remanded EB-1C Case: Structural Design

U.S. Citizenship 
and Immigration 
Services 
InRe : 21340608 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 10, 2022 
Form I-140, Immigrant Petition for Multinational Manager or Executive 
The Petitioner, a structural design firm, seeks to permanently employ the Beneficiary as chief executive 
officer (CEO). The company requests his classification under the first-preference, immigrant visa 
category as a multinational executive. See Immigration and Nationality Act (the Act) section 
203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 
The Directorof the Nebraska Service Center first granted the petition. But, after two of the Petitioner's 
shareholders alleged the Beneficiary's violation of state law in obtaining purported control of the 
company, the Director revoked the filing's approval. The Director concluded that the Petitioner did 
not demonstrate the claimed, qualifying relationship between the company and the Beneficiary's 
foreign employer. 
On appeal, the Petitioner asserts that the shareholders and the Director misunderstood California 
corporate law and that the shareholders now agree that the Beneficiary validly controls the company. 
The Petitioner bears the burden of establishing eligibility for the requested benefit by a preponderance 
of evidence. See Matter of Ho, 19 I&N Dec. 582,589 (BIA 1988) (discussing the burden of proof in 
petition revocation proceedings); see also Matter of Chawathe, 25 I&N Dec. 369 , 375 (AAO 2010) 
(discussing the standard of proof). 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 MANAGERS AND EXECUTIVES 
Petitioners for multinational managers or executives must demonstrate that the entities have been 
doing business for at least one year and would employ noncitizen beneficiaries in the United States in 
managerial or executive capacities. Section 203(b)(l )(C) of the Act; 8 C.F.R. § 204.5(j)(3)(i)(D), (5). 
Petitioners must also establish that, in the three years before the beneficiaries' nonimmigrant 
admissions to the United States, the petitioners, their affiliates, or their subsidiaries employed the 
noncitizens abroad for at least one year in managerial or executive capacities. Section 203(b)(l)(C) 
of the Act; 8 C.F.R. § 204.5(j)(3)(i)(B), (C). 
Upon approvals of their petitions, multinational managers and executives may apply for immigrant 
visas either at U.S. consulates abroad or, if eligible, through the "adjustment of status" process in the 
United States. See section 245(a) of the Act, 8 U.S.C. § 1255(a). 
"[ A ]t any time" before beneficiaries obtain lawful permanent residence, however, U.S. Citizenship 
and Immigration Services (USCIS) may revoke petition approvals for "good and sufficient cause." 
Section 205 of the Act, 8 U.S.C. § 1155. Enoneous approvals of petitions justify their revocations. 
Mattera/Ho, 19 I&NDec. at 590. 
USCIS properly issues notices of intent to revoke (NOIRs) petition approvals if the unrebutted or 
unexplained records at the time of the notices' issuances would have wananted the petitions' denials. 
MatterofEstime, 19 I&N Dec. 450,451 (BIA 1987). If petitioners' NO IR responses do not overcome 
the stated revocation grounds, USCIS properly revokes petitions' approvals. Id. at 451-52. 
II. THE CLAIMED, QUALIFYING RELATIONSHIP 
A petitioner for a multinational manager or executive must demonstrate that it is the same employer, 
or a subsidiary or affiliate of another entity, that employed the Beneficiary abroad. 8 C.F.R. 
§ 204.5(j)(3)(C). 
The Petitioner claims that it is an affiliate of the business that employed the Beneficiary in China. The 
term "affiliate" includes "[o ]ne of two subsidiaries both of which are owned and controlled by the 
same parent or individual." 8 C.F.R. § 204.5(j)(2). The term "subsidiary," in turn, means an entity of 
which a parent directly or indirectly owns more than half and controls the entity. Id. 
The Petitioner claims that, although the Beneficiary owns only 49% of the petitioning California 
corporation's stock, he controls the company through voting agreements with other shareholders. See 
Matter of Hughes, 18 I&N Dec. 289, 293 (Comm'r 1982) (stating that control of an entity "may be de 
facto by reason of control of voting shares through partial ownership and by possession of proxy 
votes"). 
After the petition's approval, the Director received a letter from an attorney representing two of the 
Petitioner's shareholders who purportedly held 51 % of the corporation's stock. The shareholders 
requested the petition's withdrawal. The letter states: "It has come to the attention of the majority 
shareholders of [the Petitioner] that the entity they own was being used for fraudulent purposes" by 
the Beneficiary. The letter contends that, under California corporate law, the Beneficiary invalidly 
obtained voting rights to additional shares without their transfer to him. 
Until a beneficiary obtains lawful permanent residence based on a petition, a petitioner may withdraw 
an approved filing. 8 C.F.R. § 103 .2(b )( 6). The Director, however, did not acknowledge the petition's 
withdrawal. Rather, based on the letter's allegations, she issued a NOIR questioning the claimed 
affiliation between the Petitioner and the Beneficiary's foreign employer. 1 
1 On appeal, the Petitioner a sse1is that the withdmwalrequest was "legally inoperative," as "[a] petition that is withdrawn 
180 days or more after its approval ... remains approved unless its approvalis revoked on other grounds." 8 C.F.R. 
2 
In response to the NOIR, the shareholders reversed their position, asking USCIS to refrain from 
revoking the petition. They said they requested the withdrawal during a "very distress[ ed] situation 
when [ the Beneficiary] was trying to exercise his voting right to make drastic management changes 
that [were] not appropriate in business practice in [the] U.S." Contrary to the shareholders' request, 
however, the Director revoked the petition's approval, finding that the Petitioner did not demonstrate 
the Beneficiary's legal control of the company. 
The record as currently constituted, however, does not support the Director's revocation of the 
petition's approval. First, in finding that the Beneficiary did not legally gain control of the Petitioner, 
the Director appears to have cited the wrong section of the California Corporations Code. The Director 
found that, in acquiring the purported voting rights to shares beyond the 49% that he allegedly owns, 
the Beneficiary violated Cal. Corp. Code § 706(a). In their withdrawal request, however the 
shareholders alleged the Beneficiary's violation of Cal. Corp. Code§ 400(b ). The Director did not 
consider that provision, which requires all shares in the same class to have the same voting rights. 
Rather, the Petitioner cites Cal. Corp. Code§ 706(a) on appeal for the proposition that shareholders 
may legally make voting agreements regarding their shares. 
Also, the record contains unresolved discrepancies regarding the Petitioner's number of authorized 
shares. See Matter of Ho, 19 I&N Dec. at 591 (requiring petitioners to resolve inconsistencies of 
record with independent, objective evidence pointing to where the truth lies). The purchase 
agreements that the Petitioner submitted state the company's "authorized capital stock" as 500 shares. 
Yet, the Petitioner claims - and the supplemental agreements and the stock ledger show - the 
company's issuance of 1,500 total shares. Stock that a California corporation issues beyond its 
authorized amount is void. See Tulare Savs. Bank v. Talbot, 131 Cal. 45, 48 (Cal. 1900). Thus, these 
evidentiary discrepancies cast additional doubt on the company's claimed qualifying relationship with 
the Beneficiary's foreign employer. See Matter ofHo, 19 I&N Dec. at 591 (requiring a petition to 
resolve inconsistencies of record with independent, objective evidence pointing to where the truth 
lies). 
For the foregoing reasons and because the Director did not notify the Petitioner of the additional 
deficiencies, we will withdraw the revocation decision and remand the matter. On remand, the 
Director should issue a new NOIR informing the company of the insufficient evidence of the claimed, 
qualifying relationship. 
If supported by the record, the new NO IR may include any additional, potential grounds of revocation. 
The Director, however, must afford the Petitioner a reasonable opportunity to respond to all issues 
raised on remand. Upon receipt of a timely response, the Director should review the entire record and 
enter a new decision. 
§ 205.l(a)(3)(iii)(C). That regulation, however, prevents only automatic revocations of such withdrawn petitions. 
Although not subject to automatic revocation, petitions can still be withdrawn more than 180 days after their approvals. 
See Proposed Rule for Retention ofEB-1, EB-2,& EB-3 Immigrant Workers, 80 Fed. Reg. 81900, 8 l 916(Dec. 31, 2015) 
(explaining that, although generally continuing to be valid for "portability" under section 204(i) of the Act, 8 U.S.C. 
§ 1154(i), andce1tainstatus extension purposes, a petitionwithdmwn more than 180days after its approval "cannot on its 
own serve as the basis forobtaininganirnmigrant visa oradjustmentofstatusas there is no longera bona fide employment 
offerrela ted to the petition"). 
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If the Director finds that the Beneficiary legally gained control of the Petitioner, the petition 
withdrawal request by the two shareholders would be ineffective, as they did not contro 1 the company 
at the time of the request, and the Director should enter a new decision. In contrast, if the Director 
finds the Beneficiary's purported control of the Petitioner to be invalid, she should acknowledge 1he 
unretractable withdrawal. See 8 C.F.R. § 103 .2(b )( 6); see also Final Rule for Changes in Processing 
Procedures for Certain Applications & Petitions, 56 Fed. Reg. 1455, 1458 (Jan. 11, 1994) (describing 
a withdrawal as "definitive" and stating that "a petitioner who withdraws a case and later changes his 
or her mind again may refile a new ... petition"). 
ORDER: The decision of the Director is withdrawn. The matter is remanded for en try of a new 
decision consistent with the foregoing analysis. 
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