dismissed EB-1C Case: Software Development

(b)(6)
DATE: 
KOV 1 4 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department.of Homeland Se~.urlty 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W.; MS 2090 
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)(l )(C) of the Immigration and Nationality Act, 8 U.S.C § ll53(b )(I )(C) 
ON BEHALFOF PETITIONER: 
INSTRUCTIONS: . 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not anilourice Qew constructions of law nor establish 
agericy policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
polic;y to your case or if you seek to present new facts for consideration, you may file ~ motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal ot Motion (Form 
I-290B) within 33 days of ~he date of this decision. Please review the Form 1-2908 instructions at 
http://www.uscis.gov/forms for the latest i.,fotPiation on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
i ?onRo~ 
Chief; Administrative Ap~als Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Tex11s Service Center, denied the nonimmigrant visa petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petiti()ner is a New Jersey limited liability company engaged in professional software development. 
The petitioner states that it is an affiliate of located in Russia. It seeks to employ the 
beneficiary as its chief executive officer.· Accordingly, the petitioner endeavors to classify the benefipiary as 
·an employment-based immigrant pt,~rst,~(lnt to section 203(b)(l)(C) of the Immigration and Nationality Act 
(the Act), 8 U .S.C. § 1153(b )(1 )(C), as a multinational executive or manager. 
The director denied the petition, finding that the petitioner had not est.ablished that it has a qualifying 
relationship with the beneficiary's foreign employer. 
' . 
On appeal, counsel asserts that the director's interpretation ·is erroneous and that the petitioner and the 
. foreign employer qualify as a_ffiliates. 
I. The Law 
Section 203(b) of the Act states in pertinent part: 
(l) Priority Workers. ~- Vi.sas shall first be made available ... to qualified immigrants . who' 
a.re <lliens described in any of the following subparagraphs (A) through (C): 
* * * 
(C) Certain Multination(ll 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 f()r at least 1 year by a fitrn or 
corpor(ltion or other legal entity or an affiliate or subsidiary thereof and who 
see)<s 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 th()se executives and managers who 
have previously worked for a finn, 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 Fonn 1-140 for classification of an a.lien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certific(ltion is r~quired for this 
classification. The prospective employer in the United States must furnish a job offerin the form of a 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
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. 
I. The Issue on Appeal 
The sole issue addressed by the director is whether the petitioner that is has a qualifying relationship with the 
·. beneficiary's former foreign . employer. To establish a "qualifying relationship" under the Act and the 
regulations, the 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 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.,§ 
:2045(j)(2) (providing 
definitions of the terms .''affiliate" and "subsidiary"). 
The pertinent regulation at 8 C.P.R. § 205.5(j)(2) defines "affiliate" as follows: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled b~ the same parent or 
individual; 
(B) On.e 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; 
The regulation and. case l~w confirm that ownership and control are the factors that must be examined in 
J 
determining whether a qualifying relationship exists between United States and foreign entities for pl,lrposes 
of this visa classification. Matter of Church Scientology International, 19 I&.N Dec. 593 (Comm'r 1988); 
see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm'r 1982). In the context of this visa petition, 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 International, 19 I&N Dec. at 595. 
lh a letter accompanying the petitioner's initial evidence, former counsel for the petitioner stated that the 
petitioner "is a 75% owned 
The p~titioner provided evidence that the foreign employer is owned and controlled by the following 
individuals in the following percentages: (1) the beneficiCll)' - Z5%, (2) · 25%, (3) 
· 25%, and (4) - 25%. Further, the petitioner indicated that it is owned by the 
following individuals in the following percentages: (1) the beneficiary - 25%, (2) - 25%, (3) 
25%, and (4) - 25%. The petitioner submitted a copy of its operating 
(b)(6)
NON-PRECEDENT DECISiON 
Page4 
agreement, including amendments thereto, as well as articles and memorandum of incorporation for the 
foreign employer to corroborate ~he stated ownership of both entities. According to the petitioner's operating 
agreement, its managing member is 
In the denying the petition, the director noted that the petitioner had failed to demonstrate that it has an 
affiliate relationship with the foreign employer, as the two entities h~ve only three individual members in 
common . As such, the director concluded tba.t the petitioner had not established that the companies are 
owned and controlled oy the same parent or individual or that they are owned and controlled by the same 
group of individoals, With each individual owning and . controlling approximately the same share or 
prpportion of each en.tjty. 
On appeal, the petitioner asserts that the director's definition of affiliate was erroneous and contends that the 
United States Attorney General has rejected a defi.nition of affiliates requiring that the two entities be entirely 
owned and controlled by the same exact individuals. Counsel further asserts that the beneficiary holds "de 
jure'' control oVer both companies ba,sed on a power of attorney agreement in place between the owners of 
the foreign employer and a voting trust agreement made between petitioner's owners, both . of Which ~te 
submit~ed for the first time on appeal. 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that it has an affiliate 
relationship with the foreign entity as defined in the regulations, nor has it established that the beneficiary 
holds "de jore" control over both entities despite owning only 25% of each company. 
Fi_rst, it should be noted that the petitioner has not established that it is ail affiliate of the foreign employer 
\ .. 
according to the plain language of the regulatory definition of affiliate a_t 8 C.F.R. § 204.5(j)(2). As noted by 
the director and reflected in the Statements of ownerShip described above, the foreign employer and 
petitioner have only three oot of foor owners . in common and therefore are not companies owned and 
controlled by the' sa.me group of individuah;, with each individual owning and controlling approximately the 
samesh~te or proportion of each entity. Further, the assertions of ownership, on their face, do not establish 
that the entities are owned 
and c;ontrolled by the same individual or parent. Indeed, the stated ownership in 
both entities reflects that each company is owned in equal parts by four individuals. 
Citing Sun Moon Star Advanced Power, Inc. v. Chappel, 773 F. Supp. 1373 (N.D. Cal 1990), counsel asserts 
that two companies may be affiliated even though t9.ey are not owned by the exact same individuals. In the 
Sun Moon Star decision, the Immign1tion and Naturalization Service (now USCIS) refused to recognize the 
indirect oWnership of the petitioner by three brothers, who held shares of the company as individuals through 
. ~ . 
a holding company. The decision further noted that the two claimed affiliates were .not owned by-the Saine 
group of individuals. The court found that the Immigration and Naturalization Service decision was 
J . .. . 
· inconsi_stent with previous interpretations ofthe term "affiliate" and contrary to congressional intent because 
the decTsion did not recognize the indirect ownership. Prior to the adjudication of the 
petition, the Immigration and Naturalization Service amended the regulations so that the definition of 
(b)(6)
NON-PRECEDENT DECISION 
Page5 
"subsidiary'' recognized indirect ownership. See 52 Fed. Reg. 5738, 5741-2 (February 26, I987). 
Accordingly, the basis for the court's decision has been incorporated into the regulations. Neither legacy 
Immigration and Naturalization Service (INS) nor USCIS has ever accepted a random combination of 
individual sharehOlders as a single entity, so that the group may claim majority ownership, unless the group 
members have been shown to be legally bound together as a unit within the company b:r voting agreements 
or proxies. 
Therefore, to establish eligibility in this case, 'it must be shown that the foreign employer and the petitioning 
entity share common ownership and control. Control may be "dejure'' by reason of ownership of 51 perc·ent 
of outstand_ing 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 I982) . 
Accordingly, counsel's claim that the "Petitioner aod the foreign entity share three common sharehold.ers who 
. \ .. 
possesses 'the same percentage of shates (25%) or proportion (75%) of each entity,"' do.es not support a 
finding that the petitioner and the foreign entity have a qualifying affiliate relationship. Further counsel's 
contention that the beneficiary and "are brothers and own collectively 50% of the shares of 
each entity and ''essentially control the company" is similarly unpersuasive. See Ore v. Clinton, 675 
F.Supp.2d 217,226 (D.C. Mass. 2009) (finding that the petitioner and the foreign company did not qualify as 
"affiliates" within the precise definitionset out in the regulations at 8 C.F.R. § 214.2(l)(l)(ii)(L)(I), despite 
petitioner's claims that the two companies ''are owned and controlled by the same individuals, specifically 
the Ote family''). · 
Finally, counsel asserts that the beneficiary controls the operCJ,~ions of both the petitioner and the foreign 
entity through power of attorney agreements in Russia and through a voting trust agreement in the United 
States. 
In support of the appeal, the petitioner submits power of attorney agt~etnents d<~,ted J a_nuary 2012 signeQ by 
three of the foreign entity's owners. In thes.e power of at~omey agreements, the other three owners of the 
foreign employer authorized the beneficiary to represent their interests at the foreign entity's general 
meetings and to "eqUally exercise any other authorities of [a] company partner on my behalf." The ~titioner 
(!.!so subrrtits copies of minutes of General Meetings of Members held by the foteigt1. entity in Russia in June 
2012 and January 2013, which indicate that the beneficiary was the only member present at the meeting, 
while the other members were ·represen_ted by the beneficiary pursuant to the Power of Attorney documents. 
However, the record reflects that the beneficiary was admitted to the United States. in Aptil 20 II and had not 
departed CJ,s of the 'date the petition was filed in March 2013. It is thus not cleat how be attended the 
. referenced member meetings held in · Russia. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to eXplain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
(b)(6)
NON-PRECEDENT DECISION 
Pag~6 
With respect to the beneficiary's claimed "de jure" control of the petitioning company, the petitioner submits 
on appeal a voting trust agreement da~e_d May 12, 2011 which states that the three other "shareholders" of the 
petitioner "do not intend to take an active part in the management of the Corporation" and "desire to provi<ie 
one of their own with a 'Controlling Interest' in the Corporation." T9 effectuate this intention, the three 
owners l).gtee to "assign and deliver their stock certificates (representing voting shares of stock of the 
corporation to the Trustee [the beneficiary] who shall then cause the stock represented by the certification to 
be transferred to himself as a voting Trustee on the bool<:s of tQe corporation.'' However, the petitioner is not 
a corporation, but a limited liability company, and there are no shares to transfer as asserted in the voting 
trust agreement. Again, it is incumbent upoq}he petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the p¢titioner submits competent objective evidence pointing to Where the truth lies. Doubt cast on 
~IJY ~spect of the petitioner's proof may, of course, lead to a reevall!a.tion of the reliability and sufficiency of 
the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. at 591-92. 
The petitioner als.o submits documentation which indicates that the beneficiary performs various acts on 
behalf of the company and asserts that such acts dell}onstrate his ability to bind the corporation. The 
petitioner docume.nts the beneficiary's involvement in · ciuicelling a he.alth in.sura.Qce plan, executing 
agreements with contractors for marketing and software d.evelopment services, and . executing a lease. 
However, the execution of contractual documents on the part of the beneficiary does not demonstrate his "de 
jure" control over the petitioner fot the purposes of establishing a qualifying relationship. In fact, it is 
common for the chief executive officer to have the ability to sign for his compa.ny, and this alone cannbt 
establish the beneficiary's "de jute" control for the purpose of establishing a qualifying relationship. In 
addition, the petitioner continues to . identify another individual, as its man~ging member. 
. The · petitioner l).as failed to submit consistent and sufficient documentation to est;iblish that the beneficiary 
h~s "de jure'' control of the petitioner and the foreign entity necessary to demonstrate that the two companies 
have an affiliate relationship. For this reason, the appeaJ must be dismissed. 
Ill. Conclusion 
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, tba.t burden has not been met. 
ORDER: The appeal is dismissed.