dismissed EB-1C Case: Retail Business

(b)(6)
U.S. Department ofHomeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office(AAO) 
PATE_: 
DEC \3 2013 
IN RE: Petitioner: 
:Senefi¢iary: 
OFFICE: TEXAS SERVICE CENTER 
20 Massachusetts Ave. N.W., MS ?090 
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 )(1 )(C) of the II?migration and Nationality Act, 8 U.S. C. § 1153(b )(1 )(C) 
ON BEHALF OF J>EtltlONER: 
INSTRUCTiONS: 
~nc1 0sed please find t}J.e decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current iaw or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider ot a 
mo.tio11 to reopen, respectively. Any motion must be filed .on a: Notice of Appeal or Motion (Form I-290B) 
within 33 days of. the date Of this decision. Please review the Form 1•290B instructions· at 
http:/iwww.uscis.gov/forms for the latest information on fee, filing iocation, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you., 
~Ron Rosenberg 
Chief,. Administrative App~ls Office 
www.uscis.gov 
I 
(b)(6)
NON-PRECEDENT DECISION 
Page2 
DISCl)SSION: The Director, Tex<~,s Service Center, denied th,e preference vis<J. petition . The matter is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismiss~d. 
The petitioner is a Tennessee corporation that seeks to employ the beneficiary as its operations manager. 
Accordingly, the petitioner endeavors to classify the beneficiary as an employment-based 
immigrant pursuant 
to se<;:t.i.<m 203(b)(1)(C) of the ltt_H.nigration <~,nci Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition, concluding that the petitioner failed to establish that it would employ the 
- beneficiary in a qualifying managerial or executive capacity. On appeal, counsel asserts that the director's 
d~cision coot<lin_ed legal and factual errors. Cou:nsel c<;mtends that the evidence establishes that the 
beneficiary will be employed in a qualifying executive capac~ty or as a function manager. 
I. TheLaw 
Section 2.03(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) Certai_n · ~ultinaticmal Executives a_iid 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 ao<l admi_ssion 
into the United States under this subparagraph, has been employed 
for at least 1 yeat by a firm or corporation or other legal entity or an 
affiliate or subsidiary thereof anq who seeks to enter the United 
States. in order to continue to render services. to the same employer ot 
to a subSidiary or affili~te thereofln 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 
nave previously worked for a fion, 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 fot classification of an alien under sect1on 
203(b)(l)(C) of the Act as a multinational executive or ma.n_ager. No labor certification is required for this 
classification. The prospective employer in the United States rn11st 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. 
(b)(6)
NON-PRECEDENT DECISION 
PageJ 
Section101(a)(44)(A) oftb~ Act, 8 U.S.C. § 1101(a)(44)(A), provides: 
The term "managerial capacity'' means an assignment within an organization in which the 
employee primarily--
(i) manages the orgaQiZation, or a department, subdivisiOn, fynction, or 
component of the organiza-tion; 
(ii) supervises and controls the wqrk of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
. (iii) if another employee or other employees (lfe directly s(ipervised, ha.s tb.e 
authority to hire and fire or reco1J1mend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, function~ at a senior level within the organizational 
hierarchy or with respect to the functionmanaged; and 
(iv) ex.ercises discretion ove-r tbe d_ay·to-day operations of fu~ ;1ctivity or f@ctiop 
for 
which tl_le employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(J3), provides: 
The term "executive capacity'' means an assignment within an organization m which the 
employee priiliatily-- . 
(i) directs the 
management of the organization or a major component or function 
of the organization; 
(ii) establishes the ~oals and policies of the organiz_atj0n, compopent, or 
function; 
(iii) exercises wide latitude in discretionary decision-making; ·and 
(iv) receives only general supervision or direction from higher level executives, 
the boatd of directors, or stockholders ~fthe organization. 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
Addi~ionally, the regtllations at 8 C.F.R. § 204.5(j)(3)(i) state. that the petitioner rt:n,Ist provide the following 
evidence in support ofthe petition in order to est~blish eligibility: 
(A) If the alien is outside the United States, in the three years immediately preceding the 
filing of the petition the alien has been employed outside the United States for at least 
one year in a managerial or exeeutive capacity by a firm or corporation, or other iegal 
entity, or by a.f:l affiliate or subSidiary of such a firm or c(>tporlj.tion or other legal 
entity; or 
(B) If the allen is already in the United States working for the same employer or a 
subsidiary or affiliate of the firni ot corporation, or other legal entity by which the 
alien was employed overseas, in the three years preceding entr'y as a nonimmigrant, 
the alien was employe<! by the entity abroad for at least one year in a managerial or 
executive capacity; . 
(C) The prospective employer in the United ,States is the same employer or a subsidiary 
or affiliate of the firm or corporation or other legal entity by whfch the alien was 
employed overseas; and 
(D) The prospectiye United States employer ha,s been doing business fot a.t least one year. 
II. Procedural History 
The record shows that the petitioner filed the For'Qi, J.,.J40 on April 2, 2013 and submitted a number of 
supporting documents in an effort to establish eligibility for the above Stated immigration benefit. The 
petitioner stated on the Form I-140 that it is engaged in the business of investing i_n and operating retail and 
other businesses and claimed six employees 
at the time of filing. The petitioner provided business invoices ~s 
well as tax and corporate documents in support of the petition. 
The petitioner also provided 
a supporting statement dated March 6, 2013, which contained a description ofthe 
benefiCiary's proposed duties. The petitioner stated that the beneficiary will oversee its business operations 
by ma:nagiog all essentiaJ fu_nctiof).s, including the retail ousiness's personnel, purchasing, and sales and 
marketing. The beneficiary would also seek for ways to expanq the business; hl!-ve discretion over hiring and 
firing employees, determine demand for goods, negotiate' with distributors, oversee key service providerS such 
as accountants and brokers, and review business data. The petitioner explained that the benefiCiary 
"occasionally performs non-managerial dutie~·· and may "man a store" when necessary in order to maintain 
c.orttinued operation of the busin.ess. The petitioner asked the director to consider its limited staff in light of 
its business need's a:ild _stage of development in a tough economic climate. The petitioner did not identify the 
benefi¢iilry as a personnel or a: function manager, but rather asked the d-Irector to consider the beneficiary in 
the role of function manager as an alternate consideration. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
On M~y 7, 2013, the director issued a request for evidence (RFE), indicating that the record did not contain 
sufficient evidence of eligibility to warrant approval of the petition. The director instructed the petitioner to 
provide a supplementary job description for the beneficiary's proposed employment, listing the beneficiary's 
specific dai"ly job duties and the percentage of time the beneficiary would allocate to each item on the list. 
Additionally, the director asked for the submission of the petitioner's organizational chart illustrating the 
hierarchical stru_ctl!re and the beneficiary's <.lirect_stlbor<.linates. Tbe petitioner w~s aske<.l to provide brief job 
<.lescriptions of the beneficiary's subordinates as well as their respective educational credentials and full- or 
part-time employment status. Lastly, the director asked for the submission of IRS Form W-2 wage and tax 
statements for the 
relevant time period for each employee along with evidence of any paid contract labor. 
The petitioner's response to the RFE included a statement dated July 12, 2013, an organizational chart, wage 
and tax statements from 2009~2012, and evidence showing that tlie petitioner paid for the services of a 
certi_fied public accol!ntant. The petitioner's organizational ch_art deptcts the beneficiary at t_be top of an 
organization that consists of two retail stores - one with a staff of one supervisor and two store _clerks and the 
other with a staff of one store clerk and one supervisor/clerk. 
The directOr reviewed the petitioner's submissions and determined that the record lacked sufficient evidence 
to establish that it would employ tbe benefici~ry in the Unite<.l States io a qualifying managerial or executive 
capacity. The director questioned whether the petitioner's organizational complexity is sufficient to wa_rtant a 
position that is primarily within a qualifying capacity and found that the petitioner's description of the 
beneficiary's duties did not provide sufficient information regarding what the beneficiary would be doing on a 
day-to-day basis. Accordingly, the director issued a decision dated August 30, 2013 denyingthe petition. 
On September 30; 2013, the petitioner filed an appeal with a_ supporting appellate brief in which counsel 
claims that the beneficiary will be employed as a "function manager." Counsel contenci.s t_hat tbe director 
failed to give 
1
proper consideration to the beneficiary's job description and points out that the director 
erroneously referred to position titles and educational credentials that do not apply to any of the petitioner's 
employees. Counsel asserts that the beneficiary's key focus in his proposed position is on business 
development, which includes researching to find· business opportunities, overseeing finances, regulat()ry 
obligations, personnel, purchasing, and sales and marketing. Next, counsel states that whether or not the store 
employees are,professional is irrelevant given that the beneficiary is a function manager and therefore does 
not focus primarily on the managemeQt. of a su·ppm:t staff. Counsel claims that the petitioner has sufficient 
support personnel to relieve the beneficiary 
from having to perform non-qualifying tasks. 
Ill. Analysis 
Upon review, the petitioner has not established that it will employ the beneficiary iri a qualifying managerial 
or executive capacity. 
In general, when examining the executive or managerial capacity of a given position, USCIS reviews the 
totality of the record, starting first with the petitioner's description of the beneficiary's job duties. See 8 C.P.R. 
§ 204.5(j)(5). As the director stressed in the RFE and later in his denial of the petition, a detailed job 
(b)(6)
I 
) 
NON-PRECEDENT DECISION 
Page6 
description is crudal,as the duties themselves Will reveal tlu~ true n.atl!re of the beneficiary's foreign and 
proposed employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 
F.2d 41 C~d. Cir. 1990). 
Additionally, the evidence of record must show that the petitioner is capable of relieving the beneficiary from 
having to primarily perform non-qualifying tasks. This detetmination often calls for an examination of the 
petitioner's staffing structure, as merely claiming that the petitioner is capable of employing t_he beneficiary in 
a qualifying capacity is not sufficient without actual evidence establishing who within the petitioner's 
org·ani:?ational hierarchy is available to perform the daily operational and other non-managerial tasks. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
. proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Cotnm. 1972)). In reviewing the relevance of the 
number of employees a petitioner has, federal courts have generally agreed that USCIS "may properly 
consider an organi.zation's small size as one factor in assessing whether its operations are substantial enough 
to S\lpport a manager.'' Family, Inc. v: U.S. Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9th 
Cir. 2006) (citing with approval Republic ofTranskei v. INS, 923 F.2d.175, 178 (D.C. Clr.I991); Fedin Bros. 
Co. v. Sava, 905 F.2d at 42; Q Data Consulting, Inc. v. INS, 293 F. Stipp. 2d 25, 29 (D.D.C. 2003). 
Furthermore, it· is appropriate for USCIS to consider the sj~e of the petitioning company in conjUnction with 
othet relevant factors, such as a company's small personnel size, tile absence of employees who would 
perform tile non-managerial or non-executive operations of the company, or a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 
15 (D.D.C. 2001). 
In the present matter, the record shows that at the time of fiHng tbe petitioner was comprised of two retail 
locations, which, accord.ing to the petitioner's organizational chart, employed a combined total of five 
employees, not including the beneficiary. The AAO notes that despite the director's instruction asking the 
petitioner to provide evidence of wages paid during ''the relevant years for each employee,'' the petitioner 
failed to provide evidence of wages paid at the time the petition was filed, which is the most reievant period 
of time, given that the petitioner must establish eligibility commencing with the time of filing. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). While the AAO acknowledges that Form W-2s were not 
available for 2013 at the time the petitioner was constructing a response to the RFE, the record 
couid have 
been supplemented with other evidence of wages paid at tile time of filing, inch.tciing the petitioner's payroll 
documents and/or employer's quarterly wage reports, either of which could have provided relevant 
information about the specific employees the petitioner had wheil the petition was filed.. In other words, 
USCIS does not expect the petitioner to provide documents that are clearly unavailable. However, the 
petitioner must nevertheless meet an evidentiary blitderi, which inCludes providing corroborating evidence to 
support the cla:irns made in the petitioner's organizational chart and throughout its various supporting 
statements. The petitioner did provide payroll records fot the month of January 2013; however, it indicated 
that two of its employees were hired after that date and failed to provide additional evidence of any wages 
paid to employees in 2013. Again, going on record without S\lpporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I~N Dec. at 165. 
(b)(6)
NON-PRECEDENT DECISION 
Page7 
Notwithstanding the lack of evidence of the petitioner's support staff at the time of filing, the record does not 
establish that the five employees the petitioner claims it employed at the time of filing to man the two retail 
operations were sufficient to relieve the beneficiary from haVing to allocate his time primarily to the 
petfotrnance Of non-qualifying tasks. In m<tking this determin<ttiOn, the AAO notes that the petitioner; s stated 
business purpose is not limited to the operation of the .two retail stores that were part of its organization at the 
tiriie of filing, but rather to seek other avenues to expand its business, such as investing in other business 
operations, including the diy cleaning store the petitioner sought part ownership of when the petition was 
filed. Thus, contrary to the petitioner's assertions, the non-qualifying operational tasks needed to meet the 
petitioner's business goals would include not 6nly those tasks associated with operating two existing retail 
stor~s. but would also require the petfOrm@ce of ·the underlying tasks associated wi~h achieving the 
petitioner's desired investment goals resulting in an expansion of the petitioner's current two-store operation. 
A review of the beneficiary's job description for the proposed employment indicates that a number of the 
non~qualifying tasks, which are essential to meeting the petitioner's expansion goals, would be carried out by 
the beneficia:_ry himself. As discussed above, the petitioner's descriptions of the proposed position indicate 
that the beneficiary would conduct the market research required to find the right investment opportunities arid 
he would also carry out the underlying tasks of negotiating with creditors to optimize loan terms. look for 
potential new business locations, and negotiate favorable lease terms for the petitioner's existing and future 
businesses. Additionally; the beneficiary's proposed employment would include certain non-qualifying job 
duties that (lie associ<tted wit}) the operation of the petitioner's two current retail outfits. Namely, the 
petitioner indicated that the beneficiary would survey customers to determine their respective levels of 
satisfaction. negotiate terms with distributors; oversee certain non-professional employees, and .even fill in for 
store employees 1as needed. 
Wh_ile the petitioner clairns that the .beneficiary's involvement i_n overseeing non~professional employees and 
working in the store locations is not a major part of the beneficiary's job, the petitioner did not allocate time 
constraints to individual tasks, but rather grouped tasks together when providing time allocations, which is 
CQI1trary to_ the <ii_re.ctor'$ express insttuctiOI)s and does not provide a detailed account explaining how the 
beneficiary would spend his time. This information is critical as the petitioner indiea:tes that its tWo stores are 
both open for 60 hours weekly and one store is staffed by only two employees, including one who wor~s part­
time. And while the petitioner consistently indicates that it has a sufficient staff to relieve the beneficiary 
from having to allocate his time primarily to the daily operational tasks _associated With the operation of its 
, two retail stores, the record does not establish' that the beneficiary is similarly relieved of having to perform 
the non-qualifying tasks associated with expanding the petitioning enterprise through the purch<tse of an<i 
inyestrfient in other businesses. To the contrary, the petitioner has not established that it employed anyone to 
assist the beneficiary with meeting its business expansion goals at the time the petition was filed. 
Fu_rthermore, the record lacks evidence to corroborate the petitioner's claim that the beneficiary would 
assume the role of a function manager. The term "function manager'' :applies generally when a beneficiary 
does not supervise or control the work of <t subordinate staff but instead is primarily responsible for managing 
(b)(6)
NON"'PRECEDENT DECISION 
Page 8 
an ''essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
§ ll01(a)(44)(A)(ii). If a petitioner Glaims that the beneficiary is managing an essential fynctioo, the 
petitioner must furnish a written job offer that clearly describes the duties to be performed, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. 8 C.P.R. § 204.5(j)(5). In addition, 
the petitioner's description of the beneficiary's daily' duties must demonstrate that the beneficiary manages the 
function rather than peifomis the duties related to the function. An employee who primarily performs the 
tasks necessary to produce 3.: proquct or to provide services is not considered to be employed in a managerial 
or executive capaCity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform 
the enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N 
Dec. 593,604 (Comm. 1988). 
-, 
In the matter at hand, tbe petitioner has not provided sufficient evidence to establish that the beneficiary's tole 
With regard to an essential function - business expansion - would be limiteq to management. Rather, it is 
likely that the beneficiary would be required to perform many of the underlying duties of that function given 
the petitioner's lack of a support staff at the time of filing. Even if the petitioner had provided sufficient 
evidence of an adequate support staff at its two existing retail locations to establish its ability to relieve the 
beneficiary from having to spend his time primarily either managing non~professional employees or selling 
merchandise to customers, there are num_erous f10n-q\lalifying tasks that are associated with the business 
expansion aspect of the business. The petitioner has ndt provided sufficient evidence to establish that it ba_s 
the ability to relieve the beneficiary from having to carry out those underlying tasks. 
Additionally, with regard to the petitioner's reliance on prior approvals of its nonimmigrant L-1 petitions, 
which were filed on beb1:1lf oftbe same beneficiary, it is noted that each nonimmigrant arid 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 required 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 the 
present matter. The prior nonimmigrant approvals do not preclude USCIS from denying an extension 
petition. See e.g. Texas A&M Univ. v. Upchurch, 99 Fed. AppX. 556, 2004 WL 1240482 (5th Cir. 2004). The 
approval of a nonimmigrant pet~tion in no way guarantees that USCIS will approve an immigrant petition 
filed on behalf of the same beneficiary. users denies many 1-140 immigrant petitions after approving prior 
nonimmigtl:lnt 1·129 L-J petitions. See, e~g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 25; IKEA US 
v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Broth{!rs Co. Ltd. v. Sava, 724 F. Supp. 1103 
(E.D.N.Y. 1989). Moreover, 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 a~knowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084; 1090 (6th Cir. 1987), ceft. denied, 485 U.S. 1008 (1988). 
Finally, the AAO's authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 · 
behalf of the beneficiary, the AAO would not be l;>ound to follow the contradictory decision of a setvice 
center. Lpuisianq Philhqmtonic Orch£strq v. 1/I{S, 2000 WL 282785 (E.D. La.), affd, 248 P.3d 1139 (5~h Cir. 
2001), cert. t:Ienied, 122 S.Ct. 51 (2001). In fact, if the previous nonimmigrant petitions were approved based 
on the same unsupported assertions that are contained in the current record, the approvals would constitute 
material and gross error on the part of the director and could potentially be revoked if it were determined that 
the petitioner was ineligible for the immigration benefit at the tiine of filing. See 8 C.P.R. § 214.2(1)(9). As 
discussed above, the petitjoner ha.s not proviaed suffiC:ient evidence to establish tba:t the beneficiary would 
priml:lrily perform tl;lsks within a qualifying managerial. or executive capacity given the nature of the . . . ~ 
petitioner's business, the petitioner's personnel structure at the time of filing, or the description of the 
beneficiary's proposed. position with the U.S. entity. Therefore, in iight of these significant evidentiary 
deficiencies, the instant petition does not warrant approval and must be denied. 
IV. Beyond tbe Director's Decision 
I 
Additionally, while not previously addressed in the director's decision, the evidence of record does not 
establish that the petitioner has a qualifying relationship with the beneficiary's foreign employer. 
The regulation at 8 C.P.R. § 2.04.5(j)(3)(i)(C) reqllires the petitioner to establish that it has a qualifying 
rela.tionsbip with the beneficil1ry's employer l:lbrmtd. To esta.blish il "qualifying relationship" under the Act 
and the regulations, the petitioner must show that the beneficiary's foreign employer jind the 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)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C); see also 
8 C.P.R. § 204.5(j)(2)(proyiding definitions of the tefifis ''affiliate" and ''subsidiary''). 
The regulation at 8 C.P.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 sa_rne group of individuals, each , 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Subsidiary means a firm, corporation, ot other legal entity of which a parent owns,. directly or 
indirectly, mote than ha.lf of the entity and controls the entity; or owns, directly or indirectly, 
half of t_he entity and controls tbe entity; or owns; directly or indirectly, 50 percent of a 50-50 
joii)t venture and has. equa.l control and veto power over the entity; or owns, directly or 
indirectly, less thl:ll) half ofthe entity, but i_n fact controls the entity. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifyin~ relationship exists between the United States arid foreign entities for 
purposes of this visa ctassificatiori. Matter of Church Scientology International, 19 I&N Dec. 593; see also 
Matter of Siemens Medical SystefJ'lS, Inc., 19. I&N Dec. 362 (ASsoc. Coinlfi. 1986); Matter of Hugh!!.s, 18 I&:N 
Dec. 289 (Comrn. l982). ln the context of this vis~ petition, ownership refers to t))e direct or indirect lega.l 
tight 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, 19 i&N Dec. at 595. Control may be "de jure" by reason of 
ownership of 51 percent of the outstanding stocks of ail entity or it may be "de facto'' by reason of control of 
the voting shares through partial ownership ano possession of proxy ~otes. Matter of Hughes, 18 I&N Dec. 
289. 
· The petitioner indicates that it is a subsidiary of the beneficiary's former 
employer in India. The petitioner stated that the foreign entity owns 500 of its 1,000 authorized shares, whlle 1 
the beneficiary owns the remaining 500 shares. In support of this claim,. the petitioner submitted a copy Of its 
stock certificate no, 1 issuing 500 s~h;ltes to t_he foreign employer and certificate no. 2 issutng 500 shares t() the 
petitioner. Both stock certificates were issued in July 2009. 
However, the petitioner also submitted a copy of its 2011 IRS Form 1120, U.S. Corporation Income Tax . . 
Return, in whichit indicated at Schedule :K. that it has one shareholder and is not owned by a foreign person or 
legal entity. According to the acc<)J:npanying IRS Fonn ll25~E. Compensation of Officers, the beneficiary 
owns 190% of the stock ofthe petitioner stock. This information UQdermines the pe(itioner's cl().jrn tha.t it is a· · 
subsidiary of the foreign entity. Mor~pver, asthe petitioner eXpressly stated that the beneficiary has nQ 
ownership interest in the foreign entity, the information provided on the tax return suggests that the two 
. companies have no common ownership, and therefore, no qualifying reiationship. it is incumbent upon the 
petitioner to re~olve any inconsiStencies in the tecotq by independent objective evidence. Any attempt, to 
explain o:t reconcile silch inconsistencies Will not suffice unless the petitioner sJ.Ibrrtits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). I 
F4~:tthet even if t))e petitioner ha.q not i.Dtroouced t))is inco11sistency into the record, tM petitioner, the 
. petitioner states that the. foreign entity owns only a 50% interest in the U.S.· compaJ1y. I3ased on We 
petitioner's failure to establish that the foreign entity has either de jure or de facto control over the petitioner, 
the petitioner d_id not 'adeql)ately support itS elailll f4~t it is a qualifying subsidiary of the foreign entity. 
Add!tion.ally, t)le petitioner and the foreigJ1 entity d.o not share a sufficient degree of common ownership and 
thus do not meeqhe criteria discu~sed in the regqlatory definition of the term "affiliate." 
The definition of the term ''subsidiary" expressly states th11t 3D entity meets the regulatory criteria (Ifldet a 
specific set of circumstances. In the absence of majority ownership, which would give t,he claimed pa_tent 
entity de jure control over the subsidiary, the petitioner must est(lblishthat the foreig11 entity, i.e., the clairned 
parent, hasde facto control over the petitioner or that the petitioner is the result ofa 50~50 joint venture. 
(b)(6)
. ( 
Page 11 
between the foreign ' entity and one other entity such tha.t the two entities that are part of the joint venture have 
equal control and veto power over the subsidi~ .1 Th~ facts in the Q1~tter at hand do not show that the 
p~titiOil.t!r meets 3!1Y of these listed criteria. The record'<;:On~ins no ~vidence that the foreign entity has either 
.' • > 
de jure or de facto 'control over the petitioner. Additionally, while the petitioner indicates that the foreign 
entity and the beneficiary 
have a 50-50 ownership interest in the petitioner, simply establishing such shared 
ownership does not amount to a joint venture, as the record lacks any evidence to indicate the existence of a 
joint venture agreement oetWeen the co~ownets. As indicated above, going· on record Without supporting 
documentary eVidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
M4tt¢t of SQ.ffiei, 2? J~N Dec. at 165 . 
While the AAO acknowledges the. absence of a discussi~n regarding the qualifying relationship in the 
director's decision dated August 30, 2013, It Js noted that an application or petition that falls to compiy with 
the technical requirements of the law may o~ denied oy the AAO eve.n if the SerVice Center does not identify 
aU of the gtoilnds for qel)ja:l in tpe i1)jti~l de9isi.on. See Sp(!neet .JJ,ntetptises, lite. v. _United States, 2_29 F. 
Supp. 2d 10Z5, 1043 (E.P. Cal. 2001), affd, 345 F.3d 683 (9tb Cir. 200~); see a_lso Soltane v. DOl, 381 f.3d 
143, 145 (3d Cir. 2004)(noting that the AAb reviews appeals on~ de novo basis). Therefore, based on the 
additional ground of ineligibility discussed above, this petition canp.ot be approved. 
N. Conclusion 
The ~ppe~l Will be dismissed for the a):>ove stated reasol)s, witb each c{)nsid¢ted a.s an ipdepengent :;lQd 
alteiJlate basis for the decision. 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; Matter of Otiende, 26 I&N Dec. 
127, 128 (BIA 2013). Here, that burden has not been met. 
The appeal is dismissed. 
1 See 52 Fed. Reg. 5738-01,5742 (February 26, 1987).