dismissed EB-1C Case: Hydraulic Equipment

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUNE 30, 2023 In Re: 27518685 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, which sells and services parts for hydraulic equipment, seeks to permanently employ 
the Beneficiary as its vice 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. § l 153(b)(l)(C). This classification allows a U.S. employer to permanently 
transfer a qualified foreign employee to the United States to work in a managerial or executive 
capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that (1) the Petitioner has a qualifying relationship with the Beneficiary's foreign employer, 
and (2) the Beneficiary has been employed abroad in a managerial or executive capacity . The matter 
is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
On appeal, the Petitioner submits a brief , copies ofpreviously submitted materials, and new documents 
relating to the company's recent performance. This new evidence does not address the stated grounds 
for denial, and therefore is not material to the outcome of our appellate decision . 
I. LAW 
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. § 204.5(i)(3). 
IL ANALYSIS 
A. Qualifying Relationship 
The Director denied the petition based, in part, on a finding that the Petitioner did not establish that it 
has a qualifying 
relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, 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 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(i)(3)(i)(C). 
The regulation and case law confirm that ownership and control are the factors that dete1mine whether 
a qualifying relationship exists between United States and foreign entities for purposes of this visa 
classification. 1 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. 2 
The Petitioner indicates that the Beneficiary began working for.______________ __.
I I, in Nicaragua in 2016, and in 2019 he began working for the Petitioner as an L-lA 
nonimmigrant. 
I I articles of association from Februaiy 2016 indicate that the Beneficiary's father, who is also 
general manager ofc=] owned 60 shares of the company; the Beneficiary owned 39; and a third 
individual owned the one remaining share, later transfened to the Beneficiaiy in 2017. Meeting 
minutes from November 2018 state that another individual, identified elsewhere as president and chief 
executive officer (CEO) of the petitioning U.S. company, "will enter as a new partner." The document 
does not indicate that the Petitioner's president/CEO holds any ownership interest inc=] 
The Petitioner's 2018 limited liability company (LLC) agreement identifies three members (owners): 
the Beneficiary, his father, and the president and CEO of the petitioning entity. The agreement states 
that each "Member's Percentage Interest" is "listed on Exhibit A," but the submitted copy of the LLC 
agreement does not include Exhibit A. The Petitioner's undated business plan indicates that the 
Beneficiary's father owns 51 % of the LLC; the president/CEO owns 30%; and the Beneficiary owns 
the remaining 19%, but the business plan is not an instrument of ownership. 
The Petitioner's 2020 income tax return, filed in November 2021, almost three years after the date of 
its LLC agreement, repeatedly and consistently identifies the company's president/CEO as the only 
1 See Matter o(Church Scientology Int 'l, 19 I&N Dec. 593 (BIA 1988); see also Matter ofSiemens Med. Sys., Inc., 19 I&N 
Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289 (Comm'r 1982). 
2 Matter o( Church Scientology Int 'l, 19 I&N Dec. at 595. 
2 
member of the LLC. Form 1125-E, Compensation of Officers, indicates that the president/CEO owns 
"I 00%" of the petitioning U.S. company. Schedule K-1 indicates that the president/CEO received 
100% of the "current year allocation percentage" and held all shares in the company, both at the 
beginning and at the end of the year. 
Therefore, on their face, the most recent submitted documents from the two entities do not show the 
common ownership necessary to establish a qualifying relationship between the two companies. 
Citing "conflicting material evidence regarding the ownership structure of the two companies," the 
Director requested "independent and objective evidence" to establish the ownership and control of 
both companies. In response, the Petitioner submitted copies of previously submitted documents; a 
translated document describing a transfer of one share of SHE from a third member to the Beneficiary 
in 2017; and copies of the Petitioner's income tax returns for 2019 to 2021, with Schedules K-1 and 
Fonns 1125-E consistently stating that the president/CEO is the sole owner of the U.S. company. 
The Petitioner's president/CEO referred to the Director's "inquiry ofK-1 distribution," stating that he 
received 100% of "the company's profit distribution" "in 2021, 2020, [and] 2019 ... due to [the 
Beneficiary and his father] primarily residing in Nicaragua." 
The Director denied the petition, based in part on the determination that the Petitioner had not 
submitted persuasive documentary evidence to show a qualifying relationship between the two 
entities. On appeal, the Petitioner asserts that the grounds for denial are "baseless," and repeats the 
assertion that, as the only U.S. resident member of the LLC, only the president/CEO was eligible to 
receive "the distribution of income, dividends, and loss made by the U.S. company." The Petitioner 
also asserts: "Tax law does not prohibit any LLC to comply with tax obligation in the way the partners 
of the U.S. company did." 
But the Director did not take issue with the distribution of income as reported on the tax returns. For 
all the reported tax years, Schedule K-1 provides separate entries for profit distribution and 
"[s]hareholder's number of shares." As noted above, Form 1125-E on each of the tax returns also 
specifies that the president/CEO owns "100%" of the company; that form does not concern "the 
distribution of income, dividends, and loss." 
The Petitioner submits a statement from an accountant, stating: "the company has always had 3 
partners .... The omission of information was due to the fact that the capability and guidance of the 
person in charge of preparing and sending the company's tax returns was trusted." The Petitioner did 
not submit a corroborating statement from the preparer of previous years' tax returns. 
Also, the Petitioner filed its 2019-2021 tax returns on IRS Form 1120-S, U.S. Income Tax Return for 
an S Corporation. An LLC's membership is directly material to a company's eligibility for taxation 
as an S corporation. An LLC that elects to be taxed as an S corporation cannot have "non-resident 
alien shareholders." See S Corporations, https://www.irs.gov/businesses/small-businesses-self­
employed/s-corporations, and LLC Filing as a Corporation or Partnership, https://www.irs.gov/ 
businesses/small-businesses-self-employed/Uc-filing-as-a-corporation-or-partnership. The record 
does not indicate that the Beneficiary's father, said to own a controlling membership interest in the 
petitioning entity, resided in the United States during those years. 
3 
The burden of proof is on the Petitioner to establish, by a preponderance of evidence, that it meets all 
eligibility requirements, including a qualifying relationship with the Beneficiary's foreign employer. 
Before the denial of the petition, the Petitioner indicated on three consecutive income tax returns that 
its president/CEO is the company's sole owner, and those tax returns were filed on forms that cannot 
properly be used by foreign-owned companies. 
The appeal includes a copy of the Petitioner's 2022 tax return, with Schedules K-1 reflecting a 51-19-
30 division of "allocation percentage," which concerns financial distributions rather than ownership 
or membership. The lines marked "Shareholder's number of shares" are blank. The 2022 return does 
not include Form 1125-E. This return does not identify the owner(s) of the petitioning entity and does 
not materially affect the outcome of our decision. Like the earlier returns, the 2022 return is on Fonn 
1120-S, indicating that the Petitioner elected to be treated as an S corporation with no nonresident 
alien shareholders or members. 
The Petitioner's business plan is not first-hand evidence of what it describes as a 51-19-30 membership 
interest split between the Beneficiary's father, the Beneficiary, and the president/CEO. The LLC 
agreement names those three individuals as members, but, as noted before, the Petitioner did not 
submit "Exhibit A" of the LLC agreement, which would have shown the percentages of each member's 
interest and any subsequent changes in membership that might have occurred after the agreement was 
drafted in December 2018. 
The Petitioner has submitted conflicting information regarding its ownership, and has not resolved 
this inconsistency in the record with independent, objective evidence pointing to where the truth lies. 
See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Therefore, we conclude that the Petitioner 
has not met its burden ofproof with regard to its claimed qualifying relationship with the Beneficiary's 
employer abroad. 
B. Employment Abroad in a Managerial or Executive Capacity 
The Director determined that the Petitioner did not establish that the Beneficiary has been employed 
abroad in a managerial or executive capacity. The Petitioner asserts that the Beneficiary's position 
abroad was an executive capacity, and therefore we will not consider the separate requirements for a 
managerial capacity. 3 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function of the organization; 
establishes the goals and policies of the organization, component, or function; exercises wide latitude 
in discretionary decision-making; and receives only general supervision or direction from higher-level 
executives, the board of directors, or stockholders of the organization. Section 101 (a)( 44 )(B) of the 
Act, 8 U.S.C. § 1101(a)(44)(B). 
3 On appeal, the Petitioner contends: "In foreign countries, executives of a company always have managerial capacity." 
The Petitioner cites no support for this assertion. For the purposes of the immigrant classification sought, there are separate 
and distinct statutory definitions of"executive capacity" and "managerial capacity" which are binding in this proceeding. 
4 
If a petitioner establishes that the offered position meets all four elements set forth in the statutory 
definition, the petitioner must then prove that the beneficiary was primarily engaged in executive 
duties, as opposed to ordinary operational activities. See Family Inc. v. USCIS, 469 F .3d 1313, 1316 
(9th Cir. 2006). In determining whether the beneficiary's duties were primarily executive, we consider 
the description of the job duties, the company's organizational structure, the duties of the beneficiary's 
subordinate employees, the presence of other employees to relieve the beneficiary from performing 
operational duties, the nature of the business, and any other factors that will contribute to 
understanding the beneficiary's actual duties and role in the business. 
The general manager of c=] stated in a translated letter that the Beneficiary worked for the foreign 
company "since June 2016 ... , performing the position of Administrative Executive." The letter 
provides no further details. In another letter, however, the same official stated that the Beneficiary 
"works in the executive position of Vice Manager," with the following duties: 
Representing the General Manager during his absence [and] having control, knowledge 
and coordination with the different areas described below: 
• Establishing procedures and functions manual. 
• Ensuring ... compliance with company rules and policies. 
• Controlling the proper use of company resources and funds. 
• Planning and coordinating of productive and effective strategies. 
• Creating sales plan and route assignment. 
• Managing cash flow. 
• Reviewing and approving the compensation f01m and payroll. 
• Approving Payment to Suppliers. 
The Petitioner's business plan states that the Beneficiary "continues to serve as ~I--~I Manager in 
charge of the company administration and products importation," while also "overseeing [the 
Petitioner's] Company operations and administration." 
In response to the Director's request for more details about the Beneficiary's employment abroad, the 
Petitioner submitted a new letter fromD stating: 
The daily responsibilities as VP [vice president]/Operations Manager include, but are 
not limited to, the management of manufacturing and repair services. In this role, [the 
Beneficiary] had sole respon[ si]bility of ensuring all aspects of sales, dispatch, 
manufacturing, purchasing, human resources, and management of client relationships. 
In addition, [the Beneficiary] was solely responsible for training and developing the 
employees within his direct supervision, as well as, the weekly/monthly financial 
reports regarding budgeting or assets. 
The Petitioner also submitted copies of payroll records identifying the Beneficiary as "administrative 
manager" in 2018 and "vice president" in 2020 and 2021. The Petitioner did not submit payroll records 
from other years. 
5 
In the denial notice, the Director noted that the letters describing the Beneficiary's position abroad 
contain inconsistent titles, "roles and responsibilities." On appeal, the Petitioner contends: "Different 
synonyms are used for the beneficiary's role because of his multi-functions in the direction and general 
supervision of the company." Of greater consequence than the changing job titles are the inconsistent 
job descriptions. 
Specifics are clearly an impo1iant indication of whether a beneficiary's duties are primarily executive 
or managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 
41 (2d. Cir. 1990). 
The submitted job descriptions for the Beneficiary show significant differences, rather than slight 
variations on the same basic set of duties. The second letter from~ emphasized "manufacturing 
and repair services," which were not mentioned in the earlier letter. The business plan provides few 
details about the Beneficiary's position except to state that he was "in charge of the company 
administration and products importation," but the letters from ~ do not refer to "products 
importation." These inconsistencies reduce the probative value of the submitted statements. See 
Matter ofHo, 19 I&N Dec. at 591-2. 
Furthermore, the organizational chart for SHE listed the employees said to have been under the 
Beneficiary's authority abroad: two sales staff, a receptionist, a driver, an inventory worker, and six 
shop technicians. The Petitioner did not provide further details to describe, or evidence to establish, 
the nature and extent of the Beneficiary's authority over the listed subordinates and show how the 
subordinates' work supported the Beneficiary's position. 
First-line supervision of non-professional staff is not an executive responsibility. Section 
l 0l(a)(44)(B) of the Act requires an executive to primarily direct the management of the organization 
or a major component or function of the organization. The Petitioner did not establish that any of the 
listed subordinate employees constituted the management of the organization or one of its major 
components or functions. See BlueStar Cabinets, Inc. v. Jaddou, No. 21-10116, 2022 WL 4364734, 
at *7 (5th Cir. Sept. 21, 2022) (holding that "'[d]irect[ing] the management of the organization' 
necessarily includes directing managers of the organization.") 
Given the deficiencies and inconsistencies described above, we conclude that the Petitioner has not 
met its burden ofproof to establish that the Beneficiaty was employed abroad in an executive capacity. 
III. CONCLUSION 
The Petitioner has not met its burden of proof to establish a qualifying relationship with the employer 
abroad, and to show that the Beneficiary's position abroad met the requirements of a primarily 
managerial or executive capacity. We will dismiss the appeal will be dismissed for the above stated 
reasons, with each considered an independent and alternative basis for the decision. 
ORDER: The appeal is dismissed. 
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