remanded EB-2 Case: Business Management

(b)(6)
DATE : AUG 1 8 2014 OFFICE: NEBRASKA SERVICE CENTER 
INRE: PETITIONER : 
BENEFICIARY : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigrat ion Servic es 
Administrative Appeals Office (AAO) 
20 Massac husetts Ave. , N.W., MS 2090 
Washington , DC 20529-2 090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C . § 1153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclo sed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen , respectivel y. Any motion must be filed on a Notice of Appeal or Motion (Form I-2908) 
within 33 days of the date of this decision . Please review the Form I-290B instructions at 
http:/ /www.u scis .gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5 . Do not file a motion directly with the AAO . 
Thank you, 
hk-Ron Rosenberg 
Chief, Administrative Appeals Office 
www. uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The Director, Nebraska Service Center, (director) denied the employment-based 
immigrant visa petition and a subsequent motion to reopen and reconsider. The matter is now before 
the Administrative Appeals Office (AAO) on appeal. The matter will be remanded to the director. 
The petitioner seeks to permanently employ the beneficiary in the United States as a managing 
director. The petitioner requests classification ofthe beneficiary as an advanced degree professional 
pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(2).1 
The Director, Nebraska Service Center denied the petition on October 15, 2013. The director found 
that the petitioner failed to disclose the beneficiary's partial ownership interest in the company that 
applied for the labor certification and that this prevented the Department of Labor (DOL) from 
investigating whether there is a bona fide job offer that was open to U. S. workers. The director 
invalidated the labor certification. 
Under 20 C.F.R. § 626.20(c)(8) and §656.3, the petitioner has the burden when asked to show that a 
valid employment relationship exists, that a bonafide job opportunity is available to U.S. workers. 
See Matter of Amger Corp. , 87-INA-545 (BALCA 1987). 
The ETA Form 9089 specifically asks in Section C.9: " Is the employer a closely held corporation, 
partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial 
relationship between the owners, stockholders, partners , corporate officers, incorporators , and the 
alien?" If the beneficiary has an ownership interest in the petitioning entity, the petitioner should 
have indicated, "yes" to this question. 
At the outset, we note that the entity that filed the labor certification was 
The instant petition was filed by 
successor-in-interest to the labot certification employer. 
, the 
In response to the director 's August 20, 2013, Notice of Intent to Deny counsel stressed that the 
company that applied for the labor certification was a Limited Liability Company (LLC), not a 
partnership, and therefore was not required to disclose the beneficiary's partial ownership share of 
the company. An LLC is an entity formed under state law by filing articles of organization. An 
LLC may be classified for federal income tax purposes as if it were a sole proprietorship , a 
partnership or a corporation. If the LLC has only one owner, it will automatically be treated as a 
sole proprietorship by the Internal Revenue Service (IRS) unless an election is made to be treated as 
a corporation. If the LLC has two or more owners, it will automatically be considered to be a 
partnership by the IRS unless an election is made to be treated as a corporation . If the LLC does not 
elect its classification , a default classification of partnership (multi-member LLC) or disregarded 
entity (taxed as if it were a sole proprietorship) will apply. See 26 C.F.R. § 301.7701-3. The 
1 Section 203(b )(2) of the Act provides immigrant classification to members of the professions 
holding advanced degrees, whose services are sought by an employer in the United States. 
(b)(6)
Page 3 
election referred to is made using IRS Form 8832, Entity Classification Election. In the instant case, 
the record demonstrates that was an LLC formed under Delaware law, 
filed its federal income taxes on Form 1065, U.S. Return ofPartnership Income and was considered 
to be a partnership for federal tax purposes. 
The PERM regulation specifically addresses the Issue of a beneficiary's ownership interests at 
20 C.P.R. § 656.17(1) that states in pertinent part: 
(l) Alien influence and control over job opportunity. If the employer is a closely held 
corporation or partnership in which the alien has an ownership interest, or if there is a 
familial relationship between the stockholders, corporate officers, incorporators, or 
partners , and the alien , or if the alien is one of a small number of employees , the 
employer in the event of an audit must be able to demonstrate the existence of a bona 
fide job opportunity, i.e., the job is available to all U.S. workers, and must provide to 
the Certifying Officer, the following supporting documentation: 
(1) A copy of the articles of incorporation, partnership agreement, 
business license or similar documents that establish the business 
entity; 
(2) A list of all corporate/company officers and shareholders/partners 
of the corporation/firm/business, their titles and positions in the 
business' structure, and a description of the relationships to each other 
and to the alien beneficiary; 
(3) The financial history of the corporation/company/partnership, 
including the total investment in the business entity and the amount of 
investment of each officer, incorporator/partner and the alien 
beneficiary; and 
(4) The name of the business' official with primary responsibility for 
interviewing and hiring applicants for positions within the organization 
and the name(s) of the business' official(s) having control or influence 
over hiring decisions involving the position for which labor 
certification is sought. 
(5) If the alien is one of 10 or fewer employees, the employer must 
document any family relationship between the employees and the 
alien. 
If the petitioner failed to check the appropriate box on ETA Form 9089, DOL would not be allowed 
an opportunity to audit and assess the nature of the ownership and the extent of the alien's influence 
and control over job opportunity. Therefore, a material issue in the case is whether the petitioner 
failed to disclose a controlling ownership interest in the petitioning entity by the beneficiary. 
Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 401 (Comm'r 1986), discussed a 
beneficiary's 50% ownership of the petitioning entity. The decision quoted an advisory opinion 
(b)(6)
Page 4 
from the Chief of DOL's Division of Foreign Labor Certification as follows: 
The regulations require a 'job opportunity' to be 'clearly open.' Requiring the job 
opportunity to be bona fide adds no substance to the regulations, but simply clarifies 
that the job must truly exist and not merely exist on paper. The administrative 
interpretation thus advances the purpose of regulation 656.20( c )(8). Likewise 
requiring the job opportunity to be bona fide clarifies that a true opening must exist, 
and not merely the functional equivalent of self-employment. Thus, the 
administrative construction advances the purpose of regulations 656.20. 
!d. at 405. Accordingly, where the beneficiary named in an alien labor certification application has an 
ownership interest in the petitioning entity, the petitioner must establish that the job is bonafide, or clearly 
open to U.S. workers. See Keyjoy Trading Co., 1987-INA-592 (BALCA Dec. 15, 1987) (en bane). A 
relationship invalidating a bona fide job offer may also arise where the beneficiary is related to the 
petitioner by "blood" or it may "be financial, by marriage, or through friendship." See Matter of Sunmart 
374, 2000-INA-93 (BALCA May 15, 2000). 
In determining whether the job is subject to the alien's influence and control, the adjudicator will 
look to the totality of the circumstances. See Modular Container Systems, Inc., 1989-INA-228 
(BALCA Jul. 16, 1991) (en bane). The same standard has been incorporated into the PERM 
regulations. See 69 Fed. Reg. 77326, 77356 (ETA) 
The etitioner has provided a copy of the Limited Liability Agreement for 
as required in 20 C.F.R. § 656.17(1)(1). This document describes the different types 
of ownership, '"Voting Income Units', the 'Non-Voting Capital Units', and the 'Profits Interest 
Units."' A letter from , Vice President of the petitioning company, indicates that the 
beneficiary 's shares consisted of"Non-Voting Capital Units" and that these shares were "extremely 
small and did not give him any right or opportunity to affect the labor certification process." As 
required in 20 C.F.R. § 656.17(1)(2) and (3), the company's 2012 income tax return lists the 
company's owners and confirms that the beneficiary's shares constituted 2.23% ownership of the 
company at the beginning of the year and 0.1428482% at the end of the year. 
The record does not document the name of the business official with primary responsibility for 
interviewing and hiring applicants as required in 20 C.F.R. § 656.17(1)(4). While, the size of the 
petitioning company, the size of the beneficiary's ownership share, and the description of the 
beneficiary's duties for the petitioner all suggest that the beneficiary did not exert influence over the 
labor certification process, the petition will be remanded to the director for evaluation of the totality 
of the circumstances concerning a bonafide job offer. 
In view of the foregoing , the previous decision of the director will be withdrawn . The petition is 
remanded to the director for reconsideration. The director may request any additional evidence 
considered pertinent. Similarly, the petitioner may provide additional evidence within a reasonable 
period of time to be determined by the director. Upon receipt of all the evidence, the director will 
review the entire record and enter a new decision. 
(b)(6)