dismissed L-1A Case: Agricultural Products

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
IC COPY U. S. Citizenship 
and Immigration 
. & *:F.tC' ?u li"' " ,; : :.,y:Ld,*3 Services 
, " 
FILE: WAC 01 185 54881 Office: CALIFORNIA SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 10 1 (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. 
pministrative Appeals Office 
WAC 01 185 5488 1 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is described as being engaged in the import, export and sale of agricultural products and equipment 
for the dairy, cattle and farming industries. It seeks authorization to amend and extend the employment of the 
beneficiary temporarily in the United States as an export administrator. The director determined that the 
petitioner had not established that a qualifying relationship exists between the foreign entity and the U.S. entity. 
The director determined that the U.S. entity is not a qualifying organization and has not been doing business as 
defined. 
On appeal, counsel contends the only substantive change in the parentlaffiliate relationship since the date of the 
orignal approved petition is the increase in legal ownership by the majority owner. Counsel asserts that the U.S. 
petitioner is not a start-up and that there is no requirement for funds transfer from Mexico to the U.S. company. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. tj 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding the 
beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year by a 
qualifying organization and seeks to enter the United States temporarily in order to continue to render his or her 
services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or 
involves specialized knowledge. 
The regulation at 8 C.F.R. tj 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 thls 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. 
At issue in this proceeding is whether a qualifying relationship exists between the petitioning company and 
the claimed parent company. 
Bureau regulations at 8 C.F.R. tj 214.2(1)(l)(ii)(G) define the term "qualifying organization" as follows: 
Qualzfiing organization means a United States or foreign firm, corporation, or other legal entity 
which: 
(1) 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 (engagng 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 
WAC 01 185 54881 
Page 3 
(3) Otherwise meets the requirements of section 101(a)(l5)(L) of the Act. 
8 C.F.R. 9 214.2(1)(l)(ii)(I) states: 
Parent means a firm, corporation, or other legal entity 
which has subsidiaries. 
8 C.F.R. $ 214.2(1)(l)(ii)(J) states: 
Branch means an operating division or office of the same 
organization housed in a different location. 
8 C.F.R. 9 214.2(1)(l)(ii)(K) states: 
Subsidialy 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. 
8 C.F.R. $214.2(1)(l)(ii)(L) states, in pertinent part: 
Afiliate 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. 
located in Calexico, California, claims 
Mexico. The petitioner explained that 
acquired all the assets, subject to the liabilities, 06. a 
petitioner claimed it maintained the existing management and employees of Delta Commodities, Inc. as well 
as its customers, inventory, and work in progress. 
In support of this claim, the petitioner submitted an agreement of purchase and sale of assets that was dated 
.- foreign entity are owned by the same group of owners: 
WAC 01 185 54881 
Page 4 
The director issued a request for evidence requesting the following information to establish that the foreign 
entity is a valid business entity: 
Photographs of Foreign Company: Color photographs of business premise inside and outside. 
Also include company logos or signs. Provide address, directions and telephone numbers for 
each facility. 
Business License 
Sales Invoices: Submit legible copies of the foreign company's sales invoices andlor sales 
contracts to identify the gross sales amount as reported on the income and expenses 
statement. 
Telephone directory listing with translation 
The director also requested the following documents pertaining to the United States business: 
Proof of Stock Purchase: Submit evidence to show that the foreign company has paid for the 
U.S. entity. The evidence should include copies of original wire transfers from the parent 
company. Also cancelled checks, deposit receipts, etc. detailing monetary amounts for the 
stock purchases should be submitted. 
Stock Certificates: Submit copies of all the U.S. company's stock certificates issued to the 
present date clearly indicating the name of each shareholder. 
Stock Ledger: Submit copies of the U.S. company's stock ledger showing all stock 
certificates issued to the present date including total shares sold, names of shareholders, and 
purchase price. 
Detailed List of Owners: Submit a detailed list of the owners of the U.S. company and what 
percentages they own. List names, corporate and specific government affiliation, and 
percentages of ownership. 
Doing Business: Submit the following evidence to establish that the U.S. company is doing business. 
Sales tax: Provide a copy of the U.S. company's Sales and Use Tax Returns 
Business Licenses 
Seller Permit 
Telephone Directory Listing 
Publications 
Memberships 
Main Sales Invoices 
Shippers Export Declaration 
Customs Forms 
Physical Premises: Submit the following evidence to establish that a physical premise has been secured for 
the U.S. company. 
Floor Plan 
Photographs of the U.S. Business Premise 
Business Hours 
Phone number 
WAC 01 185 54881 
Page 5 
Lease Agreement 
Insurance 
Occupancy Permit 
Additionally, the director requested evidence that the beneficiary has been and will be performing the duties 
of a manager or executive within the U.S. company. 
On Seotember 25. 2001. the ~etitioner responded to the request for evidence. The petitioner provided color 
submitted documents regarding the U.S. petitioner's majority owner's E-2 treaty investor application and 
approval notice. 
Regarding the U.S. entity, the petitioner submitted the following: the petitioner's articles of incorporation 
which were dated July 10, 2000, the Form SS-4 application fo; employer identification number, and a bank 
deposit slip that indicated $10,000 were deposited intos U.S. bank account on 
October 26,2000. The petitioner submitted an additional bank statement showing an account balance of $77, 
490 dated November 30,2000. The petitioner also submitted a statement of cash flow for - 
Inc. The petitioner submitted-, business plan. Additionally, the petitioner submitted 
the operating agreement fo- with an attachment that indicated the following 
membership interests: 
Francisco C. Fuentes 60% 
Ma Consuelo Arestegui de Fuentes 20% 
Carlos Javier Fuentes 10% 
Francisco Jose Fuentes 10% 
The petitioner submitted an untitled organizational chart for the U.S. company which indicates that the 
beneficiary's position is that of export sales and is supervised by the sales manager. Additional1 the 
petitioner provided a lease agreement which indicates the assignment of the lease from d 
The petitioner provided the Form 1120 Corporate Income Tax Return for 
tax year 1999. This tax return indicated tha- owned 
5 1% of the common stock. 
Additionally, the petitioner provided copies of photographs which were vaguely labeled "offices." The 
petitioner provided an additional statement regarding the beneficiary's executive capacity. This statement 
included a U.S. business organizational chart which indicated that the beneficiary works in the logistics 
department but does not provide the specific position title. Additionally, the petitioner provided payroll 
information fo the third and fourth quarter of 2000 as well as payroll 
for the first and second quarter of 2001. 
The petitioner also provided the city business license, seller's license, telephone book listing, numerous 
invoices (dated August and September 2001) and numerous customs forms 7525-V (dated September 2001) 
for Also included were photographs of both the outside and inside of an office 
labeled The petitioner included an industrial lease for an industrial building of 28,000 
square feet leased t-Inc. as well as blueprints for the space leased. 
WAC 01 185 54881 
Page 6 
On March 27, 2002, the director issued a notice denying the petition. The director stated that part of the 
information requested of the petitioner "was the transfer of funds from the foreign company to establish the 
relationship between the U.S. entity and the foreign company." The director stated that the petitioner did not 
respond to this request and found that pertinent information was not submitted to prove that the foreign entity 
has ownership and control over the U.S. entity. The director determined that the evidence submitted is 
insufficient to determine that there is a qualifying relationship between the U.S. entity and the foreign entity. 
The director also requested color photographs of the foreign and U.S. entity showing both the inside and 
outside of all factory, production and office spaces with equipment, merchandise, products and employees, 
clearly visible. The petitioner was to include any logos, emblems or signs displayed. The director determined 
that the petitioner failed to identify the existence of the U.S. entity and the foreign company. The director 
determined that the petitioner had not established that the U.S. entity was doing business. 
On appeal, counsel explains that the petitioner is not a start-up and it is the successor in interest to a long- 
established going concern therefore there is no requirement to demonstrate a funds transfer from Mexico to the 
United States. The AAO agrees with counsel's reasoning that it may not be necessary for the petitioner to 
demonstrate a funds transfer from Mexico to the U.S. entity. However, as stated in CIS regulations, the petitioner 
must demonstrate there is a qualifying relationship between the petitioner and the foreign entity. 
On ameal. counsel asserts that CIS was erroneous in their a~~lication of regulations and service ~olicv. 
instances ~r.wns 80 percent of the equity and is charge of all day-to-day management and 
operations. However, without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Additionally, the petitioner submits an affidavit fro- Section 1 of this affidavit states 
mwns 80 percent of the foreign entity. Additionally, this affidavit states that the foreinn 
states "My wife and I own 80 percent of the membership interest in the LLC." 
Section 8 of the affidavit states "I own 80 percent of the Mexican parent company and 80 percent of the U.S. 
affiliate." It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BLA 1988). Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of Cal$ornia, 14 
I&N Dec. 190 (Reg. Comm. 1972). 
Additionally, counsel states that "[tlhis company and the predecessor and affiliate in Mexico have been 
granted petitions for International Executives for the past 9 years. The California Service Center has 
volumes on file regarding this company." Counsel also states that the petitioner bases this appeal on the 
instant record of proceeding "and the books, records, and files maintained by the service; the prior petition 
filed on behalf of the beneficiary . . . ." Counsel lists other receipt numbers for files at the California Service 
Center. However, it is worth emphasizing that that each petition filing is a separate proceeding with a 
WAC 01 185 54881 
Page 7 
separate record. See 8 C.F.R. 9 103.8(d). In making a determination of statutory eligibility, CIS is limited to 
the information contained in the record of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). If a director requests 
additional evidence that the petitioner may have submitted in conjunction with a separate nonimmigrant 
petition filing, the petitioner is, nevertheless, obligated to submit the requested evidence, as the record of the 
nonimmigrant proceeding is not combined with other records of nonimmigrant proceedings. 
The 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 for purposes 
of this nonimmigrant visa classification. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 
1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988)(in immigrant visa proceedings). In the context of this visa 
petition, 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 of Church Scientology International, supra at 
595. 
The regulation at 8 C.F.R. tj 2 14.2(1)(3)(viii) specifically allows the director to request such other evidence as 
the director may deem necessary. While the petitioner has submitted the operating agreement for the U.S. 
company which includes a listing of membership interests, the petitioner has not submitted any 
documentation evidencing the ownership of the foreign company. Therefore, the petitioner has not 
established that the foreign company and U.S. company share common ownership so that they may qualify as 
affiliates. Counsel claims that because one person owns 60 percent of both companies that the two companies 
are affiliates. Additionally, the affidavit by the majority owner of the petitioner contains inconsistencies 
regarding his percentage of ownership of both the U.S. and foreign entities. For this reason, the petition may 
not be approved. 
Although the director determined that the U.S entity has not been doing business as defined, upon review of the 
record, the AAO finds the petitioner has provided sufficient evidence to demonstrate that the U.S. entity has been 
doing business as defined by the regulations. The petitioner has provided federal and state tax returns as well as 
customs documents and sales invoices. Additionally, the petitioner provided leases to demonstrate that it has 
sufficient business premises to operate. However, because the petitioner has not provided sufficient evidence to 
determine whether there is a qualifying relationship between the foreign and U.S. entity, ths issue need not be 
addressed further. 
Beyond the decision of the director, the petitioner provided insufficient evidence to determine whether the 
beneficiary will be employed primarily in a managerial or executive capacity. The Form 1-129 indicates that 
the beneficiary has been and will be employed in the position of export administrator. The letter from the 
petitioner attached to the petition states that the export administrator is a key managerial position in the export 
services department. However, the petitioner has provided no comprehensive description of the beneficiary's 
duties that would demonstrate that the beneficiary has been or will be managng the organization, or managing a 
department, subdivision, function, or component of the company. Additionally, the petitioner has provided more 
than one organizational chart for the U.S. entity that indicates a different position for the beneficiary. It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
WAC 01 185 54881 
Page 8 
The petitioner has not shown that the beneficiary has been or will be hctioning at a senior level withln an 
organizational hierarchy. Further, the petitioner's evidence is not persuasive in establishing that the beneficiary 
has been or will be managing a subordinate staff of professional, managerial, or supervisory personnel who 
relieve him from performing non-qualifying duties. The petitioner admits "this department has not progressed to a 
point where we require additional employees to work under the supervision of [the beneficiary]." Based on the 
evidence submitted, it cannot be found that the beneficiary has been employed in a primarily executive or 
managerial capacity. For ths additional reason, thls petition may not be approved. 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.