dismissed L-1A Case: Cleaning Service

mmyhg data deleted to 
t c tearly unwarranted 
c of pasod privacy 
PUBLIC COPY 
U.S. Department of IIameland Security 
20 Mass. Ave, N.W Rm. A3042 
Wash~ngton, DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 03 150 52138 Office: VERMONT SERVICE CENTER Date: APR 0 3 2006 
IN RE: Petitioner: 
Beneficiary: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 101 (a)(15)(L) 
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 
EAC 03 150 52138 
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 AAO will dismiss the appeal. 
The petitioner seeks to employ the beneficiary temporarily in the United States 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. g 1 10 1 (a)(15)(L). The U.S. petitioner, a limited liability company organized in the State of Maryland 
that is described as a cleaning service, 
 beneficiary as its chief executive officer. The 
petitioner claims that it is the subsidiary o 
 located in Maracaibo, Venezuela. The petitioner 
seeks to employ the beneficiary in the United States to open a new office.' 
The director denied the petition, determining that the petitioner had failed to establish that (1) the petitioner 
and the organization which employed the beneficiary abroad were qualifying organizations; or (2) the 
beneficiary would be employed in a managerial or executive capacity in the United States within one year of 
the petition's approval. 
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, counsel2 for the petitioner submits a brief which 
seeks to clarify the petitioner's relationship with the foreign entity and the beneficiary's position while 
employed abroad. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 3 214.2(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. 
I 
The AAO notes that on Form 1-129, the petitioner claimed that it was not a new office. However, absent 
evidence that the petitioner had been doing business for the year prior to the petition's filing, the director 
determined that the petitioner met the definition of a "new office" as defined by 8 C.F.R. fj 214.2(1)(l)(ii)(F) 
and proceeded to adjudicate the petition on this basis. 
2 
 Although the petitioner named on the Form 1-129 is the foreign entity, it appears that this was an inadvertent 
error by the actual petitioner, the U.S. entity. Therefore, counsel's representation on appeal on behalf of the 
U.S. entity will be accepted as properly entered. 
EAC 03 150 52138 
Page 3 
(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. 
(v) 
 If the petition indicates that the beneficiary is coming to the United States as a manager 
or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial capacity 
and that the proposed employment 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 (I)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) 
 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 primary issue in the present matter is whether the petitioner and the foreign organization are qualified 
organizations as defined by 8 C.F.R. 5 214.2(1)(l)(ii)(G). The regulation defines the term "qualifying 
organization" as a United States or foreign firm, corporation, or other legal entity which: 
EAC 03 150 52138 
Page 4 
(I) 
 Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (I)(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; and 
(3) 
 Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
Additionally, the regulation at 8 C.F.R. 5 214.2(1)(l)(ii) provides: 
(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) "Affiliate" means 
(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, or 
(3) 
 In 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 
services shall be considered to be an affiliate of the United States partnership if 
it markets its accounting services under the same internationally recognized 
name under the agreement with the worldwide coordinating organization of 
which the United States partnership is also a member. 
EAC 03 150 52138 
Page 5 
In this case, the petitioner claims that the Venezuelan entity is the parent of the U.S. entity. Specifically, the 
petitioner asserts that the Venezuelan entity owns a fifty percent interest in the U.S. entity through a fifty-fifty 
joint venture, and that this interest thereby satisfies the parent-subsidiary definition. 
Upon review of the evidence submitted, the director concluded that the foreign entity did not own a majority 
interest in the U.S. entity as required by the regulations, and thus a parent-subsidiary relationship was not 
established. The director further noted that corporate documentation in the record was conflicting, thus 
prohibiting a finding that a qualifying relationship existed. As a result, the petition was denied on October 15, 
2003. 
The petitioner appealed the decision, asserting that the director's decision ignored the clear evidence of the 
foreign entity's ownership interests in the petitioner. Specifically, counsel asserts that by way of the foreign 
entity's ownership of fifty percent of the petitioner by way of a joint venture, the petitioner's relationship with 
the foreign entity meets the definition of parent-subsidiary. In support of this contention, counsel for the 
petitioner provides a detailed discussion of the ownership interests of both the U.S. and foreign entities. 
Upon review, the petitioner has not established that the U.S. and foreign entities are qualifying organizations 
as defined by 8 C.F.R. fj 214.2(1)(l)(ii)(G). 
Specifically, the statute requires that the beneficiary come to the United States to "render services to the same 
employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive." Section 
203(b)(l)(C) of the Act. Critical to its claimed eligibility, the petitioner asserts that the U.S. company is the 
subsidiary of ased on the ownership interest of the foreign entity. 
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 1&N Dec. 362 (BIA 1986); Matter 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 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, 19 I&N Dec. at 595. 
Furthermore, the critical regulations at 8 C.F.R. $8 214.2(1)(l)(ii)(I) and (K) state in pertinent part: 
(I) 
 "Parent" means a firm, corporation, or other legal entity which has subsidiaries. 
(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 
EAC 03 150 52138 
Page 6 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
The operating agreement submitted in support of the petition and executed on January 27, 2003 clearly 
indicates that the membership interests in the petitioner's limited liability company are divided equally 
between the beneficiary (50%) and the foreign entity (50%). However, the Articles of Organization, also 
executed on January 27, 2003, clearly indicate that the initial ownership interests in the petitioner will be 
delegated in total (100%) to the beneficiary. 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. Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The director noted this discrepancy and consequently requested additional evidence to establish the true 
ownership of the petitioner in the request for evidence issued on May 23, 2003. The petitioner, however, 
failed to submit any additional evidence to clarify and corroborate the claimed ownership of the petitioner. 
Consequently, the director concluded that the record contained insufficient evidence of a qualifying 
relationship between the two entities and correctly denied the petition. Failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 8 103.2(b)(14). 
On appeal, counsel alleges that the director erroneously relied on the Articles of Organization, and claims that 
the beneficiary is only listed in the Articles of Organization as the petitioner's resident agent.3 Since the 
Articles of Organization and Operating Agreement both set forth distinctly different ownership interests, and 
since both were executed on the same day, the AAO is unable to determine that the foreign entity does in fact 
have an interest in the petitioner. Absent additional evidence, such as dated share certificates or evidence that 
funds were transferred in exchange for membership interests, there is insufficient evidence to establish that a 
qualifying relationship exists between the en ti tie^.^ Furthermore, despite repeated claims of a joint venture 
agreement between the petitioner and the foreign entity, no documentation of such agreement was submitted. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter ofsoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). For this reason, the petition may not 
be approved. 
3 
 Counsel, however, overlooks the area entitled "Definitions" at Section 3, Subsection "j," which states 
"'Company Percentage' refers to that percentage of the company owned by a Member and is used to compute 
allocations and distributions and [the beneficiary] shall initially own 100% of the Company." 
4 
 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). In the decision, the director correctly notes that in 
this case, it is possible that the foreign entity would have de facto control over the petitioner, since fifty 
percent ownership, as is alleged here, would be sufficient to prevent action by the petitioner through the 
exercise of the foreign entity's veto power. See Matter of Siemens Medical Systems, Inc., 19 I & N Dec. 362 
(BIA 1986). However, absent independent documentation to clarify the nature of the petitioner's ownership, 
the element of control is not applicable. 
EAC03 15052138 
Page 7 
The second issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity within one year of the approval of the petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 4 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. $ 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; 
(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. 
In the initial petition, the petitioner submitted minimal documentation to supplement the statements provided 
on Form 1-129. Specifically, the petition itself did not describe the beneficiary's proposed duties, and an 
accompanying letter from the petitioner, written entirely in Spanish, was not considered because it was not 
accompanied by a translation. See 8 C.F.R. $ 103.2(b)(3). 
EAC 03 150 52138 
Page 8 
Consequently, the director issued a request for additional evidence on May 23, 2003. The three-page request 
was extremely thorough and asked the petitioner to submit all of the evidence required under 8 C.F.R. $9 
214.2(1)(3)(i)-(v). The request specifically asked the petitioner to submit documentation outlining the capital 
investment made by the foreign entity for the U.S. entity, a copy of the petitioner's proposed organizational 
chart outlining the organizational hierarchy of the entity, and the business plans for the petitioner. In addition, 
a comprehensive discussion of the beneficiary's proposed duties was also requested. 
In a response dated August 14, 2003, the petitioner's former counsel submitted extensive documentation in 
response to the director's request. In a letter of the same date written in her capacity as chief executive 
officer, the beneficiary claimed that she would be responsible for 100% of the day-to-day duties of the 
company. In addition, Section 10 of the petitioner's Operating Agreement, dated January 27, 2003, indicated 
that the beneficiary would assume sole responsibility for the company's accounting and bookkeeping services. 
Although a detailed description of her duties abroad was submitted, the petitioner failed to submit a 
description of the beneficiary's proposed duties in the United States during the first year of operations. In 
addition, despite the director's specific requests, the petitioner failed to submit a business plan or further 
evidence of the petitioner's business presence in the United States as required by 8 C.F.R. 3 
2 14.2(1)(3>(v>(C)(1>. 
On October 15, 2003, the director denied the petition. The director found that the evidence in the record 
failed to establish that the beneficiary would be functioning in a primarily managerial or executive capacity. 
Specifically, the director concluded that the beneficiary would be performing the day-to-day tasks of the 
organization. The director further concluded that the petitioner would not reach the point where it could 
employ the beneficiary in a primarily managerial or executive capacity by the end of the first year of 
operations since it appeared that the beneficiary would merely be involved in training, cleaning, accounting, 
and all other necessary business functions. 
On appeal, newly-appointed counsel for the petitioner restates the beneficiary's qualifications and claims once 
again that the director's decision was erroneous. Specifically, counsel relies on previous AAO decisions 
addressing the issue of company size in determining whether a beneficiary will be working in a managerial or 
executive capacity and alleges that the director erroneously used this factor as a basis for the denial. In 
addition, counsel alleges that the director's request for a business plan was erroneous as there is no legal 
precedent for such a request. The AAO disagrees with counsel's contentions. 
Upon review, the petitioner's assertions are not persuasive. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
EAC 03 150 52138 
Page 9 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and pricing 
structures, and a description of the target marketlprospective customers of the new commercial 
enterprise. The plan should list the required permits and licenses obtained. If applicable, it 
should describe the manufacturing or production process, the materials required, and the supply 
sources. The plan should detail any contracts executed for the supply of materials and/or the 
distribution of products. It should discuss the marketing strategy of the business, including 
pricing, advertising, and servicing. The plan should set forth the business's staffing 
requirements and contain a timetable for hiring, as well as a job description for all positions. It 
should contain sales, cost, and income projections and detail the bases therefor. Most 
importantly, the business plan must be credible. 
On appeal, the AAO notes that the petitioner submits the requested business plan for the first time. The plan 
also outlines the duties of the beneficiary and other proposed employees. The petitioner, however, was put on 
notice of this required evidence and given a reasonable opportunity to provide it for the record before the visa 
petition was adjudicated. The petitioner failed to submit the requested evidence and now submits it on 
appeal. However, the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N 
Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated 
based on the record of proceeding before the director. 
In this matter, the director requested a comprehensive business plan from the petitioner, but the petitioner 
failed and/or refused to submit the requested documentation. Without a business plan and without evidence 
specifically detailing the beneficiary's duties, the director was unable to ascertain the duties of the beneficiary, 
the proposed staffing levels, or the goals and pursuits of the petitioner for the coming year. Again, 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). 
The director, therefore, correctly denied the petition, for the record of proceeding is devoid of the evidence 
required under 8 C.F.R. 3 214.2(1)(3). On appeal, counsel observes that a company's size alone, without 
taking into account the reasonable needs of the organization, may not be the determining factor in denying a 
visa to a multinational manager or executive. See 5 IOl(a)(44)(C) of the Act, 8 U.S.C. $ 1101(a)(44)(C). 
However, it is appropriate for CIS to consider the size of the petitioning company in conjunction with other 
relevant factors, such as a company's small personnel size, the absence of employees who would perform the 
non-managerial or non-executive operations of the company, or a "shell company" that does not conduct 
EAC 03 150 52138 
Page 10 
business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). The size of a company may be especially relevant when CIS notes discrepancies in the record and 
fails to believe that the facts asserted are true. Id. 
As discussed above, the petitioner failed to submit the requested evidence with regard to staffing and 
delegation of duties, thereby prohibiting the director from thoroughly reviewing the petitioner's structure and 
proposed expansion. On appeal, counsel asserts that the petitioner has an accountant to relieve the beneficiary 
from her booking duties and further alleges that the beneficiary does not do any of the cleaning services 
provided by the petitioner. However, the AAO is not convinced by counsel's contentions, particularly since 
the evidence in the record clearly contradicts these claims. 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). 
As a result, counsel's assertions on appeal are simply insufficient to overcome the director's denial. The 
petitioner's failure to supplement the record with the requested evidence regarding the petitioner's business 
plan and the beneficiary's duties, despite ample opportunity and specific instructions as to what was required, 
precluded a material line of inquiry. Thus, the director's conclusions are logical and well-reasoned, and the 
AAO concurs with these findings. For this additional reason, the petition may not be approved. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 345 F.3d 683 
(9th Cir. 2003). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.