dismissed L-1A Case: Bakery And Grocery

identieing &a d&d w 
prevent clearly ~n-d 
invasion of personal pri-y 
PUBLIC COPY 
U.S. Departmelit of Homeland Sec~rrity 
20 Massachusetts Ave N W., Rm 3000 
Wash~ngton, DC 20529 
i 
Citizenship 
and Immigration 
File: SRC 03 226 52022 Office: TEXAS SERVICE CENTER Date: 
OCT 202006 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(L) of the 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. 
m~nistrative Appeals Office 
SRC 03 226 52022 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitionei- Seeks to employ the beneficiary temporarily in the United States 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. 1 10 l(a)(15)(L). The petitioner is a corporation or 
bakery and grocery store. It claims that it is the affiliate 
Panamencana, located in San Salvador, El Salvador. The 
administrative manager for a three-year period. 
The director denied the petition, determining that the petitioner had failed to establish that the petitioner and 
the foreign entity have a qualifying relationship. Specifically, the director noted that the foreign entity "is a 
franchise which is independently owned and does not fit the Citizenship and Immigration and Naturalization 
Services definition of qualifying organization." 
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 contends that the director's 
conclusion that the foreign entity is a fi-anchise is unsubstantiated by the evidence of record. Counsel submits 
a brief and additional evidence which seeks to clarify the petitioner's relationship with the foreign entity. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 1 Ol(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. 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 (I)(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. 
(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 hirnlher to perform the intended 
SRC 03 226 52022 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue to be discussed in the present matter is whether the petitioner has established that a 
qualifying relationship exists with 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." Seegenerally section 101(a)(15)(L) of the Act; 8 C.F.R. 
5 214.2(1). 
The pertinent regulations at 8 C.F.R. 9 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) QualiJjiing 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; and, 
(3) Otherwise meets the requirements of section 10 1 (a)(I 5)(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. 
(L) Affiliate means 
SRC 03 226 52022 
Page 4 
(I) 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 the Form 1-129 petition, the petitioner indicated that the 
 is an affiliate of the 
foreign entity based on common ownership by an 
 The evidence of record 
indicates that operates or operated 
 sole proprietor in El 
Salvador. In addition, 
 evidence in the form of its articles of incorporation and stock 
certificates indicating that 
 owns 60 percent of the U.S. company's stock. 
The record also contains a letter from the foreign entity's accountant, who stated the following: 
I certifv that [the beneficiarvl is the General Manager and Sole Owner of the company: 
a legally constituted Salvadoran enterprlse 
and franchisee of TEXACO CARIBBEAN MC., a subs~diary of CI-IEVRONI'EXACO 
Company. 
The above-mentioned franchise is exercised since 1994 at TEXACO PANAMERICA and 
TEXACO SANTA EUGENIA in the city of San Salvador, El Salvador. 
The director denied the petition on March 22, 2004, concluding that the.petitioner had failed to establish the 
existence of a qualifying relationship between the United States and foreign entities. Specifically, the director 
stated: "Texaco Panamericana is a franchise which is independently owned and does not fit the Citizenship 
and Immigration Service definition of qualifying organization." 
On appeal, counsel for the petitioner asserts that the director erroneously alleged that the foreign entity is not 
a qualifying organization because it operates as a franchise. Counsel for the 
 etitioner contends that the 
in El Salvador." Counsel asserts that sinc dS a proprietorship 
business identified as Texaco Panamerican 
1s a major~ty s are o er of the petitioner, 
a qualifying relationship exists between the orelgn en I 
 e U.S. petitioner. Counsel further notes that 
the director improperly concluded that the foreign entity is a franchise, and submits a letter from Texaco 
Caribbean, Inc. ("Texaco"), as well as a partial translation of the first page of the contract between Jorge 
Cervantes and Texaco. 
The letter from Texaco's general manager, dated April 2, 2004, states tha 
two service stations that utilize the Texaco brand. The general manager refers to 
I 
and indicates that his company "has absolute freedom to manage and operate his s 
such as: determining prices, marketing, inventory control, contracting 
government regulations, etc." Finally, Texaco's general manager states that th 
 owns the land, 
buildings and equipment at one of his stations, and "[Texaco] pays him for 
SRC 03 226 52022 
Page 5 
Upon review of the record of proceeding the petitioner has not submitted sufficient evidence to establish that 
the foreign and U.S. entities have a qualifying relationship. 
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 (Comrn. 1982); see also Matter of Church 
Scientology International, 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 establishment, management, and operations of an entity. Matter of Church Scientology International, 19 
I&N Dec. at 595. 
In general, a "franchise" is a cooperative business operation based on a contractual agreement in which the 
franchisee undertakes to conduct a business or to sell a product or service in accordance with methods and 
procedures prescribed by the franchisor, and, in return, the franchisor undertakes to assist the franchisee 
through advertising, promotion, and other advisory services. A franchise ag~eement, like a license, typically 
requires that the franchisee comply with the franchisor's restrictions, without actual ownership and control of 
the franchised operation. See Matter of Schick, 13 I&N Dec. 647 (Reg. Comm. 1970) (finding that no 
qualifying relationship exists where the association between two companies was based on a license and 
royalty agreement that was subject to termination since the relationship was "purely contractual"). An 
association between a foreign and U.S. entity based on- a contractual fi-anchise agreement is usually 
insufficient to establish a qualifying relationship. Id. See also, 9 FAM 41.54 N7.1-5; 0.1. 214.2(1)(4)(iii)(D) 
(noting that associations between companies based on factors -such as ownership of a small amount of stock in 
another company, or licensing or franchising agreements, do not create affiliate relationships between the 
entities for L-1 purposes). 
By itself, the fact that a petitioner involves a franchi~e will not automatically disqualify the petitioner under 
section 101(a)(15)(L) of the Act. When reviewing a petition that involves a franchise, the director must 
carefully examine the record to determine how the franchise agreement affects the claimed qualifying 
relationship. As discussed, if a foreign company enters into a franchise, license, or contractual relationship 
with a U.S. company, that contractual relationship can be terminated and will not establish a qualifying 
relationship between the two entities. See Matter of Schick, 13 I&N Dec. at 649. However, if a foreign entity 
claims to be related to a U.S. company through common ownership and control, and that foreign entity is 
doing business as a franchise, the director must examine whether the U.S. and foreign entities possess a 
qualifying relationship through common ownership and management under section 101(a)(15)(L) of the Act. 
Nonetheless, it is critical in all cases that the petitioner fully disclose the terms of any franchise agreement, 
especially as the agreement relates to the transfer of ownership, voting of shares, distribution of profit, 
management and direction of the franchisee, or any other factor affecting actual control of the entity. Cf: 
Matter ofsiemens Medical Systems, Inc., 19 I&N Dec. at 364-65. 
The evidence in this matter shows that the same individual, 
 is the sole owner of the 
foreign entity and the majority owner of the petitioning 
 petitioner has submitted 
SRC 03 226 52022 
Page 6 
inconsistent and incomplete evidence regarding the nature of 
 relationship with Texaco 
which precludes a finding that there is a foreign qualifying 
The petitioner previously submitted a statement from the foreign entity's accountant, dated April 9, 2002, 
which states that the foreign entity is "a legally constituted Salvadorian enterprise and franchise of Texaco 
Caribbean Inc., a subsidiary of ChevronTexaco Company." The accountant further claimed that the franchise 
relationship had been in effect since 1994. On a 
 eal, however, counsel refutes the previously-claimed 
franchise relationship, and asserts that merely has a supply contract with Texaco. On appeal, 
a petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Furthermore, these 
conflicting statements cast doubt upon the petitioner's claims. 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 (Bh 1988). 
Whether a true franchise relationship exists between Texaco and 
the petitioner failed to submit a complete copy of the agreement between Texaco and 
 the AAO 
is precluded from determining the true nature of the 
effect on the qualifying relationship. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
158, 165 (Comrn. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
It is further noted that the petitioner has not submitted sufficient evidence to establish that the foreign sole 
proprietorship will continue to do business, as required at 8 C.F.R. tj 214.2(1)(l)(ii)(G)(2). Unlike a 
corporation, a sole proprietorship does not exist as an entity apart from the individual owner. Matter of 
United Investment Group, 19 I&N Dec. 248 (Comm. 1984). A sole proprietorship is a business in which one 
person owns all of the assets and operates the business in his or her personal capacity. Black's Law Dictionary 
1398 (7th Edition). USCIS records show that 
hh 
he owner and sole proprietor of the foreign 
business, has been residing in the U.S. in L-IA status, w ic raises the question of whether the foreign 
business will continue to do business abroad. 
Finally, the AAO notes that the majority of evidence submitted with respect to the foreign entity was in the 
original Spanish language and accompanied by no translations, or only partial, summary translations. Because 
the petitioner failed to submit certified translations of the documents, the AAO cannot determine whether the 
evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3). Accordingly, much of the evidence is 
not probative and will not be accorded any weight in this proceeding. 
Based on the foregoing discussion, the petitioner has failed to establish that the petitioner and the foreign 
entity are qualifying organizations. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, it is noted that the petitioner indicated under penalty of perjury in Part 4 
of the Form 1-129 petition that the beneficiary had never been denied the requested classification. This 
petition was filed on August 15, 2003. A review of U.S. Citizenship and Immigration Services (USCIS) 
SRC 03 226 52022 
Page 7 
records indicates that the beneficiary's previous L-I petition (SRC 02 1795 53429) was denied by the director 
on or about August 29, 2002. The regulations at 8 C.F.R. 9 214.2(1)(2)(i) state that "[flailure to make a full 
disclosure of previous petitions filed may result in a denial of the petition." As the petitioner indicated on the 
form that the beneficiary had never been denied the requested classification, and the petitioner failed to fully 
disclose the previously filed petitions, this petition will be denied as a matter of discretion. 
Another issue not addressed by the director is whether-the petitioner established that the beneficiary would be 
employed by the U.S. entity in a primarily managerial & executive capacity, as required by 8 C.F.R. 5 
2 14.2(1)(3)(ii). The petitioner has provided a vague job descridtion which-fails to convey any understanding 
of the duties to be performed by the beneficiary in her proposed role as administrative manager. The 
petitioner indicated that the beneficiary would manage the finances of three stores; hire, fire and supervise 
other employees (mcluding an operations manager); review activity reports and financial statements; and 
direct and coordinate the formulation of financial programs. The petitioner did not indicate who would 
perform non-qualifying duties associated with the financial function or otherwise describe the beneficiary's 
proposed subordinate staff. 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 her 
dally routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner indicated on Form 1-129 that the U.S. company had 16 employees as of the date of filing, and 
claimed to operate three retail stores. The petitioner submitted an organizational chart which shows the 
beneficiary's proposed position of administrative manager overseeing an accountant and an operations 
manager, who in turn supervises the petitioner's three stores and their staff, including cashiers, bakers and 
drivers. The organizational chart did not identify any workers by name and the record is devoid of any further 
information regarding the company's structure or the duties assigned to each staff member. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofjci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner's IRS Form 941, Employer's Quarterly Federal Tax Return, for the third quarter of 2003, show 
that the company employed 1.5 workers, but paid salaries of only $14,3 18.6 1 during the quarter in which the 
petition was filed, $7,500 of which was paid to the company's president. Considering that the remaining 14 
members of the petitioner's workforce earned combined wages of less than $8,000 during the three month- 
period, the company does not appear to have any full-time workers, although, at a minimum, it is reasonable 
to expect that the company would require the services of a full-time manager for each of its stores. Based on 
the minimal evidence submitted regarding the beneficiary's proposed duties and the petitioner's 
organizational structure, it cannot be concluded that the beneficiary would be employed in a primarily 
managerial or executive capacity in the United States. The petitioner has neither provided a detailed 
description of the beneficiary's proposed duties, nor presented evidence of a sufficient staff who would 
relieve the beneficiary fiom performing non-qualifying operational or first-line supervisory tasks associated 
with the petitioner's day-to-day business operations. For this additional reason, the petition cannot be 
approved. 
SRC 03 226 52022 
Page 8 
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), affd. 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). 
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. ij 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.