dismissed EB-1C Case: Construction

identifjing data deleted to 
prevent clearly unw ananted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
MAIL STOP 
U. S. Citizenship 
and Immigration 
Services 
SRC 05 143 51631 
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. 8 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
 The 
petitioner filed a motion in respqnse to the adverse decision. Upon review of the motion, the director agreed 
to reopen the proceeding and having done so, issued a request for additional evidence (RFE). AAer reviewing 
the response to the RFE, the director issued a final decision affirming the denial. The petitioner has appealed 
that decision, and the appeal is now before the Administrative Appeals Office (AAO). The appeal will be 
dismissed. 
The petitioner is a limited liability company organized in the State of Florida. The petitioner is engaged in the 
construction of residential real estate and seeks to employ the beneficiary as its president and general 
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1153(b)(l)(C), as a multinational executive or manager. In her latest decision, the director determined that 
the ownership breakdown of the U.S. and foreign does not amount to a qualifying relationship. This finding 
was the basis of the director's most recent denial. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of her arguments. 
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 fm, 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)(l)(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. 
Page 3 
The primary issue in this proceeding is whether the petitioner has a qualifying relationship with the foreign 
entity that employed the beneficiary abroad. 
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. a U.S. entity with 
a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally $ 203(b)(l)(C) of the 
Act, 8 U.S.C. $ 1 153(b)(l)(C). The regulation at 8 C.F.R. 3 204.5(j)(2) states in pertinent part: 
AfJiliate 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; 
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 fm, 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 provided a letter dated April 4, 2005, which included the 
ownership breakdown of the U.S. and foreign entities. The petitioner stated that the foreign entity's 
ownership is distributed among seven individuals: the beneficiary and his wife, each of whom owns 30%; 
their three sons, each of whom owns 10%; and the beneficiary's parents, each of whom owns 5%. With 
regard to the U.S. entity, the petitioner stated that the beneficiary and his wife each retains a 35% ownership 
interest while the beneficiary's three sons each retains a 10% ownership interest. The ownership breakdown 
of the petitioner is reiterated in membership certificates 1-5. 
The director subsequently issued two RFEs, one on May 16, 2005 and another on August 25, 2005. It is 
noted that neither RFE addressed the issue of a qualifying relationship. Accordingly, the director's follow-up 
decision dated January 13,2006, was based on findings from evidence and information that was submitted in 
response to previously issued RFEs. 
In response to the director's adverse decision, the petitioner filed a motion to reopen and reconsider. The 
director reviewed the petitioner's submissions and reopened the proceeding, which prompted the issuance of a 
Page 4 
third RFE, dated March 22, 2007, in which the petitioner was instructed to provide evidence of the foreign 
entity's ownership. 
The petitioner provided a response letter, dated May 18, 2007, in which counsel reiterated the ownership 
breakdown of the foreign entity, as well as the documents and their certified translations that support the 
ownership breakdown provided earlier by the petitioner and more recently by counsel. 
On June 19, 2007, the director issued a decision in which she found that the ownership breakdowns described 
and documented by the petitioner do not amount to a qualifying relationship between the beneficiary's U.S. 
and foreign employers. In light of this finding, the director found the petitioner to be ineligible for the 
immigration benefit sought and determined that denial of the petition should be affirmed. 
On appeal, counsel for the petitioner asserts that the director's conclusion is erroneous. She argues that both 
entities are similarly controlled and provides a letter dated July 10, 2007 fiom the beneficiary's parents, who 
stated that they have no role in the operation of the foreign entity despite their respective ownership interests 
in the company. In effect, the underlying argument is that "de facto" control of the shares held by the 
beneficiary's parents is distributed among the five remaining owners of the foreign entity's stock. However, 
counsel's argument is not persuasive. 
First, it must be noted that the argument of "de facto" control is only relevant in determining whether an entity 
is a subsidiary of a parent corporation. More specifically, only the definition of "subsidiary" considers less 
than half ownership of an entity combined with "in fact" or de facto control of the organization to be a 
qualifying entity for purposes of an employment-based immigrant petition for a multinational executive or 
manager. See 8 C.F.R. 5 204.5(j)(2). Moreover, the definition of "subsidiary" only pertains to "a firm, 
corporation, or other legal entity of which apavent owns, directly or indirectly, . . . less than half of the entity, 
but in fact controls the entity." 8 C.F.R. 4 204.56)(2) (emphasis added). While a parent or parent corporation 
is considered under the law to be an individual and a person, an individual human being or group of human 
beings are not considered to be a parent corporation. See generally, Black's Law Dictionary 344, 777, 1137, 
1162 (7th Ed. 1999) (defining the terms "parent corporation," "individual," "person," and "parent"). As such, 
only a parent corporation, and not a human being or group of human beings, is permitted to own less than half 
of an entity, in fact control the entity, and qualify as a "subsidiary" under the regulations. In this matter, as 
the petitioner and the foreign entity claim to be owned by a group of human beings and not by a common 
parent corporation, the definition of subsidiary is not applicable, and the claim of "de facto" control is 
irrelevant. 
Second, as the definition of subsidiary is inapplicable to the instant matter, the only remaining means 
apparently available to the petitioner under which a qualifying relationship could be claimed is that of an 
affiliate.' 8 C.F.R. $ 204.5(j)(2). Furthermore, only part B of the definition of affiliate provides for a 
I 
 It is noted that the petitioner fails to demonstrate that there is majority ownership and control, directly or 
indirectly, of both companies by any one person as requited under part A of the definition of affiliate. See 8 
C.F.R. 8 204.56)(2) (defming the term affiliate). In addition, as the United States entity is not a partnership 
organized in the United States to provide accounting services, it is also concluded that the petitioner does not 
qualify under part C of the definition of affiliate. Id. 
Page 5 
situation in which a group of individuals collectively owns and controls two legal entities. 
 8 C.F.R. 
5 204.56)(2) (defining the term "Affiliate"). In applying part B of the definition of affiliate to immigrant 
petitions, the AAO has historically found that the same group of individuals must own and control 
approximately the same share or proportion of each entity. Id. As clearly indicated in the regulation, while it 
is not required that each individual own the exact same percentage of each entity, it is required that the group 
of individuals who own each entity, albeit directly or indirectly, be the same. Id. It is important the same 
group of individuals own and control both entities to ensure that both entities are part of the same 
organization as intended by Congress. Otherwise, U.S. Citizenship and Immigration Services (USCIS) faces 
a situation in which diversely-held business associations would meet the requirements of a qualifying affiliate 
relationship, through means "such as ownership of a small amount of stock in another company without 
control, exchange of products or services, and membership of the directors of one company on another 
company's board of directors." 52 Fed. Reg. 5738,5742 (Feb. 26, 1987). 
When the definition of affiliate was added to the Code of Federal Regulations in 1987 it read, "'[a]ffiliatef 
means one of two subsidiaries both of which are owned and controlled by the same parent or individual or 
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." 52 Fed. Reg. at 5752. Absent 
majority and thus "de jure" control of the U.S. and foreign entities by a single person, ownership of both 
entities by the same group of individuals without any "de jure" majority control was already considered by 
USCIS to be a lenient standard. See Memorandum, Richard E. Norton, Assoc. Commissioner, Immigration 
and Naturalization Service (INS), Implementation of Final L Regulations, 1 (Aug. 20, 1987). This less 
stringent standard was permitted, however, in an apparent attempt to balance business realities with ensuring 
the intent of Congress as well as the integrity of the multinational executive and managerial immigration 
provisions. See 56 Fed. Reg. 61 11 1,61114 @ec. 2,1991). 
The record in the present matter clearly indicates that two shareholders of the foreign entity do not own, 
directly or indirectly, any part of the United States entity. As such, even assuming the same group of 
individuals in fact controls both entities, it cannot be found that the same group of individuals own both 
corporations as required under part B of the definition of affiliate. See 8 C.F.R. $ 204.56)(2). Consequently, 
the petitioner has failed to meet its burden of proof to establish that a qualifying relationship exists between 
the U.S. and foreign entities. 
Furthermore, the record does not support a finding of eligibility based on at least one additional ground that 
was not previously addressed in the director's decision. Specifically, in order to classify the beneficiary as a 
multinational manager or executive, the petitioner must establish that it is a multinational entity. The 
regulation at 8 C.F.R. 5 204.50)(2) states that a multinational entity is one that "conducts business in two or 
more countries, one of which is the United States." The regulation at 8 C.F.R. 5 204.50')(2) also states that 
doing business means "the regular, systematic, and continuous provision of goods andlor services by a firm, 
corporation, or other entity and does not include the mere presence of an agent or office." Although the 
petitioner provided ample documentation, per the director's request, to establish that it has been doing 
business in the United States, the documentation submitted to establish that the foreign entity is doing 
business is not sufficient, as it consists primarily of untranslated foreign documents and excerpts of foreign 
document translations. The regulation at 8 C.F.R. $ 103.2(b)(3) states that any foreign documents the 
petitioner submits must be accompanied by certified translations. As the petitioner has not provided adequate 
Page 6 
documentation, the AAO cannot conclude that the foreign entity continues to do business such that the U.S. 
petitioner can be deemed to be multinational. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO 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, 1043 (E.D. Cal. 2001), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the additional ground of ineligibility discussed above, this 
petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 F.3d 683. 
Lastly, counsel makes a brief reference to the petitioner's current approved L-1 employment of the 
beneficiary. The AAO notes, however, that each nonirnrnigrant and immigrant petition is a separate record of 
proceeding with a separate burden of proof; each petition must stand on its own individual merits. USCIS is 
not required to assume the burden of searching through previously provided evidence submitted in support of 
other petitions to determine the approvability of the petition at hand in the present matter. The approval of a 
nonirnmigrant petition in no way guarantees that USCIS will approve an immigrant petition filed on behalf of 
the same beneficiary. USCIS denies many 1-140 immigrant petitions after approving prior nonimmigrant I- 
129 L-1 petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 
1989). 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported assertions 
that are contained in the current record, the approvals would constitute material and gross error on the part of 
the director. The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Cornrn. 1988). It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
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. 5 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.