dismissed L-1A Case: Sanitation Services

MATTER OF E-N-A-, LLC 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 29,2016 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a provider of sanitation services in the food industry, seeks to temporarily employ the 
Beneficiary as its executive vice president under the L-1 A nonimmigrant classification for 
intracompany transferees. See Immigration and Nationality Act (the Act) section 101(a)(15)(L), 8 
U.S.C. § 110l(a)(15)(L). The L-lA classification allows a corporation or other legal entity (including 
its affiliate or subsidiary) to transfer a qualifYing foreign employee to the United States to work 
temporarily in a managerial or executive capacity. 
The Director, California Service Center, denied the petition. The Director concluded that the 
Petitioner did not establish th<;tt it has a qualifYing relationship with the Beneficiary's foreign 
employer. 
The matter is now before us on appeal. In its appeal,· the Petitioner asserts that it and the foreign 
entity are affiliates that are majority owned and controlled by the same group of shareholders. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a managerial or executive capacity, or in a specialized knowledge 
capacity, for one continuous year within three years preceding the Beneficiary's application for 
admission into the United States. Section 101(a)(15)(L) of the Act. In addition, the Beneficiary 
must seek to enter the United States temporarily to continue rendering his or her services to the same 
employer or a subsidiary or affiliate thereof in a managerial, executive, or specialized knowledge 
capacity. !d. 
The regulation at 8 C.F .R. § 214.2(1)(3) states that an individual petition filed on Form I -129, 
Petition for a Nonimmigrant Worker, 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 
(1)(1)(ii)(G) ofthis section. 
Matter of E-N-A-, LLC 
(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 within 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 prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
II. QUALIFYING RELATIONSHIP 
The sole issue to address is whether the Petitioner established that it has a qualifying relationship 
with the Beneficiary's foreign employer. 
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. 
one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1). 
The pertinent regulations at 8 C.F.R. § 214.2(l)(l)(ii)'define the term "qualifying organization" and 
related terms as follows:, 
(G) QualifYing organization means a United States or foreign firm, corporation, or 
other legal entity which: 
(1) Meets exactly one of th,e qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (1)( 1 )(ii) of this section; 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating 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 cont~ols the entity; 
or owns, directly or indirectly, half of the entity and controls the entity; or owns, 
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Matter of E-N-A-, LLC 
directly or indirectly, 50 percent of a 50-50 joint venture and ha~ equal ~ontrol 
and veto power over the entity; or owns, directly or indirectly, less than half of 
the entity, but in fact controls the entity. 
(L) Affiliate means 
(1) One oftwo 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 .... 
A. Evidence of Record 
On the L Classification Supplement to Form I-129, the Petitioner stated that it has an affiliate 
relationship with the Beneficiary's foreign employer, Where asked to 
describe the ownership and control of each company, the Petitioner stated that it is 70% owned by a 
group of three individuals, while the foreign entity is 95% owned by the same group of three 
individuals. 
In a support letter provided with the petition, the Petitioner included a chart reflecting that it is 
owned by the followin'g: 
(15%); 
The chart further indicated that 
(25%); and 
(15%); and 
(70%) 
(25%) ; 
(25%) 
is owned by the following: 
A similar chart for the foreign entity reflected that it is owned as follows: 
(31.67%); 
(5%); and 
(31.67%); 
(31.67%) 1 
1 We note that the record contains at least two variations of The first is ' and the second is 
We will note the name of the entity provided on each cited document when referring to this entity . 
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(b)(6)
Matter of E-N-A-, LLC 
The Petitioner stated that it and the foreign entity have an affiliate relationship since "the same group 
of individuals holds majority ownership and controlling interest in both" and that "each individual 
holds approximately the same proportion within the group of each company." 
The Petitioner submitted a membership certificate indicating that 
It provided membership certificates for 
that it is owned by the following: 
(25%); 
(25%); and 
(25%) 
it is 70% owned by 
reflecting 
With respect to the foreign entity, the Petitioner submitted share certificates indicating the following 
share distributions: 
(168 shares); 
(9 shares); 
(177 shares); and 
(177 shares) 
The Petitioner further submitted a share certificate reflecting that holds all 1200 
shares of and a letter and other supporting documentation 
indicating that the sole shareholder of 1s (for the 
and the is "controlled by A company statement 
dated May 22, 2016, indicated that is owned in equal shares by and 
In addition, a supporting corporate letter reflected that holds all 100 
shares of 
The Director later issued a request for ~vidence (RFE). The Director advised the Petitioner that the 
submitted evidence did not demonstrate that the Petitioner has common ownership with'the foreign 
entity and requested that it provide additional evidence of the ownership and control of each 
company. 
In a response letter, the Petitioner stated that the foreign entity is owned and controlled as follows: 
• owns 31.66% via his own which owns . 
1 00% of a company called which in turn owns 100% of a company 
called which owns 31.66% interest in [the foreign entity]; 
• owns 31.66% via his company called 
which owns 31.66% interest in [the foreign entity]; 
• owns 31.66% of [the foreign entity] in his personal capacity; and 
• owns 5% 
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(b)(6)
Matter of E-N-A-, LLC 
In addition, the Petitioner provided the following stock ledger for its 70% owner, 
Certificate Number Name Number of Shares Percentage of 
Shares 
1 2550 25% 
2 2550 25% 
4 I 2550 25% 
3 2550 25% 
TOTALS 10,200 100% 
/ 
The Petitioner further stated that it acts as the operating company and reiterated that it is 70% owned 
by 15% by "through and 15% by 
"through 
The Petitioner submitted· a letter from 
providing the following shareholding of the foreign entity: 
(177 shares) (31.6%); 
(178 shares) (31.8%); 
(177 shares) (31.6%); and 
(28 shares) (5%) 
and 
The Petitioner also provided copies of additional stock certificates for the foreign entity, along with 
evidence that and had transferred their directly owned shares to 
and respectively. 3 
In denying the petition, the Director stated that the evidence indicates that the Petitioner and the 
foreign entity are not qualifying affiliates as they are not owned and controlled by the same 
individual nor that they are owned by an identical group of individuals each owning the same 
proportion of the organization. ' 
In its appeal, the Petitioner asserts that both it and the foreign entity are majority owned, and 
effectively controlled, by the same group of shareholders, namely, and 
The Petitioner acknowledges that their proportions of ownership are not identical, but that 
their ownership represents more than 50% ownership in each company. 
2 It appears that this is a typographical error on the part of the letter-writer as no entity with the name 
appears in the record. 
3 At the time of filing, the Petitioner submitted a copy of the foreign entity's share certificate No. 17 showing that 
received 168 shares on October I, 200 I. In response to the RFE, the Petitioner submitted a copy of the foreign 
entity's share certificate No. 17 showing that received 9 shares on October I, 200 I. The Petitioner did not, 
provide an explanation for the existence of two different share certificates bearing the same number. 
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Matter of E-N-A-, LLC 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that it has a qualifying relationship 
with the foreign 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. See Matter of Church Scientology lnt 'l, 19 I&N Dec. 
593 (BIA 1988); see also Matter of Siemens Me d. Sys., Inc., 19 I&N Dec. 362 (BIA 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 Int 'l, 19 I&N Dec. at 595. c 
In the current matter, the Petitioner contends that it and the foreign entity qualify as affiliates based 
on asserted majority control by three shareholders in both entities, specifically, 
and However, the regulatory definition of "affiliate" is explicit, requiring that both 
entities are either: (1) 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. 
We acknowledge that if one individual owns a majority interest in' the Petitioner and the foreign 
entity, and controls those companies, then the companies will be deemed to be affiliates under the 
definition even if there are multiple owners. See 8 C.F.R. § 214.2(l)(l)(ii)(L)(l). However, the 
Petitioner and foreign entity are clearly not owned and controlled 
by the same parent or individual. 
Further, they are not owned and controlled by the same group of individuals. The Petitioner 
indicates that the foreign entity is 31.66% owned by (through 
31.66% owned by (through 
entities); 31.66% directly owned by and 5% directly owned by 
states that the Petitioner is owned 70% by 15% by 
and two other 
Further, it 
(owned by and 15% by (owned by The Petitioner explained that 
its 70% owner, is 25% owned by (owned by 
25% by (owned by , 25% owned by and 25% owned by 
First, as a preliminary matter, we note that the Petitioner has stated and provided company 
ownership charts indicating that owns 100% of an entity which has 
crucial indirect ownership interests in the Petitioner and the foreign entity.' However, the Petitioner 
has provided a company statement and an accountant's statement indicating 
that IS 
owned in equal shares by and his spouse 
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Matter of E-N-A-, LLC 
Therefore, although the Petitioner claims that ultimately owns 31.66% of the foreign 
entity, the evidence shows that and _each effectively own 15.83% of the foreign 
entity. Furthermore, the evidence indicates that and also each effectively own 
12.5% of and in turn through this company's 70% interest in the 
Petitioner, approximately 8.75% ofthe Petitioner. Overall, the evidence indicates th~t the Petitioner 
and foreign entity are ultimately owned by the following individuals: 
Name \ Petitioner Foreign Entity 
I 8.75% 15.83% 
I 17.5% 31.66% 
I 17.5% 31.66% 
I 8.75% 15.83% 
I 0% 5% 
I 17.5% 0% 
15% 0% 
t-
15% 0% f--·· - - · -
100% 100% 
Therefore, the evidence indicates that the Petitioner is directly and indirectly owned by seven 
individuals in varying degrees of ownership ranging from 8.75% to 17.5%. Meanwhile, the 
evidence demonstrates that the foreign entity is directly and indirectly owned by five individuals . 
Therefore, the entities are not owned by the same group of individuals , nor are they owned in the 
same relative percentages. 
Lastly, the Petitioner asserts that and own controlling majority 
interests in each entity, suggesting that their ownership interests are somehow combined. To 
establish eligibility under this premise, the Petitioner must establish that it and the foreign employer 
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 'r 1982). However, the Petitioner provides no explanation for how the ownership 
of these individuals would be bound together or supporting documentation to substantiate this 
combination. USCIS does not accept 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. Absent 
documentary evidence such as voting proxies or agreements to vote in concert, the Petitioner has not 
established that this group of three individuals controls both entities. A petitioner's unsupported 
statements are of very limited weight and normally will be insufficient to carry its burden of proof , 
particularly when supporting documentary evidence would reasonably be available. See Matter of 
Sofjici , 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing Matter of Treasure Craft of Cal., 14 I&N Dec. 
190 (Reg'! Comm'r 1972)); see also Mcitter o.fChawathe, 25 ·I&N Dec. 369,376 (AAO 2010). The 
Matter of E-N-A-, LLC 
Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 I&N Dec. at 376. 
The evidence of record does not demonstrate that the Petitioner and the foreign entity are affiliates as 
the entities are not owned and controlled by the same parent, individual, or group of individuals. 
Based on the deficiencies discussed above, the Petitioner has not established that it has a qualifying 
relationship with the foreign entity. 
III. CONCLUSION 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 127, 128 (BIA 
2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of E-N-A-, LLC, ID# 60935 (AAO Nov. 29, 2016) 
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