dismissed EB-1C Case: Production Management

(b)(6)
DATE: FEB 0 1 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)( I)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)( I )(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of th~ Administrative Appeals Office in your case . All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised I hal 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law wfs inappropriately applied by us in reaching our decision. or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F .R. § I 03.5(a)(l )(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen . 
Thank you, 
Cj f4t:strative Appeals Office 
www.uscis.gov 
(b)(6)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 Texas corporation that seeks to employ the beneficiary in the United States as its 
production planning and control manager. Accordingly, the petitioner endeavors to classify the beneficiary as 
an employment-based immigrant pursuant to section 203(b)( I )(C) of the Immigration and Nationality Act 
(the Act), 8 U .S.C. § 1153(b )(I )(C), as a multinational executive or manager. 
In support of the Form 1-140 the petitioner submitted a statement dated April 26, 20 II, which contained 
relevant information pertaining to the petitioner's statutory eligibility. Supporting evidence included the 
petitioner's 2009 IRS Form 1120, U.S. Corporation Income Tax Return, Schedule E, which identified 
as owner of 100% of the petitioner's common stock. With regard to the foreign entity's 
ownership, the petitioner provided a memorandum of association, which indicated (at Part V, page 14) that 
and his wife each owned one equity share. The same information was reiterated in the foreign 
entity's articles of association (page 13). Additionally, the petitioner provided an undated worksheet, which 
listed the names and shareholding patterns for three foreign entities, including the beneficiary's employer 
abroad. It is noted that the shareholding pattern pertaining to the beneficiary's foreign employer showed thnt 
owned approximately 87% of that entity. 
The director reviewed the petitioner's submissions and determined that the petition did not wan·ant approvnl. 
The director therefore issued a request for evidence (RFE) dated September 8, 2011 informing the petitioner 
of various evidentiary deficiencies. Among the issues the director addressed was the petitioner's qualifying 
relatio'nship with the beneficiary's employer abroad. Specifically, the director instructed the petitioner to 
provide evidence in support of the information that was included in the worksheet discussed above . The 
director also asked for evidence showing ownership and control ofthe petitioning entity . 
Although the petitioner responded to the RFE, it failed to provide the requested information pertaining . to the 
petitioner's qualifying relationship with the beneficiary's foreign employer. In fact, Exhibit I, which was 
supposed to contain evidence concerning the ownership and control of the beneficiary's foreign and proposed 
employers, was devoid of any supporting evidence. The petitioner did, however, provide a copy of its 20 I 0 
corporate tax return (IRS Form 1120) in response to another portion of the RFE. It is noted that Schedule G of 
the 2010 Form 1120 listed a total of six shareholders for the petitioning entity. was 
shown as owning only 5% of the petitioning entity as compared to his 87% ownership of the foreign entity ns 
> 
indicated in the worksheet that was originally submitted in support of the Form 1-140. It is noted thnt fnilure 
to submit requested e~idence that precludes a material line of inquiry shall be grounds for denying the 
petition~ 8 C:F.R. § 103.2(b)(l4): 
After considering the petitioner's response, the director determined that the pe11t10ner failed to provide 
sufficient evidence to establish that it has a qualifying relationship with the beneficiary's employer abroad . 
The director noted th~ different ownership breakdowns when comparing the petitioner's 2009 tax return with 
its subsequent tax return for 20 I 0, observing that no documentation was submitted to support the change in 
ownership and further finding that the two tax returns were inconsistent on the subject of the petitioner's 
ownership breakdown . The director also noted the petitioner's failure to comply with the request for 
supporting evidence regarding the ownership of the beneficiary's foreign employer and specificnlly pointed 
(b)(6)
Page 3 
out the lack of evidence regarding the ownership of . one of the 
Accordingly, the foreign entities whose ownership was addressed in the undated worksheet discussed above . 
director issued a decision dated January 6, 2012 denying the petition. 
On appeal, counsel asserts 'that sufficient evidence of a qualifying relationship was provided originally 111 
support of the petition and further finds that the director erred in placing any focus on the ownership of 
which she claims is irrelevant in the matter at hand. Counsel 
also provides an appellate brief in an attempt to overcome the director's decision. 
Although the AAO concurs with counsel's contention regarding the relevance of I 
, the counsel's remaining statements are not persuasive in overcoming the director's chief 
concerns regarding the lack of sufficient documentation establishing the existence of a qualifyirig relationship 
between the petitioner and the beneficiary's foreign employer. The discussion below will provide an analysis 
of the relevant factors concerning the issue at hand. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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 1s 
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 firm, 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)(I)(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. 
As previously noted, the primary issue in this proceeding is whether the petitioner has a qualifying 
relationship with the entity that employed the beneficiary abroad. To establish a "qualifying relationship'· 
under the Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the 
(b)(6)Page4 
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§ 203(b)(I)(C) of the Act, 8 U.S.C. * 1153(b)(I)(C); see also 
8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. § 204.5(j)(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 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 m~ans 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, directl .Y 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., 19 I&N Dec. 362 (Assoc. Comm. 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; 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, t9·I&N Dec. at 595. 
In the present matter, evidence leading up to, but not including that which was submitted on appeal indicates 
that there 
was a change in the ownership of the petitioning entity. Namely, while the petitioner's 2009 tax 
return names as owner of 100% of the petitioning entity, the petitioner ' s 20 I 0 tax ·return 
indicates that there 
was a change in the petitioner's ownership such that not only became a 
minority owner, holding only 5o/~ of the petitioner's stock, but that five additional owners had been added to 
the petitioner's ownership roster. Thus, even if the AAO overlooks the petitioner's failure to comply with the 
RFE' s request for additional documentation pertaining to ownership of the foreign entity and instead rei ies 
entirely on the undated worksheet that was submitted originally with the Form 1-140, the record would show 
that while owns a majority of the foreign entity's shares, the petitioning U.S. entity has no 
one individual holding a majority of the shares and, in fact, now owns fewer shares than four of 
the petitioner's shareholders. · 
(b)(6)
~ . . . 
Page 5 
On appeal, counsel offers a statement from the petitioner's accountant and evidence of an established limited 
partnership in which is owner of the entity that is the general partner and thus the key decision­
making individual of the limited partnership . However, neither document establishes that ts 
majority shareholder of the petitioning entity; nor is either document an adequate substitute for the 
documentation that the director requested in the RFE, where he sought evidence to corroborat e the undated 
and unsigned worksheet, which purported to outline the foreign entity's ownership. The AAO notes that 
while the limited partnership may have been an effective estate planning tool, it is the petition er's burden to 
establish that the partnership did not affect the majority ownership of the U.S. petitioner. as 
ownership, not just control, of the petitioning entity must be established )n order to determine the existenc e of 
a qualifying relationship. Mere assertions of the petitioner's counsel are not sufficient to establish that 
majority ownership and control of the petitioning entity remain with The unsupported asserti ons 
of counsel do not con stitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter o{ 
Laureano, I9 I&N Dec . I (BIA I983); Matter of Ramirez-Sanchez, 17 I&N Dec . 503, 506 (BIA 1980). 
Although the . pet1t10ner has now provided adequate documentation establishing majority 
ownership of the foreign entity, in light of the grave deficiencies discussed above with regard to the 
ownership of the U.S. entity , the ~AO finds that the petitioner has failed to adequately document the 
existence of a qualifying relationship between itself and the beneficiary's foreign employer. Accordingly, the 
appeal will be dismissed. 
Finally, with regard to counsel's reliance on to the petitioner's current approved. L-1 employment of the 
beneficiary, the AAO notes .that 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. USCIS is not requir ed 
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 th~ present matter. The prior nonimmigrant 
approvals do not preclude USCIS from denying an extension petition . See e.g. Texa.~ A&M Univ. v. 
Upchurch, 99 Fed. Appx . 556, 2004 WL I240482 (5th Cir. 2004). The approval of a nonimmigrant petition 
in no way guarantees that USCIS will approve an immigrant petition filed on behalf ofthe same beneficiary. 
USCIS denies many I-I40 immigrant petitions after approving . prior nonimmigrant 1-129 L-1 petitions . See. 
e.g., Q Data Consulting , Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US v. US Dept. of Justi ce, 48 F. Supp. 2d 22 
(D.D.C. 1999) ; Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. I 103 (E.D.N.Y. 1989). 
Furthermore, the record shows that at least one of the petitioner's L-1 A petitions was issued prior to the filing 
of the petitioner's 20 I 0 tax return, which contained the information indicating that a ·charige in the petitioner's 
owner ship had occurred. Regardless , the AAO 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 (Comm . 1988) . It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. deni ed, 485 U.S .l008 (1988). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29I of the Act, 8 U.S.C . § 1361. The petitioner has not sustained that burden . 
ORDER : The appear is dismissed .