dismissed EB-1C Case: Real Estate

MATTER OF D-MG- CO. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY31,2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a "real estate enterprise," seeks to permanently employ the Beneficiary as its 
manager under the first preference immigrant classification for multinational executives or 
managers. 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 denied the petition, concluding that the Petitioner did not 
establish, as required, that: (1) it has a qualifying relationship with the Beneficiary's foreign 
employer; (2) the Beneficiary would be employed in the United States in a managerial capacity; and 
(3) it had been doing business for at least one year at the time it filed the petition. We dismissed the 
Petitioner's appeal of that decision and denied its subsequent motion to reconsider, finding that the 
Petitioner had not established that our dismissal of its appeal was based on an incorrect application 
oflaw or policy. 
The matter is now before us again on a motion to reopen. On motion, the Petitioner submits a brief 
and provides copies of evidence that is already in the record, as well as one document that was not 
provided previously. The Petitioner asserts that it has now overcome all three grounds for denial of 
the petition. 
Upon review, we will deny the motion. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such 
as, for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with 
the correct fee), and show proper cause for granting the motion. 8 C.F.R. § 103.5(a)(l). 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding; and (2) be supported by affidavits or other documentary evidence. 8 C.F .R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
Matter of D-MG- Co. 
II. ANALYSIS 
In denying the Petitioner's motion to reconsider, we found that the Petitioner's brief did not address 
the specific deficiencies discussed at length in our previous decision. Further, the brief discussed 
only two of the three grounds for denial of the petition and dismissal of the appeal. Although the 
prior motion contained citations to relevant statutory and regulatory provisions, we determined that 
the Petitioner did not establish that we misapplied the statutory or regulatory requirements to the 
facts of this case, and therefore did not meet the requirements of a motion to reconsider set forth at 8 
C.F.R. § 103.5(a)(l). 
Further, we observed that the record continued to lack material evidence needed to establish 
eligibility, including: (1) evidence of the ownership and control of the petitioning company in 
support of the Petitioner's claim that it has a qualifying relationship with the Beneficiary's foreign 
employer; (2) a detailed job description for the Beneficiary and evidence of the number or types of 
employees or contractors engaged by the Petitioner to assist the Beneficiary with the company's 
non-managerial duties; and (3) evidence of business transactions documenting the nature and scope 
of the company's business activities in support of its claim that it was doing business at the time of 
filing. 
In support of its motion to reopen, the Petitioner provides a brief in which it repeats its prior 
assertions and generally contends that it has satisfied all evidentiary requirements for the requested 
classification. · The Petitioner also submits documentary evidence, most of which was submitted 
previously. 
The regulation at 8 C.F.R. § 103.5(a)(2) does not define what constitutes a "new" fact, nor does it 
mirror the Board of Immigration Appeals' (the Board) definition of "new" at 8 C.F.R. 
§ 1003.23(b)(3) (stating that a motion to reopen will not be granted unless the evidence "was not 
available and could not have been discovered or presented at the former hearing"). Unlike the Board 
regulation, we do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable. Instead, we interpret "new facts" to mean facts that are relevant to the issue(s) 
raised on motion and that have not been previously submitted in the proceeding, which includes the 
original petition. Reasserting previously stated facts or resubmitting previously provided evidence 
does not constitute "new facts." 
A. Qualifying Relationship 
The only "new" fact or evidence submitted in support of this motion to reopen relates to the issue of 
the Petitioner's qualifying relationship with the Beneficiary's foreign employer. To establish a 
"qualifying relationship," the Petitioner must show that the Beneficiary's foreign employer and the 
proposed U.S. employer are the same employer (a U.S. entity with a foreign office) or related as a 
"parent and subsidiary" or as "affiliates." See § 203(b)(l)(C) of the Act; see also 8 C.F.R. § 
204.5G)(2) (providing definitions of the terms "affiliate" and "subsidiary"). Here, we determined 
that the Petitioner did not establish a qualifying relationship with the foreign entity because it did not 
submit sufficient evidence to establish who actually owns and controls the petitioning company. 
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Matter of D-MG- Co. 
In support of the motion, the Petitioner submits for the first time a copy of its stock certificate 
number 4 indicating that the Beneficiary owns 100 (or 10%) of the company's 1000 issued shares. 
The record also contains evidence indicating that the Beneficiary owned a 50% interest in the 
foreign employer when it was formed in 2003. The Petitioner now claims that the two entities are 
affiliates, whereas it previously claimed that the companies have an "association" based on a shared 
business purpose and a familial relationship. However, this new evidence is insufficient to establish 
that the Petitioner has an affiliate or other qualifying relationship with the foreign entity and does not 
overcome our reasons for dismissing the motion to reconsider. 
The term "affiliate" if defined, in pertinent part, as "one of two subsidiaries both of which are owned 
and controlled by the same parent or individual"; or "one of two legal entities owned and controlled 
by the same group of individuals, each owning and controlling approximately the same share or 
proportion of each entity." See 8 C.F.R. § 204.50)(2). 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws, 
and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent 
percentage ownership and its effect on corporate control. In addition, a petitioning company must 
disclose all agreements relating to the voting of shares, the distribution of profit, the management 
and direction of the subsidiary, and any other factor affecting control of the entity. See Matter of 
Siemens Med Sys., Inc., 19 I&N Dec. 362 (Comm'r 1962). Without full disclosure of all relevant 
documents, we are unable to determine the elements of ownership and control. 
Here, the minimal evidence submitted indicates that the Beneficiary owns ( or owned) 10% of the 
Petitioner's shares, and 50% of the foreign entity. The Petitioner has not provided evidence showing 
who owns the remaining 90% of its shares, nor has it established that the Beneficiary controls the 
company as a minority owner. 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). 
Absent full documentation of the company's ownership and control, the Petitioner has not met its 
burden to show that it is an affiliate of the foreign entity based on common ownership by the 
Beneficiary, by another individual, or by the same group of individuals. The Petitioner has not 
submitted new facts that would warrant reopening this matter. 
B. Remaining Grounds for Denial 
The Petitioner has not offered any new facts relevant to the two remaining issues addressed in our 
decision denying its motion to reconsider, specifically: (1) whether the Beneficiary would be 
employed in the United States in a managerial capacity; and (2) whether the Petitioner was doing 
business for at least one year at the time it filed this immigrant petition in January 2016. 
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MatterofD-MG-Co. 
The Petitioner's brief reiterates the Beneficiary's proposed U.S. position description, but it does not 
provide any new facts or evidence pertaining to its claim that it will employ the Beneficiary in the 
United States in a managerial capacity as defined at section 101(a)(44)(A) of the Act, 8 U.S.C. 
§ 11 0l(a)(44)(A). We will not revisit this previously-submitted information and therefore find that 
the Petitioner has not overcome our adverse finding with respect to the Beneficiary's proposed U.S. 
employment. That finding was based on the lack of a detailed position description for the 
Beneficiary and the lack of evidence that the Petitioner has employees or contractors to perform the 
company's day-to-day administrative and operational duties. 
Similarly, the Petitioner does not introduce new facts or otherwise address the issue of whether it 
was doing business in the year preceding the filing of the petition and has not overcome our most 
recent decision with respect to that ground of ineligibility. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening. 
ORDER: The motion to reopen is denied. 
Cite as Matter of D-MG- Co., ID# 1572229 (AAO July 31, 2018) 
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