dismissed EB-1C Case: Agriculture

(b)(6)
DATE: MAR 0 9 2013 
IN RE: Petitioner: 
. Beneficiary: 
I 
U.S. Department of Homeland SecuritY 
U. S. Citizenship and Immigration St:rvices 
Administrative Appeals Office (AAO) 
20Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER . 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: 
Enclosed please find 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 th~t 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a moti_on can be found at 8 C.F.R. § 103.5. Do not tile any motion 
directly with the AAO. ,Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires ·any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
~a~kyou • 
_.J>[d)~:..O, 
Ron Ro'b;~~} 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
· The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a California limited liability company that is engaged in agricl!lture, and seeks to. 
employ the beneficiary as its vice president. Accordingly, the petitioner endeavors to classify t~e 
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)(1)(C), as a multinational executive or· manager. : 
. On August 23, 2011, the director denied the petition concluding that the petitioner failed to establiSh 
that the petitioner has a qualifying relationship with the beneficiary
1
S foreign employer. 
On appeal, counsel disputes the director's findings ~d provides an appellate brief laying out the 
grounds for challenging the denial. 
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 s~bparagraph ~f the alien, in the 3 years preceding the 
time of the alien
1
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. 
i . 
The language of the statute is specific in limiting this provision to only those executives aiid · 
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. 
A United States employer may file a petition on Form 1-140 for classification of an alien und~r 
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 Uriited States 
in a managerial or executive capacity . . Stich a statement must clearly describe the duties to be . . . : 
performed by the alien. 
The issue that will be addressed in this proceeding is whether the petitioner submitted sufficient 
evidence to establish that it has a qualifying relationship with the beneficiary
1
s foreign employer. · To 
. establish a 
11
qualifying relationship
11 
under the Act and the regulations, the petitioner must show that 
(b)(6) ·'. 
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the beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. a U.S. 
entity with a foreign office) or related as a "parent and 
subsidiary" or as "affiliates." See generally 
§ 203(b)(1)(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 petitioner indicated that the beneficiary's foreign employer and the petitioner are affiiiates. The 
petitioner explained that the foreign company is owned by five individuals, each owning 20% of the 
company. The ownership of the petitioner consists of three individuals, each owning 33_.3% of the 
company. The three owners of the petitioner are also three out of the five owners of the foreign 
company. 
On August 23, 2011, the director denied the petition concluding that the petitioner did not establish a 
qualifying relationship with the beneficiary's foreign employer. The director noted that an affiliate is · 
established by showing two entities that are owned and controlled by the same corporation, . 
individual, or group of Individuals. The director went on to note that in this case;· the. sarrle 
individuals do not own both entities since· the foreign company has two additional owners from the 
petitioner. .: 
On appeal, counsel contends that both entities are owned .and controlled by the 
family which "should be treated as the·same group of individuals." Counsel also states that the "three 
members of the family owning [the petitioner] are the controlling members for [the 
foreign company], and as such they should be considered to be the owners of approximately the same 
proportion at [the foreign company]." . , 
Although counsel claims that the petitioning company and the foreign company are both majority 
owned and. controlled by this familial relationship does not constitute a 
qualifying relationship under the regulations. See Ore v. Clinton, 675 F.Supp.2d 217, 226 (D.C. 
Mass. 2009) (finding that the petitioner and the foreign company did not qualify as "affiliates" 'within 
the precise definition set out in the regulationsat 8 C.F.R. § 214.2(l)(l)(ii)(L)(l), despite petitioner's 
claims that the two companies "are owned and controlled by the same individuals, specifically the 
Ore family"). 
The record clearly indicates that the petitioning enterprise do~s not maintain a qualifying "affiliate" 
relationship with the overseas company. The evidence indicates that five individuals own the foreign 
company. The record· further indicates that thr.ee individuals own the petitioning entity in. the United 
States. Accordingly, the two entities are not "owned and controlled by the same group of itJ.divi(i.ual~, 
.. each individual owning controlling approximately the same share or proportion of each entity . '; .. "\8 
C.F.R. § 214.2(1)(1)(ii)(L)(2)(emphasis added). In addition, there is no parent entity with pwnership 
and control of both companies that would qualify the two as affiliates. For this reason, the p'etition 
may not be approved. 
On appeal, counsel for the petitioner cites Sun Moon Star Advanced Power, Inc. v. Chappel, 773 F. 
Supp. 1373 (N.D. Cal 1990) and Matter of Tessel, Inc., 17 I&N Dec. 631 (Acting Assoc. Comm. 
1981) to. assert that two companies may be affiliated even though they are not owned by th¢ exact 
same individuals. ' · · : 
(b)(6)
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Page4 
The Sun Moon Star Advanced Power decision is distinguishable from the facts of the present matter. 
First, the court relied heavily on Matter of Tessel, Inc. to conclude that the two entities were affiliates 
through indirect ownership. 17 I&N Dec. at 633. Although Matter of Tessel determined that ;a 
·majority stock ownership in both companies is sufficient for the purpos_es of establishing a qualifying 
relationship, counsel has misconstrued the decision. In the Tessel decision, the beneficiary solely 
owned 93% of the foreign corporation and 60% of the petitioning organization, thereby esUtblishingia 
"high percentage of common ownership and common management . - ~ .. " /d. It ~as further 
determined that "[w]here there is a high percentage of ownership and common managem~nt betwe~n 
two companies, either directly or indirectly or through a third entity, those companies are. 'affiliate~' 
within the meaning of that term as used in·section 101(a)(15)(L) of the Act." /d. The facts in · the 
present matter can be distinguished from Matter of Tessel, however, because no one sharehold~r 
holds a majority interest in either corporation. As _later codified in 8 C.F.R. § 214.2(/)(1)(ii)(L)(l) 
and in part A of the definition of affiliate in 8 C.F.R. § 204.50)(2), the petitioner iri the Tessel case 
would have qualified as an affiliate given that the beneficiary owned and controlled a majority of 
both entiti~s. The record in the present matter, however, fails to demonstrate that there is a m~jotity 
ownership and control, directly or indirectly, of both companies by any one person. · 
Second, although Sun Moon Star Advanced Power, Inc. stated that "affiliation should not d~pend [on] 
whether the individual owners are absolutely identical," this statement was made within the· context 6f 
direct or indirect ownership, the central issue in that case. Sun Moon Star Advanced~ Power, Inc. v. 
Chappel, 773 F. Supp. at 1380 .. In other words, it appears the court meant that the exact sarrte 
individuals should not berequired to own both companies, considering that some individuals may 
. only 
have an indirect ownership of one or both companies. This does not mean, however, that the 
ownership of both companies should not be the same when direct as well as indirect owhership has 
been considered: With the present matter, the petitioner has failed to demonstrate that two 
shareholders of the foreign entity, continued 
to own, . whether directly or indirectly, any part of the United States .entity. Consequentiy, the 
petitioner did not meet the requirements of 8 C.F.R. § 214.2(/)(1)(ii)(L)(2) or its counterpart, 'part .:S 
of the definition of affiliate in 8 C.F.R. § 204.5(j)(2). ' ' 
. . . . . l! . ; 
Moreover, while 8 C.F.R. § 204.5(j)(2) had not yet been codified, the relevant, corresponding section 
of the definition of affiliate at the time of the Sun Moon Star Advanced Power, Inc. dedsion read,' 
"Affiliate means ... one of two legal entities owned and controlled by the same group of individual~, 
each individual owning and controlling approximately the same share or proportion of each entity." :s 
C.F.R. § 214.2(1)(1)(ii)(L) (1990). The court in Sun Moon Star Advanced Power, Inc., however , did 
not directly address this regulation in its decision. See Sun Moon Star Advanced Power, Inc. v. 
Chappel, 773 F. Supp. at 1373. Instead, it only discussed an apparent mistake in ~he August 20, 19~7 
memorandum's interpretation of the regulation, in which the then Immigration and Nat~ralization 
Service (INS) added the word. "exact" to describe the ownership required. !d. at 1376 .. Wti.en the 
word "exact" is added, it implies that the ownership must be "absolutely identical" and that indirect 
ownership will not be permitted or even considered. -' See id. at 1376, 1380. Specifically, the court ~n 
SunMoon Star Advanced Power, lf1:c. stated that, based on the memorandum's interpretation of the 
regulation, "a determination of whether companies are affiliates depends upon finding that the 
companies are owned by the exact same individuals and excludes the · possibility of indirect 
ownership of the affiliates by these individuals through a third company." /d. at 1376 (emphasis in 
original). Thus, as the word "exact" does not appear in the regulations, the court conCluded that 
(b)(6)
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indirect ownership should also be considered when determining whether the same individuais o~n 
both entities. At the same time, by not directly addressing the regulation, the court implied that it did . 
not have an issue with the plain meaning of affiliate in 8 C.F.R. § 214.2(/)(1 )(ii)(L) ~nd its 
requirement that the "same group of individuals" own and control, whether directly or ind~rect_ly, tl)e 
same approximate share or proportion of each entity. - · · 
1 
Moreover, counsel states on appeal that the petitioner is owned by a total of three individuals and the 
foreign entity is owned by a total of five individuals. Absent documentary evidence, such as voting 
proxies or agreements to vote in concert so· as to establish a controlling interest, this a~mis~ion is 
sufficient in itself for the AAO to conclude that the petitioner is not an affiliate of the foreign e1itity. 
To establish eligibility in this situation, the burden is on the petitioner to show that the foreign· . 
employer and the petitioning entity share common ownership and control. Control may be "de jure" 
by reason of ownership of 51 percent of outstanding stocks of the other entity or it may be- "de•factq" . 
by reason of control of voting shares through partial ownership and possession of proxy votes . .¥att~r · 
of Hughes, 18 I&N Dec. 289 (Comm; 1982). 
On appeal, counsel contends that the three owners of the petitioner are also the only individuals of the 
foreign company that can issue checks and transfer assets of the foreign company. However, this 
information is not sufficient evidence to establish a proxy vote agreement. Based on the eviden6e · 
submitted, it is concluded that the petitioner lias not established that a qualifying relationship ;-exisjs · 
between the U.S. and foreign organizations. ·. .. 
Beyond the decision of the director, the record lacks subs'tantive job descripiions establi~hing wh~t 
job duties-the beneficiary performed during her employment abroad. Conclusory assertions regardif!g 
the beneficiary's employment capacity are not sufficient. Merely repeating the language :of tije 
statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v.: Sava, 
724 F. Supp. 1103, 1108 (E.D.N~Y. 1989), aff'd, 905 F. 2~ 41 (2d. Cir. 1990); Avyr Associates, 'Inc. v. 
Meissner, ·1997 WL 188942 at *5 (S.D.N.Y.). The actual duties themselves will reveal the true 
nature of the employment. FedinBros .. Co., Ltd. v. Sava, 724 F. Supp~ at 1108. 
An application or petition that fails · to comply with the technical requirements of the l~w n}ay be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial · in tl)e 
initial' decision. See Spencer Enterprises, Inc. v. Unitecl. States, 229 F. Supp. 2d 1025, 1043. (E.ID. · 
Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); 'see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Clr. 
2004)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the· additional 
grounds of ineligibility discussed above, this petition calmot be approved: 
The petition will be denied for the above stated reasons, with each considered as an independent a11d · 
alternative basis for denial. 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. § 136{ · TJie . 
petitioner has not sustained that burden. · 
ORDER: The appeal is dismissed.