In Re Arctic Storm, Inc., A73 426 962 (AAO, November 29, 1999)
On November 29, 1999, the AAO held that a joint venture equally owned by two parent companies is a subsidiary within the meaning of INA §203 (b)(1)(C); 8 USC §1153 (b)(1)(c), because either parent may control the company through the use of its veto power.
The Director of the Nebraska Service Center had originally approved the petition to classify the beneficiary as a multinational executive or manager. That approval was later revoked by the Associate Commissioner for Examinations later revoked that approval, which was then upheld by the Commissioner. Artic Storm, Inc. filed a motion to reconsider, which resulted in the reinstatement of the visa petition
A Korean company and a U.S. partnership owned Artic Storm, Inc. in equal shares. Arctic Storm is the operator of a factory-fishing trawler. Arctic Storm sought to employ the beneficiary as vice president of the corporation.
In support of the motion to reconsider, Arctic Storm submitted brochures of the parent company, a letter from the president, the joint venture agreement, a shareholders agreement, and a resolution from the board of directors indicating that the company continued to operate as a joint venture.
On appeal, Arctic Storm argued that under Matter of Siemens, 19 I&N Dec. 362 (Comm.1984), it should be considered a subsidiary as that term is defined in the INA. In Siemens, the Commissioner held that a 50/50 joint venture creates a subsidiary relationship for purposes of §101(a)(15)(C) of the Act. In that case, the Commissioner explained that although there is no majority control, each parent through control of 50 percent of the voting shares has power to prevent action by the other parent.
In response, the AAO held that Arctic Storm’s reliance on Siemens was persuasive, even though the visa at issue in Siemens was for a nonimmigrant. And reviewing the corporate documents presented by the company, it held that Arctic Storm had established that equal control existed among the two parent companies through voting shares, veto power, appointment of directors, and other corporate mechanisms.
Ultimately, the AAO held that Arctic Storm had established its existence as a subsidiary within the meaning of §101(a)(15)(C), and therefore the beneficiary qualified for classification as a multinational manager or executive.