dismissed L-1A Case: Air Freight Forwarding

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
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&akxi U. S. Citizenship 
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FILE: WAC 03 269 50201 Office: CALIFOI~A SERVICE CENTER Date: JliN 1 8 ?Ofis 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1 101(a)(15)(L) 
ON BEKALF 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. 
Gbert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 269 50201 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, California Service 
Center. The matter is now before the Adrmnistrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner, laims to be a subsidiary of UT Freight Service 
Ltd., located in Taiwan. The U.S. entity w& incorporated in the State of New York on March 12, 
1979 and filed for a certificate of qualification in California on April 20, 1983. It is engaged in 
the air fieight forwarding business. Accordingly, September 29, 2003, the U.S. entity petitioned 
Citizenship and Immigration Services (CIS) to classify the beneficiary as a nonimmigrant 
intracompany transferee (L-1 A) pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L), as an executive or manager for two years. 
The petitioner seeks to employ the beneficiary's services as a new employee and as the U.S. 
entity's general manager at a yearly salary of $84,000. The petitioner claims to have sixteen 
employees. 
On November 29, 2003, the director denied the petition. The director determined that the 
petitioner had not established that the beneficiary will be employed in a primarily managerial or 
executive capacity. The director also determined that the petitioner failed to establish that a 
qualifying relationship existed between the U.S. company and foreign entity. 
On appeal, the petitioner's counsel submits additional evidence to establish that the beneficiary will 
be employed in a primarily managerial or executive capacity and that a qualifylng relationshp exists 
between the petitioner and foreign entity. 
To establish L-1 eligbility under section 101(a)(15)(L) of the Act, the petitioner must meet certain 
criteria. Specifically, within three years preceding the beneficiary's application for admission into the 
United States, a qualifylng organization must have employed the beneficiary in a qualifymg 
managerial or executive capacity, or in a specialized knowledge capacity, for one continuous year. 
Furthermore, 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 regulations at 8 C.F.R. 5 214.2(1)(14)(3) state 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 qualifylng 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. 
WAC 03 269 50201 
Page 3 
(iii) Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifylng 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 himher to perform the intended services in 
the United States; however, the work in the United States need not be the same work 
which the alien performed abroad. 
The first issue in this proceeding is whether a qualifylng relationship exists between the petitioner 
and foreign entity. The regulation at 8 C.F.R. 214.2(1)(l)(ii) provides: 
(G) Qualifying organization means a United States or foreign fm, corporation, or 
other legal entity which: 
(I) Meets exactly one of the qualifylng relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in paragraph 
(l)(l)(ii) of ths section; 
(I) Parent means a firm, corporation, or other legal entity which has 
subsidiaries. 
(J) Branch means an operation division or office of the same organization 
housed in a different location. 
(K) Subsidiaiy means a fm, 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) AfJiliate means 
(I) 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. 
The regulation and case law confirm that ownership and control are factors that must be 
examined in determining whether a qualifylng relationship exists between the petitioner and 
WAC 03 269 50201 
Page 4 
foreign organization. See Matter of Church Scientology International, 19 I &N Dec. 593 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986) (in 
nonimmigrant visa proceedings); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982) (in 
nonimmigrant visa proceedings). In the context of this visa proceeding, ownership refers to the 
direct or indirect legal right of possession of the assets of an organization with full power and 
authority to control. Matter of Church Scientology International at 595. Control means the direct 
or indirect legal right and authority to direct the establishment, management, and operations of an 
organization. Id. 
In the initial petition, the petitioner indicated that the foreign company owned 100 percent of the 
United States entity, thereby qualifying the petitioning company as a subsidiary of the overseas 
company. In support of this claim, the petitioner provided copies of its minutes of a special 
meeting of shareholders, stock ledger, and stock certificates, representing 200 shares of common 
stock issued to the claimed foreign parent, 
--> - on March 26, 1999. The 
petitioner also submitted a copy of its 2002 U.S. C~.~oration Income Tax Return indicating at 
line 5 of the Schedule K that at least 50 percent of its stock is owned by an individual or 
corporation and attached a statement indicating that the foreign entity owns 100 percent of the 
U.S. company's stock. The petitioner also submitted its 2002 California Form 100, California 
Corporation Franchise or Income Tax Return. On the return, the petitioner indicated that no single 
interest owned more than 50 percent of its stock. The petitioner's Form 1120 Schedule L shows 
the value of the company's common stock as $50,000. 
On October 9, 2003, the director issued a request for additional evidence. Specifically, the 
director requested evidence that the foreign entity actually paid for the U.S. entity's stock by 
submitting such evidence as original wire transfers, cancelled checks, and deposit receipts. 
In response to the request for evidence, the petitioner claimed that the copies of the stock 
certificates, minutes of a special meeting of shareholders showing capitalization of $50,000, and 
the stock ledger showed the qualifying relationship between the petitioner and foreign entity. The 
petitioner did not submit any additional evidence that would demonstrate that the foreign entity 
actually paid for the U.S. entity's stock. 
On November 29, 2003, the director denied the petition because the petitioner failed to establish 
that the U.S. company and foreign entity had a qualifyln relationshi S ecifically, the director 
noted that Schedule K, line four on the petitioner's 2002-11 Return failed to 
show that the U.S. company was a subsidiary in an affiliated group or parent-subsidiary controlled 
group. The director also noted that absent copies of wire transfers and bank statements the 
petitioner failed to establish that the foreign entity controlled the U.S. company. 
On appeal, the petitioner submits additional evidence that contradicts and confuses the original 
claim. In support of the appeal, counsel claims that the "2002 tax return, schedule K was incorrectly 
prepared by the accountant." Counsel submits an affidavit from the accountant 
and an amended tax return prepared by the accountant that indicates that the company is an affiliated -. 
group or parent subsidiary controlled group. The company's accountant stated that he realized the 
information was incorrect. Counsel also submits an affirmation from a corporate attorney 
confirming the relationship between the claimed parent and petitioner. Finally, counsel claims, "[tlhe 
WAC 03 269 50201 
Page 5 
petitioner no longer possess any monetary records of transaction between the parent corporation in 
the purchase of stocks." 
On review, neither counsel's assertions nor the evidence submitted is persuasive. The petitioner has 
not submitted sufficient independent objective evidence that would clarify the question of the 
corporation's ownership. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence, and attempts to explain or reconcile such 
inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will 
not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Although the petitioner has 
submitted evidence such as stock certificates, the minutes of the meeting, and the stock ledger the 
petitioner has not submitted documentary evidence of the actual ownership and control of the U.S. 
company that led to the allegedly amended tax returns. The petitioner submitted a statement fiom its 
accountant who claimed, "I realized that the information on Schedule K is incorrect." The critical 
mistake that led to the amended tax returns was not explained. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972)). 
The petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and 
objective evidence. Matter of Ho, 19 I & N Dec. at 59 1-92. Merely asserting that the tax returns were 
incorrect and that "[tlhe petitioner no longer possess[es] any monetary records of transaction 
between the parent corporation in the purchase of stocks," does not qualify as independent and 
objective evidence. Again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 
I&N Dec. at 165. Furthermore, evidence that is created by the petitioner after CIS points out the 
deficiencies and inconsistencies in the petition will not be considered independent and objective 
evidence. A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Associate 
Comrn. 1998); Matter of Katigbak, 14 I&N Dec. 45,49 (Comrn. 197 1). 
As noted by the director, the petitioner failed to submit evidence of the ownership and control of 
the U.S. company. Although the petitioner attempts to explain the errors in the original tax 
returns, it failed to clarify the issue of the ownership and control of the U.S. company. 
Accordingly, the AAO concludes that the petitioner has not established that a qualifying 
relationship exists between the U.S. and foreign entities. For this reason, the petition may not be 
approved. 
The second issue in this proceeding is whether the beneficiary will be employed in a primarily 
managerial or executive capacity. Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. $ 1 10 1 (a)(44)(A), 
provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(i.) manages the organization, or a department, subdivision, function, or 
component of the organization; 
WAC 03 269 50201 
Page 6 
(ii.) supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function withn 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 withm 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. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1 101(a)(44)(B), provides: 
The term "executive capacity" means 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-malung; and 
(iv.) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
On September 29, 2003, the petitioner submitted the Form 1-129. On the Form 1-129, the 
petitioner described the beneficiary's proposed U.S. duties as "Overseas Agencies Development, 
Administration, Financial, operation." 
On October 9, 2003, the director requested additional evidence. Specifically, the director requested 
evidence of the current staffing levels in the United States. The director requested a copy of the U.S. 
company's organizational chart listing the U.S. entity's employees' titles, duties, and educational 
backgrounds. The director also requested a more detailed description of the beneficiary's proposed 
U.S. duties, Forms DE-6 Quarterly Wage Report for the last four quarters, Forms W-2 and W-3, and 
payroll summary. 
In response, the petitioner submitted the U.S. entity's organizational chart, a description of the 
employees' duties and educational backgrounds, Forms DE-6 Quarterly Wage Report for 2002 only, 
W-3 Transmittal of Wage Statement, and 2002 W-2 forms. In addition, the petitioner submitted a 
November 4,2003 company letter describing the beneficiary's proposed U.S. duties as: 
WAC 03 269 50201 
Page 7 
[The beneficiary] will be responsible for overseeing the smooth operation of our 
ocean and air fi-eight department including our administration and operation. His 
time spent will be 50% for operations and 50% expended in administration and 
other duties. 
The letter further stated that the beneficiary will be supervising four subordinate employees, 
including an ocean operation department employee, an employee in the air operation department, an 
accounting department assistant, and an account manager. 
On November 29, 2003, the director denied the petition. The director determined that the 
petitioner had not established that the beneficiary will be employed in a primarily managerial or 
executive capacity. The director found that "there was insufficient detail regarding the 
beneficiary's duties to be performed by the beneficiary, and the percentage of time devoted to 
these duties." The director also noted that the petitioner failed to provide the requested Forms 
DE-6, Quarterly Wage Reports for 2003, which would have confirmed the number of employees 
who would be working at the location under the beneficiary's supervision. 
On appeal, counsel submits additional evidence to establish that the beneficiary will be employed in 
a primarily managerial or executive capacity. In a December 30,2003 letter, the petitioner describes 
the beneficiary's duties as: 
[The beneficiary] has been setting up the global network for [the petitioner's] Group 
and his job duties includes market research, sales promotion, negotiation of 
agreements and contracts. In his job capacity as the General Manager of our Los 
Angeles branch office, he will have full authority to establish the goals and policies 
of the organization. He will have fbll authority to fire and hire employees, exercise 
discretionary decision malung decisions. [The beneficiary] will be directing all 
departments managers and employees within the organization. 
In 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). On reviewing the 
petition and the evidence, the petitioner has not established that the beneficiary will be employed 
in a primarily managerial or executive capacity. The petitioner has provided a vague and 
nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary 
will be performing on a day-to-day basis. For example, the petitioner described the beneficiary's 
duties as "overseeing the smooth operation of our ocean and air fi-eight department" and "[hlis time 
spent will be 50% for operations and 50% expended in administration and other duties." Based upon 
the petitioner's limited description, it is unclear whether the beneficiary's duties are those of a 
manager or executive. Although the petitioner attempts to specify the amount of time the 
beneficiary will devote to his duties, it is unclear what amount of time is devoted to what specific 
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. 1103 (E.D.N.Y. 1989), 
am, 905 F.2d 41 (2d. Cir. 1990). 
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Page 8 
Moreover, the petitioner described the beneficiary's proposed U.S. duties as "market research, 
sales promotion, negotiation of agreements and contracts." Since the beneficiary will actually 
promote sales and be responsible for marketing and negotiating, he will be performing tasks 
necessary to provide a service or product. 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 (Comrn. 1988). 
Further, on appeal, the petitioner generally paraphrased the statutory definition of executive 
capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A). For instance, the 
petitioner depicted the beneficiary as "establish[ing] the goals and policies of the organization" 
and "hav[ing] full authority to fire and hire employees, exercise discretionary decision making 
decisions." However, 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., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at 
"5 (S.D.N.Y.). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner 
has sustained its burden of proving that his duties are "primarily" managerial or executive. See 
sections 101(a)(44)(A) and (B) of the Act. Here, the petitioner fails to document what proportion 
of the beneficiary's duties would be managerial functions and what proportion would be non- 
managerial. The petitioner lists the beneficiary's duties as including both managerial and 
administrative or operational tasks, but fails to quantify the time the beneficiary spends on them. 
This failure of documentation is important because several of the beneficiary's daily tasks, such 
as "market research," "sales promotion," and "negotiation of agreements and contracts," do not 
fall directly under traditional managerial duties as defined in the statute. For this reason, the 
AAO cannot determine whether the beneficiary is primarily performing 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). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 5 1 0 1 (a)(44)(A)(ii) of the Act. In evaluating 
whether the beneficiary manages 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 1 101(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 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the 
degree held by subordinate employee. Although the petitioner stated in its response to the request 
WAC 03 269 50201 
Page 9 
for evidence that several of the employees obtained college degrees, the possession of a 
bachelor's degree by a subordinate employee does not automatically lead to the conclusion that 
an employee is employed in a professional capacity as that term is defined above. In the instant 
matter, the petitioner has not, in fact, established that a bachelor's degree is actually necessary, 
for example, to perform the work of an account assistant, who is among the beneficiary's 
subordinates. 
Nor has the petitioner shown that any of the beneficiary's proposed subordinates supervise staff 
members or manage a clearly defined department or function of the petitioner, such that they 
could be classified as managers or supervisors. Thus, the petitioner has not shown that the 
beneficiary's subordinates are supervisory, professional, or managerial as required by section 
10 l(a)(#)(AO(ii) of the Act. 
After careful consideration of the evidence, the MO concludes that the beneficiary will not be 
employed in a primarily managerial or executive capacity. For this reason, the petition may not be 
approved. 
Beyond the decision of the director, the MO finds that the beneficiary has not been employed in 
a managerial or executive capacity abroad as defined at section 10l(a)(44) of the Act, 8 U.S.C. 8 
1 10 1 (a)(44). As previously stated, to establish L-1 eligibility under section 10 1(a)(15)(L) of the 
Act, 8 U.S.C. Ej 1101(a)(15)(L), the petitioner must submit evidence that within three years 
preceding the beneficiary's application for admission into the United States, the foreign 
organization employed the beneficiary in a qualifying managerial or executive capacity, or in a 
specialized knowledge capacity, for one continuous year. Id. On review, the petitioner submitted 
a limited and vague description of the beneficiary's foreign duties. For example, the petitioner 
described the beneficiary's foreign duties as "Agency Development, Administration, Financial." 
Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. at 165. 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 MO 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), afd. 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). 
In visa petition proceedngs, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dsmissed.