dismissed EB-1C Case: Voice Over Ip

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Z-T-P- LTD. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 30, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, describing itself in the petition as a "voice over IP" company, seeks to permanently 
employ the Beneficiary as its president and chief executive officer (CEO) 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 Nebraska Service Center denied the petition on multiple grounds, concluding that 
the Petitioner did not establish that: 1) the Beneficiary's job offer was bona fide as defined by the 
regulations, 2) the Beneficiary would act in a managerial or executive capacity in the United States, 
3) the Beneficiary was employed in a managerial or executive capacity in his former position abroad, 
4) it has a qualifying relationship with the Beneficiary's former foreign employer, 5) it is doing 
business as defined by the regulations, and 6) it had the ability to pay the Beneficiary's proffered wage. 
On appeal, the Petitioner disputes the Director's detenninations and contends that the Beneficiary 
would act in a managerial or executive capacity for a wholly owned subsidiary it acquired in the United 
States. The Petitioner states that its wholly owned subsidiary in the United States is doing business 
and asserts that it shares common ownership with it and the foreign employer. The Petitioner contends 
that the Beneficiary's employment by this wholly owned subsidiary represents a bona fide job offer. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
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)(l)(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Worker, must be filed by a United States employer and 
include a statement from an authorized official of the petitioning United States employer which 
Matter of Z-T-P- Ltd. 
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. § 204.5(j)(3). 
II. PETITIONING EMPLOYER 
As a preliminary matter, the submitted evidence reflects that the Petitioner is not the Beneficiary's 
actual employer in the United States. 
The Form 1-140, Immigrant Petition for Alien Worker, must be filed by the intended United States 
employer. The regulation at 8 § C.F.R. 204.S(c) related to filing "Petitions for employment-based 
immigrants" states: 
Any United States employer desiring and intending to employ an alien may file 
a petition for classification of the alien under section 203(b )(1 )(B), 203(b )(1 )(C) 
[(immigrant multinational executives or managers)], 203(b )(2), or 203(b )(3) of the Act. 
The Petitioner stated that the Beneficiary's former foreign employer from 2012 until his entry into the 
United States as an L-lA non-immigrant in September 2016 was........, _________ ___,(also 
referred to as 1 I by the Petitioner). 1 The Petitioner further states on appeal that the 
Beneficiar 's forei n em lo er ex anded its business into the United States and "established in the 
____________________ ___, ( also referred to by the Petitioner as '0 
.__ _ ___,_2 This asserted U.S.-based company is the petitioning entit on the Form 1-140, Immigrant 
Petition for an Alien Worker. In addition, the Petitioner states that ' s otted an investment 
and expansion opportunity" and acquired a U.S. company called 
I I in January 2017. The Petitioner indicated that=====~~~-=.,-,-,n-o_w_a_w_h_o_ll_y_o_w_n_e_d_(_l_00_0_1/o_,) 
subsidiary of the Petitioner, or 1 t The Petitioner states on appeal that "u on the acquisition, 
[the Beneficiary] became the Chief Executive Officer and President of and works full­
time from its office inl I California." In addition, the Petitioner indicated that .__ __ ___,has 
become the holding company forl t' 
The Petitioner acknowledges that the Beneficiary's actual employer in the United States will be 
I I not the Petitioner. In fact, it states this directly on appeal and provides supporting evidence 
reflecting that the Beneficiary has been paid byl ~ and that he has been acting in the role as 
president and CEO of this company since its claimed acquisition in 2017. ?n the coTrary, the 
Petitioner also acknowledges that I I the claimed 100% owner of'----~ is only a 
"holding company" with no operations beyond ownership in I I Regardless, there is no 
evidence on the record indicating that I I the Petitioner, would actually employ the 
Beneficiary or that it would qualify as a United States employer. 
1 The Petitioner stated that 70% of this foreign company's stock is owned by the Beneficiary and 30% by al 
I I L----J 
2 The Petitioner indicated that 70% of this U.S. based company's "stock" is 70% owned by the Beneficiary and 30% by a 
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Matter of Z-T-P-Ltd. 
Therefore, for this initial reason beyond the stated bases of denial articulated by the Director, the 
petition is not approvable and we will dismiss the appeal. 
However, in the alternative, even if we were to accept that I I is the Petitioner and U.S. 
employer, a qualifying relationship between I I and the Beneficiary's former foreign employer 
has not been established. Likewise, the Petitioner has not demonstrated that it has a qualifying 
relationship with the Beneficiary's foreign employer. Because of the dipositive effect of these 
determinations, we will reserve the remaining grounds for denial discussed in the Director's decision. 
III. QUALIFYING RELATIONSHIP 
As stated above, 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)(l)(C) of 
the Act. 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 )(1 )(C) of the Act; 8 C.F.R. § 204.5(i)(3)(i)(C). "Affiliate" means one of two 
subsidiaries, both of which are owned and controlled by the same parent or individuals; or 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(i)(2). 
In concluding that the Petitioner did not establish a qualifying relationship, the Director stated the 
evidence reflected that the Beneficiary was employed and paid byl I and not the Petitioner on 
the Form I-140, namelyl , ., I The Director determined that 
I I should file a new Form I-140 on behalf of the Beneficiary being that the evidence indicated 
that it was in fact the Beneficiary's U.S. employer. 3 As discussed above, we agree with the Director 
on this point. Also, if I I was the petitioning entity, the issue would be whether common 
ownership between the Beneficiary's former foreign employer l I and I I has 
been established. 
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'!, 19 I&N Dec. 593 (Comm'r 1988); Matter of Siemens Med. 
Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter o_f 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 foll 
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. 
The Petitioner has submitted inconsistent and insufficient evidence to establish the claimed ownership 
in Samepage and that there is common ownership between it and the Beneficiary's former foreign 
3 As we have noted, the Petitioner acknowledges that the Beneficiary's actual employer in the United States will be 
I I 
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Matter of Z-T-P- Ltd. 
employer. As discussed, the Petitioner contends that there are two se arate legal entities outside of 
I ~ namely, the foreign employer,..,_ ____ -,-____ __, and a U.S. holding company 
of the same name, which it also refers to as~----~ However, the submitted evidence indicates 
that the claimed! ldoes not actually exist as a seperate U.S. legal entity as asserted. For 
instance, the Petitioner refers to itself as being "registered [ emphasis added] in the State of 
Washington," not established as a limited liability company in this State as it asserts when discussing 
its ownership ofj I Further, the Petitioner submitted an annual report filed with the Secretary 
of State of Washington in March 2018 listing it as a "foreign limited liability company" and showing 
its principal office and jurisdiction in India. Likewise, the Petitioner provided a "Foreign Registration 
Statement" indicating that it was "incorporated outside of the US" in India and listing its principal 
place of business as an Indian address. The Petitioner also submitted a "Certificate of Registration" 
dated in April 2016 referring to it as "an India Limited Liability Company." 
In short, there is evidence indicating that the Petitioner is not in fact a separate legal entity outside of 
the foreign employer, but merely the foreign employer registered as a foreign company to do business 
in the State of Washington. There is uncertainty as to whether the claimed U.S. entity, the asserted 
Petitioner i I' actually exists as a separate legal entity and 100% owner ofl las 
claimed. · he Pet1t10ner provided a "Limited Liability Agreement" dated April 22, 2016 which stated 
in the "background" section that "the members wish to associate themselves as members of a limited 
liability comrny" and it listed these members as the Beneficiary (70% percentage share) andl I I (30%). However, this document coincides with the date of the Petitioner's "Certificate 
of Registration" dated in April 2016 referring to it as "an India Limited Liability Company." Further, 
the Petitioner submits no other evidence to substantiate the formation of the asserted! I 
the United States, such as evidence of its legal formation (not registration) in Washington State, 
evidence of contributions made by its members, an operating agreement, certificates of membership 
interest, minutes of membership and management meetings, or other similar evidence to corroborate 
that it exists as a separate limited liability company in the United States as claimed. 
As general evidence of a petitioner's claimed qualifying relationship, a certificate of formation or 
organization of a limited liability company (LLC) alone are not sufficient to establish ownership or 
control of an LLC. LLCs are generally obligated by the jurisdiction of formation to maintain records 
identifying members by name, address, and percentage of ownership, and written statements of the 
contributions made by each member, the times at which additional contributions are to be made, events 
requiring the dissolution of the limited liability company, and the dates on which each member became 
a member. These membership records, along with the LLC's operating agreement, certificates of 
membership interest, and minutes of membership and management meetings, must be examined to 
determine the total number of members, the percentage of each member's ownership interest, the 
appointment of managers, and the degree of control ceded to the managers by the members. 
Additionally, a petitioning company must disclose all agreements relating to the voting of interests, 
the distribution of profit, the management and direction of the entity, and any other factor affecting 
control of the entity. Matter of Siemens Med. Sys., Inc., 19 I&N Dec. at 365. 
Without foll disclosure of all relevant documents, we are unable to determine whether the Petitioner, 
referred to asl I exists as the claimed 100% owner ofl I the Beneficiary's U.S. 
employer. This material discrepancy leaves considerable question as to whether there is common 
ownership between the Beneficiary's asserted employer,! I and his former foreign employer. 
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Matter of Z-T-P- Ltd. 
Beyond this, the Petitioner has also not submitted sufficient evidence to establish the ownership of 
I I the Beneficiary's actual U.S. employer. Again, as general evidence of a U.S. employer's 
claimed qualifying relationship, the Petitioner must submit probative evidence to demonstrate 
ownership and control of a corporate entity. Such evidence may include stock certificates, a corporate 
stock certificate ledger, stock certificate registry, corporate bylaws, and minutes of relevant annual 
shareholder meetings to demonstrate the total number of shares issued, the exact number issued to the 
shareholder, and the subsequent percentage ownership and its effect on corporate control. In addition, 
a petitioning company must disclose all agreements relating to the voting of shares, the distribution of 
profit, the management and direction of the subsidiary, and any other factors affecting control of the 
entity. However, in this matter, the Petitioner has provided insufficient evidence establishing the 
asserted ownership and control of the Beneficiary's claimed U.S. employer,! I 
Therefore, for the foregoing reasons, the Petitioner has not established that there 1s common 
ownership, or a qualifying relationship, between the Beneficiary's U.S. employed I and his 
former foreign employer. In addition, the Petitioner has not demonstrated that there is a qualifying 
relationship between it and the foreign employer. 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons. 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 ofZ-T-P-Ltd., ID# 5902116 (AAO Oct. 30, 2019) 
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