sustained EB-1C Case: Machinery Export

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-E-2021 CORP. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 17, 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an exporter of machinery and equipment supplies, seeks to permanently employ the 
Beneficiary as its general manager under the first preference immigrant classification of a 
multinational executive or manager. See Immigration and Nationality Act (the Act) § 203(b)(l )(C), 
8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a 
qualified foreign employee to the United States to work in an executive or managerial capacity. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that: (1) the Petitioner has a qualifYing relationship with the Beneficiary's last 
employer abroad; (2) the Petitioner and foreign entity were doing business; and (3) the Beneficiary was 
employed abroad, and would be employed in the United States, in a managerial or executive capacity. 
On appeal, the Petitioner submits a brief and additional evidence addressing the issues discussed in 
the Director's decision. We issued a request for evidence and have received a detailed response from 
the Petitioner. 
Upon de novo review, we will sustain the appeal. 
I. LEGAL FRAMEWORK 
Section 203(b )(1 )(C) of the Act makes an immigrant visa 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. 
A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classifY a 
beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. The petition 
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. 
§ 204.50)(3). 
Matter of A-E-2021 Corp. 
II. QUALIFYING RELATIONSHIP 
The Director found that the Petitioner had not established a qualifying relationship with the 
Beneficiary's foreign employer in Venezuela. 
To establish a "qualifying relationship" under the Act and the regulations, a 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.'' S'ee 
generally section 203(b )(1 )(C) of the Act; 8 C.F .R. § 204.5G)(3)(i)(C). The pertinent regulations at 
8 C.F.R. § 204.5(j)(2) define the relevant terms. Generally, the regulation defines a "subsidiary" as 
an entity with a parent that controls the entity and, directly or indirectly, owns all or part of the 
entity. 
The Petitioner has consistently claimed that it is a wholly-owned subsidiary of the Beneficiary's 
foreign employer based on that entity's ownership of 100% of the Petitioner's stock. The Director 
denied the petition because: (1) the Petitioner initially issued a stock certificate indicating that the 
foreign entity owned 1000 shares, and the company was only authorized to issue 300 shares; (2) a 
document submitted to establish that the foreign entity paid for its shares in the petitioning company 
was not properly translated; and (3) there was a change in the ownership of the foreign entity which 
the Director viewed as an unresolved inconsistency. 
Upon review of the evidence, including the new evidence submitted on appeal, the Petitioner has 
established that it is a subsidiary of the Beneficiary's foreign employer. The Petitioner has credibly 
explained the discrepancy in the number of shares issued to the foreign entity and provided evidence 
that it took action to correct the error on the initial stock certificate. The record also contains 
sufficient evidence that the foreign entity actually paid for its ownership in the petitioning company. 
With respect to the change in ownership of the foreign entity, the Petitioner points out that the 
change took place while the petition was pending and that the foreign entity's ownership has no 
bearing on the ownership of the petitioning company, which continues to be solely owned by the 
foreign entity. 
Further, the record contains the Petitioner's articles of incorporation, by-laws, stock certificate, re­
issued stock certificate, stock ledger, minutes of stockholder meetings, and federal tax returns, all of 
which corroborate the Petitioner's claims. The Petitioner has established by a preponderance of the 
evidence that it is a subsidiary of the Beneficiary's foreign employer. 
III. DOING BUSINESS 
The Director further found that the evidence did not establish that the Petitioner and foreign entity 
were doing business as defined in the regulations at 8 C.F.R. § 204.5(j)(2). The Petitioner must 
establish that it was doing business in the United States for at least one year at the time it tiled the 
petition in April2013. See 8 C.F.R. § 204.5(j)(3)(i)(D). 
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Matter of A-E-2021 Corp. 
The Director denied the petition based on a finding that: ( 1) the Petitioner had not responded to the 
Director's request for additional evidence showing that it and the foreign entity were doing 
business 1; and (2) there were discrepancies noted with respect to the Petitioner's invoices from 2012, 
which appeared to be issued out of sequence. 
On appeal, the Petitioner submits a reasonable explanation regarding the noted irregularities in its 
invoices from 2012 and submits additional evidence sufficient to establish that the Petitioner was 
doing business for at least one year at the time the petition was filed. The Petitioner reported $1.2 
million in sales in 2012 and has provided additional evidence of its sales transactions during that 
year. Further, the record now contains ample evidence of the petitioner and foreign entity's 
continuous business activities through the present time. The Petitioner has overcome the Director's 
adverse determination and has met this eligibility requirement. 
IV. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
Finally, the Director determined that the Petitioner did not establish that the Beneficiary was 
employed abroad in a managerial or executive capacity for at least one year prior to his entry as a 
nonimmigrant, 2 or that he would be employed in the United States in a managerial or executive 
capacity as defined at section 101(a)(44) ofthe Act, 8 U.S.C. § 1101(a)(44). 
With respect to the Beneficiary's employment abroad, the Director found: (1) there was a 
discrepancy as to whether the Beneficiary's employment with the foreign entity began in 2001 or 
2003; (2) the Venezuelan National Registry, as of July 2013, named a different individual as the 
foreign entity's general manager; (3) the Beneficiary's job description was not sufficient to establish 
his employment abroad in a managerial capacity; and (4) the Beneficiary's employment abroad was 
not continuous because he spent time in the United States in 201 0 and 2011. 
Upon review, we find that the Petitioner has overcome the Director's concerns. The Director 
appears to have applied a strict continuous employment requirement that applies to the L-1 
nonimmigrant classification, which has similar, but not identical requirements with respect to a 
beneficiary's one year of employment abroad. However, even the L-1 nonimmigrant classification, 
allows for non-interruptive, intervening trips to the United States. See 8 C.F.R. § 214.2(1)(1 )(ii)(A). 
Periods of time spent in the United States do not count towards U.S. Citizenship and Immigration 
Services' calculation when determining whether the Beneficiary had one full year of employment 
abroad, but will not prevent us from concluding that he accumulated a full year during a three year 
period. While the Beneficiary spent time in the United States in 2010 and 2011 prior to being 
granted L-1 A status, these visits do not prevent a finding that he had the required one year of 
employment abroad between 2008 and 2011. 
1 We note that the Director's request for evidence issued on July 2, 2013. did not include a request for documentation of 
the foreign entity's business activities. 
2 The Beneficiary was granted a change of status to that of an L-1 A nonimmigrant intracompany transferee in a 
managerial or executive capacity in December 20 I I. 
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Matter of A-E-2021 Corp. 
Further, while the Director referenced the Beneficiary's job description for his employment abroad. 
it does not appear that the Director considered the totality of the evidence in determining whether he 
was employed abroad in a managerial or executive capacity. This adjudication requires a review of 
the foreign company's organizational structure, the duties of the Beneficiary's subordinate 
employees, the presence of other employees available to relieve him from performing operational 
duties, the nature of the business, and any other factors that contribute to understanding the 
Beneficiary's actual duties and role in the foreign business. 
The Petitioner provided sufficient supporting evidence to establish that the foreign entity more likely 
than not employed the Beneficiary in a managerial capacity. The foreign entity's organizational 
chart depicts the Beneficiary as the senior employee in a company with more than 20 employees, 
including subordinate department managers with at least one additional tier of supervisory 
employees below the department manager level. Further, the record contains the foreign entity's 
payroll records, employee lists, job descriptions for subordinates, and other evidence corroborating 
the structure depicted in the organizational chart. Viewing the Beneficiary's job duties within the 
totality of the evidence submitted, the Petitioner established that the Beneficiary primarily managed 
the foreign company as a whole, managed a subordinate staff of managerial or supervisory 
employees, had the authority to hire and fire employees, and exercised discretion over the day-to-day 
operations of the company, consistent with the statutory definition of managerial capacity at section 
101(a)(44)(A) ofthe Act. 
With respect to the proffered U.S. positiOn, the Director noted that the descriptions of the 
Beneficiary's proposed job duties were "vague" and determined that he would not be supervising 
subordinate professionals and therefore could not qualify as a managerial employee. On appeaL the 
Petitioner asserts that the Director's decision contained conclusory assertions and contends that the 
totality of the evidence submitted was sufficient to establish the Beneficiary's proposed employment 
in a managerial capacity. 
Upon review, the record, including the new evidence submitted on appeal, is sufficient to establish 
that the Beneficiary would be employed in a managerial capacity in which he primarily manages the 
petitioning company as a whole, supervises and controls the work of subordinate supervisory 
employees, has the authority to hire and fire employees, and exercises discretion over the day-to-day 
operations of the company. 
The record confirms that most of the Petitioner's employees were full-time workers and that the 
Petitioner also relied on outsourced service providers for certain business functions. Based on the 
nature and scope of the company at the time of filing, the staffing levels appear sufficient to relieve 
the Beneficiary from significant involvement in the day-to-day operations of the company. 
Accordingly, the Director's finding with respect to this issue is withdrawn. 
V. CONCLUSION 
As the Petitioner has overcome all stated grounds for denial, the appeal will be sustained. 
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Matter of A-E-2021 Corp. 
ORDER: The appeal is sustained. 
Cite.as Matter of A-E-2021 Corp., ID# 472110 (AAO Oct. 17, 2017) 
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