dismissed L-1A Case: Automotive Sales

r
PUBLIC COpy
identifYingdata deletedto
prevent clearly unwarranted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: EAC 0619351560 Office: VERMONT SERVICE CENTER Date: SEP 052007
INRE:
Petition:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) ofthe Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
R~~f
Administrative Appeals Office
www.uscis.gov
EAC 0619351560
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager as an
L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner, a Florida corporation, operates a used
car dealership, and states that it intends to operate gas stations and convenience stores. It claims to be an
affiliate of Coruh Petrol San. ve Ticaret Ltd., located in Bursa, Turkey. The beneficiary was initially granted
a one-year period of stay in L-l A status to open a new office in the United States and the petitioner now seeks
to extend the beneficiary's stay.
The director denied the petition concluding that the petitioner did not establish: (l) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) that the U.S. company
maintains a qualifying relationship with the foreign entity.
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
decision and asserts that the petitioner has grown to sufficient size to support the beneficiary in a primarily
managerial or executive capacity. Counsel further states that not all documentation relevant to the claimed
qualifying relationship was submitted prior to the adjudication of the petition. Counsel submits a brief and
additional evidence in support of the appeal.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
EAC 0619351560
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her 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(l)(14)(ii) also provides that a visa petition, which involved the opening ofa
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 m
paragraph (1)(I)(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 managerial 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 petitioner established that the beneficiary will be employed
by the United States entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1l01(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
EAC 0619351560
Page 4
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A fIrst line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The nonimmigrant petition was fIled on June 15, 2006. The petitioner indicated on Form 1-129 that the
beneficiary would continue to serve as general manager of the U.S. company and stated that it has six
employees. In support of the petition, the petitioner provided a copy of the beneficiary's employment
agreement with the U.S. company, dated April 15, 2005, which described his position as follows:
The primary objective of the [general manager] is to control day to day operation and
activities of the Company in compliance with company policies, procedures and processes
and maximize the return on the owner's investment and periodically report to the Board of
Directors.
A. LEADERSHIP
• Establishing and communicating to the employees, goals for the company .
• Creating a work environment that promotes teamwork and cooperation .
• Setting the standards for integrity, ethics, and job performance.
B. PERSONNEL
• Directing the activities of the department managers; assisting them in establishing their
departmental objectives for sales, profits, capital and staffing; and, continuously
monitoring and evaluating their progress toward achieving these goals.
• Developing compensation plans that will encourage performance, reward success, and
maximize the profits of the company.
• Staffing the Company with individuals who are competent, trustworthy, adequately
trained for their position, and motivated to help the company achieve its goals and
objectives.
EAC 0619351560
PageS
• Assuring that the company is in compliance with local, state, and federal, wage and hour
laws, employment laws....
C. FINANCIAL MANAGEMENT
• Providing the capital and facilities necessary for the business; to achieve its sales
potential; to fulfill its obligations under the terms of its Sales and Service Agreements;
and, to deliver a superior level of service to its customers.
• Being accountable for the assets of the company, and implementing and monitoring a
system of internal controls and operating procedures....
• Directing the accounting staff and assuring that it is competent, trained, and has systems
in place that produce, in a timely and accurate manner, records and reports that reflect
the company's true financial position.
• Developing annual business plans and expense budgets, establishing monthly sales and
profit objectives ....
• Assuring that the company is at all times capable of fulfilling its obligations to all
lenders, creditors, vendors, and taxing authorities.
D. BUSINESS DEVELOPMENT
• Continuously; prospecting for new customers, creating new business and profit
opportunities for the company, and maintaining a leadership position with respect to the
use of technology in the company's sales and marketing initiatives.
• Developing advertising and marketing plans and strategies designed to achieve
acceptable levels of sales and service market penetration, and to attract new customers to
the business.
• Providing the direction, motivation, and training necessary to assure that the employees
of the company are consistently offering superior levels of service to its customers and
maintaining all standards necessary to being recognized for superior customer
sAtesfaction.
E. BUSINESS RELATIONSHIP
• Assuring that the Company and its employees conduct their affairs in a manner
conducive to good citizenship with the community and operate with the laws and
regulations of all local, state and federal jurisdictions.
• Developing and maintaining relationships and alliances with manufacturers, industry
associations, suppliers and vendors that promote the goodwill of the company....
The petitioner submitted an organizational chart identifying the beneficiary's position as general manager. The
chart indicates that the beneficiary supervises: an office manager, ~a finance department
employee, a car dealership store manager, ~car dealership sales manager,
1 According to USCIS records,_is the beneficiary of an approved 1-129nonimmigrant petition filed
by Cars and Credit, Inc., granting him authorization to work for that company in E-2 nonimmigrant status
from August 19, 2004 until August 18, 2006. (SRC 04 220 51613).
EAC 0619351560
Page 6
; and a car dealership sales representative, The chart shows that the
positions of mechanic, detailer, and import and export department employee were vacant. The chart also
identifies a "gas station and convenience store" which is not staffed. There is no indication in the record that
the petitioner actually owns, leases or operates a gas station and convenience store, so the AAO assumes that
this is a proposed business venture.
The petitioner submitted a copy of its IRS Form 1120, U.S. Corporation Income Tax Return, for 2005, which
indicates that the company paid no salaries and wages, compensation to officers, labor costs, or payments to
contractors. The petitioner also submitted detailed monthly income statements, detailed general ledger
statements, and journal entry and check register records for the first four months of 2006. None of the
statements reflect that the petitioner paid salaries or wages during this time period, and no payroll taxes are
indicated under expenses. The income statements indicate that the petitioner paid a total of $18,814 to "sub­
contractors." However, the employees listed on the organizational chart, with the exception of the
beneficiary, did not receive any payments from the U.S. company as employees or subcontractors during the
months of January through April 2006.
The director issued a request for evidence on June 26, 2006, instructing the petitioner to submit the following
evidence to establish that the beneficiary will be employed in a managerial or executive capacity: (1) a
complete position description for all employees in the United States, including the beneficiary, with a
breakdown detailing the number of hours devoted to each of the employee's job duties on a weekly basis; (2)
copies of IRS Forms W-2, Wage and Tax Statement, issued in 2005; (3) a copy of the petitioner's payroll
records for the months of May and June 2006; (4) a copy of the petitioner's IRS Form 941, Employer's
Quarterly Federal Tax Return, for the first quarter of 2006; and, (5) evidence documenting the number of
contractors utilized by the petitioning company and the duties they perform, if applicable.
In a response dated September 18,2006, the petitioner submitted copies of its Forms 941, as well as copies of
its Florida Forms UCT-6, Employer's Quarterly Report, for the first two quarters of 2006. The AAO notes that
none of the documents have been signed or dated. The quarterly reports and tax returns indicate that the
company has consistently employed the beneficiary and three other individuals throughout the first six
months of 2006, paying $15,250 in wages during the first quarter and $28,450 in the second quarter. The
employees listed include The petitioner submitted its
income statements and detailed general ledger for May and June 2006, which, unlike similar documents
submitted for January through April 2006, include salaries and wages, officer salaries, and employment­
related taxes among the company's expenses.
The petitioner submitted a •.. nal chart which shows that the beneficiary supervises j
_ office manager, as "finance department,"_ as store manager,_
~s sales manager, 3i as sales representative, and _as "detail department."
Notwithstanding the petitioner's new evidence that the petitioner employed four staff throughout 2006, the
AAO notes that neither an. were listed in the petitioner's general ledger or
journal entry and check register during the first four months of 2006, while received a single
EAC 06 19351560
Page 7
payment of $2,935 as a subcontractor in March 2006? These detailed financial records ostensibly reflect all
monies paid out by the U.S. company dUring each month. It is incumbent upon the petitioner to resolve any
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
The petitioner provided a brief job description for each employee as follows:
General Manager - Planning, Directing and coordinating the operations of the Company (Car
dealership). His duties are to Formulate Policies, Managing daily operations, planning and
use of materials and human resources. Create new finances and delegate jobs, Hire and fire
employees. Communicate and report to the overseas Main offices.
Store Manager (Consultant) - Consulting support to the business. Advice [sic] and train sales
staff and audits and reports monthly activities to general manager. Part time and Outsource
services.
Sales Manager - Manage and lead the Sales and Detail department staff, responsible of the
sales and the performance of the sales staff. Create sales techniques to increase the sales and
Responsible of inventory and the new auction purchases reports to General Manager and
store consultant.
Sales Representatives - Perform full sales actions as meet and qualify the customers and and
[sic] found the best matching inventory and collect necessary applications and other steps in
order to complete the sales. Transfer customers to Sales Manager.
Detail Dept - Work and coordinate with the sales representatives to prepare the inventory to
the sales in the form of cleaning and testing. Collect customers request and perform on site to
make the product ready for delivery.
Office Manager - Work under General Manager and perform daily paperwork and
accounting. Main responsibility to control account receivables and make payments to
payables. Make title work with DMV office. Reports daily to General Manager
Finance Manager - Work and coordinate with Office Manager Weekly collect possible pre
qualified finance able customer's files and find lenders to qualify and fund the customer files
and collect funds from the lenders. Part time and outsource services.
2 USCIS records indicate that is the beneficiary of a nonimmigrant petition granting him
authorization to work for Homelife International Mortgage Co., Inc. in H-IB classification from April 21,
2005 until November 15,2007 (SRC 05 06151361).
EAC 0619351560
Page 8
The petitioner did not respond to the director's request for evidence specifically documenting any contract
employees working for the U.S. company, nor did it provide the detailed breakdown of the beneficiary's and
other claimed employees' duties on a weekly basis as requested.
The director denied the petition on October 6, 2006, concluding that the petitioner failed to establish that the
beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
The director observed that the petitioner's description of the beneficiary's duties was overly vague, and that
the petitioner had not established how the company has grown sufficiently to support a truly managerial or
executive position. The director noted that the petitioner had not provided evidence of wages paid to the
office manager, finance manager, or store manager identified on the organizational chart and employee list.
The director found that of the beneficiary's three claimed subordinate employees who appeared to receive
wages, none of the employees could be considered a professional, manager, or supervisor. The director
concluded that the beneficiary is supervising at most four individuals who do not relieve him from performing
the duties associated with the daily operation of the office.
On appeal, counsel for the petitioner states the following:
[The beneficiary] is relying at this time on independent contractors. The salesmen on his staff
tend to work on commission and are paid as independent contractors. See Exhibit 6, a letter
from Premier Accounting & Tax, the accounting firm for [the petitioner].
[The beneficiary] is not supervising every aspect of the business. He is focused on the overall
management and direction of the company. He is clearly the chief executive officer, as
established by corporate documents.
The company is in a growing stage. It has advanced significantly since 2005. He should be
viewed as purely a manager. He is responsible for keeping the momentum going, hiring,
firing, advertising strategy, and investment strategy.
The petitioner submits a letter dated November 28, 2006 from its accountant, who states:
[T]his business is a car dealership and all the workers are on a commission basis for selling
new and used automobiles. For IRS purposes, they are considered to be "independent
contractors." Therefore, to the best of my knowledge and belief, I want to state that for the
year 2006 the amount of commissions paid will be in excess of $100,000.00 and all the sub­
contractors will be issued a Form 1099 by January 31, 2007.
The petitioner also re-submits a new version of its balance sheet, income statement, detail general ledger,
journal entry and check register for the month ended June 30, 2006. Unlike the earlier version of the
company's financial records for the same month, the newly submitted document shows that the petitioner had
no federal payroll taxes or unemployment taxes due and paid no salaries or wages. The names of the
petitioner's three claimed employees, do not appear in the
new general ledger report for June 2006. No explanation is provided, although it appears that the petitioner is
EAC 0619351560
Page 9
conceding that it does not have any payroll employees, notwithstanding its earlier submission of
documentation to substantiate its claim that it employed three workers at the time of filing.
Upon review, counsel's assertions are not persuasive. The petitioner has not established that the beneficiary
will be employed in a primarily managerial or executive capacity under the extended petition.
As a preliminary matter, the AAO will address the evidence submitted in support of the petitioner's claim that
it has grown to the point where it can support the beneficiary in a managerial or executive position. The
regulation at 8 C.F.R. § 214.2(l)(14)(ii)(D) requires the petitioner to submit 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.
The petitioner has not provided credible documentation that it has employed any of the individuals identified
on either organizational chart submitted in support of the petition. Particularly damaging to the petitioner's
credibility is submission of quarterly wage reports and federal tax returns that clearly contradict the
petitioner's detailed financial records. The AAO is not convinced that the submitted quarterly reports were
actually filed with the IRS and with the Florida Department of Revenue. If the petitioner did in fact employ
the three purported employees throughout the first half of 2006, it is unclear why they did not appear on the
initial organizational chart and the general ledger statements for the same periods covered by the quarterly
reports. It is also unclear why the petitioner now claims on appeal that it only utilizes contractors to perform
sales, when it claimed in September 2006 to have three payroll employees, or why the petitioner would have
two separate balance sheets, income statements and general ledger reports for the same month, one reflecting
payments to employees and one indicating no such payments. As noted above, two of the petitioner's claimed
employees are only authorized to work for other, unrelated United States employers. The petitioner also
claims to employ the beneficiary's spouse as its office manager, but she has indicated on her Form 1-539
application that she has not worked in the United States in L-2 status, and she has not submitted an
application for employment authorization.
The "preponderance of the evidence" standard requires that the evidence demonstrate that the applicant's
claim is "probably true," where the determination of "truth" is made based on the factual circumstances of
each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence,
Matter ofE-M- also stated that n[t]ruth is to be determined not by the quantity of evidence alone but by its
quality.n Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard,
u.s. Citizenship and Immigration Services (USCIS) must examine each piece of evidence for relevance,
probative value, and credibility, both individually and within the context of the totality of the evidence, to
determine whether the fact to be proven is probably true.
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. U.S., 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 USCIS 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 petitioner's
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa
EAC 0619351560
Page 10
petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988). In this case, the discrepancies catalogued above
lead the AAO to conclude that the evidence of the beneficiary's eligibility is not credible.
Although some of these discrepancies were noted in the director's decision, particularly, the petitioner's failure
to submit evidence of payments to its office manager, store manager and finance manager, neither counsel nor
the petitioner addressed the director's comments on appeal. Rather, the petitioner's counsel seems to retract
the petitioner's previous claim that it has three payroll employees, and proceeds to rely on vague
characterizations to establish that the beneficiary will be employed in a qualifying managerial or executive
capacity. Counsel's statement that the beneficiary "is focused on the overall management and direction of the
company," "is clearly the chief executive officer," and "should be viewed as purely a manager," are not
persuasive. The unsupported statements of counsel on appeal or in a motion are not evidence and thus are not
entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of
Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. Id.
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 his 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). Here, while the beneficiary may exercise discretion over the
business as its shareholder, general manager, and sole employee, the petitioner has not established that his
actual duties will be primarily managerial or executive in nature.
As noted by the director, the petitioner's description of the beneficiary's duties was too general to convey any
understanding of what he does on a day-to-day basis.. The position description submitted with the initial
petition was prepared in April 2005 before the initial new office petition was filed and represented a generic
overview of his anticipated responsibilities months before the petitioner even began to do business. The
regulations at 8 C.F.R. § 214.2(1)(14)(ii)(C)require a statement of the actual duties the beneficiary performed
during the previous year and the duties he will perform under the extended petition. Moreover, the director
advised the petitioner that it had not adequately described the beneficiary's proposed duties and requested a
detailed position description explaining how he allocates his time on a weekly basis. The petitioner did not
respond to this request. 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)(14).
The petitioner's statements that the beneficiary will be "coordinating the operations," formulating policies,
"managing daily operations," and delegating jobs are inadequate to establish his eligibility as a manager or
executive. 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.
EAC 0619351560
Page 11
The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
As the record of proceeding contains no detailed description of the beneficiary's duties, and no credible
evidence of the petitioner's staffing levels, the petitioner has not met its burden of proof. Based on the
evidence presented, it is reasonable to conclude that the beneficiary was in fact the sole full-time employee of
the petitioning company after one year of operations.
While it appears the petitioner may have employed sub-contractors, there is insufficient evidence to establish
that they relieved the beneficiary from primarily operating the car dealership. The petitioner's records show
payments to sub-contractors, in the amount of $22,078 as of June 30, 2006. However, the director specifically
requested that the petitioner submit evidence to document the number of contractors the company utilizes and
the duties they perform. The petitioner did not address this request. The purpose of the request for evidence is
to elicit further information that clarifies whether eligibility for the benefit sought has been established, as of
the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). 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)(14).
The AAO will not speculate as to what duties the contractors might have performed. The petitioner's
accountant suggests that all of the contractors utilized are sales employees who work on commission. The
petitioner has not documented the existence of any employees to perform the operational, administration and
financial operations of the company, since it has attributed these tasks to individuals whose employment
cannot be verified.
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a factor
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into
account the reasonable needs of the organization, in light of the overall purpose and stage of development of
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing
levels of the petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C)
allows the "new office" operation one year within the date of approval of the petition to support an executive
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
Although the petitioner claims that the U.S. company will be staffed in the future, the petitioner must establish
eligibility at the time of filing the nonimmigrant 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 I&N Dec.
45,49 (Comm. 1971).
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in a
managerial or executive capacity under the extended petition. For this reason, the appeal will be dismissed.
EAC 0619351560
Page 12
The second issue in this proceeding is whether the petitioner established that the U.S. company has a qualifying
relationship with the foreign entity. To establish a "qualifying relationship" under the Act and the regulations,
the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same
employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See
generally section 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1).
The pertinent regulations at 8 C.F.R. § 214.2(l)(1)(ii) define the term "qualifying organization" and related
terms as follows:
(G) Qualifying organization means a United States or foreign firm, corporation, or other
legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the definitions of a
parent, branch, affiliate or subsidiary specified in paragraph (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;
(L) Affiliate means
* *- *
(1) One of two subsidiaries both of which are owned and controlled by the
same parent or individual, or
(2) One of two legal entities owned and controlled by the same group of
individuals, each individual owning and controlling approximately the
same share or proportion of each entity.
On Form 1-129, the petitioner described the ownership of the U.S. company and the foreign entity as follows:
Vo50 KOD INVESTMEST, INC. [the petitioner]
Yo50 CORUH PETROL SAN VE TIC LTD.
The petitioner submitted a letter from the foreign entity's accountant, l' dated February 15,
2005, who stated that the beneficiary is "a major shareholder" and "40% majority shareholder" of the foreign
entity. The petitioner aldo provided a translated copy of an excerpt from a "Republic of Turkey Commercial
Registration Bulletin" dated July 3, 2003, which indicates that the ownership of the foreign entity changed in
June 2003, resulting in the following ownership of the company's 20 issued shares:
•
EAC 0619351560
Page 13
In addition, the petitioner submitted a copy of the U.S. entity's stock certificate number 0, indicating that 750
shares of the company's 1,500 authorized shares were issued to the beneficiary on May 10,2005.
In the request for evidence issued on June 26, 2006, the director requested documentation of the ownership
and control of the overseas entity. The director noted that the evidence submitted should include, but is not
limited to, copies of stock certificates, stock ledgers, and articles of incorporation.
In response the petitioner submitted a document titled "Trade Title" for the foreign entity which again states
that the ownership of the company changed in June 2003 as follows:
The owner and holder of 18 (eighteen) shares ~s sold 12 (twelve) shares
totaliing of 12.000.0oo.000.TL to and the remaining 6 (six) of them totaling of
6.000.0oo.000.TL to The other partner and owner of 2 (two) shares,
has decided to sell his 2 (two) shares totaling of 2.000.000.000 TL to_
with the registered date of 06-16-2003.
The director denied the petition on October 6, 2006, concluding that the petitioner had failed to establish that
the U.S. company and the foreign entity have a qualifying relationship. The director acknowledged that the
beneficiary appears to own a 50 percent interest in the U.S. company, but noted that owns a
majority interest in the foreign entity, with the beneficiary holding less than 50 percent of that company's
stock. The director concluded that the two companies do not have sufficient common ownership and control
to establish an affiliate relationship.
On appeal, counsel for the petitioner concedes that the evidence submitted in support of the petition and in
response to the director's request for evidence shows that the beneficiary owns a 40 percent interest in the
foreign entity, while owns the remaining 60 percent of the shares. Counsel asserts that the
ownership of the foreign entity has in fact changed since June 2003 and explains as follows:
Attached as Exhibit 1 is a Turkish Trade Register Journal notice dated August 23, 2004. This
document, with translation into English, confirms that transferred 8 shares (8
million Turkish Lira) to The transfer of these shares put [the
beneficiary] in control of the Turkish company. As of August 16,2004, [the beneficiary] had
control of 80% of the Turkish company ....
Upon review, the petitioner has not established that the petitioner and the foreign entity maintain a qualifying
relationship.
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
EAC 0619351560
Page 14
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18 I&N Dec. 289
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of
possession of the assets of an entity with full power and authority to control; control means the direct or
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter
ofChurch Scientology International, 19 I&N Dec. at 595.
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all
relevant documents, CIS is unable to determine the elements of ownership and control.
The evidence submitted by the petitioner in support of the initial petition and in response to the director's
request for evidence suggested that the beneficiary owned 50 percent of the petitioning company and 40
percent of the foreign entity. The director's conclusion that the two companies did not have sufficient
ownership and control to qualify as affiliates was appropriate in light of the evidence submitted, as the two
companies were not shown to be subsidiaries owned and controlled by the same company or individual, nor
were they owned and controlled by the same group of individuals.
While the evidence submitted on appeal appears to show that the beneficiary owns an 80 percent interest in
the foreign entity as of August 2004, the petitioner has not explained its earlier omission of documentation
relevant to the ownership of the foreign entity, nor explained the several discrepancies in the record with
respect to the petitioner's relationship with the Turkish company.
For example, the petitioner initially stated on the L Classification Supplement to Form 1-129 that the
beneficiary and his spouse are the owners of the foreign entity, with each individual owning a 50 percent
interest. This claim is contrary to all of the documentary evidence submitted, none of which indicates that the
beneficiary's spouse is an owner of the foreign entity or that the beneficiary owns a 50 percent interest in the
foreign entity.
Furthermore, a letter from the foreign entity's accountant, dated February 15,2005, and submitted in support
of the initial petition, indicates that the beneficiary owns 40 percent of the foreign entity. As this letter post­
dates the evidence submitted on appeal showing that the beneficiary owns 80 percent of the foreign entity,
and the petitioner has not provided an explanation for this discrepancy, the AAO cannot rule out the
possibility that the ownership of the foreign entity changed yet again subsequent to August 2004. In fact, the
organizational chart submitted in response to the director's request for evidence identifies the foreign entity's
board of directors as the beneficiary and " who was identified as the other
shareholder and director as of August 2004.
EAC 0619351560
Page 15
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner
submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19I&N at 591-92 (BIA
1988).
Finally, the AAO notes that the petitioner had two previous opportunities to submit the evidence that is now
offered for the first time on appeal. Moreover, the director requested copies of stock certificates, stock ledgers
and articles of incorporation for the foreign entity in an attempt to determine its current ownership, and these
items were never provided. The regulation states that the petitioner shall submit additional evidence as the
director, in his or her discretion, may deem necessary. The purpose of the request for evidence is to elicit
further information that clarifies whether eligibility for the benefit sought has been established, as of the time
the petition is filed. See 8 C.F.R. §§ 103.2(bX8) and (12). The failure to submit requested evidence that
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on
appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988);see also Matter ofObaigbena, 19 I&N Dec. 533
(BIA 1988).
Based on the foregoing discussion and unresolved discrepancies in the record, the petitioner has not
established that it maintains a qualifying relationship with the foreign entity. For this additional reason, the
appeal will be dismissed.
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.
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