dismissed EB-1C Case: Food Service

(b)(6)
DATE: JAN 3 0 2014 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor es£ablish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 
I-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly .with the AAO. 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center ("the director"), denied the immigrant visa petition and 
the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed the Form I-140, Immigrant Petition for Alien Worker (Form I-140), to classify the 
beneficiary as a multinational manager or executive pursuant to section 203(b)(l)(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. §1153(b)(1)(C). The petitioner, a Florida limited liability company, 
operates a restaurant/food service business and claims to be an affiliate of ---located in Venezuela . It seeks to employ the beneficiary as its president and CEO at an annual salary of 
$42,000. 
The director denied the petition, concluding that the petitioner failed to establish that it has a qualifying 
relationship with the foreign entity. 
On appeal, counsel for the petitioner asserts that the discrepancies and alleged accounting errors in the record 
are attributable to the petitioner's accountant and do not change the fact that the petitioner has a qualifying 
relationship with the foreign entity. Counsel submits a brief and additional evidence in support of the appeal. 
I. The Law 
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 describ ed 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 firm, 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. 
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A United States employer may file a petition on Form I-140 for classification of an alien under section 
203(b )(1)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
clas sification. 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. 
At issue in this proceeding is whether the petitioner has established that it has a qualifying relationship with 
the beneficiary's foreign employer. 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)(1)(C) of the Act, 8 U.S .C. § 1153(b)(1)(C); see also 8 C.F.R. § 
204.50)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.50)(2) states in pertinent part: 
Affiliate 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. 
Subsidimy means a firm, 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. 
II. Facts 
The petitioner filed the Form l-140 on March 12, 2012. In its accompanying supporting letter, the petitioner 
stated that it has a qualifying relationship with which employed the beneficiary 
in Venezuela from February 2008 until June 2010. Specifically, the petitioner indicated that both companies 
are owned by the same individuals in the same proportions as follows: -50%; 
(41.7%) and (8.3%). 
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The petitioner's supporting documents included: (1) its Articles of Organization identifying the beneficiary as 
the manager of the company; (2) Membership Certificate no. 1 issued on January 5, 2010, indicating that 
owns a 50% interest in the LLC; (3) Membership Certificate no. 2 issued on the same 
date, and indicating that owns a 41.7 % interest in the company; and (4) 
Membership Certificate no. 3, also issued on January 5, 2010, indicating that 
an 8.3% interest in the company. 
owns 
The petitioner also submitted copies of annual reports and officer lists filed with the Florida Department of 
Corporations which identify the beneficiary as the current sole manager, president and registered agent of the 
company. None of these documents identify any members of the company. 
In addition, the petitioner submitted a copy of its 2011 Internal Revenue Service (IRS) Form 1065, U.S. 
Return of Partnership Income, which indicates that the company has one owner. The accompanying 
Schedule K-1 indicates that the beneficiary is the sole member. The petitioner reported the same information 
in its 2011 Florida Partnership Information Return (F-1065). 
With respect to the ownership of the foreign entity, the petitioner provided a copy of its corporate charter 
filed with the Second Registrar of Commerce of in Venezuela in February 1998. According to 
this document the authorized capital of the company is Bs. 30,000,000.00 divided into 30,000 shares. :rhe 
charter indicates that 
owns 12,500 shares, and 
owns 15,000 of the authorized shares, 
owns 2,500 shares. 
The petitioner also provided the foreign entity's audited financial statement for fiscal year 2010-2011. 
According to the accompanying notes, "[t]he Company carried out an increase of capital in the fiscal year 
2011." Specifically the document indicates that "the capital of the society was increased to Bs. 4,970 ,000.00, 
the Social Capital of the Company being represented in 1,000 Shares with a nominal value of Bs. 5,000.00 
each." The financial statement indicates that the social capital increased from Bs. 30,000 to Bs. 5,000,000. 
On May 14, 2012, the director issued a request for evidence (RFE) . The director observed that the 
information reported in the petitioner's IRS Form 1065 for 2011 conflicted with the petitioner's claims that 
the company is owned by the three individuals who own the foreign entity. The director therefore requested 
additional evidence to establish the identity of the company's owners, the date on which they acquired 
ownership, informatio n regarding the purchase price of their membership interests, and documentation of the 
owners' capital investments. The director further instructed the petitioner to provide copies of any operating 
agreements, meeting minutes or other documentation that specifies who the owners are and who has control 
of the company. 
In response to the RFE, the petitioner reiterated that it is owned by the same three individuals as the foreign 
entity, and stated: "We have corrected form 1065 for 2011 and 2010 showing the number of partners in the 
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K-1 Schedules accordingly with the Membership Certificates. We apologize for the original error but it was 
a misunderstanding with the accountant who prepared those forms." 
The petitioner submitted a copy of its IRS Form 1065 for 2011 dated March 27, 2012 by the petitioner's 
accountant and signed by the petitioner on June 28, 2012. The new Form 1065 included three Schedule K-1s 
issued to (50%), (8.7%), and (41.3%). The same 
information was reported on the amended 2010 Form 1065 and accompanying Schedules K-1. 
The director denied the petition on March 7, 2013, concluding that the petitioner failed to establish that it has 
a qualifying relationship with the foreign entity. The director acknowledged the petitioner's submission of 
the amended tax returns, but noted that the petitioner failed to mention if and when it filed the revised forms 
with the Internal Revenue Service. Further, the director emphasized that, despite being instructed to submit 
additional evidence of ownership, including operating agreements, meeting minutes and other relevant 
corporate documents, and evidence of the members' investment in the LLC, the petitioner submitted only the 
"amended" tax returns. 
On appeal, counsel asserts that the petitioner provided copies of its membership certificates confirming the 
qualifying relationship with the foreign entity and asserts that "the accountant's error does not constitute a 
change to the corporate relationship." Counsel asserts that the petitioner's accountant, was 
informed of the petitioner's correct ownership structure in 2010 when the beneficiary hired him to prepare the 
company's income tax returns. Counsel maintains that "the accountant incorrectly assumed that he could 
complete schedule K-1 (Form 1065) with [the beneficiary's] information, as a sole partner and failed to 
include the correct partners." Counsel further indicates that the beneficiary advised the accountant to correct 
these errors, but Mr. failed to timely file the amended tax returns. Counsel explains that the foreign 
entity provided a $213,000 investment to the petitioner which enabled it to purchase its restaurants in the 
United States. 
In support of the appeal, the petitioner submits a letter from Mr. states that the 
beneficiary informed him that the petitioner is a subsidiary of a Venezuelan company with owners that live 
abroad. He asserts: "Since the partners of [the petitioner] did not have social security numbers, I incorrectly 
assumed that I could complete the schedule K-1 (Form 1065) with [the beneficiary's] information, as a sole 
partner and failed to include the correct partners." Mr. states that he "erroneously completed 
schedule K-1" for the 2010 and 2011 tax years and was made aware of this error on June 28, 2012. Mr. 
indicates that he provided the beneficiary with copies of the revised forms but did not inform him 
that the amendment needed to be filed with the IRS. Finally, he states that the amended 2011 Form 1065 
was ultimately filed and received by the IRS on March 28, 2013. 
The petitioner: submits copies of the 2011 and 2012 Forms 1065 bearing receipt stamps from the Internal 
Revenue Service. The petitioner also provides an affidavit from .....J who states that the 
shareholders of the foreign entity approved a $213,000 investment in the petitioning company. Mr. 
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states that Venezuelan currency restrictions prevented the foreign entity's shareholders from individually 
transferring money to the petitioner. Instead, the foreign entity provided two checks to the beneficiary and to 
The first check was dated June 2010 in the amount of $128,000 for the purpose of 
purchasing the petitioner's first restaurant. Mr. indicates that the foreign entity provided a second 
check in the amount of $85,000 for the purchase of the petitioner's second restaurant in February 2011. The 
petitioner provides copies of both referenced checks. 
III. Analysis 
Upon review, and for the reasons discussed herein, the petitioner has not established that it has a qualifying 
relationship with the foreign entity. 
The regulation 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 (Comm'r 1988) ; see 
also Matter of Siemens Medical Systems, Inc. , 19 I&N Dec . 362 (Comm'r 1986); Matter of Hughes , 18 I&N 
Dec. 289 (Comm'r 1982). 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. 
Matter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, a certificate of formation or 
organization of a limited liability company (LLC) alone is not sufficient to establish ownership or control of 
an LLC. LLCs are generally obligated by the jurisdiction of formation to maintain records identifying 
members by name, address, and percentage of ownership and written statements of the contributions made by 
each member, the times at which additional contributions are to be made, events requiring the dissolution of 
the limited liability company, and the dates on which each member became a member. These membership 
records, along with the LLC's operating agreement, certificates of membership interest, and minutes of 
membership and management meetings, must be examined to determine the total number of members, the 
percentage of each member's ownership interest, the appointment of managers, and the degree of control 
ceded to the managers by the members. Additionally, a petitioning company must disclose all agreements 
relating to the voting of interests, the distribution of profit, the management and direction of the entity, and 
any other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N 
Dec. 362 (BIA 1986). Without full disclosure of all relevant documents, United States Citizenship and 
Immigration Services (USCIS) is unable to determine the elements of ownership and control. 
In this case, the petitioner's initial evidence of ownership was limited to copies of its membership certificates. 
As the petitioner also submitted a copy of its Form 1065 for 2011 showing the beneficiary as the sole owner 
of the petitioning company, the director reasonably requested that the petitioner provide additional evidence 
to document the capital contributions from the petitioner's claimed owners, as well as copies of the 
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petitioner's operating agreement, meeting minutes and other relevant documentation of ownership and 
control. 
The regulations specifically allow the director to request additional evidence in appropriate cases . See 8 
C.F.R. § 204.5G)(3)(ii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the identification of a member of an LLC into the means by which this 
membership interest was acquired. As requested by the director, evidence of this nature should include 
documentation of monies, property, or other consideration furnished to the entity in exchange for the 
membership interest. Additional supporting evidence would include an operating agreement, minutes of 
relevant membership or management meetings, or other legal documents governing the acquisition of the 
ownership interest. 
The petitioner's response to the director's request consisted of amended Forms 1065 with no evidence that the 
tax returns had been filed with the IRS. The petitioner did not comply with the director's request for a copy 
of the company's operating agreement, minutes of membership meetings, evidence of capital contributions 
from the members or other documentary evidence of ownership. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. See 8 C.F.R. § 103.2(b)(14). 
The petitioner simply attributed the inconsistent information found on the petitioner's tax returns to a 
"misunderstanding with the accountant" and provided no further explanation. 
Further, the amended tax returns contain slightly different information than what IS indicated on the 
company's membership certificates, indicating that and own 8.7% and 
41.3 % of the company, respectively , rather than 8.3% and 41.7 %. 
On appeal, the petitioner offers evidence that the petitioner eventually filed its amended tax returns for 2011 
and a letter from Mr. 
Mr. states that he "assumed" he could list the beneficiary as the sole 
owner of the petitioning company even though the beneficiary informed him that the petitioner is a 
subsidiary of a Venezuelan company and that the petitioner's partners were foreign. Given that the IRS form 
requests that the filer identify whether its members are foreign or domestic, the accountant's claim that he 
assumed he could not indicate the actual ownership of the company because its members are foreign and do 
not have social security numbers is not entirely credible. Further, the 2011 tax return submitted at the time of 
filing lists and nor as the preparer and contact person. 
On appeal, the petitioner also attempts to address acquisition of ownership interests by the petitioner's 
foreign members, evidence that was previously requested in the RFE and not provided. Where, as here, a 
petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to 
respond to that deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If 
the petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in 
response to the director's request for evidence. /d. Under the circumstances, the AAO need not consider the 
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sufficiency of the evidence submitted on appeal. Nevertheless, the copies of checks submitted on appeal, at 
most, show only that the foreign entity contributed funds towards the purchase of the petitioner's restaurants; 
the petitioner has not explained how the contributions demonstrate ownership of the petitioning company by 
its three claimed individual members. 
The petitioner has not offered a copy of its operating agreement or any other company document addressing 
the ownership and control of the company or the initial contribution made by its members in exchange for 
ownership of the company. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
Finally, while not addressed in the director's decision, the petitioner has provided dated evidence of the 
ownership of the foreign entity. While the company's formation documents from 1998 support the 
petitioner's claims regarding the ownership of the foreign entity by three individuals in the asserted 
percentages, the petitioner has not provided any more recent evidence of the company's ownership to confirm 
that there have been no changes in ownership since the date of formation. As noted above, the notes to the 
foreign entity's financial statement indicate that the company carried out an increase in its social capital in 
2011 which reasonably would have resulted in the issuance of additional shares. The petitioner did not 
provide any corporate documentation related to this transaction and the resulting ownership. 
Based on the discrepancies and omissions in the record, the petitioner has not established that the petitioner 
and the foreign entity have a qualifying relationship. Accordingly, the appeal will be dismissed. 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the petitioner's 
burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.