dismissed L-1A Case: Apparel

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PUBUCC~Y
U.S. Department of Homeland Security
20 Massachusetts Ave., NW, Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 05 800 29051 Office: VERMONT SERVICE CENTER Date: AUG 0 3 2007
INRE:
Petition:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
ON 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.
R ert P. Wieman, hief
r:Appeals Office
www.uscis.gov
EAC 05 800 29051
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its coordinating process
manager as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a California
Corporation, states that it is engaged in the design, manufacturing, import, and distribution of sportswear and
apparel. The petitioner claims that it is the parent company of Active Apparel, located in Karachi, Pakistan.
The petitioner has employed the beneficiary in L-1A status since November 30, 2004 and seeks to extend his
status for a one-year period.
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 petitioning
company and the foreign entity have a qualifying relationship. The director noted that the instant petition
appeared to be a first request for an extension of a prior "new office" petition pursuant to 8 C.F.R. §
214.2(1)(14)(ii).
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, counsel for the petitioner disputes the director
conclusions and asserts that the beneficiary is qualified for the benefit sought. Counsel also notes that the
initial petition approval, although granted for only one year, was not a petition for a new office as that term is
defined at 8 C.F.R. § 214.2(l)(1)(ii)(F).
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(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. § 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 (1)(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.
EAC 05 800 29051
Page 3
(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
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
Preliminarily, the AAO notes that the director incorrectly determined that the instant petition is for an
extension of a petition involving a new office, pursuant to 8 C.F.R. § 214.2(l)(l4)(ii). The evidence of record
demonstrates that the petitioner has been doing business in the United States since the 1990s. However, the
director's error ultimately had no bearing on her determinations regarding the substantive issues in this matter
with respect to the beneficiary's employment capacity and the qualifying relationship between the U.S.
company and the foreign entity.
The first issue to be addressed is whether the petitioner established that 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.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101 (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;
EAC 05 800 29051
Page 4
(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 nonimmigrant petition was filed electronically on July 7, 2005. The petitioner did not indicate the
beneficiary's proposed job title on the Form 1-129, but noted that his duties would include "look after output
and QC." On the L Classification Supplement to Form 1-129, the beneficiary described the beneficiary's
proposed duties as follows:
Making sure the procedure and machine specs to match [sic] the product quality. Setting up
new production procedures to improved [sic] the output. Communicate and deal with
customer on quality and production.
The petitioner submitted a letter from its chief executive officer, dated July 7, 2005, indicating the
beneficiary's job title as "Manager." The petitioner stated that the beneficiary's responsibilities will be
"dealing with customer and setting up procedures."
The director issued a request for evidence on October 14, 2005, in part instructing the petitioner to submit: (1)
complete job descriptions for the beneficiary and his subordinates, including a breakdown of the number of
hours devoted to each of the employees' duties on a weekly basis; (2) copies of 2004 IRS Forms W-2, Wage
and Tax Statement, and August 2005 payroll records for the beneficiary's subordinate employees; and (3) an
organizational chart for the U.S. company.
In a letter dated November 11, 2005, the petitioner provided the following description of the beneficiary's
position:
15 hours coordinating future raw material purchases with procurement.
10 hours dealing with different production department.
05 hours evaluating system and fixing glitches with IT
03 dealing with trend and sales related issues
08 Organizing his daily routine and planning.
The petitioner also including the following description in its response, and identified the beneficiary's job title
as "Coordinating Process Manager":
Responsibilities include creating Coordination among different Production Departments. Also
to seamlessly transform different production processes to support Sales. Assist Procurement
with Mills and raw material selections. Work with IT to ensure smooth operation of system
for purchase, Sales and production.
EAC 05 800 29051
Page 5
The petitioner provided a "compact organizational chart" depicting the beneficiary as the coordinating process
manager, responsible for directly supervising a procurement manager, a programmer analyst, and a sales
executive. The chart shows that the procurement manager supervises a designer, a production coordinator and
a production manager, while the sales executive supervises a sales team. The petitioner provided brief
position descriptions for the sales executive, the programmer analyst, and the procurement manager.
On September 1, 2006, counsel for the petitioner submitted a Request for Premium Processing (Form 1-907),
and supplemented the record with the following description of the beneficiary's duties:
• Coordinating among different Production Departments;
• To seamlessly transform different production processes to support sales department;
• Assist with procurement with Mills and raw material selections;
• Working with IT department to ensure smooth operations of system for purchase, Sales
and production;
• Playa key role in corporate decision-making regarding the overall production and
distribution of products;
• Function as a manager of the product division and; responsible for product sourcing;
discretionary authority with respect to prices and contracts;
• Review with Supervisors about inspection of products, material and equipment;
• Supervise management processes in order to better organize inventory management,
vendor management, end to end logistics planning, program buying and Delivery.
• Directing and monitoring the overall production;
• Establishing and evaluating current production needs and output;
• Coordinating interdepartmental operations; and; organize and implement work schedules
to attain production objectives;
• Review, oversee, direct and coordinate to increase efficiency and affectivity of the
products;
• Oversee market conditions and product information and prevailing trends in order to
assist Sales team Manager in the US.
• Looking after workers' problems and resolve them in consultation with the management;
as well as hire staff; maintain records of orders; and monitor delivery systems.
The director denied the petition on September 27, 2006, concluding that the petitioner had failed to establish
that the beneficiary would be employed in a primarily managerial or executive capacity under the extended
petition. The director summarized the beneficiary's stated job duties and noted that the job description did not
persuasively establish that the beneficiary would be serving as a manager or executive. The director also
questioned the credibility of the petitioner's claimed staffing structure, noting that at least two of the
beneficiary's three direct subordinates are compensated at a higher rate than the beneficiary. Accordingly, the
director concluded that there was insufficient evidence that the beneficiary actually supervises the claimed
subordinates, or that he manages an essential function within the organization.
On appeal, counsel re-iterates the job duties provided in his September 1, 2006 letter and asserts that "it was
evident from the initial filing that the beneficiary has been and would be performing in a
EAC 05 800 29051
Page 6
managerial/executive position." With respect to the beneficiary's wages, counsel emphasizes that there is no
prevailing wage requirement for L-l employees, notes that the beneficiary was paid a "substantial amount,"
and asserts that the beneficiary's wages are "a reflection of [the petitioner's] company policy." Counsel states
that the beneficiary's salary is based on his experience, skills and qualification, and is supplemented by
company benefits.
In support of the appeal, the petitioner submitted copies of letters that were evidently previously submitted in
support of the beneficiary's initial L-1 petition in 2004. The evidence includes a June 1, 2004 letter from the
foreign entity, indicating that the beneficiary would serve as production manager of the petitioner's California
manufacturing facility, and would be responsible for "establishing production systems, procedures and
training employees to facilitate progress." A June 25, 2004 letter from the U.S. entity indicated that the
beneficiary's duties in the United States would include the following:
He will be responsible to work with I.T. to make necessary changes. Review and make
establish new production process and procedures. Recommend equipment upgrade if desired.
Set up goals for Manager and discuss plans to accommodate efficiently the robust growth the
Company is dealing with. Future planning for the material, executing contracts with local and
overseas suppliers.
The petitioner also includes a new organizational chart for the petitioner's Mira Loma, California office,
which depicts the beneficiary as being responsible for managing a programmer analyst, a marketing
coordinator, a sales executive who supervises three sales representatives, the CFO/accountant, and a quality
control manager who supervises a designer, a warehouse supervisor, a warehouse assistant supervisor and a
shipping assistant. The individual previously identified as the procurement manager is identified as "VP
Procurement Division" and is shown as being in a position lateral to the beneficiary's position. The petitioner
provides position descriptions for all "key personnel" included on the organizational chart.
Upon review, the petitioner has not established that the beneficiary would be employed III a primarily
managerial or executive capacity under the extended petition.
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(l)(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.
As a preliminary matter, the AAO notes an unexplained discrepancy in the record with respect to the
beneficiary's job title and related duties. Based on the two June 2004 letters submitted on appeal, the
beneficiary was transferred to the United States in L-1A status to serve as the petitioner's production manager.
The petitioner initially referred to the beneficiary simply as "manager" and eventually provided the title of
"coordinating process manager," when responding to the director's request for evidence in November 2005.
However, the petitioner never stated that the beneficiary had received a promotion or otherwise assumed a
new position since entering the United States in L-1A status in November 2004. The AAO notes that the
position of production manager does appear on the organizational chart submitted in response to the request
EAC 05 800 29051
Page 7
for evidence, so it is evident that these are two distinct positions within the petitioner's organizational
structure. 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 ofHo, 19 I&N Dec.
582, 591-92 (BIA 1988). If the beneficiary was promoted from production manager to the more senior
position of coordinating process manager, the date of the promotion is critical, as the petitioner must establish
eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future
date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, a petitioner may not make material changes to a
petition in an effort to make a deficient petition conform to CIS requirements. See Matter ofIzummi, 22 I&N
Dec. 169, 176 (Assoc. Comm. 1998).
Contrary to counsel's assertions on appeal, it was not evident from the initial petition filing that the
beneficiary would be performing in a primarily managerial or executive capacity, or that the beneficiary
would have a staff of subordinates who would relieve him from performing non-qualifying duties. As noted
above, the petitioner initially described the beneficiary simply as a "manager," responsible to "look after
output and QC," and responsible for production procedures, machine specifications, and communicating and
dealing with customers on quality and production. The brief descriptions submitted with the initial petition
did not suggest the beneficiary would be performing primarily managerial or executive duties or that he
would be supervising a subordinate staff that would relieve him from performing the non-qualifying duties
associated with his assigned area of responsibility. Further, with reference to the above-noted discrepancies
pertaining to the beneficiary's job title, the AAO notes that these duties would be more consistent with those
of a production manager than those of an employee who, as of the date of the appeal, is now claimed to
supervise marketing, sales, financial, quality, and information technology functions as "coordinating process
manager."
Accordingly, the director requested a detailed description of the beneficiary's duties and an explanation as to
how the beneficiary's time would be allocated among his various responsibilities. The petitioner's response
lacked the requested level of detail, and was not persuasive in establishing that the beneficiary's duties are
primarily managerial or executive in nature. For example, the petitioner stated that the beneficiary spends 20
percent of his time "organizing his daily routine and planning," but provided no explanation as to what
specific managerial-level duties are encompassed within this broad responsibility. The petitioner indicated
that the beneficiary spends 25 percent of his time "dealing with different production department[s]." The term
"dealing with" provides little clarification regarding the beneficiary's role or level of authority over the
production departments of the company. The petitioner stated that the beneficiary spends the largest portion
of his time, 15 hours per week, "coordinating future raw material purchases with procurement," and elsewhere
stated that the beneficiary "assists" procurement with selecting mills and raw materials. Neither of these
statements suggests that the beneficiary is performing managerial duties associated with the company's
procurement function. The petitioner indicated that the beneficiary spends five hours per week "evaluating
system," "fixing glitches with IT," and working with the IT department to ensure smooth operation of
purchase, sales and production systems, and three hours per week "dealing with trend and sales related
issues." Again, the beneficiary's exact duties and level of authority pertaining to sales and information
technology functions cannot be discerned from these vague statements. Reciting the beneficiary's vague job
EAC 05 800 29051
Page 8
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation
of the beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd,
905 F.2d 41 (2d. Cir. 1990).
Furthermore, the petitioner initially indicated that the beneficiary would be responsible for dealing with
machine specifications, and communicating and dealing with customers on production and quality matters;
however, these duties were not included in the position description submitted in response to the request for
evidence. 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 ofHo, 19 I&N Dec.
582, 591-92 (BIA 1988).
Overall, based on the initial position description and the petitioner's response to the request for evidence, the
director correctly concluded that the described duties were not clearly managerial or executive in nature.
The AAO acknowledges that counsel for the petitioner supplemented the record with a new position
description for the beneficiary approximately ten months following the petitioner's submission of its response
to the director's request for evidence. The purpose of the request for evidence is to elicit further information
that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed.
See 8 C.F.R. §§ 103.2(b)(8) and (12). While it is regrettable that the instant petition remained pending for an
inordinate length of time, the petitioner was afforded twelve weeks in which to reply to the director's request
for evidence and did in fact submit a list of five job duties performed by the beneficiary and indicate the
amount of time the beneficiary allocates to each duty, accounting for a fu1l40-hour work week.
Accordingly, the job description submitted by counsel, which included approximately ten job duties not
included in the petitioner's response to the request for evidence, and no explanation for the significant change
in job duties, appears to represent the beneficiary's duties as of September 2006, 14 months after the petition
was filed. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new
set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). A petitioner may not make
material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See
Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). If significant changes are made to the initial
request for approval, the petitioner must file a new petition rather than seek approval of a petition that is not
supported by the facts in the record. Therefore, the analysis of this criterion will be based on the job
description submitted with the initial petition and in the November 2005 response to the director's request for
evidence.
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services
(CIS) reviews the totality of the record, including descriptions ofa beneficiary's duties and those of his or her
subordinate employees, the nature of the petitioner's business, the employment and remuneration of
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a
EAC 05 800 29051
Page 9
business. Upon review , the AAO finds that the director placed undue emphasis on the fact that two of the
beneficiary's three subordinates receive higher salaries than that offered to the beneficiary and concluded that
the beneficiary is likely not actually supervising the claimed subordinates. The director's particular focus on
the salaries paid to the employees was unwarranted. The actual duties themselves reveal the true nature of the
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108.
However, a review of the beneficiary's duties does raise a question as to whether he actually supervises the
claimed employees, or simply works with them to carry out his job functions. The statutory definition of
"managerial capacity" allows for both "personnel managers" and "function managers ." See section
101(a)(44)(A)(i) and (ii) of the Act , 8 U.S.C . § 1101(a)(44)(A)(i) and (ii). Personnel managers are required to
primarily supervise and control the work of other supervisory, professional , or managerial employees.
Contrary to the common understanding of the word "manager," the statute plainly states that 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)(A)(iv) of the Act; 8
C.F.R. § 214.2(1)(l)(ii)(B)(2) . If a beneficiary directly supervises other employees, the beneficiary must also
have the authority to hire and fire those employees , or recommend those actions, and take other personnel
actions. 8 C.F.R. § 214.2(l)(1)(ii)(B)(3).
The petitioner indicated that the beneficiary's duties include "coordinating future raw material purchases with
procurement" and "assist Procurement with Mills and raw materials selections," "dealing with different
production department ," "fixing the glitches with IT," "working with IT," transforming production issues to
support sales, and "dealing with .. . sales related issues." None of these duties indicate any authority for
hiring and firing employees or other personnel actions, nor do these duties suggest that the scope of the
beneficiary's role extends to overseeing the duties of the entire sales team, a programmer analyst , and the
procurement manager and his subordinate staff. Therefore , although the submitted organizational chart shows
that the beneficiary has three direct subordinates, including two supervisory or managerial employees , the
chart is not consistent with the job duties attributed to the beneficiary, and the AAO cannot conclude that the
beneficiary qualifies as a "personnel manager" for the purposes of this visa classification.
As noted above, the petitioner submits a new organizational chart on appeal indicating that the beneficiary
supervises the entire sales team, the programmer analyst, the marketing coordinator, the quality control
department and the chief financial officer/accountant. Again, no explanation is provided regarding the change
in the organizational chart and it is unclear whether the petitioner is seeking to revise its earlier chart, or
whether the new chart is intended to represent the beneficiary's role within the company as of October 2006.
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title,
its level of authority within the organizational hierarchy , or the associated job responsibilities. The petitioner
must establish that the position offered to the beneficiary when the petition was filed merits classification as a
managerial or executive position. Matter ofMichelin Tire Corp., 17I&N Dec. at 249.
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 101(a)(44)(A)(ii) of the Act , 8 U.S.C. § 1101(a)(44)(A)(ii). The term "essential
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an
EAC 05 800 29051
Page 10
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 manages the function rather than performs the duties
related to the function. 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. Boyang,
Ltd. v. I.NS., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology
International, 19 I&N Dec. 593 , 604 (Comm. 1988)). In this matter, the petitioner has not claimed that the
beneficiary manages an essential function, nor has it provided a detailed description of the beneficiary's duties
or established that the beneficiary performs primarily managerial or executive duties . Accordingly , the
petitioner has not established that the beneficiary manages an essential function.
One additional deficiency not observed by the director concerns the beneficiary's work site. The petitioner
claims to operate a production facility and a warehouse/distribution center in California. The petitioner stated
on Form 1-129 that the beneficiary will work a , in Bronx, New York, but elsewhere
indicates that he will work in Mira Loma, California. There is no evidence that the petitioner operates or
intends to operate an office in New York. Again, 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 ofHo, 19 I&N Dec. at 591-92.
The petitioner has not submitted evidence on appeal to overcome the director's determination on this issue.
Accordingly , the appeal will be dismissed.
The second issue to be addressed is whether the petitioner established that there is a qualifying relationship
between the United States company and the foreign entity. To establish a "qualifying relationship" under the
Act and the regulations, the petitioner must show that the beneficiary's foreign employer and the proposed
U.S. employer are the same employer (i.e. one entity with "branch" offices), or related as a "parent and
subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1).
The pertinent regulations at 8 C.F.R. § 214.2(1)(1)(ii) define the term "qualifying organization" and related
terms as follows :
(G) Qualifying 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 (1)(1)(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
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Page 11
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 [.]
* * *
(1) Parent means a firm, corporation, or other legal entity which has subsidiaries.
* * *
(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.
The petitioner indicated on Form 1-129 that the U.S. company is the parent of the foreign entity, _
_ and stated that both companies are 100 percent owned and managed by The
petitioner did not submit supporting evidence to establish the claimed relationship.
In her request for evidence dated October 14, 2005, the director requested documentary evidence of the
ownership and control of the U.S. and foreign entities, and noted that the evidence should include, but is not
limited to, copies of stock certificates, stock ledgers, and articles of incorporation.
In response, the petitioner submitted a copy of the U.S. company's stock certificate number 2, dated March
24, 1997, which indicates that 5,000 shares of stock were issued to The stock certificate
indicates on its face that the company is authorized to issue 100,000 shares. The petitioner provided a license
agreement for the foreign entity, dated May 17, 2003, which identifies as a partner of the
company.
The director denied the petition, concluding that the petitioner submitted insufficient evidence to establish the
claimed qualifying relationship. The director observed that the petitioner had only submitted its stock
certificate number 2, and it is not evident who was issued stock certificate number 1 or whether the remaining
EAC 05 800 29051
Page 12
95,000 shares of authorized stock have been issued. The director thus determined that the ownership of the
U.S. company could not be determined.
On appeal, counsel asserts that the petitioning company is the parent of the Pakistani company, Active
Apparel. The petitioner submits voluminous documentation including financial statements, bank statements,
statements of accounts and invoices showing business transactions, to show that the foreign company is
currently doing business. As evidence of the qualifying relationship between the two companies the petitioner
references customs documents and invoices indicating apparel, garments and materials traded between the
U.S. company and foreign entities, as well as evidence of funding transactions made from the U.S. company
to the foreign entity "to fund for: dyes, yam, fabric, company expenses and salaries paid." Counsel asserts that
this evidence establishes the claimed parent-subsidiary relationship, and states that the U.S. company "has the
overall control on the day to day management of [the foreign entity] in Pakistan."
With respect to the U.S. company, the petitioner re-submits its stock certificate number 2, and provides a
copy of stock certificate number 4, indicating that Iwas issued 5,000 shares on December 30,
2002. The record also includes the petitioner's 2004 IRS Form 1120, U.S. Corporation Income Tax Return,
for the fisc gust 31, 2005, which indicates at Schedules E and K that the company is owned
equally by and _ Finally, the petitioner submits the petitioner's most recent
consolidated financial statements~ner "and subsidiary." The only subsidiary referenced in the
attached accountant's review report is a U.S. company. There is no indication in the financial statement or tax
returns that the petitioner has a foreign subsidiary.
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the U.S. company
and the foreign entity have a qualifying relationship.
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 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289
(Comm. 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
ofChurch Scientology International, 19 I&N Dec. at 595.
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 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., supra. Without full disclosure of all
relevant documents, CIS is unable to determine the elements of ownership and control.
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In this case, although the petitioner seeks to establish that the U.S. company is the parent company of the
foreign company, the AAO notes that the petitioner initially indicated that both companies are wholly owned
by the same individual, , which, if corroborated by documentary evidence, would establish an
affiliate relationship. 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 ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988).
The petitioner has not fully documented the ownership of either the U.S. company or the foreign entity and
has therefore not established that a parent-subsidiary or affiliate relationship exists. Although the director
requested that the petitioner submit copies of the U.S. company's stock ledger and all stock certificates, and
again noted this deficiency in the notice of decision, the petitioner has opted not to provide this evidence for
the record. Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for
denying the petition. 8 C.F.R. § 103.2(b)(l4).
The stock certificates submitted indicate that may own as many as 10,000 shares of stock in
the petitioning company. However, absent copies of all issued stock certificates and a copy of the petitioner's
stock ledger showing all transactions, it is impossible to conclude that _wnership represents
the claimed 100 percent interest in the com an or even a majority interest. Furthermore, the petitioner's
2004 IRS Form 1120 indicates that ownership interest is only 50 percent. Doubt cast on any
aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the
remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. at 591.
Furthermore, the record contains no evidence of the ownership of the foreign company, such as its partnership
agreement or other organization documents. Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec.
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm.
1972)). Absent evidence that the petitioning company has a controlling ownership interest in the foreign
entity, counsel's assertion that the U.S. company "has the overall control of the day to day management" of
the Pakistani company has no probative value. 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 ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano, 19
I&N Dec. I (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The evidence
submitted on appeal shows substantial trade between the two companies; however, this documentation is not
relevant to the issue of the actual ownership of the foreign entity.
Based on the foregoing discussion, the petitioner has not established that there is a qualifying relationship
between the U.S. and foreign entities. Accordingly, the appeal will be dismissed.
The AAO recognizes that the beneficiary was previously granted L-IA classification to work for the
petitioning company. The prior approvals do not preclude USCIS from denying an extension of the original
visa based on reassessment of petitioner's and beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99
Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). In addition, it must be emphasized that each petition
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filing is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In making a determination of
statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. See
8 C.F.R. § 103.2(b)(16)(ii).
Moreover, if the previous nonimmigrant petition was approved based on the same unsupported and
contradictory assertions that are contained in the current record, the AAO finds that the director was justified
in departing from the previous approval by denying the present extension petition. The AAO is not required to
approve applications or petitions where eligibility has not been demonstrated merely because of prior
approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec.
at 597. It would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding
precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6 th Cir. 1987), cert. denied, 485 U.S. 1008
(1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. 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. § 136l.
Here, that burden has not been met.
ORDER: The appeal is dismissed.