Print prt3305209423198821654.tif (14 pages) - Multinational... · The Petitioner, a packing import company, seeks to employ the Beneficiary as its General Manager under the immigrant

MATTER OF M-E-0-A- LLC

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 18, 2016

APPEAL OF NEBRASKA SERVICE CENTER DECISION

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, a packing import company, seeks to employ the Beneficiary as its General Manager under the immigrant classification of a multinational executive or manager. See Immigration and Nationality Act (the Act) § 203(b )(1 )(C), 8 U.S.C. § 1153(b )(1 )(C). The Director, Nebraska Service Center, denied the petition. The matter is now before us on appeal. Upon de novo review, we will dismiss the appeal.

I. THE ISSUES

The sole issue addressed by the Director is whether the Petitioner established that it will employ the Beneficiary in a qualifying managerial or executive capacity. Beyond the decision of the Director, we will also discuss whether the Petitioner has established that is has a qualifying relationship with the Beneficiary's foreign employer and whether the Petitioner has the ability to pay the proffered wage.

II. LAW

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.

Matter of M-E-0-A- LLC

The language of the statute is specific in limiting this provision to only those executives or 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.

A United States employer may file a petition on Form I-140 for classification of an alien under section 203(b )(1 )(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, which 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.

III. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY IN THE UNITED STATES

Section 101(a)(44)(A) ofthe Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an assignment within an organization in which the employee primarily:

(i) 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;

(iii) 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. § 110l(a)(44)(B), defines the term "executive capacity" as an assignment within an organization in which the employee primarily:

(i) directs the management of the organization or a major component or function of the organization;

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Matter ojM-E-0-A- LLC

(ii) establishes the goals and policies of the organization, component, or function;

(iii) 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.

Finally, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, USCIS must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. Section 101(a)(44)(C) ofthe Act.

A. Facts and Procedural History

The Petitioner filed the petition on August 1, 2014. The Petitioner stated on the Form I-140 that it is a producer of plastic packaging with two employees and a gross annual income of $337,913. It seeks to employ the Beneficiary as its General Manager. The Petitioner described the Beneficiary's duties, noting that the Beneficiary would be performing both qualifying and non-qualifying duties, but did not provide a breakdown of how the Beneficiary would divide his time among the various responsibilities.

The Petitioner stated that the Beneficiary has a team of nine employees in the United States and Latin America, that he also oversees several contract sales agents in the United States and the United Kingdom, and directs the Export Team in Brazil to ensure timely delivery of the product. In the initial filing, the Petitioner specifically requested that the Beneficiary's job be considered managerial and submitted an organizational chart dated March 2013. This chart shows the Beneficiary in the role of General Manager overseeing seven direct reports and two indirect reports. Specifically, the chart shows that the Beneficiary oversees a Sales Manager in Mexico; a Sales Manager in Central America, with a subordinate Customer Service Representative; a Sales Manager in the United States, with a subordinate Customer Service Representative; a Technical Manager; an Export Manager; and two Export Graphic Designers. The chart also shows the Beneficiary overseeing six "Broker Agents (contractors)" located in the United States and the United Kingdom, who do not appear to be employees ofthe Petitioner, but rather sales contacts for customers.

On March 19, 2015, the Director issued a request for evidence (RFE) requesting evidence of the Beneficiary's managerial role both at the entity abroad and for the Petitioner. The Director noted that the Petitioner did not assign individual tasks percentages of time, instead grouping them all together as "sales management" duties. The Director also noted that the Petitioner stated on its Form I-140 that it employed two workers; however, the organizational chart shows many employees. The Director requested a more detailed job description that outlines the specific duties that the Beneficiary will perform and the percentage of time spent on each individual duty, along with an explanation of who is a member of the Beneficiary's team, division or department. The

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Director also requested clarification of the discrepancy between the Form I-140 and the organizational chart concerning the number of the Petitioner's employees.

In response, the Petitioner submitted a letter providing additional details to the previously enumerated duties. The RFE response reiterated that 85% of the Beneficiary's job duties are in as Sales management, broken down with the following percentage of time spent on each group of duties (additional examples provided by the Petitioner are not included, emphasis in original):

I. Sales Management, 85% oftime 11. Discretionary authority to present, talk and negotiate on behalf of the

[Petitioner and Parent] on capabilities, products, prices and agreements with customers, commercial organizations, government authorities, packaging institutes, law offices, immigration authorities and financial institutions in the United States and worldwide -10%

111. Engages in policy making decisions about development of new business in the US -13% Manage current accounts and develop new customers in the United States for the Pet food, Birdseed, Fertilizer and Chemical markets.

1v. Engages in policy making decisions about development of new international business - 13% Manage current accounts and develop new customers in the Pet food, Grains, Birdseed and Hygienic markets in foreign countries: Mexico, Costa Rica, Dominican Republic, United Kingdom, Italy, France, and Germany.

v. Set product goals for manufacturing team based on client needs and specifications - 12% Develop eco-friendly packaging per customer requirements: testing resins, additives, and "green" raw materials. Focused on getting better barriers performances, using renewable and biodegradable films and materials. E-Beam Technology.

v1. Commercial and technical attention to clients- 13% • Analysis and development with Clients and Sales Representatives to

understand and learn packaging needs, price levels, types of barriers, actual structures and suggested new films (new or mix of raw materials such as biodegradable films, Woven, BOPPA, OPP, etc.)

• Agreements on prices, sales terms, volumes, timetables, conditions of delivery, lead time and logistics from Brazil to final destination in the United States and other countries. Exercise discretion in price negotiations.

• Make and review legal contracts pricing variation with our clients, due raw material price increase during certain periods of time or the year. Possess final authority to approve contracts with clients.

• Customer's support in production processes (seal temperature and filling), analysis oflaboratory, palletization and other special needs.

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(b)(6)


• Regular visits decided with the client for evaluation of performance of our products in customers plants and in the field (groceries stores and specialized stores)

• Manage client inventory and delivery for any US and other international destinations, if warehousing required;

• Support our clients in the importing process in the US and worldwide: customs, brokers, airlines, vessel lines, etc., even when the sales conditions are up to a local port or with customs clearance;

• Technical assistance in ink materials for a better presentation on the final products and resistance required.

vu. Supervision in Brazil Plant of Export team - 7% • Assure product meets required specifications. • Evaluation of quality needs and behavior on any industrial test previously

requested by customers. • Reception and evaluation of artwork of the client, with review and

authorization of final art with client approval. • Supervision of press and/or finished bags, as needed. • Revision and pursuit of production.

vm. Development and management of new independent salesmen in the United States and worldwide -10% • Search and analyze vendors with experience in the target markets;

meetings with commercial companies interested in offering out products; manage relationships with independent sales brokers. Initiate relationship, supervise performance, and if necessary, terminate relationship; support our Sales Representative/ Account Managers in importing process, distribution and inland carriers. 10%

1x. Development of new suppliers in the US and other countries- 3% • Search, analyze, and visit potential suppliers around the world, looking

for synergies on competitive and qualitative skills that allow us to increase the performance of our products and to extend our products portfolio.

• Quality test with our US clients to run new structures always focused on better perfmmance in gauge, ink protection, easy hot seal , etc.

x. Present products in shows of flexible packaging and specialized shows of our attended markets- 4% • Attendance and exhibition in the Packaging business related shows an all

other markets attended in the US and worldwide.

The remaining 15% of the Beneficiary's time is categorized as business administration including customer service and logistics, as was reported in the initial filing.

Regarding the Petitioner's employees, the Petitioner stated that the Beneficiary supervises one Customer Service Representative in the United States; four individuals employed by the Petitioner' s claimed parent company in Brazil, including an Export and Administration Manager, Quality

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Manager, Graphic Development Assistant, and Graphic Designer Engineering; four U.S. broker agents acting as contractors; and four other sales representatives (one each in Mexico, Costa Rica, the United Kingdom, and Italy). The Petitioner submitted a job description for the U.S. the customer service representative, indicating that the position requires a Bachelor's degree in international business, and brief descriptions for the four positions employed by the parent company in Brazil.

The Director denied the petition on April 29, 2015 noting that the duties and percentages of time spent on each duty in the prospective position did not establish that the Beneficiary will primarily perform executive or managerial duties. The Director explained that the Beneficiary's duties were mostly non-qualifying tasks related to sales and import functions. The Director also noted that the limited number of U.S. employees makes it questionable whether the Beneficiary will be able to primarily perform managerial functions. Finally, the Director noted that the Beneficiary has not established that he primarily manages the sales function of the business; rather, he performs many sales duties and import and customer services functions.

On appeal, counsel for the Petitioner contends that the Director erred in concluding that the Beneficiary spends the majority of his time performing non-managerial functions. The Petitioner asserts that since the company's product is produced in Brazil, part of the Beneficiary's duties include supervision of a broad group of individuals both in the U.S. and abroad. These include contract employee brokers responsible for the sales of the products as well as the Brazilian company's export and manufacturing teams. The Petitioner asserts that the Director failed to take these facts into account.

Further, the Petitioner asserts that the Director erred by failing to consider the totality of the business operations, and instead relied solely on the number of direct employees and their salaries. In this regard, the Petitioner asserts that many of the Petitioner's routine activities are outsourced and therefore are managed, and not performed by, the Beneficiary. The Petitioner further asserts that the Director failed to consider that the Beneficiary manages four contract employees in the U.S. along with three employees ofthe Brazilian company and five sales representatives.

Finally, the Petitioner notes that the Director did not consider the fact that the Beneficiary was granted L-lA status and that the Director also did not consider the Beneficiary as an executive.

B. Analysis

Upon review, and for the reasons discussed herein, the Petitioner has not established that it will employ the Beneficiary in a qualifying managerial or executive capacity.

When examining the executive or managerial capacity of the beneficiary, USCIS will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). The petitioner's description of the job duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are either in an executive or managerial capacity. !d. A detailed job description


is crucial, as the duties themselves will reveal the true nature of the beneficiary's employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajfd, 905 F.2d 41 (2d. Cir. 1990). We will then consider this information in light of other relevant factors, including (but not limited to) job descriptions of the beneficiary's subordinate employees, the nature of the business conducted, the size of the beneficiary's subordinate staff, and any other facts that may contribute to a comprehensive understanding of the beneficiary's actual role in the organizational hierarchy of the entity in question.

The Petitioner submitted a lengthy description of the Beneficiary's duties in response to the RFE which included a number of duties that would reasonably be associated with the management of a business; however, when these duties are examined more closely, it is clear that the Beneficiary spends a significant portion of his time engaged in non-qualifying operational tasks. Specifically, the Petitioner states that the Beneficiary's responsibilities include: "[ d]iscretionary authority to present, talk and negotiate on behalf of the [petitioner]," "[e]ngages in policy making decisions about development of new business in the US," and "[ e ]ngages in policy making decisions about development of new international business." While such tasks may generally fall within the statutory definition of managerial capacity, the detailed explanation of these responsibilities indicates that the Beneficiary in fact spends his time performing market research, sales and client support functions that are not managerial. For example, the detailed tasks associated with the above duties include: "regular visits to Plants and Main Offices of our customers to maintain presence, assure quality performance and g[i]ve any technical support they need," "develop and test new films for better performance and cost savings," and "develop eco-friendly packaging per customer requirements." While the general statements appear to indicate that the Beneficiary is managing negotiations and policy decisions, and overseeing the sales and marketing functions, the more detailed description of duties submitted with the RFE response makes it clear that the Beneficiary is in fact performing the sales and marketing functions that he purports to manage.

Therefore, it is reasonable to conclude that the Beneficiary spends a significant amount of his time performing non-qualifying market research and sales activities, having extensive contact with the Petitioner's customers. Although the Petitioner claims that it has sales staff, the statements made in the record reflect that the Beneficiary performs these duties himself, rather than assigning them to the company's employees. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). While performing non-qualifying tasks necessary to produce a product or service will not automatically disqualify a beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive duties. Section 101(a)(44) ofthe Act.

In this case, the Petitioner has stated that it employed two employees as of the date of filing. This is also confirmed by the Petitioner's Form W-2s for 2013, showing wages paid to the Beneficiary and the customer service representative. While the job description for the customer service representative does indicate that she performs certain operational and administrative tasks, it does not appear that her role is to relieve the Beneficiary from performing the non-qualifying tasks


identified above; such as visiting clients, identifying vendors and suppliers, and conducting product research. Moreover, the Petitioner's claim to have "independent sales staff' or "contract employee brokers" is not supported by evidence in the record. The Petitioner has not provided evidence of the employment or engagement of this staff, nor has it provided a description of the duties performed by this sales staff, such that we could conclude that the Petitioner has sufficient staff to relieve him from performing the non-qualifying operational and day-to-day sales and marketing duties.

The fact that the Beneficiary manages or directs a business does not necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive capacity within the meaning of section 101(a)(44) ofthe Act. By statute, eligibility for this classification requires that the duties of a position be "primarily" of an executive or managerial nature. Sections 1 01(A)(44)(A) and (B) of the Act, 8 U.S.C. § 1101(a)(44). While the beneficiary may exercise discretion over the petitioner's day-to-day operations and possesses the requisite level of authority with respect to discretionary decision-making, the position description alone is insufficient to establish that her actual duties, as of the date of filing, would be primarily managerial or executive in nature.

The Petitioner asserts on appeal that the Beneficiary's position is in a managerial capacity. The statutory definition 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. Contrary to the common understanding of the word "manager," the statute plainly 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. 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.

Here, although the Petitioner states that the Beneficiary has one direct subordinate in the U.S. and additional subordinates abroad, it is unclear which duties articulated by the Petitioner relate to management of the claimed subordinates. There is no mention of the Beneficiary's role in managing the customer service representative listed below him on the organizational chart, apart from a vague reference to customer service functions within the 15% of time the Beneficiary spends on business administration. It does appears that two of the assigned duties could reasonably be interpreted as involvement with personnel matters, specifically "[ s ]upervision in Brazil Plant of Export team 7%" and "[d]evelopment and management of new independent salesmen in the U.S. and worldwide 1 0%." However, the evidence of record does not establish that the Beneficiary acts a personnel manager for either the export team located in Brazil or the "independent salesmen." Specifically, although the Petitioner states that the Beneficiary has the authority to hire, fire, and recommend compensation adjustments as necessary for his claimed direct reports located with the company or parent company, the information provided by the Petitioner does not clearly identify the Beneficiary's direct reports, nor does it provide evidence of this authority. In the initial petition, the Petitioner identified four positions as part of the export team: Technical Manager, an Export Manager, and two Export Graphic Designers, as reporting to the Beneficiary. In response to the

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RFE, the position titles changed to Export and Administration Manager, Quality Manager, Graphic Development Assistant, and Graphic Designer Engineering. The Petitioner has not explained the changes in position titles or reporting structures that occurred between the original filing and the RFE response or identified which of these positions are claimed to report to the Beneficiary. Also, given that these positions are employees of the parent company, it is unclear how the Beneficiary, as an employee of the Petitioner, would be managing their personnel actions. Having subordinates who are employed by a related company is not necessarily disqualifying; however, the Petitioner must explain the reporting structure and provide evidence that such direct lines of management in personnel matters do exist between the Beneficiary and the positions in question.

Regarding the "independent salesmen" the Petitioner has not documented its engagement of or control over the these individuals, such that the Beneficiary could be considered to direct and control their work. As these individuals appear to be representatives of independent companies, it does not appear credible that the Beneficiary has the authority to hire, fire, and recommend personnel actions for these individuals. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). For these reasons, the Petitioner has not established that the Beneficiary will perform primarily as a personnel manager.

In the alternative, the Petitioner has also not established that the Beneficiary will be employed as a function manager. The term "function manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) ofthe Act, 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written job offer that clearly describes the duties to be performed in managing the essential function, i.e. identify the function with specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F .R. § 204.50)( 5). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the function rather than performs the duties related to the function.

Here, the Petitioner states on appeal that the Beneficiary "has managerial control and authority over all essential functions of the business," and thus, is a manager of a function. The Petitioner cites to a non-precedent decision in which the AAO determined that an account manager qualified as a function manager where he managed one large account with limited supervision. The Petitioner has furnished no evidence to establish that the facts of the instant petition are analogous to those in the unpublished decision. While 8 C.F .R. § 103 .3( c) provides that AAO precedent decisions are binding on all USCIS employees in the administration of the Act, unpublished decisions are not similarly binding.

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The fact that the Beneficiary has managerial control over all aspects or functions of the business does not establish that he qualifies as a function manager. While such authority is consistent with the statutory definition of managerial capacity, it is not sufficient to establish that the Beneficiary is employed in a managerial capacity. Whether the Beneficiary is a "function" manager turns in part on whether the Petitioner has sustained its burden of proving that his duties are "primarily" managerial. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103,1108 (E.D.N.Y. 1989), affd, 905 F.2d41 (2d. Cir. 1990). Here, the Petitioner has not established that the Beneficiary's actual duties are within a managerial capacity. Most of the duties listed are related to the actual sales function of the organization rather than management of the sales function. For example, the Beneficiary is required to negotiate with customers, set product goals, attend to client needs, develop suppliers and present the company's products at specialized industry shows. While it does appear that the Beneficiary will also have some discretion over goal setting and policy making, the record does not establish the Beneficiary is managing this function, rather than performing the duties associated with the marketing and sales functions himself. As noted above, the record does not indicate that the Petitioner's other staff relieves the Beneficiary from performing the non-qualifying duties. For these reasons, the Petitioner has not established that the Beneficiary will be employed as a function manager.

Finally, the Petitioner indicates that the Beneficiary will be employed as an executive. The statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex organizational hierarchy, including major components or functions of the organization, and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct[] the management" and "establish[] the goals and policies" of that organization. Inherent to the definition, the organization must have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute simply because they have an executive title or because they "direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" and receive only "general supervision or direction from higher level executives, the board of directors, or stockholders of the organization." !d.

Here, the Petitioner emphasizes that the Beneficiary's roll as General Manager as evidence of his performance of qualifying executive duties. However, we do not evaluate a position based on job title alone, and as discussed above, the Petitioner's description of the Beneficiary's duties, considered within the totality of evidence, does not support a finding that the Beneficiary will primarily focuses on the broad goals and policies of the organization, rather than on the day-to-day operations.

We acknowledge that the Beneficiary is the highest-level employee of the U.S. entity; however, as noted above, this alone is not sufficient to establish that he will be "primarily" employed in an executive or managerial capacity. The designation hinges on whether or not the Petitioner demonstrates that it has the requisite level of subordinate staff capable of carrying out the duties

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associated with the day to day operation of the business. In this case, incorporating our earlier discussion of the deficiencies of the job description provided and the lack of evidence regarding the entity's organization structure, we find that the Petitioner has not established that the Petitioner has an organizational structure sufficient to elevate the Beneficiary to a position that is primarily executive in nature or that the Petitioner has sufficient subordinate staff to relieve the Beneficiary of non-qualifying duties. For these reasons, we find that the Petitioner has not established that Beneficiary will be employed as an executive.

As noted by the Petitioner, 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) of the Act, 8 U.S.C. § 1101(a)(44)(C). In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed that USCIS "may properly consider an organization's small size as one factor in assessing whether its operations are substantial enough to support a manager." Family Inc. v. U.S Citizenship and Immigration Services 469 F. 3d 1313, 1316 (91

h Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990)(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant factors, such as a company's personnel size, the absence of employees who would perform the non-managerial or non-executive operations of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Here, the decision does not rest on the size of the Petitioner or the number of employees in the United States, but rather on the absence of evidence to establish that the Beneficiary will be employed in a qualifying managerial or executive capacity.

We acknowledge that USCIS had approved an L-1 A classification petition filed on behalf of the Beneficiary prior to denying the instant immigrant petition. Each visa petition filing is a separate proceeding with a separate record and a separate burden of proof. In making a determination of statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. See 8 C.F .R. § 103 .2(b )(16)(ii).

Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).

IV. BEYOND THE DECISION OF THE DIRECTOR

Beyond the decision of the Director, we find that the Petitioner has not established that it has a 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 employer and the proposed U.S. employer are the same employer (i.e. one entity with

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(b)(6)


"branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 203(b)(l)(C) ofthe Act; 8 C.F.R. § 204.5U).

The pertinent regulations at 8 C.F.R. § 204.5U)(2) define the relevant terms as follows:

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; or

(C) In the case of a partnership that is organized in the United States to provide accounting services, along with managerial and/or consulting services, and markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member.

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.

In this case, the Petitioner states on the Form I -140 that the Petitioner is a subsidiary of located in Brazil. While the Petitioner has submitted IRS Form 1120 U.S.

Corporation Income Tax Return for 2013 that indicates that the Petitioner and are related, this documentation is not sufficient, by itself, to establish the qualifying

relationship.

As general evidence of a petitioner's claimed qualifying relationship, a tax return or certificate of formation or organization of a limited liability company (LLC) alone is not sufficient to establish ownership or control of an LLC. LLCs are generally obligated by the jurisdiction of formation to maintain records identifying members by name, address, and percentage of ownership and written statements of the contributions made by each member, the times at which additional contributions are to be made, events requiring the dissolution of the limited liability company, and the dates on

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which each member became a member. These membership records, along with the LLC's operating agreement, certificates of membership interest, and minutes of membership and management meetings, must be examined to determine the total number of members, the percentage of each member's ownership interest, the appointment of managers, and the degree of control ceded to the managers by the members. Additionally, a petitioning company must disclose all agreements relating to the voting of interests, the distribution of profit, the management and direction of the entity, and any other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm'r 1986). Without full disclosure of all relevant documents, users is unable to determine the elements of ownership and control.

For this additional reason, the petition cannot be approved. We may deny an application or petition that fails to comply with the technical requirements of the law even if the Service Center does not identify all of the grounds for denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F.Supp. 2d 1025, 1037 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003). 1

V. CONCLUSION

The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an independent and alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofM-E-0-A- LLC, ID# 15700 (AAO Feb. 18, 2016)

1 While not a basis for dismissing this appeal, we note that the Petitioner has not submitted sufficient evidence to establish its ability to pay the proffered wage. All of the evidence in the record regarding ability to pay pre-dates the priority date. The Petitioner would need to provide updated financial information in any future filings to establish eligibility.

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Documents

Print prt3305209423198821654.tif (14 pages) - Multinational... · The Petitioner, a packing import company, seeks to employ the Beneficiary as its General Manager under the immigrant