dismissed EB-1C Case: Transportation Services

.
U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF E-L-S-, L.L.C. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 13, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, 1 an owner and operator of limousines and other private vehicles, seeks to 
permanently employ the Beneficiary as its president 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). This classification 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, concluding that the Petitioner did not 
establish, as required, that: (1) it has a qualifying relationship with the Beneficiary's foreign 
employer; (2) the Beneficiary was employed abroad for one year out of the three years prior to filing 
this petition; and (3) the Beneficiary's proposed position in the United States will be in a managerial 
or executive capacity. 
On appeal, the Petitioner submits a brief disputing all three grounds for denial. The Petitioner 
contends that it and the foreign employer are affiliates and asks that we consider the Beneficiary's 
period of employment abroad based on the date he changed his status to that of an L-lA 
nonimmigrant, rather than the date this petition was filed. Lastly, the Petitioner points to the 
Beneficiary's "heightened degree of discretionary authority" as evidence that the Beneficiary's 
proposed position would be in a managerial or executive capacity. 
Upon de nova review, we find that the Petitioner has not overcome all of the Director's grounds for 
denial. Therefore, we will dismiss the appeal. 2 
I. LEGAL FRAMEWORK 
1 Although we acknowledge the Petitioner 's use of as a "doing business as" name, the record 
does not contain evidence establishing that the alternate name has been registered in Texas, where the Petitioner was 
organized. 
2 Because of the dispositive effect of the our findings of ineligibility based on the lack of sufficient evidence shovving 
that the Petitioner has a qualifying relationship vvith the Beneficiary 's foreign employer and that the Beneficiary was 
employed abroad for one year during the relevant three-year time period, we will reserve the remaining issue that 
pertains to the Beneficiary 's proposed employment vvith the petitioning entity. 
Matter of E-L-S-, L.L. C. 
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. 
The Form 1-140, Immigrant Petition for Alien Worker, must include a statement from an authorized 
official 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 for 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. See 8 C.F.R. § 204.50)(3). 
11. EMPLOYMENT ABROAD 
The first issue to be discussed is whether the Petitioner has established that the Beneficiary had at least 
one year of full-time employment abroad with a qualifying organization within the three years 
immediately preceding the filing of the petition. 
According to the statute, the relevant period during which a beneficiary must have had one year of 
managerial or executive employment abroad is the three years "preceding the time of the alien's 
application for classification and admission into the United States under this subparagraph." Section 
203(b)(l)(C) of the Act; Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018). If the 
beneficiary is outside the United States at the time of filing, the petitioner must demonstrate that the 
beneficiary's one year of qualifying foreign employment occurred within the three years immediately 
preceding the.filing of the petition. 8 C.F.R. § 204.5G)(3)(i)(A). If the beneficiary is already working in 
the United States for the petitioner, or its affiliate or subsidiary, at the time of filing, the petitioner must 
demonstrate that the beneficiary's year of foreign employment occurred in the three years preceding his 
or her entry as a nonimmigrant. See 8 C.F.R. § 204.5G)(3)(i)(B); Matter ofS-P-. 
The record indicates that although the Beneficiary initially entered the United States as a B-2 
nonimmigrant in September 2014, he changed his status to that of an L-1 nonimmigrant on October 
1, 2016, on the basis of an approved Form 1-129 that the Petitioner filed on his behalf. In light of the 
change of status, which was for the purpose of "working for" the petitioning entity, we count back 
three years from October 1, 2016, to determine that the relevant three-year time period during which 
the Beneficiary's foreign employment must have taken place is from October 1, 2013, to October 1, 
2016. Here, the Petitioner confirms that the Beneficiary entered the United States as a B-2 
nonimmigrant visitor on September 24, 2014, and did not depart the United States after such time. 
Since the Beneficiary departed Syria, where his foreign employer was located, prior to October 1, 
2014, he could not have completed his one year of employment abroad during the relevant three­
three year period. 
2 
Matter of E-L-S-, L.L. C. 
We find that the Director should have counted the three year period going back from the 
Beneficiary's October 2016 change of status to that of an L-1 nonimmigrant working for the 
Petitioner. Notwithstanding the Director's error, we find that he was correct in concluding that the 
Beneficiary does not have the required one-year minimum of employment abroad. On appeal, the 
Petitioner contends that the Beneficiary continued to manage the foreign entity during his absence. 
However, the Beneficiary's physical presence outside of the United States is a necessary element to 
meeting the foreign employment requirement. Thus, even if the Petitioner submitted sufficient 
evidence to substantiate this claim, the Beneficiary will not be deemed as having been employed 
abroad anytime he was not physically outside of the United States. 
Moreover, we find that the Petitioner provided inconsistent and unreliable evidence to demonstrate 
the Beneficiary's employment abroad. Namely, it offered evidence in the form of translated bank 
documents and translated copies of checks that purportedly represent the Beneficiary's salary issued 
by the foreign entity during the relevant three-year time period. However, the copy of the check the 
Petitioner provided as evidence of the Beneficiary's salary in April and May of 2014 is inconsistent 
with the corresponding translated copy of the bank record for the same time period. Although the 
amount and date of the payment in the check translation matches the information in the 
corresponding bank document, the latter shows that the payment was issued via a check ending in 
nos. 186, while the copy of the check itself indicates that the check number ended in nos. 189. We 
also note that the bank document memorializing the Beneficiary's March 2014 wages via check 
ending in nos. 171 contains two different dates; the date at the upper right comer of the translation 
contains the date "03/03/2014," while the lower right comer contains a bank stamp with the date "7 
April 2014." The Petitioner must resolve these inconsistencies with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). These 
unresolved inconsistencies cause us to question the reliability and sufficiency of the evidence used to 
substantiate the Beneficiary's employment abroad during the relevant time period. Id 
III. QUALIFYING RELATIONSHIP 
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)(l)(C) of the Act; 8 C.F.R. § 204.5G)(3)(i)(C). 
The Petitioner states that it and the foreign entity are affiliates. In order to establish an affiliate 
relationship, the Petitioner must demonstrate that its ownership scheme fits one of two scenarios: 
(1) the Petitioner and the foreign entity are subsidiaries that are owned and controlled by the same 
individual or parent entity; or (2) the Petitioner and the foreign entity are two legal entities that are 
owned and controlled by the same group of individuals with each individual owning and controlling 
approximately the same share or proportion of each entity. 8 C.F.R. § 204.5G)(2). The Petitioner's 
claim rests on the first scenario where the Beneficiary is claimed to be its and the foreign entity's 
majority owner. 
3 
.
Matter of E-L-S-, L.L. C. 
Although the Petitioner provided evidence that the Beneficiary solely owns and therefore controls 
the foreign entity, the record lacks sufficient evidence establishing that the Beneficiary owns the 
majority of and controls the Petitioner. 
The Petitioner's ownership claim is premised on the Beneficiary's acqms1t10n of 90% of the 
petitioning entity through his brother - - who is claimed to have been 
left with a 10% ownership interest after having purportedly acquired sole ownership from the 
Petitioner's original owners and passing 90% of that ownership interest to the Beneficiary. The 
Petitioner's supporting evidence includes a document titled "Settlement Agreement and Release," 
which names four individuals, the Petitioner, and two other limited liability companies - one of 
which is claimed to have forfeited its existence - as joint parties to the agreement. However, the 
Petitioner does not clarify why an entity that no longer exists is claimed as a party to the agreement, 
nor does it explain its own relation, if any, to that forfeited entity or to the other two entities that 
were listed as parties to the agreement. 
More importantly, although the four named individuals signed the settlement document agreeing to 
sell their claimed interests in the petitioning entity to the Petitioner provided no evidence 
identifying these individuals as its actual owners. Without such evidence, the Petitioner has not 
established that the transferors actually had the ownership interests that they could then transfer to 
Likewise, the "Assignment of Membership Interest" document, which purports to 
transfer 90% of claimed ownership to the Beneficiary, is insufficient without evidence 
establishing that the individuals who purportedly transferred their ownership to actually 
had the ownership rights to complete the transfer. A petitioner's unsupported statements are of very 
limited weight and normally will be insufficient to carry its burden of proof The Petitioner must 
support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 
I&N Dec. 369, 376 (AAO 2010). Here, the Petitioner provides two documents that purport to 
transfer ownership interests in the Petitioner to various parties; however, both documents are 
premised on the understanding that the four individuals who originally purported to transfer 
ownership to actually owned the petitioning entity. Although the Petitioner provided its 
Articles of Organization showing that it was established in 2005 and that was its 
organizer and "initial manager," it did not provide further evidence showing that ownership interests 
were distributed to the three other individuals whom the settlement agreement listed as owners along 
with 
Regulation 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. See, 
e.g., Matter of Church Scientology Int'l, 19 I&N Dec . 593 (Comm 'r 1988); Matter of Siemens Med. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes , 18 I&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. Matter of Church Scientology Int'l, 19 
I&N Dec . at 595. As the record lacks evidence showing that the four individuals who purported to 
transfer their respective ownership interests in the Petitioner to __ actually had ownership 
4 
.
Matter of E-L-S-, L.L. C. 
interests in the petitioning entity, we cannot conclude that assignment of ownership to 
the Beneficiary was valid. Without evidence showing that the Beneficiary validly acquired majority 
ownership of the petitioning entity, we cannot conclude that the Petitioner and the Beneficiary's 
foreign employer have an affiliate relationship, as claimed. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative 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. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofE-L-S-, L.L.C., ID# 2250510 (AAO Mar. 13, 2019) 
5