sustained EB-1C Case: Internet Services

(b)(6)
DATE: JUN 1 2 2013 
INRE: Petitioner: 
Beneficiary : 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or ManagerPursuant 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: 
Enclosed please fmd the decision of the Administrative Appeals Office in your case . All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page2 
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 appeal will be 
sustained. 
The petitioner is a Florida corporation that seeks to employ the beneficiary as President/CEO. As 
part of a global organization, the petitioner and its related enterprises are engaged in provided 
internet services. Accordingly, 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)(l)(C). 
On February 28, 2012, the director denied the petition concluding that the petitioner failed to 
establish that the beneficiary's employment abroad was within a qualifying managerial or executive 
capacity. Additionally, relying on the common law defmition ofthe term "employee," the director 
determined that the petitioner failed to establish that the beneficiary was an employee of the foreign 
entity and that he would be an employee of the U.S. petitioner. 
The AAO will withdraw the director's decision and sustain the appeal. Upon review of the record, the 
petitioner provided a detailed job description of the job duties performed by the beneficiary with the 
foreign company; the petitioner also provided paystubs as evidence that the foreign company employed 
the beneficiary for over a year; and the petitioner provided an organizational chart indicating the 
subordinates supervised by the beneficiary abroad. The p~titioner submitted sufficient evidence to 
establish eligibility for this immigrant classification. 
The AAO will now address the remaining 
ground for denial, which focused on whether or not the 
beneficiary was an employee of the foreign entity and whether he would serve as an employee of 
the U.S. petitioner. 
Although section 101(a)(44) of the Act and the related regulations make use of the terms 
"employee" and "employer," these 
terms are not defmed either by statute or regulation. As 
mentioned by the director, the U.S. Supreme Court expects agencies to use common law definitions 
when certain terms, such as "employee" and "employer," are not expressly defined by Congress via 
statutory provisions. See Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 323-324 (1992) 
(hereinafter "Darden"); see also Restatement (Second) of Agency § 220(2) (1958); Clackamas 
Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440 (2003) (hereinafter "Clackamas"). 
As a preliminary step, it is critical to first review how these terms are used in the statute and then to 
determine whether the terms are outcome determinative. Statutory interpretation begins with the 
language of the statute itself. Penn. Dept. of Public Welfare v. Davenport, 495 U.S. 552 (1990). 
While the statute uses the term "employee" in the defmition of manager or executive, the AAO 
notes that the key elements of the defmitions focus on the duties of the employee and not the 
person's employment status. See sec. 10l(a)(44)(A) and (B) of the Act. The AAO concludes, 
therefore, that it is most appropriate to examine the beneficiary's eligibility in the context ofhis or 
her claimed managerial or executive duties, looking at the statutory defmition as a whole. 1 
1 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" 
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Here, the director's use of the employer-employee issue appears to be an attempt to address the 
marginality of a business or the use of the corporate forum for immigration purposes. While not 
irrelevant, the employer-employee issue is not the optimal means of addressing these concerns. 
Instead, as in the present case, the director should focus on the fundamental eligibility requirements. 
Marginality is best addressed by the regulation that requires the petitioner to establish its ability to 
pay. See 8 C.P.R. § 204.5(g)(2). The functions of the beneficiary as a manager or executive, 
however, are best viewed through the defmitions of managerial and/or executive capacity at 
sections 101(a)(44)(A) and (B) ofthe Act. 
The one area where the status of the beneficiary as an employee may be critical is the enabling 
statute at section 203(b)(l)(C) of the Act, which requires that the beneficiary has been "employed 
for at least one year" by a qualifying entity abroad. In this regard, the beneficiary must be an actual 
employee of the foreign entity and not a contractor or consultant. 
As the record indicates that the beneficiary was working directly for the foreign entity and now 
works directly for the petitioning entity, the decision of the director will be withdrawn as it relates 
to the beneficiary's status as an employee. The AAO finds no need to further explore the issue of 
.an employer-employee relationship between the beneficiary and its foreign and U.S. employers. 
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. Here, that burden has been met. 
Accordingly, the appeal will be sustained. 
ORDER: The appeal is sustained. 
would exclude "some of the very people that the statute intends to benefit: executives." 17 I&N Dec. 530, 
531 (Comm'r 1980); but see Clackamas, 538 U.S. at 440. This tension would lead the AAO to carefully 
consider the statutory defmitions in their entirety, including the four critical subparagraphs of each definition. 
If USCIS were to focus solely on an employer-employee analysis, without considering the constituent 
elements of the statutory definitions, the inquiry would be incomplete and could lead to the denial of 
legitimate executives.