sustained EB-1C Case: Automation Product Distribution

(b)(6)
DATE: AUG 0 8 2014 OFFICE: TEXAS SERVICE CENTER 
INRE : Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Servict 
Office of Administrative Appeals 
20 Massachusetts Ave. N.W., MS 2090 
Washing ton, DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant 
to Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a 
non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. 
Tha' . / 
~~1'1:_" 
\ \ 
-......... 
' ~ 
Ron Rosenberg · 
Chief, Administrative 
Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
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DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be sustained. 
The petitioner is engaged in "automation product distribution," and seeks to employ the 
beneficiary as its President and CEO. Accordingly, the petitioner endeavors to classify the 
beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational 
executive or manager. 
The director denied the petition on October 11, 2013, concluding that the petitioner failed to 
establish that it has a qualifying relationship with a foreign entity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion 
and forwarded the appeal to us for review. On appeal, counsel for the petitioner asserts that the 
petitioner provided sufficient evidence to establish that the U.S. company is wholly owned by the 
foreign entity. The petitioner submits a brief and additional evidence in support of the appeal. 1 
I. THE LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
* * * 
(C) Certain Multinational Executives and Managers. -- An alien is 
described in this subparagraph if the alien, in the 3 years preceding 
the time of the alien's application for classification and admission 
into the United States under this subparagraph, has been employed 
for at least 1 year by a firm or corporation or other legal entity or 
an affiliate or subsidiary thereof and who seeks to enter the United 
States in order to continue to render services to the same employer 
or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and 
managers who have previously worked for a firm, corporation or other legal entity, or an affiliate 
1 We conduct appellate review on a de novo basis (See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)). 
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or subsidiary of that entity, and who are coming to the United States to work for the same entity, 
or its affiliate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under 
section 203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is 
required for this classification. The prospective employer in the United States must furnish a job 
offer in the form of a statement which indicates that the alien is to be employed in the United 
States in a managerial or executive capacity. Such a statement must clearly describe the duties to 
be performed by the alien. 
II. ISSUE ON APPEAL 
The sole issue addressed by the director is whether the petitioner established that the United 
States and foreign entity are qualifying organizations. 
To establish a "qualifying relationship" under the Act and the regulations, the 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§ 203(b)(l)(C) of the Act, 8 U.S.C. § 1153(b)(l)(C). 
The regulation at 8 C.F.R. § 204.50)(2) states in pertinent part: 
Affiliate means: 
(A) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual; 
(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; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, 
conducts business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent 
owns, directly or indirectly, more than half of the entity and controls the entity; or 
owns, directly or indirectly, half of the entity and controls the entity; or owns, 
directly or indirectly, 50 percent of a 50-50 joint venture and has equal control 
and veto power over the entity; or owns, directly or indirectly, less than half of the 
entity, but in fact controls the entity. 
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In the support letter dated May 20, 2013, the petitioner stated that it is a wholly-owned 
subsidiary of located in Russia. The director denied the petition, 
concluding that the petitioner failed to establish that it had a qualifying relationship with a 
foreign entity, noting that the foreign entity failed to transfer the necessary capital contribution in 
exchange for ownership in the U.S. company. The director found that there was no documentary 
evidence that, at the time certificate number one was issued, the petitioner received monies from 
the foreign entity for the 100 shares. 
The director observed that the petitioner did not submit any wire transfer receipts indicating that 
the foreign company transferred the necessary capital contribution in exchange for ownership in 
the U.S. company, and therefore, failed to establish that a qualifying relationship existed at the 
time of filing. 
On appeal, counsel for the petitioner contends that the foreign entity owns the U.S. company in 
that it had already funded the U.S. company with an initial bank deposit of $100, the par value of 
shares issued, on April 14, 2011, and had transferred an amount exceeding the par value, an 
amount of $150,100 on April 25, 2011, prior to filing the petition. Counsel contends that the 
petitioner provided evidence of the wire transfer in excess of the shares' par value. 
The record also contains the share certificate, the stock ledger, bank statements indicating wire 
transfer details, the corporate minutes indicating that all issued and outstanding shares are owned 
by the foreign company, a signed letter from the petitioner's accountant confirming that the 
foreign company is the petitioner's sole owner, and tax returns. 
Upon review, the record is persuasive in establishing that the petitioner is a wholly owned 
subsidiary of the foreign entity, thus the existence of a qualifying relationship. The petitioner 
submitted sufficient evidence to show that it had provided capital contributions to the U.S. 
company in exchange for ownership prior to filing the petition. 
The "preponderance of the evidence" standard requires that the evidence demonstrate that the 
applicant's claim is "probably true," where the determination of "truth" is made based on the 
factual circumstances of each individual case. Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989)). In evaluating the 
evidence, the truth is to be determined not by the quantity of evidence alone but by its quality. 
!d. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, 
the director must examine each piece of evidence for relevance, probative value, and credibility, 
both individually and within the context of the totality of the evidence, to determine whether the 
fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, 
and credible evidence that leads the director to believe that the claim is "probably true" or "more 
likely than not," the applicant or petitioner has satisfied the standard of proof. See U.S. v. 
Cardozo-Fonseca, 480 U.S. 421 (1987) (discussing "more likely than not" as a greater than 50 
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percent probability of something occurring). If the director can articulate a material doubt, it is 
appropriate for the director to either request additional evidence or, if that doubt leads the 
director to believe that the claim is probably not true, deny the application or petition. 
Here, the submitted evidence is relevant, probative, and credible. The petitioner has established 
that a qualifying relationship exists between the U.S. and foreign entities. 
III. CONCLUSION 
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; Matter ofOtiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has been met. 
ORDER: The appeal is sustained.