dismissed L-1A Case: Arts And Crafts Distribution

U.S. Department of Homeland Security 
20 Mass Ave. N.W., Room 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
WBLIC COPY 
Pi 
'"'7 
File: SRC 04 199 5 1 157 Office: TEXAS SERVICE CENTER Date: 0 4 200 
IN RE: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert -- "a . Wiemann, Chief 
Administrative Appeals Office 
SRC 04 199 51 157 
Page 2 
DISCUSSION: The Director, Texas 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 petition seeking to extend the employment of its president as an L-1A 
nonirnmigrant intracompany transferee pursuant to section 10 1 (a)( 15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation organized in the State of Florida that 
is engaged in the import, international marketing, and dishbution of Peruvian arts and crafts. The petitioner 
claims that it is a subsidiary o 
The director denied the petition concluding that the petitioner did not establish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacity. Specifically, the director 
found that the beneficiary does not supervise professional employees. 
The petitioner subsequently filed an appeal on Form I-290B as well as a motion to reopen and reconsider. 
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 contends that the director's decision is in error. Counsel claims that the 
petitioner's business has expanded in scope and it now has five employees. Counsel also claims that two of 
the employees under the beneficiary's management have baccalaureate degrees. In support of these 
assertions, the petitioner submits additional evidence.' 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(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 (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
1 
 The AAO notes that counsel requested, and was granted, an additional 30-day period in which to submit a 
brief. However, to date no brief has been received by the AAO with regard to this matter. 
SRC 04 199 51 157 
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 himiher 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. 
At issue in the present matter is whether the beneficiary would 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. 9 1 101(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. 9 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. 
SRC 04 199 51157 
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In a letter dated June 7, 2004 accompanying the initial petition, the petitioner stated that "the [bleneficiary's 
duties will continue to include overseeing the daily activities of the U.S. based expansion, hiring and firing 
personnel, exploring marketing possibilities in the U.S., and overseeing the investment of the parent 
company." Additional evidence submitted with the initial petition lists the beneficiary as presidentlexecutive 
officer, and describes his job duties as follow: 
In charge of expanding the business in the United States. Introduce the Latin American 
produ 
Order Meichandise, Sales (Wholesale & Retail), Manage the office, store & warehouse in the 
United States. [sic] 
Import product and work with Customs. Conduct all Banking. [sic] 
The petitioner indicates that in addition to the beneficiary, the petitioner employs an accountant whose duties 
are to "[kleep [blooks, calculate [tlaxes, [and] create document with [plrofit and loss [i]nformation;" a sales 
manager with high school level education whose duties are to "[clontact and negotiate with potential [bluyers 
and process sales in the United States [and clreate [a] strategy to introduce the product in the American 
[mlarket;" and a sales representative with a baccalaureate degree whose job is to "contact potential clients in 
order to sell wholesale [and] expand marketing of products in the local market." 
On August 18,2004, the director requested additional evidence. Specifically, the director requested a detailed 
organizational chart for the U.S. company, showing the relationship of each position to one another, setting 
forth the title, description and requirements for each position, and listing the names of the individuals filling 
the positions and their duration of employment. The director also requested a copy of the stock ledger for the 
U.S. company showing all stock shares issued and currently outstanding. 
In response, the petitioner resubmitted the list of employees previously provided, with the additional 
information that the president and accountant have been employed by the petitioner since 2001, the sales 
manager since 2003, and the sales representative since 2004. The list does not include a description of duties 
and job requirements for each position, nor does it show how the positions relate to one another, as the 
director requested. 
On December 7, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary would be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director found that the beneficiary does not supervise professional employees. 
On appeal, counsel for the petitioner contends that the director's decision is in error. Counsel claims that the 
petitioner's business has expanded in scope and it now has five employees. Counsel also claims that two of 
the employees under the beneficiary's management have baccalaureate degrees. In a motion to reopen and 
reconsider submitted after the appeal was filed, counsel further asserts that in the fourth quarter of 2004, the 
petitioner hired an additional professional employee in the capacity of business analyst. Counsel submits 
additional evidence in support of this assertion. 
Upon review, the AAO concurs with the director's conclusion that the petitioner did not establish that the 
beneficiary would be employed in the United States in a primarily managerial or executive capacity. When 
SRC 04 199 51 157 
Page 5 
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. 9 214.2(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. 
On review, the AAO finds that the petitioner has provided a vague and nonspecific description of the 
beneficiary's duties that fails to demonstrate what the beneficiary does on a day-to-day basis. For example, 
the petitioner's description of the beneficiary's duties include general phrases such as "overseeing the daily 
activities of the U.S. based expansion," "exploring marketing possibilities in the U.S.," "overseeing the 
investment of the parent company" and being "in charge of expanding the business in the United States." 
Reciting the beneficiary's vague job 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 
answer a critical question in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 
1103,1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, the petitioner indicates that the beneficiary's job includes such tasks as ordering merchandise, 
wholesale and retail sales, importing products and working with customs. If the beneficiary is directly 
involved in the purchasing and sale of the products and getting the products through customs, he is 
performing tasks that are necessary to provide the company's service or product, and as such, these tasks 
would not be considered managerial or executive in nature. Because the beneficiary's job involves tasks that 
are not executive or managerial in nature, and the job description provided by the petitioner is insufficiently 
detailed, the Citizenship and Immigration Services (CIS) cannot determine what proportion of the 
beneficiary's duties would be managerial or executive in nature and what proportion would not qualify as 
such. 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 
101(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). 
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve 
supervising employees, as is the case here, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See 4 101(a)(44)(A)(ii) of the Act. On appeal, counsel claims that 
the beneficiary manages two employees with baccalaureate degrees, implying that those employees qualify as 
professionals. Counsel further seeks to introduce evidence relating to a new employee who counsel claims is 
employed in a professional capacity. The evidence of record is insufficient to support counsel's claim. First, 
the AAO notes that in response to the director's request for further evidence, the petitioner did not provide a 
description of duties and job requirements for each position, nor did the petitioner show how the positions 
relate to one another, as the director requested. The regulation states that the petitioner shall submit 
additional evidence as the director, in his discretion, may deem necessary. 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. $3 103.2(b)(8) and (12). The failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
9 103.2@)(14). 
SRC 04 199 51157 
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Moreover, 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. $ 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 (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. The petitioner's 
response to the request for further evidence indicates only that the sales manager has a high school education 
and the sale representative has a "bachelor degree education" with no further information or evidence to 
support these  claim^.^ 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 case, the petitioner has not provided any evidence to establish that an advanced 
degree is actually necessary to perform the work of the sales representative, or even that the employee's 
"bachelor degree education" was in a relevant field of study. Absent further evidence, the record is 
insufficient to support the claim that the beneficiary supervises professional employees. 
With respect to the new employee introduced in the motion to reopen, counsel states that her employment 
began in the last quarter of the year 2004, after the petition was already filed. However, 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). As such, evidence submitted in regard to this 
employee cannot be considered in determining whether the beneficiary was managing professional 
subordinates at the time the petition was filed. 
Finally, the record does not indicate that any of these employees supervise subordinate staff members, such 
that they could be classified as managers or supervisors. In all, the record does not support the conclusion 
that the beneficiary supervises subordinate employees who are supervisory, professional, or managerial, as 
required by section 10 1 (a)(44)(A)(ii) of the Act. 
In light of the foregoing, the AAO finds that the evidence is insufficient to establish that the beneficiary 
would be employed in the United States in a primarily managerial or executive capacity, as required by 8 
C.F.R. $ 214.2(1)(3). 
Beyond the director's decision, the petitioner has not provided sufficient evidence to establish that a 
qualifying relationship exists between the U.S. and foreign entities. The regulations and case law confirm 
that ownership and control are the factors that must be examined in determining whether a qualifying 
relationship exists between the United States and foreign entities for purposes of this visa classification. 
Matter of Church Scientology International, 19 I&N Dec. at 593; see also Matter of Siemens Medical 
The AAO no$es that the accountant appears to be providing accounting services to the U.S. company on 
contract and ispot actually an employee of the company. 
SRC04 199 51157 
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Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornrn. 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. 
On the Form 1-129, the petitioner indicated that the foreign entity owns 51%, and the beneficiary owns 49% 
of the U.S. entity. In support of this claim, the petitioner submits a copy of share certificate number 1 of the 
U.S. entity indicating that the foreign entity owns 51 out of 100 authorized shares of the U.S. entity, and a 
copy of share certificate number 2 indicating that the beneficiary owns 49 out of 100 authorized shares of the 
U.S. entity. Both share certificates are dated December 15, 2000. In response to the director's request for a 
copy of the stock ledger for the U.S. company showing all stock shares issued and currently outstanding, the 
petitioner did not submit an official share ledger for the company, but instead provided an undated list of 
shareholders for the U.S. and foreign entities. The petitioner also submitted more copies of the two share 
certificates of the U.S .company, but this time the copies of the certificates are visibly altered on their face - 
the numbers of shares held by the respective shareholders appear to have been whited out and retyped on the 
copies. In addition, The AAO notes that contrary to the information presented by the petitioner regarding its 
ownership, the U.S. entity's federal income tax return for 2003 indicates that it is 100% owned by the 
beneficiary. The petitioner has made no attempt to explain or account for this inconsistency or its action in 
altering the copies of the share certificates. It is incumbent upon the petitioner to resolve any inconsistencies 
in the record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Moreover, 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. Id. 
Further, 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, 19 I&N Dec. 362. The petitioner has 
failed to provide the U.S. company's stock ledger as requested, and it also has not provided any of the above 
mentioned documentation relating to the ownership and control of the U.S. company. In light of these 
deficiencies in the record, CIS is unable to determine the elements of ownership and control, and therefore 
cannot conclude that a qualifying relationship between the U.S. and foreign entities exists as claimed. For 
this additional reason, the petition will be denied. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd, 345 F.3d 683 
SRC 04 199 51157 
Page 8 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if she shows that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
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. @ 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.