dismissed EB-1C Case: Gaming Machine Distribution

MATTER OF U-G-LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 6, 2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a distributor and operator of coin-operated gaming machines, seeks to permanently 
employ the Beneficiary as its sales manager under the first preference immigrant classification for 
multinational executives or managers. 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 
establish, as required, that: (1) it has a qualifying relationship with the Beneficiary's foreign 
employer; and (2) the Beneficiary has been employed by a qualifying entity outside the United 
States in a managerial or executive capacity for at least one year in the three years preceding the 
filing of the petition. 
On appeal, the Petitioner submits additional evidence, and asserts that the Director overlooked 
documentation showing that the Petitioner and the Beneficiary's foreign employer have a qualifying 
relationship based on common ownership and control by the same three individuals. 
Upon de nova review, we will dismiss the appeal. 
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)(l)(C) of the Act. 
The Form 1-140, 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. § 204.50)(3). 
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Matter of U-G- LLC 
II. QUALIFYING RELATIONSHIP 
The first issue to be addressed is whether the Petitioner established that it has a qualifying 
relationship with the Beneficiary's foreign employer, ____________ , located in 
India. 
To establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (a U.S. entity with a foreign 
office) or related as a "parent and subsidiary" or as "affiliates." See § 203(b )(1 )(C) of the Act; see 
also 8 C.F.R. § 204.50)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
"Affiliate" means one of two subsidiaries both of which are owned and controlled by the same parent or 
individual; or, 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. 8 C.F.R. 
§ 204.50)(2). 
At the time of filing, the Petitioner stated that both it and the foreign entity are owned by the same 
three individuals in identical percentages, as follows: 
• 
• 
• 
The record contains sufficient evidence to corroborate this ownership structure for the petitioning 
company. However, the initial evidence included an Independent Auditor's Report of the foreign 
entity's financial statements for the year ended March 31, 2014, which provided the following list of 
"shareholders holding more than 5%" of shares: 
• 
• 
• 
• 
In response to the Director's request for evidence (RFE) for a complete list of the foreign entity's 
shareholders, the Petitioner provided additional documentation indicating that the foreign entity has 
a total of 11 shareholders . 
The Director determined that the ownership structure documented in the record is not consistent with 
the statutory definition of "affiliate" as the Petitioner and foreign entity are not owned and controlled 
by the same individual, or by the same group of individuals with each individual owning and 
controlling approximately the same share or proportion of each entity.1 
1 The Director also detennined that the Petitioner did not establish a parent-subsidiary relationship between the two 
entities . We note that the Petitioner consistently claimed to have an affiliate relationship with the foreign entity. 
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Matter of U-G- LLC 
On appeal, the Petitioner asserts that the Director "overlooked the fact that common ownership and 
control exists" between the two entities and asserts that there may have been some confusion 
because one of the shareholder's names appears as ___ on some documents and as 
on others. The Petitioner further states: 
Majority ownership is identical in both companies[;] clearly the three owners that 
own the U.S. entity also own and control 72.5% of the foreign entity. Additionally it 
is the intent of the three members of [the Petitioner] to act or vote in concert as 
evidenced by the language in the operating agreement. Paragraph 19, Authority to 
bind the Company states "[a] majority of the members may bind the Company .... " 
The Petitioner also claims that the situation in this case is "synonymous to" Matter of Tessel, Inc. 17 
I&N Dec. 631 (Acting Assoc. Comm'r 1981), in which an affiliate relationship was found where the 
same individual owned a majority interest in both the petitioner and a foreign entity. 
The Petitioner's assertions are not persuasive. We agree with the Director's conclusion that the 
Petitioner did not establish that it has a qualifying affiliate relationship with the foreign entity. 
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. See, e.g., Matter of Church Scientology Int 'l, 19 I&N Dec. 593 (Comm'r 1988); Matter of 
Siemens Med Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 l&N Dec. 289 
(Comm'r 1982). 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 Int 'l, 19 I&N Dec. at 595. 
The Petitioner cites Matter of Tessel on appeal, stating that the Commissioner determined that 
common majority stock ownership in both companies is sufficient for the purposes of establishing a 
qualifying relationship. In the Tessel decision, the beneficiary solely owned 93% of the foreign 
entity and 60% of the petitioner establishing a "high percentage of common ownership and common 
management." The decision further stated that "[w]here there is a high percentage of ownership and 
common management between two companies, either directly or indirectly or through a third entity, 
those companies are 'affiliated' within the meaning of that term as used in section 101(a)(15)(L) of 
the Act." Id. at 633. However, the facts here can be distinguished from Tessel as no one shareholder 
holds a majority interest in either entity. 
Further, Tessel predates the applicable regulatory definition of "affiliate" found at 8 C.F.R: 
§ 204.5(j)(2). That definition requires that, for an affiliate relationship to be established based on 
ownership by a "group of individuals," the common ownership and control must be by the "same 
group," with each individual holding approximately the same share or proportion in each entity. 
Nevertheless, we agree with the Director's conclusion that neither company is a subsidiary of the other based on the 
definition of"subsidiary" at 8 C.F.R. § 204.50)(2). 
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Matter of U-G- LLC 
The Petitioner must establish that it and the foreign employer 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'r 1982). 
In this case, the Petitioner is owned by three individual shareholders and the Beneficiary's foreign 
employer is owned by eleven individual shareholders. Therefore, the two companies are not owned 
by the "same group of individuals." We cannot accept 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. 
On appeal, the Petitioner asserts that "it is the intent of the three members of [the Petitioner] to act or 
vote in concert" and contends that its operating agreement provides evidence of this intent. 
However, the operating agreement provides that "a majority of the members may bind the 
company," which, in effect, means that any two of the Petitioner's three owners can bind the 
company if they both vote for a particular action. This provision does not provide evidence of the 
three members' intent to act or vote in concert with respect to the Petitioner's affairs, and there is no 
mention of how these same three individuals would control the foreign entity in the absence of 
proxies or voting agreements. 
Finally, we note that the Petitioner did not explain why it initially claimed that the foreign entity had 
only three owners and shared 100% ownership with the petitioning entity when the submitted 
evidence shows that this was never the case. 
For these reasons, the Petitioner has not established that the same group of individuals own and 
control both entities. Thus, the companies are not affiliates as they are not owned and controlled by 
the same parent, individual, or group of individuals. The Petitioner has not established that it has a 
qualifying relationship with the Beneficiary's foreign employer. 
III. ONE YEAR OF EMPLOYMENT ABROAD 
The remaining issue in this matter is whether the Petitioner established that the Beneficiary has been 
employed by a qualifying entity outside the United States in a managerial or executive capacity for 
at least one year in the three years immediately preceding the filing of the petition. 8 C.F .R. 
§ 204.5G)(3)(i)(A). 
The Petitioner filed the Form I-140 on July 14, 2014. The foreign entity was established in India on 
or about March I, 2013. Therefore, the Petitioner must show that the foreign entity employed the 
Beneficiary outside the United States for at least one year between March 2013 and July 2014. 
The Petitioner initially stated that the Beneficiary worked for the foreign entity in a managerial 
capacity "from the inception in 2013," but indicated in response to the RFE that his employment 
commenced in April 2013. The Petitioner provided a record of the Beneficiary's salary with the 
foreign entity for the period April 2013 through March 2014. 
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Matter of U-G- LLC 
However, the Beneficiary entered the United States as a B2 nonimmigrant visitor on February 5, 
2014, and did not depart prior to the filing of the petition in July 2014. The Beneficiary's one year 
of qualifying employment abroad must be accrued outside the United States. Even if he continued to 
work for the foreign entity after entering the United States, he cannot count any time after February 
4, 2014, towards that one year of employment abroad. Accordingly, the record shows that the 
Beneficiary's was employed abroad from April 2013 until February 2014, and he cannot meet the 
one year of foreign employment requirement. 
In response to the RFE, the Petitioner stated that the Beneficiary departed the United States on 
October 21, 2014, to attend to business abroad and did not re-enter until February 21, 2015, when he 
was paroled in based on his pending application to adjust to permanent residence status. It appears 
that the Petitioner is suggesting that this period of four months should be added to the approximately 
10 months of employment abroad he accrued in the three years preceding the filing of the petition. 
However, the Petitioner must establish that all eligibility requirements for the immigration benefit 
have been satisfied from the time of the filing and continuing through adjudication. 8 C.F .R. 
§ 103 .2(b )( 1 ). The Petitioner never claimed that the Beneficiary had a full year of employment 
outside the United States prior to the filing of this petition. On appeal, the Petitioner does not 
address the Director's adverse determination on this issue. 
For the reasons discussed, the Petitioner did not establish that the Beneficiary was employed outside 
the United States in a managerial or executive capacity for at least one year in the three years 
immediately preceding the filing of this petition. Further, as discussed above, the record does not 
establish that his foreign employer is a qualifying entity. 
IV. CONCLUSION 
The appeal must be dismissed as the Petitioner has not demonstrated that it has a qualifying 
relationship with the Beneficiary's foreign employer, or that the Beneficiary worked for a qualifying 
employer abroad for at least one year in the three years preceding the filing of the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of U-G- LLC, ID# 1571544 (AAO Sept. 6, 2018) 
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