sustained L-1A Case: Biotechnology

U.S. Citizenship 
and Immigration 
Services 
MATTER OFT- INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 16,2017 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a biotechnology research and development company, seeks to temporarily extend the 
Beneficiary as its director of administration 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. § 1101(a)(l5)(L). The L-1A 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 of the Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish, as required, that it has a qualifying relationship with the Beneficiary's foreign employer. 
On appeal, the Petitioner submits additional evidence and maintains that the Petitioner and the 
Beneficiary's foreign employer are part of the same multinational organization and ultimately owned 
and controlled by the same individual. 
Upon de novo review, we will sustain the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 A nonimmigrant visa classification, a qualifying organization must 
have employed the beneficiary '"in a capacity that is manageriaL executive, or involves specialized 
knowledge,'' 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 atliliate thereof in a managerial or executive capacity. !d. The 
petitioner must also establish that the beneficiary's prior education, training. and employment 
qualities him or her to perform the intended services in the United States. 8 C.F.R. § 214.2(1)(3). 
A "qualifying organization'" is a United States or foreign firm, corporation, or other legal entity 
which meets exactly one of the qualifying relationships specified in the definitions of a parent. 
branch, affiliate, or subsidiary.'" See 8 C.F.R. § 214.2(1)(1)(ii)(l). Therefore. to establish a 
''qualifying relationship," the Petitioner must show that the Beneficiary's foreign employer and the 
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Matter (?f T- Inc. 
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 section IOI(a)(15)(L) of the Act. 
The term "subsidiary" is defined as 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. 8 C.F.R. § 214 .2(1)(1 )(ii)(K). 
The term "affiliate" refers to: 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. 8 C.F.R . § 214.2(l)(l)(ii)(L). 
II. QUALIFYING RELATIONSHIP 
The Director found that the Petitioner did not establish that it has a qualifying relationship with the 
Beneficiary's foreign employer. In denying the petition, the Director emphasized that the Petitioner 
did not demonstrate that the foreign entity is the Petitioner's majority owner. or that a single 
individual or entity owns a majority stake in both the Petitioner and the foreign employer. Further, 
although the Director recognized that the companies have some common ownership. the Director 
noted that the evidence did not establish that requisite common control. The Director was 
particularly concerned that the record did not include amended by-laws or similar instruments in 
which the Petitioner and foreign entity formally recognized de facto control by a specific individual 
or entity. 
On appeal, the Petitioner asserts that the president and chief executive officer of the foreign 
employer, has "de facto control" over the Petitioner and the Beneficiary's foreign 
employer through a combination of his direct ownership in each entity 
and his indirect ownership through a foreign holding company. In turn. it asserts that 
holds substantial shares in both the Petitioner and the foreign employer. thereby giving 
control over both entities . The Petitioner also emphasizes that the Petitioner and the foreign 
entity have the same chairman 1 , the same senior executive management team. and have 
worked in tandem on the development. FDA approval, and commercialization of the same patented 
gene therapy pharmaceutical product for more than a decade. during which time 
and have invested over $12 million into the petitioning company. 
Upon review of the evidence, including the new evidence submitted on appeal. the Petitioner has 
established an affiliate relationship with 
the Beneficiary's foreign employer. 
The Petitioner and foreign entity are part of a multinational Korean group of companies . known as 
the ' which is headed by a publicly traded holding company. 
while stock is widely dispersed among nominal shareholders . The foreign entity's corporate 
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Matter ofT- Inc. 
documentation indicates that is recognized as the sole "major shareholder" of 
based on his ownership of 47.4% of its shares, and, considered within the totality of the evidence, is 
sufficient to establish de facto control of the under the preponderance of the 
evidence standard. 
The Beneficiary's foreign employer, is owned by ( 15.4%), 
(20.5%), other subsidiaries (1.1% ), with the remainder of its stock widely 
distributed among nominal shareholders. It is recognized as a subsidiary in the 
annual reports. 
Finally, the record shows that the Petitioner was established with as its founding majority 
shareholder. It is currently owned by (20%), (30.6%), 
(14.1 %), and other subsidiaries (3.8%), with its remaining shares distributed among 
more than 300 nominal shareholders. The Petitioner's published company documents refer to the 
" and its subsidiaries" as the "majority shareholder" and owner of more than two-thirds 
of its issued stock. 
Overall, the record supports the Petitioner's claim that ownership stake and de facto 
control over the as a whole, and the Petitioner and foreign entity, specifically, is 
sufficient to establish an affiliate relationship in which the same individual owns less than 50% of 
each entity, but controls both entities. 
III. CONCLUSION 
The Petitioner has established that it has a qualifying relationship with the Beneficim-y"s foreign 
employer. 
ORDER: The appeal is sustained. 
Cite as Matter oj'T-Inc, ID# 623247 (AAO Oct. 16, 2017)