dismissed L-1A Case: Automotive Export

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U.S. Department of Homela~nd Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
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File: SRC 03 138 52296 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 03 138 52296 
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 sales manager as an 
L-1 A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 1mmigr;ltion and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Texas that is engaged in the purchase and export of used automobiles. The petitioner claims that it is the 
subsidiary of Company located in Amman, Jordan. The beneficiary was initially 
granted a three-year period of stay and the petitioner now seeks to his status for a three-year period. 
The director denied the petition concluding that: (1) the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; (2) there is no evidence of a 
qualifying relationship between the petitioner and the affiliated company in Jordan; and (3) there is no 
evidence that the company has been doing business in the United States or abroad. 
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's 
findings and asserts that the evidence supports that the beneficiary serves in an executive capacity; that the 
petitioner is doing business in the United States and abroad and regularly purchases and ships vehicles to 
Jordan to be sold by the parent company; and that the company is a wholly-owned subsidiary of the Jordanian 
company. Counsel submits a brief and additional evidence in support of these assertions. 
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. 4 214.2(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. 
SRC 03 138 52296 
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(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. 
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opttning of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 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 a:; 
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 
SRC 03 138 52296 
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(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. 5 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; 
(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. 
In the initial petition, the petitioner submitted a letter dated March 27, 2003, which described the beneficiary's 
job duties as follows: 
[The beneficiary] has had a key role in the development and expansion plans of [the 
petitioner], and his continuing presence is essential for our expansion goals to materialize. At 
present, [the beneficiary] is actively seeking to ensure that [the petitioner] remain[:;] 
competitive, maintain its workforce and provide the same level of service. 
On July 1, 2003, the director requested additional evidence. Specifically, the director requested a definitive 
statement describing the foreign and U.S. employment of the beneficiary, including the number of employees 
who report directly to the beneficiary, together with a description of their job titles, duties and educational 
backgrounds. Alternatively, if the beneficiary does not supervise any employees, the petitioner was asked to 
specify what essential function is managed by the beneficiary. 
In response, counsel for the petitioner submitted the following description of the beneficiary's job duties in a 
letter dated July 16, 2003: 
[The beneficiary] is currently the general manager [of the petitioner]. [The beneficiary] 
directs buyers who acts [sic] on the company's behalf at various auto auctions. Further, he 
utilizes his knowledge of the Middle East in conjunction with market studies to determine the 
need for certain types of vehicles in the Middle East. [The beneficiary] co-ordinates [sic] the 
transportation of cars within the U.S. and from the U.S. and is responsible for resolution of ail 
problems and disputes. [The beneficiary] directs human resources management and exercises 
SRC 03 138 52296 
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authority in regard to hiring, firing, training, delegation of assignments, promotions, and 
remuneration. 
[The beneficiary] functions largely autonomously. He is responsible for managing and 
directing all activities of [the petitioner]. He communicates directly with the parent company 
and ensures that its goals and objectives are carried out. [The beneficiary] has been extremely 
successful in building the U.S. subsidiary. 
In short [the beneficiary] exercises wide latitude and discretionary decision making in 
establishing the most advantageous courses of action for the successful management and 
direction of [the petitioner's] activities. 
On September 5, 2003 the director denied the petition. The director determined that the record contained no 
evidence that the beneficiary's duties in the United States or abroad have been managerial or executive in 
nature. 
On appeal, counsel for the petitioner asserts that the beneficiary clearly serves in a managerial or executive 
capacity and provides the following description of the beneficiary's duties as general manager: 
1. Directing the trade of automobiles between Jordan and the U.S. 
2. Identifying vehicles appropriate for Middle East market, based on working 
knowledge of regional habits and marketplace. 
3. Managing the finances of the entity. 
4. Setting policies and objectives of the company. 
5. Managing staff (both employees and contract labor) 
6. Report directly to President and Board of Directors. 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
242(1)(3)(). 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 petitioner has provided a vague and nonspecific description of the beneficiary's dluties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner describes the 
beneficiary as having a "key role" in its development and expansion plans, "directing the trade of 
automobiles," and "directing human resources management." Yet, the petitioner has not clearly defined the 
beneficiary's exact role within the organization, what specific duties are involved in "directing 1:rade" or 
whether these duties are primarily managerial or executive, or described its staffing levels sufficiently to 
convey an understanding of how much time the beneficiary could reasonably devote to human resources 
management issues. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972). Specifics are clearly an important indication of whether a beneficiary's duties are 
SRC 03 138 52296 
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primarily executive or managerial in nature, otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 
41 (2d. Cir. 1990). 
In the request for evidence, the director requested that the petitioner submit a definitive statement describing 
the foreign and U.S. employment of the beneficiary, including the number of employees reporting to the 
beneficiary, their job title and duties and their educational background. In response the petitioner provided no 
information regarding the beneficiary's foreign employment or the beneficiary's subordinates. Further, it 
provided a different job title for the beneficiary and a U.S. job description which largely paraphrased the 
statutory definition of executive capacity. See section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A). 
For instance, the petitioner depicted the beneficiary as "managing and directing all activities" and "e:xercising 
wide latitude and discretionary decision-making." However, conclusory assertions that merely repeat the 
language of the statute or regulations do no satisfy the petitioner's burden of proof. Fedin Bros. C'o. Ltd. v. 
Sava, 724, F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990); Avyr Associares Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
In addition, the job description provided by the petitioner in response to the request for evidence suggests that 
he is directly involved in arranging transport of the vehicles purchased and shipped by the petitioner to its 
affiliated company in Jordan. Since the beneficiary actually coordinates transport and shipping of the product, 
he is performing a task necessary to provide a service or produce a product and this duty will not be 
considered managerial or executive in nature. 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 ~sxecutive 
capacity. Matter of Church Scientology International, 19 I&N Dec. 593,604 (Cornrn. 1988). 
Furthermore, the AAO notes that the petitioner elevated the beneficiary's job title from sales manager to 
general manager in response to the director's request for evidence, and on appeal has indicated new job 
duties, including setting policies and objectives, managing employees and contract staff, and managing the 
company's finances. A petitioner cannot offer a new position to the beneficiary in response to a request for 
evidence or on appeal, or materially change a position's title, its level of authority within the orgarlizational 
hierarchy, or its 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 of 
Micheliit Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). A petitioner may not make material1 changes 
to a petition in an effort to make a deficient petition confirm to CIS requirements. See Matter of Iz~~mrni, 22 
I&N Dec. 169, 176 (Assoc. Comm. 1998). 
The regulation states that the petitioner shall submit additional evidence the director, in his or her discretion, 
may deem necessary. As discussed, the petitioner did not provide the requested definitive statement regarding 
the beneficiary's job duties or any information regarding his subordinates. The evidence requested by the 
director regarding the beneficiary's job duties and the petitioner's staffing levels is critical as it wc~uld have 
established whether the beneficiary supervises a staff of subordinate managers, supervisors or profe:ssionals, 
or functions at a senior level within the company's organizational hierarchy. The petitioner claims to employ 
only four employees, including a president who supervises the beneficiary. The small staff size raises doubts 
as to whether the beneficiary has subordinates who would relieve him from performing the non-qualifying 
SRC 03 138 52296 
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operational and administrative tasks of the business. The purpose of the request for evidence is to eli~:it further 
information that clarifies whether eligibility for the benefit sought has been established. 8 C.F.R. 
5 103.2(b)(8). The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying a petition. 8 C.F.R. $ 103.2(b)(14). Furthermore, the petitioner bears the burden of 
documenting what portion of the beneficiary's duties will be managerial or executive and what portion will be 
non-managerial or non-executive. Republic of Transkei v. INS, 823 F.2d 175, 177 (D.C. Cir. 1991). 
Given the lack of an adequate job description, the complete absence of information or docuinentation 
regarding the petitioner's staffing levels, and the combination of managerial and non-managerial duties 
suggested by the brief descriptions provided, the record does not demonstrate that the beneficiary will 
function primarily as a manager or executive. The description of the beneficiary's duties as provided in response 
to the direct request for additional information is vague and therefore does not clarify what the beneficiary 
actually does on a daily basis. The petitioner has not demonstrated that the beneficiary will be primarily 
supervising a subordinate staff of professional, managerial, or supervisory personnel, or primarily managing an 
essential function within the organization. Further, the record is not persuasive that the beneficiary functions at a 
senior level within an organizational hierarchy other than in position title. Based on the evidence submitted, it 
cannot be found that the beneficiary will be employed primarily in a qualifying managerial or executive capacity. 
For this reason, the petition may not be approved. 
The second issue in this proceeding is whether the foreign and United States entities are qualifying 
organizations as defined in 8 C.F.R. 5 214.2(1)(l)(ii)(G). 
The pertinent regulations at 8 C.F.R. 5 214.2(l)(ii) define the term "qualifying organization" and related terms 
as follows: 
(G) Qualibing 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 ii 
parent branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of thi,s 
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 country directly or through 
a parent, branch, affiliate or subsidiary for the duration of the alien's stay in the 
United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
(I) Parent means a firm, corporation or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed in a 
different location. 
SRC 03 138 52296 
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(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirection, 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 he entity, but in fact controls 
the entity. 
(L) Afiliate means 
(1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group on individual:;, 
each individual owning and controlling approximately the same share or 
proportion of each entity. 
In the present matter, the petitioner claimed in its petition that the United States company is a subsidiary of 
the foreign company. In the letter submitted with the petition, dated March 27, 2003, it refers to the foreign 
company as its "affiliated company." 
In her request for additional evidence, the director asked the petitioner to provide documentary evidence to 
establish the current ownership and control of the petitioner and the foreign employer, and evidence that the 
foreign employer is currently engaged in the regular, systematic and continuous provision of goods and 
services, including financial records, tax returns, annual reports, profit and loss statements, other accountant 
reports, banking records, employee rosters and evidence of business conducted. 
In response, the petitioner submitted the following documents: a copy of its articles of incorporation; a copy 
of its stock certificate; its IRS Forms 1120, U.S. Corporation Income Tax Return for 1999, 2000 and 2001; 
copies of bills of lading for the U.S. and foreign companies; and copies of photographs of the Jordanian 
company. 
In her decision, the director determined that there is no evidence that the petitioner has been doing business in 
the United States or abroad or that there is a qualifying relationship between the two companies. On appeal, 
counsel merely asserts that the petitioner is a wholly-owned subsidiary of the foreign company and submits 
additional documentation as evidence that the U.S. company has been doing business. 
On review, the record contains inconsistencies which preclude the AAO from determining that the foreign 
and U.S. organizations have a qualifying relationship. The documents submitted by the petitioner as evidence 
of the relationship include the petitioner's Articles of Incorporation, which indicates that the petitioner is 
authorized to issue 1,000 shares of stock at a par value of $1.00; and a stock certificate, number one, showing 
that 1,000 shares of stock were issued to the claimed foreign parent company on April 1, 1998. However, 
SRC 03 138 52296 
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contrary to the information provided in these two documents, the petitioners' 2001 and 2002 U.S. Corporation 
Income Tax Returns indicate on Schedule K that the company is 100% owned by Wael Darwish. 
Accordingly, the petitioner is clearly not the wholly-owned subsidiary of the foreign employer as cllaimed by 
the petitioner. 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 :[&N Dec. 
582, 591-92 (BIA 1988). 
While it is possible that the two companies could have sufficient common ownership to meet the statutory 
definition of affiliates, the petitioner did not provide the evidence requested by the director with respect to the 
ownership of the foreign company, nor did it fully disclose all documents with respect to the U.S. company's 
current ownership. 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 of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); ,Matter of 
Hughes, 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 of Church 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 ~sorporate 
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, Citizenship and Immigration Services (CIS) is unable to determine the elements of 
ownership and control. 
As noted above, the regulations specifically allow the director to request additional evidence in appropriate 
cases. See 8 C.F.R. 5 214.2(1)(3)(viii). As ownership is a critical element of this visa ~lassifica~tion, the 
director may reasonably inquire beyond the issuance of paper stock certificates into the means by which stock 
ownership was acquired. Evidence of this nature should include documentation of monies, property. or other 
consideration furnished to the entity in exchange for stock ownership. Additional supporting evidence would 
include stock purchase agreements, subscription agreements, corporate by-laws, minutes of relevant 
shareholder meetings, or other legal documents governing the acquisition of the ownership interest. In this 
case, the petitioner failed to comply with the director's request for documentation regarding ownership of the 
two companies. The 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)(8). 
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Based on the incomplete and inconsistent evidence in the record, the AAO cannot find that the petitioner 
currently has a qualifying relationship with a foreign entity as required by 8 C.F.R. 8 214.2(l)(l)(ii)(G)(l). 
Upon review of the record, the AAO does find sufficient evidence to confirm that the U.S. entity is doing 
business. However, without a qualifying relationship with a foreign entity, the petitioner is not a qualifying 
organization and cannot employ an intracompany transferee. 
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. 3 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.