dismissed EB-1C Case: Freight Forwarding

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-S-(USA) , INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : AUG 5, 2019 
PETITION: FORM I-140 , IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a freight forwarding company, seeks to permanently employ the Beneficiary as its 
president 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 of the Texas Service Center denied the petition, concluding that the Petitioner did not 
respond to a request for evidence (RFE) with documents establishing, as required, that it has a 
qualifying relationship with the Beneficiary's foreign employer and that the Beneficiary was employed 
abroad in a managerial or executive capacity. 
On appeal, the Petitioner disputes the denial and submits additional evidence addressing deficiencies 
that were previously noted in the Director's decision. 
Upon de nova review , we find that the Petitioner has not overcome the grounds for denial. Therefore, 
the appeal will be dismissed. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. 
The Form I-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R . § 204.5(j)(3) . 
Matter of H-S-(USA), Inc. 
II. GROUNDS FOR DENIAL 
As noted above, the Director determined that the Petitioner did not provide requested evidence which 
was necessary to determine whether it had a qualifying relationship with the Beneficiary's foreign 
employer and whether the Beneficiary's job duties abroad were in a managerial or executive capacity. 
A. Qualifying Relationship 
The first issue to be addressed is whether the Petitioner provided sufficient evidence to establish that 
it has a qualifying relationship with I I, the Beneficiary's foreign employer. 
To establish a "qualifying relationship," 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 that 
they are related as a "parent and subsidiary" or as "affiliates." See generally section 203(b )(1 )(C) of 
the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
In the present matter, the Petitioner's initial supporting statement indicates that it is "serving as the US 
subsidiary," thus indicating that the foreign entity owns the majority of its shares. 1 The record does 
not, however, support this claim, as the only supporting evidence consists of a cancelled stock 
certificate from 2006 showing that 10,000 shares had previously been issued to the foreign entity. In 
place of the cancelled stock certificate no. 1, the Petitioner provided stock certificate no. 2 dated 
January 1, 2016, issuing the Beneficiary 300 of a total 100,000 authorized shares. Although the 
Petitioner provided stock certificate nos. 3 and 4, both were undated and left blank, thus indicating 
that neither served as a vehicle for issuing additional shares. 
Although the Director issued an RFE noting that additional evidence was necessary to show the 
complete ownership and control structures of the Petitioner and the Beneficiary's foreign employer, 
the Petitioner did not provide additional evidence regarding this issue and instead stated that there 
were "unexpected delays in Pakistan" that precluded the Petitioner from complying with the Director's 
request. The Petitioner did not discuss or provide evidence of the circumstances that are claimed to 
have caused the "unexpected delays," nor did it further describe the basis for claiming that it has a 
qualifying relationship with the foreign entity. 
Based on the Petitioner's failure to provide the requested evidence, the Director determined that the 
Petitioner did not establish that it has a qualifying relationship with the foreign entity, as claimed. On 
appeal, the Petitioner asserts that the Director "erred in [his] understanding of the documents submitted 
and that the decision is based neither in fact nor in law." Although the Petitioner refers to the 
previously submitted stock certificates and RFE response statement, it does not explain how that 
evidence shows that the Director's decision was based on factual or legal error. 
In fact, the Petitioner does not point to specific errors in the denial and instead asks us to consider 
additional evidence regarding its claimed qualifying relationship with the foreign employer. 
However, when the record shows that a petitioner was put on notice of an evidentiary deficiency and 
was given an opportunity to address that deficiency, we will not accept evidence regarding that 
1 A parent-subsidiary relationship exists when one entity owns the majority of the shares of another entity. 8 C.F.R. 
§ 204.5(j)(2). 
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Matter of H-S-(USA), Inc. 
deficiency when offered for the first time on appeal. See, e.g., Matter of Soriano, 19 I&N Dec. 764 
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Because the Petitioner was put on 
notice of evidentiary deficiencies in the RFE and because it did not respond with the requested 
evidence regarding its claimed qualifying relationship with the foreign entity, we need not and do not 
consider the sufficiency of the evidence submitted on appeal with regard to this issue. 2 
The regulation states that the Petitioner shall submit additional evidence as the Director, in their 
discretion, may deem necessary. The purpose of the request for evidence is to elicit farther information 
that clarifies whether eligibility for the benefit sought has been established, as of the time the petition 
is filed. See, 8 C.F.R. § 103.2(b)(8) and (12). The failure to submit requested evidence that precludes 
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). 
As the Petitioner has not provided evidence that was requested in the RFE, it has not established that 
it has a qualifying relationship with the Beneficiary's foreign employer. 
B. Employment Abroad in a Managerial or Executive Capacity 
Likewise, we find that the Director correctly denied the petition based, in part, on the Petitioner's 
failure to provide requested evidence about the Beneficiary's foreign job duties. In the initial cover 
letter, the Petitioner provided a job description claiming that during his employment abroad the 
Beneficiary had authority over discretionary decision-making and was responsible for business 
investment and development, marketing and sales, accounting and personnel matters, and for 
establishing rules, policies, goals, and financial budgets. 
In the RFE, the Director notified the Petitioner that a determination could not be made as to the 
managerial or executive nature of the Beneficiary's foreign employment based on the broadly stated 
job description. However, the Petitioner's response on this issue was limited to a brief paragraph that 
acknowledged the Director's request and stated that "due to the delays in Pakistan, [it was] unable to 
provide the requested evidence." Despite the Petitioner's submission of new evidence on appeal, the 
RFE effectively gave notice of the evidentiary deficiencies regarding the Beneficiary's employment 
abroad in a managerial or executive capacity. As noted above, the failure to submit requested evidence 
2 The Petitioner submitted a letter from the foreign entity's director stating that the Beneficiary is a shareholder of the 
company and is the sole owner of the petitioning entity. The letter stated that evidence of the foreign entity's ownership 
had not yet become available "due to the bureaucracy in Pakistan." The Petitioner also provided the foreign entity's 2015 
tax return showing that 500,000 shares were authorized of which 100,000 shares were issued. Part B, No. 20 of the tax 
return, which contains a list of the foreign entity's four shareholders, does not name the Beneficiary as a shareholder and 
in fact names...._ ________ _.as owner of 69,990 shares, thereby making her the foreign entity's majority 
shareholder. In order to be deemed affiliates, the Petitioner would need to demonstrate that its ownership scheme fits one 
of two scenarios: (I) the Petitioner and the foreign entity are owned and controlled by the same individual or parent entity; 
or (2) the Petitioner and the foreign entity are two legal entities that are owned and controlled by the same group of 
individuals with each individual owning and controlling approximately the same share or proportion of each entity. See 
8 C.F.R. § 204.5(i)(2). The newly submitted evidence shows thad I rather than the Beneficiary, is the 
foreign entity's majority shareholder. As the previously submitted evidence shows that the Beneficiary is the sole owner 
of the Petitioner's issued stock, it cannot be concluded that the Petitioner and the Beneficiary's foreign employer are 
majority owned by the same person. Therefore, even ifwe were to consider the newly submitted evidence, such evidence 
would not overcome the Director's determination that the Petitioner has not demonstrated that it has a qualifying 
relationship with the foreign entity. 
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Matter of H-S-(USA), Inc. 
that precludes a material line of inquiry shall be grounds for denying the petition. Id. Because the 
Petitioner was put on notice of evidentiary deficiencies in the RFE and because it did not respond with 
the requested information regarding the Beneficiary's foreign employment, we need not and do not 
consider the sufficiency of the evidence submitted on appeal with regard to this issue. See, e.g., 
Soriano, 19 I&N Dec. 764; Obaigbena, 19 I&N Dec. 533. 
III. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. 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. The Petitioner 
has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofH-S-(USA), Inc., ID# 5103955 (AAO Aug. 5, 2019) 
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