dismissed L-1A Case: Chemical Distribution

COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 04 102 50255 Office: TEXAS SERVICE CENTER MAY 0 4 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1101(a)(15)(L) 
r 
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 originally decided your case. Atpy further inquiry must be made to that office. 
., ~obert P. Wiemann, ~hd 
dministrative Appeals Office 
4 
SRC 04 102 50255 
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 petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the 
State of Texas and is engaged in the purchase and distribution of chemical and petrochemical products. The 
petitioner claims that it is the affiliate of Astro Chemical S.A. de C.V., located in Mexico City, Mexico. The 
beneficiary was initially granted a one-year period of stay to open a new office in the United States and the 
petitioner now seeks to extend the beneficiary's stay. 
Upon initial review of the matter, the director sent the petitioner a request for additional evidence on March 8, 
2004. Specifically, the director requested the following: (1) evidence that the foreign entity is currently 
doing business, including current financial records, tax records, employment records, corporate annual 
reports, invoices, bills of sale, and product brochures; (2) evidence that the U.S. entity has been doing 
business for one year, including bank statements, payroll records, invoices, sales records, shipping receipts, 
and invoices for goods and services ordered; (3) the past four quarters of the Employer's State Quarterly Tax 
Returns, including proof that the petitioner has made its payments to the Internal Revenue Service; (4) 
evidence of the ownership and control of the U.S. and foreign entities, including stock certificates, corporate 
stock registers, or annual reports that list the affiliates and subsidiaries and ownership percentage of each; (5) 
the petitioner's Texas Fictitious Business Name / Doing Business As Certificate; (6) the petitioner's 2003 
payroll records; (7) a current organizational chart for the U.S. entity; (8) the foreign entity's organizational 
chart; (9) a "definitive" description of the beneficiary's employment with both the U.S. and foreign entities; 
(10) the beneficiary's direct subordinates, including their job titles, job duties, educational backgrounds; (1 1) 
the essential function that the beneficiary manages in the event the beneficiary does not supervise any 
employees; and (12) a current, unexpired lease agreement for the U.S. entity. 
In response, the petitioner submitted the following: (1) un-translated documents in Spanish that appear to 
include a statement from the foreign entity, Mexican tax and bank documents, invoices, an information letter 
addressed to the Mexican Department of Defense, and product analysis documents; (2) the petitioner's 2003 
bank records; (3) various invoices of the petitioner from 2003; (4) the petitioner's 2003 balance accounting 
sheets; (5) the petitioner's last three State Quarterly Tax Returns, which shows the beneficiary was the only 
employee during this time; (6) evidence of the payment of Federal taxes in 2003; (7) an incomplete or "brief 
English summary" of the foreign entity's articles of incorporation; (8) corporate minutes for the U.S. entity, all 
dated March 1, 2004; (9) corporate bylaws of the U.S. entity; (10) the petitioner's 2003 tax return; (1 1) the 
petitioner's 2003 payroll records; (12) an organizational chart for the U.S. entity, indicating that the 
beneficiary is its sole employee; (13) an organization chart for the foreign entity; (14) a letter from the 
beneficiary on the foreign entity's letterhead, which provides some additional details on the job duties of the 
beneficiary; (15) a new lease agreement for the petitioner, which extends the prior lease by one year while 
expanding the leased premises to include one additional suite. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
SRC 04 102 50255 
Page 3 
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 asserts that the position is 
executive, not managerial, and that "the beneficiary meets each of the four parts of the definition of 'Executive 
Capacity."' The petitioner does not submit any additional evidence in support of this assertion. 
Upon review and for the reasons discussed herein, counsel's assertions are not persuasive and, thus, the AAO 
will dismiss the appeal. 
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. $ 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 (l)(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. 
The regulation at 8 C.F.R. $ 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
SRC 04 102 50255 
Page 4 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (I)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(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 supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
SRC 04 102 50255 
Page 5 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
On reviewing the petition and the evidence, the petitioner has not established that the beneficiary has been or 
will be employed 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. 3 214.2(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. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. A beneficiary may not claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. In this 
case, while counsel for the petitioner clearly states on appeal that the beneficiary's position is executive, in its 
initial documents and in its response to the director's request for evidence, the petitioner makes no such claim 
and, in fact, appears to indicate that the position will be managerial once an administrative manager and a 
logistic manager have been hired. If the petitioner chooses to represent the beneficiary as both an executive 
and a manager, it must establish that the beneficiary meets each of the four criteria set forth in the statutory 
definition for executive and the statutory definition for manager. 
In addition, it its attempt to meet the definition of manager or executive under the Act, the petitioner has 
provided vague and nonspecific descriptions of the beneficiary's duties that fail to demonstrate what the 
beneficiary does on a day-to-day basis. For example, the petitioner states that the beneficiary's duties include 
being "responsible for the overall operations of the company," "planning, developing and establishing policies 
and objectives," and "setting responsibilities and procedures for attaining these objectives." The petitioner did 
not, however, define these policies, procedures, or objectives or provide evidence regarding who, besides the 
beneficiary, actually performs the operational and administrative functions of the company. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Specifics 
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
On appeal, counsel for the petitioner asserts in its brief, dated April 22, 2004, that "the functions of the 
beneficiary are not managerial but executive." Specifically, counsel claims that the beneficiary's job duties 
also include the following: 
The evidence presented shows that as the owner and sole employee of a $3 plus million 
dollars [sic] business the beneficiary [dlirects the management of the organization; is solely 
responsible for management of the organization; is solely responsible for establishing the 
SRC 04 102 50255 
Page 6 
goals and policies of his company; exercises wide latitude in discretionary decision making; 
and as controlling owner receives no supervision or direction from higher level executives of 
the company. 
However, rather than providing a more specific description of the beneficiary's duties, counsel has simply 
paraphrased the statutory definition of executive capacity. See section 101(a)(44)(B) of the Act, 8 U.S.C. ij 
1101(a)(44)(B). As indicated above, the petitioner depicted the beneficiary as "direct[ing] the management of 
the organization," "responsible for establishing the goals and policies of his company," "exercis[ing] wide 
latitude in discretionary decision making," and "receiv[ing] no supervision or direction from higher level 
executives of the company." These conclusory assertions regarding the beneficiary's employment capacity 
are not sufficient to meet the petitioner's burden of proof. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). 
In addition, in its letter dated March 12, 2004 the petitioner describes the beneficiary as overseeing "the 
maintenance of financial record systems and financial reporting" and "for ensuring that all of [the petitioner's] 
shipments comply with all federal and state mandates." Furthermore, as indicated previously, the petitioner 
states that it expects to hire an administrative manager and a logistic manager. The administrative manager 
"will be responsible for all administrative matte[r]s, such as invoicing, purchase orders and record keeping[, 
while the] logistic manager will be responsible for the reception and timely delivery of [the petitioner's] 
products to [its] clients." Based on this statement, the petitioner's payroll records, the organizational chart for 
the petitioner, and the submitted tax documents, it is clear that the petitioner only employs one person, the 
beneficiary. As the petitioner's only employee, it must be concluded that the beneficiary actually prepares the 
invoices, purchase orders, financial records, and product shipments. Therefore, the beneficiary is performing 
tasks necessary to provide a service or product, and these duties will not be considered managerial or 
executive in nature. An employee who primarily performs the tasks necessary to produce a product or to 
provide services is not considered to be employed in a managerial or executive capacity. Mutter of Church 
Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
By counsel's own admission, the beneficiary will not serve in a managerial capacity. In addition, the record is 
not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily executive 
capacity. The petitioner indicates that it plans to hire two additional managerial employees in the future. 
However, 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 of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, pursuant to 
section 101(a)(44)(C) of the Act, 8 U.S.C. ij 1101(a)(44)(C), if staffing levels are used as a factor in 
determining whether an individual is acting in a managerial or executive capacity, CIS must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. In the present matter, however, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. ij 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
SRC 04 102 50255 
Page 7 
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year 
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from 
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an 
extension. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a 
predominantly managerial or executive position. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. fj 214.2(1)(3). 
Beyond the decision of the director, it should be noted that in her request for evidence, the director asked the 
petitioner to submit evidence that the foreign entity is currently doing business. Although the petitioner 
submitted documents in response to this request, none were translated. Due to the petitioner's failure to 
submit certified translations of the documents, the AAO cannot determine whether the evidence supports the 
petitioner's claims. See 8 C.F.R. fj 103.2(b)(3). Accordingly, the evidence is not probative and will not be 
accorded any weight in this proceeding. This evidence is critical, as it may have established that the foreign 
entity meets an essential element of the qualifying relationship test. See 8 C.F.R. fj 214.2(1)(l)(ii)(G)(2). The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). The failure to submit requested, translated 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. fj 
103.2(b)(14). For this additional reason, the petition will not be approved. 
In addition, it should also be noted that the petitioner did not adequately respond to the director's request for 
evidence regarding the ownership of the U.S. and foreign entities. 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. 
In order to establish proof of ownership, the director in this case requested that the petitioner submit such 
evidence as the companies' stock certificates, corporate stock registers, or annual reports that list the affiliates 
and subsidiaries and ownership percentage of each. However, the petitioner did not submit any stock 
certificates and only submitted the foreign entity's corporate articles and the U.S. entity's bylaws and 
corporate minutes. First, the foreign entity's articles of incorporation were not hlly translated; only a half- 
page "Brief English Summary" was submitted as the translation of a twenty-five page plus document. As 
indicated above, non-certified and incomplete translations of documents are not probative and will not be 
accorded any weight in this proceeding. Second, the U.S. entity's bylaws did not provide any relevant 
information regarding the ownership of the company, such as the number of shares permitted and/or issued, 
and the March 1, 2004 corporate minutes, while stating the ownership of the U.S. entity, are insufficient by 
themselves to prove ownership of the U.S. entity. 
SRC 04 102 50255 
Page 8 
As general evidence of a petitioner's claimed qualifying relationship, corporate minutes alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate entity. 
The corporate stock certificates, stock certificate ledger, stock certificate registry, and corporate bylaws 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. 
Moreover, with the March 1,2004 corporate minutes indicating that the company's first stock issuance did not 
occur until less than three weeks before the filing of the current petition, the AAO is left to question both the 
validity of this document as well as the claimed qualifying relationship for the beneficiary's initial L-1A 
petition (SRC 02 230 51929). In conclusion, the AAO cannot find sufficient evidence in the record to 
establish that the petitioner and the foreign entity had a qualifjiing relationship. See 8 C.F.R. 5 
214.2(1)(l)(ii)(G). For this additional reason, the petition may not 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. 200 I), 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). 
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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.