This appeal was not successful at this stage
The appeal was dismissed because the Petitioner failed to establish a qualifying affiliate relationship with the Beneficiary's Venezuelan employer. Although the AAO reversed the Director's ability-to-pay denial, the Petitioner could not prove that the same group of individuals owned and controlled both entities in the manner required by regulation.
A U.S. dairy manufacturer filed an EB-1C petition to permanently transfer its sales and marketing manager from Venezuela. The Texas Service Center denied the petition on two grounds: no qualifying relationship with the foreign employer, and inability to pay the proffered wage. On appeal, the AAO reversed the ability-to-pay denial based on a corrected analysis of the petitioner's 2015 tax return. However, the AAO affirmed the denial of a qualifying relationship because the four individuals who owned 100% of the U.S. company owned only 92.2% of the Venezuelan entity, and no voting agreements or proxies were provided to show these individuals were legally bound as a controlling unit. Additionally, corporate documents for the Venezuelan entity contained unexplained inconsistencies in share counts and share classes, leaving its actual ownership insufficiently documented.
What worked: The petitioner successfully overcame the ability-to-pay denial by providing a corrected analysis of its 2015 federal tax return, which the AAO found sufficient to demonstrate financial capacity.
What failed: The petitioner could not establish an affiliate relationship because (1) the same four individuals owned 100% of the U.S. entity but only 92.2% of the Venezuelan entity, and the regulatory definition requires the same individuals; (2) no voting agreements or proxies were submitted to show the owners acted as a legally bound unit; and (3) the Venezuelan entity's corporate documents contained unresolved discrepancies in share classes and total shares issued.
Takeaway: For EB-1C affiliate claims based on shared individual ownership, petitioners must submit voting agreements or proxies showing the co-owners act as a single controlling unit, and must ensure the foreign entity's corporate records fully and consistently document its ownership history without gaps or unexplained changes.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-1C criteria.
● Evidence that moved the needle
- The petitioner successfully overcame the ability-to-pay denial by providing a corrected analysis of its 2015 federal tax return, which the AAO found sufficient to demonstrate financial capacity.
● Evidence that wasn't enough alone
- The petitioner could not establish an affiliate relationship because (1) the same four individuals owned 100% of the U.S
- entity but only 92.2% of the Venezuelan entity, and the regulatory definition requires the same individuals
- (2) no voting agreements or proxies were submitted to show the owners acted as a legally bound unit
- and (3) the Venezuelan entity's corporate documents contained unresolved discrepancies in share classes and total shares issued.
Petitioner's membership certificates and recent tax returns corroborating U.S. entity ownership
2015 tax return analysis demonstrating ability to pay the proffered wage
Ownership charts showing four individuals collectively owning 100% of the U.S. entity and only 92.2% of the Venezuelan entity — insufficient to establish same-group ownership under 8 C.F.R. § 204.5(j)(2)
Claim that collective majority ownership by the same four individuals constitutes an affiliate relationship without voting agreements or proxies binding them as a unit
Foreign entity's 1997 corporate registration and subsequent amendment documents, which contained unexplained discrepancies in share counts and share classes, leaving foreign entity ownership inadequately documented
Beneficiary's election as director and president of the foreign entity as evidence of de jure or de facto control by the owning group
The Director's analysis of the Petitioner's assets and liabilities in evaluating ability to pay was incorrect; the AAO found sufficient evidence of ability to pay based on the 2015 tax return.
Completed
I-140 filed
Sales and marketing manager for a dairy products company
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2017-05-30
AAO decision — Dismissed
The appeal was dismissed because the Petitioner failed to establish a qualifying affiliate relationship with the Beneficiary's Venezuelan employer. Although the AAO reversed the Director's ability-to-pay denial, the Petitioner could not prove that the same group of individuals owned and controlled both entities in the manner required by regulation.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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