dismissed EB-1C Case: Hospitality Management

~Gentifying data deleted to ~ 
prevent clearly unwarr~ntec~ 
~rlvasion of personal privacy 
PUBUCCO~ 
DATE: 
FEB 0 9 2012 
INRE: Petitioner: 
Beneficiary: 
V.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 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas 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 that was organized in the State of New York. It seeks to employ 
the beneficiary as its branch manager. Accordingly, the petitioner endeavors to classify the beneficiary as an 
employment-based immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § I 153(b)(1)(C), as a multinational executive or manager. 
The director determined that the petitioner failed to establish that it has a qualifying relationship with the 
beneficiary's foreign employer and found the petitioner ineligible on the basis of this finding. 
On appeal, counsel disputes the director's conclusion and submits a brief statement along with supplemental 
documents in an effort to overcome the basis for denial. 
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. 
A United States employer may file a petition on Form 1-140 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 performed by the alien. 
The primary issue in this proceeding is whether the petitioner has a qualifying relationship with the entity that 
employed the beneficiary abroad. 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 that the two entities are 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"). 
Page 3 
The regulation at 8 C.F.R. § 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. 
In the present matter, the record shows that the petitioner did not provide a supporting statement explaining 
the nature of its relationship with the benefIciary'S foreign employer. Accordingly, on November 19, 2009, 
the director issued a request for evidence (RFE) instructing the petitioner to provide, in part, evidence 
establishing a corporate interrelationship between the United States entity that seeks to employ the benefIciary 
and the foreign business entity where the benefIciary was previously employed. The petitioner was asked to 
provide evidence documenting the exchange of money or other consideration associated the issuance of stock 
as well as documentation establishing who owns controlling interest ofthe petitioning entity. 
In response, the petitioner provided a statement dated December 14, 2009 in which ••• 
the benefIciary's foreign employer, was named as the parent of the U.S. entity. The petitioner also nrrn""Pfl 
(1) its 2008 federal tax return with Schedule K-l attachments, which indicated that 
each owned 15% of the petitioning entity and that •••• i 
Oh()tO(;OOled membership certifIcate issued by the petitioner on July I, 
as a member and the foreign entity's memorandum of association. 
In a decision dated January 20, 2010 the director denied the petition concluding that the evidence of record 
does not establish that the benefIciary'S foreign employer, is parent to the petitioning 
~ director pointed to the information contained within the petitioner's 2008 tax return which named 
_ as majority owner of the petitioning entity and determined that this evidence was not consistent 
with the petitioner's claim that the benefIciary'S foreign employer is the parent entity. 
On appeal, counsel refers to the benefIciary'S foreign employer as the petitioner's parent entity and asserts 
that the "parent entity" has a 36% ownership interest. Counsel asserts that the foreign entity controls the 
petitioner as "no decision can be made in the U.S. entity without the directive of the parent entity in India." 
Page 4 
In a separate statement dated March 16, 2010, president of the petitioning entity, referred 
to the petitioner's 2009 tax return in which Schedule K-l shows that the petitioner's ownership is broken 
down as follows: with a 36% interest, with a 15% interest, and 
_ with a 49% interest. further stated that 'controls the 
operations of all the branches" and noted that the foreign entity, whom_ represents, instructs the 
petitioner in its daily operations. 
After reviewing the submitted statements and objective documentation, the AAO finds that the petitioner has 
failed to overcome the director's adverse determination. 
In determining whether a qualifying relationship exists between United States and foreign entItIes for 
purposes of this visa classification the regulation and case law confrrm that ownership and control are the 
factors that must be examined. 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 (Assoc. Comm. 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. 
In the present matter, the record indicates that in 2008, the year the Form 1-140 was filed, the petitioner was 
majority owned by _, not by the beneficiary's foreign employer, as the 
petitioner has claimed. In based on the 2008 ownership breakdown as contained in Schedule K-l of the 
petitioner's 2008 tax return, had no ownership interest in the petitioning entity at all. 
Although the petitioner provided a photocopied membership certificate from July 1, 2005 naming Hotel 
as a member of the petitioning entity, there is no indication as to the number of membership 
units owned, nor is there any evidence to suggest that maintained an ownership 
interest in the petitioning entity as of December 2,2008 when the petition was filed. At best, the membership 
certificate shows that some time prior to the filing of the petitioner's 2008 tax return 
may have had an undisclosed ownership interest in the petitioning entity. However, no evidence has been 
submitted to establish that maintained an ownership interest or that the ownership 
interest it had was sufficient to deem that entity the petitioner's parent based on the regulatory definition 
provided above. 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. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Even if ownership interests had shifted, as is indicated in the petitioner's 2009 tax return, there is no 
indication that it occurred prior to the Form 1-140 filing and thus would not be relevant for the purpose of 
determining eligibility, which must be established at the time of filing and cannot be based on events that had 
not occurred or facts that were not in existence when the Form 1-140 was filed. See Matter of Katigbak, 14 
I&N Dec. 45, 49 (Comm. 1971). Despite any statements claiming that the foreign entity in fact controls the 
operations of the petitioner, the evidence of record does not support this claim. As noted above, claims 
without supporting evidence are not sufficient for the purpose of establishing the petitioner's eligibility. As 
the petitioner did not provide evidence to corroborate the claim that the foreign entity owned and controlled 
the petitioner at the time the petition was filed, the AAO cannot conclude that the requisite qualifying 
relationship existed. On the basis of the conclusion, the instant petition cannot be approved. 
-Page 5 
Additionally, while not addressed in the director's denial, the AAO finds that the job descriptions pertaining to 
the beneficiary's foreign and proposed employment fail to establish that the beneficiary was either employed 
abroad in a managerial or executive capacity or that he would be employed in the United States in a qualifying 
managerial or executive 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), afj'd, 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). Therefore, based on the two additional grounds of ineligibility discussed above, 
this petition cannot be approved. 
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. § 1361. The petitioner has not 
sustained that burden. 
ORDER: The appeal is dismissed.