dismissed EB-1C Case: Real Estate And Investment

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-S-LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG . 26, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , claiming to operate as a real estate, investment , and wholesale company, seeks to 
permanently employ the Beneficiary as its "Executive Manager" 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 Nebraska Service Center denied the petition concluding that the Petitioner did not 
demonstrate that: (1) it has a qualifying relationship with the Beneficiary's foreign employer; (2) it 
was doing business for one year prior to filing this petition ; (3) it had the ability to pay the 
Beneficiary's proffered wage commencing on the date this petition was filed; and (4) it would employ 
the Beneficiary in the United States in a managerial or executive capacity. 
On appeal, the Petitioner contends that it meets all eligibility criteria and provides additional 
documentation to support its claims. 
Upon de nova review, we find that the Petitioner has not overcome the Director's findings regarding 
the issues of qualifying relationship , doing business, and ability to pay. Therefore , we will dismiss 
the appeal. Because of the dispositive effects of these findings, we will reserve the remaining issue 
regarding the Beneficiary's employment capacity in the proposed U.S . position. 
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 States 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)(l)(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 
Matter of R-S- LLC 
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(i)(3). 
II. QUALIFYING RELATIONSHIP 
The first issue to be addressed is whether the Petitioner and 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 'l, 19 
I&N Dec. at 595. 
The Petitioner initially claimed to be "folly owned by" the foreign entity, thereby indicating that it is 
the subsidiary in a parent-subsidiary relationship with the foreign entity. See 8 C.F.R. § 204.5(i)(2) 
(for the definition of "subsidiary"). However, in a subsequent statement, the Petitioner claimed that it 
"is the same employer which employed the [B]eneficiary abroad." In its latest submission on appeal, 
the Petitioner does not pursue either of the two prior claims and, instead, states that it and the foreign 
entity are affiliates because they are both owned and controlled by the same individual. See 8 C.F.R. 
§ 204.5(i)(2) (for the definitions of "affiliate"). 
Regardless of the type of qualifying relationship the Petitioner claims to have, ownership is a critical 
element. Here, the Petitioner has not provided sufficient evidence to establish its own ownership. In 
support of the petition, the Petitioner provided its original articles of organization, showing that it was 
established inc=] 2012. The record shows that in June 2017 the Petitioner filed a statement of 
information and certificate of organization naming as its sole member and owner, 
respectively. Although the certificate of organization indicates that~--~was issued 1000 shares 
of the Petitioner's stock in 2017, the Petitioner did not provide evidence showing who originally 
owned the stock when the entity was established in 2012. Without adequate documentation sholingl 
the Petitioner's original ownership, we are unable to determine who transferred the shares to 
I land whether he properly acquired the stock as a result of a valid stock transfer. The Petitioner 
also provided an operating agreement, dated June 201 7. Although the operating agreement states that 
the Petitioner "shall be managed and its corporate powers exercised by its Board of Directors," the 
document does not identify any board members. The certificate of organization also refers to the 
Petitioner's "directors" stating that "persons whose names appear below and who accepted the 
appointments by signing their names below were appointed directors of the LLC." However, the only 
2 
Matter of R-S- LLC 
signature in that document was that of I I in his capacity as secretary, which is a corporate 
officer, rather than a board member position. The Petitioner did not provide evidence showing that 
the corporate officer position of secretary conveys the authority to manage the organization. 
In response to a request for evidence (RFE), the Petitioner provided its tax return for 2017 showing 
I land the foreign entity as owners of 99% and 1 % of its stock, respectively. However, the 
Petitioner did not provide evidence showing how, when, or if this stock distribution took place and it 
did not address the inconsistency between the information provided in the tax return, which indicates 
that the Petitioner has multiple stockholders, and the claim thatl lis the Petitioner's sole 
shareholder. The Petitioner must resolve this discrepancy 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). 
On appeal, the only new evidence the Petitioner provides regardinidts ownership is a statement from 
.__ ___ __.I certifying his use of two names~ land I ~ ~ and claiming 
that he "owns both the companies 100%." The Petitioner does not provide evidence resolving the 
above described inconsistency. Moreover, the Petitioner does not provide evidence identifying its 
original owner(s) in 2012, when the entity was first established, or evidence documenting the transfer 
of stock from the original ownership to I I as documented in the certificate of organization. 
The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter 
of Chawathe, 25 I&N Dec. 369,376 (AAO 2010). 
Because of the deficiencies described above, we are unable to determine the Petitioner's ownership 
and therefore cannot conclude that the Petitioner is a subsidiary or U.S. branch office that is owned by 
or is an extension of the foreign parent entity, or that the Petitioner and the foreign entity are affiliates 
that are commonly owned byl I As the Petitioner's ownership is critical to establishing that 
it is a subsidiary, branch, or affiliate of the foreign entity and the Petitioner has not provided sufficient 
evidence to support any of these claims, we need not address the issue of the foreign entity's 
ownership. 
III. DOING BUSINESS 
The next issue to be addressed in this decision is whether the Petitioner had been doing business for 
at least one year as of December 2017, when this petition was filed. 8 C.F.R. § 204.5(i)(3)(D). The 
term doing business is defined as the regular, systematic, and continuous provision of goods and/or 
services and does not include the mere presence of an agent or office. See 8 C.F.R. § 204.5(i)(2) (for 
the definitions of "doing business"). 
In its supporting cover letter, the Petitioner stated that it was "bought over" by .... I _______ ___, I lin an effort to expand operations into areas of "[i]nvestments, [w]holesale distributions[,] and 
real estate selling and management." The Petitioner did not, however, provide evidence showing that 
it has engaged in any investment, wholesale, or real estate transactions since December 2016, one year 
prior to the filing of this petition. Although the Petitioner claimed $46,520 in gross receipts on its 
201 7 tax return, it did not provide any supporting documents to show how this revenue was generated 
and it claimed no income at all in its 2016 tax return, which would account for a portion of the one­
year period that preceded the filing of this petition. Further, despite providing nine invoices showing 
3 
Matter of R-S- LLC 
that the Petitioner has provided consulting services to~-------~ the earliest of the 
invoices was dated September 2018, thus indicating that these business activities did not occur during 
the relevant one-year time period from December 2016 and December 2017. We also note that the 
Petitioner did not describe the type of consulting services it claims to have provided, nor did it explain 
how providing those services fit within the scope of a real estate, investment, and wholesale business, 
which the Petitioner claimed it would operate at the time this petition was filed. Regardless, the 
evidence provided on appeal does not overcome the Director's finding that the Petitioner was not 
providing goods or services in a regular and continuous manner during the relevant one-year time 
period that preceded this petition's filing date. 
IV. ABILITY TO PAY 
Lastly, we will address the Director's finding that the Petitioner did not establish that it had the ability 
to pay the Beneficiary's proffered wage at the time this petition was filed. 
When filing a Form 1-140, a petitioner is required to provide copies of its annual reports, federal tax 
returns, or audited financial statements to establish that it had the ability to pay the beneficiary's 
proffered wage at the time the priority date is established and continuing until the beneficiary obtains 
lawful permanent residence. 8 C.F.R. § 204.5(g)(2). 
The petition was filed in December 2017 and indicates that the Beneficiary's proffered wage is $6,000 
per month and that the Petitioner's projected gross earnings will be $200,000. Although the 
Petitioner's 2017 tax return shows that the Petitioner paid $11,528 in salaries and wages, there is no 
evidence that the Beneficiary was a recipient of those wages or that the Petitioner had the ability to 
pay his proposed annual wage of $72,000. On appeal, the Petitioner provides the Beneficiary's U.S. 
pay stubs from 2018, evidence of wages he received from the foreign employer during his employment 
abroad, and the foreign employer's tax returns and bank statements. However, none of these 
documents are evidence of the Petitioner's ability to pay the Beneficiary's wage as of December 2017 
when this petition was filed. 
V. CONCLUSION 
The appeal will be dismissed for the above stated reasons. In visa petition proceedings, it is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter of R-S- LLC, ID# 5474747 (AAO Aug. 26, 2019) 
4