dismissed EB-1C Case: Technical Management

identifying data deleted to 
prevent clearly unw~ted 
invasion of personal pnvac) 
PUBLIC COpy 
U.s. Department of Homeland Seturity 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigrationn 
Services 
FILE: _ OFFICE: NEBRASKA SERVICE CENTER 
DEC 2 2 201J 
Date: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an Illinois' corporation that seeks to employ the beneficiary as its technical manager. 
Accordingly, the petitioner endeavors to classifY the beneficiary as an employment-based immigrant pursuant 
to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1 IS3(b)(l)(C), as a 
multinational executive or manager. 
The director denied the petition based on the conclusion that the petitioner and the beneficiary's foreign 
employer do not have a qualifYing relationship. On appeal, counsel disputes the director's conclusion and 
submits a brief in support of his assertion. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 I 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)(1 )(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. 
The primary issue in this proceeding is whether the petitioner has a qualifYing relationship with the 
beneficiary's foreign employer. To establish a "qualifYing relationship" under the Act and the regulations, the 
petitioner must show that the beneficiary's foreign proposed U.S. employers are the same employer (i.e. a 
U.S. entity with a foreign office) or that the two entities are related as a "parent and subsidiary" or as 
, Although the record does not contain the petitioner's incorporation documents, the record includes a document titled 
"Business Transfer Agreement And Assignment" in which the petitioner was referred to as an Illinois corporation. 
"affiliates." See generally § 203(b)(l)(C) of the Act, 8 U.S.C. § lI53(b)(I)(C); see also 8 C.F.R. 
§ 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). 
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 Form 1-140, _the petitioner's office manager, provided a letter dated May 8, 2008 
on behalf of the petitioner stating that it has a research and development center and an engineering services 
center in India. Although Mr. _ claimed that the petitioner has a qualifying relationship with a foreign 
office and that evidence was being submitted with the petition to corroborate this claim, the record was 
devoid of such documentation. Rather, the petitioner's initial documents included the petitioner's 
organizational chart, an organizational chart belonging and a letter dated 
November 21, 2006 from Mr. _ in his capacity as office manager of stating that the 
~ed with that U.S. 2006. In a 1,2005, 
__ general manager stated that the 
beneficiary was working for the foreign entity since August 30, 2001 and that the beneficiary "was deputed 
onsite" from April 3, 2004 until May 9, 2005 after which he was sent to work at an "offshore office" on July 
1,2005. It is noted that the "offshore office" where the beneficiary was claimed to be employed prior to his 
entry into the United States was not specifically named. The petitioner also did not discuss the specific 
information regarding its ownership or the ownership of the beneficiary's foreign employer, whose identity 
was not provided. 
Accordingly, the director issued a request for evidence (RFE) dated February 19, 2009 asking the petitioner a 
series of questions to help determine whether a qualifying relationship exists between the petitioner and the 
beneficiary's foreign employer. Specifically, the petitioner was asked whether _ owns all of its 
stock, whether Indus was the beneficiary'S foreign empl~or to his entry to the United States, and 
whether Mr. ~urrently has ownership interest in _ The petitioner was expressly instructed to 
provide evidence to establish that as of the filing date ofthe instant Form 1-140 it had and continues to have a 
Page 4 
relationship wherein it shares common ownership and control with the foreign entity that previously 
employed the beneficiary. 
In response, Mr. _on behalf of the petitioner, provided a letter dated March 16,2009 in which he stated 
that Mr. _owns all of the petitioning entity's stock, that the beneficiary was employed by _for 
and that no longer has ownership of _ With regard to the latter response, 
had an ownership interest in _ until 2006, before_ 
pun off." The following documents were also submitted with the petitioner's RFE response: 
1. A letter dated January 29, 2008 on the petitioning entity's letterhead documenting a board of 
director's meeting that took place on 04.01.2007 in which Mr. declared himself 
eligible to acquire equity shares of 
2. A letter dated January 29, 2008 titled "Consent Letter," gave his 
consent to purchase 9,999 equity shares of 
3. A document titled "Business Transfer Agreement and Assignment," executed on January 1, 
2007. The to the contract a Delaware corporation, 
the petitioning the foreign entity where the 
beneficiary was previously employed, and The document indicated that 
_ had 1,500 unissued shares, which constituted all of its authorized shares, that the 
beneficiary was president, and that Mr._gave up any right to_ 
common stock. With regard to the petitioning entity, Mr. referred to as sole 
shareholder, officer, and director. Clause No.3 shows that in exchange for Mr._ 
release of any claim to common stock, _ assigned all of its rights to the 
consulting agreement it had with to the entity. Clause No.4 of 
the agreement indicates that, with the exception of the consulting agreement, 
all remaining assets of_ continue to exist and remain property ofindusrad. 
4. A certificate of incorporation, a memorandum of association, and articles of association all 
belonging to 
In a decision dated June 15,2009, the director concluded that the documentation on record failed to establish 
the existence of a qualifying relationship between the petitioner and the beneficiary's foreign employer. The 
director observed that while a foreign entity had been created with the intention that it would be a successor­
in-interest to another company, the successor-in-interest principle does not apply in this instance. The 
director further pointed out that the foreign entity that was recently created did not exist at the time of the 
beneficiary's employment abroad and that the beneficiary therefore was not employed abroad by the same 
entity or by an affiliate, parent, or subsidiary of the U.S. petitioner. 
On appeal, counsel asserts that u.S. Citizenship and Immigration Services misinterpreted the relationship 
between the petitioner, Indusrad, and the foreign entity that previously employed the beneficiary. He claims 
that a "corporate transfer" occurred when Mr. ownership interests transferred from to the 
petitioner. Counsel claims that the petitioner was the recipient of Indusrad's rights, obligations, and assets by 
means of the Business Transfer Agreement and Assignment and that this transfer enabled the petitioner to 
become Indusrad's successor-in-interest and to thereby maintain a qualifying relationship with the 
Page 5 
beneficiary's foreign employer. Counsel's argument, however, is without merit, as the documentation 
provided does not establish that the petitioner is a successor-in-interest. 
The generally accepted definition of a successor-in-interest is: "One who follows another in ownership or 
control of property. A successor in interest retains the same rights as the original owner, with no change in 
substance." Black's Law Dictionary 1473 (8'h Ed. 2004). A mere transfer of assets, even one that takes up a 
predecessor's business activities, does not necessarily create a successor-in-interest. Id.; see also Holland v. 
Williams Mountain Coal Co., 496 F.3d 670, 672 (D.C. Cir. 2007). An asset transaction occurs when one 
business organization sells property - such as real estate, machinery, or intellectual property - to another 
business organization. While the merger or consolidation of a business organization into another will give 
rise to a successor-in-interest relationship because the assets and obligations are transferred by operation of 
law, the purchase of assets from a predecessor will only result in a successor-in-interest relationship if the 
parties agree to the transfer and assumption of the essential rights and obligations of the predecessor 
necessary to carry on the business in the same manner with regard to the assets sold.' See generally 19 Am. 
Jur. 2d Corporations § 2170 (20 I 0). 
Considering the generally accepted definition of successor-in-interest, a petItIOner may establish a valid 
successor relationship for immigration purposes. However, in order to do so, the petitioner must fully 
describe and document the transfer and assumption of the ownership of all, or the relevant part of, the 
predecessor by the claimed successor. 
Evidence of transfer of ownership must show that the successor not only purchased assets from the 
predecessor, but also the essential rights and obligations of the predecessor necessary to carry on the business 
in the same manner as the predecessor. The successor must continue to operate the same type of business as 
the predecessor and the essential business functions must remain substantially the same as before the 
ownership transfer. 
In the present matter, the Business Transfer Agreement and Assignment, which counsel purports is the main 
conduit for establishing a successor-in-interest relationship, indicates that the only right transferred to the 
petitioner was_master consulting agreement with Clause No.4 of the agreement 
clearly states that the remaining "assets of Indusrad shall remain the property of_ There is no 
indication anywhere in the agreement between_ and the petitioner that ownership interest 
in the beneficiary's foreign employer was among the assets that passed to the petitioner. 
Moreover, counsel's current claim on appeal is entirely inconsistent with the March 16, 2009 letter that Mr. 
_provided in response to the RFE. More specifically, in the RFE response, Mr._expressly stated 
that while Mr. _previously had an ownership interest in _ the entity that employed the 
beneficiary abroad, his ownership interest ceased some time in 2006. If counsel's current claim were valid 
and the petitioner did in fact become Indusrad's successor-in-interest, then any ownership interest_ 
may have had in the beneficiary's foreign employer would have transferred to the petitioning entity. 
However, as previously noted, the very terms of the Business Transfer Agreement and Assignment expressly 
2 The mere assumption of immigration obligations, or the transfer of immigration benefits, derived from 
approved or pending immigration petitions or applications will not give rise to a successor-in-interest 
relationship unless the transfer results from the bona fide acquisition of the essential rights and obligations of 
the predecessor necessary to carry on the business in the same manner. 
Page 6 
establish that the specific nature of the transfer was limited to Indusrad's master consulting agreement with 
Clause No. 4 specifically states that_assets and liabilities do transfer to the 
petitioner, but only to the extent that such assets and liabilities are directly associated with the consulting 
agreement. Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 [&N Dec. 503, 506 (BIA 1980). 
Additionally, while Clause No. 5 in the Business Transfer Agreement and Assignment makes specific 
provisions for the creation of an Indian subsidiary to be 100% owned by the petitioning entity, the newly 
created foreign entity cannot be deemed as the same entity or the affiliate, parent, or subsidiary of the entity 
that previously employed the beneficiary abroad. 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 of California, 141&N Dec. 190 (Reg. Comm. 
1972». 
The regulation and case law con finn that ownership and control are the factors that must be examined in 
detennining whether a qualifying relationship exists between the United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 [&N Dec. 593 (B [A 
1988); see also Matter of Siemens Medical Systems. Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm. 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. 
In the present matter, the record indicates that the individual who previously had an ownership interest in the 
entity that employed the beneficiary abroad no longer had an ownership interest in that entity at the time the 
Fonn [-140 was filed. As eligibility must be established at the time of filing, the petitioner cannot rely on an 
a previously existing qualifying relationship to meet the criteria specified at 8 C.F.R. § 204.5(j)(3)(i)(C). See 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). While the record indicates that the petitioner is a 
multinational entity by virtue of having ownership in a newly created foreign corporation, the fact that the 
petitioner does not share common ownership and control with the beneficiary's foreign employer precludes 
approval of the instant petition. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for 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 appeal is dismissed.