dismissed EB-1C Case: Industrial Control Equipment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-1-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 7, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, which distributes and tests industrial control equipment, seeks to permanently employ 
the Beneficiary as a technical manager 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer. 
On appeal, the Petitioner states that the Director misinterpreted the definition of "branch'. and did 
not consider evidence of the Petitioner's business activity abroad. The Petitioner also states that it 
will submit a brief, evidence, or both, within 30 days. More than five months later, the record 
contains no further supplement to the appeal. Therefore, we consider the record to be complete as it 
now stands. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa 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. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. This 
classification does not require a labor certification. 
The petition 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 
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Matter of P-1-, Inc. 
executive capacity for at least one year in the three years preceding the tiling of the petition, that the 
beneficiary is coming to work in the United States for the same employer or a subsidiary or atliliate of 
the foreign employer, and that the prospective U.S. employer has been doing business tor at least one 
year. See 8 C.F.R. § 204.5(j)(3). 
II. QUALIFYING RELATIONSHIP 
The Director found that the Petitioner did not establish that it has a qualifying relationship with the 
Beneficiary's foreign employer. Specifically, the Director found that the Petitioner had not 
established that it has a branch office in Oman that employed the Beneficiary prior to his 2013 entry 
into the United States as a nonimmigrant. 
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 "atliliates." See 
generally section 203(b)(l)(C) ofthe Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The Petitioner, a California corporation, stated that the Beneficiary was manager of its branch in 
Oman from 2007 to 2013. Regarding that branch, the Petitioner stated that it "opened a branch 
office in Oman" in 2006, and "entered into an Agency-Representation Agreement with [an agent] ... 
with whom we have contracted to provide us with a physical facility in Oman and subcontracted 
workers to assist in our operations there." The Petitioner states that its "branch office in Oman is not 
a separate entity; rather, it is an additional location and operations point tor our corporation." 
An agency representation agreement between the Petitioner and its agent indicated that, "[a]s part of 
operating in Oman, it is necessary for the Company to retain the representation of an Omani 
national." The agent agreed "to provide representation services" such as "[ m ]aking introductions to 
and arranging meetings with potential customers," "[a]ssistance ... in the preparation and 
submission of presentations, buds, and quotations for contracts or orders and in their negotiation," 
and "[ m ]aintenance of contact and liaison with government officials and assistance in obtaining 
necessary licenses, permits, and authorizations." The agent 
would also provide "[l]ogistical and 
support services ... including assistance to Company in arranging and providing tor lodging, office 
space, translation, transportation, and communications facilities and related support activities.'' The 
agreement did not indicate that the agent would be directly transacting business on the Petitioner's 
behalf, and 
the agreement itself is not evidence that the Petitioner has transacted business through an 
active operation based in Oman. 
Contracts and other documents referred to transactions with clients based in Oman. Some of these 
documents showed the Petitioner's California address; purchase agreements and orders with 
named the Petitioner as the supplier, with a post office box address in Oman. 
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Matter of P-1-, Inc. 
The Petitioner stated that its "stock ledger and certificates document that [the Petitioner] has 
ownership of its branch located in Oman." Those documents, however, do not mention a branch in 
Oman. 
Since 2014, the Petitioner has conducted business in Oman through a majority-owned subsidiary 
rather than a branch. This information does not establish that the Beneficiary worked for a branch of 
the petitioning company from 2006 to 2013. Tax documents from 2014 indicate that the Petitioner 
owns various assets in Oman, such as vehicles and equipment. The Petitioner did not establish the 
extent to which this information relates to its claimed branch in Oman, rather than to the subsidiary 
that conducted business there in 2014. 
The Petitioner documented 16 wire transfers from the Petitioner to the Beneficiary between February 
2008 and March 2013, but these payments, on their face, do not establish that the Petitioner had a 
branch in Oman that employed the Beneficiary. The payments varied from $2500 to $31,460, paid 
at irregular intervals. There was a two-year gap between two payments in March 2008 and March 
2010, whereas the Beneficiary received three payments in October 2010, including two on the same 
day. The bank documents in the record do not state the purpose of these payments, and the wide 
variations in both amount and timing are not consistent with salary payments. 
A "Vendor QuickReport'' showed payments (mostly designated as "wages" or ''bonus'') wired to 
another individual between 2010 and 2014. The Petitioner stated that the individual who received 
these payments "took over managing day-to-day operations in the Oman branch office after the 
Beneficiary's transfer to the U.S." The report includes a reference to "moving exp[enses]" in July 
2013, which coincides with the Beneficiary's entry into the United States. Nevertheless, this 
document raises more questions than it answers. Unlike the wire transfers to the Beneficiary, the 
"wage" payments are in regular amounts at roughly regular intervals, both before and after the 
individual's July 2013 relocation. The report did not specify the recipient's location or otherwise 
mention Oman. 
In a notice of intent to deny the petition (NOID), the Director stated that the initial evidence was not 
sufficient to establish that the Petitioner operated a branch in Oman which employed the Beneficiary 
during the period claimed. The Director noted that the Petitioner's share certificate and ledger, 
specifically identified as evidence of the Petitioner's ownership of the branch in Oman, did not 
mention that branch. The Director acknowledged the 2014 formation of a subsidiary limited liability 
company, but noted that "this is not the entity that employed the beneficiary abroad." 
The Director stated that the agency agreement shows that the Petitioner "conducts business in Oman 
through agents, rather than through employees of a legally registered branch office.'' The Director 
also implied that the Beneficiary's employer in Oman had to be a legal entity in its own right. 
In response to the notice, the Petitioner stated that its "Oman branch ... is not required to be a 
separate legal entity." This assertion is consistent with the regulatory definition of ''branch'' as "an 
operating division or office of the same organization housed in a different location." See 8 C.F.R. 
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Matter of P-1-, Inc. 
§ 214.2(l)(ii)(J). Also, as the Petitioner observed, section 203(b )(1 )(C) of the Act indicates that the 
employer abroad can be "the same employer" as the prospective U.S. employer. 
The Petitioner acknowledged that the Director stated "that the stock certificates and articles of 
incorporation do not show any evidence of an Omani entity. That is correct - because the Om ani 
entity is the same legal entity as the U.S. corporation." It is true that a branch would not have 
separate incorporation documents, but initially, the Petitioner had specifically stated that its "stock 
ledger and certificates document that [the Petitioner] has ownership of its branch located in Oman.'' 
The Petitioner stated: "It is the Agreement between Agent and Principal that is 'legally registered' 
with the Oman government; not a[] newly-formed entity." The Petitioner quoted an unpublished 
appellate decision from 2008. The Petitioner acknowledged that the unpublished decision has no 
force as binding precedent, but asserted that its "reasoning ... does provide useful guidance on how 
a branch office is the same legal entity as a petitioner." The quoted excerpt included this passage: 
"it is reasonable to interpret a branch office as 'the same employer,' as long as that branch office is 
lawfully registered and authorized to conduct business." The Petitioner stated: ''The evidence now 
provided shows that the Oman branch office of [the petitioning entity] is legally registered, as per 
Oman law. Its Agency Agreement with [the agent] is registered." 
The Petitioner submitted copies of several pages from a U.S. government publication, Doing 
Business in Oman: 2016 Country Commercial Guide for U.S. Companies. The submitted excerpt 
included the following passages: 
Using an Agent to Sell US Products and Services 
Foreign companies wishing to distribute their products in Oman often prefer using a 
local agent, although, since implementation of the PTA [Free Trade Agreement], 
American companies are no longer required to do so. Agents are particularly useful 
for sales to the Omani government due to their contacts, language ability, and cultural 
knowledge .... 
. . . Agents must register in wntmg (Arabic) with the Registrar of Agents and 
Commercial Agencies at the Ministry of Commerce and Industry (MOCI), renewable 
every three years .... 
Establishing an Office 
Under the FT A, Omani authorities may not require a U.S. company to incorporate or 
make any form of local investment when supplying their services on a cross-border 
basis. In other words, a U.S. company wishing to provide its service in Oman is not 
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Matter of P-1-, Inc. 
required to have any formal presence in the country . . . . However, many U.S. 
businesspeople prefer to have a local presence to facilitate transactions. 
The cited guide explained the advantages of using an agent to distribute products in Oman, but did 
not show that a U.S. company acting through such an agent necessarily has a branch there. Rather, 
"a U.S. company wishing to provide its service in Oman is not required to have any formal presence 
in the country." 
A translated Commercial Agency Certificate shows a California address for the Petitioner. The 
submitted documents show the agent's registration with the government of Oman, but it does not 
demonstrate that the Petitioner had any local presence of its own. 
The Director denied the petition, stating: "The petitioner is correct that the regulations allow 
employment in the U.S. and abroad through the same employer, rather than through a subsidiary or 
affiliate." The Director noted that the cited non-precedent decision stated "it is reasonable to 
interpret a branch office as 'the same employer,' as long as that branch office is lawfully registered 
and authorized to conduct business." (Director's emphasis.) The Director also noted that the cited 
decision includes a footnote, stating: "Simply claiming to function as a branch would not be 
sufficient"; an entity claiming a branch office in another country must submit probative evidence 
such as tax documentation, evidence of local registration as a business, and "copies of a lease for 
otlice space." 
The Director concluded that the Petitioner is "authorized to sell U.S. products and services in Oman 
through an agent. However, simply conducting business abroad is not sufficient to ... establish that 
[the] beneficiary was employed by a lawfully registered branch office of the petitioner abroad.'' 
The Petitioner's entire appellate statement reads: 
CIS erroneously found that foreign branch of Petitioner was not ''legally registered 
branch" because it was not a separate entity. CIS ignored meaning of "branch'' as 
extension of same entity. CIS ignored previously submitted evidence showing 
Petitioner was operating a branch in Oman, including tax payments, registration with 
gov't of Oman, and employees. 
The first two sentences of the appellate statement relate to the NOID rather than to the denial notice. 
In the denial notice itself, the Director acknowledged that "the regulations allow employment in the 
U.S. and abroad through the same employer. Because the denial itself did not rest on an incorrect 
definition of"branch," the Petitioner's statements regarding that issue are not relevant to the appeal. 
In the final sentence of its appeal statement, the Petitioner stated that the Director erred by 
disregarding "previously submitted evidence showing Petitioner was operating a branch in Oman." 
The evidence, discussed above, does not establish that the Petitioner had a staffed, operational 
branch office in Oman. 
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Matter of P-1-, Inc. 
The Petitioner claimed that its agent provided "a physical facility in Oman and subcontracted 
workers to assist in our operations there." The Petitioner, however, has not identified the physical 
facility, documented rental payments, or provided any direct evidence that the Petitioner maintained 
a physical office presence in Oman. The agency representation agreement referred to "arranging and 
providing for ... office space," but the agreement was prospective, referring to what the agent 
promised to do rather than what it had already done. The agreement cannot serve as evidence that 
the agent actually provided specific office space for use by the Petitioner's employees. 
The Petitioner submitted photographs showing interior office space and the exterior sign for the 
agent's own office. The 
implication is that the office space was at the agent's location. We note that 
the wire transfers from the Petitioner to the Beneficiary showed the agent's mailing address (a post 
office box in 
The record provides no further information about the "subcontracted workers." If the agent's own 
employees conducted business from agent's own office, then it was the agent, not the Petitioner, that 
was doing business in Oman, regardless of whether the agent was acting on the Petitioner"s behalf. 
The Petitioner has documented transactions with clients in Oman, including sale and testing of 
equipment, but this evidence does not establish that the Petitioner had a functioning branch in Oman. 
The Petitioner claims government registration on appeal, but the registration documented in the 
record is between the agent and the government of Oman. The Petitioner has not shown that it 
directly registered with the government of Oman. The Petitioner has not shown that the agent in 
Oman acted only as a facilitator for the Petitioner, rather than as a subcontracted distributor and 
surrogate work force. 
The Petitioner has not provided enough evidence to show that it employed the Beneficiary in Oman. 
The evidence of compensation is fragmentary and does not readily suggest regular, salaried 
employment. The Beneficiary appears to have worked in Oman, but the identity of his employer is 
in doubt. If the agent was the Beneficiary's employer, then the Petitioner did not employ the 
Beneficiary at its own branch office. If the agent was not the Beneficiary's employer, then more 
explanation is needed beyond the assertion that the agent provided office space. 
The Petitioner asserts that the submitted evidence shows that it operates a branch office in Oman, but 
that same evidence is also consistent with a finding that the commercial agent is a contractor, doing 
business in Oman on the Petitioner's behalf. 
1 The same post office box address appeared on the Petitioner's IRS Form 5471, Information Return of U.S. Persons 
With Respect To Certain Foreign Corporations. The submitted return was for 2014, after the Beneficiary had begun 
working in the United States, and the return identified the entity in Oman as a limited liability company rather than the 
corporation that filed the petition. 
Matter of P-1-, Inc. 
III. CONCLUSION 
The Petitioner has not met its burden to establish that it operates a branch office in Oman, which 
employed the Beneficiary prior to his 2013 entry into the United States. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-1-. Inc., ID# 749619 (AAO Nov. 7, 2017)