remanded EB-1C Case: Freight Forwarding

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 11, 2025 In Re: 3 7162699 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Multinational Managers or Executives) 
The Petitioner, a freight forwarding company, 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 alien employee to the United 
States to work in a managerial or executive capacity. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner: (1) has a qualifying relationship with the Beneficiary 's foreign employer; 
and (2) will employ the Beneficiary in the United States in a managerial or executive capacity. The 
matter is now before us on appeal under 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director 's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
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 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. § 204.5(j)(3). 
II. ANALYSIS 
The Beneficiary earned a master's degree in business administration in 2016. In 2018, he became the 
general manager of a company in Colombia with the initials C-C-L-, a cargo logistics company that 
the Petitioner has identified as its affiliate. In 2023, he began working for the Petitioner in L-lA 
nonimmigrant status. 1 
A. Qualifying Relationship 
The Director denied the petition 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)(l)(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(C). 
The regulation at 8 C.F.R. § 204.5(i)(2) defines the term "affiliate." Generally, "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. 
The Petitioner claims affiliation with C-C-L-, stating that both companies are "100% owned and 
controlled by" an individual with the initials A.F.P., who also serves as chief executive officer of the 
petitioning U.S. entity. A translation of C-C-L-'s February 2012 articles of incorporation indicates 
that A.F.P. holds all shares of the company, as does a May 2021 letter from C-C-L-'s accountant. 
The Petitioner submitted a copy of its IRS Form 1120-S U.S. Income Tax Return for an S Corporation 
for 2022, including Schedule K-1, Shareholder's Share oflncome, Deductions, Credits, etc. Schedule 
K-1 identifies A.F.P. as the Petitioner's sole shareholder. The Petitioner also submitted a copy of 
share certificate #1, dated December 15, 2008, indicating that A.F.P. holds 1,000 shares of the 
Petitioner's stock. A December 2008 share ledger indicates that share certificate #1 was the only 
certificate issued. 
In a request for evidence (RFE), the Director stated that the Petitioner's articles of incorporation and 
2022 tax return do not establish a qualifying relationship between the Petitioner and C-C-L-. The 
Director asked for additional evidence to establish the required qualifying relationship. 
In response, the Petitioner resubmitted copies of previous documents and stated that A.F.P. "is the 
100% owner of both" companies. 
1 The prior approval of an L-1 nonimmigrant petition does not compel the approval of a subsequent petition for immigrant 
classification as a multinational manager or executive. See Mahalaxmi Amba Jewelers v. Johnson, 652 F. App'x 612,618 
(10th Cir. 2016). See also Elizur Int'/ Inc. v. USCIS, 2021 WL 1784615 (E.D.Va. 2021); Decor Team LLC, et al., v. 
McAleenan, et al., 2021 WL 661974 (D.Ariz. 2021). 
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The Director denied the petition, stating that the Petitioner's IRS Form 1120-S tax return does not 
identify C-C-L- as the Petitioner's affiliate. The Director also observed that an S corporation cannot 
have "alien shareholders." The Director asserted that A.F.P. "has been identified [as] a foreign 
individual with his residency and address in Colombia." The Director therefore questioned the validity 
of the IRS Form 1120-S return, which can only be properly filed by an S corporation. 
On appeal, the Petitioner asserts that "it is not mandatory" for a corporation to list its affiliates on IRS 
Form 1120-S. Schedule B of that return, line 4a, asks whether the corporation filing the return has an 
ownership interest in any foreign or domestic corporation, and the Petitioner left that section blank. 
But the Petitioner has not claimed that it, as a corporation, owns any other entity. Rather, the Petitioner 
claims an affiliate relationship with C-C-L- based on their common ownership by A.F.P. 
The Petitioner also submits a photocopy of A.F.P.'s U.S. passport, showing that A.F.P. is a U.S. 
citizen. The Petitioner states that it would have submitted this evidence in response to the RFE, but 
the Director did not raise the issue until the denial notice. In the denial notice, the Director did not 
identify any evidence indicating that A.F.P. lives outside the United States. In this respect, we note 
that the record contains a 2022 IRS Form W-2, Wage and Tax Statement, issued to A.F.P. The form 
shows a I l Florida address. 
The evidence and information that the Director cited in the denial notice do not support the Director's 
conclusions regarding the Petitioner's qualifying relationship with C-C-L-. 
Nevertheless, materials in the record raise questions that the Petitioner must resolve. 
As noted above, the Petitioner's share certificate #1 is datedl 2008. This is consistent 
with a submitted printout from Florida's corporation website indicating that the Petitioner filed its 
articles of incorporation on I I 2008. 
But the Petitioner also submitted the minutes of a March 1, 2009 board of directors meeting, indicating 
that A.F.P. and another individual with the initials V.C.A. each paid $3,000 for 500 shares of the 
petitioning company, "prior to the filing of the articles of incorporation." The March 2009 board 
meeting minutes do not explain why the I I 2008 share certificate and ledger, which both 
existed in March 2009, are not consistent with the two-person ownership structure outlined in the 
meeting minutes. The Petitioner submitted copies of these meeting minutes with the initial filing of 
the petition and again in response to the RFE, but did not explain why the minutes describe a different 
ownership structure than what the other documents show. 
The Petitioner must resolve this discrepancy in the record with independent, objective evidence 
pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). The Petitioner 
must provide a full accounting of its share ownership from its 2008 incorporation onwards. The 
Petitioner must establish that a qualifying relationship existed between the two entities when the 
petition was filed in November 2023, and has continuously existed since then. 
Another state-filed document in the record is a February 2009 amendment to the Petitioner's articles 
of incorporation, which added V.C.A. as a vice director of the petitioning entity. A copy of a 2023 
filing lists three corporate officers, none of whom is V.C.A. The Petitioner must explain, with 
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corroborating documentary evidence, whether V.C.A.'s arrival into, and departure from, the 
petitioning entity involved any transfer of shares. We note that, while the Petitioner asserts that A.F.P. 
holds 1,000 shares in the company, the articles of incorporation allow for the issuance of up to 100,000 
shares. Therefore, a certificate for 1,000 shares does not necessarily establish total ownership of the 
corporation. The Petitioner must establish the full history of its share transactions and credibly account 
for any evidence that conflicts with that history in order to properly determine whether there is a 
qualifying relationship. 
We will remand the matter for a new decision, taking the above into account. 
B. Executive Capacity in the United States 
"Executive capacity" means an assignment within an organization in which the employee primarily 
directs the management of the organization or a major component or function thereof; establishes the 
goals and policies of the organization, component, or function; exercises wide latitude in discretionary 
decision-making; and receives only general supervision or direction from higher-level executives, the 
board of directors, or stockholders of the organization. Section 10l(a)(44)(B) of the Act. 
The Director concluded that the Petitioner had not established that the Beneficiary's proposed U.S. 
position meets the requirements of an executive capacity. In reaching this conclusion, the Director 
did not discuss the Beneficiary's claimed duties or the company's activities. Rather, the Director 
concluded that the Petitioner had provided inconsistent information about the size of its staff. 
On the Form I-140 petition and in an accompanying letter, the Petitioner stated that it had 15 
employees and four contract workers in the United States. Copies of federal and state quarterly returns 
indicate that the Petitioner had six employees during the third quarter of 2023, the most recent quarter 
for which information was available when the Petitioner filed the petition in November 2023. 
In the denial notice, the Director stated that, given these conflicting figures, the Petitioner had not 
shown that its organizational structure supports the Beneficiary's claimed executive position. 
On appeal, the Petitioner states that the Director did not consider the Petitioner's "payroll processing 
agreement" with an outside staffing company. We agree. 
In the RFE, the Director asked the Petitioner to submit documentary evidence to resolve the apparent 
discrepancy in the Petitioner's staffing size. In response, the Petitioner stated that its "15 workers are 
apportioned between [the Petitioner] and a payroll company .... 6 workers currently appear directly 
on the [Petitioner's] payroll, and 9 appear on the payroll of [the payroll company]." The record 
corroborates this explanation. 
A September 2023 list of employees indicated that 6 of 15 named employees are on the Petitioner's 
direct payroll, while the other 9 are paid "through [a] Payroll Processing company." The six direct 
payroll employees all have managerial titles: 
• Chief Executive Officer 
• President [the Beneficiary] 
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• General Manager 
• Marketing Manager 
• Logistics Manager 
• Agency Manager 
The same six employees are named on a Florida Department of Revenue Form RT-6, Employer's 
Quarterly Report, that the Petitioner filed for the third quarter of 2023. Forms W-2 issued by the 
Petitioner and by the payroll service are consistent with the division of employees shown on the 
employee list. The Petitioner's 2022 tax return indicates that the company paid A.F.P. $52,000 in 
officer compensation; $114,400 in salaries; $171,725 in contract labor; and $370,618 in "employee 
leasing." 
A July 2019 agreement between the Petitioner and the payroll service indicates that, while the 
individuals employed under the agreement are considered to be the service's employees, the Petitioner 
"shall be responsible for directing, supervising, training ... , and controlling the work of the utilized 
individuals with respect to [its] business activities." While the outside company handles many of the 
administrative tasks relating to the workers' employment, the workers are at the Petitioner's worksite 
and work under the Petitioner's direction. 
Given this arrangement, which was in effect and documented in the record throughout this proceeding, 
we agree with the Petitioner that the Director did not properly consider the availability of these workers 
to perform lower-level operational tasks. As a matter of policy, we take the availability of "contract 
employees" into account when considering whether a petitioner is sufficiently staffed. See generally 
6 USCIS Policy Manual F.4(C)(3), https://www.uscis.gov/policy-manual. 
Because the Director's determination rests entirely on the staffing issue, the denial notice does not 
discuss the merits of the underlying claim regarding the Beneficiary's proposed employment in the 
United States. We will therefore remand the matter to the Director, for a determination on the merits 
of whether the Beneficiary's intended employment in the United States meets the requirements of an 
executive capacity as claimed. 
III. CONCLUSION 
We will withdraw the Director's decision and remand the matter for a new decision on the merits of 
the Petitioner's claims that it has a qualifying relationship with the Beneficiary's overseas employer 
and that it will employ the Beneficiary in the United States in an executive capacity. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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