dismissed EB-1C Case: Investment And Management Services

(b)(6)
DATE: MAY 2 3 ~013 OFFICE: TEXAS SERVICE CENTER 
INRE : Petitioner: 
Beneficiary: 
U.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 
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 in your case. All of the documents 
related to this matter have been returned to the office that origin ally decided your case. Please be advised that 
any further inquiry that you might have concerning your case mu st be made to that offic e. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion , with a fee of $630 . The 
specific requirements for filing such a motion can be found at 8 C.F.R. § I 03.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
t~ Cf-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, ("the director") denied the preference visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner is a Texas corporation organized on November 17, 2004. The petitioner states on the 
Form 1-140, Immigrant Petition for Alien Worker, that it is engaged in investment and management 
services, employs 12 personnel, and reported a gross annual income of $227,015 in 2010. It seeks to 
employ the beneficiary as its president. 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. § 1153(b)(l)(C), as a multinational executive or manager. 
On December 21, 2012, the director denied the petition determining that the petitioner failed to 
establish that the petitioner has a qualifying relationship with the beneficiary's foreign employer. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that the director's basis for denial of the 
petition was erroneous and contends that the evidence of record is sufficient to satisfy the petitioner's 
burden of proof in that the evidence establishes the beneficiary's eligibility for the requested 
classification. 
I. The Law 
To establish eligibility for the employment-based immigrant visa classification, the petitioner must 
meet the criteria outlined in section 203(b) of the Act. 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. 
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 language of the statute is specific in limiting this provision to only those 
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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. 
The regulation at 8 C.F.R. § 204.5U)(2) provides in pertinent pmt: 
Affiliate means: 
( 1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(2) 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. 
II. The Issue on Appeal 
The issue to be discussed in this matter is whether the petitioner submitted sufficient evidence to 
establish that it has a qualifying relationship with the beneficiary's foreign employer. 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 related as a "parent and subsidiary" or as "affiliates ." See generally 
§ 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see above 8 C.F.R. § 204.5(j)(2) (providing 
definitions of the terms "affiliate" and "subsidiary"). 
In this matter , the director notified the petitioner in a Notice of Intent to Deny (NOID) that the record 
presented inconsistent information regarding the ownership of the petitioner. The director noted that 
the petitioner claimed that it was wholly owned by the foreign entity, The 
director pointed out, however, that the petitioner's 2010 Internal Revenue Service (IRS) Form 1120, 
U.S. Corporation Income Tax Return, did not report the petitioner's foreign ownership, but rather 
stated that the beneficiary owned 100 percent of the petitioner. The director requested probative 
evidence establishing who owned and controlled the petitioner including documentary evidence of 
the exchange of monies, property, or other consideration for the issuance of stock, copies of stock 
purchase agreements, subscription agreements, corporate minutes or relevant shareholder meetings or 
other legal documents governing the acquisition of the ownership interest. The director also 
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requested a copy of the stock ledger or share register, certified complete tax returns, and any other 
evidence supporting the petitioner's eligibility for petition approval. 
In response, the petitioner provided an affidavit signed by the beneficiary as the company's president 
attesting that the petitioner is 100 percent owned by the an Indian company 
(foreign entity). The president acknowledged that the 2010 and 2011 IRS Forms 1120 did not list the 
foreign entity as the petitioner's owner and that the petitioner had filed amended tax returns to reflect 
the correct ownership. The petitioner, through its president, also asserted that the error on the tax 
returns was not intentional and upon realizing the mistake, it had acted promptly to correct the 
mistake. 
The record includes the petitioner's Articles of Incorporation indicating that it is authorized "to issue 
one million (1,000,000)" shares and the "shares shall have a par value of One Dollar ($1.00)." The 
Articles of Incorporation also indicated that the "corporation will not commence business until it has 
received for the issuance of its shares consideration of the value of $1 ,000.00, consisting of money, 
labor done, or property actually received." The petitioner also provided a 
a photocopy of one share 
certificate issuing 1,000 shares to the foreign entity on January 1, 2005. 
The record in response to the director's NOID also included what the petitiOner described as 
"amended" U.S. corporate tax returns for the 2010 and 2011 tax years. The petitioner attached a copy 
of its 2011 Form 1120 which bears a stamp from the IRS on the first page indicating that the return 
was received on November 5, 2012 . The Form 1120 was signed only by the preparer on October 31, 
2012. The petitioner also provided a photocopy of its 2010 Form 1120, signed only by the preparer 
on October 25, 2012 as well as an IRS account transcript confirming the Form 1120 had been filed on 
May 16, 2011. The account transcript did not provide information regarding the petitioner's 
ownership, and the petitioner did not provide evidence that an amended return had been filed for 
2010. Both of the submitted Forms 1120 identified the foreign entity as the petitioner's sole owner. 
The petitioner did not provide an IRS Form 1120X, Amended U.S. Corporation Income Tax Return, 
for either tax year, in response to the Notice of Intent to Deny despite indicating that both were 
"amended" tax returns. 
On appeal counsel for the petitioner asserts that the date stamp on the IRS Form 1120 submitted is 
evidence that the Form 1120 was properly filed. Counsel provides an IRS Tax Return Transcript for 
the 2011 filing along with a IRS date-stamped copy of the petitioner's 2011 IRS Form 1120, which 
indicates its ownership by the foreign entity at Schedules K and G. Counsel also submits IRS Form 
1120X, Amended U.S. Corporation Income Tax Return, for the 2010 year with the first page date 
stamped by the IRS as received January 10, 2013. The second page appended to the Form 1120X, 
bearing no evidence of filing, notes four errors in the initially filed 2010 Form 1120 relating to the 
ownership of the petitioner. The petitioner explains that it had incorrectly stated that the beneficiary 
owned 100 percent of the petitioner rather than the foreign entity. Counsel contends that the 
petitioner has met its burden of establishing a qualifying relationship between the foreign entity and 
the petitioner with the documentary evidence submitted. 
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III. Analysis 
To establish that the foreign entity and the petitioner enjoy a qualifying parent/subsidiary 
relationship, the petitioner must provide probative, consistent evidence establishing the relationship. 
The director properly determined that the initial record did not include consistent evidence 
establishing the qualifying relationship. The petitioner's response to the director's NOID also failed 
to clarify with probative documentary evidence that the petitioner is, in fact, the foreign entity's 
subsidiary. 
The regulation and case law confirm that ownership and control are the factors that must be examined 
when 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 
(Comm'r 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm'r 1986); 
Matter of Hughes, 18 I&N Dec. 289 (Comm'r 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. 
We observe that tax documents alone are not sufficient evidence to determine whether a stockholder 
maintains ownership and control of a corporate entity. Additionally, as general evidence of a 
petitioner's claimed qualifying relationship, stock certificates alone are not sufficient evidence to 
determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate by-laws, and the minutes of 
relevant annual shareholder meetings must also be examined to determine the total number of shares 
issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its 
effect on corporate control. Moreover, a petitioning company must disclose all agreements relating to 
the voting of shares, the distribution of profit, the management and direction of the subsidiary, and 
any other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, Inc., 
supra. Without full disclosure of all relevant documents, United States Citizenship and Immigration 
Services (USCIS) is unable to determine the elements of ownership and control. 
In this matter, despite the director's requests in the Notice of Intent to Deny, the petitioner failed to 
submit any additional evidence of ownership such as the corporate stock certificate ledger, stock 
certificate registry, corporate by-laws, the minutes of relevant annual shareholder meetings, and 
evidence of the exchange of monies, property, or other consideration for the issuance of stock, copies 
of stock purchase agreements, and/or subscription agreements. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 
103.2(b )(14 ). 
Further, the record does not include any documentary evidence from the foreign entity 
acknowledging its 100 percent ownership of the petitioner. Nor does the record include evidence that 
the foreign entity received any distribution of profit or accepted any liability in regards to its claimed 
ownership of the petitioner. 
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Counsel failed to submit any additional evidence on appeal to establish the qualifying relationship 
and overcome the director's concern. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm'r 1972)). For this reason, the appeal will be dismissed. 
The AAO acknowledges that USCIS previously approved an L-1A nonimmigrant petition filed on 
behalf of the beneficiary, a classification which also requires the petitioner to establish a qualifying 
relationship with the beneficiary's foreign employer. It must be noted that many I-140 immigrant 
petitions are denied after USCIS approves prior nonimmigrant I-129 L-1 petitions. See, e.g., Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22 (D.D .C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Examining the consequences of an approved petition, there is a significant difference between a 
nonimmigrant L-1A visa classification, which allows an alien to enter the United States temporarily, 
and an immigrant E-13 visa petition, which permits an alien to apply for permanent residence in the 
United States and, if granted, ultimately apply for naturalization as a United States citizen. Cf §§ 204 
and 214 of the Act, 8 U.S.C. §§ 1154 and 1184; see also § 316 of the Act, 8 U.S.C. § 1427. Because 
USCIS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, 
some nonimmigrant L-1A petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 
F. Supp. 2d at 29-30; see also 8 C.F.R. § 214.2(1)(14)(i)(requiring no supporting documentation to 
file a petition to extend an L-1A petition's validity). 
Moreover, in making a determination of statutory eligibility, USCIS is limited to the information 
contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). In the present 
matter, the director reviewed the record of proceeding and concluded that the petitioner had not 
established a qualifying relationship with the foreign employer. In both the NOID and the final 
denial, the director clearly atticulated the objective statutory and regulatory requirements and applied 
them to the case at hand. If the previous nonimmigrant petition(s) was approved based on the same 
evidence of the qualifying relationship as submitted in this matter, the previous approval(s) would 
constitute gross error on the part of the director. Despite any number of previously approved 
petitions , users does not have any authority to confer an immigration benefit when the petitioner 
fails to meet its burden of proof in a subsequent petition. See section 291 of the Act. 
IV. Conclusion 
The petition will be denied and the appeal dismissed for the above stated reason. 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. Here the petitioner has not met that burden. 
Accordingly, the appeal will be dismissed . 
ORDER: The appeal is dismissed.