dismissed EB-1C Case: Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re : 15236246 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN . 7, 2021 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner , a manufacturing enterprise , seeks to permanently employ the Beneficiary as its "VP 
Production Director " under the first preference immigrant classification for multinational executives 
or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C) , 8 U.S .C. 
§ 1153(b )(1 )(C). This classification allows a U.S. employer to permanently transfer a qualified foreign 
employee to the United States to work in an executive or managerial capacity . 
The Director of the Nebraska Service Center denied the petition concluding that the Petitioner did not 
establish , as required, that it has a qualifying relationship with the Beneficiary's foreign employer. 
The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
An immigrant visa is available to a beneficiary who , in the three years preceding the filing of the 
petition , has been employed outside the United State s for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker , must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition , that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer , and that the prospective U.S. employer 
has been doing business for at least one year. See 8 C.F.R . § 204 .5(j)(3) . 
II. QUALIFYING RELATIONSHIP 
The issue to be addressed is whether the Petitioner and I I the Beneficiary's foreign 
employer , have a qualifying relationship . To establish a "qualifying relationship," a 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 they are related as a "parent and subsidiary" or as 
"affiliates." See generally section 203(b)(l)(C) of the Act; 8 C.F.R. § 204.5(i)(3)(i)(C). 
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. See, 
e.g., Matter of Church Scientology Int'!, 19 I&N Dec. 593 (Comm'r 1988); Matter o_f Siemens Med. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter o_f 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. 
In a supporting cover letter, the Petitioner stated that it is a subsidiary ofl I a South Korean 
entity where the Beneficia is claimed to have been employed until January 2013, when he assumed 
a position wit. ___ __,... __ .........,another South Korean entity. The Petitioner neither claimed nor 
demonstrated that it and~--~ operate as part of the same entity, or that they are related as affiliates 
or as a parent and subsidiary, either directly or indirectly through! lwhose claimed parent­
subsidiary relationship with the Petitioner was also not documented. See id.; see also 8 C.F .R. 
§ 204.5(i)(2) for definitions of "affiliate" and "subsidiary." 
In a request for evidence (RFE), the Director pointed to the lack of evidence establishing the existence 
of a qualifying relationship between the Petitioner andl I and instructed the Petitioner to address 
this evidentiary deficiency. 
In response, the Petitioner stated tha~ lis "actually part of I I and provided a statement, 
a corresponding flow chart, and a service agreement discussing the business relationship between the 
two entities. The Petitioner further stated that I I "controlled and supervised" I I 
claiming that the two entities have an "inseparable relationship arrangement" in which I lworks 
exclusively for the benefit of I I However, the Petition~r did not provide evidence 
establishing that the business arrangement between! land_ !involves common 
ownership such that the claimed parent-subsidiary relationship between the Petitioner andl I D indirectly results in a qualifying relationship between the Petitioner an~ l the entity that 
employed the Beneficiary during the relevant three-year time period that preceded the filing of this 
petition. 1 See 8 C.F.R. § 204.5(i)(3)(i)(A). 
Further, although the Petitioner provided I ~ s stock transfer ledger, 2018 corporate tax 
returns fo~ land its subsidiaries, the Petitioner's 2016 and 2017 tax returns, 
and a diagram outlining ownership breakdowns for I 11 l, and I I 
I I none of these documents mentioned [ or showed thatl I and the Petitioner 
1 Although the petition indicates that the Beneficiary entered the United States in July 2019 as an E2 non immigrant treaty 
investor, the record does not demonstrate that the entry was for the purpose of working for the same employer or for a 
subsidiary or affiliate ofl I the Beneficiary's foreign employer. We therefore cannot use the date of the 
Beneficiary's nonimmigrant entry to determine the relevant three-year period during which the one year of foreign 
employment must have occuned. See 8 C.F.R. § 204.5(j)(3)(i)(B). 
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are commonly owned, either directly or indirectly, through ~I ____ ~I the entity the Petitioner 
claimed as its parent. 
Moreover, the Petitioner did not provide sufficient evidence corroborating its original claim that it is 
the subsidiary in a parent-subsidiary relationship with To support this claim, the 
Petitioner must show that it is controlled byl I as a result of1 Is direct or indirect 
ownership of the Petitioner's stock. See 8 C.F.R. § 204.5(j)(2) (for definition of "subsidiary"). In this 
instance, however, the Petitioner provided tax returns that do not consistently convey information 
regarding its ownership. Although Schedules G and K of the Petitioner's 2016 and 201 7 tax returns 
indicate that I I owns 80% of the Petitioner's stock, I ts 2018 tax return 
indicates thatl l rather tha , directly owns 80% of the Petitioner's stock. 
Further, according to Schedule G of.,__ ____ s tax return, I I.owns 50% ofl I 
I Is stock, thereby indicating that.__ ___ ~ indirectly owns only 40% of the Petitioner's stock 
and therefore does not effectively control the Petitioner, despite the information provided in the 
Petitioner's 2016 and 2017 tax returns. The Petitioner must resolve this incongruity in the record with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-
92 (BIA 1988). We farther note that if the disparity regarding the Petitioner's ownership was the 
result of sales or purchase of stock that occurred between the time the Petitioner and I I 
filed their respective tax returns in 2017 and 2018, the claimed change in the Petitioner's ownership 
would indicate that a parent-subsidiary relationship between! I and the Petitioner did not 
exist beyond 201 7 and therefore could not have existed in 2019, when this petition was filed. The 
Petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). 
On appeal, the Petitioner resubmits evidence from its RFE response and reiterates the Beneficiary's 
employment history withl I claiming that the Beneficiary was transferred tol I when 
that entity was formed as a "new corporation" in 2013 for the ose of ensuring compliance with 
certain Korean labor laws. The Petitioner states that andl I have "more than a 
close business relationship," claiming that.__ ____ _. "completely controlled" I Is 
production decisions, including its audits and quality control. However, the Petitioner does not 
establish that any of these factors pertain tol ~ ownership or that they demonstrate the 
existence of a qualifying relationship between the Petitioner andl I 
Lastly, the Petitioner cites Fontenoy Engineering Inc. v. Baran, 2020 WL 137155 (N.D. Cal.), in which 
the U.S. District Court contemplated the term "related entities" within the context of an HlB 
nonimmigrant visa petition whose beneficiary was the subject of multiple HlB petitions filed by 
"related entities." The Petitioner seeks to apply the District Court's broader interpretation of the term 
"related entities" to the circumstances in this case, which involves a Petitioner that is not related to the 
Beneficiary's foreign employer as its affiliate, parent, or subsidiary, but rather is claimed to be 
"related" to the foreign entity in some other way. However, the Petitioner has not pointed to case law 
or USCIS policy demonstrating that the cited District Court decision is applicable within the context 
of an 1-140 immigrant petition for a multinational manager or executive. The regulations pertaining 
to this immigrant visa classification are clear in requiring the Petitioner to establish that it and the 
Beneficiary's foreign employer have a qualifying relationship in which the foreign employer and the 
prospective U.S. employer are either the same entity or that they are separate entities that are 
specifically related as affiliates or as a parent and subsidiary. See generally section 203(b )(1 )(C) of 
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the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). There is no applicable statutory or regulatory provision that 
allows for an approval of a visa petition where the petitioner and the beneficiary's foreign employer 
do not meet this criteria. 
Because the Petitioner has not established that it has a qualifying relationship with I I the 
Beneficiary's foreign employer, as contemplated by applicable sections of the Act and regulations, 
this petition cannot be approved. 
ORDER: The appeal is dismissed. 
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