remanded EB-1C Case: International Transport

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U.S. Departm ent of Hom ela nd Securit) • 
U.S. Citizenshi p and lmmi gra rion Serv ice 
Offi ce of Admin.isrrative Appeals 
20 Massachusetts Ave ., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE : OCT 2 2 2013 OFFICE: TEXAS SERVICE CENTER FILE: 
INRE : Petition er: 
Benefici ary: 
PETITION: Immigr ant Petition for Alien Worker as a Multination al Execu tive or Manager Pursuant to 
Sec tion 203( b)( I )(C) of the Immi gration and Nationality Act , 8 U.S.C. § 11 53( b)( I )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclo sed pleas e 
find the decision of the Administr ative Appeals Office (AAO) in your case . Thi s is a non­
precedent dec ision. The AAO does not announc e new con struction s 
of law nor e stabli sh a ge ncy policy 
throu gh non-pr ece dent dec isions. 
Thank you, 
~~~~e alsOffk e 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the nonimmigrant visa petition and the matter is 
now befo re the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the director's 
decision and remand the matter to the director for further action and issuance of a new deci sion. 
The petitioner, a corporation organized in the State of Texas, operates an international transport company. 
The petitioner states that it is a wholly owned subsidiary of located in Mexico. The 
petitioner seeks to employ the beneficiary as its vice president in charge of fleet services . Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(I)(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, finding that the petitioner failed to establi sh that it has a qualifying 
relationship with the foreign employer. 
On appeal, counsel asserts that the petitioner has adequately addressed discrepancies in its corporate feder al 
tax returns which led to the denial of the petition and has otherwise submitted sufficient evidence to establish 
a qualifying relationship between the petitioner and the foreign employer. 
I. The Law 
Section 203(b) of the Act states in pertinent part : 
(I) Priority Worker s. --Vi sas shall first be made available ... to qualifi ed immigrants who 
areal iens describ ed 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 sub sidiary. 
The pertinent regulation at 8 C.F.R. § 205.5U)(2) defines "subsidiary" as follows: 
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Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly , moi·e 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 . 
A United States employer may file a petition on Form I-140 for classification of an alien under section 
203(b)(I)(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 petformed by the alien. 
II. Qualifying Relationship 
The sole issue addressed by the director is whether the petitioner has established that it has a qualifying 
relation ship with the beneficiary's foreign employer. 
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 
Act, 8 U.S.C. § 1153(b)(1 )(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" 
and "subsidiary"). 
The regulation 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 purpose s 
of this visa cla ssification . Matt er of Chur ch Scientology Int ernational, 19 I&N Dec. 593 (Comm'r 1988) ; 
see also Matter of Siemen s Medical Systems , Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm' r 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. 
The director concluded the petitioner had not supported the claim that it is wholly owned by the beneficiary's 
foreign employer due to discrepancies found in the petitioner's IRS Forms 1120 , U.S. Corporation Income 
Tax Return, for 2010 and 2011. Specifically, the IRS Forms 1120 identify the petitioner's sole owner as 
Th e director noted that the petitioner failed to submit an adequate explanation for this 
discrepancy in res ponse to a reque st for evidence (RFE). 
On appeal , counsel asserts that the petitioner has provided an adequate explanation for the noted discrepancy 
in its IRS Form s 1120. Counsel states that the mistake was made by the petitioner 's accountant and that 
these errors have since been corrected through the filing of an amended return for 2011. In support of the 
appeal, the petitioner submits amended tax returns, explanatory letters from the attorney who assisted with 
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the corporate fo rmation, as well as from its current and former accountants. FUtther, counsel emphasizes that 
the petitioner has submitted suffici ent primary evidence of ownership sufficient to establi sh that the foreign 
employ er wholly own s the petitioner, including a stock certificate, by-laws, and a written co nsent of its board 
of directors , all which confirm the foreign entity's sole ownership of the petitioner. 
Upon review of the totality of the record, the petitioner has established by a preponderance of the evidence 
that it is wholly owned by the foreign employer, and therefore, that there is a qualifying relation shi p betw ee n 
the entities as parent and subsidiary . The petitioner has sufficiently recognized the noted inconsist ency in the 
record by submitting competent objective evidence pointing to where the truth lies. As such, the petitioner 
has established that it has a qualifying relationship with the foreign entity and the director's deci sion will be 
withdrawn. 
III. Additional Issues 
Although the director's deci sion will be withdrawn, the record as pre sently constituted contains insuffi cient 
ev idence to warrant a conclusion that the beneficiary has been employed abroad, and will be employed in the 
United States, in a qualifyin g man age rial or executive capacity. The AAO maintains authority to review 
each appeal on a de novo bas is. Soltane v. DOl, 381 F.3d 143, 145 (3d eir. 2004). Accordingly , the pet ition 
will be remanded to the director for further review and action consistent with the discussion below. 
In order to determine wheth er the benefici ary has been and would be employed in a qualifying manageri al or 
executive capacity , USers will look fir st to the petitioner's description of the job dutie s. See 8 C.F.R. 
§ 204.5Q)(5). users reviews the totality of the record, including descriptions of a beneficiary' s duties and 
those of his or her subord inate employees, the nature of the petitioner' s business, the e mplo yment and 
remuneration of employees, and any other facts contributing to a complete understanding of a beneficiary's 
actual role in a business. 
Although the petitioner provided a lengthy description of the beneficiary' s last position with the foreign 
employer , the description is insufficient as it fails to provide specific detail s regarding his day-to-day tasks. 
In fact, the beneficiary's listing of duties is less a duty description then a disc ussion of gene ral attr ibutes of 
any executive. For example, the petitioner stated: "a President should be prepared and knowledgeable about 
the company," "the President decides the future of the company," and "the President has to create and inform 
the staff of the differ ent short term goals and the mission of the corponition." The listed duties could apply 
to any exe cutive with any company, in any industry and thus offer little insight into what the beneficiary did 
in the context of the foreign company. 
Specifics are clearly an important indication of whether a beneficiary's duties are prim arily executive or 
manag eria l in nature. Merely repeating the language of the statute or regulations doe s not satisfy the 
petition er's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, II 08 (E.D.N.Y. 1989), ajj'd, 
905 F. 2d 41 (2d. eir. 1990) ; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N. Y.) . 
Moreover, the petitioner has failed to submit sufficient evidence regarding the forei gn entity's organizational 
structure. Th e director requested that the petitioner submit the foreign co mpany's org anizational chart, 
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including posttJOns titles, descriptions, the names of the individuals filling these posttJOns, and the 
requirements of each posit ion . However, the petitioner did not provide a sufficient response to the director's 
reque st. The pet itioner did submit a foreign organizational chart, but the provided chart was not translated. 
Because the petitioner failed to submit cettified translations of the documents, the AAO cannot determine 
whether the evidence supports the petitioner's claims. See 8 C.P.R. § I 03.2(b)(3). FUither, although the 
petitioner provided job duty descriptions for some subordinates, the record does not include job dut y 
descriptions for the beneficiary's claimed managerial and supervisory subordinates. 
Additionally, the petitioner has submitted little evidence of the foreign employer 's business operations. 
Specifically, the petitioner has not established that the foreign employer supported the 17 claimed manageri al 
and supervisory subordinates, and many other supporting employees, listed in the foreign organizational 
chart. 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'r 1998) (citing 
Matter of Treasure Craft o.fCalifornia, 14 I&N Dec . 190 (Reg. Comm'r 1972)) . 
With respect to the beneficiary's proposed employment in the United States, the petitioner has submitted a 
vague position description that fails to explain the nature of his day-to-day task s. Reciting the beneficiary' s 
vague job responsibilitie s or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. For instance , the petitioner provides no specifics, 
detail s or supporting documentation regarding the internal operational policie s to be implemented , the short 
and long terms goals established, the types of managerial decisions to be made with respect to the company's 
truck fleet, or the strategies to be developed for improved vehicle maintenance. In fact , some of the listed 
dutie s are presented as the beneficiary 's attributes, rather than actual day-to-day duties, such as "[the 
beneficiary] has ample knowledge of the transportation/freight regulations and terminology as well as 
excellent negotiation skills with both suppliers and clients." Overall, while the duty description suggests that 
the beneficiary possesses the appropriate level of authority as vice president of the company, the petitioner 
has not met its burden to provide a detailed description of his actual duties. 
At this time, the AAO takes no position on whether the beneficiary qualifies for the classification sought. 
The director must make the initial determination on this issue. Therefore, the AAO will remand this matter 
to the director for a new decision. The director should request any additional evidence deeme d wan anted and 
allow the petitioner to submit such ev idence within a reasonable period of time. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for futther 
action in accordance with the foregoing discussion and entry of a new decision which, if 
adverse to the petitioner, shall be certified to the Administrative Appeals Office for review.