dismissed L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 03 043 51003 Office: TEXAS SERVICE CENTER Date: 1 0 3')G5 
IN RE: Petitioner: 
Beneficiary: c 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101 (a)(15)(L) 
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 Robert P. Wiemann, Director 
I Administrative Appeals Office 
SRC 03 043 5 1003 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 1992 and is 
described as a Mexican Chicken Restaurant. The petitioner claims to maintain a parent-subsidiary 
relationship with Alilnentos y Carnes, located in Tamaulipas, Mexico. It seeks to extend its authorization to 
employ the beneficiary temporarily in the United States as its vice president of operations for three years, at 
an annual salary of $48,000.00. The director determined that the petitioner had not submitted sufficient 
evidence to establish that a qualifying relationship exists between the U.S. and foreign entities. 
On appeal, counsel disagrees with the director's decision and states that sufficient evidence has been 
submitted to establish that a parent-subsidiary relationship exists between the foreign and U.S. entities. 
To establish L-1 eligibility under section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. § 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a fm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ 
the alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this 
section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the services 
to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization with the three years preceding the filing of 
the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position that 
was managerial, executive or involved specialized knowledge and that the alien's 
SRC 03 043 5 1003 
Page 3 
prior education, training, and employment qualifies himlher to perform the 
intended serves in the United States; however, the work in the United States need 
not be the same work which the alien performed abroad. 
The issue to be addressed in this proceeding is whether the petitioner has established that a qualifying 
relationship exists between the U.S. and foreign entity. 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define a "qualifying organization" and related terms as: 
(G) Qualibing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions 
of a parent, branch, affiliate or subsidiary specified in paragraph (I)(l)(ii) of 
this section; 
(2) Is or will be doing business (engaging in international trade is not required) 
as an employer in the United States and in at least one other country directly 
or through a parent, branch, affiliate, or subsidiary for the duration of the 
alien's stay in the United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operation division or office of the same organization housed in a 
different location. 
(K) 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. 
(L) Afiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) 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. 
The evidence submitted by the petitioner demonstrates the ownership of the U.S. and foreign entities as: 
SRC 03 043 5 1003 
Page 4 
FOREIGN ENTITIY 
NAME 
Juan Ochoa 
Arnulfo Ruelas 
Jaime Ochoa 
Jose Ochoa 
Jesus Ochoa 
U.S. ENTITY 
NAME 
Juan Ochoa 
# OF SHARES 
397 
100 
1 
1 
1 
% OF OWNERSHIP 
# OF SHARES % OF OWNERSHIP 
4,600 46 
Arnulfo Ruelas 1,700 17 
Juan F. Ochoa, Jr. 1,700 17 
Carlos Ochoa 2,000 20 
The director determined that a parent-subsidiary relationship did not exist between the two entities in that the 
evidence failed to establish that one of the subject companies owned at least 50 percent of the other. The 
director further determined that an affiliate relationship did not exist between the two entities in that a high 
degree of common owners hi^ or management had not been shown. The director noted that the evidence " 
I' 
" 
showed tha wns a majority of the foreign entity, but owns a minority of the shares in the U.S. 
entity. The irec or urt er noted that the evidence demonstrated that there were five shareholders owning 
stock in the foreign entity, but only four shareholders owning stock in the U.S. entity. 
two individuals are considered as one entity. 
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 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 
SRC 03 043 5 1003 
Page 5 
of Church Scientology International, supra. In the instant case, the evidence demonstrates that five 
shareholders own shares of stock in the foreign entity, while only two of the four shareholders owning shares 
in the U.S. entity also own shares of stock in the foreign entity wns a disproportionate 
number of shares in each company. In addition, the majority s entity is only a 
minority shareholder of the U.S. entity. 
Counsel contends tbat 
X 
as joint shareholders, collectively own 99.4 percent of 
the foreign entity's stoc and 63 percent of the U.S. entity's stock; and therefore as the majority stockholders, 
owns and controls the U.S. entity. These two individuals cannot be considered as a single entity with 
majority ownership and control of both companies. The petitioner has not shown that there are any voting 
proxies or agreements to vote in concert between these two individuals. 
Neither CIS nor AAO has ever considered a combination of individual shareholders as a single entity, so that 
the group may claim majority ownership, unless the group members have been shown to be legally bound 
together as a unit within the company by voting agreements or proxies. 
To establish eligibility in this case, it must be shown that the foreign company and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 percent of 
outstanding stocks of the 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). 
Upon review of the entire record, the petitioner has not established that a qualifying relationship exists 
between the U.S. and foreign entities. Therefore, the appeal will be dismissed. 
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. 9 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.