dismissed EB-1C Case: Logistics & Trade

(b)(6)
DATE: DEC 11 2014 
IN RE: Petitioner: 
Beneficiary: 
U.S. Departinent of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: TEXAS SERVICE CENTER FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b )(1 )(C) of the Immigration and Nationality Act, 8 U .S.C. § 1153(b )(1 )(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, tiling location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO. 
Thank 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.usds.gov 
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DISCUSSION: The Texas Service Center Director denied the employment-based immigrant visa petition 
and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is a U.S. entity engaged in providing: import and export support, warehouse services and third 
party quality control services to manufacturers. It seeks to employ the beneficiary in the United States as its 
operations manager. 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)(1)(C), as a multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish that the United States entity 
has a qualifying relationship with the foreign entity. 
The petitioner filed a combined motion to reopen and motion to reconsider which. the director denied. The 
petitioner filed an appeal. On appeal, the petitioner asserts that the director erred in applying the law. The 
petitioner filed a legal brief and documents. 
I. THE LAW 
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 
continQe 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 or managers who 
have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary of that 
entity, and are coming to the United States to work for the same entity, or its affiliate or subsidiary. 
II. ISSUE ON APPEAL 
The sole issue on appeal is whether the petitioner established a qualifying relationship with the entity where 
the beneficiary was employed abroad. To establish a "qualifying relationship" under the Act and the 
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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 that the two entities are 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 
also 8 C.F.R. § 204.50)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. � 204.50)(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 leg�l entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
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. 
A Facts and Procedural History 
The petitioner filed a Form I-140, Immigrant Petition for Alien Worker, and included a letter that stated that 
the foreign entity, (foreign entity) and the United 
States entity are affili�tes since both companies are owned and controlled by the same identical shareholders 
and/or members. The petitioner's letter listed the shareholders as follows: 
Foreign entity: 
Shareholder 
The Beneficiary 
The United States entity: 
Shareholder 
The Beneficiary 
(beneficiary's wife) 
(beneficiary's mother) 
No of shares % 
48% 
48% 
2% 
1% 
1% 
No of shares % 
50% 
50% 
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To establish the foreign entity's ownership and control claim, the petitioner submitted the foreign entity's 
articles of incorporation depicting the percentage holdings as indicated above. The articles of incorporation 
included a resolution with a chart that depicted the initial investments and indicated that the five holders of 
the foreign entity's capital were the entity's "Founding Partners." Article Nine stated that the entity was 
required to keep a "book of partners" that listed contributions and transfers. Article Ten provided that "the 
Corporation recognizes one vote per Partner, regardless of his contributions." The articles of incorporation's 
fourth clause identified the beneficiary as the Sole Administrator charged with administration of the entity 
while was identified as the Statutory Auditor charged with oversight of the 
entity. : was appointed Conciliation and Arbitration commissioner. 
To establish the United States entity's ownership and control, the petitioner submitted the United States 
entity's articles of incorporation, dated July 10, 2002, indicating that the company was authorized to issue 
one million shares having no par value. The petitioner provided additional documentation such as a Waiver 
of Notice of Annual Meeting of Members, dated November 2, 2010, signed by all shareholders and Minutes 
of Annual Meeting of Members, dated November 2, 2010, indicating the following ownership of shares: 
Beneficiary 33.33%, ' 33.34%, and 33.33%. In 
addition, the meeting minutes resolved that due to _ ; resignation, the equity 
ownership would be redistributed to a 50/50 split between the beneficiary and 
The petitioner's Form 1120, U.S. Corporation Income Tax for tax year 2011 depicted the 50/50 stock split 
between the benefici�ry and 
On March 7, 2013, the director denied the petition, concluding that the claimed ownership holdings of both 
the United States entity and the foreign entity do not meet the statutory requirements because each person 
does not own and control approximately the same share or proportion of each company. 
In a combined motion to reopen and motion to reconsider the decision, the petitioner asserted that the 
director's facts are correct but he misapplied the law. The petitioner asserted that the statutory requirements 
for affiliates were met in this matter "because two individuals each own and control approximately the same 
share or proportion of each entity and these same two individuals combined own and control both entities. In 
support of the motion the petitioner resubmitted previous documents, unsigned by laws, and some additional 
documents relating to the foreign entity. 
On May 14, 2014 the director denied the motion, reiterating his previous findings that the petitioner failed to 
establish the qualifying relationship. The director further stated that no one shareholder owns a majority 
interest in either company and that the petitioner did not demonstrate that the two shareholders have agreed 
to always vote their shares the same way for each entity in such a way that could establish de facto control. 
On appeal, the petitioner asserts that an affiliate relationship between the foreign entity and the United States 
entity does not require "identical ownership." Alternatively, the petitioner asserts that each entity is majority 
owned by the same two individuals and both are controlled by the same two individuals, the beneficiary and 
___ . Finally, the petitioner alternatively asserts that the beneficiary owns and 
controls both entities by virtue of his 50% ownership and control of the United States entity and his control 
of the foreign entity. 
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B. Analysis 
Upon review, we concur with the director's determination that the petitioner failed to establish that it has a 
qualifying relationship with a foreign 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., 19 I&N Dec. 362 (BIA 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; cbntrol 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. 
Citing Sun Moon Star Advanced Power, Inc. v. Chappell, 773 F. Supp. 1373 (N.D. Cal 1990), the petitioner 
asserts that two companies may be affiliated even though they are not owned by the exact same individuals. 
In the Sun Moon Star decision, the Immigration and Naturalization Service (now USCIS) refused to 
recognize the indirect owpership of the petitioner by three brothers, who held shares of the company as 
individuals through a holding company. The decision further noted that the two claimed affiliates were not 
owned by the same group of individuals. The court found that the Immigration and Naturalization Service 
decision was inconsistent with previous interpretations of the term "affiliate" and contrary to congressional 
intent because the decision did not recognize the indirect ownership. Prior to the adjudication of the Sun 
Moon Star petition, the Immigration and Naturalization Service amended the regulations so that the 
definition of "subsidiary" recognized indirect ownership. See 52 Fed. Reg. 5738, 5741-2 (February 26, 
1987). Accordingly, the basis for the court's decision has been incorporated into the regulations. However, 
despite the amended regulation and the decision in Sun Moon Star, neither legacy Immigration and 
Naturalization Service nor USCIS has ever accepted a random combination of individual shareholders as a 
single entity, so that the group may claim majority ownership, unless the group members have been shown to 
be legally bound together as a unit within the company by voting agreements or proxies. 
To establish eligibility in this case, it must be shown that the foreign entity and the United States entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 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). 
In this case, the U.S. entity is equally owned by two individuals, and the foreign entity is owned by five 
individuals. The petitioner contends that the two companies share an affiliation because they are owned and 
controlled by the same iqdividuals, specifically the beneficiary and 
Further, the petitioner suggests that the remaining three individuals holding 4% of the foreign entity's shares 
are family members and family members should be treated as the same group of shareholders. Such a family 
member relationship does not constitute a qualifying relationship under the regulations. In this matter, the 
claimed share holdings do not fall within the precise definition of affiliates as set out in the regulations. The 
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companies are not two subsidiaries both owned and controlled by the same parent or individual and they are 
not two entities owned and controlled by the same group of individuals. The shareholders of the foreign 
entity and the United States entity are not identical. They do not control approximately the same share or 
proportion of each entity. Here, no one shareholder holds a majority interest in either entity. 
Absent documentary evidence such as voting proxies or agreements to vote in concert so as to establish a 
controlling interest, the petitioner has not established that the same legal entity or individuals control both 
entities. The petitioner did not provide voting proxies or voting agreements in this matter. Instead, the 
petitioner relies upon the appointment of the beneficiary as administrator of the foreign entity to demonstrate 
his control over that entity. This beneficiary's role within the company is insufficient to demonstrate control. 
Furthermore, the petitioner did not explain the nature of the other 48% shareholder's control in light of his 
responsibility for company oversight. Finally, the suggestion within the articles of incorporation that all five 
shareholders are founding partners entitled to one equal vote is unresolved. 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). 
We find that the evidence is insufficient to establish that a qualifying relationship exists between the United 
States entity and the foreign entity. 
We acknowledge that USCIS had approved a prior L-lA classification petitions filed on behalf of the 
beneficiary prior to denying the instant immigrant petition. 
Each visa petition filing is a separate proceeding with a separate record and a separate burden of proof. In 
making a determination of statutory eligibility, USCIS is limited to the information contained in that 
individual record of proceeding. See 8 C.P.R. § 103.2(b )(16)(ii). 1 
We note that I-140 immigrant visa petitions are frequently denied after USCIS approves prior nonimmigrant 
visa 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-lA visa classification, which allows an alien to enter the United States 
temporarily, and the present immigrant E-13 visa petition, which would permit the beneficiary 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-lA petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 
1 In matters relating to an extension of nonimmigrant visa petition validity that involve the same petitioner, 
beneficiary, and underlying facts, USCIS will generally give some deference to a prior determination of 
eligibility. However, the mere fact that USCIS, by mistake or oversight, approved a visa petition on one 
occasion does not create an automatic entitlement to the approval of a subsequent petition for renewal of that 
visa. Royal Siam Corp. v. Chertoff, 484 F.3d 139, 148 (1st Cir 2007); see also Matter of Church Scientology 
Int'l., 19 I&N Dec. 593, 597 (Comm. 1988). 
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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-lA petition's validity). 
Furthermore, our 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.), aff'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F.Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO reviews 
appeals on a de novo basis). 
III. CONCLUSION 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.