dismissed EB-1C Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 23672080 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB . 07 , 2023 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner , a provider of information technology products and services , seeks to permanently 
employ the Beneficiary as its "Indirect Solutions Senior Manager" under the first preference 
immigrant clas sification 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 State s to work in an 
executive or managerial capacity. 
The Director of the Texas Service Center denied the petition , concluding that the record did not 
establish that the Petitioner has a qualifying relationship with the foreign entity that previously 
employed the Beneficiary abroad. 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 novo. Matter of Christo 's, Inc., 26 I&N Dec. 537 , 537 n.2 (AAO 2015). Upon de novo review , 
we will dismiss the appeal. 
I. LAW 
An executive or manager who has worked abroad for at least one year may immigrate to the United 
States to continue to render executive or managerial services to the same employer, or to a U.S. 
subsidiary or affiliate within the same multinational organization . Section 203(b )(1 )(C) of the Act. 
A petition for a multinational executive or manager must include a statement from an authorized 
company official demonstrating that the beneficiary has been employed abroad for the requisite period 
in a managerial or executive capacity , that they would be employed in a managerial or executive 
capacity in the United States , and that the prospective employer is the same employer or a subsidiary 
or affiliate of the legal entity by which the beneficiary was employed overseas . The evidence must 
also establish that the petitioner has been doing business for at least one year. 8 C.F.R. 
§ 204 .5(j)(3)(A)-(D) . 
II. ANALYSIS 
The sole issue before us on appeal is whether the Petitioner established that it has a qualifying 
relationship with the Beneficiary's foreign employer. To establish a "qualifying relationship," the 
Petitioner must establish 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 Section 203(b )(l)(C) of the Act; see also 8 C.F.R. § 204.5(j)(2) (providing definitions 
of the terms "affiliate" and "subsidiary"). 
Here, the Petitioner states that it has an affiliate relationship with the Beneficiary's last foreign 
employer, a Venezuelan corporation. The regulation at 8 C.F.R. § 204.5(j)(2) defines the term 
"affiliate," in relevant part, as: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; or 
(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. 
Regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between two entities. See, e.g., Matter of Church 
Scientology Int'!, 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 I&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'!, 19 I&N Dec. at 595. 
The Petitioner provided copies of stock certificates, stock ledgers, incorporation documents, company 
by-laws and other relevant documentation sufficient to establish that the Venezuelan entity and the 
petitioning U.S. employer are owned by the following individuals (identified by their initials) and by 
the estate of a former shareholder, as follows: 
Venezuelan Entity 
33.3% 
33.3% 
33.3% 
U.S. Petitioner 
31% 
31% 
24% 
14% 
The record reflects that the I is a legal entity established in Venezuela that is comprised 
of a decedent shareholder's four heirs. The Petitioner explained that there is an ongoing legal dispute 
among those heirs and that, due to this dispute, the I I has not named a legal representative 
in either the foreign or U.S. entity. The Petitioner indicated that, given these circumstances, the I I I has not been represented at either companies' shareholders meetings as of March 2022. It 
submitted the declarations of three of lheirs in support of that claim. 
2 
The Petitioner maintains that shareholders ______ had historically agreed to always vote 
their shares of common stock in both entities and to make decisions as "one unanimous body." It 
provided "Shareholders Agreements" executed by them in August 2003, March 2007, and April 2014. 
The agreements are similar in substance and state these individual shareholders agreed to act "in a 
unanimous monolithic manner." 
The record indicates that the latest shareholder agreement relevant to the control of the two entities 
was executed on January 10, 2018, after I I death. The 2018 shareholder agreement includes a 
chart detailing the two companies' respective ownership. Referring to the combined ownership 
interests ofl I the shareholder agreement states: 
Due to the majority ( 62.00%) of [the Petitioner's] shareholders ... are also the majority 
(66.66%) of [the Venezuelan entity's] shareholders ... they can made [sic] decisions 
that impact the two entities. 
These shareholders establish to act in the shareholdings meeting as one unanimous and 
monolithic body and as well as their representation and decisions reference to the 
companies [the foreign entity] located in Venezuela, and [the Petitioner] located in 
Puerto Rico. 
Additionally I I ( shareholder of [ the Petitioner]) also establishes to be part of the 
same unammous and monolithic body in all the shareholders meetings of [the 
Petitioner]. 
Based on the ownership structure and shareholders agreement described above, the Petitioner claims 
that it has an affiliate relationship with the foreign entity because both entities are "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. § 204.5(j)(2). 
As noted, the Petitioner must establish that it shares the requisite common ownership and control with 
the Venezuelan entity. Control may be "de jure" by reason of ownership of more than 50 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). 1 In situations where a petitioner provides documentation of a qualifying relationship 
based on control through possession of proxy votes, the petitioner must show that the proxy votes are 
irrevocable from the time of filing through the time of adjudication. Further a petitioner must provide 
evidence that the qualifying relationship will continue to exist until the beneficiary becomes a lawful 
permanent resident. 2 
The Petitioner contends that it and the foreign entity share "a high percentage of common ownership 
and management," citing Matter of Tessel, Inc., 17 I&N Dec. 631 (Acting Assoc. Comm'r 1981) to 
1 In Matter of Hughes. proxy voting was raised in the context of control separate from majority ownership: however, 
control may also be obtained in other types of binding voting arrangements, such as through specific voting provisions in 
equity holder agreements. voting trusts. etc. 
2 See generally, 6 USCIS Policy Manual F.4(B), https://www.uscis.gov/policy-manual (discussing petitioner requirements 
applicable to immigrant petitions for multinational managers and executives). 
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support its claim. However, the cited decision does not support the Petitioner's argument. In Tessel, 
the beneficiary solely owned 93% of the foreign entity and 60% of the petitioner, thereby establishing 
that the two entities had 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 10l(a)(l5)(L) of the Act." Id. at 633. 
However, the facts in Tessel are not analogous to this case, where the evidence does not show that any 
one shareholder owns a majority interest in either the Petitioner or in the foreign entity. Although the 
Petitioner correctly states that majority ownership is not required, it must demonstrate that it meets 
one of the relevant subsections that define the term "affiliate" at 8 C.F.R. § 204.5(j)(2). 
In this case, the U.S. entity is owned by three individuals and the I I and the foreign entity 
is owned by two individuals and thel I The ownership structure documented in the record 
does not establish that the two entities are both owned and controlled by "the same parent or 
individual" as the record does not show that any one individual has de jure control over both companies 
based on majority ownership, similar to the beneficiary in Tessel. Nor has the Petitioner claimed or 
shown that both entities have irrevocable proxy agreements or other binding voting agreements in 
place giving one individual de facto control over both companies. The Petitioner has neither claimed 
nor established an affiliate relationship based on common ownership and control by one individual or 
entity. See 8 C.F.R. § 204.5(j)(2). 
Further, the record does not establish that both entities, one of which has three owners and one of 
which has four owners, are owned and controlled by "the same group of individuals, each individual 
owning and controlling approximately the same share or proportion of each entity." See 8 C.F.R. § 
204.5(j)(2). The regulatory definition of affiliate does not state that the two entities may be owned 
and controlled by approximately the same group of individuals, or by the same subset of individuals 
within a larger group of individual shareholders. U.S. Citizenship and Immigration Services (USCIS) 
cannot accept a combination of single shareholders as a single entity, such that the group may claim 
majority ownership, unless the group are legally bound as a unit through voting agreements or proxies. 
The Petitioner maintains that the Director erroneously dismissed the probative value of the submitted 
shareholder agreements and erred by insisting that the Petitioner provide irrevocable proxy 
agreements. As noted, the Petitioner has not claimed that it was seeking to establish common control 
of both entities by a single individual based on proxy agreements and we agree that it is not required 
to submit evidence of same. However, it remains the Petitioner's burden to establish that the submitted 
shareholder agreement is a binding voting agreement and that the terms of such agreement give the 
same group of shareholders the requisite common ownership and control in both companies. 
We will first look at the terms of the shareholder agreement. Given the death (in 2016) of one of the 
shareholders who was a party to the 2003, 2007 and 2014 shareholder agreements, our review is 
limited to the 2018 agreement, which reflects the shareholding of the companies in place at the time 
of filing. Based on the terms outlined therein, the shareholders agreed that the foreign entity is 
majority controlled by a "unanimous and monolithic body" that includes only I while 
the Petitioner is majority controlled by a "unanimous and monolithic body" that includes I I 
and I I Therefore, this agreement does not support the Petitioner's claim that both entities are 
owned and controlled by the "same group of individuals" acting as a unit. who is a party to the 
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voting agreement in the U.S. company, has no ownership interest in the foreign entity and exercises 
no control over that entity. Therefore, the shareholder agreement does not establish that the two 
entities meet the definition of affiliate at 8 C.F.R. § 204.5(i)(2). 
Further, the record does not contain sufficient evidence demonstrating that the shareholders agreement 
is binding. According to Title IV of the foreign entity's Incorporation Agreement and Bylaws, as 
amended in March 201 7, the "supreme authority of the company resides in the General Meeting of 
Shareholders." The sixteenth clause of this title provides that "Minutes of the Meeting shall be made 
of each Shareholder's Meeting, and these must contain the name of all attendees, indicating the number 
of shares they hold or represent and the agreements and decisions that have been made." Such minutes 
are required to be "registered in the Minutes Book of Meetings." There is no indication that the 2018 
shareholders agreement was made as part of a general or special shareholders meeting or that it was 
registered in the foreign entity's Minutes Book of Meetings in accordance with the company by-laws. 
Additional evidence would be required to establish that the agreement is binding on both entities and 
in both jurisdictions. Nevertheless, as noted, even if the Petitioner established that the shareholder 
agreement is binding with respect to the control of both entities, it does not establish that both entities 
are owned and controlled by the same group of individuals. 
Finally, while the record supports the Petitioner's claim that the I I had not been 
represented at shareholder meetings as of March 2022, it also appears that this circumstance is subject 
to change at any time upon resolution of the legal dispute among I I heirs. The resolution of that 
dispute could have a material impact on the ownership and control of the companies and therefore that 
shareholder's status should be addressed in any future proceeding in which the qualifying relationship 
between these two entities is at issue. As noted, a petitioner must provide evidence that the qualifying 
relationship exists at the time of filing and will continue to exist until the beneficiary becomes a lawful 
permanent resident. 
For the reasons discussed above, the Petitioner has not established that it has a qualifying relationship 
with the Beneficiary's foreign employer. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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