remanded EB-1C Case: Movie Production

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington , DC 20529 -2090 
U.S. Citizenship 
and Immigration 
Services 
Date: AUG 2 1 2013 OFFICE: NEBRASKA SERVICE CENTER Fll...E: 
INRE: Petitioner: 
Beneficiary: 
Pl!TITION: Immigtai)J Petition for Alien Worker as~ 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: SELf-REPRESENTED 
INSTRUCTIONS: 
pnclosed pleCJ.Se find the decision of the Adm.inisttative Appeals Office (AAO) in your case. This is a non­
precedent decision. The AAO does not announce new constructions of law nor establish agency policy 
through non-precedent decisions. 
Thank you, 
~!:~ 
Chief, A<:lministra.tive Appeals Office 
www.useis.ge)V 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the 
director's decision and remand the matter for further action. 
The petitioner is a California limited liability company that operates as a movie production and distribution 
enterprise. At the time of filing, the petitioner had accumulated over $250,000 in paid invoices for products 
and/or services provided. The petitioner seeks to employ the beneficiary as its chief executive 
officer/manager. The petitioner endeavors to classify the beneficiary as a multinational executive or manager 
pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C). 
The director denied the petition based on the following two adverse findings: (1) the petitioner failed to 
establish that it had been doing business for one year prior to filing the petition; and (2) the petitioner does not 
have an employer-employee relationship with the U.S. petitioner because he is ultimately the majority owner 
of the company. 
I. The Law 
Section 203(b) of the Act states in pertinent part (with emphasis added): 
(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 s~bsiqiary 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 CJ,nd managers who 
have previously been employed by 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 Form 1-140 to seek classification of an alien under section ~03(b)(l)(C) 
of th~ Act as a multinational executive or manager. 8 C.P.R. § 204.5(j)(l). The prospective employer in the 
United States must furnish a job offer in the form of a statement whic.h indicates that the alien is to be 
employed in the United States in a managerial or executive capacity. See section I OJ (a)(44) of the Act. Such 
a st.ttement must clearly describe the duties to be performed by the alien. /d. 
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The regulation at 8 C.P.R. § 204.5(j)(3)(1) lists the initial evidence that the petitioner is required to submit in 
support of the Form 1-140. Relevant to the matter at hand is the requirement discussed at 8 C.P.R. 
§ 204.5(j)(3)(i)(D), which requires the petitioner to establish that it has been doing business for at least one 
year prior to filing the Form 1-140. The tetm "doing business" is defined as the regular, systematic; and 
continuous provision of goods and/or serviees by a firm, corporation, or other entity and does not include the 
mere presence of an agent or office. 8 C;F;R. § 204.5(j)(2) 
With respect to mallagerjal and executive capacity, section 101(a)(44) of the Act defines the tetrrts as follows: 
(A) 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 ~ department 
or subdivision of the organization; 
' . 
' 
(iii) if another employee or other employees are directly supervised, has the authority 
to hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization) or, 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 virtlle Of the supervisor's supervisory duties unless the employees supervised are 
professional. 
(B) 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-making; and 
(iv) receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
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8 U.S.C. § 1101(a)(44) (emphasis added). 
H. Beneficiary as Employee and Majority Owner 
The director denied the peti~ioo after concluding ~hat the beneficiary, as the majority owner of the petitioning 
corporation, may not be considered an employee of that entity. The director raised this issue as one of two 
grounds for denying the petition. 
The director noted that USCIS regulations provide that only a "United States employer" may file a visa 
petition on the beneficiary's behalf. 8 C.F.R. § 204.5(j)(l). Furthermore, the director observed that two 
binding precedent decisions clarify that a beneficiary's ownership of the petitiotiihg cotpotation is i_ttelevant 
to th~ beneficiary's eligil)ility, as a corporll,tion i.s ll. separate legal entity apart from its shareholders. See 
Matter ofAphrodfte invesmzents Ltd, 17 I&N Dec. 530 (Comm'r 1980); Matter of Allen Gee, 17 I&N Dec 
296 (Act. Reg. Comm'r 1979). However, the director noted that the U.S. Department of Labor (DOL) 
regulations at 20 C.F.R. ,§ 656.3 define employment as "full-time work by an employee for an employer other 
tha:n oneself." The dir:ectot concluded that there is ll. "conflict of laws" and proposed that the case must be 
resolved by "adhering to the primary authority that addresses the issue in greatest detail," specifically the 
DOL regulations. 
Sections 203(b)(l)(C) aild l0l(a)(44) of the Act, along with the related regulations at 8 C.F.R. § 204.5(j), all 
make use of the terms ''employed," ''employee,'' and "United 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 :1nd, consid~ring the specific context in which thll.t language is used, examine . whether the terms are 
outcome determinative. 
Statutory interpretation begins with the language of the statute itself. Barnhart v. Sigmpn Coal Co., 534 U.S. 
438, 450 (2002). The AAO must "determine whether the language at issue has a plain artd unambiguous 
meaning with regard to the particular dispute in the case." /d. (quotingRobinson v. Shell Oil Co., 519 U.S. 
337, .340 (1997)). The "inquiry must cease if the statutory language is utu,lmbiguous and 'the statutory 
scheme is coherent and consistent."' Robinson, 519 U.S. at 340; see also United States v. Abuagla, 336 F .. 3d 
277, 278 (4th Cir. 2003). 
While the statute uses the terin ''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 beneficiary and not the 
person's employment status. Looking at the statutory scheme as a whole, the AAO concludes tha~ it is most 
appropriate to review the beneficiary's eligibility by making a determination on his other claimed managerial 
or executive employment. 
The AAO recognizes that there is some tension between the terms ''employee'' and "executive." In Matter of 
Aphrodite Investments Ltd., the INS Commissioner expressed concern that adopting the word "employee" 
would exclude "some of the very people that the statute intends to benefit executives." i 7 I&N Dec. 530, 531 
{Comm't 1980); but see Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 448-49 (2003) 
(examining whether a director-shareholder is an employee under the common•l.lJ.w toucbSton_e of "control"). 
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This tension wot~ld generally lead the AAO to carefully eonsider the statutory definitions in their entirety, 
including the fourcritical subparagraphs of each definition. See sec. 101(a)(44)(A) and (B) of the Act. If 
US CIS were to focus solely on an employer-employee analysis, without considering the constituent elements 
of the definitions, the inqlcliry would be incomplete under the st:atute.1 
In tl;le present matter, the director's use of the employer-employee issue appears to be an attempt to address 
the marginality of the petitioning business or the use of the corporate form as a shell for immigt(ltion 
purposes. While not irrelevant, the employer~ernployee issue is not the optimal means of addressing these 
concerns. Instead, the director should focus on the fundamental eligibility requirements. Marginality and the 
validity of the job offer are best addressed by.the regulation that requires the petitioner to establish its abili~y · 
to pay. See 8 C.F.R. § 204.5(g)(2); see also Matter of Great Wall, 16 I&N Pee .. 142, 145 (Acting Reg. 
Coimn't 1977) (noting that the fundamental focus of ability to pay is whether the employer is making a 
"realistic" or credible job offer). 
Upon revi(!w, the l?eneficiary's employer-employee relationship with the petitioning entity is not the essential 
issue for consideration when evaluating the petitioner's eligibility. The AAO finds no need to further explore 
the issue of an employer-employee relationship between the beneficiary and its foreign anq U.S. employers. 
III. Doing Business 
As indicated above, the director's denial was bas¢d, in part, on the determination that t.he petitioner faiJed to 
establi'sl) t.h.at it had been going b1,1siness. for one year prior to filing the instant petition. the record shows that 
tbe petition wa,s filed on July 27, 2012. 
Despite the director's conclusion, the record contains sales invoices and corroborating bank statements, which 
show that the petitioner issued invoices . and was compensated the amounts shown in those invoices 
commencing with an invoice that was issued on August 1, 2011. The record shows similar invoices issued by 
the petitioner to various customers throughout the remainder of 2011 and continuing through July 1, ZOIZ, the 
date of the latest invoice. In light of the various supporting documents, the AAO finds that the petitioner has 
provided sufficient evidence to meet the filing requirement discussed at 8 C.F.R. § 204.5(j)(3)(i)(D). 
Accordingly, the decision of the director will be ·withdrawn as it relates to the beneficiary's status as an 
employee and the filing requirement at 8 C.F.R. § 204;5(j)(3)(i)(D). 
IV. Employment in a Managerial or Executive Capacity 
· Despite withdrawing the director's original basis for denial, the AAO notes that the record nevertheless 
· . reveals at least one other possible ground for ineligibility and the petition cannot be approved based on the 
record as presently constituted. 
1 The one area where the employment status of the beneficiary may be critica.l is the enabling st;':t(Ute at 
section 203(b)(l)(C) of the Act, which requires th<l.t the beneficiary has been "employed for at least one year" 
by a qualifying entity abroad. In this regard, based on the plain language of the statute, the beneficiary mUst 
be an employee of the foreign entity and not a contractor or consultant. 
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Upon review, the petitioner has failed to present sufficient evidence to establish that the beneficiary wouid be 
· employed in the United States in a qualifying managerial or executive capacity . In reviewing the petitioner's 
organizational chart and the benefiCiary's U.S. job description, the evidence of record shows thal ~he 
petitioner's organizational structure and staffing at the time of filing were extremely limited. Thus, it is 
unclear who wpulc:J relieve the beneficiary from having to allocate his time primarily to the performance of 
non-qualifying operational tasks. 
AlthbiJgh the AAO has reviewed the job descriptions offered for the proposed position, the provided 
information is overly vague ·a_ild fails to describe the beneficiary's job duties with adequate specificity. The 
petitioner has not · established how much time .the benefiCiary would allocate to tasks _within a qualifying 
capacity and how much of his time he would allocate to the petitioner's daily operational tasks. 
While the AAO ackilowle<lges that no beneficjary is required to allocate I 00% of hjs or lier time to 
managerial- or executive-level tasks, the petitioner must establish that the non..:quaiifying tasks the beneficiary 
. woul<l perform are only incidental to the proposed position. An employee who "primarily" performs the tasks 
necessary to produce a prod(lct or to provi(ie services is not considered to, be "primarily" employed in a 
managerial or executive capacity. See sections 10i(a)(44)(A) and (B) of the Act (requiring that one 
"primarily'' perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593, 604 (Comm, 1988). Therefore, in order to establish eligibility, it is 
imperative that the petitioner establish that the beneficiary would primarily perform tasks of a qualifying 
nature. 
V. Concbi$i9n 
Accordingly, the matter will be remanded for review and a new decision. The director may issue a notice 
requesting any additional evidence he deems necessary in order to determine the petitioner's eligibility for the 
benefit sought. 
ORDER: The decision of the director dated April ~. 2013 is hereby withdrawn. The matter is 
remanded for further action and consideration consistent with the above discussion 
and entry of a new decision, which, if adverse, shall be certified to the AAO fot 
review.