dismissed EB-1C Case: Construction Materials

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Q-M-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 15,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a wholesaler of roofing and construction materials, seeks to permanently employ the 
Beneficiary as its multinational operations manager 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, Texas Service Center, denied the petition. The Director concluded that the evidence of 
record did not establish that: (1) the Petitioner has a qualifying relationship with the Beneficiary's 
foreign employer; or (2) the Beneficiary will be employed in the United States in a managerial or 
executive capacity. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional materials and 
asserts that the Director erred by selectively considering the evidence of record. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b) ofthe 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 the alien seeks to enter 
Matter of Q-M-, Inc. 
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. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classifY a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The regulation at 8 C.F.R. § 204.5G)(3) states: 
(3) Initial evidence-
(i) Required evidence. A petition for a multinational executive or manager must be 
accompanied by a statement from an authorized official of the petitioning United 
States employer which demonstrates that: 
(A) If the alien is outside the United States, in the three years immediately 
preceding the filing of the petition the alien has been employed outside the 
United States for at least one year in a managerial or executive capacity by a 
firm or corporation, or other legal entity, or by an affiliate or subsidiary of 
such a firm or corporation or other legal entity; or 
(B) If the alien is already in the United States working for the same employer or 
a subsidiary or affiliate of the firm or corporation, or other legal entity by 
which the alien was employed overseas, in the three years preceding entry as 
a nonimmigrant, the alien was employed by the entity abroad for at least one 
year in a managerial or executive capacity; 
(C) The prospective employer in the United States is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity by 
which the alien was employed overseas; and 
(D) The prospective United States employer has been doing business for at least 
one year. 
II. QUALIFYING RELATIONSHIP 
. 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has a qualifYing relationship with the Beneficiary's foreign employer. 
To establish a "qualifYing relationship" under the Act and the regulations, 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 related as a "parent and subsidiary" or as "affiliates." See generally 
section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5G)(3)(i)(C). 
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(b)(6)
Matter of Q-M-, Inc. 
The pertinent regulations at 8 C.F.R. § 204.50)(2) define the relevant terms. Generally, the term 
"affiliate" means: 
(A) One of two subsidiaries both of which are owned and controlled by the same parent 
or individual; [or] 
(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 .... 
The same regulation defines a "subsidiary" as: 
a finn, 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 ovms, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
A. Evidence of Record 
The Petitioner filed the Form I-140 petition on February 12, 2015. The Petitioner identified the 
Beneficiary's last foreign employer as and stated that the U.S. 
company is a subsidiary of the foreign entity because the foreign entity owns 51% of the Petitioner's 
shares. 
A notarized, untranslated Spanish-language document dated February 24, 2011, indicated that the 
Beneficiary 0\vned 99 out of 100 shares of the foreign company. The Petitioner also submitted a copy 
of Spanish-language meeting minutes (with a capsule English translation) dated January 17, 2012, 
indicating that the Beneficiary had transferred 51 of his 99 shares to the Petitioner, giving the U.S. 
company a controlling ownership interest in the foreign company. 
The Petitioner submitted a copy of its 2013 IRS Form 1120, U.S. Corporation Income Tax Return. On 
that return, Schedule K, line 5a, asked whether the petitioning company owned "50% or more of the 
total voting power ... of any foreign or domestic corporation." The Petitioner answered "no." 
The Director issued a request for evidence (RFE), asking for "additional documentation to show [the 
petitioning] company has a qualifying relationship to the foreign entity claimed." 
In response, the Petitioner submitted a new, complete, cetiified translation of the meeting minutes dated 
January 17, 2012. The Petitioner also submitted a report which 
provided details 
about the petitioning company, but not ownership information of its claimed subsidiary. 
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(b)(6)
Matter ofQ-M- , Inc. 
The Director denied the petition in part because the Petitioner did not establish that it had a qualifying 
relationship with the Beneficiary's foreign employer. In denying the petition, the Director found that 
"the United States employer and the foreign employer are umelated business entities," because 
"[S]chedule K of the petitioner's U.S. Corporation Income Tax Return (Fotm 1120), does not indicate 
that the U.S. company has any ownership in the foreign entity." 
On appeal, the Petitioner states that an oversight led to an error on the Petitioner 's income tax return. 
The Petitioner submits a copy of its 2014 IRS Form 1120 tax return, reflecting 51% ownership of the 
foreign entity, and an affidavit from president of the petitioning company. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of the 
appeal, we conclude that the Petitioner has not established that it has a qualifying relationship with the 
foreign entity . 
The regulation and case lavv' confirm that ownership and control are the factors that determine whether a 
qualifying relationship exists bet\veen United States and foreign entities for purposes of this visa 
classification. 1 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. 2 
As general evidence of a petitioner's claimed qualifying relationship , meeting minutes, tax returns, and 
an affidavit are not sufficient evidence to dete1mine whether a stockholder maintains ownership and 
control of a corporate entity. The corporate stock certificates , stock certificate ledger, stock certificate 
registry, corporate bylaws, and the minutes of all relevant annual shareholder meetings must also be 
examined to determine the total number of shares issued, the exact number issued to the shareholder, 
and the subsequent percentage ovmership and its effect on corporate control. Additionally, a petitioning 
company must disclose all agreements relating to the voting of shares, the distribution of profit, the 
management and direction of the subsidiary, and any other factor affecting actual control of the entity. 3 
Without full disclosure of all relevant documents, USCIS is unable to determine the elements of 
ownership and control. 
The regulations specifically allow the Director to request additional evidence in appropriate cases .4 As 
ownership is a critical element of this visa classification , the Director properly inquired into the means 
by which ownership was acquired. 
1 
See Matter of Church Scientology fnt 'I, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Med. Syss., Inc., 
19 l&N Dec. 362 (BIA 1986); Matter of Hughes, l8 I&N Dec. 289 (Comm ' r. 1982). 
2 Mauer of Church Scientology lnt '/, 19 I&N Dec. at 595 . 
3 See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 1632. 
4 
See 8 C.F.R. § 204.5(iX3)(ii). 
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(b)(6)
Matter of Q-M-, Inc. 
In his affidavit on appeal, states: "On January 17, 2002 [sic] ... , [the Petitioner] 
purchased 51% of [the foreign company's] stock." He adds that the Petitioner's accountant was not 
aware of this information when she prepared the company's 2013 tax return. 
specifically stated that the Petitioner "purchased" the foreign company's stock. The 
Petitioner, on appeal, does not submit any documentation of the sale. Instead, in the appellate brief, the 
Petitioner states: "a petitioner need only document that a transfer [of stock] occurred ... and neither the 
purchase price for the stock, nor proof of actual transfer of funds to purchase the stock are important." 
To support the above assertion, the Petitioner cites an unpublished AAO decision from 2002. The 
Petitioner does not submit a copy of the decision to show that the circumstances in the two cases are 
sufficiently similar to warrant comparison. 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. 
Furthermore, although stated that the Petitioner "purchased" shares in the foreign company , 
the 2012 meeting minutes themselves, as translated, refer to the Beneficiary's "decision to donate" the 
shares to the Petitioner. This is not a minor or insignificant discrepancy, and the Petitioner does not 
resolve it by stating that it is not required to produce evidence of payment. 
The certified translation of the 2012 meeting minutes states that the Beneficiary "had in his possession 
the certificates representing the shares of its members." The translation also referred to the "donation 
contracts" relating to the transfer of 51 shares from the Beneficiary to the petitioning U.S. employer. 
The Petitioner has not, however, submitted copies of the share certificates or donation contracts. 
Therefore, the Petitioner has not submitted credible evidence of the ownership of the foreign company. 
We note that the Petitioner's own submissions call into question the reliability of the meeting minutes. 
The petition in this proceeding is not the first immigrant petition that the Petitioner has filed on the 
Beneficiary's behalf. In support of an earlier petition, the Petitioner submitted translated meeting 
minutes, showing a transfer of 51 shares from the Beneficiary to the U.S. petitioner. Those minutes, 
however, are dated January 22, 2013, more than a year after the date on the meeting minutes submitted 
with the present petition . Thus, the Petitioner has provided two different dates for the same transfer of 
shares. Given these conflicting dates, at least one set of meeting minutes cannot be authentic. 
The discrepancy cannot be attributed to a translation error; the divergent dates are found within the 
Spanish-language documents as well as in the translations. 5 Also, in a letter dated March 29, 2013, 
the administrative manager of the foreign entity, stated: "back in 
5 This discrepancy is not, itself , a basis for dismissal of the appeal. But, by undermining the reliability of the meeting 
minutes , it demonstrates why the minutes alone are not sufficient evidence of the transfer of the shares. The Petitioner 's 
submission of two incompatible versions of the meeting minutes could also , in future proceedings , raise questions of 
willful misrepresentation of a material fact. 
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(b)(6)
Matter ofQ-M-, Inc. 
January 22, 2013 a Meeting of the Shareholders took place ... to transfer certain shares of the Mexican 
Corporation ... to [the Petitioner]." 
Furthermore, the earlier filing included a letter dated December 18, 2012, in which 
stated that the Beneficiary "is ... the majority shareholder owning 99% of shares in the [foreign] 
corporation." did not indicate, at the time, that any shares had changed hands earlier in 2012. 
This information contradicts the Petitioner's claim, in the current petition, that the Beneficiary had 
transferred 51 shares to the Petitioner in January 2012. If the Beneficiary still owned 99 shares as of 
December 18, 2012, then the transfer cannot have taken place in January 2012, and the 2012 meeting 
minutes 
cannot be authentic. We note that this comes from materials submitted by the Petitioner itselt~ 
and therefore it is not information unknown to the Petitioner. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that it 
has a qualifying relationship with the foreign entity. 
III. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based in part on a finding that the Petitioner did not establish that the 
Beneficiary 
will be employed in a managerial or executive capacity. The Petitioner does not claim that 
the Beneficiary will be employed in an executive capacity. Therefore, we restrict our analysis to 
whether the Beneficiary will be employed in a managerial capacity. 
The regulation at 8 C.F.R. § 204.50)(5) requires the Petitioner to submit a statement which indicates 
that the Beneficiary is to be employed in the United States in a managerial or executive capacity. The 
statement must clearly describe the duties to be performed by the Beneficiary. 
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 
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lvfatter of Q-M-, Inc. 
(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. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. See section 101 (a)( 44 )(C) of the Act. 
A. Evidence of Record 
On the Form I-140, the Petitioner indicated that it had 32 current employees in the United States. The 
Petitioner submitted an organizational chart reflecting more than 32 positions, as well as 32 IRS Fonns 
W-2, Wage and Tax Statements, for 2014. 
The Director denied the petition, stating that the Petitioner had not "established that the beneficiary's 
duties and those of his claimed subordinates elevate him ... to a primarily managerial or executive 
position." The Director also found that "the petitioner lacks the organizational complexity to 
warrant the employment of the beneficiary in a primarily executive of managerial capacity." 
On appeal, the Petitioner states that the Petitioner "had 32 employees on payroll as of the date of 
filing" and that its "reasonable needs ... clearly indicate the need for a Multinational Operations 
Manager." 
1. Analysis 
The Director did not explain how an organization with over 30 documented employees "lacks ... 
organizational complexity." The Petitioner's organizational chmi shows several layers of authority 
within the company, with offices in several cities in Texas. Vacant positions within the organization 
do not, in this case, reduce the organization's complexity to a point that it cannot justify the 
employment of a manager. 
In addition to the Beneficiary's job descriptions, quoted above, the Petitioner submitted over 30 
pages of job descriptions for the Beneficiary's subordinates. The Director did not discuss these 
materials in the denial notice, and offered no explanation or support for the conclusion that these job 
descriptions are inadequate. 
When a USCIS officer denies a petition, the officer must explain the specific reasons for denial.
6 
The denial notice in this case does not meet this requirement. It cannot suffice to cite regulations 
6 
See 8 C.F.R. § 103.3(a)(1)(i). 
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Matter ofQ-M-, Inc. 
and case law without providing context to show how those provisions relate and apply to the matter 
at hand. 
The materials submitted to establish the Beneficiary's managerial role are not facially deficient. 
Absent an explanation for the Director's findings, those findings cannot stand. We will still dismiss 
the appeal, however, based on the previously described deficiencies in the Petitioner's evidence 
regarding its claimed qualifying relationship with the foreign company. Our withdrawal of one 
ground for denial does not change the outcome of the decision as a whole. 
IV. CONCLUSION 
The petition will be denied and the appeal dismissed for the above reason. 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; Matter of Otiende, 26 I&N 127, 128 (BIA 
2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter o.fQ-M-, Inc., ID# 17943 (AAO Aug. 15, 2016) 
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