INS Letter on the Impact of Stock Purchase on EB-1(c) Petitions

Dear Mr. Blum:

I am in receipt of you letter dated August 2 concerning the ability of a petitioning employer to file an immigrant visa petition as a multinational executive or manager under section 203(b)(1)(C) of the Immigration and Nationality Act (Act).

In your letter, you present the following fact situation: A U.S. corporation has been in existence since October of 1991. In January of 1993, a foreign corporation acquires a 50% share in the U.S. corporation by stock purchase. The U.S. corporation seeks to file an immigrant visa petition for a qualifying executive as a multinational executive who is employed by the foreign corporation. You ask whether the U.S. corporation can file the petition.

It would seem that the first item at issue in your scenario is whether or not a qualifying relationship exists between the United States and foreign entities. See 8 CFR 204.5(j)(3)(C). Provided a qualifying relationship exists, the next area of interest would be 8 CFR 204.5(j)(3)(i)(D) which requires that the prospective United States employer has been doing business for a least one year. 8 CFR 204.5(j)(2) defines doing business as "the regular, systematic, and continuous provision of goods and/or services by a firm, corporation, or other entity and does not include the mere presence of a agent or office." In your scenario, the U.S. corporation would appear to be one which has been providing goods and services for more than one year. Assuming that the U.S. corporation continues to operate in the same manner after the acquisition and continues to have all of the assets, obligations, liabilities, and rights as it did before the acquisition, it would be considered to have been doing business for more than one year. Upon filing the petition, however, the U.S. corporation must establish that it is a viable entity which is not a shell.

I hope that this response will be helpful to you.

Edward H. Skerrett

27MM4C01