dismissed EB-1C Case: Packing And Shipping

U.S. Citizenship 
and Immigration 
Services 
MATTER OF C&CS-C-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 16,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a packing and shipping company, seeks to permanently employ the Beneficiary as 
general manager 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)(l)(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 approved the petition, but later found the approval to have 
been in error. The Director issued a notice of intent to revoke (NOIR), citing several grounds for 
revocation. After the Petitioner responded to the NOIR, the Director revoked the approval of the 
petition, concluding that the record did not establish, as required, that: (1) the entity that tiled the 
petition is the intending employer; (2) the Petitioner has a qualifying relationship with the 
Beneficiary's foreign employer; (3) the Beneficiary has been employed abroad in a managerial or 
executive capacity; (4) the Beneficiary will be employed in the United States in a managerial or 
executive capacity; (5) the prospective employer has been doing business for at least one year prior 
to the petition's tiling date, and is still doing business; and (6) the prospective employer has the 
ability to pay the Beneficiary's proffered wage. 
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 regarding the Beneficiary's 
past employment with the foreign company and intended employment for the Petitioner. 
I. LEGAL FRAMEWORK 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary as a multinational executive or manager. This classi(ication does not require a labor 
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Matter ofC&CS-C-, Inc. 
certification. During the three years preceding the filing 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 affiliate or subsidiary. See section 203(b)(l)(C) of the 
Act. The regulations at 8 C.F.R § 204.5(j) describe the various requirements in greater detail. 
The approval of an immigrant petition can be revoked for good and sufficient cause. Section 205 of 
the Act, 8 U.S.C. § 1155. Evidence that a petitioner has not met its burden of proof, and that the 
petition was approved in error, is good and sufficient cause for revocation. lvfatter of Ho, 19 I&N 
Dec. 582, 590 (BIA 1988) (citing Matter ofEstime, 19 I&N Dec. 450 (BIA 1987)). 
II. U.S. EMPLOYER 
In order to give proper context to the rest of our decision and to the evidence of record, we begin 
with the identity of the intending U.S. employer. The party that files the petition must be the same 
entity that intends to employ the Beneficiary. See 8 C.F.R. § 204.5(c). 
The Petitioner, claims to have formed a 50-50 joint venture 
with the Beneficiary's last foreign employer, 
The Petitioner stated that the Beneficiary "will serve as the General 
Manager for the joint venture." The Director interpreted this to mean that the joint venture would 
employ the Beneficiary. 
In response to the NOIR and again on appeal, the Petitioner has asserted that the Beneficiary would 
have authority over but would be the Petitioner's employee. Nevertheless, the Director 
revoked the approval of the petition based in part on a finding that the Petitioner is not the intending 
employer. 
Several lines of evidence in the record support the finding that the Petitioner, rather than the joint 
venture, is the entity that seeks to employ the Beneficiary. The Form I-140 identifies by name 
and by Federal Employer Identification Number as the intending employer, and the Petitioner has 
submitted supporting evidence, such as income tax returns, linking rather than the joint 
venture, to the job offer. 
We withdraw the Director's finding that the joint venture is the intending employer. This finding 
affects some of the Director's other conclusions. Specifically, the Director found that the Petitioner 
had not established that the intending employer had been doing business for at least one year prior to 
the filing of the petition, as required by 8 C.F.R § 204.5(j)(3)(i)(D). This finding, however, rested 
on the presumption that the joint venture is the intending employer. Because that presumption was 
incorrect, this ground for revocation cannot stand and is hereby withdrawn. 
The Director also observed that the Petitioner had filed for voluntary dissolution on January 9, 2015. 
Soon afterward, however, on January 26, 2015, the Petitioner revoked its voluntary dissolution. 
Although the Director did not issue the NOIR until February 12, 2015, the Director did not take that 
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Matter of C&CS-C-, Inc. 
information into account either in the NOIR or the subsequent notice of revocation. We withdraw 
this ground of revocation, but we also note that the State of Florida administratively dissolved the 
petitioning corporation on September 25, 2015. This new development is not, itselt~ a basis for our 
dismissal of the appeal. Nevertheless, if the Petitioner chooses to pursue this matter further, it must 
establish that it continues to have the right to conduct 
business in Florida. 
The Director also found that the Petitioner had not established the joint venture's ability to pay the 
Beneficiary's annual $60,000 salary, as required by 8 C.F.R. § 204.5(g)(2). Because the joint 
venture is not the intended employer, we withdraw this ground. Nevertheless, beyond the Director's 
decision, the record does not show that the petitioning employer, has established its own 
ability to pay the Beneficiary's salary. The regulation cited above requires the Petitioner to show 
this ability beginning at the time of filing and continuing until the Beneficiary attains permanent 
resident status. The Petitioner filed its Form I-140 petition on March 21, 2012, and so must establish 
ability to pay the Beneficiary from that date forward. The Petitioner has submitted copies of its tax 
returns from 2008, 2009, 2010, and 2013, with no explanation for the omission of the 2012 return 
which would include the filing date. The 2013 return does not show sufficient income or assets to 
have covered the Beneficiary's salary for that year. If the Petitioner seeks to continue this 
proceeding, it will need to provide additional eviden~e of its ability to pay the proffered wage 
continuously from 2012 onward. 
III. 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. The 
record does not support the Petitioner's assertion. 
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)(l)(C) of the Act; 8 C.P.R.§ 204.5(j)(3)(i)(C). 
Ownership and control are the deciding factors in determining whether a qualifying relationship 
exists between United States and foreign entities. See Matter ol 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. !d. at 595. 
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(i)(2). 
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Matter ofC&CS-C-, Inc. 
A. Relationship Between the Petitioner and the Beneficiary's Foreign Employer 
The Petitioner's 2013 IRS Form 1120S, U.S. Income Tax Return for an S Corporation, identified 
then the Petitioner's president, as the company's sole shareholder. A foreign owned 
corporation is not eligible for S corporation status. documentation shows that the Beneficiary 
and one each own 50% of the foreign company. Therefore, there is no shared 
ownership between the two companies. The Petitioner asserted that the aforementioned joint venture 
created a qualifying relationship between the Petitioner and the Beneficiary's foreign employer.' 
In the NOIR, the' Director stated that the Beneficiary's foreign employer and intending U.S. 
employer "are unrelated business entities." In response, the Petitioner maintained that the joint 
venture agreement created a qualifying "subsidiary relationship" between and The 
Petitioner did not claim or document any shared ownership or control between these two entities. 
The Director revoked the approval of the petition, in part because the Petitioner and the 
Beneficiary's foreign employer share no common ownership or control. On appeal, the Petitioner 
asserts that the joint venture agreement created "a Qualifying SUBSIDIARY RELATIONSHIP -
NOT an Affiliate Relationship." 
The Petitioner focuses on the parent-subsidiary relationships 
between itself and the joint venture and 
between the foreign entity and the same joint venture. By statute and regulation, however, the 
parent-subsidiary relationship must exist between the petitioning entity and the Beneficiary's 
employer abroad. The petitioning entity here is not the joint venture itself but rather one of the 
partners or owners of the joint venture. 
When two entities create a third entity as a joint venture, each of the first two entities has a parent­
subsidiary relationship with the joint venture entity, but no such relationship exists between the two 
parent entities. In this case, there is no shared ownership or control between the Petitioner and the 
Beneficiary's employer abroad. Therefore, there is no qualifying relationship between the two 
entities based on the regulatory definitions of "affiliate" or "subsidiary" and applicable case law. 
The statute expressly requires that a beneficiary seeking admission and classification as a 
multinational manager or executive must demonstrate at least one year of employment abroad "by a 
firm or corporation or other legal entity or an affiliate or subsidiary thereof' and the foreign 
national's admission to the United States must be for the purpose of"continu[ing] to render services 
to the same employer or to a subsidiary or affiliate thereof." Section 203(b )(1 )(C) of the Act. The 
Petitioner must provide evidence that "[t]he prospective employer in the United States is the same 
1 
The Petitioner did not submit evidence that the joint venture exists as a legal entity. Instead, the Petitioner stated that 
the "corporate relationship has been properly updated on the website.'' The Petitioner submitted a 
copy of a letter, dated March I, 2012, asking to update its database to reflect the existence of a 
"corporate relationship ... based on an unregistered Joint Venture Agreement" between the Petitioner and 
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Matter ofC&CS-C-, Inc. 
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)(1)(C). 
The Petitioner contends that "is a subsidiary ... because of the 50-50 Joint Venture" to be 
discussed below. The Petitioner has not identified any parent entity that owns a controlling interest 
in which would make the subsidiary of that parent entity. The Petitioner does not own 
any part of and does not own any part of the Petitioner. Therefore, neither company is a 
subsidiary ofthe other, and their mutual participation in a joint venture does not create a "subsidiary 
relationship" between those two companies. The Petitioner has not demonstrated that it has a 
qualifying relationship with the Beneficiary's foreign employer. 
B. The Joint Venture Agreement 
The Petitioner asserts that the Beneficiary will render services to the claimed joint venture, 
not to the petitioning entity, In its initial letter, the Petitioner specified that "the joint 
venture will be the subsidiary of the corporation in China." The record does not establish that the 
joint venture is a qualifying subsidiary of the Beneficiary's foreign employer. 
The Petitioner has claimed that the Beneficiary plans to come to the United States to perform 
services for and that 50% interest in the joint venture creates a parent-subsidiary 
relationship. 
But, as discussed above, the joint venture did not file the petition and it is not the 
prospective employer. Therefore, any parent-subsidiary relationship between the joint venture and 
would have no bearing on the question of whether the Petitioner, has a qualifying 
relationship with 
In addition, the Petitioner does not claim, and the record does not establish, that the joint venture 
agreement between the Petitioner and resulted in the formation of a legal entity that could serve 
as a subsidiary of both entities. The Petitioner acknowledges that the joint venture is "unregistered," 
and so it 
is not a "legal entity." 
Neither the Act nor regulation defines the phrase "joint venture." However, precedent case law 
states that the term "joint venture" applies to "a business enterprise in which two or more economic 
entities from different countries participate on a permanent basis." Matter of Hughes, 18 l&N Dec. 
289 (Comm. 1982) (quoting a definition from Endle J. Kolde, International Business Enterprise 
(Prentice Hall, 1973)). In order for a 50-50 joint venture enterprise to meet the definition of 
"subsidiary" at 8 C.F.R. 204.5(j)(2), it must be "an entity" that is owned 50-50 by two parent entities 
who exercise equal control over "the entity." An entity is defined as an organization that has a legal 
identity apart from its members or owners. Black's Law Dictionary 612 (9th Ed. 2009). The 
unregistered joint venture does not meet this standard. 
Thus, the Director properly found that the evidence of record does not establish that the joint venture 
exists as a legal entity in the United States. Without such status, we cannot consider the joint 
venture to be a subsidiary of either the Petitioner or the Beneficiary's foreign employer. 
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Matter ofC&CS-C-, Inc. 
In sum, the record does not establish that the Beneficiary's foreign employer has a qualifying 
relationship with any U.S. entity. Without such a qualifying relationship, the Beneficiary cannot 
qualify as a multinational manager or executive under section 203(b )(1 )(C) of the Act. While the 
Petitioner might intend that the Beneficiary provides services to a business created by a joint venture 
agreement, that business is not a legal entity and, therefore, not a qualifying employer for the 
purpose of this visa classification. The Petitioner has not shown that either it or the joint venture has 
a qualifying relationship with the Beneficiary's foreign employer. 2 
IV. CONCLUSION 
The Petitioner has not established the required qualifying relationship between itself and the 
Beneficiary's employer abroad. The Director approved the petition in error, and correctly revoked 
that approval upon discovering the error. 
ORDER: The appeal is dismissed. 
Cite as Matter ofC&CS-C-, Inc., ID# 240941 (AAO Mar. 16, 2017) 
2 
In the revocation notice, the Director also found that the Petitioner had not submitted credible evidence to show that the 
Petitioner and the foreign company truly intend to engage in business through the joint venture. The Petitioner, on 
appeal, does not address this finding. We need not discuss this issue in detail here, because the Director made no formal 
finding of fraud or willful misrepresentation of a material fact, and because, bona .fide or not, the joint venture 
arrangement described in the record does not establish a qualifying relationship between the companies. 
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