dismissed EB-1C Case: Insurance

(b)(6)
DATE: 
MO'l t 8 10\3 
INRE: Petitioner: 
Beneficiary: 
U.S. Depa,rtment of Homeland Security 
U. S. Citizen ship and Immigration Services 
Administr ative Appeals Office (AAO) 
20 Massachu setts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER FILE: 
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 : 
Enclosed please find the decision of the Administrative 
Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
petitioner subsequently filed an appeal with the Administrative Appeals Office (AAO). The AAO dismissed 
the appeal and the matter is now before the AAO on a motion to reopen. Although the AAO will grant the 
petitioner's motion, the decision dismissing the appeal will be affirmed. 
The petitioner was incorporated in the U.S. territory of Guam and operates as an insurance underwriting 
company. It seeks to employ the beneficiary as its life operations manager. 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. § 1153(b)(l)(C), as a multinational executive or 
manager. 
The director denied the petition, concluding that the petitioner failed to establish that it maintains a qualifying 
relationship with the beneficiary's former employer located in the Commonwe alth of the N01thern Mariana 
Islands (CNMI). The director's decision was based on a finding that the petitioner and the CNMI are both 
U.S. entities for immigration purposes, despite the fact that CNMI was not part of the United States during the 
beneficiary's period of employment abroad from 2005 to 2007 . 
The AAO dismissed the petitioner's subsequent appeal on August 28, 2013. Although the AAO affirmed the 
director's conclusion that the petitioner failed to establish a qualifying relationship with the beneficiary's 
former employer in CNMI, it found that the director erred in focusing on the company's nationality at the time 
of filing. However, the AAO determined that the evidence of record failed to corroborate the claim ed affiliate 
relationship between the petitioner and the CNMI employer. 
On motion the petitioner asserts that the petitioner and the CNMI entity have a qualifying relation ship based 
on common ownership and control and submits additional evidence in support of its assertions. 
I. TheLaw 
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 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
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 executive s 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)(l)(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 issue being contemplated in the present discussion is whether the petitioner provided sufficient evidence 
to establish that it has a qualifying relationship with the beneficiary's former CNMI employer. To establish 
the existence of 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 related as a "parent and subsidiary" or as "affiliates." See generall y § 203(b)(l)(C) of 
the Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms 
"affiliate" and "subsidiary") . 
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 . 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
II. Procedural History 
In a decision dated April 17, 2013, the director denied the petition , determining that the petitioner and the 
beneficiary's former CNMI employer do not have a qualifying relationship based on the U.S . nationality of 
the CNMI employer at the time the Form I-140 was filed. See 8 C.P .R.§ 215.1(e )(for definition of the term 
U.S.). 
The petitioner subsequently filed an appeal, asserting that it has an affiliate relationship with the beneficiary's 
former employer and that the affiliate relationship satisfies the regulatory criteria at 8 C.P.R. 
§ 204.5U)(3)(i )(C). In an appellate brief, counsel asserted that both entities are majority owned by the same 
husband and wife, thus supporting the claim that the two entities are affiliates under the definition provided 
above . Additionally, the petitioner contended that the director should not focus on the former employer's 
status as a U.S. entity at the time of filing but should instead focus on the foreign employer's nationality at the 
time of the beneficiary's employment from 2005 to 2007, during which time CNMI was not considered a U.S. 
entity. 
In a decision 
dated August 28, 2013, the AAO contemplated the director's decision and the evidence offered 
by the petitioner in support of the appeal. Although the AAO affirmed the director's conclusion, it found that 
the director erred in focusing on the CNMI entity's nationality at the time of filing. The AAO determined that 
the former employer's nationality at the time of employment should have been considered and thus found the 
director's analy sis to be incorrect. Notwithstanding the director's error , the AAO concluded that the evidence 
failed to establish that the beneficiary's former and current U.S . employers are commonly owned and 
controlled and dismi ssed the appeal on the basis of this finding. The AAO found that while the submitted 
evidence shows the U.S. employer as being majority owned by 
former CNMI employer is majority owned by 
two entities are not similarly owned. 
the evidence shows that the 
spouse, thus indicating that the 
The petitioner has since filed a motion to reopen in support of which new evidence has been provided to 
addre ss the deficiencies regarding common ownership between the petitioner and the beneficiary's former 
employer. In a supplemental brief counsel asserts that the petitioner acquired ownership of the CNMI entity 
and that as a result of such acquisition the petitioner and the CNMI entity have a parent-sub sidiary 
relationship. 
III. Discussion 
Upon review, the petitioner has not provided consistent and reliable evidence establishing that it has either an 
affiliate or a parent- subsidiary relationship with the beneficiary' s former employer. 
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 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
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 reviewing the information provided previously in counsel's appellate brief, which claimed an affiliate 
relationship based on the understanding that the husband and wife are common majority owners of both 
entities, the AAO contemplated "de jure" control- by reason of ownership of 51 percent of outstanding stocks 
of the other entity - and "de facto" control - by reason of control of voting shares through partial ownership 
and possession of proxy votes. Matter of Hughes , 18 I&N Dec. 289 (Comm. 1982). The AAO properly 
assessed the evidence of ownership, which establishes that Ms. has de jure control of the petitioner, 
while Mr. has de jure control of the CNMI entity. The AAO further determined that the record lacks 
evidence to show that either individual has de facto control of the entity in which he or she does not have 
majority ownership. The AAO rejected counsel's assertion that the two entities' stock is part of the couple's 
marital property and is thereby community property by operation of Guam's laws on community property . 
The AAO pointed out that a spousal or familial relationship does not constitute a qualifying relationship under 
the regulations. See Ore v. Clinton, 675 F.Supp.2d 217, 226 (D.C. Mass. 2009) (finding that the petitioner 
and the foreign company did not qualify as "affiliates" within the precise definition set out in the regulations 
at 8 C.F.R. § 214.2(l)(l)(ii)(L)(1), despite petitioner's claims that the two companies "are owned and 
controlled by the same individuals, specifically the Ore family"). 
On motion, the petitioner appears to have abandoned its earlier claim that it has an affiliate relationship with 
the CNMI company and now asserts that it owns 100% of the CNMI entity's stock, thus establishing a parent­
subsidiary relationship rather than an affiliate relationship. Although the petitioner provided transfer 
certificates dated August 16, 2006 to establish that all prior shareholders of the CNMI entity transfetTed their 
respective ownership interests to the petitioner, the AAO cannot ignore the claims made on appeal, which 
indicate that another change in the petitioner's ownership may have taken place since 2006. In other words, 
even if the 2006 transfer documents were to be deemed valid, the fact remains that the CNMI annual reports 
for 2006, 2008, 2011, and 2012 as well as counsel's supporting appellate brief all indicate that Mr. 
owned 509 shares, Ms . owned 300 shares, a Guam corporation owned 190 shares, and 
owned 1 share of the CNMI entity. While it is possible for the CNMI entity's ownership to have changed 
again from being owned by the petitioner , as claimed in the August 16, 2006 transfer document s, back to the 
ownership distribution reflected in the CNMI entity 's annual reports, there is no evidence that such a transfer 
took place. Moreover, the very information that is provided in the transfer of shares/waiver and consent 
document with regard to consideration for the transferred shares is not consistent with the corporate attorney's 
letter dated August 15, 2006. Namely, while the attorney expressly indicated that the transfers were being 
made with no consideration, the transfer of shares/waiver and consent document dated August 16, 2006 
indicates that the transfers by each transferring part were being made "for valuable consideration ." 
(b)(6)
NON-PRECEDENT DECISION 
Page6 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). Without documentary evidence to support the claim, the assertions of counsel will not satisfy 
the petitioner 's burden of proof. The unsupported assertions of counsel do not constitute evidence . Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) .. 
IV. Conclusion 
In summary, the petitioner has made inconsistent claims regarding who owns and controls the CNMI entity. 
Although some documentation has been provided to establish that a change in ownership took place in August 
2006, those documents contained a considerable anomaly regarding the issue of consideration for the shares 
that were purportedly transferred. The petitioner made yet another alteration on appeal when it returned to the 
original ownership breakdown, which showed Mr. · as the CNMI entity's majority owner. Given these 
numerous inconsistencies and lack of sufficient supporting evidence, the petitioner has not established that it 
has a qualifying relationship with the beneficiary's former CNMI employer. Accordingly, the AAO will 
affirm its prior decision dismissing the appeal. 
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 in the instant case has not sustained that 
burden . 
ORDER: The AAO's decision dated August 28, 2013 is affirmed.