dismissed EB-1C Case: Corporate Development

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
FILE: WAC 03 070 5 1945 office: CALIFORNIA SERVICE CENTER Date: 
PETITION: Immigrant Petition for as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) and Nationality Act, 8 U.S.C. 5 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: ~ 
INSTRUCTIONS : 1 
This is the decision of the Administrative Office in your case. All documents have been returned to 
the office that originally decided your inquiry must be made to that office. 
~6bert P. Wiemann, Director / 
;~,~drninistrative Appeals Office 
i/ 
WAC 03 070 5 1945 
Page 2 
DISCUSSION: The preference visa petiti was denied by the Director, California Service Center. The 
matter is now before the Administrative Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this immigrant seeking to employ the beneficiary as its vice-president of 
corporate development and planning. ingly, the petitioner endeavors to classify the beneficiary as an 
employment-based multinational manager pursuant to section 203(b)(l)(C) of the Immigration 
and Nationality Act (the Act), 8 (b)(l)(C). The petitioner is a corporation organized in the State 
of California that is operating as 
The director denied the petition concludin that the petitioner did not demonstrate the existence of a 
qualifying relationship between the organization and the foreign entity as required in section 
203(b)(l)(C) of the Act. 
Counsel subsequently filed an appeal. The d ector declined to treat the appeal as a motion and forwarded it 
to the AAO for review. On appeal, counsel states that the record contained a discrepancy in the amount of 
shares issued and the financial informatilon r lating to the petitioner's capitalization. Counsel submits a brief 
and additional documentary evidence in supp rt of the claim that a qualifying relationship exists between the 
two organizations. I 
Section 203(b) of the Act states, in pertinent dart: 
(1) Priority Workers. -- Visas shall be made available . . . to qualified immigrants who 
are aliens described in any of the subparagraphs (A) through (C): 
(C) Certain Multinatio~ial and Managers. - An alien is 
described in this subparagrap in the 3 years preceding the time 
of the alien's application and admission into the United 
States under this for at least 1 year by a 
firm or or subsidiary thereof 
thereof in a 
The language of the statute is specific in li this provision to only those executives or managers who 
have previously worked for the firm, or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United for the same entity, or its affiliate or subsidiary. 
A United States employer may file a petiti on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational e or manager. No labor certification is required for his 
classification. The prospective employer States must furnish a job offer in the form of a 
statement which indicates that the alien is in the United States in a managerial or executive 
capacity. Such a statement must clearly to be performed by the alien. 
WAC 03 070 51945 
Page 3 
The issue in this proceeding is whether a alifying relationship exists between the foreign entity and the 
United States entity as required in section of the Act, 8 U.S.C. 5 1153(b)(l)(C). 
The regulation at 8 C.F.R. 3 204.5Q)(2) 
Afiliate means: 1 
(B) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling ap roximately the same share or proportion of each entity; 
P 
(A) One of two subsidiaries both of 
individual; 
Subsidiary means a firm, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the and controls the entity; or owns, directly or indirectly, 
half of the entity and controls or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal veto power over the entity; or owns, directly or 
indirectly, less than half of fact controls the entity. 
which are owned and controlled by the same parent or 
The petitioner filed the immigrant petition December 30, 2002. In an attached letter from the petitioner, 
dated October 22,2002, the president of organization noted that the foreign entity is the parent 
of the United States corporation. The that "[tlhe [appended] documents include evidence of 
the required linkage between the including the direct cash investment of 
$1,000,000 of Taiwan corporate shares." The petitioner further 
explained that the petitioning 
As evidence of a qualifying relationship, submitted a list of thirteen owners of the petitioner's 
10,000,000 shares of issued stock, entity as the owner of 52% of the corporation, or 
5,200,000 shares. The petitioner the petitioner's board of directors authorizing the 
issuance of the 10,000,000 shares Receipt" acknowledging funds paid either by wire 
transfer or check from the owner's respective shares. The petitioner also 
submitted stock certificates In addition, the petitioner submitted two wire 
transfer receipts for funds petitioning organization on October 6, 2000 
and October 10,2000. 
The director issued a request for evidence on ay 12,2003, yet did not request additional evidence relating to 
the issue of qualifying relationship. M 
In a decision dated January 30,2004, the dire determined that the petitioner did not establish the existence 
of a qualifying relationship between the and United States entities. The director outlined the 
ownership of the petitioner's stock by the shareholders, noting that the record indicated that the 
petitioner received a total of $1,000,000 in for the 10,000,000 issued shares of stock. The director 
noted however, that the petitioner's 2001 tax return reflected an increase in capital at the end 
of the year to $1,725,000. The an additional increase in capital reflected on the 
petitioner's 2002 corporate The director stated "it appears that the petitioner 
has sold a total of no evidence of this transaction." The director 
WAC 03 070 5 1945 
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determined that the petitioner had failed to clarify the inconsistencies related to a qualifying 
relationship. Accordingly, the 
In an appeal filed on March 2, 2004, coun states "[tlhere was an alleged discrepancy between the stated 
shares issued, and capitalization in appearing on the corporate tax returns of the Employing 
Organization/U.S. office." Counsel e t additional shares were issued by the petitioning organization 
in the years 2001 and 2002 to the a1 ng stockholders, and notes that each shareholder's ownership 
interest remained the same followin a1 issuance of stock. Counsel states that the foreign entity 
continues to own 52% of the pe ization, while the remaining 48% is owned by twelve 
individual shareholders. Counsel '100% of the increases to capital . . . were in the form of 
cash wire transfers directly fro ompany to the corporate accounts of [the petitioning 
organization], and from no other 1 claims that the director's denial therefore "identifies an 
alleged discrepancy where no re ists." Counsel submits stock certificates reflecting the 
increase in capital stock during 20 
Counsel also claims that the petitioner was because the director did not address the issue of 
qualifying relationship in his request for evi states that it is a long-standing Citizenship and 
Immigration Services (CIS) policy to issue a relating to issues of eligibility. 
On review, the petitioner has not the existence of a qualifying relationship between the foreign 
and United States entities as 203(b)(l)(C) of the Act. 
The regulation and case law confirm that o and control are the factors that must be examined in 
determining whether a qualifying relatioinshi United States and foreign entities for purposes 
of this visa classification. Matter of Church 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In context of this visa the direct or indirect legal right of 
possession of the assets of an entity control; control means the direct or 
indirect legal right and authority to and operations of an entity. Matter 
of Church Scientology 
As general evidence of a petitioner's claimed ualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholde maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certi icate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be exa 'ned to determine the total number of shares issued, the exact 
number issued to the shareholder, and the ubsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company ust disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and di ection of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemen Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to detennin I the elements of ownership and control. 
The instant record contains several discrepanc es pertaining to the claimed parent-subsidiary relationship. As 
noted previously, in order to establish o nership the petitioner should provide documentation of 
consideration given by the shareholders in xchange for stock. Here, the petitioner submitted two wire 
transfer statements and untranslated financia documents, which the petitioner claimed is evidence of the 
foreign entity's compensation in exchange for 1 the stock owned by all thirteen shareholders. In other words, 
WAC 03 070 5 1945 
Page 5 
Additionally, despite counsel's assertions ppeal, counsel has not furnished evidence that the petitioner 
received compensation for the subsequent ce of 12,250,000 shares of stock. Again, counsel states that 
the additional $1,225,000 increase in capi paid directly through wire transfers from the foreign entity. 
However, the financial documentation su by counsel, which includes untranslated statements, does not 
clearly identify the transfer of funds issued in December of 2001 and 2002. While the bank 
statements reflect deposits made in M d August of 2001 and January, March, April, July, August, 
September, November, and Decembe t is unclear whether these were made as payment for stock 
ownership or as funding for the petiti ess operations. Additionally, the cumulative amounts of the 
wire transfers in 2001 and 2002 repr iency of approximately $30,000 and $60,000, respectively, 
from the total value of stock issued e o, counsel again claims that the foreign entity furnished the 
entire amount of consideration for t issuances of stock to all thirteen shareholders, yet there is 
no documentation identifying an a n the parties that the remaining shareholders would retain 
ownership of the stock paid for by . Without documentary evidence to support the claim, the 
assertions of counsel will not s r's burden of proof. The assertions of counsel do not 
constitute evidence. Matter of ec. 533,534 (BIA 1988); Matter Of Laureano, 19 I&N 
Dec. 1 (BIA 1983); Matter of R N Dec. 503,506 (BIA 1980). The AAO also notes that 
because the petitioner failed t lations of the documents, the AAO cannot determine 
whether the evidence supports See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence 
is not probative and will not b 
the record indicates that the foreign entity 
Likewise, the petitioner noted in its Octlober 
resulted from "the direct cash investment of 
twelve shareholders did not provide any 
organization yet continue to be identified as 
records. There is no documentation in the re 
furnish the total amount of consideration 
petitioner has failed to clarify ownership of 
November 2000. It is incumbent upon 
independent objective evidence. Any attempt 
unless the petitioner submits competent objective 
I&N Dec. 582,591-92 (BIA 1988). 
Moreover, although counsel explains on the issuance of 12,250,000 shares of stock to the thirteen 
already existing shareholders in the yea 1 and 2002, there is no indication that these subsequent 
issuances were authorized by the petit organization. The petitioner's Articles of Incorporation 
authorizes the petitioning organization to ,000,000 shares of stock. This amount is further confmed 
in Section 6 of a "Consent" by the petitio rd of directors. However, as a result of the additional stock 
issued in both 2001 and 2002, the petiti d an aggregate amount of 22,250,000 shares. The record 
does not contain any supplemental agre the petitioner's board of directors authorizing the issuance 
of stock beyond the amount approved i of incorporation. It is therefore unclear whether the stock 
transfers in 2002 are valid. 
paid the entire amount due as compensation for the stock. 
22, 2002 letter that the initial stock purchase in November 2000 
$1,000,000 of Taiwan corporate funds." Clearly, the remaining 
consideration in exchange for stock ownership in the petitioning 
stockholders on both the stock certificates and the corporate 
zord evidencing an agreement that the foreign corporation would 
for the benefit of the twelve shareholders. Consequently, the 
:he initial 10,000,000 shares of stock issued by the petitioner in 
the petitioner to resolve any inconsistencies in the record by 
to explain or reconcile such inconsistencies will not suffice 
evidence pointing to where the truth lies. Matter of Ho, 19 
Furthennore, the stock certificates issued o appeal do not clearly identify ownership in the petitioning 
organization as the photocopies submitted the record are too dark to identify the issuing corporation. 
Going on record without supporting tary evidence is not sufficient for purposes of meeting the 
WAC 03 070 5 1945 
Page 6 
burden of proof in these proceedings. Matte of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972). r 
Lastly, counsel contends on appeal that the erred in failing to request further evidence of a qualifying 
relationship before denying the petition. of the regulation at 8 C.F.R. $ 103.2(b)(8) requires the 
director to request additional evidence "in where there is no evidence of ineligibility, and initial 
evidence or eligibility information is is not required to issue a request for further 
information in every potentially determines that the initial evidence supports a 
decision of denial, the cited of further documentation. The director did 
not deny the petition based 
Furthermore, even if the director had cornmi a procedural error by failing to solicit further evidence, it is 
not clear what remedy would be appropria the appeal process itself. The petitioner has in fact 
supplemented the record on appeal, and serve no useful purpose to remand the case simply 
to afford the petitioner the opportunity with new evidence. 
Based on the above discussion, the record not demonstrate that the petitioning organization and the 
foreign entity possess the claimed relationship. The petitioner has therefore failed to 
establish the existence of a the two organizations as required in section 
203(b)(l)(C) of the Act. 
In visa petition proceedings, the burden of pr ving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the will be denied. 
ORDER: The appeal is dismissed. 1