sustained EB-1C Case: Marble Products

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
pU-0~~~ COPY 
FILE: TEXAS SERVICE CENTER Date: OCT 1 $ mr 
SRC 06 184 51129 
IN RE: Petitioner: 
Beneficiary: 
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. § 1 153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
I Administrative Appeals OEce 
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DECISION: The Director, Texas Service Center, denied the employment-based visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner filed the immigrant visa petition to classify the beneficiary as a multinational manager or 
executive pursuant to section 203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
8 1153(b)(l)(C). The petitioner is a limited liability company organized under the laws of the State of 
California that is engaged in the sale of marble products. The petitioner claims to be the affiliate of the 
beneficiary's foreign employer, and seeks to employ the beneficiary as its executive director. 
The director denied the petition concluding that the petitioner had not established the existence of a qualifying 
relationship between the foreign and United States entities. 
On appeal, counsel for the petitioner contends that the director erroneously interpreted the regulations 
governing the issue of whether a qualifying relationship existed between the foreign and United States 
entities. Counsel asserts that in determining the existence of a qualifying relationship, United States 
Citizenship and Immigration Services (USCIS) should consider the relationship at the time the immigrant 
petition was filed, rather than whether the two companies enjoyed a qualifjring relationship when the 
beneficiary first entered the United States on a B-2 nonirnmigrant visa, as considered by the director. Counsel 
submits a brief in support of the appeal. 
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 or 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)(l)(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. 
The issue in this proceeding is whether a qualifying relationship existed between the beneficiary's foreign 
employer and the petitioning entity at the time the immigrant petition was filed. 
To establish a qualifjrlng relationship under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e. a United 
States 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. 8 1153(b)(l)(C); see also 8 C.F.R. 8 204.5(j)(2) (providing definitions of 
the terms "affiliate" and "subsidiary"). 
The regulation at 8 C.F.R. 5 204.5(')(2) states in pertinent part: 
Afiliate 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; 
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 filed the Form 1-140 on May 25, 2006. In an appended letter, dated March 23, 2006, the 
petitioner noted the existence of a corporate relationship between the petitioning entity and the beneficiary's 
foreign employer based on the foreign company's ownership of 50 percent of the United States company. The 
petitioner stated that at the time of its inco 
 ration in the United States, which occurred on April 21, 1997, 
-wnr of 98 percent, and the company was owned by two members: 
SOmer 
of the remaining 2 percent. The petitioner explained that in March 2002, the United tates company reached 
a business agreement with our supplier in Hong Kong, [the beneficiary's foreign employer], in that [the 
foreign entity] would acquire 50% interest of our company," and noted that the transfer of stock was 
completed in 2002. 
As evidence of the purported parent-subsidiary relationship, the petitioner submitted copies of the following: 
(1) its articles of organization; (2) the company's operating agreement, which identified- as the 
owner of 98 percent of the organization and- as owning the remaining interest in the 
company, as well as the capital contributions made by each member; (3) an April 16, 1998 statement of 
information filed with the State of California; (4) the minutes from an April 8, 2002 meeting of the 
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petitioner's members approving a transfer of interest in the petitioning entity equal to 50 percent of the 
company's ownership from to the foreign entity; (5) a May 10,2002 memorandum of transfer 
in which both - and the foreign entity acknowledged the transfer of a 50 percent membership 
interest in the United States entity to the beneficiary's foreign employer; and (6) Schedules K-1, Partnerfs 
Share of Income, Deductions, Credits, etc., of the petitioner's 2005 partnership income tax return, which 
identifjl the company's members and corresponding interests as follows: the foreign entity, 50 percent; Yim 
Ho Leung, 48 percent; and 
 2 percent. 
On July 12, 2006, the director issued a request for evidence directing the petitioner to "specifically describe" 
and submit documentary evidence of the claimed qualifying relationship between the foreign and United 
States entities. The director instructed that relevant evidence would include clarification of the number of 
shares issued by the petitioner and documentation establishing the owners of the issued stock. The director 
stated that "[tlhe evidence must clearly establish the degree of common ownership shared by the U.S. 
petitioner and the beneficiary's foreign employer'' and reflect any stock transfers that occurred after the 
company's inception. 
Counsel for the petitioner responded in a letter dated October 3,2006, and submitted an October 2,2006 letter 
in which the petitioner again noted the existence of a "parentlsubsidiary or affiliate relationship" between the 
foreign and United States entities. The uetitioner restated the means bv which the ownershiu of the commnv 
- - - 
was transferred from' the foreign entity, noting th; the 2002 "acquisition and transfer of 
interest" resulted in the foreign entity's ownership of 50 percent of the United States organization. The 
petitioner referred to a March 28,2002 agreement between the United States and foreign entities, in which the 
foreign entity agreed to render $150,000 in cash and merchandise to the petitioner in exchange for a 50 
interest in the organization. The petitioner submitted a copy of the referenced agreement. In response to the 
director's request for specific documents, the petitioner further explained that as a limited liability company, it 
does not issue stock or maintain a stock transfer ledger. 
The petitioner noted that the foreign entity is a sole proprietorship owned  by-^ and 
submitted copies of the foreign entity's business registration application, which the petitioner instructed is the 
only documentation required by law in Hong Kong to establish 
 ownership of 100 percent 
of the foreign organization. 
In a decision dated March 21, 2007, the director concluded that the petitioner had not demonstrated the 
existence of a qualifying relationship between the foreign and United States entities. Noting that the 
beneficiary first entered the United States in May 2001 for employment with the petitioner as an L-1A 
nonimmigrant intracompany transferee, the director indicated that at the time of the beneficiary's entrance the 
petitioning entity was owned by and and that the beneficiary's foreign 
employer did not maintain an interest in the petitioning entity. The director acknowledged the subsequent 
transfer of interest in the petitioning entity to the beneficiary's foreign employer in April 2002, but stated "the 
qualifying relationship was established one year after the beneficiary arrived in the United States and 
commenced working for [the petitioner]." The director instructed that the regulations require that if the 
beneficiary is already working in the United States at the time of filing the immigrant visa petition, "the 
petitioner must demonstrate that [the beneficiary] worked for a foreign qualifying company for one year 
during the three years immediat[ely] preceding her admission as a nonimmigrant." The director concluded 
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that because a qualifying relationship did not exist between the foreign and United States entities at the time 
the beneficiary entered the United States as a nonimmigrant, the petitioner had not satisfied the eligibility 
requirements for the instant immigrant visa petition. Consequently, the director denied the petition. 
Counsel for the petitioner filed a timely appeal on April 17, 2007 contending that the director erroneously 
interpreted the regulations relevant to the instant matter. In an appended appellate brief, counsel instructs that 
the petitioner had not employed the beneficiary prior to the date on which the qualifjrlng relationship was 
established between the foreign and United States entities. Counsel states that the beneficiary entered the 
United States on May 4, 2001 under a visitor visa, and changed her status to that of an L-1A nonimmigrant 
intracompany transferee on October 22, 2002, approximately five months after the establishment of the 
qualifjrlng relationship, in order to be employed by the petitioner. Counsel contends, nonetheless, that the 
director incorrectly required the existence of a qualifylng relationship between the foreign and United States 
entities during the time the beneficiary was employed by the foreign company "for at least one year within the 
three years preceding the beneficiary's entry of the US." Counsel challenges the director's fmding, instructing 
that a qualifjrlng relationship must have existed between the foreign and United States entities at the time of 
filing the immigrant visa petition, and that the corporate relationship need not have existed earlier. Counsel 
states: "If the domestic entity has a qualifylng relationship with the entity abroad with which the alien worked 
in a qualifjrlng capacity, the petition may befiled immediately after the relationship was established, e.g. by 
stock purchase." (emphasis in original). Counsel states: 
In the instant petition, the beneficiary worked for the foreign company before her entry in 
the US on May 4,2001. The domestic company acquired a qualified affiliate relationship 
with the foreign company on May 10,2002. Meanwhile, she continued to be employed by 
the foreign company until she changed her status fiom a B-2 to that of L-1 on October 22, 
2002. She began working for the domestic company under that L-1 visa only after a 
qualified relationship has been established. Then on April 10,2006, the domestic company 
filed the underlying EB-1 petition for her. This situation falls squarely within the scenarios 
described in the law and regulations cited above for which EB-1 petitions were approved. 
Upon review, the petitioner has demonstrated the existence of a qualifylng relationship between the foreign 
and United States entities at the'time of filing the immigrant visa petition. 
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 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 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 111 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. 
Counsel correctly notes on appeal that the relevant consideration with respect to the ownership and control of 
the petitioning entity is the date on which the immigrant petition was filed. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Comm. 197l)(finding that a petitioner must establish eligibility at the time of filing the 
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immigrant visa petition). The AAO notes that the ownership and control of the petitioning entity prior to the 
instant filing is relevant only to the beneficiary's eligibility for classification as a nonimmigrant intracompany 
transferee and does not affect the analysis of the instant matter. Each nonimmigrant and immigrant petition is 
a separate record of proceeding with a separate burden of proof; each petition must stand on its own 
individual merits. See 8 C.F.R. $ 103.8(d). 
Here, on the date on which the 1-140 visa petition was filed, the petitioner was owned and controlled by the 
beneficiary's foreign employer. The record of proceeding contains sufficient documentation, including 
corporate agreements and income tax returns, evidencing the transfer of a 50 percent membership interest in 
the United States organization to the foreign entity more than four years prior to the filing date of May 25, 
2006. As a result, at the time the immigrant petition was filed, a qualifjrlng parent-subsidiary relationship 
existed between the foreign and United States entities. Accordingly, the director's decision will be withdrawn 
and the petition will be approved. 
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. 5 136 1. Here, that burden has been met. 
ORDER: The appeal is sustained.