sustained EB-1C Case: Business

(b)(6)
DATE: MAY 0 3 2013 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave. N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services · 
OFFICE: NEBRASKA SERVICE CENTER 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 in your case. All of the documents 
related to .this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
t~ . '1-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The preference visa petition was denied by the Director, Nebraska Service Center. 
The matter is now before the Administrative Appeals Office (AAO), on appeal. The appeal will be 
sustained. 
The petitioner is a Delaware corporation that seeks to employ the beneficiary as its operational vice 
president. Accordingly, the petitioner endeavors to classify the beneficiary as. an employment-based 
immigrant pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1153(b)(1)(C), as a multinational executive or manager. 
I 
The director denied the petition concluding that the petitioner failed to establish that it has a 
qualifying relationship with the beneficiary's foreign employer. 
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 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 )(1 )(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. c 
The issue in this proceeding is whether the petitioner submitted sufficient evidence to establish that it 
has a qualifying relationship with the beneficiary's foreign employer. 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 
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office) or related as a "parent and subsidiary" or as "affiliates." Seegenerally §203(b)(l)(C) of the 
Act, 8 U.S.C. § 1153(b)(l)(C); see also 8 C.F.R. § 204.5(j)(2) (providing definitions of the terms 
"affiliate" and "subsidiary"). 
The regulation at 8 C.F .R. § 204.5(j)(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. 
In a letter of support, dated June 3, 2009, counsel for the petitioner stated that the beneficiary's last 
employer abroad, "owns 100% ownership of [the petitioner]." In a letter dated 
May 27, 2009, the petitioner explained that it "has the sole member, that 
changed its name to which is a wholly owned subsidiary of [the 
foreign company]." The petitioner submitted its Certificate of Formation and Limited Liability 
Agreement which identified its sole member as The petitioner also submitted a 
Certificate of Amendment to the Certificate of Inco!J>oration of stating that the 
name of the corporation is : 
On November 12, 2009, the director determined that the petitioner submitted insufficient evidence 
and requested additional information. The director noted that the evidence did not adequately 
demonstrate the qualifying relationship between the petitioner and the beneficiary's foreign employer, 
In response, counsel for the petitioner stated the following: 
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The relationship between the U.S. entity and the foreign entity: please find enclosed 
audited financial statements of [the petitioner] in 2007 (note A explains the 
relationship- [the petitioner] is a wholly-owned subsidiary of 
which is ultimately owned by - wholly owned by 
financial report of 2007). We also enclosed 
annual report of 2008 which indicated that [the petitioner] is a global 
subsidiary of at page 34). 
The notes to the petitioner's audited financial statements, dated December 31, 2007, state that the 
petitioner is a "wholly-owned subsidiary of , which is ultimately owned by 
· " The audited financial statements also state that the petitioner reorganized, 
effective on the close of business on August 31, 2007. An audit of financial documents is conducted 
in accordance with generally accepted auditing standards to obtain reasonable assurance whether the 
financial statements of the business are free of material misstatement. Here, the submitted evidence 
is relevant, probative, and credible since the audited financial statement are reviewed by auditing 
standards, and is highly credible and warrants substantial weight in immigration proceedings. See 
Matter ofChawathe. 25 I&N Dec. 369,375 (AAO 2010). 
On appeal, counsel for the petitioner explains that the petitioner restructured in 2007, so that 
. owns the petitioner but it is in turn owned and controlled by 
the beneficiary's foreign employer. Counsel provides a chart of the ownership structure. 
According to the chart, the beneficiary's foreign employer, has direct ownership 
of the petitioner of 0.743%. Counsel also contends that the foreign company indirectly owns the 
petitioner since the foreign company wholly owns two companies that in tum own a percentage of 
. The two companies owned by the foreign employer also have 
18.825% and 20.516% percent ownership of the petitioner. Thus, the beneficiary's foreign company 
maintains 39.084% ownership of 
In addition, counsel claims that the foreign company has indirect ownership, through two other 
companies that are partially owned by the foreign employer, which totals to 27.472%. The foreign 
employer has 40.29% ownership of which in tum owns part of the 
petitioner. Even though the foreign employer does not have majority shares of 
_ they do have majority control since "no other single shar~holder has more than 8.0% of 
ownership." Thus, the other shareholders cannot vote as a majority and therefore, the beneficiary's 
foreign employer has majority control over even though it does not 
have the majority ownership of the shares of that company. 
The legacy Immigration and Naturalization Service (INS) amended the regulations so that the 
definition of "subsidiary" recognized indirect ownership. See 52 Fed. Reg. 5738, 5741-2 (February 
26, 1987). To establish eligibility in this case, it must be shown that the foreign employer and the 
petitioning entity share common ownership and control. Control may be "de jure" by reason of 
ownership of 51 percent of outstanding stocks of the other entity or it may be "de facto" by reason of 
control of voting shares through partial ownership and possession of proxy votes. Matter of Hughes, 
18 I&N Dec. 289 (Comm'r 1982). The evidence in this case indicates that the foreign company has 
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indirect ownership of the petitioner and establishes a qualifying relationship between the petitioner 
and the beneficiary's foreign employer. " 
./ 
The record establishes that the foreign company has 66.556% ownership of 
"directly as well as indirectly," and thus, the petitioner is a subsidiary of the beneficiary's foreign 
employer. On appeal, the petitioner 
provides sufficient evidence to oveycome the director's concerns 
in the denial decision. The AAO will withdraw the director's decision and sustain the appeal. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has sustained that 
burden. Accordingly, the director's decision dated January 19, 2010 is withdrawn and the petition 
will be approved., 
ORDER: The appeal is sustained.