dismissed L-1A Case: Business Management

U.S. Department of lltrnieland Security 
20 Mass Are. N W Urn A~OJ2 
Warh~ngton. I)(' 20520 
U.S. Citizenship 
and Immigration 
d*-mT\ mc COPY 
File: WAC 04 1 17 541 78 Office: CALIFORNIA SERVICE CENTER Date: SEP 0 2 2005 
Petltton: Pet~tion for a Nonrmm~grant Worker Pursuant to Sect~on 101(a)(15)(L) of the Imm~grat~on 
and National~ty Act, 8 U S.C. fj 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
Th~s 1s the dec~slon of the Admlnlstrative Appeals Office In your case. All documents have been reti~rned to 
the office that arlglnaily dcc~ded your case Any further 1nq;lry must be made to that office 
Administrative Appeals Office 
WAC 04 117 54178 
Page 2 
DISCUSSION. The D~rector, California Servrce Center, dented the petition for a nonlmmlgrant visa The 
matter IS now before the Adm~nistratlve Appeals Office (AAO) on appeal The AAO w~ll dismiss the appeal 
The petlt~oner seeks to employ the beneficiary temporar~ly in the Un~ted States as an L-IA nonimrn~grant 
lntracornpany transferee pursuant to sect~on 101(a)(15)(L) of the Immlgrat~on and National~ty Act (the Act), 8 
U S C 9 1101(a)(15)(L). The U.S petitioner, a corporat~on organ~zed In the State of Arirona that 1s 
descrtbed as a as ~ts execut~ve manager. The petitloner cla~ms that 
it is the affil~ate of located In Reglna, Sasketchewan, Canada. 
The director denied the petition. determining that the petitioner had failed to establish that the petitioner and 
the organizat~on which employed the beneficiary in Canada were qualifying organizations. 
The petitloner 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 submits a letter and 
additional evidcnce which seeks to clarify the petitioner's relationship with the foreign entlty. 
To establ~sh el~g~b~lity for the L-1 nonimmigrant visa class~fication, the petrt~oner must meet the crtterra 
outllned m section 10l(a)(15)(L) of the Act Specifically, a qual~fying organizatton must have employed the 
beneficiary In a qualify~ng manager~al or executive capacity, or in a specialized knowledge capac~ty, for one 
continuous year wlthm three years preced~ng the benefic~ary's appl~cat~on for admtsston Into the United 
States In addition. thc benefictary must seek to cnter the Unlted States temporarily to conttnue render~ng hls 
or her servlces to the same employer or a substd~ary or affiliate thereof In a manager~al, executive, or 
spec~alized knowledge capac~ty. 
The regulation at 8 C.F.R. Ej 214.2(1)(3) states that an individual petition flfd on Form 1-129 shall be 
accompanied by: 
(1) Evidence that the petitioner and the organization which employed or w~ll employ the 
alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this section. 
Form 1-1 29 Identifies the fore1 ent~ty as and claims that it IS dolng buslnes\ 
I. 
Howevcr, throughout the petrtlon, the pet~ttoner refers to "Western 
" as the foretgn parent wlth whom the clalmed qualityrng relat~onshlp 
exls s. c naturc of the relatlonsh~p between " " and ' 
plained by the petitioner It appears from the evidence submitted that 
( 1979) Ltd is the actual prenr company ot m 
undcr the tlade name of '" 
1 he PetltlOner, however, has not suffic~ently expla~ned this relationship. It IS incumbent upon the pet~tloner 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 
po~nting to wherc the truth lies. Matter ofHo, 19 I&N Dcc. 582, 591-92 (BIA 1988). 
WAC 04 117 54178, 
Page 3 \ 
(11) Ev~dence~that the allen will be employed in an executive, managenal, or speclal~zed 
knowledge capacity, ~ncludlng a detailed description of the servlces to be performed. 
(111) Evidence that the ahen has at least one continuous year of full tlme employment 
abroad with a qual~fylng organlzatlon w~thln the three years preceding the fillng of 
the petlt~on. 
(IV) Evidence that the alien's prior year of employment abroad was In a poslt~on that was 
rnanagenal, executive or ~nvolved spec~al~zed knowledge and that the allen's prlor 
education, training, and employment qualifies hlmher to perform the Intended 
services In the United States; however, the work In the United States need not be the 
same work which the allen performed abroad 
rhe pnmary Issue m the present matter 1s whether the petltloner and the forelgn organi~ation are qual~fied 
organlzatlons as defined by 8 C.F.R. 9 214.2(1)(1)(1i)(G) The regulation defines the term "qual~fylng 
organlzatlon" as a Un~ted States or foreljg firm, corporatlon, or other legal entity whlch: 
(I) Meets exactly one of the qual~fylng relationships specified In the definltlons of a parent, 
branch. affiliate or subs~d~ary spcclfied In paragraph (1)(1)(11) of thls sectlon; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at ieast one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duratibn of the alien's stay in the United 
States as an inh-acompany transferee; and 
(3) Othenvlse meets the requirements of sect~on 101(a)(15)(L) of the Act. 
Additionally, the regulat~on at 8 C.F.R. 2 14.2(1)(1 )(i~) provides: 
(1) "parent" means a firm, corporation. or other legal entitywhich has subsidiaries. 
(J) "Elranch" means an operating division or office of the same organlzatlon housed In a dtfferent 
location. 
(K) "Subsid~ary" means a firm, corporatlon. or other legal ent~ty of whlch a parent owns. dlrectly or 
lndlrectly, more than halfof the entity and controls the entlty; or owns, directly or ~ndlrectly, half 
of the entity and controls the entlty; or owns, d~rectly or indrrectly, 50 percent of a 50-50 jolnt 
venture and has equal control and veto power over the entity; or owns, d~rectly or ~ndlrectly, les.; 
than half of the ent~ty, but ~n fact controls the entlty. 
(L) "~ffiliate" means 
WAC 04 117 54178 
Page 4 
.(I) One of two subsidlanes both of whlch are owned and controlled by the same 
parent or ~ndlvldual, or 
(2) One of two legal entities owned and controlled by the same POUP of 
individuals, each individual owning and controlling approximately the same . . 
share or proportion of each entity, or 
(3) . h the case of a partnership that is organized in the United States to provide 
accounting services along with managerial andlor 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 
servlces 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 a member. 
In this case, the petitioner claims that the Canadian entity and the U.S. entity are affiliates. Spccilically, the 
petitioner asserts that the Bonis family owns 51% of the Canadian company and 51% of- 
Management, the management company which controls the U.S. ent~ty, and thus concludes thaese entitles 
meet the evident~ary requirements for a quallfylng relationship. The record indicates that the petllioncr. a 
hmited partnersh~p, has I general partner and 11 limited partners 
The director found that the initial evidence submitted with the petition to be insufficient to qualify the 
petitioner for the benefit sought, and consequently issued a request for evidence on March 29. 2004. The 
director requested evidence that established the existence of a qualifying relationship between the U.S. and 
Canadian entities, and specifically required the petitioner to submit evidence of the ownership of both 
companies in the form of stock certificates, money kansfcr records, and meeting minutes. On Apnl 27,2004, 
counsel for the petitioner submitted a detailed response to the director's request which was accompanied by 
numerous corporate documents for the U.S. and Canadian companies, as well as additional documentary 
evidence in support of thc claimed iffiliation. 
Upon review of the evidence submitted,'the director concluded that the U.S. and Canadian entitics did not 
have common ownership and control as required by the regulat~ons. The director subsequently concluded that 
the petitioner's claim of affiliation with thC foreibm entity was invalid. and as a result, the petition was denied 
on May 12,2004. 
'fhe petitioner appealed the decision, asserting that the current ownership structure was in t~ansition at thc 
filing of 'the pet~tion and that the /current ownership interests clearly establish a qualifying relationship 
between the companies. Counsel subm~ts new documentation demonstrating the rcvised and current 
ownership stGclure in support of this assertion. The AAO wi!l first examine the record of proceeding and the 
dircctor's decision prior to examining the petitioner's claims on appeal. 
WAC 04 117 54178 
Page 5 
The regulation and case law confirm that ownership and control are the factors that must be examined In 
deternliningwhether a qualifying relationship exist's between United States and foreign entities for purposes 
of this visa classification. Matter of CI~urch Scientology intenrational, 19 I&N Dec. 593 (BIA 1988); see a1.w 
Mntter of Siemens Medical Systerns. hrc., 19 I&N Dec. 362 (BIA 1986); Malter of Hughes. 18 I&N Dec. 289 
(Comm. 1982). In 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 conh-01: control means the direct or 
ind~rect legal right and authority to direct the establishment, management, and operations of an entity. Mutter. 
qf Chrcrch Scieatology, 19 I&N Dec. at 595. 
Upon review of the recoid of proceeding, the petitioner has not established that it has the required qualifying 
relationship with the Canadian entity. 
In this case. the petitioner has provided documentary evidence outlining the shareholder interests In the U.S. 
and foreign entities and has supplemented this evidence with explanatory statements which discuss the 
percentages of shareholder ownership and, more specifically, the allegation that the entities are qualifying 
organizations by the foreign entity's indirect ownership of the petitioner through a management company. 
'l'he documentation in the record prior to adjudication demonstrated that the foreign entity, as set forth in a 
profile report dated ~aiuary 19, 2004, was owned as follows: 
# Shares - Class 
2 5 COMD 
1839 Class G 
10 COME 
25 COMC 
20352 Class G' 
3 1 COMA 
30 COMB 
'Total Shares Issued: 223 12' 
Based on this list of shareholder interests, in can be prelrmrnarlly determrned that the shareholders own 
approx~mately the followmg percentages of the fore~gn ent~ty 
According to the documentatlon subm~tted by the petlt~oner, Class G shares are non-vot~ng shares. Thus, 
wh~le the benefic~ary may owti 91% of all of the shares Issued, his percentage of control over the 1J S entlty 
IS much less. 
3 
The AAO notes that the director's dec~s~on relled on the shareholder interests set forth In the Annual Return 
Confirmation for the fore~gn entlty dated September 30, 1998. As th~s document was prepared several years 
Prior to the January 19,2004 prof le, ~t IS clear that since that t~me, addltlonal shares werc Issued and changes 
In ownership took place As a result, the AAO w~ll rely on the January 19, 2004 statement provlded by the 
petrtloner In response to the request for evldence as a means of deterrn~nlng the fore~gn enttty's ownerch~p 
However, since Class G shares are non-voting shares, a more accurate representation of the foreign entity's 
ownership and control is as follows: 
# Shares Percentape Owned 
2 5 20.66% 
10 8.26% 
2 5 20.66% 
3 1 25.62% 
30 24.80% 
The U.S. petitioner is a limited partnership. Its ownership structure, as set forth in Schedule 1 to the Limited 
Partnership Agreement. demonstrates that it is owned by one general partner and eleven limited partners. 
Ownership is as follows: 
General Partner % Interest 
%-- , I% 
Upon review of the record of proceeding, the AAO concurs with the director's finding that the U.S. and 
Canadian entities are not affiliates as defined by the regulation at 8 C.F.R. §214.2(1)(1Xii)(L), since they are 
not owned and controlled by the same parent company or by the same,group of individuals, with each 
individual owliing approximately the same share or proportion of each entity. .As the above lists clearly 
demonstrate, there is no comnwn parent company which owns both entities, and the individuals who own 
each of these companies are almost entirely different. The only common owner listed as having an interest in 
both the foreign parent and the U.S. petitioner is the beneficiary. 
WAC 04 117 54178 
Page 7 
The AAO notes that prior to adjudication of this matter, counsel for the petitioner continually asserted that the 
foreign entity and the U.S. entity were affiliates based on the fact that both companies were "owned and 
controlled in the same proportional share (5 1%) by the [beneficiary's] family." Specifically, counsel asserted 
both in the initial petition and in response to the request for evidence that the 51% ownership was broken 
down as follows: 
I 
Foreign entity: -Jim Bonis (26%) and the Beneficiary (25%) 
U.S. Jim Bonis (25.5%) and the Beneficiary (25.5%) 
This assertion is unacceptable for two reasons. First, the assertions are unsupported by corporate 
documentation which verifies counsel's claim. 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 of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Muffer ofLuureano, 19 
I&N Dec. 1 (BIA 1983); Matter ofRurnirez-Sunchez, 17 I&N Dec. 503, 506 (BIA 1980). Second, and most 
importantly, the assertions of counsel are directly contradicted by the corporate documentation in the record. 
The foreign entity's profile of January 19, 2004 clearly lists its shareholders and indicates that in terms of 
ownership, tht beneficiary owns 91% of the company, whereas 
considering that the Class G shares are non-voting stock, then the nly respectively 
control 20.66% and 25.62% of the U.S. entity for a total 
petitioner. With regard to the U.S. petitioner, the documentation submitted indicates that the beneficiary is a 
limited partner with an 1 1.99% direct interest, whereasis not listed as having any direct claim of 
ownership. 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. Mutter of Ho, 19 l&N Dec. 
582, 591-92 (BIA 1988). If Citizenship and Immigration Serviccs (CIS) fails to believe that a fact stated in 
the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 1154(b); see also 
Anetekhui v. I.N.S., 876 F.2d 12 18, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7. 
I0 (D.D.C. 1988); Lyvslronics Corp. v. INS, 153 F. Supp. 2d 7, I S (D.D.C. 200 1). 
The definition of affiliate requires that two entities be owned and controlled by the same parent or ind~v~dual, 
or owned and controlled by the same group of individuals who own approximately the same amount of shares 
in each entity. See 8 C.F.K. 4 214.2(1)(1)(ii)(L). l'he record clearly indicates that at the time of the filing of 
the petition, the petitioning enterprise did not maintain a qualifying "affiliate" relationship with the overseas 
company. The U.S. entity, a limited partnership, lists one general partner and eleven limited partners with 
varying proportions of ownership interests, whereas the beneticiary owned a majority interest in the foreign 
entity along with four other persons not sharing an interest in the U.S. entity. By simply reviewing the 
ownership structure of the two entities in context of the regulatory definition, it is impossible to find that the 
two companies were affiliate at the time of the petition's filing 
The AAO notes that counsel simultaneously claims that a qualifying relationship exists through the foreign 
entity's indirect ownership of the petitioner through Although tile 
WAC 04 11 7 54178 
Page 8 
pet~tloner's pr~mary cla~m 1s that the companies are affiliates. the AAO wlll examlne the ownership structure5 
of these companles to determine \fa parent-subsidiary relat~onshlp exlsts based on the forelgn entity's claim 
of ~nci~rect ownership. As prev~ously stated, "subsldlary" means a firm, corporatton, or other legal entlty of 
whlch a parent owns, directly or ~ndlrectly, more than half of the entlty and controls the entlty, or owns, dlrectly 
or ~ndaectly, half of the entlty and controls the entity; or owns, dlrcctly or indirectly, 50 percent of a 50-50 Jolnt 
vcnture and has equal control and veto power over the entity; or owns, dlrectly or ind~rectly, less than half of the 
entlty, but in fact controls the entlty. 8 C.F.R. $214 2(1)(1)(11)(K). 
The petlt~oner and counsel clam that the foreign entity owns the U.S. entity through Western Pizza Managemcnt, 
wh~ch manages and operates the petltloner. Ihe AAO notes that Article XV of the L~mited Partnersh~p 
Agreement for the US. petitioner designates the exclus~ve author~ty to manage the IJ S entity to - 
-who is the sole general partner. Before the elements of ownersh~p and control of the IJ S ent~ty by 
Management can be examined, the AAO must first examine the threshold questlon of whether the 
fore~gn ent~ty has demonstrated that ~t In fact owns and controls Western P~zza Management 
'Ihe petitloner submitted the Operat~ng Agreemcnt for a I~mited Iiabil~ty company. 
Exh~bit A of the agreement lists the members of 
25.5% 
The Beneficiary: 25.5% 
- 490% 
Clearly, the foreign ent~ty 1s not llsted as a member wlth an ownersh~p Interest in the management company. 
and therefore does not maintain a parent-subsldlary rclationshlp wrth the management company. Although 
the petltroner apparently is alleg~ng that the forelgn entlty owns the management company through the 5 1% 
ownership of two of ~ts shareholdersand the beneficiary, thls allegat~on is not persuasive A 
corporation 1s a separate and dlst~nct legal entity from its owners or stockholders See Matter of M. 8 I&N 
Dec 24, 50 (BIA 1958, AG 1958); Matter of Aphrodlte Inve.,tments L~mited, 17 I&N Dec 530 (Comm 
1980), and Mutter of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Comm. 1980). Since the forelgn entity ~tself 1s 
not Irstcd as a member of the management company, ~t cannot be concluded that a parent-subsld~ary 
relationsh~p exists betwcrn the forelgn ent~ty and the management company As a result, there IS no lnd~rect 
exerclse of ownership and control by the foreign entlty over the pet~t~oner through the management company 
A final review of thc ownersh~p structure also shows that an affiliate relat~onship l~kew~se docs not exlst 
betwcen the forelgn cntlty and the management company. As prevrously stated, the definlt~on of affiliate 
requlrcs that two entlties be owned and controlled by the same parent or ~ndlvidual, or owned and controlled 
by the same b~oup of ~ndtvlduals who own approxrmately the same amount of shares in each entity. See 8 
C.F.R. Q 214.2(1)(1)(11)(L). The record clearly indicates In thls matter that the overseas company and the 
management company do not have the same group of lndivlduals owning approximately the same amount of 
shares in each entlty. 
Moreover, as recognized In Matter of Wugl~es, where each of thc lndlvlduals own a small amount of stock In 
the two companles wrthout lndiv~dually controlhng the companles, the individuals control only ~f thew shares 
WAC04 117 54178 
Page 9 
are legally consolidated by a proxy agreement that guarantees that one indlvldual will vote the shares In 
concert. 18 I&N Dec. 289, 293 (Comm. 1982) (dlscusslng proxy votes). In th~s matter, four ~ndlv~duals 
ownlng approximately 82% of the United States company may or may not vote in concert to reta~n "de jure" 
or 51% control. L~kewlse, these same individuals may or may not vote in concert to reta~n "de jurc" control 
of the foreign entity. Even ~f the petitioner were to argue that the four individuals would vote m concert due 
to some familial relatlonsh~p, the regulations do not recognize a fam~lial relationshlp as the bass for a 
quallfylng relationshlp or as a means of legally consolidat~ng the shares of individual owners. rhus, the 
companies are not affiliates as the petltloner has not established that the same rndlvrduals control both 
companies 
On appeal, counsel alleges that at the time of the petition's filing and during adjudication, the ownership of the 
companies was in transition. Counsel claims that newly-submitted coqiorate documentation now establishes 
that since the petition's filing, the petitioner and the foreign entity have undergone a change in ownership 
which now satisfies the regulatory requirements of a qualifying relationship. This evidence, however. will not 
be considered. The regulations affirmatively require a petitioner to establish eli$ibility for the benefit it is 
seeking at the time the petition is filed. See 8 C.F.R. Sj 103.2(b)(12). A visa petition may not be approved at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. Mutter of Michelitt 
fire Corp., 17 I&N Dee. 248 (Reg. Comm. 1978). In this case, the petition was filed on March 19, 2004. 
The fact that the petitioner relies on a change in ownership that allegedly took place on June 10, 2004 is of no 
relevance to these proceedings, since such an interest was acquired several months after the filing of the 
petition. 
Based on the evldence presented, lt is concluded that the petitloner and the CanadIan entlty were not affiliates 
as of the fillng date of thls petit~on, and thus did not have a quallfylng relat~onshlp as requ~red by the 
regulat~ons. 
Beyond the decision of the director, the AAO notes some additional issues that were not directly addressed 
prior to adjudication. The GAO notes that the corporate documentation in the record indicates that as of the 
time of filing, the beneficiary owned 91% of the foreign entity. Furthermore, although not considered, the 
ev~dence submitted by.counsel on appeal was intended to show that the beneficiary has since acquired sole 
ownership interests In the U.S. entity. If this Fact is established, it remains to be determined that the 
beneficiary's services are for a temporary period. The regulation at 8 C.F.R: 5 214.2(1)(3)(vti) states that if the 
beneficiary is an owner or major stockholder of the company, the petition must be accompanied by evidence 
that the beneficiary's services are to be used for a temporary-period and that the beneficiary will be transferred 
to an assignment abroad upon the completion of the temporary services in the United States. .In the absence 
of persuasive evidence. it cannot be concluded that the beneficiary's services are to be used temporar~ly or that 
he will be transferred to an assignment abroad upon completion of his services in the United States. 
An application or petition that fails to comply with the technical requirements of thc 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 Glferprises, Itlc. v. United Stutc.s, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. ZOOI), affd. 345 F.3d 683 
(9th ~ir.'2003); see ulso Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
WAC 04 117 54178 
Page 10 
In visa petition proceedings, the burden of proving elig~bility for the benefit sought remains entirely with the 
pet~tioner. Section 291 of the Act, 8 U.S.C. 4 1.361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petltion will be denied. 
ORDER: The appeal is dismissed.