dismissed EB-1C Case: Freight Forwarding

(b)(6)
DATE: MAY 1 3 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
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 in your case . All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~~rative Appeals Office 
(b)(6)
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DISCUSSION: The Director, Texas Service Center, ("the director") denied the preference visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a Texas corporation organized in April 1993. The petitioner states on the Form 
I-140, Immigrant Petition for Alien Worker, that it is engaged in freight forwarding, employs four 
personnel, and reported a gross annual income of $1,585,410 when the petition was filed. It seeks to 
employ the beneficiary as its general manager of operations. 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. § 1153(b)(1)(C), as a multinational executive or 
manager. 
On August 22, 2012, the director denied the petition determining that the petitioner failed to establish 
that the petitioner has a qualifying relationship with the beneficiary's foreign employer. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that the director's basis for denial of the 
petition was erroneous and contends that the evidence of record is sufficient to satisfy the petitioner's 
burden of proof in that the evidence establishes the beneficiary's eligibility for the requested 
classification. 
I. The Law 
To establish eligibility for the employment-based immigrant visa classification, the petitioner must 
meet the criteria outlined in section 203(b) of the Act. 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. 
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 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 
(b)(6)
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performed by the alien. 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. 
The regulation at 8 C.F.R. § 204.5(j)(2) provides in pertinent part: 
"Affiliate" means : 
( 1) One of two subsidiaries both of which are owned and controlled by the 
same parent or individual;, 
(2) 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 ... [.] 
II. The Issue on Appeal 
The issue to be discussed in this matter is whether the petitioner submitted sufficient evidence to 
establish 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)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see above 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary") . 
In this matter, the ownership of the petitioner and the foreign entity is not in dispute. The petitioner 
distributed shares and issued stock to the following individuals in the amount listed next to their 
names: 
• 
• 
• • 
• ~--------------
363 shares (33 percent) 
c_352 shares (32 percent) 
- 187 shares (17 percent) 
176 shares (16 percent) 
- 22 shares (2 percent) 
The foreign entity that previously employed the beneficiary, in an Annual Declaration of "Partners or 
Shareholders Who Had Shares or P-articipation," depicted the ownership of shares in 2011 as: 
• 
• 
• 
• 
• 
• 
• 
t- 33.16 percent 
33.97 percent 
-32.61 percent 
- .18 percent 
.18 percent 
· .18 percent 
L__ _________ ~ - .18 percent 
(b)(6)
Page4 
• .18 percent 
• - .18 percent 
• .18 percent. 
In the director's request for evidence, the director identified the major shareholders of each entity and 
noted that it did not appear that the petitioner had established an affiliate relationship between the two 
entities. 
In response, the petitioner provided supporting documentation establishing the ownership as listed 
above. The director determined that the petitioner had not established that both the petitioner and the 
foreign entity are owned by the same group of individuals, each owning and controlling 
approximately the same share or proportion of both the petitioner and the foreign entity. 
On appeal counsel for the petitioner observes that two of its individual shareholders, 
(33.3 percent) and (31.4 percent), together 
own 64.7 percent of the petitioner. Counsel notes that these same two individual shareholders, 
(33.16 percent) and (31.97 
percent) hold 67.13 percent of the foreign entity. Counsel asserts that the petitioner has established 
that a group of individuals in both entities own and control approximately the same share or 
percentage in each entity. Counsel contends, accordingly, that the petitioner has established that 
these two individuals have a sufficient interest to control the management and operations of both 
companies and thus the two companies satisfy the definition of affiliate as set out in the regulations. 
III. Analysis 
To establish that the two entities are affiliates, the petitioner must establish that it is one of two 
subsidiaries both of which are owned and controlled by the same parent or individual or it is 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. See 8 C.F.R. § 204.5(j)(2). 
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. 
In this matter, the petitioner is owned by five individual shareholders and the foreign entity is owned 
by ten individual shareholders, with no individual holding a majority interest in either company . 
While the two companies have four shareholders in common, they are clearly not owned by the same 
group of individuals. 
(b)(6)
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Counsel assumes that the two shareholders each holding approximately a one-third interest in the 
petitioner and the foreign entity will always vote in concert and accordingly their combined two-third 
interest in both entities will result in common control of both entities. However, United States 
Citizenship and Immigration Services (USCIS) has never accepted a combination of individual 
shareholders as a single entity, so that the group may claim majority ownership, unless the group 
members have been shown to be legally bound together as a unit within the company by voting 
agreements or proxies. 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning 
entity share common ownership and control. Control may be "de jure" by reason of ownership of 51 
percent of outstanding stocks of the other entity or it may be "de facto" 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). 
However, the petitioner has not provided any agreements between these two shareholders or any 
other shareholders that require shareholders to vote on any issue in concert. As the record does not 
include any agreements relating to the voting of shares, the distribution of profit, the management and 
direction of either entity, or any other factor affecting the actual control of either entity, the petitioner 
has not satisfied the criteria found in the definition of affiliate. See Matter of Siemens Medical 
Systems, Inc., supra. 
Without full disclosure of all relevant documents, USCIS is unable to determine that the petitioner is 
one of two legal entities owned and controlled (emphasis added) by the same group of individuals, 
each individual owning and controlling approximately the same share or eropprtion of each entity. 
The record does not support counsel's claim that 
collectively exercise de facto control over both companies based on their minority interests 
in each company. 
Counsel failed to submit any additional evidence on appeal to establish the qualifying relationship 
and overcome the director's concern. 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 of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). For this reason, the appeal will be dismissed. 
The AAO acknowledges that USCIS previously approved an L-1A nonimmigrant petition filed on 
behalf of the beneficiary, a classification which also requires the petitioner to establish a qualifying 
relationship with the beneficiary's foreign employer. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS approves prior nonimmigrant 1-129 L-1 petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 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. 1103 (E.D.N.Y. 1989). 
Examining the consequences of an approved petition, there is a significant difference between a 
nonimmigrant L-1A visa classification, which allows an alien to enter the United States temporarily, 
and an immigrant E-13 visa petition, which permits an alien to apply for permanent residence in the 
United States and, if granted, ultimately apply for naturalization as a United States citizen. Cf §§ 204 
and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also§ 316 of the Act, 8 U.S.C. § 1427. Because 
USCIS spends less time reviewing 1-129 nonimmigrant petitions than I-140 immigrant petitions, 
(b)(6)
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some nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting , Inc. v. INS, 293 
F. Supp. 2d at 29-30; see also 8 C.F.R. § 214.2(1)(14)(i)(requiring no supporting documentation to 
file a petition to extend an L-1A petition's validity). 
Moreover, in making a determination of statutory eligibility, USCIS is limited to the information 
contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). In the present 
matter, the director reviewed the record of proceeding and concluded that the petitioner had not 
established a qualifying relationship with the foreign employer. In both the request for evidence and 
the final denial, the director clearly articulated the objective statutory and regulatory requirements 
and applied them to the case at hand. If the previous nonimmigrant petition(s) was approved based 
on the same evidence of the qualifying relationship as submitted in this matter, the previous 
approval(s) would constitute gross error on the part of the director. Despite any number of previously 
approved petitions, USCIS does not have any authority to confer an immigration benefit when the 
petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act. 
IV. Conclusion 
The petition will be denied and the appeal dismissed for the above stated 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. Here the petitioner has not met that burden. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.