dismissed L-1A Case: Building Materials Export

identifyingdatadeletedto
preventclearlyunw~ted
invasionofpersonalpnvacy
PUBLICcopy
U:S. 'Department of Homeland Security
20 Mass. Ave, N.W" Rm: A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
. Services
f)~,
MAR 0 7 'lJlJl
"
. File: WAC 05 16854155 Office: CALIFORNIA SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to SectioJl101(a)(15)(L)of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(15)'(L), .
!
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originallydecided your case. Any further inquiry must be made to that office.
R~~~~C;
Administrative Appeals Office
www.uscis.gov
WAC0516854155
Page 2
DISCUSSION: The Director , California Service .Center, denied the petition for a nonimmigrant visa. The
matter is now before the 'Administrative Appeals 'Office (MO) on appeal. The AAO will dismiss the appeal.
The petitioner seeks to employ the beneficiary temporari!y in the United States as an L-IA nonimmigrant
intracompany transferee pursuantto section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S,c. § 1101(a)(f5)(L). The U .S. petitioner, a corporation organized in the State of California that is
engaged ,in the export of building materials , seeks to employ the beneficiary as its vice president and
operations director. The petitioner claims that it is the subsidiary of ••••••••••••••••
The director denied the petition concluding that the petitioner did not establish that (1) sufficient physical
premises had been secured to house the new office ; (2) the beneficiary had been employed abroad in ,a
primarily managerial or executive capacity; or (3) a qualifying relationship existed between the petitioner and
the foreign entity. ' , .'
The petitioner subsequently filed an appeal. The 'director declined to treat the appeal as a ~btion and
forwarded the appeal to the AAO for review. ' On appeal, counsel for the petitioner asserts that the d irector
ignored much of the e vidence submitted in support of the petition , andargues that contrary to ' the director 's. '
findings, the petitioner is in fact .qualified for the b~nefit sought. In support of this assertion , counsel submits
a detailed brief.
" .
To establish eligibility for the L-l nonimmigrant visa classification , the petitioner must meet the criteria
outlined in section lOl(a)(15)(L) of the Act. Specifically , a qualifying organization must have employed the
beneficiary in a qualify ing managerial or executive capacity, or in a specialized knowledge capacity , for one
'continuous year with~n 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 ina 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 I-129 shall be
accompanied by:
(i) E~idence that the petitioner and the'organization which employed or will employ the ,
alien are qualifying organizations as defined inparagraph (l){l)(ii)(G) ofthis section. '
(ii) Evidence thatthe alien will be employed in an e~ecutive , managerial, or specialized
k;nowledgecapacity, including a detailed description of the services to be performed.
, ,
{iii) Evidence that the al~en ' 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.
WAC as 16854155
Page 3 ,
(iv) ' Evidence that the.alien's prior year ~f 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 h?t be the
same work which the alien .performed abroad.
, '
(v) If the petition indicates that the beneficiary is coming to the United States as a manager
or executive to open or to be employed in a new office in the United States, -the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year
, period preceding the filing of the petition in an executive or managerial capacity
, -and that the proposed employment in~olved executive or.managerial authority
over the new operation; and
, ,
(C) ' The intended United States operation , within one year .of the approval of the ,
petition, will support an executi ve or managerial position as defined in
paragraphs (1)(1)(il)(B) "or (C) of this s~~tion, supported by information
, regarding:
(1) , The proposed nature of the office describing the scope of the entity , its
organizational structure, and its financial goals;
(2) The size of the United States investment and the financial ,ability of the
foreign entity to remunerate the beneficiary and to commence doing
business in the United States; and
(3) The organizational structure of the foreign entity.
The first issue in this matter is whether the petitioner secured sufficient physical premises to house the newoffice .
The petitioner indicates that the beneficiary will be coming.to the United States to open a new office. The
regulation at 8 C.F.R. § 214.2(1)(3)(v)(A) prov ides that if the beneficiary is coming to th~' United States as a
manager or executive to open orto be employed in a new of~ce in the United States , the petitioner shall submit
evidence that sufficient physical premises to house the new office have been secured.
The petitioner submitted no documentation regarding the location of its business with the initial petition .
Consequently, in a request for evidence dated June 29, 2005, evidence demonstrating that .the petitioner had
complied with this requirement was requested. Specifically , the director .asked for photographs of ,the business
premises, both inside and out, as well as a copy of the lease agreement which detailed the square footage of the
property in addition to a copy of its insurance policy and occupancy permit.
WAC 05 16854155
Page 4
In a letter dated September 20,2005, counsel responded to the petitioner's request. The petitioner indicated that it
had secured a business location in Walnut Creek, California. The petitioner included photographs ofthe exterior
of the business as well as copies of bills that represented "rental expenses" for the new office. Counse 'l stated that
since the lease agreement was on a month-to-month basis, no written agreement could be furnished . '. '
On November 14, 2005, tliedirector denied the petition. Specifically, the director found that the evidence
submitted did not establish that sufficient physical premises had been secured by the pet itioner as required by the
regulations. The director noted that the absence of a written lease agreement and interior photos of the alleged
business location raised questions regarding the validity of the petitioner's claims. The director further noted that
the petitioner's submission' of phone bills and other such documents was simply Insufficient to meet the
regulatory requirements. "On appeal, counsel alleges that ample evidence was submitted in response to the request
for evidence to establish that sufficient premises had been secured, No new evidence is submitted to support this
claim.
Upon review , the AAO concurs with the director 'sfindings. The regulations clearly state that .sufficient
physical premises to house the new office must be secured. In this matter , however , the petitioner failed to
submit a lease agreement or photos of its interio~ business location. Instead : it relies on photographs of the
exterior of a structure and its claim that it leases .that structure on a month-to-month basis as proof ithas
·satisfied this requirement. The AAO is not persuaded ,
The photographs of the alleged business location merely show the address of the building at which it claims to
house its business . No signage indicating that the petitioner 's business operates out of this location has been
submitted. More importantly, a photo of the tenant directory from the building's lobby indicates that a
number of businesses operate out of Suite 300 , the suite the petitioner allegedly leases. The petitioner,
however, i~ not listed , as far as the AAO can see from the picture submitted, on this directory.' Finally , the ,
· only other evidence submitted in support of the claim that the petitioner operates from this Walnut Creek
location is an invoice for art answered line, a mailbox , and a lobby listing. Since this invoice is dated August .
16; 2005 and appears .to be for start-up services, it must be concluded that this premises was not secured by
· the petitioner at the time of the petition's filing in May 2005. The petitioner must establish eligibility at the
. . time offiling 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., 17I&N
·Dec. 248 (Reg. Comrn, 1978). . , .
· More importantly ; however , is the conflicting information contained in the record regarding the petitioner 's
actual business location. In theinitial petition and onthe letterhead from whichthe petitioner 's supporting
· letters are written, an entirely different addre'ss is listed. The AAo notes that on the Fo~.I-129, this address. ' . ' .
·is also listed as the beneficiary's address in the United States. It is incumbent upon the petitioner to resolve
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such
I Although another .paragraph shows the petitioner in Suite 3'00, it i~ unclear whether this is from the same '
directory .for this building. Moreover, this photograph also shows the petitioner as sharing the same suite
and/or as operating jointly with a company named Eastbay Service Company , Inc.
WAC 05 16854155 .
Page 5
inconsistencies will not suffice unles~ the petitioner submits competent objective e~dehce pointing to where
the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
As there is insufficient evidence that the petitioner has secured sufficient physical premises, 'the petition may. ;- . . .
not be approved.
The second issue in this matter is whether the beneficiary was employed abroad in a primarily managerial or
executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C.§ 'llOl(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 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 superyised 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
assignmerit within an organization in-which the employee primarily:
(i) directs the' mana~ement 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 makirig;and
(iv) receives only general supervision or direction from higher level executives, the board
.of directors, orstockho~ders of the organization ..
WAC 05 16854155
Page 6
. . '.
In the Form 1-129, the petitioner only provided ageneral overview of the beneficiary's duties abroad and
counsel merely claimed in his letter dated May 24, 2005 that the beneficiary worked in a managerial position
abroad. Specifically, the petitioner stated that his duties included: "
Communicating with people within the construction business in the United States and
Taoyuan regionin Taiwan; determining and formulating policies 'and providing the overall
direction of the company; taking care of managing daily operations; developing and
executing a long-range [plan] and identifying business opportunities in the US and Taiwan
market; establishing relationship with foreign investor[s], .and maintaining those bonds;
general administration affairs of the company, and general management of company's.
matters in American branch[ ] concernin~ business activities, and operational activities at the
highest level of management.
The director found this initial overview too vague, and therefore 'additional evidence was requested on June
, J! ' •
'29,2005. Specifically, the director requested more information regarding the beneficiary's day-to-day duties
and, those of his subordinate~. In response" the petitioner provided the following updated description in a
letter dated September 20,2005: '
The beneficiary, working abroad for [the foreign entity] wasresponsible for communicating
with people within' the construction business in the United States' and Taoyuan region in
Taiwan; determining and formulating policies and providing the overall direction of the
company; taking care. of managing daily operations; developing and executing a long-range
plaiming [sic] and identifying business opportunities in' the US and Taiwan market,
establishing relationship with foreign investor, and maintaining those bonds; general
,administration affairs of the company, and general management of company's matters in the.' '
American branch; concerning business activities.
No additional documentation was submitted.
The director found this response insufficient to warrant a finding thatthe beneficiary had been employed in a
primarily managerial or executive capacity abroad, and subsequently denied the petition. On appeal" counsel
for the petitioner argues that ample evidence was submitted to support a finding in favor of thepetitioner.and
asserts that the director ignored a decision dealing with situations where the sole employee ofacompany
could still be deemed an executive.
The AAO concurs with the director after reviewing the record. Upon review of the beneficiary's stated duties
abroad, the description of duties is too vague to ascertain whether the beneficiary will be acting in a primarily
managerial or executive capacity:
'. .:
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): In this case-the petitioner vaguely
described each of the beneficiary's duties, and essentially summarized the definition of executive capacity.
WAC 05 16~ 54155
Page 7
( .
,
'I' ,
The description of his duties is vague and not specific enough to clearly establish the beneficiary's role.in the
foreign company. -. 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 answer a critical question in this case: What will the beneficiary primarily do on a
daily basis? .The actual duties themselves will reveal the true nature of the employment. FedinBros. Co.,
Ltd.,724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
. On appea('cqunsel refers toanuripublished declsion in which the AAO'determined that the beneficiary met
the requirements of serving in a managerial and executive capacity for,L-I classification even though he was
the sole employee. Counsel has furnished no evidence to establish that the facts' of the instant petition are
analogous to those in the unpublished decision .. While 8 C.F.R. § 103.3(c) provides that AAO precedent
decisions are binding on all cis employees' in the administration of the, Act, unpublished decisions 'are not
similarly binding. Additionally, counsel continually asserts that it had submitted enough evidence to establish
the beneficiary's qualifications and therefore the petition should be granted on that basis. As previously
stated, ~ithout documentary evidence to "support the claim, the assertions of co~nseL ~ill not satisfy the
petitioner's burden of proof. The unsupported assertions' of counsel do. not constitute evidence. Matter of
' Obaigbena, 19 I&N Dec. at 534; Matter of Laur~ano, 19 I&N Dec. l (RIA. 1983);' Matter ofRamirez­
Sanchez, 17 I&N Dec. -at506.
The petitioner has failed to submit sufficient evidence establishing that the beneficiary was employed abroad'
in a primarily managerial or executive capacity.: For this additional reason, the petition may not be approved.
The final 'issue in this matter is ~hether the petitioner and the foreign entity are qualified organizations as
defined by.S C.F.R. § 214.2(l)(1)(ii)(G). The regulation defines the term "qualifying organization" as 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)(1)(ii) of this sectjon; "
(2) Is or wiIi 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 meetstherequirements of section 10I (a)(1.S)(L)of the Act.
Additionally, the regulation at 8 C.F.R. § 214.2(l)(1)(ii) provides:
, (I) "Parent" means a firm, ,corporation,,or other legal entity which has subsidiaries.
(1) "Branch" means an operating division or office of the.same organization housed in a different
location.. ' "
WAC 05 16854155
Page 8
(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
(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 arid'controlled by the same group of individuals, each
individual owning and controlling approximately the same share or proportion of each ..
entity , or .
. . ..
.(3) In the case of a partnership that is organized in,the United States to provide accounting ,
services along with managerial and/or consulting services and that markets ' its accounting ; . '
services .under an internationally recognized name under an agreement With a worldwide ' .
coordinating organization that is owned and controlled by the member accounting firms, a
partnership (or similar organization) that is organized outside, :the United States to provide
accounting services shall be considered to be an affiliate of the United States partnership if it
markets -its accounting services under the same internationally recognized name under the
agreement with the ' worldwide coordinating organization of which the United States
partnership is also amember .
, "
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
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18I&N Dec. 289
. (Comm. 1982). Incontext ofthis visa petition, ownership refers to' the direct or indirect legal right of
possession of the a ssets of an entity with full power arid authority to control; control means the direct or
indirect legal right and authority to direct the establishment, management, and operat ions of an entity . Matter
ofChurch ScientologyA'I I&N '!?ec . at 595. " , "
In this matter, the director found that the evidence submitted in support of the claimed relationship between .
the foreign entity and the petitioner was insufficient to warrant approval . Specifically, after requesting
additional evid~nce regarding the claimed relationship between the two entities 01) June 29, 2005, the director
noted that despite submitting a copy ,of the stock certificate and stock ledger evidencing the foreign entity 's
alleged ownership of all outstanding shares of the U .S.' entity , the director noted that no evidence hadbeen
submitted to establish that the foreign entity had actually paid for these shares: Consequently , the director
denied the petition. ' On appeal , counsel asserts that the' relationship was well documented bythe share
certificate and the petitioner 's letter discussing the foreign entity'sfinancial investment in the U.S . entity.
. " : . . '
. ;
WAC 05.168 54155
Page 9
Upon review, the AAO concurs .with the director's findings, and notes an additional basis for finding that a
qualifying relationship did not exist between the parties. The AAO will first examine the director's basis for
the denial.
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. '.
In this matter, although the share certificate and ledger were both submitted, the petitioner failed to submit
evidence of the payment for these shares as requested by the director. The regulations specifically allow the
director to request additional evidence in appropriate cases. See 8 C.F.R. § 214.2(l)(3)(viii). As ownership is
a critical 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 wire transfers or other financial documents evidencing the transfer of
money from the foreign entity to the petitioner. The ,regulation states that the petitioner sh~ll 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(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). I -
. \
As stated by the director in the denial, merely outlining the foreign entity's alleged financial interest in the
petitioner, without documentation to corroborate the claim, is simply insufficient to show that the petitioner
actually re~eived consideration for the shares allegedly issued to the foreign entity .. 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' (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)}: On appeal, counsel merely repeats these claims which
were previously deemed insufficient by the director. 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 ofObaigbena, 19 I&N Dec. at 534; Matter ofLaureano, 19 I&N Dec. 1;
Matter ofRamirez-Sanchez, 17 I&N Dec. at 506.
The AAO concurs with the director's finding that without evidence to show that the shares were actually
acquired by the foreign entity in exchange for a monetary contribution, the critical element of ownership has
not been established. However, the AAO notes another problem not addressed by the director. The share
certificate included in the record is dated September 9, 2005. The petition in this matter was filed on May 27,
2005. According to the stock certificate ~d accompanying ledger, the foreign entity, if in fact it had paid for
WAC 05 16854155
Rage 10
the shares, did not acquire its interest in the petitioner until nearly three months after the filing of the petition.
As previously stated, 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 ofMichelin Tire, Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Since
the foreign entity did not own any shares in the petitioner as of the date' of filing, a qualifying relationship
could not have existed at that time. For this additional reason, the petition may not be approved.
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
If she shows that the AAO abused it discretion with respect to all of the AAO'senumerated grounds. 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). '
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. '