dismissed L-1A Case: Agriculture

4 
w identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 07 191 5 1371 Office: CALIFORNIA SERVICE CENTER Date: hiow 10 3 Bl8 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 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. 
Robert P. Wiemann, chief 
Administrative Appeals Office 
, WAC 07 191 51371 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the beneficiary as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of Nevada and is allegedly in the agriculture business. The beneficiary was granted a one-year 
period of stay to open a new office in the United States, and the petitioner now seeks to extend the 
beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish (1) that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) that the petitioner and 
the foreign employer are qualifying organizations. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred, that the 
beneficiary will perform primarily qualifying duties in the United States, and that the petitioner and the 
foreign employer are qualifying organizations as "affiliates." 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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 fill-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 hirnther to perform the intended 
services in the United States; however, the work in the United States need not be the 
, WAC 07 191 51371 
Page 3 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. $ 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 
managerial 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 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. @ 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 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
WAC 07 191 51371 
Page 4 
Section 101 (a)(44)(B) of the Act, 8 U.S.C. 5 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. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that 
the petitioner is asserting that the beneficiary will be employed in either a managerial or an executive capacity 
and will consider both classifications. 
The petitioner failed to describe the beneficiary's proposed duties as "president and chief executive officer" in 
the initial petition. Accordingly, on July 23, 2007, the director requested additional evidence. The director 
requested, inter alia, an organizational chart for the United States operation, which includes job descriptions 
for all of the beneficiary's subordinate employees; a more detailed description of the beneficiary's proposed 
duties, including a breakdown of the percentage of time devoted to each ascribed duty; quarterly wage 
reports; and a list of all United States employees. 
In response, the petitioner submitted an organizational chart for the United States entity. The chart portrays 
the petitioner as a multi-tiered, complex organization involving at least 17 different employees and 
contractors. However, the petitioner also submitted its quarterly wage reports for the quarter in which the 
instant petition was filed. These reports indicate that the petitioner employed three workers, including the 
beneficiary, in the month in which the petition was filed, i.e., June 2007. The reports also indicate that two of 
the workers were hired in May 2007. Prior to their employment, the beneficiary was the petitioner's only 
employee. The beneficiary's two subordinates are identified in the organizational chart as the field supervisor 
and the bookkeeper. 
The petitioner also submitted evidence indicating that it has established relationships with various individuals 
who have agreed to sell the petitioner's agricultural products as "independent distributors." However, these 
individuals are not employees of the petitioner, and the record is devoid of evidence establishing that the 
petitioner exerts any supervisory control over these distributors. 
The petitioner also described the beneficiary's proposed duties as follows: 
. WAC 07 191 51371 
Page 5 
Administrative: 
Incharge [sic] of all Office and administrative matters of [the petitioner] 
Establish Office, Warehousing and delivery system in California Distributorship 
a 
 Facilitate orders from different country representatives namely: 
[examples omitted] 
Hire Employees and develop Independent Marketing Distributors 
Incharge [sic] of Staffiemployees' payroll 
Sales & Marketing: 
In-charge of company expansion plans for the whole of United States 
Intensify Promotion and Marketing of AZ41 Organic Based Foliar Blend in the State 
of California and the whole United States. 
Train staff and personnel in Product knowledge and sales & marketing 
Develop Business and marketing plan 
Make marketing Analysis 
Open new markets for AZ41 distribution like cooperatives, organizations and stores 
Research on more crops to have the claims 
Logistics 
Acts as Liaison Officer with Suppliers 
Coordinate with Supplier regarding formulatiods, contract and arrange payments 
Arrange and facilitate movement/transfer and distribution of products from Supplier 
to customers. 
Make arrangements for distribution and delivery. 
Finally, the petitioner described the duties of the two subordinate workers allegedly employed at the time the 
petition was filed. The duties of the bookkeeper are described as administering bills, accounts, and the 
payroll. The field supervisor is described as assisting the distributors in promoting products, taking orders 
from distributors, submitting reports, and collecting payments. Although both the bookkeeper and the field 
supervisors are described as reporting to the "executive vice president," this individual is not listed as an 
employee in any of the current or past wage reports. Accordingly, it appears that these workers report directly 
to the beneficiary. 
On November 26, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States. 
Upon review, counsel's assertions are not persuasive. 
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. A petitioner cannot claim that some of the duties of the 
WAC 07 191 51371 
Page 6 
position entail executive responsibilities, while other duties are managerial. Again, a petitioner may not claim 
that a beneficiary will be employed as a hybrid "executive/manager~' and rely on partial sections of the two 
statutory definitions. 
Title 8 C.F.R. § 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the beneficiary 
is not performing qualifying duties within one year of petition approval, the petitioner is ineligible by 
regulation for an extension. In the instant matter, the petitioner has not established that the United States 
operation has reached the point that it can employ the beneficiary in a predominantly managerial or executive 
position. 
As a threshold issue, it is noted that employees hired after the filing of the initial petition may not be 
considered in determining whether the petitioner has established that the beneficiary will be employed in a 
primarily managerial or executive capacity in the United States. A visa petition may not be approved based 
on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of 
facts. See Matter of Michelin Tire Colp., 1 7 I&N Dec. 248 (Reg. Comm. 1 978); Matter of Katigbak, 14 I&N 
Dec. 45,49 (Comm. 1971). Accordingly, the petitioner's claim in the organizational chart that it may employ 
additional workers in the future is not relevant and will not be considered. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will be in charge of "all [olffice and 
administrative matters," develop "[blusiness and marketing plan," and engage in "marketing analysis." 
However, the petitioner does not specifically describe the business and marketing plan or explain what, 
exactly, the beneficiary will do to engage in market analysis or to manage all office and administrative 
matters. Importantly, the petitioner has not established that any of the beneficiary's duties pertaining to 
administration, sales, marketing, and logistics are qualifying duties. The fact that a petitioner has given a 
beneficiary a managerial or executive title and has prepared a vague job description which includes inflated 
job duties does not establish that a beneficiary will actually perform managerial or executive duties. 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. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 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 California, 14 I&N Dec. 190 (Reg. Cornm. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in his operation of the business. As noted above, the petitioner asserts that the beneficiary 
will "manage" the petitioner's business operations through two subordinate workers. However, the record 
does not establish that the beneficiary will be relieved of the need to perform many of the non-qualifying 
tasks inherent to his ascribed duties by a subordinate staff. For example, many of the beneficiary's vaguely 
described duties appear to involve marketing, logistics, customer relations, and first-line supervision of the 
petitioner's two recently hired workers. Not only are the beneficiary's two subordinates not described as 
. WAC 07 191 51371 
Page 7 
performing tasks which will relieve the beneficiary of the need to perform the non-qualifying tasks inherent to 
his duties, the petitioner failed to establish how much time the beneficiary will devote to these non-qualifying 
tasks, even though this evidence was specifically requested by the director. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 
103.2(b)(14). Accordingly, it appears more likely than not that the beneficiary will primarily perform non- 
qualifying first-line supervisory, administrative, and operational tasks in his administration of the business. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 10 1 (a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornrn. 1988). A managerial 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. 5 10 1 (a)(44)(A)(iv) of the Act; see also 
Matter of Church Scientology International, 19 I&N Dec. at 604. 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential hction of the organization. 
As asserted in the record, the beneficiary will directly supervise two subordinate workers. However, it has 
not been established that either of these workers is truly a supervisory or managerial worker given that neither 
supervises a subordinate staff. Also, the job descriptions provided for these workers indicate that each of 
them performs the tasks necessary to the provision of a service or the production of a product. Although the 
field supervisor is vaguely described in the organizational chart as supervising the distributors, it does not 
appear that the distributors are employees or, importantly, under the direction or control of either the 
beneficiary or the field supervisor. Finally, as the petitioner failed to establish the skills and educational level 
required to perform the duties of the subordinate positions, even though this evidence was also requested by 
the director, the petitioner has not established that the beneficiary will manage professional employees. Once 
again, failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. 5 103.2(b)(14).' Accordingly, as it appears that the beneficiary will be, at most, 
a first-line supervisor of non-professional workers, the petitioner has not established that the beneficiary will 
be employed primarily in a managerial capacity.2 
I 
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Cornm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
WAC 07 191 51371 
Page 8 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. As explained above, it appears 
instead that the beneficiary will be primarily employed as a first-line supervisor and will perform the tasks 
necessary to produce a product or to provide a service. Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "may properly consider an organization's small size as one factor in assessing whether its operations 
are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration Services, 469 
F.3d 13 13, 13 16 (9'h Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). Furthermore, it is appropriate for CIS to consider the size of the 
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the 
absence of employees who would perform the non-managerial or non-executive operations of the company, 
or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics 
Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary will manage an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
will manage the function rather than perform the tasks related to the function. In this matter, the petitioner 
has not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record indicates that the beneficiary will primarily be a first-line supervisor of non-professional 
employees or will perform non-qualifying tasks. Absent a clear and credible breakdown of the time spent by 
the beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be 
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager. 
See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
WAC 07 191 51371 
Page 9 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
The second issue is the present matter is whether the petitioner has established that it has a qualifying 
relationship with the foreign employer. 
The regulation at 8 C.F.R. tj 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. tj 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a fm, corporation, 
or other legal entity which "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" and "is or will be doing 
business." "Affiliate" is defined in pertinent part as "[olne 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.' 8 C.F.R. tj 21 4,2(1)(1)(ii)(L)(2). 
In ths matter, the petitioner asserts that it is an "affiliate" of the foreign employer. In support, the petitioner 
describes the ownership and control of each entity in an attachment to its response to the director's Request for 
Evidence. The petitioner lists the owners of the foreign employer in the Philippines as follows: 
. WAC 07 191 51371 
Page 10 
The petitioner lists the owners of the petitioner as follows: 
The beneficiary ( 19 I45%) 
On November 26, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that it has a qualifjmg relationship with the foreign employer. 
On appeal, counsel asserts that the record establishes that the two entities are "affiliates" as defined in the 
regulations. Specifically, counsel argues that since the same shareholders own 51.79% of the petitioner and 
73.83% of the foreign employer, the two entities are "affiliates." 
Upon review, counsel's assertions are not persuasive. 
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 visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornm. 
1982). 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, 19 I&N Dec. at 595. 
In this matter, the record fails to demonstrate that there is majority ownership and control, directly or 
indirectly, of both companies by any one individual or parent. See 8 C.F.R. 4 214.2(1)(l)(ii)(L)(l). The 
petitioner and the foreign employer do not share common ownership and control and, therefore, are not 
"qualifying organizations" as "affiliates" as defined at 8 C.F.R. 4 214.2(1)(1)(ii)(L)(2). As noted above, an 
"affiliate" is defined in pertinent part as "[olne 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." 
Id. In this matter, the same group of individuals does not own and control approximately the same share or 
- - - - 
proportion of each entity. For example, while is the second largest shareholder in the foreign 
entity (13.75%), she does not own any shares in the petitioner. Likewise, while owns 22.23% 
. WAC 07 191 51371 
Page 11 
of the petitioner, making her the second largest shareholder, she only owns 4.84% of the foreign employer. 
Moreover, the following are all claimed to be stockholders of the foreign entity but are not alleged to own any 
As clearly indicated in the regulations, while it is not required that each individual own the exact same 
percentage of each entity, it is required that the group of individuals who own each entity, albeit directly or 
indirectly, be the same. See 8 C.F.R. 5 214.2(1)(1)(ii)(L)(2). It is important the same group of individuals 
own and control both entities to ensure that both entities are part of the same organization as intended by 
Congress. Otherwise, CIS faces a situation in which diversely-held business associations would meet the 
requirements of a qualifying affiliate relationship, through means "such as ownership of a small amount of 
stock in another company without control, exchange of products or services, and membership of the directors 
of one company on another company's board of directors." 52 Fed. Reg. 5738, 5742 (Feb. 26, 1987). 
To establish eligibility under 8 C.F.R. 5 214.2(1)(l)(ii)(L), the burden is on the petitioner to show that the 
foreign employer and the petitioning entity share common ownership and control. Control may be "de jure" 
by reason of ownership of 51 percent of outstanding stocks of the other entity or it may be "de facto" by 
reason of control of voting shares through partial ownership and possession of proxy votes. Matter of Hughes, 
18 I&N Dec. 289. As recognized in Matter of Hughes, where each of the individuals owns a small amount of 
stock in the two companies without individually controlling the companies, the individuals control only if 
their shares are legally consolidated by a proxy agreement that guarantees that one individual will vote the 
shares in concert. 18 I&N Dec. at 293 (discussing proxy votes). 
In this matter, six individuals jointly owning 73.83% of the United States company may or may not vote in 
concert to retain "de jure" or 51% control. Likewise, these same individuals owning a total of 51.79% of the 
foreign entity may or may not vote in concert to retain "de jure" control of that corporation. Although the six 
. WAC 07 191 51371 
Page 12 
individuals may vote in concert due to some type of outside familial or business relationship, the regulations 
do not recognize these types of relationships as a basis for a qualifying relationship or as a means of legally 
consolidating the shares of individual owners. Thus, the companies are not affiliates as the petitioner has not 
established that the same individuals control both companies. Based on the evidence submitted, it is 
concluded that the petitioner has not established that a qualifying relationship exists between the U.S. and 
foreign organizations. 
Accordingly, as the petitioner has failed to establish that it and the foreign employer are qualifying 
organization as "affiliates," the 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. tj 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.