remanded EB-1C Case: Transportation Services

(b)(6)
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
Administ rative Appeals Office (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUN 1 3 2013 OFFICE: NEBRASKA SERVICE CENTER 
IN RE: Petitioner : 
Beneficiar y: 
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 PETfTIONER: 
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. 
Thank you, 
· ~· ·· ···: . :·. - ~ . ,_::' -.-. . ... ...... 
· --_.:-_'_, ,.;..; :"'•· .... 
it· .. · '~·· · .··· . ·:-~· . .... , 
Ron Rose berg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
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DISCUSSION: The Director, Nebraska Service Center, denied the immigrant petition. The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The matter will be remanded for further 
consideration. 
The petitioner was incorporated in 1997 in the State of Illinois. It is engaged in ground transportation 
services. The petitioner seeks 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. 
The director denied the petition, concluding that the petitioner failed to establish the following: (1) that the 
beneficiary is an employee and not the employer; (2) that the beneficiary will manage a subordinate staff of 
professional, managerial, or supervisory personnel who will relieve the beneficiary from performing the day­
to-day duties of the business; (3) that the foreign entity is doing business; and ( 4) that the petitioner has been 
doing business for at least one year. 
With respect to the first ground of denial, the director found that the evidence indicates that the beneficiary is 
the majority shareholder in the beneficiary's foreign employer, (the foreign 
entity), as well as the petitioning entity, The director concluded: "Since the evidence 
appears to indicate that there is no individual or board that has or will supervise the beneficiary's work or has 
the authority to hire or fire the beneficiary, the beneficiary must be considered the employer and not an 
employee." 
The director's finding with respect 
to the first ground of denial is inappropriate. The beneficiary's employer­
employee relationship with the foreign and U.S. entities is not an essential issue for consideration when 
evaluating the beneficiary's eligibility. While the statute uses the term "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 employee and not the person's employment status. Looking at the statutory scheme as 
a whole, the AAO concludes that it is most appropriate to review the beneficiary's eligibility by making a 
determination on his or her claimed managerial or executive employment. The AAO finds no need to further 
explore the issue of an employer-employee relationship between the beneficiary and his foreign and U.S. 
employers. 
With respect to the second ground of denial, the director found that the evidence did not establish that the 
beneficiary will be managing a subordinate staff of professional, managerial, or supervisory personnel who 
will relieve the beneficiary from performing the day-to-day duties of the business. The director concluded: 
"The evidence does not indicate that a transportation services company with only eight employees would 
contain the organizational complexity for this classification." 
The director's finding with respect to the second ground is unsupported by the record and inappropriate. 
Contrary to the director's finding that the evidence does not establish that the beneficiary will manage a 
subordinate staff of professional, managerial, or supervisory personnel, the petitioner asserted that the 
beneficiary would be supervising a Vice President, who will direct the daily 
1 
The record reflects that the beneficiary is a 50% shareholder in both the foreign and U.S. entities. 
(b)(6)
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operations of the U.S. petitioner? The director's decision does not discuss the Vice President position. The 
director's finding appears to be based solely upon the petitioner's size of eight employees. However, a 
company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive . See§ 101(a)(44)(C) ofthe Act, 
8 U.S.C. § 1101(a)(44)(C). While it is appropriate for USCIS to consider the size of the petitioning company 
in conjunction with other relevant factors, the director must atticulate all of the other relevant factors that 
were considered in concluding that a company lacks organizational complexity. The director has not 
articulated any factors other than the company's size. 
With respect to the third ground of denial, the director found that there was insufficient evidence to establish 
that the foreign entity continues to do business. The director observed that the owners of the foreign entity 
are both presently residing in the United States, and the beneficiary was "the individual chiefly responsible 
for the growth of [the foreign entity]." 
The director's finding with respect to the third ground is unsupported by the record or the law. In support of 
the petition , the petitioner asserted that the foreign entity continues to do business , and submitted the foreign 
entity's recent real estate registration, letter confirming its 52 employees, business contracts, and photographs 
of its premises as supporting evidence. The director did not discuss the submitted evidence. The director's 
finding appears to be based solely upon the fact that the beneficiary and his wife, the owners of the foreign 
entity, are presently residing in the United States. However, the fact that the foreign entity's owners are 
residing in the United States does not establish that the foreign entity no longer exists or is not doing business. 
The director should instead focus on applying the statute and regulations to the facts presented by the record 
of proceeding. 
Finally, with respect to the fourth ground of denial, the director found that the petitioner has not been doing 
business for at least one year. In denying on this ground, the director found that beneficiary and his partner 
purchased the U.S. business on February 9, 2008 from its original owner. The director thus concluded: "The 
evidence demonstrates the current ovvnership and management of the petitioner was not able to conduct 
business until at least February 9, 2008." 
The director's findin g with respect to the folllth ground is erroneous as a matter of law. The petitioner 
submitted evidence, inciuding the petitioner's Sublease Agreement with dated August 
13, 2007 and its 2006 federal tax return showing $175,860 in gross receipts, to sufficiently establish that the 
petitioner , has been doing business for at least one year prior to filing. The change in the 
petitioner's ownership and management has no bearing on whether the petitioner has been doing business as 
defined by the regulations. See 8 C.F.R. § 204.5U)(2) (defining "doing 
business" as "the regular, systematic, 
and continuous provision of goods and/or services by a firm, corporation, or other entity"). 
After a thorough review of the record, the AAO finds that the director's denial is deficient as it is based upon 
unsupported concl usions of law and fact. As the decision is void of an accurate, factual analysis of the 
2 The AAO makes no finding on whether the beneficiary will be employed in a primarily managerial or 
executive capacity . The record as presently constituted contains insufficient evidence, such as detailed 
position descripti ons for all U.S. employees, to estab lish the U.S. entity's actual staffing and organizational 
structure, and hence, the beneficiary's employmen t capacity. Here, the director did not issue a request for 
evidence so that this i~s ue can be explored fwther. 
(b)(6)Page 4 
evidence of record, there is no indication that the director considered all of the relevant documentation 
submitted in suppoti of the initial petition. Nor did the director make an effort to obtain additional evidence 
or information upon which to draw a proper conclusion. Accordingly, the case will be remanded for 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 October 28, 2008 is 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 for 
review.