sustained EB-1C Case: Freight Forwarding

(b)(6)
DATE: MAY 0 8 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
FILE : 
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. 
Thank you, 
• 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
(b)(6)
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will be 
withdrawn and the appeal will be sustained. 
The petitioner is a Texas corporation operating in the United States as a freight forwarding agency. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based immigrant 
pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), 
as a multinational executive or manager. 
In denying the petition, the director determined that the petitioner failed to establish that: (1) the beneficiary 
was employed abroad in a qualifying managerial or executive capacity; (2) the beneficiary would be 
employed in the United States in a qualifying managerial or executive capacity; and (3) the petitioner has a 
qualifying relationship with the entity abroad where the beneficiary was previously employed. 
On appeal, counsel submits an appellate brief thoroughly expounding the beneficiary's foreign and proposed 
positions and pointing to documentation that adequately addresses and dispels the director's concerns 
regarding the common ownership of the foreign and U.S. entities. 
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 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. 
The first issue the AAO will address in this proceeding is the petitioner's qualifying relationship with the 
beneficiary's foreign employer. To establish a "qualifying relationship" under the Act and the regulations, 
the petitioner must show that the beneficiary's foreign and proposed U.S. employers are the same employer 
(i.e. a U.S. entity with a foreign office) or that the two entities are related as a "parent and subsidiary" or as 
"affiliates." See generally § 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(1)(C); see also 8 C.F.R. 
§ 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F .R. § 204.5(j)(2) states in pertinent part: 
(b)(6)Page 3 
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; 
* * * 
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 adequate documentation establishing the ownership of the U.S. and foreign entities. 
Specifically, with regard to the petitioner's ownership, the record has been supplemented with 2009 and 2010 
partnership tax returns, a stock transfer ledger with a list of all transfers and acquisitions, minutes of special 
meetings which took place on April 16, 1997 and January 2, 2002, and canceled and current stock 
certificates. All of the presented documentation establishes that owns 55%, or a majority, of 
the petitioning entity's stock. 
With regard to the ownership of the foreign entity, the petitioner provided the following documents: (1) the 
articles of organization of which was the original foreign entity established on 
February 1, 1995; (2) minutes of extraordinary meeting of partners where such meetings took place on July 
30, 1998, March 26, 2003, July 
24, 2007, and October 2, 2009; (3) the articles of organization of 
which was established on April19, 2007; and (4) documents showing that the latter 
entity assumed control, assets, and obligations of 
After examining all of the above, including the foreign entity's English language translations, the AAO finds 
that all documents consistently identified as majority stockholder of the foreign entity owning 
52% of the stock. Despite the director's interpretation of the translations, the AAO finds that the documents 
do not indicate that Ms. relinquished control of the foreign entity. As pointed out in counsel's 
appellate brief, the director's interpretation of the translated documents is incorrect. While it is true that the 
daily management of the foreign entity is accomplished by a board of directors, such individuals serve at the 
will of the stockholders. As Ms. has repeatedly been shown as the majority stockholder she in fact 
controls the foreign entity. 
In light of the above, the AAO finds that the beneficiary's foreign employer and the petitioning entity are 
similarly owned and controlled by the same individual-Ms. -and the two entities are therefore 
affiliates under the re2:ulatorv definition. 
(b)(6)
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Next, the AAO will address the director's two remaining adverse findings with regard to the beneficiary's 
employment abroad and his proposed employment with the petitioning entity. 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. § 204.50)(5). Additionally, the AAO finds that it is appropriate to consider other 
relevant factors, such as the level of complexity of an entity's organizational hierarchy and its overall 
staffing, which allow the AAO to gauge the extent to which the company was or would be able to relieve 
the 
beneficiary from having to focus the primary portion of his time on the performance of non-qualifying 
operational tasks. 
The statutory defmition of "managerial capacity" allows for both personnel managers and function managers. 
See section 101 (a)( 44)(A)(i) and (ii) of the Act, 8 U.S.C. § 1101 (a)( 44)(A)(i) and (ii). Personnel managers 
are required to primarily supervise and control the work of other supervisory, professional, or managerial 
employees. The statute states that 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)(A)(iv) of the Act; 8 C.F.R. § 204.50)(4). If a beneficiary directly 
supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or 
recommend those actions, and take other personnel actions. 8 C.F.R. § 204.50)(2). 
Upon examining the record and giving consideration to the relevant factors, the AAO finds that the director 
failed to give proper weight to each entity's complex organizational hierarchy, the beneficiary's placement 
therein, and the availability of a support staff that includes professional employees, which allowed the 
beneficiary to spend his time primarily on the performance of qualifying tasks during his employment abroad 
and would similarly allow the beneficiary to focus his time primarily on qualifying tasks in his proposed 
employment with the U.S. entity. 
While the petitioner's foremost responsibility is to establish that the beneficiary did not and would not 
"primarily" perform the tasks that are necessary to produce a product or to provide services, as such an 
employee is not considered to be "primarily" employed in a managerial or executive capacity, the AAO 
points out that no beneficiary is required to allocate 100% ofhis or her time to managerial- or executive-level 
tasks so long as the record contains sufficient evidence that the non-qualifying tasks the beneficiary would 
perform are only incidental, i.e., not the primary part, of the position(s) in question. See sections 
101(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). After considering the evidence as provided by the petitioner in light of the additional information that 
counsel provided in the appellate brief, the AAO finds that the petitioner has met its burden of proof in 
establishing that the beneficiary was more likely than not employed abroad in a qualifying capacity and that 
the petitioning entity would more likely than not employ the beneficiary in a similar capacity. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has sustained that burden. 
ORDER: The appeal is sustained.