withdrawn. The matter is 
remanded for further action consistent with the above discussion and entry of a new 
decision, which, if adverse, shall be certified to the AAO for review.