dismissed EB-1C Case: Restaurant

U.S. Citizenship 
and Immigration 
Services 
In Re: 7185771 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 24, 2020 
Form I-140C, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, describing itself in the petition as a franchised Indian vegetarian restaurant, seeks to 
permanently employ the Beneficiary as a human resources manager in the United States 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). 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish that the Beneficiary had a qualifying relationship with the Beneficiary's former foreign 
employer. The Petitioner later filed a motion to reconsider which was also denied by the Director. 
On appeal, the Petitioner asserts that the Director improperly focused on a franchising relationship 
between it and the Beneficiary's foreign employer. The Petitioner contends that the Director's focus 
should be on the ownership and control of the entities and states that the same individual owns and 
controls it and the Beneficiary's former foreign employer. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. MOTION REQUIREMENTS 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or U.S. Citizenship and Immigration Services (USCIS) policy and that the decision was incorrect 
based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
A motion may be granted if it satisfies these requirements and demonstrates eligibility for the 
requested immigration benefit. 
II. QUALIFYING RELATIONSHIP 
The sole issue we will address is whether the Director was correct in dismissing the Petitioner's 
previous motion to reconsider. As noted, the Director would only have been required to grant the 
previous motion to reconsider if the Petitioner demonstrated that the preceding decision was based on 
the incorrect application oflaw and incorrect based on the evidence on the record at that time. Further, 
the Petitioner would have had to demonstrate to the Director the Beneficiary's eligibility for the 
requested benefit. Upon review, we conclude that the Director was correct in denying the Petitioner's 
previous motion to reconsider as he correctly determined that it did not establish it had a qualifying 
relationship with the Beneficiary's former foreign employer. 
1. Background 
The Petitioner submitted a letter in response to the Director's request for evidence (RFE) stating the 
following: 
[The foreign employer] is a family owned partnership company owned by D I I j I and I I [The Petitioner is a NJ 
based Limited Liability Corporation with four ma·or shareholders,....,_ _____ ....,.. 
I r representing c21 % ), 
21% and 
.--,__ _____ ..., 
representing .__ ______ ___.(21 % ). As such,~-----------' owns 
33% of the overseas entity and 21 % of the [Petitioner]. However, he own[s] foll 
~mal control of the US entity based on a contract between I I 
L___J and [SBH] and a contract between [SBH] and [the Petitioner]. Accordingly 
the relationship between the overseas entity and the [Petitioner] is that of affiliates as 
well as joint venture partners in which one individual controls all the operations of the 
overseas entity and the [Petitioner]. 
The Petitioner also emphasized a meeting of its shareholders in November 2011 pursuant to which 
"the members assigned a 21 % eruity share in the [Petitioner] and foll operational control of the 
operations of the [Petitioner] to I as per the terms of the Franchise/Joint Venture 
Agreement." Further, the Petitioner submitted a 2017 JRS Form 1065 U.S. R: of Partn~rshITJ 
Income reflecting the followin artners in schedule K-1: I ½21 % ), ~ I I I (2 l % ), '-------,,------...------,%),I (7% ), ,..__--,-----'( 5 % ), 
I 1(4%),andthe~----~(21%).
1 
Later on motion, the Petitioner stated that the foreign employer and Petitioner were parent and 
subsidiary stating that the franchise agreements acted as a "joint venture" giving "ownership and 
control to a single entity, [SBH]." It also indicated that i .r O • I owned [SBH, 
and therefore] owned and controlled both the [ foreign employer] and the [Petitioner] and accordingly 
the relationship between the entities is that of an affiliate." On appeal, the Petitioner again submits 
these same contentions. 
2. Analysis 
Upon review, the Director was correct in concluding that the Petitioner did not establish a qualifying 
relationship between it and the Beneficiary's former foreign employer. 
1 In addition, schedule K-1 also indicated that._l ___ ra=nd=l _____ -r-__ _.lwere ·'general partner[s] or LLC 
member-manager[s]" as well as "domestic partner[s];" I was a "foreign limited partner;" and the 
remaining partners were "limited domestic partners." 
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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 )(1 )(C) of the Act. 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 )(1 )(C) of 
the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). "Affiliate" means one of two subsidiaries, both of which are 
owned and controlled by the same parent or individuals; or 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. 8 C.F.R. § 204.5(j)(2). 
We concur with the Petitioner that the applicable regulations 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. See Matter of 
Church Scientology Int 'l, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Med. Sys., Inc., 
19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). However, we 
note that this analysis includes determining not just control, but whether there is common ownership 
between the entities. 
First, the Petitioner has not sufficiently established its ownership as necessary to demonstrate a 
qualifying relationship. As general evidence of a petitioner's claimed qualifying relationship, the 
Petitioner must submit documentary evidence of its ownership, such as a certificate of formation or 
organization, as well as other documentation such entities are generally obligated to maintain by law. 
This documentation can include records identifying members by name, address, and percentage of 
ownership, written statements of the contributions made by each member, the times at which 
additional contributions are to be made, events requiring the dissolution of the limited liability 
company, and the dates on which each member became a member. These membership records, along 
with the LLC's operating agreement, certificates of membership interest, and minutes of membership 
and management meetings, must be examined to determine the total number of members, the 
percentage of each member's ownership interest, the appointment of managers, and the degree of 
control ceded to the managers by the members. Additionally, a petitioning company must disclose all 
agreements relating to the voting of interests, the distribution of profit, the management and direction 
of the entity, and any other factor affecting control of the entity. Matter of Siemens Med. Sys., Inc., 
19 I&N Dec. 362 (Comm'r 1986). 
The Petitioner provided none of the supporting documentation discussed above to demonstrate its 
ownership, such as its operating agreement, membership shares, minutes of its meetings reflecting the 
issuance of membership interests, or evidence of consideration paid by its members. The lack of this 
evidence is noteworthy since the provided IRS Form 1065 reflects that the Petitioner has many 
different owners and that they differ in their ownership status; for instance, this document indicates 
that some of its owners are foll partners while some are limited partners. Without foll disclosure of 
all relevant documents, the Petitioner has not sufficiently established its ownership. 
However, even if we accept that the submitted documentation sufficiently established the Petitioner's 
ownership, this asserted ownership does not reflect on its face that it and the foreign employer are 
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parent and subsidiary, since the evidence indicates that neither entity wholly owns the other. Likewise, 
the Petitioner did not establish that the Petitioner and foreign employer are affiliates. The IRS Form 
1065 appears to reflect that the Petitioner is owned by seven different individuals or entities with none 
owning more than 21 % of the limited liability company. Further, the Petitioner states, and supporting 
documentation confirms that, the foreign employer is a partnership owned by three parties. For 
instance, the Petitioner states that 'I I owns 33% of the overseas entity," 
suggesting that his two other asserted partners each own 33% as well. However, the claimed owner 
of both entities,! [ appears to hold only a 21 % ownership interest in the Petitioner and 
only a 33% ownership interest in the foreign employer. Therefore, the supporting documentation 
indicates that neither the Petitioner nor foreign employer are majority owned by the same parent or 
individual. 
In addition, the foreign employer and the Petitioner are not one of two legal entities owned and 
controlled by the same group of individuals, with each individual owning and controlling 
approximately the same share or proportion of each entity. Again, the submitted IRS Form 1065 
indicates that the Petitioner is owned by seven entities or individuals, while the foreign employer 
appears to be owned by three partners. As such, the Petitioner and foreign employer do not meet the 
definition of affiliates, regardless of whether the referenced franchisin: a:reements or other 
arrangements grant asserted operational control of these entities tol O I We decline to 
address these asserted franchising relationships and agreements as to control of the Petitioner since it 
has not demonstrated its ownership or that it shares common ownership with the foreign employer. 
The Petitioner has not established a qualifying relationship between it and the foreign employer. 
For the foregoing reasons, we will dismiss the appeal as the Director was correct to dismiss the 
Petitioner's previous motion to reconsider. 
ORDER: The appeal is dismissed. 
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