dismissed EB-1C Case: Karaoke Systems

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: AUG 0 5 2008 
EAC 06 131 51821 
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 : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any Wher inquiry must be made to that office. 
'L J'"' .-..- 
Robert P . Wiemann, Chief 
drninistrative Appeals Office 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a New York corporation engaged in the production and sales of portable karaoke systems. It 
seeks to employ the beneficiary as its director of marketing. Accordingly, the petitioner endeavors to classify 
the beneficiary as an employment-based immigrant pursuant to section 20 3 (b)( 1 )(C) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1153(b)(l)(C), as a multinational executive or manager. The director 
denied the petition based on three independent grounds of ineligibility: 1) the petitioner failed to establish 
that the beneficiary was employed abroad in a qualifying capacity; 2) the petitioner failed to establish that the 
it would employ the beneficiary in a managerial or executive capacity; and 3) the petitioner failed to establish 
that it has a qualifying relationship with the beneficiary's foreign employer. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
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 thls 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. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a fm, 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. 
While the director was correct in placing great emphasis on the descriptions of the beneficiary's duties with 
the foreign and U.S. entities, this element must be reviewed in light of a comprehensive analysis of other 
relevant factors. These factors include the petitioner's overall organizational structure, which in the present 
matter is complex with a number of managerial employees, as well as the beneficiary's position with respect 
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to others within each given entity. Proper consideration of all three factors indicates that each entity is widely 
staffed with individuals who are assigned to perform the daily non-qualifying tasks of each entity. Therefore, 
it is more likely than not that the beneficiary was employed abroad and would be employed in the United 
States in a qualifying managerial or executive capacity. The decision of the director will be withdrawn as it 
relates to the managerial and executive capacity of the beneficiary. As such, this decision will address the 
remaining basis for denial. 
The remaining issue in this proceeding is whether the ownershp breakdowns of the petitioner and its foreign 
counterpart fall within one of the definitions of a qualifying relationshp. 
The regulation at 8 C.F.R. 5 204.56)(2) states in pertinent part: 
A ffliate 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. 
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 
Matter of Siemens Medical Systems, Inc., 1 9 I&N Dec. 362 (BIA 1 986); Matter of Hughes, 1 8 I&N Dec. 289 
(Comrn. 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, 1 9 I&N Dec, at 595. 
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 bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
- - - - - - - - - - 
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number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, 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, hc., 19 I&N Dec. 362. Without full disclosure 
of all relevant documents, CIS is unable to determine the elements of ownership and control. 
In support of its Form 1-140, the petitioner submitted a letter dated March 20, 2006 in which it stated that 
Enter Tech, the beneficiary's foreign employer, owns 12% and that Enter Tech's chief executive officer (CEO) 
owns 44% of the petitioner's stock. Reference was made to a joint venture agreement between the two 
companies memorializing the foreign entity's ownership share of the U.S. petitioner. The CEO's ownershp is 
memorialized in a separate shareholder agreement. Despite the petitioner's claim that it and Enter Tech are 
affiliate organizations, the letter was silent as to Enter Tech's actual ownership. 
Accordingly, the director issued a request for additional evidence (RFE) dated September 20,2006 instructing 
the petitioner to submit documentation establishing that the beneficiary's prospective U.S. and foreign 
employers are commonly owned and controlled. 
In response, the petitioner submitted a letter from counsel dated December 13, 2006. Counsel explained that 
the foreign entity is a publicly traded corporation with offices in various countries. While counsel reiterated 
the petitioner's ownership breakdown and provided some documentation in support of the petitioner's claim, 
the record remained silent as to the foreign entity's ownership. 
After reviewing the documentation provided, the director determined that the petitioner failed to establish the 
existence of a qualifying relationship with the beneficiary's foreign employer and denied the petition. The 
director reviewed the information provided by the petitioner with regard to its own ownership and pointed out 
that the petitioner did not provide all of the stock certificates it issued and failed to provide a stock ledger. 
The director properly pointed out the petitioner's failure to provide documentation pertaining to the ownership 
of the foreign entity. It is noted that failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). 
On appeal, counsel maintains the claim that the beneficiary's foreign and U.S. employers have a qualifying 
affiliate relationship in that they are both owned and controlled by fi CEO, who 
owns 50% of the petitioner's voting shares and 10% of the foreign entity's shares. Counsel further explains 
that despite the fact tha-ns only 10% of the foreign entity's stock, he in fact controls the company 
by virtue of being the president and CEO as well as the largest single shareholder. Counsel contends that Mr. 
ownership interests in the respective companies amount to controlling interests. 
Counsel's arguments, however, are not persuasive. Contrary to counsel's assertions, the mere "possibility of 
control," as discussed in the Estate of Winkler v. Comm'r of Internal Revenue, is not sufficient to establish 
who consistently controls the foreign entity at any given time. 57 T.C.M. 373 (1989). If Citizenship and 
Immigration Services (CIS) were to generally apply counsel's reasoning, anyone with an ownership interest 
would stand the chance of controlling the company, regardless of the portion of ownership, and there would 
be no need to establish controlling ownership interest as required in part A of the definition of affiliate. See 
8 C.F.R. 5 204.56)(2). Thus, counsel's interpretation of control is directly contradicted by relevant regulatory 
provisions. 
While counsel understandably points out the impracticality of providing documentation for each of the many 
shareholders of the foreign entity, the record shows that the petitioner previously provided no documentation 
at all, not even documentation to establish purported 10% ownership. As properly noted by the 
director, going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 158, 165 (Cornm. 1998) (citing 
Matter of Treasure Craft of California, 1 4 I&N Dec. 1 90 (Reg. Cornm. 1 972)). While the petitioner submits 
evidence regarding the foreign entity's ownership on appeal, the AAO notes that petitioner was put on notice 
of required evidence and given a reasonable opportunity to provide it for the record before the visa petition 
was adjudicated. As the petitioner failed to submit the requested evidence in response to the RFE, the AAO 
will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter 
of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. 
Additionally, the record lacks documentation to establish that ontrols the foreign entity as claimed. 
The fact that he is president and CEO of the company is insufficient in light of the many shareholders and a 
board of directors maintaining their respective checks on 
 authority. Without evidence that - 
has been given majority control by proxy from other shareholders, his 10% ownership would be insufficient 
to establish that he owns and controls the foreign entity in a manner similar to his ownership and control of 
the U.S. petitioner. Thus, the petitioner has failed to submit sufficient documentation to establish that it 
shares common ownership and control with the beneficiary's foreign employer. 
As a final note, counsel makes several references to the petitioner's current approved L-1 employment of the 
beneficiary, suggesting that eligibility for the immigration classification currently sought has already been 
established. With regard to the beneficiary's L-1 nonirnrnigrant classification, it should be noted that, in 
general, given the permanent nature of the benefit sought, immigrant petitions are given far greater scrutiny 
by CIS than nonimmigrant petitions. Furthermore, although the regulatory definitions for subsidiary and 
affiliate are the same, the question of overall eligibility requires a comprehensive review of all of the 
provisions. There are significant differences between the nonimmigrant visa classification, which allows an 
alien to enter the United States temporarily for no more than seven years, and an immigrant 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. CJ: $5 204 and 214 of the Act, 8 U.S.C. $5 1154 and 1184; see 
also 5 316 of the Act, 8 U.S.C. 5 1427. Because CIS spends less time reviewing 1-129 nonimmigrant 
petitions than 1-140 immigrant petitions, some nonimrnigrant L-1 A petitions are simply approved in error. Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25,29-30 (D.D.C. 2003). 
In addition, each nonimmigrant and immigrant petition is a separate record of proceeding with a separate 
burden of proof; each petition must stand on its own individual merits. CIS is not required to assume the 
burden of searching through previously provided evidence submitted in support of other petitions to 
determine the approvability of the petition at hand in the present matter. The approval of a nonimmigrant 
petition in no way guarantees that CIS will approve an immigrant petition filed on behalf of the same 
beneficiary. CIS denies many I- 140 immigrant petitions after approving prior nonimrnigrant I- 129 L- 1 
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petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; lKEA US v. US Dept. of Justice, 48 
F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989). 
Furthermore, if the previous nonimmigrant petition was approved based on the same unsupported assertions 
that are contained in the current record, the approval would constitute material and gross error on the part of 
the director. The MO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Cornrn. 1988). It would be absurd to suggest that CIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Finally, the MO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 
200 l), cert. denied, 122 S.Ct. 5 1 (200 1). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. $ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.