sustained EB-1C Case: Construction

U.S. Citizenship 
and Immigration 
Services 
In Re: 23376948 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 20, 2022 
Form 1-140, Petition for Multinational Managers or Executives 
The Petitioner, a construction contractor, seeks to permanently employ the Beneficiary as a project 
manager in the United States under the first preference immigrant classification for multinational 
executives or managers. Immigration and Nationality Act (the Act) section 203(b )(1 )(C), 8 U.S.C . 
§ 1153(b )(1 )(C). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner has a qualifying relationship with the Beneficiary's foreign employer. The 
matter is now before us on appeal. 8 C.F.R . § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa's, Inc., 26 l&N Dec. 537,537 n.2 (AAO 2015) . Upon de novo review, 
we will sustain the appeal. 
An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the 
petition, has been employed outside the United States for at least one year in a managerial or executive 
capacity, and seeks to enter the United States in order to continue to render managerial or executive 
services to the same employer or to its subsidiary or affiliate. Section 203(b )(1 )(C) of the Act. 
The Form 1-140, Immigrant Petition for Alien Workers , must include a statement from an authorized 
official of the petitioning United States employer which demonstrates that the beneficiary has been 
employed abroad in a managerial or executive capacity for at least one year in the three years preceding 
the filing of the petition, that the beneficiary is coming to work in the United States for the same 
employer or a subsidiary or affiliate of the foreign employer, and that the prospective U. S. employer 
has been doing business for at least one year. See 8 C.F.R. § 204.5(j)(3). 
The Director denied the petition based on a finding that the Petitioner did not establish that it has the 
required qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship," the Petitioner must show that the Beneficiary's foreign 
employer and the proposed U.S. employer are the same employer (a U.S. entity with a foreign office) 
or related as a "parent and subsidiary" or as "affiliates." See section 203(b )(1 )(C) of the Act. 
On appeal, the Petitioner maintains that the submitted evidence demonstrates it has a qualifying 
affiliate relationship with the Beneficiary's foreign employer based on common indirect ownership by 
the same parent company. The regulation at 8 C.F.R. § 204.5(j)(2)(A) defines affiliate as one of two 
subsidiaries both of which are owned and controlled by the same parent or individual. The term 
"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. 8 C.F.R. § 204.5(j)(2). 
The Beneficiary worked abroad for __________ and is currently employed by the 
Petitioner in the United States as an L-lA intracompany transferee. The Petitioner has consistently 
explained that it has an affiliate relationship with the Beneficiary's foreign employer based on 
common, indirect ownership by the same parent company, Specifically, 
the Petitioner provided evidence thatl I owns 100% of the shares o 
I I the entit that em lo ed the Beneficiary in Canada. In addition, the 
Petitioner provided evidence tha wholl owns 
a U.S. company which wholly owns ____________ which in tum owns 
100% of the Petitioner. 1 
In finding that the Petitioner did not establish a qualifying relationship with the Beneficiary's employer 
abroad, the Director misinterpreted documentation pertaining to the ownership composition of two of 
the above entities. The Director cited entries on IRS Form 5472, Information Return of a 25% 
Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business, with 
regard to the ownership ofl I erroneously concluding that the foreign parent 
did not wholly own the company as claimed. The Director also disregarded evidence establishing that 
the Petitioner was wholly-owned by ____________ and concluded that the 
evidence of record did not establish the requisite ownership structures to establish a qualifying affiliate 
relationship. 
On appeal, the Petitioner acknowledges the confusion caused by the complex corporate relationship 
between the Petitioner and the Beneficiary's foreign employer, and provides a detailed outline and 
explanation of the claimed affiliate relationship. The Petitioner highlights relevant facts and portions 
of documents that sufficiently refute the Director's concerns in the denial, noting that IRS Form 5472 
is required to be filed when a foreign entity owns a minimum of 25% of voting power or total stock 
value of a U.S. corporation, consistent with its previous claim that the parent company, based in 
Canada, owns 100% of I The Petitioner also highlights documents establishing 
1 The Petitioner's articles of incorporation demonstrate that it is authorized to issue 1,000 shares of common stock. The 
record is supported by documentary evidence establishing that to date, only 100 shares have been issued. and all of those 
shares are owned by I I 
2 
its ownership composition and supporting its claim that it is a wholly-owned subsidiary of 
I I 
A petitioner must establish that it meets each eligibility requirement of the benefit sought by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. at 375-76. In other words, a 
petitioner must show that what it claims is "more likely than not" or "probably" true. In this case, we 
conclude that the Petitioner's evidence is credible and sufficient to meet this standard. The record 
demonstrates that and the Petitioner are subsidiaries of 
_________ because it directly or indirectly owns more than half of each entity and has 
control of both entities. Since both the Petitioner and the foreign employer are subsidiaries that are 
owned and controlled by the same parent, they are affiliates according to the definition at 8 C.F.R. 
§ 204.5(i)(2)(A). 
The Petitioner has established b a re onderance of the evidence, that it has a qualifying affiliate 
relationshi with through their shared ownership and control by 
The Petitioner has therefore overcome the only stated ground for denial of 
the petition. 
ORDER: The appeal is sustained. 
3