remanded EB-1C Case: Legal Services

U.S. Citizenship 
and Immigration 
Services 
MATTER OF M~---
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : NOV . 14, 2019 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, .__ _______________________ ___.seeks to employ 
the Beneficiary as senior vice president-international under the first-preference immigrant 
classification for multinational executives and managers. See Immigration and Nationality Act (the 
Act) section 203(b)(l)(C), 8 U.S.C . § 1153(b)(l)(C). This classification allows an international 
business 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 . The Director concluded that, contrary 
to the Act and Department of Homeland Security regulations , the Petitioner did not demonstrate that 
it, or a subsidiary or affiliate , employed the Beneficiary abroad . The Director also found that the 
Petitioner did not establish the Beneficiary's foreign employment in an executive or managerial 
capacity, or that the company would employ her in such a role in the United States. 
On appeal , the Petitioner submits additional evidence . It argues that the Director disregarded proof 
of eligibility and improperly faulted the company for omitting documentation that the Director did 
not request. 
Upon de nova review , we will withdraw the Director's decision and remand the matter for entry of a 
new decision consistent with the following analysis. 
I. MULTINATIONAL EXECUTIVES AND MANAGERS 
An executive or manager who has worked abroad for at least one year may immigrate to the United 
States to continue to render executive or managerial services to the same employer , or a subsidiary 
or affiliate . Section 203(b)(l)(C) of the Act. If, as in this case, a beneficiary already works in the 
United States for a petitioner, the business must demonstrate that the beneficiary's year of foreign 
employment occurred in the three years preceding his or her entry as a nonimrnigrant. 8 C.F.R. 
§ 204.5(j)(3)(i)(B). 
A petitioner for a multinational executive or manager must submit a statement from an authorized 
company official demonstrating that a beneficiary meets the requirements discussed above . 8 C.F.R. 
§§ 204.5(j)(3)(i)(A)-(C). The statement must also establish that the petitioner has been doing 
Matter C?f M~~-~ 
business for at least one year. 8 C.F.R. § 204.5(i)(3)(D). Further, U.S. Citizenship and Immigration 
Services (USCIS) may request additional evidence. 8 C.F.R. § 204.5(i)(3)(ii). 
II. QUALIFYING RELATIONSHIP 
A U.S. pet1t10ner seeking to employ a multinational executive or manager must establish a 
qualifying relationship between itself and a beneficiary's foreign employer. A petitioner must 
demonstrate that it is the same entity that employed the beneficiary abroad, or the foreign employer's 
parent, subsidiary, or affiliate. 8 C.F.R. § 204.5(i)(3)(i)(C). In determining whether a qualifying 
relationship exists, USCIS must examine the individuals or entities that own and control the U.S. and 
foreign employers. Matter of Church Scientology Int'!, 19 I&N Dec. 593, 595 (Comm'r 1988). 
Ownership means the direct or indirect legal right of possession of an entity's assets. Id. Control 
refers to the direct or indirect legal right and authority to direct an entity's establishment, 
management, and operations. Id. 
Here, the Petitioner claims that, for about eight years before the Beneficiary's 2015 admission into 
the United States in L-lA nonimmigrant status, the company's Romanian subsidiary employed her. 
In a letter accompanying the petition, the Petitioner's executive director stated that the Petitioner and 
its parent company, a U.S. law firm, each own 50% of the Romanian firm. The Petitioner also 
asserts that it controls the foreign firm. 
The term "subsidiary" includes a legal entity "of which a parent owns, directly or indirectly, half of 
the entity and controls the entity." 8 C.F.R. § 204.5(i)(2). Also, a "50-50 joint venture" where a 
parent "has equal control and veto power over the entity" constitutes a subsidiary. Id. 
In response to the Director's written request for additional evidence (RFE), the Petitioner submitted 
documentation regarding its claimed parent-subsidiary relationship to the Romanian firm, including 
a copy of the foreign entity's "articles of incorporation." The Director noted that, although the 
Petitioner stated that the Romanian firm formed in 2007, the firm's articles bear a 2011 date. The 
Director also found that the record lacked sufficient corporate documentation to establish the 
Petitioner's ownership and control of its claimed subsidiary. 
As the Petitioner argues, however, the Romanian firm's articles of incorporation indicate that they 
are "restated so as to include the extension of the director's term and the extension of the validity of 
the registered office." The restated 2011 document therefore does not contradict the Petitioner's 
statement of the firm's formation in 2007. Moreover, the Petitioner's RFE response included copies 
of Romanian tax and trade registration certificates indicating the firm's establishment in 2007. 
In addition, minutes of a 2015 shareholders meeting state that the Petitioner and its parent company 
each own half of the Romanian firm. Copies of the Petitioner's federal income taxes for 2013, 2014, 
and 2015 also state that the Petitioner owns half of the foreign firm. The restated articles of 
incorporation state that "[e]ach share entitles [a shareholder] to one vote on all matters with respect 
to which Shareholders are entitled to vote," indicating that the Petitioner and its parent have equal 
control of the firm. The articles of incorporation therefore do not restrict control of either party. 
Thus, the Petitioner's 50% ownership constitutes per se control of the Romanian firm. 8 C.F.R. 
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Matter C?f M~~--~ 
§ 204.5(j)(2) (stating that a subsidiary includes a "50-50 joint venture" where a parent "has equal 
control and veto power over the entity"); see also Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 
362, 364 (Comm'r 1986) (holding that an owner of a 50-50 joint venture "negatively controls" that 
company through the exercise of the owner's veto power). Thus, even though the record does not 
demonstrate the Petitioner's affirmative control of the Romanian firm, the Petitioner has 
demonstrated that the foreign firm is its 50-50 joint-venture subsidiary. Therefore, contrary to the 
Director's decision, a preponderance of evidence establishes a qualifying relationship between the 
Petitioner and the Beneficiary's foreign employer. 
III. PRIOR AND PROPOSED EMPLOYMENT 
The Petitioner asserts that its Romanian subsidiary employed the Beneficiary abroad in both 
executive and managerial capacities and that she would continue to work in the U.S. offered position 
in both capacities. The Director concluded that the Petitioner did not establish the Beneficiary's 
prior or proposed employment in an executive or managerial capacity. But the record contains 
misstatements of law and omissions casting doubt on the thoroughness and fairness of the Director's 
findings. 
First, the Director found that the Petitioner must demonstrate the Beneficiary's prior and proposed 
employment in both the claimed executive and managerial roles. A petitioner seeking this 
classification, however, need only demonstrate a foreign national's prior and proposed employment 
"in a managerial or executive capacity." 8 C.F.R. §§ 204.5(j)(3)(i)(B), (5) ( emphasis added). Thus, 
contrary to the Director's decision, the Petitioner need not establish that the Beneficiary worked 
abroad and would work in the United States in both executive and managerial capacities. Rather the 
proper analysis is to examine the prior and proposed jobs under each statutory category separately to 
determine if the jobs qualify as managerial or executive. 1 
Also, as the Petitioner argues on appeal, the Director's RFE conflated the separate, statutory 
definitions of executive and managerial capacities. See sections 10l(a)(44)(A), (B) of the Act. The 
RFE's headings referred to the Beneficiary's claimed prior and proposed employment as an 
"executive." But the body of the RFE stated only the definition of the term "managerial capacity." 
In addition, the RFE asked the Petitioner to provide new organizational charts of it and the 
Romanian firm. The RFE stated that the new charts must show the Beneficiary's subordinates at 
each company, briefly describe their job titles, duties, and educational levels, and indicate whether 
they work( ed) on full- or part-time bases. The Petitioner provided the new organizational charts 
with the additional, requested information. But the Director found that the new charts do "not 
constitute independent and objective evidence" because the Petitioner created them and omitted 
documentary evidence supporting the stated information about the subordinates. If the Director 
wanted independent documentation corroborating the educational levels and job duties of the 
Beneficiary's subordinates, the RFE should have requested it. An RFE may not ask a petitioner for 
1 The Petitioner contends that the Beneficiary's former position qualifies as both an executive and managerial position. 
The Director, however, must evaluate the job separately under each category. 
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specific evidence and then reject that evidence as insufficient once provided. See 8 C.F.R. 
§ 103.2(b)(8)(iv) (stating that an RFE "will specify the type of evidence required"). 
For the foregoing reasons, we will remand the matter. On remand, the Director should notify the 
Petitioner of all material evidentiary defects and specify the type of evidence required to cure them. 
The Director should also afford the Petitioner a reasonable opportunity to respond. Upon receipt of 
a timely response, the Director should review the entire record and enter a new decision. 
IV. CONCLUSION 
Contrary to the Director's decision, the record establishes the Petitioner's qualifying relationship 
with the Beneficiary's foreign employer. A new notice, however, is required to cure irregularities in 
the Director's decisions regarding the natures of the Beneficiary's prior and current positions. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
Cite as Matter ofM-,._I _ ___.,l ID# 6501552 (AAO Nov. 14, 2019) 
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