dismissed L-1A Case: Business Contracting And Marketing

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 08 034 5 1 1 1 1 
 Office: VERMONT SERVICE CENTER 
 Date: 
 F EB 2 4 2010 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Perry Rhew 
Chief, Administrative Appeals Office 
EAC 08 034 51111 
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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § 1101(a)(15)(L). The petitioner, a New Jersey limited liability com an 
 states that it is engaged in 
business contracting and marketing. It claims to be a branch or subsidiary of 
 located in Israel. 
The petitioner seeks to employ the beneficiary in the position of marketing manager for a period of three 
years. 
The director denied the petition concluding that the petitioner failed to establish that the U.S. company has a 
qualifying relationship with the foreign entity. In denying the petition, the director emphasized that the 
petitioner failed to submit requested evidence to document the ownership and control of the U.S. and foreign 
entities. 
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, the petitioner states that it is a wholly-owned 
subsidiary of the beneficiary's foreign employer. The petitioner submits a copy of its membership certificate 
#20, which indicates that 20 membership units were issued to on May 28,2004. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
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 himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
EAC0803451111 
Page 3 
The sole issue to be addressed is whether the petitioner established that the U.S. company and the foreign 
entity have a qualifying relationship. 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. 5 214.2(1). 
The regulation at 8 C.F.R. tj 214.2(1)(l)(ii) states, in pertinent part: 
(G) 
 QuallJjting 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[.] 
(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) AfJiliatemeans 
(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. 
The petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, that the U.S. company was 
established in 2001 and is a branch office of 
 located in Israel. Where asked to describe the 
EAC0803451111 
Page 4 
stock ownership and managerial control of each company, the petitioner only listed the U.S. company's name 
and U.S. tax identification number. The petition was filed on November 15, 2007 without the required initial 
evidence or other supporting documentation. 
Accordingly, on January 23, 2008, the director issued a request for additional evidence (RFE), in which he 
requested, inter alia, that the petitioner submit copies of all share certificates, stock ledgers or other evidence 
documenting ownership and control of the U.S. and foreign entities. The director also requested evidence of 
the ownership and control of each parent, subsidiary and affiliate organization of the foreign organization, 
including but not limited to stock certificates, stock ledgers, articles of incorporation, or joint venture 
agreements. Finally, the director requested evidence that the foreign entity is presently engaged in the regular, 
systematic and continuous provision of goods and services, as well as an explanation of the type of business 
operated in Israel. The director noted that the petitioner should submit evidence of recent business activities 
such as purchase contracts, purchase orders, sales invoices, the foreign entity's telephone and fax numbers, 
and photographs of the foreign entity's business premises. 
In response, the petitioner submitted an on-line telephone listing for '- in Be'er 
Sheva, Israel. The petitioner also submitted what appears to be a business registration with the Israeli tax 
authorities under the name " Finally, the petitioner submitted a recent electric bill issued to 
and a blurry copy of a photograph depicting a business with an illegible company sign. 
The director denied the petition on December 16, 2008, concluding that the petitioner failed to establish that 
the U.S. company and the foreign entity have a qualifying relationship. In denying the petition, the director 
noted that the petitioner failed to address his specific request for documentary evidence of the ownership and 
control of both companies. 
On appeal, the petitioner asserts that the U.S. company is a wholly-owned subsidiary of the foreign entity. In 
support of the appeal, the petitioner submits a copy of membership certificate #20 issued by "Champion 
Contracting Services Limited Liability Company" toon May 28,2004. The certificate indicates 
that the number of membership units issued is "Twenty (All)." 
Upon review, the petitioner has not established that the U.S. and foreign entities have 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 of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 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 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, membership certificates alone are not 
sufficient evidence to determine whether member maintains ownership and control of a limited liability 
company. The articles of organization, operating agreement and the minutes of relevant annual member 
meetings must also be examined to determine the total number of membership units issued, the exact number 
EAC 08 034 51111 
Page 5 
issued to each member, and the subsequent percentage ownership and its effect on corporate control. 
Additionally, a petitioning company must disclose all agreements relating to the voting powers of members, 
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, USCIS is unable to determine the elements of ownership and control. 
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(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). 
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 of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). The record before the director contained no documentary evidence of the ownership of the U.S. 
company, despite the director's specific request for such evidence. Therefore, the petition was properly 
denied. 
If the petitioner had wanted its membership certificate to be considered, it should have submitted the 
document in response to the director's request for evidence. Id. Under the circumstances, the AAO need not 
consider the sufficiency of the evidence submitted on appeal. Consequently, the appeal will be dismissed. 
Regardless, the single membership certificate submitted on appeal would be insufficient to corroborate the 
petitioner's claim that the foreign entity is currently the sole owner of the petitioning company. The director 
specifically requested copies of all stock or membership certificates issued to date and a copy of the 
petitioner's articles of incorporation, or in this case, articles of organization. The evidence of record does not 
contain evidence of the total number of membership units authorized or copies of membership certificates 
numbers 1 through 19. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, the AAO notes that the petitioner has not submitted sufficient evidence to establish that the foreign 
entity continues to do business in Israel. The director specifically requested documentation of business 
activities conducted during the year preceding the filing of the petition, such as copies of sales invoices, 
purchase orders or other concrete evidence of business transactions. The petitioner failed to submit any such 
evidence, nor did it submit clear photographs clearly depicting the foreign business in operation, which were 
also requested by the director. The fact that the foreign entity maintains a telephone number is insufficient to 
establish that the company is engaged in the regular, systematic and continuous provision of goods or 
services. For this additional reason, the petitioner has not established that there is a qualifying relationship 
between the U.S. and foreign entities. See 8 C.F.R. 5 214.2(1)(1)(ii)(G)(2). 
Beyond the decision of the director, the petitioner has not established that the beneficiary would be employed 
by the U.S. entity in a primarily managerial or executive capacity as those terms are defined at section 
101(a)(44)(A) and (B) of the Act. The petitioner stated on Form 1-129 that the beneficiary will perform the 
following duties as marketing manager for the U.S. entity: 
EAC 08 034 51111 
Page 6 
Develop pricing strategies, balancing firm objectives and customer satisfaction. Identify, 
develop and evaluate marketing strategy, evaluate the financial aspects of product 
development, direct the hiring, training and performance evaluations, nogotiate [sic] contracts 
with vendors and distributors to manage products distribution, establishing distribution 
networks and developing [sic] 
In the request for evidence, the director instructed the petitioner to submit a breakdown of the number of 
hours to be devoted to each of the beneficiary's proposed job duties on a weekly basis, an organizational chart 
for the U.S. entity, and complete position descriptions for all of the United States entity's employees. 
In a letter dated April 10, 2008, the petitioner provided the following position description for the beneficiary's 
proposed position: 
[The beneficiary] is in charge of sales and marketing operations of company which deals with 
business contracting and marketing and related services, budgeting and advertising, ensure 
sales persons (2) comply with company policy. He will also develop pricing strategies, 
balancing firm objectives and customer satisfaction. Identify, develop and evaluate marketing 
strategy, evaluate the financial aspects of product development, direct the hiring, training and 
performance evaluations, negotiate contracts with vendors and distributors to manage 
products. 
The petitioner indicated that the salespersons "sell products of company according to rules and standards of 
company." The other company employees identified by the petitioner are a president, a vice president, a 
general manager, and a secretary. 
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. ij 214,2(1)(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. Beyond the required description of the job duties, USCIS 
reviews the totality of the record when examining the claimed managerial or executive capacity of a 
beneficiary, including the petitioner's organizational structure, the duties of the beneficiary's subordinate 
employees, the presence of other employees to relieve the beneficiary from performing operational duties, the 
nature of the petitioner's business, and any other factors that will contribute to a complete understanding of a 
beneficiary's actual duties and role in a business. 
Here, the petitioner has provided only a brief description of the beneficiary's duties which is insufficient to 
establish that he will be engaged in primarily managerial or executive functions. The director reviewed the 
initial description, found it to be inadequate to establish the beneficiary's eligibility, and therefore reasonably 
requested a complete description of the amount of time the beneficiary would allocate to specific duties on a 
weekly basis. In response to the director's explicit request, the petitioner re-submitted essentially the same 
brief list of job duties, and neglected to provide the requested breakdown of the job description. Therefore, 
based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute 
the majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial 
administrative or operational duties. Although specifically requested by the director, the petitioner's 
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is 
managerial in nature, and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923 
EAC0803451111 
Page 7 
F.2d 175, 177 (D.C. Cir. 1991). Again, any 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). 
Furthermore, the petitioner has not clearly described or documented the type of business operated by the U.S. 
company. The petitioner indicated on Form 1-129 that the type of business is "business contracting and 
marketing." Although it is not clear from this vague description what the company does, it is reasonable to 
assume that it is a service-oriented company, and not a business that is engaged in product development, 
product sales or distribution. Nevertheless, the petitioner indicates that the beneficiary performs duties 
associated with product development, establishing distribution networks, and managing products distribution. 
The beneficiary's proposed duties appear to be inconsistent with the stated nature of the business, at least 
within the limited context provided by the petitioner. The record contains no evidence of business activities 
conducted by the U.S. company. 
Overall, there is insufficient evidence to support a conclusion that the beneficiary would be employed in the 
United States in a primarily managerial or executive capacity. For this additional reason, the petition cannot 
be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afjd. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
557(b) ("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 199 1). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
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. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d 1025, 1043 (E.D. Cal. 2001), agd. 345 F.3d 683 (9th Cir. 2003). 
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.