remanded EB-1C Case: Jewelry

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PUBlLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office:, TEXAS SERVICE CENTER Date: JAN 2 4 2008 
SRC 04 150 5273 1 
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. $ 1153(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. 
Gobert P. Wiemann, Director 
1 Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn 
and the matter will be remanded to the director for hrther consideration and entry of a new decision. 
The petitioner filed the instant immigrant petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
8 1153(b)(l)(C). The petitioner is a corporation organized under the laws of the State of Texas that is 
engaged in the sale of jewelry. The petitioner seeks to employ the beneficiary as its president. 
The director denied the petition concluding that the petitioner had not demonstrated that a qualifLing 
relationship exists between the foreign and United States entities. The director also noted uncertainty in the 
type of business performed by the foreign corporation. 
On appeal, counsel for the petitioner claims that the record demonstrates that both the foreign and United 
States entities are owned and controlled by the beneficiary, thereby establishing an affiliate relationship. 
Counsel submits an appellate brief and additional evidence in support of the claim of a qualifying 
relationship. 
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 or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 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 performed by the alien. 
The issue in this proceeding is whether a qualifying relationship exists between the foreign and United States 
entities. 
Page 3 
The regulation at 8 C.F.R. 9 204.5Cj)(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; 
Subsidialy 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. 
The petitioner filed the instant petition on April 29, 2004. In an attached letter, the petitioner stated that the 
corporation was a subsidiary of the Pakistani company, which is engaged in importing, wholesale and retail 
sales, and investing. As evidence of its operations in the United States, the petitioner submitted: (1) its 
certificate of incorporation; (2) its articles of incorporation, which identified the foreign entity and the 
beneficiary as "initial shareholders"; (3) by-laws; (4) minutes from a board of directors' meeting reflecting the 
issuance of 510 shares of stock to the Pakistani company and beneficiary; (5) stock certificate number one 
naming the foreign entity as the holder of 510 shares, or 51%, of the United States corporation; and (6) 
Internal Revenue Service (IRS) Schedule K-1, Shareholder's Share of Income, Credits, Deductions, indicating 
that the beneficiary owned 100 percent of the corporation's stock in the year 2003. 
With regard to the foreign entity, the petitioner submitted the following documentation: (1) an incomplete 
tenancy agreement to rent business premises in Karachi, Pakistan; (2) copies of vouchers evidencing rent paid 
in 2003; (3) electric and telephone bills; (4) a bank account summary for 2003; (5) tax assessment receipts for 
the years 2001 through 2005 identifying the beneficiary as the proprietor of the foreign company; and (6) an 
income tax ordinance dated April 7, 2003 identifying the beneficiary as the proprietor and confirming the 
foreign company's payment of annual taxes. 
In a March 15,2005 request for evidence, the director asked that the petitioner submit documentary evidence 
of the common ownership and control between the foreign and United States entities. The director noted that 
such evidence could include "stock certificates, copies of corporate bylaws/constitutions which clearly 
indicate stock ownership, certified affidavits from corporate executives or corporate legal counsel, or copies 
of published annual reports which indicate affiliates andlor subsidiaries and the percent of ownership held by 
the parent corporation." 
Counsel responded in a letter dated May 31, 2005. In the attached documentation, counsel submitted the 
petitioner's 2003 IRS Form 1 120S, U.S. Tax Return for an S Corporation, which indicated that the corporation 
had one shareholder during the year. Counsel again submitted the previously referenced Schedule K-1 . 
Page 4 
In a decision dated June 23, 2005, the director concluded that the petitioner had not demonstrated that a 
qualifying relationship exists between the foreign and United States entities. The director noted that the 
petitioner had "failed to address or submit the [requested] evidence of the U.S. or foreign entity's affiliation." 
The director concluded that the original evidence submitted with the petition did not establish the purported 
affiliate relationship. Consequently, the director denied the petition. 
In an appeal filed on July 28, 2005, counsel claims that the director incorrectly concluded that an affiliate 
relationship did not exist between the two entities. In an attached appellate brief, counsel references the tax 
payment receipts for the foreign entity, which name the beneficiary as the corporation's owner. Counsel notes 
that it is "cultural norm" in Pakistan for an individual to assume his father's first name as his last name, which 
may have caused confusion in the company's ownership when Citizenship and Immigration Services (CIS) 
was reviewing the foreign entity's corporate documents. Counsel submits evidence in the form of the 
beneficiary's birth certificate, Form I-797A, Notice of Approval of L-1A status, and Form I-512L, Parole 
Document, identifying the full name of the beneficiary. In addition, counsel submits the National Tax 
Number Certificate issued to the beneficiary by the Palustan government in 1997 when the proprietorship was 
formed, and tax payment receipts issued by the Palustan treasury department. Counsel notes that the tax 
payment receipts contain the same tax identification number as that assigned to the beneficiary on its tax 
certificate in 1997. 
With regard to the ownership of the United States corporation, counsel references the petitioner's stock 
certificate, which identifies the foreign entity as a holder of 51 percent of the petitioner's issued stock. 
Counsel cites Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982) and Matter of Tessel, 17 I&N Dec. 631 
(Comm. 1981) as guidance in establishing an affiliate relationship between the companies as a result of 
"effective de jure or de facto control of both organizations" and "a common majority owner." 
Counsel also addresses the director's statement regarding ambiguity of the foreign entity's operations. 
Counsel references documents submitted by the petitioner in the form of bank statements, corporate tax 
documents, invoices, utility bills, and lease agreements evidencing each corporation's operations. Counsel 
expresses difficulty "[in] understandring] what the [director] means by this comment," and notes that it 
"creates the presumption that the [director] did not review the file, or evidence of the activities, nor looked at 
the photographs of the foreign business." Counsel further addresses the director's notation that the petitioner 
had failed to submit requested customs documents. Counsel clarifies that while the director requested Custom 
Forms 7501 and 301, the petitioner is not engaged in the import and export of products, thereby making the 
request irrelevant. Counsel identifies invoices that were previously submitted for the record that demonstrate 
that the petitioner is trading with domestic suppliers and vendors, and does not import its merchandise. 
Upon review, the record demonstrates that an affiliate relationship exists between the foreign and United 
States entities. 
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 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. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-365. Without full 
disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. tj 204.56)(3)(ii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
property, or other consideration furnished to the entity in exchange for stock ownership. Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the 
ownership interest. 
Although the record contains inconsistencies, the totality of the evidence establishes an affiliate relationship 
between the foreign and United States entities. The petitioner has submitted evidence in the form of a tax 
certificate, tax payment receipts, and an income tax ordinance to establish the beneficiary's sole ownership of 
the foreign entity. Evidence of the petitioner's ownership, while not entirely consistent, ultimately establishes 
the beneficiary as the sole owner of the petitioning corporation. The record contains discrepancies whether 
the beneficiary is the sole owner of the petitioner, or whether the foreign entity owns a portion of the 
petitioner's issued stock. In either instance, the beneficiary, who is the sole proprietor of the foreign entity, 
would own and control the petitioning entity. Unlike a corporation, a sole proprietorship does not exist as an 
entity apart from the individual proprietor. See Matter of United Investment Group, 19 I&N Dec. 248, 250 
(Comm. 1984). It is irrelevant whether the petitioner's stock is issued in the name of the beneficiary or in the 
fictitious name used by his proprietorship. The petitioner has therefore demonstrated the existence of the 
requisite qualifLing relationship. Accordingly, the director's decision will be withdrawn. 
The AAO notes the director's duty to specifically explain why the record is deficient in establishing the 
existence of a qualifLing relationship between the foreign and United States entities. When denying a 
petition, a director has an affirmative duty to explain the specific reasons for the denial; this duty includes 
informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 291 of the 
Act, 8 U.S.C. tj 1361. See 8 C.F.R. 3 103.3(a)(l)(i). Here, the director failed to satisfy this burden. 
It is unclear from the June 23, 2005 decision whether the director also concluded that the foreign entity had 
not been doing business at the time of filing. Evidence such as rental payment receipts, tax payment receipts, 
and invoices and utility statements dated within the years 2004 and 2005 demonstrate that the foreign 
corporation continued doing business following the beneficiary's departure. 
Page 6 1 
Although the petitioner has overcome the specific deficiencies found by the director, the AAO notes that the 
director did not address the issues of whether the beneficiary was employed abroad in a primarily managerial 
or executive capacity or would be employed by the United States in a qualifying capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
primarily- 
(i) Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; if no other employee is directly supervised, functions at a senior level within the 
organizational hierarchy or with respect to the function managed; and 
(iv) Exercises discretion over the day-to-day operations of the activity or function for which 
the employee has authority. A first-line supervisor is not considered to be acting in a managerial 
capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised 
are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) Directs the management of the organization or a major component or function of the 
organization; 
(ii) Establishes the goals and policies of the organization, component, or function; 
(iii) Exercises wide latitude in discretionary decision-malung; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
In the letter appended to the petition, the petitioner stated that while employed abroad as the foreign 
company's general manager, the beneficiary oversaw and ran the corporation. The petitioner further stated: 
[The beneficiary] [was] responsible for assessing, and analyzing any possible acquisition 
candidate, spending time understanding the dynamics of allied industry, while performing 
Page 7 
many directorial duties as the president of the company involving strategic planning, 
supervision, coordination and representation of the corporation. [The beneficiary's] 
responsibility include[d] direct[ing] and overseeing the total operation of the company, 
including the hirring], train[ing], supervis[ion], and fir[ing] of all employees, as well as 
making business decisions regarding any future growth, merger, or acquisition, and 
expansion plans. 
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. 9 214.2(1)(3)(ii). Although the petitioner submitted an 
organizational chart identifying ten positions in the company, including the beneficiary's as "president- 
owner," the limited evidence in the record does not demonstrate that the beneficiary's role was managerial or 
executive in nature. The managerial or executive job duties of the beneficiary cannot be ascertained from the 
petitioner's job description. Reciting the beneficiary's vague job responsibilities or broadly-cast business 
objectives is not sufficient; the regulations require a detailed description of the beneficiary's daily job duties. 
The petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1 108 (E.D.N.Y. 1989), agd, 905 F.2d 41 (2d. Cir. 1990). Additionally, the 
petitioner has not clarified whether the beneficiary's role within the company was that of "general manager" 
or "president." 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). 
The petitioner also stated in its initial letter that the beneficiary, as the president of the United States 
corporation, would divide his time in the following manner: (1) investigating business opportunities and 
setting personnel policies, and reporting to the parent company, 20%; (2) hiring, firing, training and 
supervising managers, reviewing employees' work performance, setting corporate goals, and overseeing the 
operation of the business, 30%; (3) communicating with attorney, accountants, vendors and providers, 15%; 
(4) acting as a liaison between the United States and foreign corporations to standardize marketing and 
development functions, 5%; (5) representing the petitioner at trade shows and tracking industry changes, 
20%; and (6) mentoring and counseling management and employees, 10%. The record also contains a letter 
from the foreign entity describing responsibilities held by the beneficiary in relation to expanding the 
petitioner's business. The petitioner submitted the company's organizational chart identifying five lower-level 
employees, however, the petitioner's quarterly tax report for the period ending June 30, 2004, the quarter 
during which the instant petition was filed, reflects the employment of four workers, the beneficiary, the 
company's vice-president, and two individuals who were not identified on the petitioner's organizational chart. 
The limited job description, as well as the discrepancies in the petitioner's staffing levels, prevents a finding 
that the beneficiary would be employed by the United States entity in a primarily managerial or executive 
capacity. Case law dictates that a petitioner's blanket claim of employing the beneficiary as a manager or 
executive without a description of how, when, where and with whom the beneficiary's job duties occurred is 
insufficient for establishing employment in a primarily managerial or executive capacity. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. at 1108. 
The record as presently constituted does not establish the beneficiary's eligibility for this immigrant visa 
classification, and the petition will therefore be remanded to the director for further action and consideration. 
The director is instructed to consider the issues of whether the beneficiary was employed abroad and would 
Page 8 
be employed in the United States in a primarily managerial or executive capacity, and, if necessary, request 
additional evidence related to the beneficiary's former and proposed employment capacities. The director 
should enter a new decision based on her review of the record and any additional documentary evidence. 
ORDER: The decision of the director dated June 23,2005 is withdrawn. The matter is remanded for further 
action and consideration consistent with the above discussion and entry of a new decision.