sustained EB-1C Case: Automotive Manufacturing

U.S. Citizenship 
and Immigration 
Services 
In Re: 1633401 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 27, 2020 
Form I-140, Immigrant Petition for Multinational Executive or Manager 
The Petitioner , an automobile manufacturer, seeks to permanently employ the Beneficiary as its 
"steering component technical expert" under the first preference immigrant classification for 
multinational executives and managers. Immigration and Nationality Act (the Act) 
section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). 1 
The Director of the Nebraska Service Center denied the petition, concluding that because the 
Beneficiary's last employer abroad had ceased to exist, it was no longer doing business as defined in 
the regulations, and no longer had a qualifying relationship with the Petitioner. 
The Petitioner asserts on appeal that the Director erred in (1) determining that the Beneficiary's 
employer abroad must continue its existence as a "separate and distinct legal entity" and (2) rejecting 
evidence that the Beneficiary's employer abroad continues to exist and do business through a 
successor-in-interest. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Section 291 of the Act; Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010) . The Administrative 
Appeals Office (AAO) reviews the questions in this matter de nova. Matter of Christo 's Inc., 26 I&N 
Dec. 537, 537 n.2 (AAO 2015) . Upon de nova review, we will sustain the appeal. 
I. LEGAL FRAMEWORK 
This matter presents two related issues: (1) whether a petitioner must establish at the time of filing the 
Form I-140, Immigrant Petition for Alien Worker, that it maintains a qualifying relationship with the 
legal entity that employed the beneficiary abroad; and (2) if so, whether a petitioner can establish this 
ongoing qualifying relationship by demonstrating that the employer abroad continues to exist and do 
business through a successor entity . 
1 In this role, the Beneficiary will oversee the technical development of the Petitioner's Autonomous Vehicle Motion 
Control technology . The Petitioner demonstrated that the offered position will be in a managerial capacity as defined at 
section 101(a)(44)(A) of the Act, 8 U.S.C. § 110l(a)(44)(A). 
To establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and the proposed United States employer are the same employer (a domestic entity with a 
foreign office) or related as a "parent and subsidiary" or as "affiliates." Section 203(b )(1 )(C) of the 
Act; 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms "affiliate" and "subsidiary"). We must 
examine "ownership and control" to determine the precise nature of the relationship between the 
United States employer and the foreign entity. See Matter of Church Scientology Int 'I, 19 I&N Dec. 
593 (Comm'r 1988). 
II. BACKGROUND 
Prior to his transfer to the United States to work for the Petitioner as a nonimmigrant, the Beneficiary 
worked for a German company, herein referred to as I I' for a period of 14 years. In October 
2011, at the time of his transfer to the United States, the sole shareholder and parent company ofD 
was I ta German subsidiary of the petitioning company. 
In January 2015, the authorized representatives of these two German entities agreed to a merger by 
absorption in which D acquired all of Os asrts, lights, and obligations as the surviving entity. 
gej ag'jement stipulates that the rights of 's employees transferred 10D the operation 
by would continue, and the merger would not "affect the identity of the operation of 
The Petitioner filed the current immigrant visa petition in December 2016, following the 
merger of the two related entities. 
III. ANALYSIS 
A. Qualifying Relationship at the Time of Filing. 
The Director properly concluded that a petitioner must demonstrate a qualifying relationship with the 
beneficiary's last employer abroad as of the date it files the immigrant petition. As a long standing 
tenet of immigration law, the petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 
1971). 
A multinational executive or manager is one 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." Section 203(b)(l)(C) of the Act (emphasis added). Accordingly, the 
petitioner must provide evidence that the prospective U.S. employer "is the same employer or a 
subsidiary or affiliate of the firm or corporation or other legal entity" which employed the beneficiary 
abroad. 8 C.F.R. § 204.5(j)(3)(i)(C). Therefore, it follows that the relationship between the petitioner 
and the beneficiary's foreign employer must exist both in the present and at the time of filing. 
The principal focus of both the statute and the regulations is the continuity of the beneficiary's 
employment with the same multinational organization. See section 203(b)(l)(C) of the Act; 8 C.F.R. 
§ 204.5(j)(3)(i)(A) and (B). This interpretation is consistent with the purpose in creating this 
classification as a means of permanently transferring key managers and executives within a 
2 
multinational organization. 2 A beneficiary cannot be transferred to the United States as a multinational 
executive or manager from a company that is no longer in the same multinational organization, 
whether that is because the former employer no longer exists in any form, or because it no longer 
shares the requisite common ownership and control with the petitioning U.S. employer. 3 Cf 52 Fed. 
Reg. 5738, 5741 (Feb. 26, 1987) ("requiring that the organization continue to do business in the U.S. 
and abroad" and overruling by regulation Matter of Thompson, 18 I&N Dec. 169 (Comm'r 1981)). 
Further, the regulations require that a petitioner maintain its qualifying relationship from the time of 
filing and through the adjudication of the petition, as required by 8 C.F.R. § 103.2(b)(l). 
B. Applying Successor-in-Interest Principles to the Qualifying Relationship Question. 
On appeal, the Petitioner maintains that Dis the successor-in-interest ton the entity that 
employed the Beneficiary in Germany. As such, the Petitioner asserts tha~ld be treated as 
the same entity that employed the Beneficiary for purposes of establishing an ongoing qualifying 
relationship. The Petitioner emphasizes that a 2009 USCIS memorandum provided a definition for 
"successor-in-interest" and was intended to provide flexibility for legitimate successor-in-interest 
scenarios in the Form 1-140 context. Memorandum from Donald Neufeld, Acting Associate Director, 
Domestic Operations, USCIS, HQ 70/6.2, Successor-in-Interest Determinations in Adjudication of 
Form 1-140 Petitions; Adjudicator's Field Manual (AFM) Update to Chapter 22.2(b)(5) (AD09-37) 
(Aug. 6, 2009), http://www.uscis.gov/legal-resources/policy-memoranda (Neufeld Memorandum). 
The Director rejected the Petitioner's successor-in-interest claim, observing that the Neufeld 
Memorandum states that the successor-in-interest analysis is "not applicable to 1-140 visa preference 
categories that do not require labor certification." Id. at 10. Accordingly, the Director declined to 
consider corporate successorship principles and determined that the qualifying entity abroad must 
continue to exist and do business in the same legal form as it did when it employed the Beneficiary. 
Upon review, we conclude that the Director's decision applied an overly strict reading of the applicable 
statute, regulations, and USCIS policy when it required that the qualifying entity abroad must exist in 
the exact same legal form. 
As noted, Congress created this immigrant classification to facilitate the transfer of managerial and 
executive employees within the same multinational organization. 4 It is commonplace for large 
organizations to undergo reorganization and as a result, associated entities may be merged, 
consolidated, or dissolved. If those changes occur after a beneficiary has been transferred to the United 
2 Congress noted "the need of multinational business to transfer key personnel around the world as nonimmigrants is 
paralleled in this category to allow a basis upon which these individuals may immigrate." See H.R. REP. No. 101-723 
(1990), reprinted in 1990 U.S.C.C.A.N. 6710, 6739, 1990 WL 200418. 
3 Disqualifying changes in a qualifying relationship may include instances where the entity that employed the beneficiary 
abroad dissolves and ceases operations entirely or where the foreign employer is sold to a company that is not in the same 
multinational organization. 
4 In promulgating the regulations on 203(b)(l)(C) of the Act, the former Immigration and Naturalization Service 
commented that "this regulation reflects the statute and follows criteria long in place for the adjudication of petitions for 
[L-I] nonimmigrant intra-company transferees .... " 56 Fed. Reg. 30703, 30705 (July 5, 1991 ). Therefore, Congress and 
the agency recognized the clear parallels between the immigrant and nonimmigrant classifications. 
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States in L- lA classification and prior to filing an immigrant petition for a multinational manager or 
executive, as in the current case, it is the petitioner's burden to fully disclose and document those 
corporate changes in support of its claim of a continuing qualifying relationship with the employer 
abroad, and to provide current evidence of the foreign employer's ownership and control. 5 Here, the 
Petitioner has disclosed and documented the merger of the Beneficiary's foreign employer into its 
parent company. We see no barrier to conducting a successor-in-interest analysis in the immigrant 
visa context to determine whether a beneficiary's foreign employer continues to exist through a 
successor company within the same multinational organization. 
Additionally, we disagree with the decision's complete rejection of the 2009 Neufeld Memorandum's 
guidance in this context. It is true that the memorandum was issued to address successor-in-interest 
determinations in cases where a U.S. employer is claiming to be a successor-in-interest to the U.S. 
employer that filed a labor certification-based Form 1-140, and that no certified labor certification is 
required in support of a multinational manager or executive petition. However, the memorandum 
provides useful guidance on agency accepted definitions of "successor" and "successor-in-interest" 
and does not prohibit USCIS from considering successor-in-interest claims in other contexts. 
The Neufeld Memorandum recognized changes in business practices in the areas of acquisitions and 
mergers and was issued "to allow flexibility for the adjudication of 1-140 petitions that present novel 
yet substantiated and legitimate successor in interest scenarios." Id. at 2. Like prior agency guidance 
on the issue of successor-in-interest eligibility requirements, it cited to Matter of Dial Auto Repair 
Shop, Inc., 19 I&N Dec. 481 (Comm'r 1986). In Matter of Dial Auto, the Commissioner found that 
the petitioner did not adequately support its claim that it had assumed all of the predecessor company's 
right, duties, and obligations in order to establish eligibility as a successor-in-interest. The Neufeld 
Memorandum noted that Matter of Dial Auto had been interpreted too strictly and "did not state that a 
valid successor relationship could only be established through the assumption of all of a predecessor 
entity's rights, duties, and obligations." Supra at 3. The memo turned to Black's Law Dictionary for 
definitions of "successor" and "successor-in-interest" and stressed the successor entity's burden to 
fully describe and document the nature of the transfer ofrights, obligations, and ownership of the prior 
entity. 
"Successor-in-interest" is defined in Black's Law Dictionary as "one who follows another in the 
ownership or control of property" and "retains the same rights as the original owner, with no change 
in substance." Black's Law Dictionary 1570 (9th ed. 2009). A "successor" is defined as "a corporation 
that, through amalgamation, consolidation or other assumption of interests is vested with the rights 
and duties of an earlier corporation." Black's Law Dictionary 1569 (9th ed. 2009). 
In the event a corporate restructuring affecting the foreign entity occurs prior to the filing of a first 
preference multinational executive or manager petition, a petitioner may establish that the 
beneficiary's qualifying foreign employer continues to exist and do business through a valid successor 
entity. If these conditions are met, USCIS will consider the successor-in-interest to be the same entity 
that employed the beneficiary abroad. 
5 A petitioner cannot rely on the prior L-1 approval as evidence of a qualitying relationship for purposes of a subsequent 
immigrant visa petition. The regulations recognize that the Beneficiary may already be working for the Petitioner or a 
related U.S. entity but still require a qualifying relationship with the foreign employer at the time of filing. See 8 C.F.R. 
§ 204.5(j)(3)(i)(B). 
4 
Here, the corporate restructuring occurred prior to the filing of the immigrant petition. The Petitioner 
has also established that the German entity that empl,yed re Beneficiary was acquired through a well­
documented merger by its parent company,c=J and the successor-in-interest, owns and controls 
the original foreign employer's property, has assumed its rights and duties, and carries on the same 
business with no change in substance. Further, the record demonstrates that the successor-in-interest 
is a subsidiary of the petitioning company and therefore part of the same multinational organization. 
Based on these facts, and for purposes of this petition, we consider the successor-in-interest,c=J to 
be the same entity that employed the Beneficiary in Germany. Accordingly, the Petitioner has 
established that it has a qualifying relationship with the entity that employed the Beneficiary abroad. 
IV. CONCLUSION 
On de nova review, the Petitioner has established eligibility for the requested benefit. 
ORDER: The appeal is sustained. 
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