dismissed EB-1C Case: Gaming Systems

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U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
qffice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
LIN 07 106 51744 
Date: 
DCT 0 5 2009 
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: 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 3 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider, as required by 8 C.F.R. 103.5(a)(l)(i). 
%* Perry Rhew 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a limited liability company organized in the State of Delaware. It seeks to employ 
the beneficiary as its director of regulator compliance. 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. tj 1153(b)(l)(C), as a multinational executive or 
manager. The director denied the petition based on the determination that the petitioner failed to 
establish that it had a qualifying relationship with the beneficiary's foreign employer at the time of 
filing the Form 1-140. 
On appeal, counsel disputes the denial, arguing that the director misinterpreted a business transaction 
which transferred economic interests associated with the petitioner's common stock to a third party. 
Counsel points out that the voting rights with regard to management of the petitioner remain with the 
original voting subsidiary entities. 
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 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. 8 204.5(j)(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. 
Subsidiary 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. 
The primary issue in this proceeding is whether the petitioner has a qualifying relationship with the 
beneficiary's foreign employer. In a decision dated September 1 1, 2008, the director concluded that 
the requisite qualifying relationship did not exist at the time of filing, basing his finding primarily on 
the parent entity's March 2006 sale of Western Bingo Supplies, Inc. and Video King Gaming 
Systems, Inc., its two wholly-owned direct subsidiaries, which together maintained a 50% ownership 
interest in the petitioning entity. The director seemingly found that a successor-in-interest scenario 
was created wherein the parent entity, i.e., BK Entertainment, Inc. (BKE), sold its interests in the 
two wholly-owned subsidiary entities that served as the common link in the ownership and control 
of the beneficiary's U.S. and foreign employers. The director concluded that "such a scenario does 
not lead to a positive finding of a qualifying relationship."' 
While the AAO concurs with the director's overall finding with regard to the petitioner's failure to 
establish the existence of the requisite qualifying relationship at the time of filing, the underlying 
analysis that served as the basis for the finding is inherently flawed. First, the director erred in 
concluding that a successor-in-interest scheme would preclude the existence of a qualifying 
relationship. A successor-in-interest is a party that obtains and continues to retain the same rights as 
those of the original ownership. See Black's Law Dictionary 998 (Abridged 6th Ed., West 1991). 
The conveyance of ownership by BKE to another entity would not disturb the previously established 
ownership scheme among BKE's subsidiaries. More specifically, BKE's indirect ownership of the 
petitioner and the beneficiary's foreign employer passes directly to the purchaser of BKE's 
ownership interests. In the present matter, the record contains a purchase agreement dated March 
13, 2006 showing Contrarian Funds, LLC's intent to purchase all the outstanding shares of BKE's 
two wholly-owned subsidiaries. Such a purchase would indirectly bestow upon Contrarian Funds all 
of the ownership and control interests previously held by BKE, regardless of the separate terms 
aiming to preclude Contrarian Funds from being able to control the management of the petitioning 
entity. Execution of the purchase agreement would make Contrarian Funds BKE's successor-in- 
interest with the same indirect ownership of the beneficiary's foreign and U.S. employers. Contrary 
to the director's finding, BKE's sale of its ownership interests to Contrarian Funds would not sever a 
previously established qualifying relationship, assuming the qualifying relationship had in fact been 
1 
 See page 3, paragraph one of the director's September 11,2008 decision. 
established. Counsel's argument that control over the U.S. entity did not pass to Contrarian Funds is 
therefore irrelevant, as the director's underlying reasoning that counsel's argument is meant to 
address is inherently flawed. 
Notwithstanding the AAO's finding above, 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 (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 
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, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. Additionally, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting actual control of the entity. See Matter 
of Siemens Medical Systems, Inc., 19 I&N Dec. 362. 
 Without full disclosure of all relevant 
documents, USCIS is unable to determine the elements of ownership and control. 
In the present matter, the AAO cannot make a determination as to the common ownership and 
control, as the record lacks sufficient evidence establishing who owns and controls the petitioning 
entity. The record shows that when the petitioner was initially formed, 80% of its stock was issued 
to Video King Gaming Systems, Inc. (VKGS) and the remaining 20% was issued to Western Bingo 
Supplies, Inc. (WBS), both entities being wholly-owned subsidiaries of BKE. According to 
statements offered in the support letter dated February 26; 2007, BKE subsequently sold 50% of the 
petitioner's stock to Nogales Investor VK Holding, Inc. (Nogales), leaving VKGS with 40% and 
WBS with 10% of the petitioner's stock. In support of this claim, the petitioner provided the 
following documentation: 
1. 
 A document entitled "Contribution Agreement" dated January 28, 2005. 
 The 
agreement indicated that the petitioner planned to issue 3,600 shares of its common 
stock to VKGS and 900 shares of its common stock to WBS. 
2. 
 Certificate Ns. 1 and 2 showing the petitioner's issue of 3,600 and 900 shares, 
respectively to VKGS and WBS on January 28,2005. 
3. 
 A document entitled "Amended and Restated Note Purchase Agreement" dated 
January 28, 2005. The agreement indicates that Nogales' bridge loan to the 
petitioner in the amount of $8 million would automatically convert into 4500 shares 
of Series A Convertible Preferred Stock, representing 50% of the petitioner's 
outstanding shares of capital stock. 
4. 
 Certificate No. 3 showing the petitioner's issue of 4,500 shares of Class A Preferred 
SharesIUnits. The certificate is dated November 1, 2005. 
Although the petitioner claims that Nogales owns 50% of the petitioner's stock while VKGS owns 
40% and WBS owns lo%, the above documents are insufficient to support the petitioner's claim. 
The petitioner has provided no stock ledger or minutes of meeting to establish the number of 
outstanding shares offered. Therefore, it is unclear whether anyone other than the three entities 
discussed herein have ownership interest in the petitioning entity. The petitioner also fails to provide 
documentation establishing the difference, if any, between Nogales's Class A Preferred shares and 
the common stock issued to VKGS and WBS with regard to the ownership and control of the 
company. While Article VII, section 3 of the petitioner's bylaws states that if one or more class of 
stock is issued, the special rights, limitations and/or restrictions of the particular stock of class "shall 
be set in full or summarized on the face or back of the certificate which the company shall issue to 
represent such class or series of stock." In the present matter, the petitioner failed to issue or failed 
to provide stock certificates that are in compliance with its own bylaws. While the petitioner clearly 
issued a different class of stock to Nogales than it did to VKGS and WBS, respectively, it failed to 
specify any special rights, limitations, and/or restrictions that distinguish Nogales's Preferred Class 
A stock from the common stock issued to the other two entities. There is also no explanation for the 
lag time between the January 28,2005 agreement discussing the issuance of 4,500 shares of stock to 
Nogales and November 1, 2005 when the stock was ultimately issued. In light of these ambiguities, 
the AAO cannot establish who owns and controls the petitioner. Without this highly relevant 
information, the AAO cannot conclude that the beneficiary's U.S. and foreign employers share 
common ownership and control, which are the requisite elements of a qualifying relationship. For 
this reason the petition cannot be approved. 
Furthermore, the record does not support a finding of eligibility based on additional grounds that 
were not previously addressed in the director's decision. Specifically, 8 C.F.R. 5 204.56)(3)(i)(B) 
states that the petitioner must establish that the beneficiary was employed abroad in a qualifying 
managerial or executive position for at least one out of the three years prior to his entry to the United 
States as a nonimmigrant to work for the same employer. Additionally, 8 C.F.R. 5 204.56)(5) 
requires that the petitioner establish that the beneficiary's proposed employment would be within a 
qualifying managerial or executive capacity. 
In response to the June 26, 2008 request for evidence, the petitioner provided a percentage 
breakdown used to describe the beneficiary's job duties and responsibilities in his foreign and U.S. 
positions. However, both lists contain job duties that are indicative of operational tasks, including 
consulting with regulatory and legislative bodies regarding gaming operations and equipment and 
advising third parties on issues concerning product development. Based on the percentage 
breakdown of the beneficiary's foreign employment, it appears that the beneficiary spent 
approximately 30% of his time executing his consulting and advising duties and another 20% of his 
time explaining product features by creating workshops and seminars and attending trade shows. 
Based on the percentage breakdown of the beneficiary's proposed employment, it appears that the 
beneficiary would spend 26% consulting and advising senior management and jurisdictional 
Page 6 
regulatory bodies; 10% creating a means to monitor sales orders and delivery mechanisms for 
gaming software; a total of 8% representing the gaming industry at workshops, seminars, and trade 
shows; 5% researching jurisdictional regulatory requirements; and another 5% on customer relations 
issues. Thus, at least 50% of the beneficiary's time abroad and at least 54% of his time in the 
proposed position has been and would be attributed to job duties that cannot be deemed managerial 
or executive. It is noted that an employee who "primarily" performs the tasks necessary to produce a 
product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" 
perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
International, 19 I&N Dec. 593,604 (Comm. 1988). 
In summary, the petitioner has failed to establish that the beneficiary's employment abroad and his 
proposed employment in the United States has been and would be comprised primarily of managerial or 
executive level tasks. As such, the AAO cannot conclude that the beneficiary has been and would be 
employed in a qualifjmg capacity. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 
1989)(noting that the AAO reviews appeals on a de novo basis). Therefore, based on the additional 
grounds of ineligibility discussed above, this petition cannot be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a 
challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, afd, 
345 F.3d 683. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 5 1361. The 
petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.