dismissed L-1A Case: Automotive Restoration

invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
FILE: 
 SRC 04 234 5 1 188 
 Office: TEXAS SERVICE CENTER 
 Date: JUL 2 1 2006 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals 0bce 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. 
I 
 Administrative Appeals Office 
SRC 04 234 5 1 188 
Page 2 
DISCUSSION: The Director, Texas Seririce Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily 
dismissed. 
Ferrari's, racing and Italian cars." The U.S. entity petitioned Citizenship and Immigration Services (CIS) 
to. classify the beneficiary as a nonimmigrant intracompany transferee (L-1A) pursuant to section 
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L), as an 
executive or manager for three years. The petitioner seeks to employ the beneficiary's services as the 
U.S. entity's general manager. 
The director denied the petition concluding that the record contains insufficient evidenck to demonstrate 
that the beneficiary will be employed in a managerial or executive capacity. 
On appeal, counsel for petitioner states on the Form 1-290B: 
Due to the sensitive work [the petitioner] is involved in; the restoration of very expensive 
cars, there is very little margin for error. Therefore, in need of having someone like [the 
beneficiary] who has worked with the organization in Argentina and its partners in Italy 
and has the experience to deal with employees and very lucrative clients. [sic] [The 
petitioner] also needs the direct management from someone like [the beneficiary] to 
establish goals and policies and direct the workers in the organization. 
the industry in the past years has been the laxing economy, for 
the petitioner] is loolung to hire 3 or more employees, but 
lstofing and working with such elite clientele the officers 
. 
 did not hire the employees fast enough to send the quarterly tax return. 
The petitioner did not submit a brief or additional evidence in support of the appeal. The appeal fails to 
adequately address the director's conclusions. 
To establish eligibility under section 101 (a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States 
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate 
thereof in a managerial, executive, or specialized knowledge capacity. 
Upon review, AAO concurs with the d~rector's decision and affirms the denial of the petition. Counsel's 
general objections to the denial of the petition, without specifically identifying any errors on the part of 
the director or providing new evidence to support that the beneficiary is in a position of managerial or 
executive capacity, are simply insufficient to overcome the well-founded and logical conclusions the 
director reached based on the evidence submitted by the petitioner. Going on record without supporting 
SRC 04 234 51188 
Page 3 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
~atter 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)). The assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I & N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I & N Dec. 503, 506 (BIA 
1980). 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states 
that the beneficiary's duties include "directing and coordinating activities of the organization to obtain 
optimum efficiency and maximize profits," "plan, develop and implement through administrative 
personnel, organizational policies and goals," "coordinate activities of department," and "exercise wide 
latitude in discretionary decision-making and work autonomously in making key decisions for the 
company." The petitioner did not, however, define the beneficiary's goals and policies, or clarify the role 
of the departments that the beneficiary will supervise. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, ill08 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather 
the AAO must determine based on the totality of the record whether the description of the beneficiary's 
duties represents a credible account of the beneficiary's role within the organizational hierarchy. As doted 
by the director, the record does not demonstrate that the petitioner has any employees to perfonh the 
routine non-executive and non-managerial functions of the business. 
Accordingly, the director reasonable concluded that the beneficiary as the petitioner's only employee will 
be performing the day-to-day operations and directly be providing the services of the business rather than 
directing such activities through subordinate employees. An employee who "primarily" performs the 
tasks necessary to produce a product or provide services is not considered to be "pr~marily"'employe~ in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring th& one 
"primarily" perform the enumerated managerial or -executive duties); see also Matter of church 
Scientology International 19 I & N Dec. 593,604 (Comm. 1988). 
The petitioner indicated on the Form 1-129 that the company has three empldyees. In addition, the 
petitioner submitted in its response to the director's request for evidence an organizational chart of the 
United States entity which indicated that the U.S. entity has five employees in addition to the beneficiary. 
Furthermore, the employees listed in the organizational chart for the U.S. entity are identical to the 
employees listed in the organizational chart for the parent company abroad. However, the petitioner's the 
quarterly tax return for the second quarter of 2004 indicates that the company currently has no employees. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). 
SRC 04 234 51188 
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I 
Counsel indicates that the petitioner intends to hire additional employees in the future. The petitioner 
must establish eligibility at the time of filing the nonimrnigrant visa petition. A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. '1 978); 
Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Beyond the decision of the director, the petitioner has not submitted sufficient evidence to establish the 
existence of a qualifylng relationship between the United States entity and the foreign entity pursuant to 8 
 - 
C.F.R. 9 214.2(1)(l)(ii)(G). As general evidence of a petitioner's claimed qualifylng relationship, stock 
certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership and 
control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate 
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage 
ownership and its effect on corporate control. Additionally, a petitioning company must disclose all 
agreements relating to the voting of shares, the distribution of profit, the management and direction of the 
subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all relevant documents, CIS is 
unable to determine the elements of ownership and control. 
In response to the director's request for evidence of the o 
 1 of the U.S. entity, the 
petitioner submitted a stock certificate, number two, stating th 
 the owner of 5 1% of the 
shares. However, the same stock certificate was initially not originally 
include information regarding the e petitioner 
subsidiary o 
This information appears to have been handwritten on the stock certificate subsequent .to 
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 poiking to where the tmth lies. Matter 
of Ho, 19 I&N Dec. 582 at 591-92. Doubt cast on any aspect of the petitioner's proof may, of course lead 
to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Id at 59 1. For this additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied 
by the AAO even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afyd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting 
that the AAO reviews appeals on a de novo basis). 
Regulations at 8 C.F.R. 9 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
SRC 04 234 5 1 188 
Page 5 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Inasmuch as counsel has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not 
sustained that burden. Therefore, the appeal will be summarily dismissed. 
ORDER: 
 The appeal is summarily dismissed.