remanded EB-1C Case: Textiles

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington, DC 20j29 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 097 53386 Office: VERMONT SERVICE CENTER Date: JUL I 1 2005 
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. fj 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. 
Yr-~obert P. Wiemann, Director P Administrative Appeals Office 
EAC 04 097 53386 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The petition will be remanded to the 
Vermont Service Center. 
The petitioner claims it is a limited liability company organized in the State of New York in 1992. The 
petitioner elected S corporation classification in 1996. It provides international sales and marketing support 
services for textile and garment products manufactured in China. It seeks to employ the beneficiary as its 
vice-president of business development. 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. tj 11 53(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner had not established a qualifying relationship with the beneficiary's 
foreign employer. 
On appeal, counsel for the petitioner asserts that the director based her decision on the erroneous belief that 
the petitioner claimed to be a branch office of the foreign entity. Counsel asserts that the record demonstrates 
that the Chinese foreign entity is a branch office of the petitioner. Counsel also notes the previous approval of 
the beneficiary's classification as an L-1A intracompany transferee and requests that Citizenship and 
Immigration Services (CIS) prior determination be given deference. Finally, counsel contends that CIS failed 
to provide adequate notice of its intention to deny the Form 1-140 petition on the issue of qualifying 
relationship. Counsel notes that the director did not request evidence on this issue in her May 25, 2004 
request for further evidence. 
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 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. 
EAC 04 097 53386 
Page 3 
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 that 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. See 8 C.F.R. 
9 204.5(j)(5). 
The issue in this proceeding is whether the petitioner has the petitioner has established a qualifying 
relationship between the petitioner and the foreign entity. In order to qualify for this visa classification, the 
petitioner must establish that a qualifying relationship exists between the United States and foreign entities in that 
the petitioning company is the same employer or an affiliate or subsidiary of the foreign entity. 
The regulation at 8 C.F.R. 3 204.5Cj)(2) states in pertinent part: 
AfJiIiate 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. 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts business in 
two or more countries, one of which is the United States. 
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. 
The record contains: (1) a translated copy of a Registration Certificate of the Permanent Office of Foreign 
Enterprise in China dated May 22, 2002 naming the foreign entity's head office as the United States 
petitioner; (2) a translated copy of a Tax Registration for Foreign Enterprises for an effective period 
beginning May 22, 2002 through May 16, 2005 showing that the petitioner is a foreign enterprise and the 
head office of the Chinese entity; (3) a translated copy of a Statistical Registration Certificate for an effective 
period October 9, 2002 to October 9,2006 naming the Chinese entity as the Shanghai representative office of 
the petitioner; (4) a July 8, 2002 letter signed by the office managing partner of afirm 
indicating that the Chinese entity is the petitioner's representative office in Shanghai; (5) a 2002 Internal 
Revenue Service (IRS) Form 1120S, U.S. Income Tax Return for S Corporation indicating the petitioner was 
incorporated in March 1995, elected S corporation status in January 1996, had one shareholder, and was a 
EAC 04 097 53386 
Page 4 
sales office; and (6) evidence that the petitioner had received operating funds fro- 
Hong Kong entity, in February, April, May, and June 2004. 
The director noted that: the foreign entity is a limited liability company based in Rong Kong 
with an office in Shanghai; the United States entity appears to be wholly owned by one individual, estate, or 
trust and therefore is a separate entity apart from the foreign entity and could not be considered a branch 
office for the purposes of this visa classification; and the record lacked evidence to show who in fact owns 
and controls the United States entity. The director determined that the United States employer and the foreign 
employer are separate business entities and that the record did not establish a qualifying relationship between 
the two entities. 
On appeal, counsel for the petitioner indicates that the petitioner is an "S" corporation with one shareholder 
that operates a branch office in Shanghai, China. Counsel notes that this information was included in the 
letter submitted in support of the petition. Counsel also references the Registration Certificate of the 
Permanent Office of Foreign Enterprise in China dated May 22, 2002, the Tax Registration for Foreign 
Enterprises for an effective period beginning May 22, 2002 through May 16, 2005, the Statistical Registration 
Certificate for an effective period October 9, 2002 to October 9, 2006, and the July 8, 2002 letter signed by 
the office managing partner of a Shanghai law firm indicating that the Chinese entity is the petitioner's 
representative office in Shanghai, all previously submitted in support of the petition. Counsel asserts that the 
U.S. petitioner operates the foreign entity branch office in Shanghai and thus a qualifying relationship has 
been established. 
Counsel's assertion is persuasive. The record in this matter contains sufficient evidence establishing that the 
beneficiary's foreign employer is the petitioner's branch office. The petitioner has established that the 
petitioner is the same employer as the petitioner's Shanghai office, where the beneficiary worked prior to 
entering the United States as a nonimmigrant. The director's decision of October 6, 2004 is withdrawn. 
The AAO notes for the record, however, t at with regard to the similarity of the eligibility criteria for Form 
1-140 petitions and Form 1-129 L-1A p titions, the AAO acknowledges that both the immigrant and 
nonimmigrant visa classifications rely on he same definitions of managerial and executive capacity. See 
55 101 (a)(44)(A) and (B) of the Act, 8 U.S C. 5 1 10 1 (a)(44). However, although the statutory definitions for 
managerial and executive capacity are the ame, the question of overall eligibility requires a comprehensive 
review of all of the provisions, not just t e definitions of managerial and executive capacity. There are 
Act, 8 U.S.C. 5 1427. 
I 
significant differences between the nonikmigrant visa classification, which allows an alien to enter the 
United States temporarily for no more than seven years, and an immig;ant visa petition, which permits an 
alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization 
as a United States citizen. C.' $5 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see also 5 316 of the 
It must be noted that many Form 1-140 immigrant petitions are denied after CIS approves prior nonimmigrant 
Form 1-129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA 
US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 
1 103 (E.D.N.Y. 1989). Because CIS spends less time reviewing Form 1-129 nonimmigrant petitions than 
EAC 04 097 53386 
Page 5 
Form 1-140 immigrant petitions, some nonimmigrant L1-A petitions are simply approved in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 8 C.F.R. 5 214.2(1)(14)(i)(requiring no supporting 
documentation to file a petition to extend an L-1A petition's validity). Finally, each petition is a separate 
record of proceeding and receives an independent review. See 8 C.F.R. 5 103.8(d). In making a 
determination of statutory eligibility, CIS is limited to the information contained in the record of proceeding. 
See 8 C.F.R. 5 103.2(b)(16)(ii). Because the approved nonimmigrant petitions are not part of the current 
immigrant visa record of proceeding, the AAO cannot determine whether the documentation supporting the 
previous L-1A petition was sufficient or whether the petition was approved in error. 
Counsel should further note that the AAO is not required to approve applications or petitions where eligibility 
has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter 
of Church Scientology International, 19 I&N Dec. at 597. 
Beyond the decision of the director, the petitioner has not established that the beneficiary will be employed in 
a managerial or executive capacity for the United States entity. 
Section 10 1(a)(44)(A) of the Act, 8 U.S.C. 5 1 10 l(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily 
1. 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; 
. . . 
111. 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 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. tj 1101(a)(44)(B), provides: 
EAC 04 097 53386 
Page 6 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily 
1. directs the management of the organization or a major component or function 
of the organization; 
. . 
11. establishes the goals and policies of the organization, component, or 
function; 
... 
111. 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. 
Counsel for the petitioner asserts that the beneficiary is both a manager and an executive. However, a 
beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the 
two statutory definitions. If the petitioner chooses to represent the beneficiary as both an executive and a 
manager, it must establish that the beneficiary meets each of the four criteria set forth in the statutory 
definition for executive and the statutory definition for manager. 
In this matter, the petitioner has not provided evidence of its staffing level in its New York office. The director 
specifically requested that the petitioner provides its IRS Form 941, Employer's Quarterly Tax Return for the first 
quarter of 2004, the quarter in which the petition was filed. However, the petitioner provided only its Form 941 
for the first quarter of 2003. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 3 103.2(b)(14). The petitioner also provides two organizational charts. 
One organizational chart depicts the New York office on the same tier as the beneficiary's position as 
vice-presidentlgeneral manager in the Shanghai office. On this organizational chart, the New York office shows a 
sales manager reporting directly to the president and a sales assistant, designer, and merchandiser in positions 
subordinate to the sales manager. A second organizational chart shows the beneficiary as executive 
vice-president of business development supervising the New York office sales manager, who in turn supervises 
two sales assistants. The chart also shows four additional positions, apparently occupied by employees stationed 
in China, directly under the beneficiary's supervision and an additional 41 foreign employees indirectly under the 
beneficiary's position. The petitioner notes that the beneficiary spends approximately 60 percent of his time 
"managing the development and training of the company's marketing and sales support staff worldwide in order 
to effectively implement business development strategies." However, since the petitioner only employs three 
sales personnel in the New York office, the necessity of the beneficiary's permanent position in the New York 
office is not readily apparent. 
On this same issue, the petitioner indicates that the U.S. office is a sales office and was established to provide 
international sales and marketing support services for the textile and garment products manufactured by the 
Chinese entity. Further, that the beneficiary will be responsible for directing all of the sales and marketing 
functions of the New York office. The petitioner notes that the beneficiary will spend 30 percent of his time 
establishing marketing and sales goals, strategies, and policies designed to generate and develop new business 
EAC 04 097 53386 
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opportunities in the United States. However, the record does not provide evidence that individuals other than the 
beneficiary will carry out all the tasks associated with marketing the Chinese office's product. Further, since the 
beneficiary devotes only 30 percent of his time to this operational task, it is again not clear that this position 
requires the permanent presence of the beneficiary in the New York office to carry out this fimction. 
The AAO notes that the petitioner provided evidence in response to the director's request on the issue of the 
beneficiary's managerial or executive position. However upon our review of the record, including the nature 
of the petitioner's business in New York, the general description of the beneficiary's position for the New 
York office, the staffing level of the New York office, and the two disparate organizational charts, the 
petitioner has not established that the beneficiary's position for the United States entity would be primarily 
managerial or executive. For this reason the petition will not be approved. 
The director's decision will be withdrawn on the issue of qualifying relationship. However, the matter will be 
remanded to the director for further review of the beneficiary's managerial or executive capacity for the 
petitioner. The director shall render a new decision based on the evidence of record as it relates to the 
regulatory requirements for eligibility. The director's decision will be certified to the AAO, if adverse to the 
petitioner, upon entry of a new decision. 
ORDER: The director's decision of October 6, 2004, is withdrawn. The matter is remanded to the director 
for further action and consideration of the above discussion and the entry of new decision that, if adverse to 
the petitioner, will be certified to the AAO upon completion.