dismissed L-1A Case: Advertising And Marketing

identi@ing data deleted to 
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Lo~~pivw 
PUBLIC COqY 
U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
Petition: 
 Petition forfa Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
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1 
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 -2 
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~obed~.. Wiemann, Dlrector 
Administrative Appeals Office 
EAC 04 110 53756 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
The petitioner, a New Jersey corporation, claims to be the 
subsidiary o 
 located in Istanbul, Turkey, and is an advertising and marketing firm. The 
period of stay to open a new office in the United States, and the 
petitioner now seeks to extend the beneficiary's stay for an additional three years. 
The director denied the petition concluding that the petitioner did not establish that (1) the petitioner had a 
qualifying relationship with a foreign entity; or that (2) the beneficiary would be employed in the United 
States in a primarily managerial or executive capacity. 
The petitioner filed an appeal in response to the denial. On appeal, counsel for the petitioner asserts that the 
director erred as a matter of law and fact, and that contrary to the director's findings, the petitioner had in fact 
submitted sufficient evidence to establish its eligibility. In support of this contention, counsel submits a brief 
and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. 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 affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
EAC 04 110 53756 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. fj 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the petitioner and the foreign organization are qualified 
organizations as defined by 8 C.F.R. fj 214.2(1)(l)(ii)(G). The regulation defines the tenn "qualifying 
organization" as a United States or foreign firm, corporation, or other legal entity which: 
(I) 
 Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not required) as an employer 
in the United States and in at least one other country directly or through a parent, branch, 
affiliate, or subsidiary for the duration of the alien's stay in the United States as an 
intracompany transferee; and 
(3) 
 Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
Additionally, the regulation at 8 C.F.R. fj 214.2(1)(l)(ii) provides: 
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries. 
(J) "Branch" means an operating division or office of the same organization housed in a different 
location. 
EAC 04 1 10 53756 
Page 4 
(K) "Subsidiary" means 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. 
(L) "Affiliate" means 
(1) 
 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, or 
(3) 
 In the case of a partnership that is organized in the United States to provide 
accounting services along with managerial andlor consulting services and that 
markets its accounting services under an internationally recognized name under an 
agreement with a worldwide coordinating organization that is owned and controlled 
by the member accounting firms, a partnership (or similar organization) that is 
organized outside the United States to provide accounting services shall be 
considered to be an affiliate of the United States partnership if it markets its 
accounting services under the same internationally recognized name under the 
agreement with the worldwide coordinating organization of which the United States 
partnership is also a member. 
In this case, the petitioner claims that the foreign entity owns the U.S. entity and, thus, they maintain a 
parent-subsidiary relationship. 
The director found the initial evidence submitted with the petition to be insufficient to qualify the petitioner 
for the benefit sought and consequently issued a request for evidence on March 16, 2004. In the notice, the 
director specifically required the petitioner to submit a sampling of the foreign entity's sales transactions as 
evidence that it was still doing business abroad as required by the regulations. In her June 10, 2004 response, 
counsel for the petitioner submitted the articles of incorporation, U.S. Corporation Income Tax Return for 
2003, and copies of sales invoices for the U.S. petitioner only. 
The director subsequently denied the petition, concluding that the petitioner's claim of a qualifying 
relationship was invalid since the petitioner had failed to establish that the foreign entity was still a viable 
company and thus a qualifying organization. Counsel appealed, yet provided the same insufficient evidence 
previously submitted. 
Upon review, the AAO concurs with the director's decision. 
 Despite the director's specific request for 
evidence pertaining to the foreign entity's business dealings, the petitioner failed andlor refused to submit 
EAC 04 110 53756 
Page 5 
such evidence. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds 
for denying the petition. 8 C.F.R. 9 103.2(b)(14). Consequently, the director correctly based the denial on the 
information contained in the record of proceeding when determining whether the foreign entity was still a 
qualifying organization. 
Upon review of the record of proceeding prior to adjudication, it is clear that the petitioner failed to establish 
that the foreign entity met the criteria set forth for a qualifying organization in 8 C.F.R. 3 214.2(1)(l)(ii)(G). 
Specifically, the term "qualifying organization" is defined in part as an organization that "is or will be doing 
business (engaging in international trade is not required) as an employer in the United States and in at least one 
other country directly or through a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the 
United States as an intracompany transferee." See 8 C.F.R. 5 214.2(l)(l)(ii)(G)(Z). Furthermore, the regulation 
at 8 C.F.R. §214.2(1)(l)(ii)(H) defines the term "doing business" as "the regular, systematic, and continuous 
provision of goods andlor services by a qualifying organization and does not include the mere presence of an 
agent or office of the qualifying organization in the United States and abroad." 
On appeal, counsel for the petitioner merely alleges that the petitioner "submitted volumes of evidence" to 
establish the petitioner's business operations in the United States. However, the basis for the denial is whether 
the foreign entity, not the petitioner, is continuing to do business during the alien's stay in the United States. 
Despite counsel's assertions that the petitioner has satisfied the regulatory requirements, no independent 
evidence has been submitted to establish that the foreign entity continues to regularly do business. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter oflaureano, 19 I&N Dec. 1 (BIA 1983); Matter of Rarnirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). Furthermore, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofflci, 22 I&N Dec. 
158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The claim that the petitioner and the foreign entity are still qualifying organizations absent any 
corroborating evidence of the foreign entity's business transactions is simply insufficient to overcome the 
director's denial in this matter. 
Upon review of the record of proceeding, the petitioner has not established that it has the required qualifying 
relationship with the foreign entity. Specifically, the regulation at 8 C.F.R. 9 214.2(1)(l)(ii)(G)(2) requires a 
qualifying organization to demonstrate that it is engaged in the regular, systematic, and continuous provision 
of goods or services and does not represent the mere presence of an agent or office in the United States or 
abroad. The petitioner has not demonstrated on appeal that a qualifying relationship still exists with the 
foreign entity and has not persuasively demonstrated that the foreign entity will continue doing business 
during the alien's stay in the United States. For this reason, the petition may not be approved. 
Beyond the decision of the director, the AAO also notes that the petitioner has failed to sufficiently document 
its claimed parent-subsidiary relationship with the claimed foreign entity. As general evidence of a 
petitioner's claimed qualifying relationship, stock certificates alone are not sufficient evidence to determine 
whether a stockholder maintains ownership and control of a corporate entity. The corporate stock certificate 
ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings 
EAC 04 110 53756 
Page 6 
must also be examined to determine the total number of shares issued, the exact number issued to the 
shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all 
relevant documents, U.S. Citizenship and Immigration Services (CIS) is unable to determine the elements of 
ownership and control. 
In this matter, no documentation pertaining to the ownership of the U.S. petitioner was submitted. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of Calrfornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Based on the current record, there is insufficient 
evidence to demonstrate that the petitioner was a wholly-owned subsidiary of the foreign entity as of the 
filing date of this petition, and thus the petitioner did not have a qualifying relationship with the foreign entity 
as required by the regulations. For this additional reason, the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The second issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), defines the term "managerial capacity" 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. A first line supervisor is not considered to be 
EAC 04 110 53756 
Page 7 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 
 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, counsel submitted no details with regard to the proposed job duties of the beneficiary. 
Consequently, the director requested a detailed overview of the beneficiary's duties in a request for evidence 
issued on March 16, 2004. The director advised the petitioner of the deficiencies in the petition, and 
requested that the petitioner submit a copy of the US entity's organizational chart listing all employee 
positions and duties, as well as copies of the petitioner's state and federal quarterly tax returns, in an effort to 
overcome the reasons for denial. In a response dated June 10, 2004, counsel for the petitioner provided the 
following brief statement: 
The Beneficiary is presently the Senior Executive of the Petitioner Company. 
 The 
Beneficiary's position as President is the Highest Executive Position for the Petitioner 
Company. The Beneficiary's employment with the Petitioner is Executive in the nature and 
sense that the Beneficiary is responsible for the day to day policy and goal[s] of the Petitioner 
Company. The Beneficiary shall be responsible to ensure the growth and the continued 
success of the Petitioner Company. In the position of President the Beneficiary is responsible 
for maintaining the continued success of the Petitioner Company. The Beneficiary is 
responsible for hiring all junior staff and is responsible for the policy planning and goal 
making of the Petitioner Company. 
 In fulfilling these duties the Beneficiary is not 
responsible to answer to any person, the Beneficiary shall make all decisions independently 
and without any senior authority. Thus the Beneficiary [possesses] discretionary decision 
making ability. 
The petitioner did not provide copies of its quarterly wage reports as requested, nor did it specifically discuss 
the position titles and duties of the petitioner's other employees or the organizational structure of the 
petitioner. 
On June 18, 2004 the director denied the petition. The director found that the totality of the evidence in the 
record was insufficient to establish that the beneficiary would be primarily employed in a managerial or 
EAC 04 110 53756 
Page 8 
executive capacity. In addition, the director concluded that the current corporate structure of the US entity 
was unclear as a result of the petitioner's failure to submit evidence, and thus it could not be determined that 
the beneficiary oversaw a staff of professionals or that sufficient staff existed to relieve the beneficiary fiom 
performing non-qualifying duties. In addition, the director concluded that the actual duties of the beneficiary 
could not be determined from the minimal evidence contained in the record. 
On appeal, the AAO notes that counsel once again repeats her assertions that the petitioner has satisfied all 
regulatory requirements, and introduces no new or independent evidence to establish the executive capacity of 
the beneficiary. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The only description of duties provided by the petitioner was in response to the request for evidence. This 
description did little to describe the beneficiary's actual duties, nor did it describe the nature of the 
beneficiary's day-to-day tasks. Instead, it merely provided a generic description of the nature of his duties, 
and at times merely paraphrased the regulatory definitions. The AAO, upon review of the record of 
proceeding, concurs with the director's finding that the beneficiary will not be employed in either a primarily 
managerial or executive capacity. First, the petitioner failed to specifically articulate the nature of the 
beneficiary's duties. While the petitioner did identify the overall role of the beneficiary in the workplace, it 
failed to specifically discuss what the beneficiary did during an actual workday. Specifics are clearly an 
important indication of whether a beneficiary's duties are primarily executive or managerial in nature; 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). The position description 
contained in the record did not articulate what a specific day in the role of the beneficiary would consist of. 
Instead, the descriptions merely provided a brief synopsis of the beneficiary's overall duties, such as 
"responsible for the day to day policy" and "responsible for maintaining the continued success" of the 
petitioner. It did not discuss or identify job-specific tasks or obligations the beneficiary would be required to 
perform. 
The statement provided by counsel in response to the request for evidence failed to discuss the details of the 
beneficiary's actual duties, nor did they clarify how the beneficiary was acting in a primarily managerial or 
executive capacity, as counsel claimed, when no other employees were identified or mentioned. Counsel 
basically equates managerial and executive capacity with the beneficiary's title of chief executive, yet fails to 
provide solid examples of how this capacity is actually attained. As discussed earlier in this decision, 
conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating 
the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co. v. 
Sava, at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Furthermore, without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
at 534; Matter of laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
EAC 04 110 53756 
Page 9 
Furthermore, it appears that the beneficiary is the sole employee of the petitioner. Though specifically 
requested by the director, the petitioner failed to submit copies of its quarterly tax returns listing its employees 
and the wages paid to these employees. Furthermore, the petitioner failed to provide a list of the other 
claimed employees of the petitioner along with their duties and job titles. Finally, according to the petitioner's 
U.S. Corporation Income Tax Return for 2003, there were no salaries or wages paid to employees, nor were 
any costs of labor identified. Absent evidence to the contrary, the AAO must therefore assume that the 
operation of the petitioner's advertising and marketing business is the beneficiary's sole responsibility. 
Although managerial and executive tasks are most certainly required in the establishment and operation of 
such a business, the actual day-to-day functions must also fall on the beneficiary. An employee who 
primarily performs the tasks necessary to produce a product or to provide services is not considered to be 
employed in a managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 
593, 604 (Comm. 1988). Consequently, the AAO must conclude that the beneficiary's duties are not 
primarily managerial or executive, although it is likely that the beneficiary's duties include some higher level 
tasks. 
The record as presently constituted is not persuasive in demonstrating that the beneficiary has been or will be 
employed in a primarily managerial or executive capacity. The petitioner was notified of the deficiencies in 
the record and was provided with an ample period of time in which to supplement the record. The petitioner, 
however, ignored many of the director's specific requests, and thus has failed to satisfy its burden of proof in 
these proceedings. Failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 9 103.2@)(14). It appears in this matter that the beneficiary was 
granted a one year period of stay to open a new office in the United States. However, 8 C.F.R. 5 
214.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of the 
petition to support an executive or managerial position. There is no provision in CIS regulations that allows 
for an extension of this one-year period. If the business is not sufficiently operational after one year, the 
petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has not reached the 
point that it can employ the beneficiary in a predominantly managerial or executive position. For this 
additional reason, the petition may not be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.