dismissed EB-1C Case: Specialized Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF X-1-, LLC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 26, 2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, identifying itself as a "specialized services" provider, seeks to permanently employ the 
Beneficiary as its manager under the first preference immigrant classification for multinational 
executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(1)(C), 8 U.S.C 
§ !153(b )(1 )(C). This classiJication 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 Texas Service Center denied the petition based on five grounds of ineligibility, 
concluding that the Petitioner did not demonstrate the following: (1) the existence of a qualifying 
relationship between the Petitioner and the Beneficiary's employer abroad: (2) the Beneficiary would be 
employed in the United States in a managerial capacity; (3) the Beneficiary was employed abroad in a 
managerial capacity; (4) the Petitioner has the ability to pay the BeneJiciary's protfered wage; and 
(5) the Petitioner and the Beneficiary's employer abroad are doing business. 
On appeal, the Petitioner submits additional evidence, argues that the Director's decision was 
arbitrary and capricious, and contends that it meets all eligibility requirements. 
Upon de novo review, we will dismiss the appeaL The Petitioner has not established that it has a 
qualifying relationship with the Beneficiary's foreign employer. Because a qualifying relationship is 
fundamental to establishing eligibility, and the Petitioner cannot meet this requirement, we hereby 
incorporate, and will not address, the Director's other Jindings regarding the Beneficiary's past 
employment with the foreign company, his intended employment for the Petitioner, and the Petitioner's 
ability to pay the Beneficiary's proffered wage. 
However, we find that the Petitioner provided sufficient evidence to overcome the Director's findings 
regarding the level of business activity conducted by the Petitioner and the Beneficiary's employer 
abroad and we hereby withdraw the Director's findings as they specifically pet1ain to these issues. 
I. LEGAL FRAMEWORK 
An immigrant visa 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, 
Maller of X-I-, LLC 
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 aftiliate. Section 203(b )(I )(C) of the Act. 
A United States employer may file Form 1-140, Immigrant Petition for Alien Worker, to classify a 
beneficiary under section 203(b )(l )(C) of the Act as a multinational executive or manager. A labor 
certification is not required for this classification. 
The Form 1-140 must be accompanied by a statement from an authorized o11icial 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 the filing of the 
petition, that the beneficiary is coming to work in the United States tor 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. 8 C.F.R. § 204.5(j)(3). 
II. QUAUFYTNG RELA TIONSI-IIP 
As indicated, the Director denied the petition, in part, based on a finding that the Petitioner did not 
establish that it has a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, 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 related as a "parent and subsidiary" or as "affiliates." See 
generally section 203(b )(I )(C) of the Act. 
The term "affiliate" means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; [or] 
(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 .... 
8 C.F.R. § 204.5(j)(2). 
The same regulation defines a "subsidiary" as: 
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. 
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Matter ofX-1-, LLC 
In support of the petition, the Petitioner provided a statement identifying the Beneficiary's employer 
abroad as . a Brazilian entity. The Petitioner referred to the foreign entity 
as an affiliate and claimed that it was "providing evidence of [sic] existing relationship between the 
parent and subsidiary." The Petitioner did not provide an ownership breakdown establishing the 
specific nature of its relationship with the Beneficiary's foreign employer. However, the Petitioner 
did provide its articles of organization, which identified and 
as its two managing members/managers. The Petitioner also provided an unsigned copy of its 2014 
tax return in which the same two individuals were listed as its owners, each owing 50% of the U.S. 
entity. The supporting evidence did not include documentation establishing the foreign entity's 
ownership. 
After reviewing the Petitioner's submissions, the Director issued a request for evidence (RFE) 
advising that additional documentation was needed to establish that the Petitioner's qualifying 
relationship with the foreign employer. The Director acknowledged the Petitioner 's submission of 
its unsigned 2014 tax return and asked that additional evidence be submitted to establish that the two 
companies share common ownership and control. 
The Petitioner's response did not include evidence of the foreign entity's ownership. Instead, the 
Petitioner provided a statement in which it claimed to have a "business relationship" with the 
Beneficiary's employer abroad and further noted that despite the "different ownership" of the 
foreign entity, the latter "is an associate for which the beneficiary worked for at least two years as 
manager." Despite restating the regulatory definitions of the terms "affiliate" and "subsidiary," the 
Petitioner neither claimed , nor provided evidence to establish, that it is an affiliate or subsidiary of 
the foreign entity. Rather, it denied having any common ownership with the foreign entity. 
In denying the petition, the Director determined that the record lacked evidence to show that a 
qualifying relationship exists between the Petitioner and the Beneficiary's employer abroad. 
On appeal, the Petitioner argues that the Director abused his discretion and misapplied the law, 
which led to an improper denial of the petition. The Petitioner maintains that it has a "business 
relationship" with several entities in Brazil, including the Beneficiary's employer abroad. The 
Petitioner restates its belief that despite the lack of common ownership between it and the 
Beneficiary's foreign employer, the business association between the two entities is sutlicient to 
meet the statutory and regulatory provisions. The Petitioner maintains that "[a] qualifying 
relationship exists when the United States employer is an affiliate, parent, or a subsidiary of the 
foreign firm , corporation OR OTHER LEGAL ENTITY as specified in 8 CFR 204.5(j)(2)." 
We find that the Petitioner's emphasis on the phrase "other legal entity" was misplaced and that its 
understanding of what is deemed a qualifying relationship lacks proper emphasis on the critical 
elements of common ownership and control that must be shared between a beneficiary's employer 
abroad and the prospective U.S. employer. 
Maller of X-!-, LLC 
Regulation and case law contlrm 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 lnt'l, 19 l&N Dec. 593 (Comm 'r 1988); Maller of Siemens Me d. 
Sys., Inc., 19 l&N Dec. 362 (Comm'r 1986); Maller of Hughes, 18 l&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. Church Scientology In/'!, 19 J&N Dec. 
at 595. 
In the instant matter, the critical element of common ownership is absent from the Petitioner's 
business association with the Beneficiary's employer abroad. This lack of common ownership 
precludes the formation of a qualifying relationship between the two entities. Although the 
Petitioner does not provide evidence documenting the ownership of the Beneficiary's foreign 
employer, the Petitioner readily admits that it does not share common ownership with that entity. 
Therefore, the Petitioner does not meet a fundamental eligibility requirement and does not show that 
an approval of this petition is warranted. The Petitioner's belief that it need only establish that the 
foreign employer is a "legal entity" is based on a misreading of the relevant statute, and its assertion 
that a business association is sufficient to satisfy the qualifying relationship criteria is directly 
contradicted by both statutory and regulatory provisions as well as by precedent case law, as 
indicated above. 
Based on the evidence submitted, the Petitioner has not established that it has a qualifying 
relationship with the Beneficiary's foreign employer. 
III. CONCLUSION 
The appeal is dismissed because the Petitioner did not establish a qualifying relationship with the 
Beneficiary's foreign employer. 
ORDER: The appeal is dismissed. 
Cite as Matter of X-1-, LLC, ID# 363530 (AAO May 26, 20 17) 
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