dismissed L-1A Case: Child Development Services

U.S. Department of £Inmeland Security 
20 Mass. Ave.. N.W.. Rrn. 3000 
Washington. DC 20529 
W~ngW Qleted to 
pevent dearly unwarranted 
invasion of personal privacy 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 02 259 5 1306 Office: TEXAS SERVICE CENTER Date: MAY 1 5 2007 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(] 5)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
/ Administrative Appeals Office 
SRC 02 259 51306 
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 the instant nonimmigrant petition seeking to employ the beneficiary as an L-IA 
nonimmigrant intracompany transferee pursuant to section 101(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 Florida that claims to offer training and development services to children. The petitioner represents 
itself as a subsidiary of the beneficiary's foreign employer in Brazil, and seeks to employ the beneficiary as 
the administrative manager of its new office in the United States for a three-year period'. 
The director denied the petition concluding that the petitioner had not established that the foreign and United 
States entities enjoyed a qualifying relationship. 
On appeal, counsel for the petitioner challenges the director's denial of the petition, claiming that the two 
individual shareholders of the foreign entity collectively own more than half of the United States 
organization. Counsel submits a brief in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). Specifically, within three years 
preceding the beneficiary's application for admission into the United States, 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. 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 (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 AAO notes that because the petitioner is a new office, approval of the instant petition is limited to a 
term of one-year. See 8 C.F.R. 3 214.2(1)(7)(i)(A)(3). 
SRC 02 259 5 1306 
Page 3 
The regulation at 8 C.F.R. 9 214.2(1)(3)(~) further states that if the beneficiary is coming to the United States 
as a manager or executive to open or to be employed in a "new office," 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 involved 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 executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, 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 issue in this proceeding is whether a qualifying relationship exists between the petitioning organization 
and the beneficiary's foreign employer as ~quired at 5 101 (a)(15)(L) of the Act, 8 U.S.C. 5 1 101(a)(l5)(L). 
The pertinent regulations at 8 C.F.R. 9 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) Qualrfiing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(I) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in paragraph 
(1)(1 )(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other country 
directly or through a parent, branch, affiliate or subsidiary for the duration of the 
alien's stay in the United States as an intracompany transferee; and, 
(3) 
 Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
SRC 02 259 5 1306 
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(1) 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) AfJiliate 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 and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
The petitioner filed the Form 1-1 29 on August 30, 2002. In the accompanying documentation, counsel for the 
petitioner submitted an August 12, 2002 statement, in which the petitioner suggested a qualifying relationship 
between the United States entity and the beneficiary's foreign employer based on the claim that the United 
States company is owned and controlled by the foreign entity's two shareholders. The petitioner identified the 
ownership of the two companies as follows: 
Foreign Entity: 
United States Entity: 
Counsel for the petitioner submitted the foreign entity's articles of incorporation, which documented the 
company's two shareholders and corresponding ownership interests. Counsel also provided stock certificates 
issued by the petitioning entity documenting each shareholder's ownership interest in the United States 
corporation.' 
' The AAO acknowledges that in response to the director's request for evidence, counsel submitted copies of 
canceled and newly issued stock certificates. Counsel explained that the ownership interest of each of the 
petitioner's four shareholders was incorrectly identified on the original stock certificates. Rather than 
SRC 02 259 5 1306 
Page 5 
The director subsequently issued a request for evidence, directing the petitioner to submit evidence 
demonstrating the existence of a qualifying relationship between the foreign and United States entities. As 
instruction to the petitioner of appropriate qualifying relationships, the director outlined the regulatory 
definition of "qualifying relationship." 
The petitioner responded in a letter dated September 19, 2002, in which he referenced, as evidence of a 
qualifying relationship, the articles of incorporation for both the United States and foreign entities and the 
stock certificates issued by the petitioner to its four shareholders. The petitioner stated that the foreign entity 
is owned and controlled by and who "are [also] the effective 
owners [of the United States entity] and have the control of the American company" as a result of their 
cumulative ownership of 60 percent of the petitioning entity. 
In an October 1, 2002 decision, the director concluded that the petitioner had not established the existence of 
a qualifying relationship between the foreign and United States entities. The director recognized the 
shareholders of both the foreign and United States entities, and concluded that because the two companies 
have "different" ownership, they could not be considered to possess a qualifying relationship. Consequently, 
the director denied the petition. 
Counsel for the petitioner filed an appeal on October 28, 2002, claiming on the Form I-290B the existence of 
a parent-subsidiary relationship between the foreign and United States entities. In an appended appellate 
brief, dated October 24, 2002, counsel states: 
The Petitioner is a corporation established in the United States with sixty percent (60%) 
owned and controlled by the shareholders of the foreign corporation. The foreign 
corporation is owned by two individuals, with the same two individuals owning a 60% 
share of the US corporation. The shareholders of the foreign corporation are also the 
controlling directors of the US corporation. 
The Petitioner argues that the Petitioner is a subsidiary of the foreign corporation. The 
Petitioner argues that the foreign corporation owns directly or indirectly half of the US 
corporation by virtue of the same majority shareholders having the majority of the shares 
and the controlling interest. . . . Since the majority shareholders are the same, the Petitioner 
believes that the US entity meets the burden of the qualifying relationship as a subsidiary of 
the foreign entity. 
Counsel references Matter of Tessel, 17 I & N Dec. 631 (Acting Assoc. Comm. 1981), as instructing that "a 
majority stock ownership in both companies was sufficient to establish a qualifying relationship." 
Upon review, counsel's analysis is misplaced. The record does not demonstrate the existence of a qualifying 
relationship between the foreign and United States entities. 
reflecting the actual number of shares owned, the canceled certificates incorrectly identified each 
stockholder's percentage of stock in the corporation. 
SRC 02 259 5 1306 
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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). To establish eligibility as a qualifying organization, it must be shown that the foreign 
employer and the petitioning entity share common ownership and control. 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. 
Control may be "de jure" by reason of ownership of 5 1 percent of outstanding stocks of the other entity or it 
may be "de facto" by reason of control of voting shares through partial ownership and possession of proxy 
votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
Here, the record establishes that the foreign entity is owned and controlled by 
 and 
while the United States company is owned and controlled by four shareholders, two of 
whom are the owners of the foreign entity. Based on these representations alone, the director correctly 
concluded that the foreign and United States entities do not qualify as affiliates as they are not "owned and 
controlled by the same group of individuals, each individual owning and controlling approximately the same 
share or proportion of each entity . . . ." 8 C.F.R. 3 214.2(1)(1)(ii)(L)(Z) (emphasis added). Although alleged 
by counsel on appeal, the United States entity is not a subsidiary of the foreign organization. See 8 C.F.R. 
3 2 14.2(1)(l)(ii)(K) (defining the term "subsidiary"). 
Counsel mistakenly claims the existence of an affiliate relationship between the foreign and United States 
entities based on the incorrect assumption that the foreign entity's shareholders own and 
interest in the United States entity. The record demonstrates that an 
each individually own a 30 percent interest in the United States entity. 
 Absent documentary 
evidence such as voting proxies or 
 ncert so as to establish a controlling interest, the 
petitioner has not established that 
 and control both entities. 
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); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
Although counsel also cites on appeal that Matter of Tessel, Inc., 17 I&N Dec. 63 1 (Acting Assoc. Comm. 
1981) determined that a majority stock ownership in both companies is sufficient for the purposes of 
establishing a qualifying relationship, counsel has misconstrued the decision. In the Tessel decision, the 
beneficiary solely owned 93% of the foreign corporation and 60% of the petitioning organization, thereby 
establishing a "high percentage of common ownership and common management . . . ." It was further 
determined that "[wlhere there is a high percentage of ownership and common management between two 
companies, either directly or indirectly or through a third entity, those companies are 'affiliated' within the 
meaning of that term as used in section 101(a)(15)(L) of the Act." Id. at 633. The facts in the present matter 
can be distinguished from Matter of Tessel because no one shareholder holds a majority interest in either 
corporation. The record, therefore, fails to demonstrate that there is a high percentage of common ownership 
and common management between the two companies. 
SRC 02 259 5 1306 
Page 7 
Based on the evidence submitted, it is concluded that the petitioner has not established that a qualifying 
relationship exists between the United States and foreign organizations. Accordingly, the appeal will be 
dismissed. 
Beyond the decision of the director, an additional issue is whether the beneficiary would be employed by the 
United States entity in a primarily managerial or executive capacity within one year of the approval of the 
petition. 
The petitioner stated in its August 20, 2002 letter that the beneficiary would occupy the position of 
administrative manager in the petitioning entity, during which he would coordinate "objectives and policies of 
the operational administrative department," "indirect[lyln participate in personnel decisions, supervise "the 
team," analyze and review financial documents, "coordinat[e] and [conduct] researched and development of 
activities, services or conferences with clients," "and attend meetings pertaining to financial matters. The 
petitioner submitted an organizational chart that depicted the beneficiary as being subordinate to the president 
and vice-president, and as overseeing an assistant. The AAO notes, however, the petitioner's representation 
on the Form 1-129 of employing only one person on the filing date. The petitioner also indicated on its 
Internal Revenue Service (IRS) Form SS-4, Application for Employer Identification Number, an anticipated 
staff of four individuals during its first year of operation. 
The petitioner has failed to identify its proposed organizational structure, financial goals or scope of business 
in the United States, all of which are relevant to determining whether the corporation would support the 
beneficiary in a primarily managerial or executive capacity within one year of the petition's approval. See 8 
C.F.R. 3 214.2(1)(3)(v)(C). The AAO notes that the record is extremely vague with respect to the petitioner's 
proposed operations or services in the United States. Similarly, the petitioner has neglected to identify any 
proposed changes to its organizational hierarchy in order to support the beneficiary in a primarily managerial 
or executive position. Absent employee or payroll records, it is not clear from the record whether the 
petitioner employed an assistant at the time the petition was filed. Accordingly, the limited record restricts 
the AAO's analysis of whether the petitioner would employ a staff sufficient to perform its proposed services 
and whether the beneficiary would be relieved from performing the non-qualifling administrative and 
operational tasks of the petitioner's business. 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)). 
Moreover, the overly-broad job description offered by the petitioner falls short of detailing the specific 
managerial or executive job duties to be performed by the beneficiary in his proposed position as 
administrative manager. See 8 C.F.R. 5 214.2(1)(3)(ii) (requiring the petitioner to submit with the Form 1-129 
a "detailed description" of the managerial or executive services to be performed by the beneficiary." The 
actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1 103, I 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The record, as presently constituted, does not demonstrate that the petitioner would employ the beneficiary in 
a primarily managerial or executive capacity within one year of the approval of the petition. For this 
additional reason, the petition will be denied. 
SRC 02 259 5 1306 
Page 8 
An additional issue not addressed by the director is whether the beneficiary was employed by the foreign 
entity in a primarily managerial or executive capacity. 
The beneficiary was represented on his resume as occupying the position of administrative manager in the 
foreign entity, during which he: created and administered the company's budget and payroll; paid Treasury 
bills; "determined emergency allotment needs"; negotiated work contracts; "assist[ed] with public relations"; 
reviewed purchase orders and invoices; trained new customers; conducted "marketing resources projects1'; 
and, "[provided] marketing information at sales conferences." In an attached letter, dated August 12, 2000, 
the foreign company indicated that the beneficiary had "final authority over the [financial] department" and 
"final authority on the determination of norms and procedures for the administration section of the company." 
An appended organizational chart of the foreign entity identified the beneficiary as overseeing six subordinate 
positions, one of which was unoccupied and two of which were performed by the beneficiary. According to 
the organizational chart, the beneficiary was personally responsible for performing the non-managerial and 
non-executive tasks associated with the positions of "Treasury" and human resources. 
Based on the present record, the AAO cannot determine whether the beneficiary was engaged in performing 
primarily managerial or executive job duties in his position as administrative manager, or whether the 
beneficiary was responsible for performing the department's day-to-day administrative functions. The foreign 
entity's description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties 
was managerial in nature, and what proportion was actually non-managerial. See Republic of Transkei v. INS, 
923 F.2d 175, 177 (D.C. Cir. 1991). The AAO notes that an employee who "primarily" performs the tasks 
necessary to produce a product or to provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology 
Int'l., 19 I&N Dec. 593, 604 (Cornm. 1988). The petition will be denied for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied 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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.