dismissed EB-1C Case: Finance

U.S. Department of Homeland Security 
20 Mass. Ave. N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
06 
Office: NEBRASKA SERVICE CENTER Date JAN 2 '2 2005 
- 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. fj 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. 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based visa petition. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an organization incorporated in August 1994 in the State of Illinois. It is an independent broker 
with the Commodity Futures Trading Commission and with the Securities and Exchange Commission. It seeks to 
employ the beneficiary as its managing director. Accordingly, it 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. $ 1 153(b)(l)(C), as a multinational executive or manager. 
The director determined that the petitioner had not established a qualifying relationship with the beneficiary's 
foreign employer. 
On appeal, counsel for the beneficiary asserts that the director misunderstands case law and that Citizenship and 
Immigration Services (CIS) has previously approved matters similar to the matter at hand. 
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 the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and 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 that 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. See 8 C.F.R. 5 204.56)(5). 
The issue in this proceeding is whether the petitioner has established a qualifying relationship with the 
beneficiary's foreign employer. Ln order to qualie for this visa classification, the petitioner must establish that a 
qualifying relationshp exists between the United States and foreign entities in that the petitioning company is the 
same employer or an affiliate or subsidiary of the foreign entity. See section 203(b)(l)(C) of the Act. 
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The regulation at 8 C.F.R. 9 204.50)(2) states in pertinent part: 
Afiliate 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 whch 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, hrectly or indirectly, less 
than half of the entity, but in fact controls the entity. 
The facts in this matter are not in dispute. The record shows that the petitioner is owned as follows: 
The record confirms that the foreign entity is owned as follows: 
The director determined that the owners of the petitioner and the foreign entity were not the same group of 
individuals, each individual owning and controlling approximately the same share or proportion of each entity; 
thus, a qualifjmg relationship between the two entities did not exist. 
On appeal, counsel for the petitioner cites Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). Counsel asserts 
that the Mattw of Hughes decision held that even though the same group owned less than the 
but had control, an affiliate relationshp had been established. Counsel asserts that two 
- and, have majonty control over both organ~zatibns. 
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Counsel refers to an Assignment of Shares and Addendum to Memorandum of Association of the foreign entity. 
Counsel cites Article 8 of the agreement wherein all the shareholders of the foreign entity have given complete - - 
control of the management of the foreign entity to,,-. counsel implies tks is 
evidence that, as sole manager of the foreign entity, has control of the entity. 
Counsel also provides statements from two of the petitioner's shareholders stating that - 
an(-have the same control over the management ofthe petitioner. 
Counsel's assertions are not persuasive. The regulations 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 (Comm. 1982). In 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. 
Control may be "de jure" by reason of ownership of 5 1 percent of outstanding stocks of the other entity or it 
may be "defacto" by reason of control of voting shares through partial ownership and possession of proxy 
votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
In this matter no one shareholder owns a majority interest in either company. Counsel asserts that two individuals 
by virtue of their combined shares own a majority interest in both organizations and concludes that the combined 
shares establish control of both entities. However, for both shareholders, 
and, to control the petitioner or the foreign entity, both shareholders must vote 
in concert. The petitioner has provided no evidence that these two shareholders have agreed to always vote their 
shares the same way for each entity. Moreover, even if the two shareholders had agreed to vote their shares in 
concert, the two entities are not owned and controlled by the same parent or individual, or by the same group of 
individuals, each individual owning and controlling approximately the same share or proportion of each entity. 
8 C.F.R. 3 214.2(1)(l)(ii)(L). As noted above, in order to establish "de facto" control of both entities by an 
individual, the petitioner must provide agreements relating to the control of a majority of the shares' voting rights 
through proxy agreements. See Matter of Hughes, 18 I&N Dec. at 293. A proxy agreement is a legal contract 
that allows one individual to act as a substitute and vote the shares of another shareholder. See Black's Law 
Dictionary 1241 (7th Ed. 1999). An agreement to vote shares in concert does not rise to the level of a proxy 
agreement that would give one individual control over the voting rights of a majority of the issued shares. For 
this reason, the petitioner has not established that a qualifying affiliate relationship exists between the two entities. 
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. 3 1361. Here, that burden has not been met. 
ORDER: The appeal is disnlissed.