dismissed EB-1C Case: Remodeling

identifying datadeletedto
preventclearlyunwarranted
invasionofpersooalprivacy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLICCoPV
FILE:
SRC 06 016 52615
Office: TEXAS SERVICE CENTER Date:
N'RO'.
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § l153(b)(1)(C)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~
Robe~ann,- Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. The matter
was subsequently reviewed by the Administrative Appeals Office (AAO) on appeal and ultimately remanded
for further consideration. The director has since issued a notice of intent to deny (NOID) and a final decision
denying the petitioner's Form 1-140. The denial has been certified to the AAO for review. The director's
decision will be affirmed.
The petitioner is organized in the State of Florida as a limited liability company. It is engaged in the business
of providing remodeling, repair, and renovation services and seeks to employ the beneficiary as its general
manager. Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based
immigrant pursuant to section 203(b)(1)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C.
§ llS3(b)(I)(C), as a multinational executive or manager. The director denied the petition based on the
determination that the petitioner failed to establish that the beneficiary would be employed in a managerial or
executive capacity.
On appeal, counsel provided a brief and additional documentation regarding the beneficiary's proposed
employment, whIch led the AAO to conclude that the petitioner had successfully overcome the director's sole
ground for denial. However, the AAO determined that the petitioner failed to establish that it has a qualifying
relationship with the beneficiary's foreign employer. Accordingly, the AAO remanded the matter back to the
service center, instructing the director to address the issue of ownership and control of the U.S. petitioner and
the beneficiary's foreign employer.
Section 203(b) of the Act states in pertinent part:
(1) 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 1 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 is
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)(l)(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.
Page 3
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 means 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, directly 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.
In support of the claim that the U.S. entity is majority owned by the beneficiary's foreign employer, the
petitioner provided the following documentation:
1. The petitioner's Articles of Organization containing Articles I through IV and a Schedule of
Membership. Article IV of the petitioner's Articles of Organization stated that the
petitioner is a manager managed organization and identified its four individual managers:
the beneficiary, The
petitioner's Schedu e 0 em ers Ip 1 entl Ie t ee owners: t e orelgn entIty WIt 51%
ownership, the beneficiary with 24.5% ownership, and ~th 24.5%
ownership.
2. The petitioner's 2003 and 2004 Form 1120 corporate tax returns with attached schedules.
The Schedule Ks of both tax returns indicated that the petitioner had no foreign ownership.
On November 16, 2005, the director issued a notice of intent to deny (NOID) pointing out the discrepancy
between the petitioner's claim regarding its ownership and Schedule Ks of the petitioner's tax returns. The
petitioner was asked to resolve this inconsistency.
In response, the petitioner provided the following documentation:
1. Three membership certificates 5-7 breaking down the petitioner's ownership as provided in
the Schedule of Membership.
2. The petitioner's stock transfer ledger reiterating the information provided in the
membership certificates and showing that membership certificates 1-4 were voided due to
error.
Page 4
3. Documentation showing the petitioner's registration with the Florida Department of State,
Division of Corporations. The document shows that the petitioner was organized as a
limited liability company and that it is managed by the four individuals named in Article N
of the petitioner's Articles of Organization, a copy of which was resubmitted.
4. A banking information sheet showing the date the petitioner's checking account was opened
and the balance of that account as of July 8, 2002.
5. A letter dated December 8, 2005 from the petitioner's accountant explaining that the
Schedule Ks of the petitioner's tax returns for 2003 and 2004 were amended to reflect the
petitioner's foreign ownership.
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 ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289
(Comm. 1982). Despite the petitioner's apparent misconception, ownership and control are two separate
elements and, therefore, must be individually addressed.
In the instant matter, while it appears that the petitioner has established common ownership with the foreign
. entity, the issue of control remains in question. More specifically, the record appears to show that majority
ownership of the U.S. entity belongs to the beneficiary's foreign employer. However, control of the U.S.
entity is held by the four managers identified in Article N of the petitioner's Articles of Organization.
Despite the petitioner's claim, the foreign parent company's control over the petitioner is not apparent based
on the documentation provided. The petitioner submitted no documentation to establish that the foreign
entity's ownership of 51% of the U.s. entity is sufficient to overcome any decision made by the company's
four managers. This lack of documentation by the foreign entity coupled with the information provided in
Article N of the Articles of Organization suggest that the four individuals named as the petitioner's managers
have control over the U.S. entity, not the majority owner.
Pursuant to the AAO's remand, the director issued a NOm dated October 30, 2006 briefly restating the main
issue that must be resolved in order for eligibility to be established. The director restated the ownership
breakdown and asked the petitioner to provide evidence showing that the U.S. petitioner and the beneficiary's
foreign employer share common ownership and control.
There is no evidence in the record that the petitioner responded to the director's NOlD. Accordingly, the
director denied the petition in a decision dated December 8, 2006. Again, the record does not show that
additional evidence or information has been submitted to address the ground for ineligibility cited in the
director's denial.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden.
ORDER: The director's decision dated December 8, 2006 is affirmed.