dismissed EB-1C Case: Cable Communications

MATTER OF D-G-C-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 4, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a cable communications maintenance company, seeks to permanently employ the 
Beneficiary as its president under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 
8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did 
not establish, as required, that: (1) it has a qualifying relationship with the Beneficiary's foreign 
employer; and (2) the Beneficiary was employed abroad in a managerial or executive capacity. 
On appeal, the Petitioner submits a brief contending that it and the Beneficiary's employer abroad 
are both majority owned by the same three siblings, thereby creating an affiliate relationship. The 
Petitioner also provides information about the Beneficiary's position abroad within the scope of the 
foreign entity's organizational hierarchy, stating that the Beneficiary was employed in an executive 
capacity. 
Upon de novo review, we find that the Petitioner has not overcome the Director's finding that it does 
not have a qualifying relationship with the Beneficiary's foreign employer. Therefore, we will 
dismiss the appeal. We will, however, withdraw the other finding as the Petitioner provided 
sufficient evidence to establish that the Beneficiary was employed abroad in an executive capacity. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or 
executive capacity, and seeks to enter the United States in order to continue to render managerial or 
executive services to the same employer or to its subsidiary or affiliate. Section 203(b)(l)(C) of the 
Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years 
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Matter of D-G-C-. Inc. 
preceding the filing of the petition, that the beneficiary is coming to work in the United States for the 
same employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. 
employer has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
II. QUALIFYING RELATIONSHIP 
To establish a "qualifying relationship," a petitioner must show that 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 that they are related as a "parent and subsidiary" or as "affiliates." See generally 
section 203(b )(1 )(C) of the Act; 8 C.F .R. § 204.5(j)(3)(i)(C). 
The Petitioner states that the Beneficiary's employer abroad was 
and it claims to be an affiliate of that company. In order to establish an affiliate relationship, the 
Petitioner must demonstrate that its ownership scheme fits one of two scenarios : (1) the Petitioner 
and are subsidiaries that are owned and controlled by the same individual or parent entity; 
or (2) the Petitioner and are two legal entities that are owned and controlled by the same 
group of individuals with each individual owning and controlling approximately the same share or 
proportion of each entity. 8 C.F.R. § 204.5(j)(2). 
In a supporting cover letter, the Petitioner stated that the Beneficiary and one of his sisters -
- together own the majority of its stock and the stock of Specifically, the Petitioner 
claimed that the Beneficiary and each own 30% of its stock (for a combined total of 60% 
ownership) and 35% of (for a combined total of 70% ownership) . The Petitioner provided 
four stock certificates numbered OTOOi, OT002 , OT003 , and OT004, which show that in January 
2013 it issued all I 0,000 of its authorized shares to the Beneficiary and three of his siblings in the 
following manner: 
• Certificate no. OTOOi - 3000 shares to the Beneficiary 
• Certificate no. OT002 - 3000 shares to 
• Certificate no. OT003 - 2000 shares to 
• Certificate no. DT004 - 2000 shares to 
The Petitioner did not provide a stock transfer ledger memorializing these four stock issuances . 
The Petitioner also submitted a letter stating that own all of 
shares along with a copy of ownership business registration certificate and an 
English language translation listing the entity's five owners and their respective capital 
contributions . The registration certificate indicates that the foreign entity's ownership is divided 
among five people as follows: 
• Beneficiary - 35% 
• -35% 
• -10% 
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Matter of D-G-C-, Inc. 
• • 
-10% 
,-10% ~-~~---
In a request for evidence (RFE), the Director observed that the ownership breakdowns of both 
entities indicate that no one individual owns the majority of the shares of either entity; it was noted 
that the Petitioner's ownership breakdown indicates that it has four owners while has five. 
The Director also noted that the English translation of business registration certificate 
was deficient because it lacked the required translator certification. Accordingly, the Director made 
a preliminary finding that the submitted evidence did not establish that the Petitioner has a 
qualifying relationship with and instructed the Petitioner to submit, along with other 
documents, its stock transfer ledger and a properly certified English translation of 
business registration certificate. 
In response, the Petitioner provided a stock transfer ledger, which listed three February 2015 stock 
transfers and indicated that three "original issue" stock certificates distributed 3415 shares of the 
Petitioner's stock as follows: 
• Certificate no. I - 1366 shares to the Beneficiary 
• Certificate no. 2 - 1366 shares to 
• Certificate no. 3 - 683 shares to 
The Petitioner also provided business registration certificate and a certified English 
translation which listed the same five shareholders as in the previously submitted certificate for this 
entity. We note, however, that the corresponding Vietnamese certificate and the accompanying 
certified translation contained an ownership breakdown which was not consistent with the previously 
submitted Vietnamese certificate and corresponding uncertified translation. As discussed earlier, the 
originally submitted business registration certificate showed that the Beneficiary and his sister 
each own 35% of and that each of the other three siblings -
, and - own 10% of that entity. However, the business registration certificate that 
accompanied the certified translation, which the Petitioner provided more recently in response to the 
RFE, indicates that the Beneficiary and each holds a 33.53% ownership interest in 
and each holds a 12.94% interest, while holds the 
remaining 7.06%. The Petitioner did not explain the reason for this amendment in ownership 
distribution, nor did it provide independent objective evidence to resolve this notable inconsistency 
pertaining to ownership. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In addition, the Petitioner provided its own voting agreement, effective on January 10, 2013, which 
contains voting provisions that apply to its "the Key Holders" and were intended "to provide for the 
future voting of their shares" of company. The agreement was signed by the Beneficiary in his 
capacity as president of the company, in her capacity as secretary, and 
in his capacity as treasurer. It is noted that neither the 2015 stock transfer ledger nor the 
corresponding stock certificates listed as a company stockholder. However, the 2015 
ownership documents are not consistent with the stock certificate no. DT0004, which has a January 
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Matter of D-G-C-, Inc. 
2013 issue date and indicates that owns 2000 shares of the Petitioner's stock. As a result 
of this inconsistency, we are unable to determine whether is a "Key Holder" of the 
Petitioner's stock or whether she was entitled to sign the voting agreement as a "Key Holder." 
We further note several other anomalies concerning the voting agreement. For one, it does not 
contain signature, despite the fact that the Petitioner provided two sets of stock 
certificates identifying her as a shareholder whose rights would foreseeably be affected by the terms 
of a voting agreement. We also question the voting agreement's references to two stock classes -
Series A and Common Stock - in subsections l.2(a) and (b) given that the Petitioner did not provide 
stock certificates or a stock ledger corroborating the existence of two classes of stock; the Petitioner 
also did not distinguish between these classes, stating only that Series A stock is held by "Investors" 
who are "entitled to elect a director of the Company" and that Common Stock is held by "Key 
Holders" who are "entitled to elect directors of the Company." Subsections l.2(a) and (b) also state 
that the Beneficiary "shall initially" be the director and chief executive officer, but they do not 
indicate a specific duration for this initial period. Section 1.3 of the agreement states that the elected 
director "shall vote as the representative of all other owner of shares, and other owners of shares will 
not cast independent votes." However, section l.2(b) states that a vote may be taken to remove an 
elected director, thereby indicating that the director does not have irrevocable power to control the 
Petitioner. Further, section 1.4 stipulates that "certificates representing the Key Holder Shares" will 
be marked with a "restrictive legend" expressly stating that such shares "are subject to the terms and 
conditions of a voting agreement which places certain restrictions on the voting of the shares 
represented hereby"; however, the Petitioner did not provide stock certificates containing this 
legend. 
In the denial decision, the Director pointed to a number of inconsistencies pertaining to both the 
Petitioner's and ownership. With regard to the Petitioner's ownership, the Director 
noted that the Petitioner initially issued four stock certificates whose numeric sequence does not 
appear on the stock transfer ledger, which lists three stock certificates with a different numeric 
sequence. The Director also pointed out that none of the Petitioner's stock certificates contained the 
"legend" that was discussed in the voting agreement; this led the Director to conclude that the voting 
agreement was invalid. In light of these various deficiencies the Director determined that the record 
lacked sufficient consistent evidence establishing the Petitioner's ownership and control. Although 
the Director found that there was sufficient evidence to establish ownership, we disagree 
with that finding in light of the inconsistent ownership distributions contained in two different 
versions of business registration certificate. In any event, the Director correctly 
determined that the Petitioner and do not have a qualifying affiliate relationship because 
the two entities do not share common ownership and control. 
On appeal, the Petitioner disputes the Director's findings, contending that the regulatory definition 
of "affiliate" does not require a single owner to control 50% of each affiliated entity. The Petitioner 
asserts that it satisfied the requirements of an affiliate relationship by demonstrating that the three 
siblings who own 100% of its shares also own 80% of __ the Petitioner contends that this 
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Matter of D-G-C-, Inc. 
joint ownership scheme "constitutes a 'high percentage of common ownership and management,"' 
citing Matter ofTessel, Inc., 17 l&N Dec. 631 (Acting Assoc. Comm'r 1981) to support its claim. 
We disagree and find that the cited decision does not support the Petitioner's argument. In Tessel, 
the beneficiary solely owned 93% of the foreign entity and 60% of the petitioner, thereby 
establishing that the two entities had a "high percentage of common ownership and common 
management." The decision further stated that "[ w ]here there is a high percentage of ownership and 
common management between two companies, either directly or indirectly or through a third entity, 
those companies are 'affiliated' within the meaning of that term as used in section 10l(a)(15)(L) of 
the Act." Id. at 633. However, the facts in Tessel are not analogous to this case, where the evidence 
does not show that any one shareholder owns a majority interest in either the Petitioner or in the 
foreign entity. Although the Petitioner correctly states that majority ownership is not required, it 
must demonstrate that it meets one of the relevant subsections that define the term "affiliate." As 
majority ownership by a single parent or individual pertains to subsection (A) of the definition and 
the evidence submitted does not show that the Petitioner meets the requirements of that subsection, 
by default, the Petitioner must show that it meets the criteria of subsection (B), which requires that 
the two legal entities in question - in this case the Petitioner and - must be owned and 
controlled by the same group of individuals with each individual owning and controlling 
approximately the same portion of each entity. See 8 C.F.R. § 204.5(j)(2). 
Further, we find that the Petitioner's reliance on Tessel is inconsistent with one of its prior claims 
and the corresponding voting agreement in which the Petitioner attempted to show that the 
Beneficiary, while owning less than a majority of the Petitioner's stock, in effect controls the U.S. 
entity through proxy votes. Both in its original submissions and now on appeal, the Petitioner has 
claimed that it and derive their common ownership and control from joint ownership by 
multiple siblings, who make up the majority of the shares of both entities. The submission of a 
voting agreement, which purported to show that a single individual - in this case the Beneficiary -
controls the Petitioner, is inconsistent with these other claims, which focus on the siblings' combined 
ownership and control rather than control by a single individual. That said, the Director correctly 
noted that the Petitioner provided stock certificates that do not contain the "legend" described in the 
voting agreement; therefore, the evidence does not establish that the Beneficiary controls the 
petitioning entity. Furthermore, in light of the anomalies described earlier with regard to the content 
and lack of proper shareholder signatures in the voting agreement, we are unable to determine 
whether that agreement is valid. In any event, the Petitioner has offered inconsistent claims 
pertaining to the issue of its control, which is a critical element in establishing the existence of a 
qualifying relationship. 
Furthermore, for reasons we will now discuss, the Petitioner has not demonstrated that it and 
are owned and controlled by the same group of individuals. First, as correctly pointed out in 
the Director's decision, the Petitioner did not provide consistent evidence identifying its owners. 
Originally, it provided four stock certificates indicating that it was owned by the Beneficiary and 
three other shareholders; however, in response to the RFE it provided three entirely different stock 
certificates and a corresponding stock ledger, which identified only three shareholders. Regulation 
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Matter of D-G-C- , Inc. 
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. See, 
e.g., Matter of Church Scientology Int'!, 19 I&N Dec. 593 (Comm'r 1988); Matter of Siemens Med. 
Sys., Inc., 19 l&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). 
As the Petitioner has not provided consistent evidence establishing its ownership, we are precluded 
from conducting an examination that would allow us to compare the Petitioner's ownership with that 
of Without such a comparison, we cannot conclude that the two entities share common 
ownership . 
In addition, even if, arguendo, the Petitioner were to establish that it has four shareholders, as 
indicated by the first set of stock certificates, or three shareholders, as indicated by the second set of 
stock certificates and stock transfer ledger submitted in the RFE response, the Petitioner still would 
not meet the requirements of subsection (B) of the definition of "affiliate" because the evidence 
pertaining to shows that it has five shareholders, while the Petitioner itself has claimed no 
more than four shareholders . Accordingly, the two entities are not "owned and controlled by the 
same group of individuals , each individual owning and controlling approximately the same share or 
proportion of each entity ... . " 8 C.F.R. § 204.5(j)(2). Although the Petitioner contends that it and 
are both majority owned and controlled by the same three siblings of the family, 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 regulations at 
8 C.F.R. § 214.2(l)(l)(ii)( L)(l) , despite the petitioner's claims that the two companies "are owned 
and controlled by the same individuals, specifically the Ore family"). 
III. CONCLUSION 
For the reasons discussed above, we find that the Petitioner has not established that it has a 
qualifying relationship with the Beneficiary's employer abroad. The appeal will be dismissed for 
this reason. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-G-C-, Inc., ID# 1633507 (AAO Oct. 4, 2018) 
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