dismissed EB-1C Case: Motorcycle Dealership

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-C-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 13,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a used motorcycle dealership, seeks to permanently employ the Beneficiary as 
executive director of a joint venture which the Petitioner sought to create with the Beneficiary's foreign 
employer. The Petitioner has petitioned for the Beneficiary under the first preference immigrant 
classification for multinational executives or managers. See Immigration and Nationality Act (the 
Act) section 203(b)(1)(C), 8 U.S.C. § 1153(b)(l)(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 Texas Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer. The Director also concluded that, without a qualifying relationship, the Petitioner could 
not establish that: (1) the Beneficiary has worked as a manager or executive of a qualifying foreign 
entity for at least one year in the three years preceding the tiling of the petition; and (2) the 
Beneficiary would work as a manager or executive for a qualifying U.S. entity. The Director also 
found that the Petitioner had not consistently shown an ability to pay the Beneficiary's otlered 
salary.' 
The matter is now before us on appeal. In its appeal, the Petitioner asserts that the Director erred by 
disregarding evidence and misinterpreting existing law. 
Upon de novo review, we will dismiss the appeal. The Petitioner has not established that it has a 
qualifying relationship with the Beneficiary's foreign employer. Because a qualifying relationship is 
a fundamental criterion for establishing eligibility and the Petitioner has not met this requirement, 
we hereby incorporate and need not address the Director's other findings with regard to the 
Beneficiary's employment with the foreign company and intended employment for the Petitioner, 
and the Petitioner's ability to pay the Beneficiary's salary. 
1 
The Director's decision also contains a heading titled "Ill. Doing Business" which cites to the requirement that the 
prospective employer submit evidence that it has been doing business for at least one year. 8 C.F.R. 
§ 204.5(j)(3)(i)(D). However, the Director did not reach a finding on this issue. The Petitioner has submitted evidence 
of several years of business activity sufficient to show that it has met this requirement. 
(b)(6)
Jkfatlet· oj(JJ-(7-
I. LEGAL FRAMEWORK 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(1 )(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification . During the three years preceding the tiling of the 
petition, the beneficiary of such a petition must have been employed for at least one year as a manager 
or executive by the petitioning employer or by a related legal entity such as an at1iliate or subsidiary. 
See section 203(b) of the Act. The regulations at 8 C.F.R. § 204.5(j) describe the various requirements 
in greater detail. 
II. QUALIFYING RELATIONSHIP 
The Director determined that the Petitioner did not establish that it has a qualifying relationship with 
the Beneficiary's foreign employer. On appeal, the Petitioner asserts that the joint venture 
agreement has established a qualifying "subsidiary relationship" between all relevant parties. 
To establish a "qualifying relationship " under the Act and the regulations , 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 related as a "parent and subsidiary" or as "affiliates." See 
generally section 203(b)(1)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
By regulation, if a firm, corporation, or other legal entity is a 50-50 joint venture, and the parent 
entities have equal control and veto power over the joint venture entity , then the 
joint venture entity 
is a subsidiary of the parent entities. See 8 C.F.R. § 204.5(j)(2). 
Ownership and control are the deciding factors in determining whether a qualifying relationship 
exists between United States and foreign entities. See Matter of Church Scientology International, 
19 I&N Dec. 593 (Comm'r 1988). 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. Id. at 595. 
The Petitioner has not claimed any shared ownership and control between itself and the 
Beneficiary's foreign employer, 
Instead, the Petitioner stated that a qualifying relationship arose 
from a 2012 joint venture agreement 
between the two businesses. 
The Petitioner has not stated that the joint venture would employ the Beneficiary? Instead, the 
Petitioner would employ the Beneficiary, while the Beneficiary's duties would involve running the 
2 The Petitioner has acknowledged that the joint venture has not yet begun doing business , and will not do so until and 
unless the petition is approved . Therefore , if the joint venture were the employer , it could not meet the requirement that 
the employer has been doing business for at least one year. See 8 C.F.R . § 204.5(j)(3)(i)(D). 
2 
(b)(6)
Matter of P-C-
JOmt venture. This distinction is important because the qualifying relationship must exist between 
the foreign employer and ·the U.S. employer. The regulations specifically require the prospective 
U.S. employer to be the same employer or a subsidiary or affiliate of the legal entity that had 
employed the Beneficiary overseas. See 8 C.F.R . § 204.5(j)(3)(i)(C) . . 
In response to a request for evidence (RFE), in which the Director sought to clarify the relationship 
between the businesses , the Petitioner stated: - "The Joint Venture between [the Petitioner) and 
is a 50-50 joint venture, with [the Petitioner] and having equal control and 
veto power over the Joint Venture. As such, the corporation's have subsidiary relationship under 
8 CFR § 214.2(1)(3)." The Petitioner has used the phrase "subsidiary relationship" throughout this 
proceeding, without identifying any business that meets the definition of a subsidiary. A subsidiary 
relationship exists only when there is a parent entity that owns and controls another entity . The 
Petitioner did not claim or establish that it owned or that owned the Petitioner. 
Notwithstanding the above reference to "corporations, " the record identifies the Petitioner as a sole 
proprietorship owned by its president , A sole proprietorship , by definition , is not a 
separate legal entity distinct from its owner; there can be no shared ownership. Therefore, the only 
way a qualifying relationship could exist between the Petitioner and would be if 
owned a controlling interest in The Petitioner has not claimed or shown that 
owns any part of 
The Director denied the petition, in part because there is no parent-subsidiary or affiliate relationship 
between the Petitioner _and and the joint venture agreement did not create any such 
relationship. On appeal, the Petitioner states that the Director erred "in concluding there was no 
qualifying subsidiary relationship." This conclusion, however, could only have been erroneous if the 
Petitioner were subsidiary, or if were the Petitioner 's subsidiary. The Petitioner 's 
appellate brief relies primarily on the joint venture agreement between the Petitioner and 
but the execution of a joint venture agreement between those two unrelated businesses does not 
create an amorphous "subsidiary relationship" in which neither business is a subsidiary of the other. 
The Petitioner argues that the Director "interpreted the statute to mean that a validly established joint 
venture does not establish a qualifying relationship , which is an unlikely interpretation of the 
statute." The Petitioner, here, mischaracterizes the Director 's findings. If a joint venture exists as a 
legal entity, then the joint venture entity is a subsidiary of each party to the joint venture. See 
8 C.F.R. § 204.5(j)(2)(defining "subsidiary). But, as the Petitioner has emphasized throughout this 
proceeding, the joint venture is not the petitioning U.S. employer (and is not a legal entity). 4 The 
3 In the RFE, the Director noted that the Petitioner was incorporated for a time, but the State of Florida administratively 
dissolved that corporation. income tax returns refer to the petitioning business as a sole proprietorship. 
and the business' federal employer identification number stated on his tax return matches that provided on the Form 
1-140. 
4 In order for a 50-50 joint venture enterprise to meet the definition of "subsidiary" at 8 C.F.R. § 204.50}(2), it must be 
"an entity" that is owned 50-50 by two parent entities who exercise equal control over "the entity." Here, the joint 
.., 
(b)(6)
Matter of P-C-
qualifying parent/subsidiary/affiliate relationship must exist between the foreign employer (in this 
case, and the petitioning U.S. employer. If there is no shared ownership and control to 
establish a qualifying relationship between those two employers, then the existence of a joint venture 
between them is irrelevant. veto power over the joint venture, for instance, does not give 
any measure of control over the Petitioner. The Petitioner has not shown that this petition 
conforms to the regulatory requirement that "[t]he prospective employer in the United States is the 
same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which 
the alien was employed overseas." 8 C.F.R. § 204.5(j)(3)(i)(C). This is a core requirement of this 
immigrant visa classification. The Petitioner has not established, as required, a qualifying 
relationship with the Beneficiary's foreign employer. 
Further, although not specifically addressed in the Director's decision, we note the Petitioner tiled a 
petition to classify the Beneficiary as a multinational manager or executive. By regulation, 
"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. 8 C.F.R. § 204.5(j)(2). The petitioning 
sole proprietorship has not shown that it conducts business outside the United States, or that it has 
any 
affiliates or subsidiaries that conduct business outside the United States. We conclude that the 
Petitioner is not a multinational organization, and that conclusion is facially disqualifying. 
III. CONCLUSION 
The Petitioner has not established the required qualifying relationship between the Petitioner and the 
Beneficiary's employer abroad and the intending U.S. employer is not paii of a multinational 
organization. Therefore, the petition cannot be approved. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-C-, ID# 97929 (AAO Mar. 13, 2017) 
venture agreement between the Petitioner and did not include or result in the creation of a legal entity such as a 
corporation or limited liability company. The Petitioner acknowledges that the joint venture is "unregistered," and so it 
is not a "legal entity." 
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