remanded EB-1C Case: Promotional Services

U.S. Department of Homeland Security 
20 Mass Ave., N W., Rm. A3042 
Washington, DC 20529 
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tp.rah@s -Q C* m U.S. Citizenship and Immigration 
FILE: - Office: VERMONT SERVICE CENTER Date: JUN 0 '7 'MI# 
EAC 04 115 54215 
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. 9 1 153(b)(1 )(C) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Acting Director, Vermont Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The matter will be remanded 
for further consideration.' 
The petitioner was incorporated on February 28, 2001 in the State of Massachusetts and is engaged in the 
business of providing corporations with promotional products and services. It seeks to employ the beneficiary 
as its managing director. 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. 
$ 1153(b)(l)(C), as a multinational executive or manager. 
On August 25, 2004, the acting director denied the petition concluding that the petitioner failed to establish 
that the beneficiary would be employed in a managerial or executive capacity. In reaching this conclusion, 
the acting director noted that the record does not "establish that the beneficiary's managerial experience and 
education qualifies himlher as an ExecutivefManager while employed by your organization." 
While the acting director's ultimate conclusion may be on point, there is no statute or regulation that mandates 
that a petitioner must establish that the beneficiary possesses managerial experience or certain type of 
education in order to qualify as a multinational manager or executive. Rather, section 203(b)(l)(C) of the Act 
clearly states that the beneficiary's prior overseas employment must have been with the qualifying foreign 
entity; such employment must have continued for at least one of three years prior to the beneficiary's entry to 
the United States as a nonimmigrant; and such employment must have been in a managerial or executive 
capacity. There is no statute or regulation requiring the prior employment to have been in a managerial 
capacity. Nor is the beneficiary required to have attained a particular level of education. 
Furthermore, the acting director failed to issue a request for additional evidence. While the AAO 
acknowledges that this step is not required in the denial of every petition, the regulations at 8 C.F.R. 
5 103.2(b)(8) state that when the petitioner fails to submit initial evidence in support of the petition, CIS shall 
request that the petitioner submit the missing evidence and may request that the petitioner submit additional 
evidence. The regulation at 8 C.F.R. $ 204.5(j)(3)(i) states that the following qualifies as initial evidence: 
I) evidence of the beneficiary's qualifying overseas employment, 2) evidence of a qualifying relationship 
between the U.S. petitioner and the beneficiary's foreign employer, and 3) evidence that the petitioner had 
been doing business for one year prior to filing the petition. In addition, the regulation at 8 C.F.R. 
5 204.5(g)(2) states that proof of the petitioner's ability to pay the beneficiary's proffered wage is also deemed 
initial evidence. 
In the instant matter, a review of the record indicates that the petitioner failed to provide the following 
required initial evidence: 1) information regarding the beneficiary's job duties abroad with a qualifying 
organization; 2) evidence establishing that the petitioner had been doing business in the United States for one 
year prior to filing the instant petition; and 3) evidence that the petitioner has the ability to pay the 
beneficiary's proffered wage. While the director referred to the petitioner's Form 1 120 tax return for 2002, the 
I It is noted that the petition and the appeal were prepared by an immigration service provider. Although the petition is 
accompanied by a Form (3-28, Notice of Entry of Appearance by an Attorney or Representative, the immigration service 
provider has not established that it is a licensed attorney or an accredited representative authorized to undertake 
representations on the petitioner's behalf. See 8 C.F.R. 5 292.1. Accordingly, the assertions of the immigration service 
provider will not be considered in this proceeding. 
current petition was not filed until March of 2004. As accurately stated by counsel, the petitioner is not 
required to establish eligibility two years prior to filing the 1-140 petition. See Mutter of Kutighuk, 14 I&N 
Dec. 45,49 (Comm. 197 1). 
Accordingly, the AAO must withdraw the acting director's decision and remand the case. The director shall 
address the deficiencies of the prior decision by properly issuing a request for evidence, which will instruct 
the petitioner to submit all of the missing initial evidence. The director shall also instruct the petitioner to 
submit additional evidence regarding the beneficiary's proposed duties in the United States. Specifics are 
clearly an important indication 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 Bros. 
Co., Ltd. 1'. "?ma, 724 F. Supp. 1 103 (E.D.N.Y. 1989), nfd, 905 F.2d 41 (2d. Cir. 1990). The director shall 
caution the petitioner that the actual duties themselves reveal the true nature of the employment. Id. 
Further, 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 Mutter of Siemens Medicul Systems, Inc., 19 I&N Dec. 362 (BIA 1986). 
In the instant matter, the petitioner's only evidence of a qualifying relationship with the beneficiary's foreign 
employer is a single stock certificate. As such, the director shall request that the petitioner submit evidence 
that the foreign entity actual paid for ownership of the stock it was apparently issued. The director may also 
request 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 August 25, 2004 is withdrawn. The matter is 
remanded for further action and consideration consistent with the above discussion 
and entry of a new decision, which shall be certified to the AAO for review.