dismissed EB-1C Case: Business

. Identifying data deleted to 
prevent clearly unwarr~led 
invasion of personal pnvacy 
PUBLIC COpy 
FILE: OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
u. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: NOV 1 5 2010 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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 that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion. 
The fee for a Form I-290B is currently $585, but will increase to $630 on November 23,2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. 
§ 103.5(a)(1)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 Nevada corporation that seeks to employ the beneficiary as its chairman/CEO. 
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)(1)(C), as a 
multinational executive or manager. The director determined that the petitioner does not have a qualifying 
relationship with the beneficiary's foreign employer and denied the petition on that basis. 
On appeal, the petitioner challenges the director's decision and underlying analysis, asserting that the 
ownership breakdown previously described is sufficient to establish that a qualifying relationship exists 
between the beneficiary's foreign and U.S. employers. 
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. 
A United States employer may file a petition on Form 1-140 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. 
The issue in this proceeding is whether the petitioner has a qualifying relationship with the beneficiary'S 
foreign employer. 
The regulation at 8 C.F.R. § 204.50)(2) states in pertinent part: 
Affiliate means: 
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(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. 
In support of the Form 1-140, the petitioner submitted a letter dated April 24, 2008 claiming that the 
beneficiary and one other individual own the U.S. entity and the foreign entity where the beneficiary was 
previously employed. As additional supporting evidence, the record also includes separate diagrams 
describing the ownership breakdowns of the petitioner and the beneficiary's foreign employer. One of the 
diagrams, undated and titled "Ownership & Control," shows that 25% of the foreign entity is owned by a 
group of investors, while the beneficiary share ownership of the remaining 75%. With 
regard to the U.S. entity, the diagram shows that a group of investors own 33% while the beneficiary and Mr. 
_ share ownership of the remaining 67%. In another diagram, which illustrates the ownership 
breakdown of the petitioner and foreign entity as of February 18, 2008, a different ownership scheme was 
presented. Specifically, with regard to the foreign entity, the dated diagram indicates that the beneficiary 
owns 67% the remaining 33%; and with regard to the petitioning entity, the diagram 
indicates that the beneficiary and_ individually own an equal 50% share. No mention was made 
of an investor-owned portion of the U.S. entity. 
The petitioner also provided stock certificates B-1 and B-2 dated September 30, 2002 showing that the 
beneficiary owns four million Class B shares and that _ owns two million Class B shares, 
respectively. The foreign entity's list of shareholders further listed all of the holders of the Class A and Class 
A Common Voting stock. The list shows that the Class A shares were issued to a total of 198 shareholders, 
while Class A Common Voting shares were issued to another 310 shareholders. A document titled "Central 
Securities Registry" reiterates the disbursement of the foreign entity's Class B Common Voting shares, 
showing the beneficiary and_as owners off our million and two million shares, respectively. 
The supporting documents with regard to the U.S. petitioner also include a shareholders/subscribers list, 
which shows that the petitioner issued a total of 441 stock certificates and that of those 441 certificates, Nos. 
1-198 and No. 436 issued Class A Common shares. The list does not indicate the class of the stock that the 
remaining 242 stock certificates purportedly issued. The petitioner also provided its own Articles of 
Incorporation in which Article Four indicates that the company is authorized to issue 25 million shares of 
common stock. The Articles of Incorporation did not indicate that the petitioner was authorized to issue more 
than one class of common stock. Additionally, the petitioner provided its business plan, which identified the 
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beneficiary and~s its two principal stockholders, each owning five million or 50% of all Class B 
Shares. 
On March 11, 2009, the director issued a request for evidence (RFE) informing the petitioner that the 
respective ownership schemes of the beneficiary's foreign and u.S. employers do not equate to a qualifying 
relationship pursuant to the definitions of affiliate and subsidiary as defined at 8 C.F.R. § 204.50)(2). The 
petitioner was asked to provide evidence to establish that it was controlled by the beneficiary at the time the 
Form 1-140 was filed. 
In response, counsel provided a letter dated April 20, 2009, asserting that the petitioner is holding itself out as 
an affiliate of the beneficiary's foreign employer. Counsel likens the ownership scheme in the present matter 
to the one discussed in Matter of Tessel, 17 I&N Dec. 631, (Act. Assoc. Comm. 1980), where the foreign 
entity and the u.S. petitioner were deemed affiliates by virtue of being majority owned by the same 
individual. Counsel referred to subsection B of the definition for affiliate as found at 8 C.F.R. § 204.50)(2), 
asserting that the petitioner and the foreign entity are owned and controlled by the same group of individuals 
where each individual owns the same or similar portion of each entity. Counsel claimed that the two 
individuals who own the petitioner and the foreign entity also control both entities. 
The director reviewed the documentation submitted in support of the petition and in response to the RFE and 
denied the petition in a decision dated May 18, 2009. The director determined that a qualifying relationship 
between the u.s. petitioner and the beneficiary'S foreign employer does not exist and did not exist at the time 
of filing the petition. The director addressed counsel's reference to Matter of Tessel, stating that the matter at 
hand does not describe an ownership scheme where one individual owns a majority of both the petitioning 
entity and the beneficiary'S foreign employer. The director pointed out that while the beneficiary owns a 
majority of the foreign entity and therefore has control over that entity, ownership of the petitioner is evenly 
split 50/50 between the beneficiary and that the beneficiary therefore does not control the 
u.s. entity. The director goes on to clarify subsection B of the definition of affiliate as found at 8 C.F.R. § 
204.50)(2), pointing out that each individual-in this case _ and the beneficiary-must own 
approximately the same share or proportion of each entity. The director further points out that counsel's 
comparison of the beneficiary's ownership of one entity to his ownership of the other entity is misplaced, 
explaining that the beneficiary's two thirds ownership of one entity is not similar to his 50% ownership of the 
other entity. 
After reviewing the petitioner's submissions, the AAO finds that the director's analysis of the facts and 
clarification of the term affiliate are accurate and properly point out the flaws in counsel's interpretation of the 
regulatory definition. 
On appeal, the petitioner submits a brief asserting that the definition for the term affiliate does not require that 
the proportions of ownership be exactly the same for each owner, but rather that they be approximately the 
same. The petitioner argues that the beneficiary'S 66% ownership of one entity is approximately the same in 
proportion to his 50% ownership of the other entity. This argument, however, is without merit and does not 
overcome the director's sound reasoning. 
First, counsel incorrectly applies the term approximate, which is defined as "[n]early exact." Webster's New 
College Dictionary - 3rd ed. 57 (2008). The petitioner's claim that 66% ownership and 50% ownership are 
nearly exact is simply erroneous. Where 66% ownership conveys "de jure" control by reason of ownership of 
Page 5 
more than 50 percent of outstanding stocks, ownership of exactly 50% of an entity does not establish control 
over that entity unless the petitioner provides evidence of proxy votes to establish "de facto" control by reason 
of controlling the voting shares through partial ownership and possession. Matter of Hughes, 18 I&N Dec. 
289 (Comm. 1982). 
As the director properly determined, neither the beneficiary nor _have proportionally the same 
ownership of each entity. In other words, in order to successfully meet the criteria set forth in subsection B of 
the definition for affiliate at 8 C.F.R. § 204.5(j)(2), the beneficiary would have to have majority ownership in 
the petitioning entity as he has in the foreign entity. The beneficiary has majority ownership of only one of 
the two entities. Similarly, _ has a considerably greater ownership in the petitioning entity than he 
does in the foreign entity. Therefore, the petitioner has failed to meet the applicable regulatory criteria. 
Additionally, the AAO notes that there are certain anomalies that remain unexplained with regard to the types 
of shares issued by the foreign entity. More specifically, the documents with regard to the foreign entity 
indicate that that entity was entitled to issue three different classes of stock-Class A, Class A Common 
Voting Shares, and Class B. The petitioner provided no clarification as to how the issuance of Class A 
Common Voting Shares impacts the beneficiary'S control over the foreign entity. With regard to the U.S. 
entity, no information was provided to establish that the petitioner was authorized to issue more than one class 
of stock. Therefore, the petitioner's issuance of more than one class of stock is inconsistent with the 
provisions of the Articles of Incorporation. Furthermore, the diagrams used to illustrate the two entities' 
ownership breakdowns are also inconsistent, with the undated diagram indicating that the foreign entity is 
25% investor-owned with the beneficiary an~ sharing ownership of the remaininIiii5%, while 
the February 18, 2008 diagram showing the beneficiary as 67% owner of the foreign entity with 
owning the remaining 33%. The two diagrams are equally inconsistent in their illustrations of the petitioner's 
ownership breakdown with the undated diagram showing a group of investors owning 33% of the petitioner 
while the beneficiary and _ share ownership of the remaining 67%. In the February 18, 2008 
diagram, however, the beneficiary and .are shown as individually owning an equal 50% share. 
With regard to the anomalies described above, the AAO notes that it is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Here, the record 
contains no evidence to reconcile the inconsistencies nor has the petitioner even acknowledged that such 
inconsistencies exist. 
In summary, the regulation and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between United States and foreign entities 
for purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 
I&N Dec. 289. In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
In the present matter, the record provides inconsistent evidence with regard to the classes of stock the 
petitioner is authorized to issue and generally fails to establish that the petitioner and the beneficiary's foreign 
Page 6 
employer are similarly owned and controlled. Therefore, the AAO concludes that the petitioner has failed to 
establish that it has a qualifying relationship with the beneficiary's foreign employer and for this reason the 
petition cannot be approved. 
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 not sustained that burden. 
ORDER: The appeal is dismissed.