sustained EB-1C Case: Manufacturing

DATE: OCT 0 4 201Z 
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 
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(I)(C) of the Immigration and Nationality Act, 8 U.S.c. § I I 53(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, 
PerryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
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 Nevada company engaged in the manufacture of adjustable patio covers, which 
seeks to employ the beneficiary as its Chief Executive Officer. Accordingly, the petitioner endeavors 
to classifY the beneficiary as an employment-based immigrant pursuant to section 203(b)(I)(C) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § IIS3(b)(I)(C), as a multinational executive or 
manager. 
On April 29, 2010, the director denied the petition concluding that the petitioner failed to establish the 
existence of a qualifYing relationship between the petitioner and the beneficiary's foreign employer. 
The petitioner subsequently filed an appeal. On appeal, counsel disputes the director's findings and 
provides an appellate brief laying out the grounds for challenging the denial. Counsel submits a brief 
and additional evidence in support of this assertion. 
Section 203(b) of the Act states in pertinent part: 
(I) 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 ofthe statute is specific in limiting this provision to only those executives and managers 
who have previously worked for the firm, corporation or other legal entity, or an affiliate or subsidiary 
of that entity, and 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 that indicates that the alien is to be employed in the United States in a managerial or 
Page 3 
executive capacity. Such a statement must clearly describe the duties to be performed by the alien. 
See 8 C.F.R. § 204.5(j)(5). 
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 
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); 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. 
The petitioner provided evidence to establish that the foreign company was established 
_and I each holding 50% shares of the foreign The petitioner 
submitted sufficient evidence to establish that the U.S. company is owned fAr,O/\ 
_(40%) and (20%). 
On appeal, counsel for the petitioner states the following regarding the qualifying relationship 
between the beneficiary's foreign employer and the U.S. entity: 
Here, the US Petitioner and foreign business are affiliates within the meaning 0 f the 
regulations. The two shareholders of the Israeli company own 80% of the U.S. 
Page 4 
Petitioner. Their proportion of shares in [the foreign company] is similar. Further, in 
order to maintain control over the U.S. business, the two main shareholders entered 
into a Block Voting Agreement. . . . Pursuant to the terms of this Block Voting 
Agreement, Haim has the ultimate power to affect the main decisions impacting [the 
petitioner]. He controls [the petitioner]. Last, a review of [the foreign company's] 
Shareholder Agreement enclosed herein as Exhibit 16 confirms that once again iii •• 
has the power to veto on all the major decision impacting [the foreign company]. He 
controls indirectly the company. Consequently, Haim has the ultimate control over 
both companies. As such, the Service should have recognized that an affiliate 
relationship existed between the two companies. 
On appeal, counsel for the petitioner asserts that the director's conclusion is erroneous. Counsel 
contends that both entities are similarly controlled and provides a "Block Voting Agreement" between 
_and stated, "the voting group member shall instruct the Proxy Agent 
how to vote on all issues at all membership meetings as a single block or unit. In case of 
disagreement between the voting group members the decision of_ is controlling." The 
petitioner also submitted a Shareholders Agreement for the foreign company that states: "Each 
shareholder will have I (One) vote for each Stock he holds. Notwithstanding the aforesaid, it is 
agreed by the parties that_ shall have the right to veto any decision ofthe general meeting." 
The regulation and case law confirm that ownership and control are the factors that must be examined 
in determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 
(Comm'r 1988); see also Matter of Siemens Medical Systems. Inc., 19 I&N Dec. 362 (Comm'r 1986); 
Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). In the context of this visa petition, ownership 
refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the 
establishment, management, and operations of an entity. Matter of Church Scientology International, 
19 I&N Dec. at 595. 
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 ofthe 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. 1982). A proxy agreement is a legal contract that allows one individual to act as a substitute 
and vote the shares of another shareholder. SeeBlack's Law Dictionary 1241 (7th Ed. 1999). 
The petitioner submitted a document entitled, "Block Voting Agreement," dated January I, 2007, 
between and . A block voting agreement is a contractual arrangement in 
which Shareholders their Shares will be voted as a unit. The document indicated that _ 
_ and each own 40% interest in the petitioner. According to this document, 
will act as a proxy agent, a person who is authorized to vote another's Shares. The 
document stated that "it is the intention of the voting group members that together they always retain 
Page 5 
control of [the petitioner]. Their capital and profits interest will always be voted together, and in this 
manner the undersigned members intend to avoid ever being out of control of [the petitioner]. In case 
of disagreement, the decision of will be controlling." 
Thus, according to this block voting agreement, Haim Perez has de facto control of the petitioner 
since he has the controlling vote if a disagreement arises between the two shareholders that are in the 
voting agreement. As a holder of 50% of the foreign company and as the shareholder with de facto 
control of the petitioner, _ has control over both the foreign company and the petitioner. 
Therefore, the petitioner has provided sufficient evidence to establish a qualitying relationship 
between the foreign company and the petitioner. 
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. Here, that burden has been met. 
Accordingly, the appeal will be sustained. 
ORDER: The appeal is sustained.