MATTER OF S-R- LLC

'--

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY 31,2017

APPEAL OF NEBRASKA SERVICE CENTER DECISION

PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER

The Petitioner, an Indian restaurant, seeks to permanently employ the Beneficiary as its manager under the first preference immigrant classification for multinational executives or managers. See Immigration and Nationality Act (the Act) section 203(b)(l)(C), 8 U.S.C. § 1153(b)(l)(C). This classification allows a U.S. employer to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity.

The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not establish, as required, that: (1) the Beneficiary would be employed in the United States in a managerial capacity; and (2) the Beneficiary was employed abroad in a managerial capacity.

On appeal, the Petitioner submits a brief asserting that the Beneficiary has been and would be employed in a managerial capacity. The Petitioner lists the Beneficiary's duties with both entities and contends that the Beneficiary assumed and would continue to assume the role of a function manager focusing on the business development 'and financial management functions.

Upon de novo review, we will dismiss the appeal.

I. LEGAL FRAMEWORK

An immigrant visa is available to a beneficiary who, in the three years preceding the filing of the petition, has been employed outside the United States for at least one year in a managerial or executive capacity, and who seeks to enter the United States in order to continue to render managerial or executive services to the same employer or to its subsidiary or affiliate. Section 203(b )(l )(C) of the Act.

A United States employer may file Form I-140, Immigrant Petition for Alien Worker, to classify a beneficiary under section 203(b)(l)(C) of the Act as a multinational executive or manager. A labor certification is not required for this classification.

The Form I-140 must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that the beneficiary . has been employed abroad in a managerial or executive capacity for at least one year in the three years preceding the filing of the petition, that the beneficiary is corning to work in the United States for the same employer or a

Matter ofS-R- LLC

subsidiary or affiliate of the foreign employer, and that the prospective U.S. employer has been doing business for at least 1 year. 8 C.F.R. § 204.5G)(3).

II. EMPLOYMENT IN A MANAGERIAL CAPACITY

The Director determined that the Petitioner did not establish that the Beneficiary has been and would be employed in a managerial capacity. 1

The term "managerial capacity" is defined as "an assignment within an organization in which the employee primarily":

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A). Further, "[a] first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional." !d.

If staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account the reasonable needs of the organization, in light of the overall purpose and stage of development of the organization. See section 1 01 (a)( 44 )(C) of the Act.

A. U.S. Employment

The first issue we will address is whether the Petitioner provided sufficient evidence to establish that it would employ the Beneficiary in a managerial capacity.

1 The Petitioner does not claim that the Beneficiary was employed abroad, or would be employed in the United States, in an executive capacity.

2

Matter ofS-R- LLC

1. Duties

When examining whether a Beneficiary will be employed in a managerial capacity, we will look first to the petitioner's description of the job duties. See 8 C.F.R. § 204.50)(5). Based on the statutory definition of managerial capacity, the Petitioner must first show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove that the Beneficiary will be primarily engaged in managerial duties, as opposed to ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533.

The Petitioner filed a Form I -140 claiming that the Beneficiary would be employed in the position of "manager." In a supporting letter, the Petitioner referred to the offered position as "Business Development Manager" and described it as "a functional [ m ]anagerial position within the company because the job duties involve management of the business development function and does not involve supervision of other employees." The Petitioner provided a corresponding list of job duties, which included leading the business development strategy by interacting with brand owners and franchises, tracking progress of the strategy using "tools and technologies," gathering and relaying market data, developing menus according to the franchise guidelim~s, creating marketing opportunities through business relationships with corporate partners and caterers, arranging for catering opportunities with local businesses, generating advertising opportunities, and working with real estate developers "to create visually appealing'eating spaces" to attract customers.

The Petitioner also provided the Beneficiary's resume, which states that he has been working for the Petitioner as its business development specialist since 2005. The resume lists the Beneficiary's duties, which overlap somewhat, but not entirely, with the duties described above. The job description in the resume indicated that the Beneficiary's position of business development specialist is subordinate to a business development manager to whom the Beneficiary reports his market research findings. The Beneficiary stated in his resume that he performs feasibility studies on expanding with new restaurants and works with "marketing, sales, food design and process team to implement business development strategies."

After reviewing the record, the Director issued a request for evidence (RFE), observing that the list of job duties provided in support ofthe petition lacked sufficient detail about the Beneficiary's daily job duties. The Director instructed the Petitioner to list the Beneficiary's specific daily job duties and the percentage of time the Beneficiary would allocate to each duty. The Director cautioned the Petitioner against grouping multiple tasks together into categories.

In response, the Petitioner provided a statement claiming that the Beneficiary has served as its business development manager for the past 11 years and that in this position he has trained an executive chef and so us chef, developed training programs for kitchen staff, recruited staff to ensure conformance with the Petitioner's culinary standards, and "developed inventory standards" to cut costs. The Petitioner also stated that the Beneficiary "leads the team in designing community

3

Matter ofS-R- LLC

programs" to promote its restaurant and is in charge of all activities associated with planning special events "right down to the last details," including making arrangements to make sure there is sufficient seating during the events. The Petitioner further stated that the Beneficiary heads the marketing efforts by inviting food critics and food editors to review the dining facility, publicizing the restaurant by working with vendors and, contacting "local, regional, and national magazines with feature ideas," and encouraging local businesses to! hold their events at the Petitioner's restaurant.

The Petitioner also provided a separate list of job duties, which were grouped into four categories. Briefly, the Petitioner stated that the Beneficiary would allocate 20% of this time to personnel duties; 25% of his time to marketing duties; 45% of his time to financial duties; and 10% of his time to operational duties. 2

·

We note that the Petitioner did not comply with the Director's RFE instructions, which expressly asked the Petitioner to refrain from grouping multiple tasks together and instead to list the Beneficiary's job duties and assign a time allocation ,to each individual duty to indicate the percentage of time the Beneficiary would spend on each component of the proposed position. The format in which the Petitioner provided the percentage breakdown precludes us from gaining an understanding as to the amount of time the Beneficiary would allocate to individual job duties.

Further, rather than submitting a job description that expanded upon the initial list of duties, the Petitioner provided, without explanation, a significantly different posttion description in response to the RFE. Namely, the initial job description and the Beneficiary's resume focused on his role in marketing and business development, indicating that the Beneficiary took an active marketing role in order to expand the Petitioner's restaurant business. Neither set of job duties indicated that the Beneficiary had or would have any personnel management duties, and, as noted, the Petitioner stated at the time of filing that the Beneficiary does not supervise other employees. In fact, the Beneficiary's resume actually indicates that the Beneficiary is accountable to other managerial employees within the organization to the extent that he compiles data for review by his manager. Conversely, the job descripticm the Petitioner provided in response to the RFE contains repeated references as to the Beneficiary's role in overseeing others, claiming that the Beneficiary leads "the management team" in enforcing personnel policies, plans and directs the work of a "managerial staff," leads a team "on operational cost-cutting strategies," and supervises a managerial staff to ensure the Petitioner meets various legal requirements. · In addition, the initial job description listed no finance-related duties while the Petitioner stated in response to the RFE that financial duties will require 45% of his time. The Petitioner must resolve these inconsistencies in the record with independent, objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988).

In denying the petition, the Director determined that the Petitioner provided a deficient job description that made vague references to the Beneficiary's claimed managerial capacity, while

2 As the Director restated the complete list of job duties in the denial, we will not repeat this information in our decision.

4

Matter ofS-R- LLC

indicating that the Beneficiary would be directly involved in various non-managerial functions, despite having some discretionary authority over the entity.

On appeal, the Petitioner contends that the Beneficiary spends his time primarily performing "high­level, managerial responsibilities," including job duties that require the Beneficiary to supervise and direct "mid-level personnel," and manages the company's key functions, including marketing, business development, and financial management.

The term "function manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a petitioner claims that a beneficiary will manage an essential function, a petitioner must furnish a written job offer that clearly describes the duties to be performed in managing the essential function, or more specifically, identify the function with specificity, articulate the essential nature of the function, and establish the proportion of a beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 204.50)(5). In addition, a petitioner's description of a beneficiary's daily duties must demonstrate that the beneficiary will manage the function rather than perform duties related to the function. See Matter ofZ-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016).

In this matter, the Petitioner has not provided evidence that the Beneficiary will manage an essential function. As previously noted, the initial list of job duties indicates that the Benet1ciary carries out a number of operational tasks in order to meet the goals of the business development function. Namely, the Petitioner stated that the Beneficiary was directly involved in interacting with brand owners and franchises, gathering and relaying market data, developing menus according to the franchise guidelines, and contacting businesses and caterers to create opportunities to market and advertise the Petitioner's restaurant. While we do not dispute their value to the overall success of the Petitioner's business, we find that these job duties are not managerial, but rather that they are more akin to duties performed by a marketing employee. We also do not find that meeting with real estate developers "to create visually appealing eating spaces" to draw customers, one ofthe elements of the original job description, is a managerial duty. Lastly, the same job description contains a vague reference to the Beneficiary's use of "tools and technologies" to track the progress of marketing strategies. However, the Petitioner did not clarify what these "tool and technologies" are to clarify the nature of the Beneficiary's tracking responsibility.

While we acknowledge that the record contains other job descriptions in the Beneficiary's resume and in the Petitioner's RFE response, neither is consistent with the above job duties that the Petitioner enumerated in a list that corresponds with the initial supporting statement. The list of duties included in the Beneficiary's resume seem to apply to an entirely different position than the one the Petitioner is currently seeking to fill, as it indicates that the job duties are those of a business development "specialist" rather than those of a business development "manager." The Petitioner did not explain why it responded to the RFE with a statement claiming that the Beneficiary "has served as Business Development Manager of [the U.S. entity] for the past eleven years," which is

5

Matter ofS-R- LLC

inconsistent with the job duties and position title in the Beneficiary's resume, which refers to the same time period and indicates that he has performed in the capacity of a "Business Development Specialist," whose job duties are largely non-managerial and are also inconsistent with the list that corresponds with the initial supporting statement and with the job duties provided in the RFE response statement. The evidence submitted on appeal does not acknowledge or resolve these inconsistencies with independent, objective evidence pointing to where the truth lies. Ho, 19 I&N. Dec. at 591-92. ·

The Petitioner also challenges the Director's characterization of the Beneficiary's job description as vague, asserting that references to the Beneficiary's leadership with regard to subordinates and business functions "make it clear" that the Beneficiary does not carry out the underlying support tasks that are related to those functions. The Petitioner goes on to address each prong of the four­prong statutory definition of managerial capacity, relying on elements of the job description contained in the RFE response to demonstrate that the Beneficiary's proposed position meets the relevant statutory criteria.

We disagree and find that the Petitioner's argument does not address or resolve the inconsistent information in the record regarding the Beneficiary's job duties. Although the Petitioner is correct in pointing out that the job description provided in the RFE response indicates that the Beneficiary directs and manages support personnel in the course of managing several key functions, we cannot overlook the incongruity between the original list of job duties and those provided in the RFE response, after the Petitioner was notified of the non-managerial components in the original job description.

In sum, the initial description appeared to have the Beneficiary performing primarily non-managerial operational duties, while the second duty description has the Beneficiary tasked with more managerial functions. We note, however, that the purpose of the RFE is to elicit further information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). Therefore, when responding to an RFE, a petitioner cannot offer a new position to a beneficiary, or materially change a position's title, its level of authority within the organizational hierarchy, or its associated job responsibilities. A petitioner must establish that the position offered to a beneficiary, when the petition was filed, merits classification as a managerial or executive position. See Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg'l Comm'r 1978). If a petitioner makes significant changes to the initial request for approval, it must file a new petition rather than seek approval of a petition that is not supported by the facts in the record.

Here, the information provided by the Petitioner in its RFE response did not clarify or provide more specificity about the original duties, but rather added new generic duties to the job description. A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). Given the lack of evidence resolving the inconsistencies in job duties, we find that claims made in the job description contained in the RFE response lack credibility and thus the probative value ofthe more recent job description is limited, at best.

6

Matter ofS-R- LLC

As noted, the Petitioner's original job description indicates that the Beneficiary's proposed employment would involve primarily non-managerial functions. While no beneficiary is required to allocate 100% of his time to managerial~level tasks, a petitioner must establish that the non­managerial tasks the beneficiary would perform are only incidental to the proposed position. An employee who "primarily" performs the tasks necessary to produce a product or to provide services is not considered to .be "primarily" employed in a managerial or executive capacity. See, e.g, sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); Matter of Church Scientology Int'l., 19 I&N Dec. 593, 604 (Comm'r 1988). Here, rather than being merely incidental, we find that the non-managerial tasks would be central to the Beneficiary's proposed position. Therefore, the Beneficiary's job duties do not establish that he would be employed in a managerial capacity.

2. Staffing

Beyond the required description of the job duties, we review the totality of the record when examining the claimed managerial capacity of a beneficiary, including the company's organizational structure, the duties of a beneficiary's subordinate employees, the presence of other employees to relieve a beneficiary from performing operational duties, the nature of the business, and any other factors that will contribute to an understanding of a beneficiary's actual duties and role in a business.

The Petitioner did not provide an organizational chart at the time of filing, and expressly stated that the employment offer is for a function manager position that "does not involve supervision of other employees." However, the organizational chart submitted in response to the RFE depicted the Beneficiary as directly or indirectly supervising every employee in the Petitioner's business except for his supervisor, identified on the chart as the owner of the company.

The statutory definition of "managerial capacity" allows for both "personnel managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are required to primarily supervise and control the work of other supervisory; professional, or managerial employees. The statute plainly states that a "first line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional." Section 101(a)(44)(A)(iv) of the Act. If a beneficiary directly supervises other employees, the beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and take other personnel actions. Section 101(a)(44)(A)(iii) ofthe Act.

In the present matter, despite initially claiming that the Beneficiary's primary focus would be managing the business development function, the organizational chart submitted with the RFE response depicted the Beneficiary as overseeing a subordinate staff of 22 employees; the chart did not expand on the Beneficiary's role as manager of the business development function or show who within the organization would support the Beneficiary in his management of that function. Therefore, the chart, like the subsequent job description that the Petitioner provided in response to the RFE, was inconsistent with the Petitioner's original claim regarding the Beneficiary's function'

7

.

Matter ofS-R- LLC

management role. As the record does not contain independent, objective evidence that resolve these inconsistencies, the probative value of the chart is greatly diminished. See Ho, 19 I&N Dec. at 591-92.

Given that the Petitioner provided inconsistent information as to Beneficiary's job duties and position title and did not consistently state that the Beneficiary would assume the role of a personnel or a function manager, we cannot conclude that the Petitioner would employ him in a managerial capacity.

B. Employment Abroad

Next, we will examine the record to determine whether the Petitioner provided sufficient evidence to establish that the Beneficiary was employed abroad in a managerial capacity.

1. Duties

Similar to the analysis of the Beneficiary's proposed employment, we look to the Beneficiary's assigned job duties to help· determine whether the Beneficiary was employed abroad in a managerial capacity. A 2005 statement from the foreign entity's managing director, confirmed the dates of the Beneficiary's employment abroad and stated that he performed the following duties as business development manager/general manager:

He performed analysis of sales results for new business clients and prepared concise follow-up rep [sic] assisted with the presentation of budgets and reports. Responsible for the analysis of financial transactions, and recommend feasible financial options for the company in order to maximize revenue and minimize costs. Conduct market surveys for the feasibility of new ventures taking to consideration of the demo graphical conditions in respective states and analyze potential expansion plans. Improve customer service based on client feedbacks to meet customers' needs.

did not specify who the foreign entity's "business clients" were or explain the relevance of this reference within the context of a restaurant. He also did not explain what types of financial transactions the Beneficiary analyzed or clarify how conducting market surveys and using customer feedback to improve the restaurant could be deemed as duties performed in a managerial capacity.

In the RFE, the Director asked the Petitioner to clarify the Beneficiary's job duties abroad by providing a statement from the foreign entity specifically identifying the Beneficiary's daily tasks and assigning a quantitative component to indicate the percentage of time the Beneficiary allocated to each of his assigned job duties. The Petitioner was again asked to refrain from grouping multiple tasks together, but rather to assign a time component to each individual job duty.

8

.

Matter ofS-R- LLC

In response, the Petitioner submitted an updated statement from the foreign entity's administrative office manager, who restated elements of the previously provided job description and listed additional duties, using the five previously listed job duties as category headings with a percentage of time assigned to each category rather than the individual job duties. stated that 20% of the Beneficiary's time was allocated to analyzing sales results for new business clients and preparing reports to update "the progress of our partnerships." He further stated that this group of responsibilities included leading "the team" in implementing the "latest food products and offerings" and ensuring satisfaction for "outside parties who held a stake in the promotional or permanent partnerships." He did not specify who "the team" included, nor did he clarify the types of people or businesses that included the foreign entity's "new business clients."

also stated that the Beneficiary allocated 20% of his time to developing and helping to present budgets through activity reports, spreadsheets, and financial analysis reports to company executives. It is unclear, however, that these job duties were managerial in nature. Likewise, while

indicated that the Beneficiary allocated another 20% of his time to handling public relations by reviewing customer feedback to improve customer service and drafting and presenting progress reports on community outreach projects, it is unclear how these customer service-driven duties, which are indicative of providing operational services for the foreign entity, qualify as managerial tasks. Lastly,

claimed that the Beneficiary hired outside agencies. to conduct surveys to put menu changes in place, but he also stated that the Beneficiary actually "[h]elped conduct surveys and organize data to deliver consumer reports," thereby indicating, again, that the Beneficiary spent additional time

· carrying out the foreign entity's operational tasks. Finally, stated that the Beneficiary "directly supervised seven managers," and indirectly supervised the entire staff of the foreign entity's main branch.

In denying the petition, the Director concluded that the record indicated that the Beneficiary was directly involved in marketing and promoting the foreign entity and that he was therefore carrying out the foreign entity's operational functions.

On appeal, the Petitioner contends that the RFE response "clearly" established that the Beneficiary was employed in a managerial capacity based on the claim that the Beneficiary was responsible for overseeing the foreign entity's food production, hospitality, and business development services. Similar to its claim regarding the Beneficiary's proposed employment, the Petitioner asserts that the Beneficiary managed two essential functions - that of financial management and marketing, and business development - and reiterated portions of the previously provided job description, claiming that 55% of the Beneficiary's time was spent on "finance-related duties."

As noted earlier in our discussion, the Beneficiary's former duties with the foreign entity must demonstrate that the Beneficiary managed an essential function(s) rather than perform duties related to the function(s). See Matter of Z-A-, Inc., Adopted Decision 2016-02. Here, the record lacks suffiucient evidence to establish that the Beneficiary's duties were primarily indicative of managing an essential function rather than performing the underlying duties of the function. A petitioner's unsupported statements are of very limited weight and normally will be insufficient to carry its

9

Matter ofS-R- LLC

burden of proof, particularly when supporting documentary evidence would reasonably be available. The Petitioner must support its assertions with relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). Merely pointing to a previously submitted job description, which the Director found to be insufficient and involving non­managerial job duties, will not overcome the Director's conclusion regarding the Beneficiary's employment with the foreign entity.

2. Staff

Finally, as in our analysis of the Beneficiary's proposed employment, we will address the available evidence regarding the foreign company's organizational structure and the employees that comprised that structure. Although the RFE instructed the Petitioner to submit employee job duties and payroll evidence to provide an understanding of who was carrying out the organization's operational tasks, the Petitioner did not submit the requested information, claiming that the payroll evidence was no longer available, while providing no reason as to why it neglected to provide job descriptions for the seven managers the Beneficiary is claimed to have been overseeing during his employment abroad. We note that failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.P.R. § 103.2(b)(14). Therefore, while the Petitioner submitted the foreign entity's organizational chart show~ng the Beneficiary as the direct supervisory authority over seven managerial positions, we are unable to determine what job duties they performed or how they may have contributed to supporting the Beneficiary in a managerial capacity and relieving him from having to allocate his time primarily to operational tasks, as his job description suggests.

Furthermore, the organizational chart is inconsistent with the Beneficiary's job description, which indicates that he spent approximately 60% of his time on duties that were associated with analyzing sales results for new business clients and preparing reports, developing and helping to present budgets, and improving customer service through public relations. None of the job descriptions that the Petitioner submitted were consistent with the organizational chart, which depicted the Beneficiary as an employee who oversees every aspect of the foreign entity's business.

Likewise, this chart, which indicates that the Beneficiary assumed the role of a personnel manager, is inconsistent with the Petitioner's claims on appeal, where the Petitionerclaims that the Beneficiary managed multiple functions. As noted earlier, the term "function manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing an "essential function" within the organization. Here, the Petitioner does not clarify or provide sufficient evidence to discern the Beneficiary's employment abroad as primarily being that of a function manager or that of a personnel manager. As noted earlier, any ambiguities in the record must Jbe resolved through the submission of independent, objective evidence. Matter of Ho, 19 I&N Dec. at 591-92.

In sum, the record contains a job description that indicates that the Beneficiary was directly involved in carrying out the foreign entity's marketing and business development tasks and the Petitioner has not provided sufficient evidence to show that the foreign entity had employees, other than the

10

Matter ofS-R- LLC

Beneficiary, to carry out those non-managerial functions such that the Beneficiary's role could be limited to that of managing, rather than carrying out the duties of the function. Given the lack of sufficient supporting evidence and inconsistencies in the record, the Petitioner has not established that the Beneficiary was employed abroad in a managerial capacity ..

III. QUALIFYING RELATIONSHIP

Lastly, while not addressed in the Director's decision, we find that the record lacks sufficient evidence to establish that the Petitioner has a qualifying relationship with the Beneficiary's former employer abroad.

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., a U.S. entity with a foreign office) or related as a "parent and subsidiary" or as "affiliates." See generally section 203(b)(l)(C) ofthe Act; 8 C.F.R. § 204.5(j)(3)(i)(C).

The term "affiliate" means:

(A) One of two subsidiaries both of which are owned and controlled by the same parent or individual; [or]

(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 ....

8 C.F.R. § 204.5(j)(2).

The same regulation defines a "subsidiary" 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.

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. See. e.g., Matter ofChurch Scientology Int'l, 19 I&N Dec. 593; Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 (Comm'r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm'r 1982). 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 o.fChurch Scientology Int'l, 19 I&N Dec. at 595.

11

.

Matter ofS-R- LLC

In the present matter, the record shows that the Petitioner is owned by six partners with no one partner owning a majority of its shares. Namely, the ownership breakdown shows that the

and each owns 22.5% of the Petitioner; and each owns 12.5% of its shares, with

owning the remaining 7.5% of the shares. The record also contains a deed of partnership pertaining to the Beneficiary's foreign employer, showing that is the majority owner of the foreign entity with a 90% ownership interest.

The Petitioner relies on a series of franchising and licensing agreements that it claims provide the necessary relationship between the entities. Specifically, the Petitioner claims to be a successor-in-interest to another U.S. entity, which has a licensing agreement with a foreign holding company, which, in tum, holds an international franchising agreement with the Beneficiary's foreign employer in India. The Petitioner also points out that one individual holds a minority interest in both entities. However, neither factor is sufficient to confirm the existence of a qualifying relationship.

In light of the ownership structures documented in the record, the Petitioner and foreign entity do not have either an affiliate or a parent-subsidiary relationship based on common ownership and control. An association between a foreign and U.S. entity based on a franchise agreement or a license is insufficient to establish a qualifying relationship. See 8 C.F.R. § 214.2(1)(1)(ii)(G) (defining the term "qualifying organization"). Franchise and licensing agreements are agreed upon between two parties acting at arm's length, and are not typically reflective of these entities sharing common ownership and control. See Matter of Schick, 13 I&N Dec. 647 (Reg'l Comm'r 1970) (finding that no qualifying relationship exists where the relationship between the foreign and U.S. entities was "purely contractual," or based on a license and royalty agreement subject to termination and not reflective of common ownership and management).

Because a qualifying relationship is a fundamental criterion for establishing eligibility to classify the Beneficiary as a multinational manager or executive, the petition cannot be approved.

IV. CONCLUSION

For the reasons discussed above, the evidence submitted does not establish that the Petitioner has a qualifying relationship with the Beneficiary's foreign employer or that the Beneficiary was employed abroad and would be employed in the United States in a managerial capacity.

ORDER: The appeal is dismissed.

Cite as Matter ofS-R- LLC, ID# 414951 (AAO May 31, 2017)

12