dismissed L-1A Case: Automotive Import/Export

/ 
9 
 U.S. Department of fIon~eland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Wash~ngton, DC 20529 
File: 
m RE: 
u. S. Citizenship 
and Immigration 
Services 
Office: CALIFORNIA SERVICE CENTER 
 Date: @J 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
Page 2 
DISCUSSION: The Director, California Service Center, initially approved the nonimrnigrant visa petition. 
Upon subsequent review, the director issued a notice of intent to revoke approval and ultimately revoked 
approval of the petition. The matter is now before the Administrative Appeals Office (MO) on appeal. The 
appeal will be dismissed. 
f 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general 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 import and export of used and salvaged cars and trucks. The petitioner claims that it is a 
granted the beneficiary an extension of L-1A status from December 6,2002 until December 5,2004. 
On December 6, 2004, the director issued a'notice of intent to revoke the approval of the petition observing 
that the petitioner had not established: (1) that the beneficiary is employed in a primarily managerial or 
executive capacity in the United.States; (2) that the United States is doing business; or (3) that the claimed 
.qualifying relationship exists between the U.S. entity and the beneficiary's foreign employer. The petitioner 
provided a rebuttal. The director, upon review of the record, determined that the petitioner had not overcome 
the grounds for revocation: The director revoked the approval of the petition on March 11,2005. 
The petitioner, through counsel, has timely filed the'instant appeal. On appeal, counsel for the petitioner 
asserts that the director placed undue emphasis on the size of the U.S. entity, and failed to consider the 
petitioner's use of "outsourcing agents," in finding that the 'beneficiary is not employed in a managerial 
capacity. Counsel suggests that the director erroneously applied an outdated standard with respect to 
determining the beneficiary's employment capacity, noting that the applicable regulations "are silent 
' respecting the percentage of time a person must spend on qualifying activities." Counsel also clarifies the 
nature of the petitioner's business activities, and contends that the company is doing business as required by 
the regulations, and not merely acting as an agent for the foreign entity. Finally, counsel asserts that the 
director inisinterpreted the evidence submitted to establish t'he claimed qualifying relationship between the 
petitioner and the foreign entity. Counsel submits a brief and additional evidence in support of the appeal. 
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: 
Under CIS regulations, the approval of an L-1A petition may be revoked on notice under six specific 
circumstances. 8 C.F.R. 9 214.2(1)(9)(iii)(A). To properly revoke the approval of a petition, the director must 
issue a notice of intent to revoke that contains a detailed statement of the grounds for the revocation and the 
time period allowed for rebuttal. 8 C.F.R. § 214.2(1)(9)(iii)(B). 
, . 
Page 3 
In the present matter, the director provided a detailed statement of the grounds for the revocation. Referring 
to the eligibility criteria at 8 C.F.R. ijij 214.2(1)(3)(i) and (ii), the director reviewed the rebuttal evidence and 
concluded that the petitioner had not established that the petitioner was doing business, that the U.S. and 
foreign entities have a qualifying relationship, or that the beneficiary will- be employed in a managerial or 
executive capacity. Upon review, the director revoked the approval on the basis of 8 C.F.R. 5 
214.2(1)(9)(iii)(A)(5): "Approval of the petition involved gross error." 
The term "gross error" is not defined by the regulations or statute. Furthermore, although the term has a 
juristic ring to it, "gross error" is not a commonly used legal term and has no basis in jurisprudence. See 
Black's Law Dictionary 562, 710 (7th Ed. 1999)(defining the types of legal "error" and legal terms using 
"gross" without citing "gross error"). The word "gross" is commonly defined first as "unmitigated in any 
way: UTTER," as in "gross negligence." Webster's IINew College Dictionary 491 (2001). 
As the term "gross error" was created by regulation, it is most instructive to examine the comments that 
accompanied the publication of the rule in the Federal Register. The term "gross error" was first used in the 
regulations relating to the revocation of a nonimmigrant L-1 petition. In the 1986 proposed rule, an L-1 
revocation would be permitted if the approval had been "improvidently granted." 51 Fed. Reg. 18591, 18598 
(May 21, 1986)(Proposed Rule). After receiving comments that expressed concern that the phrase 
"improvidently granted" might be given a broader interpretation than intended, the agency changed the final 
rule to use the phrase "gross error." 52 Fed. Reg. 5738, 5749 (Feb. 26, 1987)(Fmal Rule). As an example of 
gross error in the L-1 context, the drafter of the regulation stated: 
This provision was intended to correct situations where there was gross error in approval of 
the petition. For example, after a petition has been approved, it may later be determined that 
a qualifying relationship did not exist between the United States and the foreign entity which 
employed the beneficiary abroad. 
Id. 
 Accordingly, upon review of the regulatory history and the common usage of the term, the AAO 
interprets the term "gross error" to be an unmitigated or absolute error, such as an approval that was granted 
contrary to the requirements stated in the statute or regulations. Regardless of whether there can be debate as 
to the legal determination of eligibility, any approval that CIS determines to have been approved contrary to 
law must be considered an unmitigated error, and therefore a "gross error." This view of "gross error" is 
consistent with the example provided in the Federal Register. See 52 Fed. Reg. at 5749. 
Upon review, the approvaI of the present petition was properly revoked as the director clearly approved the 
petition in gross error, contrary to the eligibility requirements provided for in the regulations. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed, or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
Page 4 
(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. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first issue in this matter is whether the petitioner established that the beneficiary will be 
employed in a primarily managerial or executive capacity in the United States. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 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 authonty. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee pnmarily: 
(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; 
- Page 5 
(iii) 
 exercises wide latitude in discretionary decision malung; and 
, 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimmigrant petition was filed on November 12, 2002. The petitioner stated on Form 1-129 that it had 
three employees as of the date of filing. In a letter dated October 30, 2002, the petitioner stated that the 
beneficiary performs the following duties as general manager of the U.S. company: 
He oversees the entire operation of the new business, especially in the area of import and 
export of the used automobiles including the trucks. He actively contacts U.S. suppliers, 
negotiates and devises plans, secures orders, directs the shipping company for any product 
transfer and shipment and completes the import and export process. He (also travels 
extensively both in the United States and abroad to expend [sic] our business and to seek 
further business opportunities. 
Based on this limited evidence, the director approved the petition on December 5, 2002. On December 6, 
2004, the director issued a notice of intent to revoke approval of the petition. The director determined that the 
job description submitted with the petition was too broad and nonspecific to convey any understanding of the 
beneficiary's actual, day-to-day activities, and appeared to be primarily comprised of performing all of the 
company's exporting tasks. The director further noted that the petitioner claimed to employ only two other 
employees, and had neither provided evidence of their employment nor described their job titles and job 
duties. The director determined that based on the record, the petitioner had not demonstrated that the 
beneficiary would be supervising a subordinate staff of professional, managerial or supervisory personnel, 
that he would manage an essential function, or that he would be relieved of having to perform non-qualifying 
duties. The director advised the petitioner that it was accorded thirty days to submit additional evidence or 
arguments for consideration before a final determination would be made. 
In a response dated January 6, 2005, counsel for the petitioner emphasized that U.S. Citizenship and 
Immigration Services (USCIS) had approved a total of four petitions filed on behalf of the beneficiary 
between 2000 and 2002. Counsel stated that "the USINS approved the beneficiary's L-1A application based 
on Petitioner's situation in the past years, therefore, the Petitioner runs its business the way it is. It is 
impossible for the petitioner to adjust and run the business at the 'higher standard' as USCIS interpret the law 
in 'more difficult way."' Counsel requested that the director "judge [the beneficiary's] application according 
to petitioner's current situation now, which would definitely meet the requirements." 
The petitioner submitted a letter dated December 28, 2004, in which it provided a detailed description of 
the, beneficiary's duties. As the petitioner's letter is part of the record of proceeding, it will not be 
repeated in its entirety here. Briefly, the petitioner indicated that the beneficiary's duties and the 
percentage of time he devotes to each duty is as follows: manage company trading activities (15%); 
manage company mechanical activities (15%); manage company financial activities (15%); manage and 
supervise the operation and performance of the company, and ensure execution of employees' duties to 
guarantee quality work environment (20%); discuss with the management regarding required changes in 
business goals in accordance with current conditions and direct the implementation of business expansion 
Page 6 
plans and operations policies (20%); ,meet with local business leaders to build up the network for the 
company (10%); and exercise authority to hire, terminate, evaluate and promote the subordinate 
employees (5%). 
The petitioner further stated that its staff in 2002 included the beneficiary, a part-time accountant (the 
beneficiary's spouse), a part-time trading coordinator and a sales employee who worked as an independent 
contractor. The petitioner stated more than 10 outsourced buyers have worked for the company since 2000, 
and noted: "We hire different buyers in different territories to help us purchase vehicles from different states 
in the U.S. which substitute the in-house employees at the beginning rough time of the business." The 
petitioner provided a buyer list identifying each buyer by name, address and dates of employment. 
The petitioner also provided an updated organizational chart, job descriptions for the petitioner's current ' 
employees, and evidence of wages paid to employees in 2004. The petitioner indicated that its current staff 
includes the beneficiary, a mechanic engineer, a trading coordinator, an accountant, an operation supervisor 
and a warehouse staff. The petitioner indicated that its current trading coordinator is .L responsible for searching 
for and purchasing used and salvaged cars according to overseas customer requirements and preferences, 
communicating with the overseas parent company, analyzing data, and preparing reports for management 
with regard to pricing, sales, methods of marketing and distribution. The petitioner also noted that the 
accountant is responsible for daily accounting operations, compiling and analyzing financial information, 
preparing financial statements, auditing contracts .and orders, implementing accounting control procedures, 
preparing invoices, scheduling appointments, and maintaining paper and electronic files. 
The petitioner did not submit evidence of wages paid to employees in 2002, nor provide evidence of 
payments to its "outsourced buyers." 
The director revoked the approval of the petition on March 11, 2005. The director acknowledged the 
petitioner's statement that its in-house staffing levels were minimal because the business "was just 
established," but noted that the petitioner had previously been granted three approvals and could not be 
considered a "new business" as of the date this petition was filed. The director determined that the record 
failed to establish the existence of any other employees working with the beneficiary, and again noted the 
petitioner's initial statement that the beneficiary's duties would include contacting and negotiating with U.S. 
suppliers. The director concluded that the beneficiary "was performing all the tasks necessary to provide a 
service or produce a product." 
On appeal, counsel asserts that the director placed undue emphasis on the size of the petitioning company, and 
contends that Congress did not intend to limit the term "manager" to persons who supervise a large number of 
employees or "executive" to those who supervise large enterprises. Counsel argues that the director failed to 
consider the petitioner's use of outsourcing agents who were employed by the petitioner and supervised and 
controlled by the beneficiary. 
Counsel further asserts that "even assuming arguendo that there is no documentation to support the hiring, 
however, in fact, Petitioner did hire two employees and many outsourcing agents to perform their essential 
functions within the company and to find and buy the usedhalvaged cars under the direction and approval" of 
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the beneficiary. Counsel states that it would have been impossible for the U.S. company to achieve sales of $2 
million in 2002 without these employees. 
Counsel contends that the director erroneously determined that the beneficiary would not be responsible for 
supervising a staff of managerial, professional or supervisory employees. Counsel asserts that the director 
"ignores the outsourcing agents, who are the executives of their respective outsourcing services and are 
supervised by [the] Beneficiary." Counsel notes that these employees are not reported by the petitioner on 
Form DE-6, but instead each outsourcing agent is responsible for their own income tax pursuant to the 
"Outsourcing Services Agreements." Counsel argues that the beneficiary also employed the accountant as of 
the date of filing, and that this employee worked in a professional capacity. Counsel submits copies of 
interoffice memoranda from the company accountant, as well as copies of outsourcing service agreements 
made between the petitioner and its claimed buyers/outsourcing agents. The agreements refer to a schedule 
"A which addresses how the agents will be compensated, but the schedule has not been included for review. 
The petitioner also submits copies of letters and facsimile transmissions from the claimed outsourcing agents 
which are addressed to the beneficiary, and request his approval for cars identified for purchase. 
Counsel also disputes the director's finding that the beneficiary was performing tasks necessary to provide a 
service or produce a product, and thus does not devote the majority of his time to managerial duties. Counsel 
asserts that with the accountant, trading coordinator, sales employees and all of the outsourcing agents 
reporting to him, the beneficiary "does not have to directly contact with the U.S. suppliers or negotiated [sic] 
with them." Counsel argues that the director is "applying the 1987 regulations" defining managerial capacity 
while "the 1983 regulations are silent with respect to the percentage of time a person must expend on 
managerial or executive duties in order to qualify as a manager or executive." Counsel further states: 
Here, the AAO should find the requirement that the beneficiary be engaged primarily in 
qualCfying activities 1s found in the 1987 regulations and not in the 1983 regulations. The 
applicable regulations are silent respecting the percentage of tiine a person must spend on 
qualifyingactivities. It is clear to AAO that the INS decision is based on the 1987 regulations 
and thus is an abuse of discretion. In fact, [the beneficiary] 'is not required to contact or 
negotiate with the suppliers and all of these jobs are done by other employees and the 
regional managers (the outsourcing agents). 
Counsel also emphasizes the growth in sales experienced by the U.S. company between 2001 and 2004 and 
suggests that the sales figures support a conclusion that the beneficiary primarily directs the organization. 
Counsel concludes that "[USCIS] should find the evidence uncontroverted that the beneficiary did in fact 
'manage the enterprise' . . . in'order to manage the company from a gross sale of $700,000 to $3.5 million in 
2004. A finding to the contrary is support [sic] .by no evidence and thus is an abuse of discretion." 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
$ 214.2(1)(3)(). 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. 
Page 8 
As noted by the director, the position description submitted in support of the initial petition indicated that the 
beneficiary "actively contacts U.S. suppliers, negotiates and devises plans, secures orders, directs the shipping 
company for any product transfer and shipment and completes the import and export process." These duties, 
which constituted the bulk of the initial position description, describe an employee who is responsible for 
locating, purchasing and arranging transport of automobiles. The petitioner did not claim that the beneficiary 
was responsible for overseeing or supervising these activities through subordinate staff members. These 
duties comprise the basic daily operational and supervisory tasks of an automobile export company and were 
not represented as being incidental to the beneficiary's daily duties. 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 
Int '1, 19 I&N Dec. 593, 604 (Comm. 1988). 
Although the petitioner indicated that the beneficiary "oversees the entire operation of the new business" and 
"seek[s] further business opportunities," the petitioner failed to delineate what specific tasks the beneficiary 
would perform. The AAO cannot be expected to speculate as to the managerial or executive job duties to be 
performed by the beneficiary in connection with "overseeing" the business. The actual duties themselves 
reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
In response to the director's notice of intent to revoke approval of the petition, the petitioner elected to 
elaborate upon the beneficiary's duties as of 2004, rather than address the actual duties of the beneficiary as of 
the date the petition was filed. The petitioner must establish eligibility at the time of filing the nonirnrnigrant 
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). 
Therefore, the more detailed job description submitted in response to the notice of intent to revoke is not 
probative of the beneficiary's eligibility as of November 2002 when the petition was filed, and it will not be 
considered herein. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of hls or her time on day-to-day functions. Champion World, Inc. v. INS, 940, F.2d 1533 (Table) 
1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties are related to operational or policy management, not to the 
supervision of lower-level employees or the performance of the duties of another type of non-managerial or 
non-executive position. 
Therefore, whether the beneficiary is a managerial or executive employee turns on whether the petitioner has 
sustained its burden of proving that his duties are "primarily" managerial or executive. See sections 
101(a)(44)(A) and (B) of the Act. The word "primarily" is defined as "at first," principally,' or "chiefly." 
Webster 's II New College Dictionary 877 (2001). Here, the petitioner's description of the beneficiary's duties 
indicated that he was responsible for managing the business, but that he was also responsible for performing a 
number of non-managerial duties associated with operating the petitioner's business. 
Page 9 
Where an individual is "principally" or "chiefly" performing the tasks necessary to produce a product or to 
provide a service, that individual cannot also be "principally'~ or "chiefly" performing managerial or executive 
duties. Contrary to counsel's contention that there is no regulation requiring a percentage of time devoted to 
each of the beneficiary's duties, CIS must determine that the beneficiary is primarily engaged,in a managerial 
or executive' capacity. To make such a determination it is necessary to require a detailed description of the 
beneficiary's duties and the amount of time the beneficiary devotes to these duties. It is especially relevant 
when several of the beneficiary's daily tasks, such as contacting suppliers, securing orders and making import 
and export arrangements, do not fall under traditional managerial or executive duties as defined in the statute. 
See e.g. IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
The AAO acknowledges counsel's observation that the language that discussed individuals who produce a 
product or provide a service existed only in the 1987 definitions of managerial and executive capacity. 
Counsel appears to be arguing on appeal that this petition, which was filed in 2002, should be adjudicated 
pursuant to the 1983 definitions of these terms. However, as noted above, the applicable, current definitions 
of managerial and executive capacity, as implemented by the Immigration Act of 1990, require that the 
beneficiary be "primarily" engaged m managerial or executive duties. Thus, under the current definitions, 
while performing non-qualifying tasks necessary to produce a product or service will not automatically 
disqualify the beneficiary as long as those tasks are not the majority of the beneficiary's duties, the petitioner 
still has the burden of establishing that the beneficiary is "primarily" performing managerial or executive 
duties. .Section 101(a)(44) of the Act. 
Here, the petitioner's description of the beneficiary's duties suggested that he was primarily engaged in non- 
qualifying operational tasks associated with purchasing, exporting and selling automobiles and would have 
been neither able to nor required to perform primarily managerial or executive tasks as the general manager of 
a three-person export company. The petitioner's description of the beneficiary's duties cannot be read or 
considered in the abstract, rather the AAO must determine based on a totality of the record whether the 
description of the beneficiary's duties represents a credible perspective of the beneficiary's role within the 
organizational hierarchy. As concluded by the director, the record does not demonstrate that the petitioner had 
a sufficient number of employees to relieve the beneficiary from securing orders from foreign buyers, locating 
and purchasing automobiles, arranging domestic transportation,and international shipment of the automobiles, 
arranging the required inspections for the exported cars, and performing the considerable administrative, 
clerical and finance-related tasks that would reasonably be required in this type of business. 
Counsel correctly observes that a company's size alone, without talang into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See 5 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 101(a)(44)(C). However, it is appropriate for CIS to consider the 
size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive operations 
of the company, or a "shell company" that does not conduct business in a regular and continuous manner. See, 
e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
The petitioner addressed the U.S. company's 2002 staffing levels in response to the director's notice of intent 
to revoke, noting that at the time the petition was filed, the beneficiary supervised a part-time accountant, a 
Page 10 
part-time trading coordinator, a part-time sales employee, and "outsourcing agents." The record contains no 
evidence of the employment of the part-time sales employee, and only minimal evidence regarding the use of 
outsourcing agents. ' The AAO is nevertheless satisfied that the petitioner utilized, to some extent, outsourced 
agents to purchase automobiles, but the terms of their relationship with the petitioning company, the exact 
scope and nature of their duties, and their contributions to 'the petitioner's overall 'purchasing and exporting. 
functions have not been explained. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Calgornia, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The record does not support a conclusion that these "outsourced agents" were solely responsible for 
all of the purchasing requirements of the company, nor does the record establish that the part-time trading 
coordinator, who received wages of $540 per month, could have plausibly relieved the beneficiary from 
performing the bulk of the non-managerial tasks associated with obtaining orders;. communicating with 
overseas buyers, identifying automobiles for purchase, and arranging for their domestic and international 
transport. Counsel's unsupported assertion on appeal that the beneficiary's subordinates relieved him from 
performing all routine duties as of the date of filing is not supported by the record, and is in direct 
contradiction to the petitioner's initial description of the beneficiary's duties, which indicated that he would 
directly perform non-qualifying tasks, rather than supervising the performance of such duties through 
subordinates. 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 of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
 . .. 
Even though the petitioner claimed that the U.S. company was in a preliminary stage of organizational 
development and did not have a need for a full-time in-house staff, the petitioner is not relieved from meeting 
the stat~toryre~uirement that the beneficiary perform primarily managerial or executive duties as of the date 
. the petition is filed. The AAO has long interpreted"the regulations and statute to prohibit discrimination 
against small or medium size businesses. However, the AAO has also long required the petitioner to establish 
that the beneficiary's position consists of primarily managerial and executive duties and that the petitioner has 
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks.. 
Moreover, to establish that the reasonable needs of the organization justify the beneficiary's job duties, the 
petitioner must specifically articulate why those needs are reasonable in light of its overall purpose and stage 
of development. In the present matter, the petitioner has not established the basic eligibility requirement in 
this matter, that the beneficiary is primarily performing managerial or executive duties. 
Counsel's assertion on appeal that the beneficiary was primarily engaged in the supervision of managerial and 
professional personnel is not supported by evidence in the record. Although the beneficiary is not required to 
supervise personnel, if it is claimed that his duties involve supervising employees, the petitioner must 
establish that the subordinate employees are supervisory, professional, or managerial. See $ 101(a)(44)(A)(ii) 
of the Act. 
On appeal, counsel refers to the "outsourcing agents" as "regional managers," but provides no evidence that 
any of these agents supervise subordinate personnel or manage a clearly defined function of the petitioner. In 
fact, counsel also states that these agents do not have the authority to act on automobile purchases without the 
beneficiary's approval, which further supports a conclusion that they are merely purchase agents and not 
Page 11 
managers. The petitioner's accountant is described as performing bookkeeping and administrative tasks, and 
the trading coordinator's duties have not been shown to be professional in nature. The petitioner has not 
demonstrated that either employee possessed or required a bachelor's degree. Thus, the petitioner has not 
shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, as required 
by section 101(a)(44)(A)(ii) of the Act. 
Overall, given the lack of an adequate job description for the beneficiary,.the paucity of evidence 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. would function primarily as a 
manager or executive.' While the beneficiary evidently exercises discretion over the day-to-day operations of 
the business, the fact that the beneficiary manages a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity within the meaning of 
section 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). 
Counsel's request that the AAO take into consideration the petitioner's current staffing levels and sales 
figures will not be granted. Again, 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). Based on the foregoing discussion, the petitioner has not submitted evidence that the 
beneficiary was employed in a primarily managerial or executive position as of the date of filing, and thus the 
approval of the petition constituted gross error on the part of the director. Accordingly, the director's decision 
to revoke the approval of the petition is affirmed and the appeal will be dismissed. 
The second issue to be discussed in the present matter is whether the petitioner has established that a 
qualifying relationship exists between the U.S. company and the beneficiary's overseas employer. 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 
lOl(a)(lS)(L) of the Act; 8 C.F.R. tj 214.2(1). 
The pertinent regulations at 8 C.F.R. tj 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) Qualifjiing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this 
section; 
(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, 
Page 12 
(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. 
(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. 
The nonimmigrant petition was filed on November 12, 2002. The petitioner stated on Form 1-129 that the 
Cambodia, and that the U.S. company is a majority-owned subsidiary of the foreign entity. In a letter dated 
October 30, 2002, the petitioner referenced the same parent company, and noted that the foreign entity was 
- - - 
formerly known as ." The petitioner stated: "In September of last year our 
company purchased 55% of the shares of the P&T Association, Inc., an import and export company located in 
New Jersey and Philadelphia in the United states."' 
In support of the petition, counsel for the petitioner provided a copy of its articles of incorporation, filed on 
March 7, 2001, which indicate that the company is authorized to issue 1,000 shares of stock. The petitioner 
also submitted a copy of its 2001 IRS Form 1120, U.S. Corporation Income Tax Return, which indicates at 
Schedule E that the beneficiary owns 100 percent of the company. At Schedule L, line 22, the petitioner 
. . 
~ndicated that the value of the company's issued capital stock is $15,000. Finally, at Schedule K, line 7, the 
petitioner indicated that no foreign person owned at least 25 percent of the stock of the corporation. 
No other supporting documentary evidence of either the petitioner's or the foreign company's ownership was 
submitted' in support of the petition. The director approved the petition on December 5, 2002 without 
requesting any additional evidence or attempting to resolve the discrepancy between the petitioner's statement 
regarding its ownership and the information contained in the 2001 Form 1 120. 
On December 6, 2004, the director issued a notice of intent to revoke approval of the petition. The director 
noted that subsequent to the filing of the instant petition, the petitioner filed a Form 1-140 immigrant petition 
on behalf of the beneficiary for classification as a multinational executive or manager, which was denied, in 
part, based on the petitioner's failure to establish a qualifying relationship between the U.S. entity and the 
foreign entity. The director addressed the following discrepancies and deficiencies in the evidence submitted 
in support of the Form 1-140: 
1 
The MO notes that the beneficiary's initial L-1 employer in the United States was a New Jersey 
corporation, P&T Associates, Inc. 
- 
Page 13 
[Tlhe petitioner submitted copies of stock cert~ficate number one showing the Tea Hor Import 
and Export Company purchased 1,000 shares of stock on September 6, 2001. The stock 
ledger submitted also shows the transaction and indicates that the 1,000 shares of stock were 
sold for $190,000.00. The pet~tioner also submitted a copy of their Not~ce of Transactions 
[sic], endorsed on June 5, 2003, showing that the[y] sold the shares of stock for $190,000.00 
in money. 
L 
For immigration purposes, the issuance of a piece of paper titled "stock certificate" is not 
conclusive as to whether a qualifying relationship exists between a petitioner and a foreign 
company. The Service requested evidence to show that Tea Hor Import and Export Company 
Limited has, in fact, paid for the U.S. entity. 
The petitioner submitted a wire transfer copy from First Commercial Bank dated March 29, 
[2001] showing that -sent $30,000.00 to Mr. [sic] Hor for "goods 
payment ." 
The second wire transfer copy from First Commercial Bank is dated April 2,2001, shows that 
-t $80,000.00 to Mr. r for "goods payment." 
The third wire transfer, copy [from] First Commercial Bank is dated April 18, 200 1, shows 
that-t $30,000.00 to Mr. for "goods payment." 
The fourth wire transfer copy from First Commercial Bank dated April 23, 2001 shows that 
sent $50,000.00 to Mr. 
 for "goods payment." The documentation of 
record does not establish a clear path of funds [from] the foreign entity to the petitioner to 
establish a capital investment. [Furthermore] the evidence provided clearly shows that the 
money was payment for goods sold. 
The director further noted that the petitioner's 2001 arid 2002 IRS Forms 1120 indicated that the beneficiary 
owns 100 percent of the company's common stock, that the stock is valued at $15,000, and that the company 
indicated that it is not a subsidiary in an affiliated group or parent-subsidiary controlled group. The director 
indicated that the petitioner had failed to provide "unerring and concise evidence" to substantiate the claim of 
qualifying foreign company ownership of the U.S. entity. The director advised the petitioner that it had 30 
days to submit additional evidence or arguments for consideration. 
The petitioner submitted rebuttal evidence in response to the director's notice of intent to revoke on January 
6, 2005. Counsel for the petitioner asserted that the petitioner has provided "genuine evidence and 
explanations" to establish that the foreign entity invested $1 15,000.00 in the U.S. subsidiary in exchange for 
100 percent ownership of the company. Counsel noted the director's reference to the four wire transfers 
totaling $190,000, and stated that $1 15,000 was utilized as a capital investment in exchange for ownership of 
the company, while the remaining $75,000 was to be utilized as "necessary operation expenses" as needed. 
Page 14 
In support of this assertion, counsel submitted board meeting minutes from Tea. Hor Import-Export Inc., dated 
March 5,2001, regarding "capital investment to the U.S. subsidiary." The board meeting minutes indicate that 
the foreign entity's directors resolved to have its chief executive officer- on behalf of'the 
company, "wire the total amount of US$190,000.00 to our U.S. subsidiary. . . . US$I 15,000.00 out of the total 
amount of ~~$190,000 will be ised as our capital investment in exchange 100% ownership of our U.S. 
Subsidiary." The board members further resolved that the funds would be transferred "from the end of this 
month (March) to the end of next month (April)." 
Counsel stated that due to a communication misunderstanding, the petitioner did not provide these board 
minutes and "the previous attorney make [sic] an error on the company Minutes (1,000 shares and $190.00 
per share, to make total investment of $190,000.00.)" Counsel explained that-transferred the 
funds on behalf of the foreign entity as "originator," as dictated by the board minutes, but due to an oversight 
"did not notice that she should put 'capital investment' on the application form when she wire transferred." 
Counsel further asserted that the petitioner's previous accountant mistakenly indicated the value of the 
petitioner's common stock as $15,000 rather than $1 15,000 on the U.S. company's income tax returns. The 
petitioner submits a copy of its 2003 IRS Form 1120, which indicates that the U.S. company's capital stock 
was increased from $15,000 to $1 15,000 during the tax year, and that the company is wholly owned by 
"(Cambodia) " Counsel noted that the tax return was filed on March 30, 2004, prior 
to the issuance of the director's notice of intent to revoke. 
Finally, the petitioner submitted a name change certificate fi-om the Cambodian government, indicating that 
enti 's name was changed from "." to "(Cambodia) ~avour 
Import " on February 3,2003. 
Counsel concluded by stating "no matter the capital stock is US$190,000.00 or US1 15,000, the fund is [sic] 
originally from the Cambodia parent company to exchange 100% ownership of the U.S. subsidiary." Counsel 
emphasized that the omissions and errors catalogued by the director were made by third parties, and requested 
that the petitioner's explanations and documentation be accepted. 
On March 11, 2005, the director revoked the approval of the petition, concluding that the petitioner had not 
overcome the grounds for revocation with respect to the qualifying relationship issue. The director stated that 
the petitioner had failed to establish that the money that was wired to the U.S. entity originated from the 
foreign entity. 
On appeal, counsel for the petitioner addresses the director's specific finding that the petitioner failed to 
establish that the monies transferred originated.with the foreign entity: 
[CIS] does not understand the fact that both(the wife of [the beneficiary]), 
and(the brother of [the beneficiary]), are the shareholders of the parent company. 
. . , who wired the said money to the US subsidiary for the parent company in the 
consideration that they would have additional shares of stock which were issued by the parent 
company as the precedent condition . . . . Therefore the path of fund [sic] is clear and lawful. 
Page 15 
Counsel further states that "based upon the same wire money transfers, [CIS] determines that the money was 
for goods sold. In fact the petitioner has NEVER sold goods. . . to either :- 
Counsel states that the reference to "goods payment" on the wire transfers in question is a misnomer, 
and again emphasized that the deficiencies in the petitioner's tax returns have been corrected. The petitioner 
submits amended corporate tax returns for the 2001 and 2002 years, along with an IRS Form 1120X, on 
which the petitioner's accountant indicates that Forms 1120 are being amended due to the fact that the 
petitioner under-reported the value of its stock and incorrectly reported the name of its shareholder. 
In support of the appeal, the petitioner submits the minutes of a board meeting of the foreign entity dated 
March 7,2001 which states that subsequent to its March 5, 2001 meeting, the board members decided to have 
both and be responsible for transferring the capital Investment to the U.S. 
subsidiary. The meeting minutes indicate that "[slince our company cash flow is low" these individuals would 
wire the total amount of $190,000 to the U.S. entity, and the fore1 
 company "will be responsible to pay 
back the funds wired out to both MS. 
 and m77 
On review, the record does not demonstrate that the U.S. and foreign corporations were qualifying 
organizations at the time the petition was filed. The regulations and case law confirm that the key factors for 
establishing a qualifying relationship between the U.S. and foreign entities are ownership and control. Matter 
of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982); see also Matter of Church Scientology, 19 I&N Dec. 593 (BIA 1988)(in immigrant visa 
proceedings). In the context of this visa petition, ownership refers to the direct and 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 estabtishment, management, and operations of an entity. Matter 
, 
 of Church Scientology International 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. 
The regulations specifically allow the director torequest additional evidence in appropriate cases. See 8 
C.F.R. 9 214.2(1)(3)(viii). As ownership is a critlcal element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock.ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies, 
property, or other consideration furnished to thd 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. 
Page 16 
In making a determination of statutory eligibility, CIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. 8 103.2(b)(16)(ii). In this matter, the record of proceeding contains two immigrant 
petitions and two nonimmigrant petitions that have been filed on behalf of the beneficiary by the petitioner. 
A review of the evidence submitted in support of the four petitions reveals many inconsistencies not 
addressed by the director. Further, the nature of the inconsistencies noted, as addressed below, leads to a 
conclusion that the discrepancies represent a pattern of deliberate misrepresentation of facts, rather than mere 
errors or oversight on the part of the petitioner or third parties. 
The petitioner filed a nonimmigrant petition on behalf of the beneficiary on October 18, 2001 (WAC 02 028 
57529), requesting an amendment and extension of the beneficiary's L-1A status, as he had previously been 
employed with the petitioner's claimed affiliate in New Jersey. The petitioner stated that the foreign entity 
1 owns all 1,000 shares of the petitioner's stock. In support of the petition, 
the petitioner submitted a February 16,200 1 apre-incbrporation agreement" made by the board of directors of 
the foreign entity, which indicated that "1,000 shares of preferred stock shall be issued t- 
. . . in consideration of the payment to the corporation of $500;000 cash." The petitioner 
submitted its stock certificate number one, which indicates that the company is authorized to issue 1,000 
common shares at 5500 par value, and that 1,000 shares were issued toe. 
on September 6,200 1. 
The petitioner subsequently filed a Form 1-140, Immigrant Petition for Alien Worker, on the beneficiary's 
behalf on March 14, 2003 (WAC 03 128 54347). The petitioner indicated that it is a wholly-owned subsidiary 
o formerly known as As 
noted by the director in the notice of intent to revoke, the petitioner submitted its 2001 and 2002 corporate tax 
returns, which identified the beneficiary as the sole shareholder of the company, and the value of the 
company's stock as $15,000. The petitioner also sub'mitted the above-referenced "pre-incorporation 
agreement" indicating that the foreign entity would be investing $500,000 in exchange for ownership of the 
U.S. company's stock. In response to a request for evidence, the petitioner submitted: 
(1) The above-referenced wire transfer applications, dated March and April 2001; for funds 
transferred to the beneficiary's checking account, totaling $1 90,000; 
(2) A Notice of Transaction Pursuant to Corporations Code Section 25102(f) dated June 4, 
2003, indicating that the company issued common stock valued at $190,000, sold in 
exchange for money; 
(3) A March 7, 2001 "Action by Unanimous Written Consent of the Board of Directors" for 
the U.S. company, under which the company indicates that 1,000 shares of common 
stock valued at $190 per share were to be issued to - 
in exchange for $190,000 in cash. 
(4) The U.S. company's stock certificate number one issuing one thousand shares of stock to 
'8. on September 6, 2001. The stock certificate 
indicates on its face that the company is authonzed to issue 1,000 shares of common 
stock with a par value of $500 per share. 
(5) The U.S. company's stock transfer ledger indicated the issuance of 1,000 shares of 
common stock valued at $190 per share to  he 
Page 17 
ledger indicates that the shares had been issued to the foreign entity, and that the foreign 
entity had paid $190,000 for the shares as of March 7,2001. 
r 
Finally, the record of proceeding contains a second Form 1-140 immigrant petition filed on behalf of the 
beneficiary on May 3, 2004 (WAC 04 153 53452). The petitioner indicated that the foreign entity, = 
-1 (now (~ambodia) I initially invested $ 15,000 in the 
U.S. entity in exchange for 100 percent ownership of the U.S. and subsequently increased its capital 
investment by $100,000. The petitioner submitted the following documentation in support of the second 
immigrant petition: 
(1) 
 The U.S. company's canceled stock certificate number one, which indicates that 15 
shares of common stock were issued to Tea Hor Import Export Co. on July 1,2001; 
(2) 
 The U.S. company's stock certificate number two issuing fifteen shares of stock to 
The U.S. company's stock certificate number three issuing an additional 100 shares of 
stock to (Cambodia) on February 6,2003; 
(4) 
 The U.S. company's stock transfef ledger, identifying the above-referenced stock 
transactions and indicating that the total value paid for the issued stock is $1 15,000; 
(5) 
 Minutes of an organizational meeting of the petitioner, dated February 6, 2003, which 
addresses the foreign entity's name change and the increase in capital investment from 
$15,000 to $1 15,000. The meeting minutes indicate that the company received a wire 
transfer from the foreign entity on January 6, 2003 which was, to be used as 
"incremental capital investment"; 
(6) 
 Minutes of an organizational meeting of the petitioner, dated July 6, 2001, which 
address the issuance of 15 shares of (he company's stock to r- 
in exchange for $15,000 cash, +hich had been received in the form of a $20,000 
wire transfer from the foi-eign entity bn June 1 1,200 1. 
: (7) 
 Copies of two undated Notices of   ran sac ti on Pursuant to Corporations Code Section 
25102(f) indicating the issuance of stock valued at $15,000 and $100,000, in exchange 
for money, on July 6,200 1 and ~ebntar~ 6,2003, respectively. 
(8) 
 A. remittance application dated ~une 11, 2001 for $20,000 to be 
.transferred from y. to the beneficiary (for the petitioner). A 
notation on the form indicates that the funds are "for capital investment." 
(9) 
 A Board Resolution of the foreign entity, dated December 20, 2002, indicating the 
foreign entity's intent to increase the capital investment of the U.S. entity to $1 15,000. 
(10) A - remittance application dated January 6, 2003 for $100,000 to be 
transferred from 'to the beneficiary (for the petitioner). A 
notation on the form indicates that the funds are "for capital investment." 
Upon review of the totality of the record, the AAO finds no credible evidence of the actual ownership of the 
U.S. company. The petitioner has provided absolutely no evidence which would connect the U.S. petitioner 
Page 18 
2002, the petitioner subsequently submitted evidence that 1-1 changed its name 
to (Cambodia) T-1 in February 2003. 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 c\ompetent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Furthermore, the petitioner has not overcome the  director?^ determination that the petitioner failed to establish 
that the foreign entity paid for its interest in the U.S. entity. The wire transfer copies submitted in support of 
this petition.sho~.that two individuals transferred $190,000 to the beneficiary's personal checking account in 
March and April of 2001 for "goods payment.'.' The petitioner has not adequately documented that these 
monies originated from the foreign entity or that these funds were actually utilized to purchase an ownership 
interest in the U.S. company. ~he'~etitioner's submission of its March 7, 2001 board meeting minutes, which 
suggest that the foreign entity intended for 
 to pay $190,000 from their 
personal funds, is not persuasive. This document, notwithstanding the date that appears on it, appears to have 
been created to address the specific deficiency noted in the director's revocation decision regarding the source 
of the funds. Counsel provides no explanation as to why the March 7, 2001 board minutes would not have 
been provided in conjunction with the March 5, 2001 board minutes submitted in response to the director's 
notice of intent to revoke. The AAO finds it reasonable to assume, for the reasons discussed below, that the 
March 7, 2001 meeting minutes were produced subsequent to the director's March 11,. 2005 decision. The 
petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591 -92 (BIA 1988). 
Regardless, the petitioner has never submitted, in support of this or any other petition, any financial or bank 
records for either the foreign entity or, alternatively, for the two individuals who purportedly transferred the 
funds. The petitioner has made conflicting claims regarding the source of the funds and provided no 
corroborating documentary evidence to support either claim. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. , 
Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). 
As outlined above, a review of the record in its entirety suggests that the petitioner has been creating and re- 
creating key corporate documentation for the purposes of attempting to demonstrate compliance with the 
qualifying relationship requirements governing the nonimmigrant intracompany transferee and immigrant 
multinational executive or manager visa classifications. The record of proceeding as a whole contains a total 
of five different company resolutions and/or board meeting minutes, relating to the initial issuance of stock 
for the U.S. company, and indicating the value of the initial stock issuance as $500,000, $15,000, $1 15,000 or 
$190,000. The petitioner submitted evidence to show that the initial investment was received by the U.S. 
entity in March-April 2001, and evidence to show that it was received in June 2001. The petitioner has 
submitted evidence that it initially issued 1,000 shares of common stock valued at $500,000 in September 
200 1 ; evidence that it initially issued 15 shares of common stock value at $1 5,000 in July 200 1 ; and evidence 
that it initially issued 1,000 shares of common stock valued at $190,000 in March 2001. The petitioner has 
also submitted two different versions of its stocktransfer ledger and stock certificate number one. Finally, the 
petitioner has submitted tax returns showing that the beneficiary in fact owns the U.S. entity. 
Page 19 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer 
seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. US., 345 F.3d 683, 694 (9th Cir., 2003). 
However, anytime a petition includes numerous errors and discrepancies, and the petitioner fails to resolve 
those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will raise 
serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the petitionkr's 
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). In this case, the discrepancies and errors 
catalogued above lead the AAO to conclude that the evidence of the petitioner's and beneficiary's eligibility 
is not credible. 
Based on the evidence catalogued above, the petitioner has consistently submitted false corporate documents 
in an effort to establish that the U.S. company maintains a qualifying relationship with a foreign entity. 
Further, the AAO finds that the petitioner knowingly submitted documents containing false statements in an 
effort to mislead CIS and the AAO on an element material to the beneficiary's eligbility for a benefit sought 
under the immigration laws of the United States. See 18 U.S.C. $9 1001, 1546. The AAO hereby enters a 
finding of fraud. 
Additionally, the evidence is not credible and will not be given any weight in this proceeding. If CIS fails to 
believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. $ 
1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Moreover, the petitioner's submission of a fraudulent document brings into question the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. See Matter of Ho, 19 I&N Dec. 
582,591 (BIA 1988). 
The third and final issue address by the director is whethkr the petitioner has established that the U.S. 
company is doing business in the United States pursuant to 8 C.F.R. $ 214.2(1)(l)(ii)(G). 
The regulation at 8 C.F.R. 8 214.2(1)(l)(ii)(H) defines "doing business" as: 
The regular, systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
In this matter, the director has acknowledged that the petitioner is engaged in the purchase and export of 
automobiles. However, in his December 6, 2004 notice of intent to revoke the approval of the petition, the 
director stated: 
From the evidence of record, the USCIS concludes that the petitioner is merely acting as a 
purchasing agent in the United States for the foreign entity. This is supported by copies of 
invoices for freight shipped which show that the petitioner merely buys cars and trucks from 
the United States and has the merchandise shipped directly to the foreign company in Phnom 
Penh, Cambodia. 
Page 20 
In a January 5, 2005 response to the director's notice, counsel explained that the petitioner's business is not 
limited to merely purchasing and shipping goods for its parent company. Counsel provided evidence that the 
petitioner ships goods to other Cambodian companies in addition to the claimed parent company and evidence 
that the petitioner utilizes the services of forwarding companies to export the goods. Counsel emphasized the 
steady increase in sales achieved by the petitioner since the.establishment of the company. 
In his March 11, 2005 decision, the director acknowledged the petitioner's response, but stated "it is not clear 
how this information establishes that the petitioner is not an agent for the foreign entity. In fact it seems to 
support the USCIS contention that the petitionerlbeneficiary is solely in the business of locating vehicles for 
export to his foreign used car importing entity." 
On appeal, counsel emphasizes that the petitioner operates independently from its claimed parent company 
and regularly exports and sells cars to other Cambodian companies. Counsel asserts that the director's 
assumption that the U.S. company is just the purchasing agent for the foreign entity is incorrect. 
 . 
Upon review of the record, counsel's arguments are persuasive. The director's decision with respect to this 
issue will be withdrawn. . 
First, the director has overlooked evidence in the record that the petitioner is not acting solely on behalf of its 
claimed parent company and does in fact export goods to other foreign companies. Further, even if the 
petitioner did not export goods to other companies, the fact that a petitioner is engaged in purchasing and 
exporting goods to a related foreign entity, should not be the determinative factor in deciding whether the 
company is doing business. A representative office is not specifically excluded by the definition of "doing 
business," provided that it shows that it is engaged in the provision of goods or services, albeit on behalf of a 
related foreign entity. The director found that the petitioner has been engaged in purchasing products from 
United States suppliers in order to export them to the foreign entity. Contrary to the director's findings, the 
U.S. entity is engaged in the provision of services by facilitating the export of goods to the Cambodian 
market. Thus, under the business model adopted by the petitioner and the foreign company, the U.S. company 
would be deemed to be "doing business" pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(H). Accordingly, the 
director's decision with respect to this issue and this issue only is withdrawn. 
In response to the notice of intent to revoke, counsel for the petitioner asserted that CIS had approved a total 
of four nonimmigrant petitions filed on behalf of the beneficiary between 2000 and 2002, and contended that 
it would be unfair to revoke the approval of the petition. Counsel asserted that "hundreds of thousands of 
cases" similar to the instant petition were approved during the same time period. It must be emphasized that 
each nonimmigrant petition filing is a separate proceeding with a separate record and a separate burden of 
proof. See 8 C.F.R. 5 103.8(d). In making a determination of statutory eligibility, CIS is limited to the 
information contained in that individual record of proceeding. See 8 C.F.R. 
 103.2(b)(16)(ii). Despite any 
number of previously approved petitions, CIS does not have any authority to confer an immigration benefit 
when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the Act. 
While CIS approved three other petitions that had been previously filed on behalf of the beneficiary, the prior 
approvals do not preclude CIS from denying an extension of the original visa based on a reassessment of 
 . 
beneficiary's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 
Page 2 1 
2004). Nor does the approval of three petitions prevent the director from revoking the approval of a petition 
upon notice pursuant to 8 C.F.R. 5 214.2(1)(9)(iii)(B). 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. 593, 597 (Cornrn. 1988). 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 (6th 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
Based on the foregoing discussion, the present petition approval was properly revoked as the director clearly 
approved the petition in gross error, contrary to the eligibility requirements provided for in the statute and 
regulations. 
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. 5 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
FURTHER ORDER: The AAO finds that the petitioner knowingly submitted documents containing false 
statements in an effort to mislead CIS and the AAO on an element material to the beneficiary's eligibility for 
a benefit sought under the immigration laws of the United States.