dismissed L-1A Case: Cleaning Services

U.S. Department of Homeland Security 
20 Massachusetts A\c , N U' , Rrn A3042 
Wash~ngton. DC 20529 
File: SRC 04 121 52 165 Office: TEXAS SERVICE CENTER Date: ET 1 8 2w 
Peht~on: Petition for a Nonlmmigrant Workcr Pursuant to Section 101(a)(15)(L) of the Immigration and 
Nationahty Act, 8 U.S.C. fj 11 01 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the declsion of the Administrative Appeals Office in your case. All documents have been returned to 
the office that or~glnally decided your case. Any further inquiry must be made to that office. 
P. Wiemann, Director 
dnilnistratlve Appeals Office 
SRC 04 121 52165 
Page 2 
DISCUSSION: The Director, Texas Servlce Center, denied the petitlon for a nonimrnigrant vlsa. Thc matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed th~s nonimmlgrant petition seeklng to extend the employment of ~ts president and general 
manager as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immlgratlon and Nat~onaI~ty Act (the Act), 8 U.S.C. 4 1101(a)(15)(L). The pet~tioner is a corporation 
organized In the State of Flonda that operates a commercial and resldentlal cleanlng servlce. The petitioner 
claims that ~t IS the subsidiary of located in the United Klngdom. The bencficiary was 
initially granted a one-year perlod of stay to open a new office m the United States and the petitloner now 
seeks to extend the beneliciary's stay. 
The director denled the petltlon concluding that the petitioner did not estabhsh that: (1) the beneficiary w~ll 
be employed in the Unlted States in a pr~marlly managerial or executive capacity; (2) the petlt~oner and the 
forelgn entity possess a quallfying relat~onshlp; or that (3) the petitioner has been dolng business for the 
prevlous year. 
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 pet~tioner asserts that it has 
submitted sufficient evidence to establish ellglblllty for L-1A classification and addresses each ground for 
den~al. In support of this assertion, counsel submlts a bnef and additional ev~dence. 
To establish ellglbll~ty for the L-1 nonlmmigrant vlsa classification, the pehtloner must meet the crlteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organlzatlon must have en~ployed the 
beneficmy in a quahfylng managerlal or executive capaclty, or in a speclallzed knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admlsslon Into thc Unlted 
States. In add~t~on, the beneficiary must seek to enter the United States temporanly to contlnue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof m a managerial, executlve, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. fj 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(1) Evldence that the pet~tioner and the organization which employed or will employ the 
alien are quallfying organlzatlons as defined in paragraph (1)(1)(11)(G) of this sectlon 
(11) Evidence that the alien will be employed m an executlve, managerial, or speclallzed 
knowledge capaclty, Including a dctailed description of the services to be performed. 
(in) Evldence that the ahen has at least one continuous year of full-t~me employment 
abroad w~th a quallfying organization within the three years preceding thc filing of 
the petltlon. 
SRC 04 121 52165 
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(IV) Evldence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or Involved special17ed knowledge and that the alien's prior 
education, training, and employment quahfies himher to perform the intended 
services ~n the United States; however, the work in the IJn~ted Statcs need not be the 
same,work which the allen performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(11) also provides that a visa petition, which involved the openlng of a 
new office, may be extended by tiling a new Form 1-129, accompanied by the following: 
(A) Evidence that the Unlted States and foreign entitles are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entlty has been doing business as defined in 
.paragraph (l)(l)(n)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the prcvious year and the 
dutles the beneficiary will perform under the extended petition: 
(D) A statement descnbmg the staffing of the new operation, including the numbcr of 1 employees and types of positions held accompanied by evldence of wages pald to 
11 employees when the beneficiary will be employed m a management or executive 
capad:ty; and 
I 
(E) ~vldehce of the financial status of the Unlted States operat~on. 
The first issue in the present matter is whether the beneficiary will be employed by the United Statcs entity In 
a pnmarily managerial or executive capacity. 
Sectlon IOl(a)(44)(A), of the Act, 8 U.S.C. $ 1101(a)(44)(A), defincs the term "managerial capacity" as an 
assignment wthin an organizatlon in wh~ch the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(11) superv~ses and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organizatlon, or a department 
or subdivision of the organizatlon; 
(111) if another employee or other employees are directly supervised, has the authority to 
h~re and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other ernployce is directly supcrviscd, 
functions at a senlor level wlthin the organizational hierarchy or with rcspect to the 
function managed; and 
SRC 04 121 52165 
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(IV) exercises discretion over the day to day operatlons of the activity or function for 
which the employee has authority. A first llne supervisor is not considered to bc 
acting ln a managerlal capac~ty merely by virtue of the supemsor's supervisory 
dutie's unless the employees supervised are profess~onal. 
Sectlon 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity'' as an 
ass~gnment wlthln an organization in wh~ch the employee primarily: 
(1) directs the management of the organization or a major component or function of the 
organlzation; 
(ii) estabhshes the goals and policles of the organization, component, or function; 
(iii) exercises wide latitude in discrctionary decision making; and 
/I 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organlzation. 
The 1-129 Petition was submitted on March 24, 2004. In a February 20, 2004 letter, the foreign entity 
provlded the followm'g description of the beneficiary's duties: 
In h~s capacity as President and General Manager, [the beneficiary] will retain sole executive 
responslbilityl for the overall management of the company and ~ts staff. He wlll contlnue to 
manage and Fct all aspects of the company's day-to-day commercial activltles delegating 
duties as and; when appropriate. He will set all budgets and remuneration levels and w~ll 
supervise and direct the dut~es of all subordinate management personnel. He w~ll routinely 
conduct perfo~ance revlews to evaluate the efficiency and professionalism of all personnel 
and wlll hlre and fire staff as required In addition, [the beneficiary] w~ll conhnue to 
Implement and enforce corporate pollcy, approve all market~ng and promotional hterature 
and ensure stnct eomphance with all finallcia1 and tax laws. [The beneficiary1 will continue 
to conduct all contract negot~ations on behalf of the company whether for the supply of goods 
and services, the provision of credit facilities or w~th co~nmercial chentelc. In summary, [the 
beneficla~y] 4111 contlnue to exercise broad discret~onary dcc~sion making as he functions 
autonomously~ m managing & directmg all aspects of our subsidiary dunng the forthcoming 
three-year period. 
,I 
Thc petltloner Indicated on Form 1-129 that ~t employed SIX individuals, and submitted an organizational chart 
depicting the benefidiary as president and general manager, supervis~ng an operations manager (the 
beneficiary's spouse), :two supervisors, a proposed accounts manager pos~tion, and add~tional staff identified 
as "Accounts, Sales, General Support Staff & Sub-Contractors." The pet~tioner also submitted a mlsslon 
statement indicating thst the company employed four staff as of February 2004. 
SRC 04 121 52165 
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On Aprll 28, 2004, the dlrector requested additional evidence. In part, the director instructed the petitioner to I submlt: (1) a definibve statement describing the U.S. employment of thc beneficlary, including his positlon 
tltle, list of all dubes, the percentage of tlme spent on each duty. and the number of subordinate 
managcrial/supervlsory or other employees who report dlrectly to the beneficlary; (2) job titles, job 
descnptlons, and educational background for the beneficiary's subordinates; (3) a description of the esscntlal 
function managed by thc beneficlary if he does not supervise other employees; (4) an explanation as to 
whether the beneficlary functions at a senior level within the petitioner's organizational h~erarchy; and (5) 
clarification as to who provides the product sales/serv~ces or produces the product of the business The 
dlrector also requeste'd copies of IRS Forms 1099, Miscellaneous Lncome, receipts, bllls, Forms 1-9 or othcr 
evidence that the petitloner employs contract employees, lnformatlon regarding the number of hours they 
work, and then- job t~tles. 
I 
In a response dated ~une 10, 2004, former counsel for the petitioner provlded the follo\ving expanded 
descrlptlon of the benbf~clary's duties: 
Managcment of staff - coordination of efforts - delegating assignments according to abllity - 
ensuring com'bliance \nth corporate pollcy & procedures to insure budget & schedules are 
adhered to and that the company continues to develop a respected place in the market (60%). 
Budget preparation, analysis & lmplementatron - in line wlth corporate policies set down by 
thelo%). 
Recruitment, hlring and training of staff - including performance and salary review and 
discipline (10%). 
I Seeking out new busmess opportunities - identifying and recognizing new markets and 
adjusting business strategy accordingly to maximlze development potential (10%) 
I1 
Liaising w~th 1- establishing regular contact with the partners of the 
I- developing and probld~ng a reponing system on a monthly basis 
showing budgets, targets and success rates of (5%) 
Llalsing with outside professional services in respect of accounting, banlung, financing and 
(5%II 
In summary, the beneficiary is the senior most executive managerial employee wlthin the 
U S. entlty with the sole responsibility for the care & control of the company and all its 
employees reporting only to the Partners of the IIe routinely exerc~ses 
broad discretionary decision-making as he functions autonomously in managing and d~rectmg 
all aspects of the business on a daily bass. Current staffing levels do not prohib~t his funct~on 
from being primarily executive and managerla1 in nature. 
SRC04 121 52165 11 
Page 6 
I 
~ormercounsel lndlcbted that the beneficiary supervises an operations manager and two supermsors. Counsel 
stated that as operat~ons manager, the beneficiary's spouse: 
Assists the beneficiary in managlng and d~recting all areas of the day to day business 
performing nyanagerial duties as delegated by the benefic~ary. As the dlrect l~nk to all 
subord~nate personnel, she helps ensure all delegated dutles are performed in an efficient and 
timcly manner and provldes regular departmental progress reports for revlew by the 
beneficiary. ' 
Former counsel further stated that the petitioner's two supervisors "are responsible for overseeing the daily 
funct~ons of the suptort staff who perform the janitorial and cleamng servlces from which the Company 
derives its income. The supervisors receive instructions from the beneficiary and the Operations Manager and 
allocate tasks to the support staff accordingly often supervising on-site." 
With respect to wages paid to employees, the petitioner explained'that a third-party company utilized by its 
franchisor provides idb payroll services, and invoices the petitioner for its. employees' wages. The, petitioner 
submitted copies of hay and June 2004 invoices from the payroll company and a payroll summary for the 
period from June 8,2003 to May 13,2004. The summary report shows wages of $921 paid to the operations 
manager and $2,623.65 paid to one of the individuals identified as a supervisor. A total ,of sixteen other 
employees earned wages between $189.80 and $3204.43 during the ele~en~month period, for a total of 
$19,447.29 in gross d'ages. The petitioner also provided its IRS Forms W-2 for 2003, and time shiets for four 
pay periods in May and June 2004 showing six to seven part-time employees, some of whom did not work 
during each pay penoil. Finally, the petitioner submitted Forms 1-9, Etnployment Eligibility Verification, for 
six en~ployees, three of which were completed in April 2004 after the petition was filed. 
On January 26, 2004,; the director denied the petition. The director determined that the petitioner did not 
establish that the *beneficiary will be employed in the United States in a primarily managerial or executive . . 
capacity Specifically, the director noted that none of the beneficiary's subordinates have been shown to 
perform in a managerial, supervisory or professional capacity, and observed that given the current structure of 
the company, the petitioner did not establish that the beneficiary will be relieved from engaging in the day-to- 
day operations of the gusiness. 
On appeal, counsel for: the petitioner claims that the beneficiary's job description establishes that he functions 
in an executive capaciib and as a functional manager. Counsel cites the definition of "managerial capacity" at 
8 C.F.R. 9 214.2(l)(ii)(~j ,and claims that the beneficiary meets the criteria as he: (1) is responsible for 
managing and directink all aspects of the day-to-day commercial activities ot the business; (2) bverseei those 
employees who supe<vise those individuals who perform the company's cleaning services; (3) has the 
authority to hire and fire all workers in addition to making other personnel decisions; and (4) is responsible 
1( for all. financial aspects of the business including new markets, investment, banking and finances. Counsel. 
also claims that the beheficiary "spends over 25 percent of his time on key financial aspects of the companies 
(sic] business, but doc? not directly perform those operations" and argues that the beneficiary qualifies as a 
function manager based on this responsibility. 
. > 
SRC 04 121 52165 
Page 7 
[ 
Upon revlew, the petitloner's assertions are not persuasive. %%en examining the executive or managerla1 
capacity of the beneficiary, the AAO wlll look first to the petitloner's descrlpt~on of the job dut~es. See 
8 C.F.R. 5 214.2(1)(3)(11). The pet~tioner's description of the job duties must clearly descrlbe the dutles to be 
performed by the beneficiary and Indicate whether such duties are e~ther ~n an executive or managerlal 
capac~ty. Id. 
The beneficiary's job des~ri~tion'does not establish that he will be employed in a primarily managerial or 
executive capacity. The initial description of the beneficiary's duties was comprised of'vague, broadly 
defined responsibilities that failed to convey what managerial or executive tasks the beneficiary performsoi~ a 
daily basis. General statements such as "manage and direct all aspects of the company,'? "implement and 
enforce corporate policy," and "exercise broad discretionary decision making" do not adequately represent tpe 
beneficiary's day-to-day tasks. Reciting the beneficiary's vague job responsibilities or broadly cast business 
objectives is not sufficient; the regulations require a detailed description of the beneliciary's daily job duties. 
The petitioner has failed lo answer a critical question in this case: What does the beneficiary primarily do on a 
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. 
v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioncr's initial job description also indicated that the beneficiary will "approve all marketing and 
promotional literature," and "continue to implement and conduct all contract negotiations on behalf of the 
company whether for the supply of goods and services, the provision of credit facilities or with .comnlercial 
clientele." However, as none of the beneficiary's subordinates are described as being responsible for preparing 
marketing and promotion literahre or performing any sales activities, these appear to be non-qualifying 
marketing and sales functions directly performed by the beneficiary. Furthermore, although these sales and 
marketing duties were included in the initial description of the beneficiary's position, the petitioner did not 
include these tasks in the job description submitted in response to the.request for evidence. Accordingly, the 
AAO cannot deterinine how much time the beneficiary devotes to these non-qualifying tasks. An employee 
who primarily performs the tasks necessary to produce a product or to provide services is notjconsidered to be 
employed in a managerial or executive capacity. Mutter of Clzuuclz Scientolo~ International, 19 I&N .Dee. 
593,604 (Comm. 1988). 
In response to the director's request for evidence, the petihoner indicated that the bcneficlary would allocate a 
total of 70 percent of h~s t~mc to recruitment, hmng, tralnlng and management of staff. At the hrne of filing, 
the petlt~oner mdicated that it employed a total of six mdlviduals, Including an operations manager, two 
supervisors, and presumably two to three cleanlng staff whose names were not ~dentified. One of the 
supervisors, "V. Cowie," does not appear on any of the pet~tloner's payroll documents. The other employee 
identified as a supervisor, "D. Ross," rece~ved total wages of approximately $2,000 dunng the first five 
months of 2004, but was no longer w~th the pet~tioncr as of May 2004. The pehtloner has not provided 
sufficient evidence that ~t employed either "supemsor" In March 2004 when th~s pet~tion was filed Most of 
the payroll documentat~on provided is from May and June of 2004 and 1s thus not probative of the pet~tioner's 
el~glb~llty at thc tlme of filing. Golng on record without supporting documentary evldence IS not sufficient for 
purposes of meeting the burden of proof m these proceedings. Matter of Sofficl, 22 I&N Dec. 158, 165 
(Comm. 1998) (c~hng Matter of Treusztue Craft of Calrfor~zza. 14 I&N Dec. 190 (Keg Comm 1972)) 
SRC 04 121 52165 
Page 8 
T,ikewise, although the benefic~ary's spouse was ldent~fied at the time of fil~ng as the pctitloner's "operations 
manager," the petitioner has not established that she was employed when the petition was filed. or that she 
performed supcrvlsory or managerlal dubes. The benefic~ary's spouse completed a Form 1-9, Employment 
El~glb~lity Verificabon, on March 8, 2004, approximately two weeks before the pct~tlon was filed. Any CIS 
Form 1-9 presented by a petltloner must be accompanied by other evidence to show that the employee has 
comrnenccd work activities. Forms 1-9 ver~fy, at best, that a business has made an effort to ascertain whether 
particular rndivlduals are authorized to work; they do not verify that those lndivlduals have actually begun 
work~ng. See Mutter ofHo, 22 I&N Dec 206,212 (Assoc. Comrn. 1998). In the absence of such evldcnce as 
pay stubs and payroll records for the relevant tlme penod, the pet~tioner has not established that thc pet~t~oncr 
employed an operations manager at the time of filing on March 24, 2004. Fu~thermore the pct~tloner's 
payroll records for May and June show that the benefic~ary's spouse is employed in the "clerical" department 
on a part-time bass at the mlnlmum wage of $5.15 per hour, while the major~ty of the cleaning staff recelves 
hourly wages of $9.00 or $10.00 per hour. The fact that the "operations manager" recclves cons~derably lower 
wages than the supervisors andfor cleanlng staff that she purportedly supervises calls Into question the job 
descnptlon for the operations manager and for the remaining employees, lncludlng the beneficiary. Doubt cast 
on any aspect of the pet~tloner's proof may, of course, lead to a reevaluation of the reliability and sufficiency 
of the remaining evldcnce offered in support of the visa petlt~on. Mutter oflio, 19 I&N Dec. 582. 591 (BIA 
1988). 
%%en exarninlng the managerial or executive capacity of a beneficiary, C~tlzenshlp and Immigration Semces 
(CIS) revlews the totallty of the record, includrng descript~ons of a beneficiary's duties and his or her 
subordinate employees, the nature of the petitioner's busincss, the employment and remuneration of' 
employees, and any other facts contributing to a complete undcrstand~ng of a benefic~ary's actual role m a 
busmess. The evidence must substantlate that the dutles of the beneficiary and h~s or her subordinates 
correspond to the~r placement in an orgamzatlon's structural hrerarchy; artificial t~crs of subordinate 
employees and inflated job tltles are not probative and will not establ~sh that an orgamzation IS sufficiently 
complex to support an executive or manager pos~tlon. 
As the pet~tioner has failed to document the employment of ~ts cla~med operations manager and supervisors, 
the evrdence of record reflects that the beneficiary IS actually servlng as a first-llne supervisor over a 
fluctuating number of part-t~me clean~ng personnel. A managerlal or executive employee must have authonty 
over day-to-day operations beyond the level normally vested rn a first-line supervisor, unless the superv~sed 
employees are professionals. See Matter of Clzurck Scientology Iilternntrorral, 19 I&N Dec 593, 604 (Comm. 
1988) As the petitioner's residenhal ma~ds have not been shown to bc supervisory, professional, or 
managerlal employees, the tlme the beneficiary Invests In supervisrng them 1s not deemed tlmc actlng in a 
managerla1 or executive capacity. See $j 101(a)(44)(A)(l1) of the Act. As the petltloner indicates that the 
beneficiary devotes 60 percent of h~s tlme to "management of staff," it is evldent that the majonty of hls time 
1s devoied to non-quallfymg tasks 
The record does not support counsel's claim that the beneficiary qual~fies as a "function manager " Counsel 
further refers to several unpublished decisions in which the AAO determined that the beneficiary met thc 
requirements of serving as a function manager for L-1 class~fication even though the petitioning organlLatlons 
had few employces Counsel has furnished no evidence to establ~sh that the facts of the Instant petit~on are 
SRC 04 121 52165 
Page 9 . 
analogous to those in the unpublished decisions. While 8 C.F.R. $ 103.3(c) provides 'that AAO precedent 
declslons are bindlng on all CIS employees in the administration of the Act, unpublished dec~sions are not 
slmllarly bmding. 
The term "functlon manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but ~nstead 1s primarily responsible for managlng an "essent~al funct~on" withln the 
' 
organ~zation. See section 101(a)(44)(A)(il) of the Act, 8 U.S.C. 5 1101(a)(44)(A)(il). The term "essential 
function" IS not defined by statute or regulation. If a pebtioner claims that the beneficiary is managlng an 
essential function, the petitioner must fum~sh a written job offer that clearly descr~bes the duties to be 
performed, 1.e. identify the funct~on with spec~ficity, articulate the essential nature of the funct~on. and 
establ~sh the proportion of the beneficlary's dally dut~es attributed to managlng the essent~al funct~on 8 
C.F.R. 5 214.2(1)(3)(11). In addition, the petitioner's description of the benefic~ary's daily dutles must 
demonstrate that the benefic~ary manages the function rather than perfnrnzs the duties related to the functlon 
An employee who prlmarlly performs the tasks necessary to produce a product or to provlde servlces 1s not 
considered to be employed in a manager~al or executlve capacity. Boyung, Ltd. v. INS., 67 F.3d 305 (1 able), 
1995 \VL 576839 (9th Cir, 1995)(clting Matter of Cf~urclt Scientology International, 19 I&N Dec. 593, 604 
(Comm. 1988)). 
On appeal, counsel claims that the beneficiary devotes more than 25 percent of his time to managing the 
petitioner's "financial" function. Counsel's argument is not persuasive for two reasons. First, if the 
beneficiary devotes only 25 percent of his time to managing the function, he is not primarily perfirming 
duties as a function manager. Second, while the beneficiary may perform some managerial duties such as 
establishing budgets and exercising decision-making authority over the coi-npany's' financial matters, the. 
petitioner has not indicated who would perform non-qualifying financial duties such as routine bookkeeping, 
managing a checking account, paying bills, preparing invoices and following up on payment of. invoices, if 
not the beneficiary. In this matter, the .petitioner has not provided evidence that the, beneficiary mailages an 
essential function. The fact that the beneficiary is the only employee responsible for the company's financial 
activities does not elevate his position to that of a function manager. 
The definitions of executlve and manager~al capacity have turo parts. Flrst, the petlt~oner must show that the 
beneficiary performs the hlgh-level responsibilities that are spec~fied In the defin~t~ons Second. the pet~tioner 
must show that the beneficmy primarily performs these specdied responsibilities and does not spcnd a 
majonty of h~s or her trme on day-to-day functions. Chainpion World, Inc. v. INS, 940 F.2d 1533 ('Table), 
199 1 WL 144470 (9th CIT. July 30, 1991). 
In the instant matter, the petitioner has failed to show that non-qualifying duties, including sales, marketing, 
routine financial tasks, and first-line supervisory tasks, will not constitute the majority of the beneficiary's 
time. Whether the beneficiary is a managerial or executive employee turns on khethcr the petitioner has 
sustained its .burden ,of providing that his duties are "primarily" managerial 'or exccutive. See sections 
101(a)(44)(A) and (B) of the Act. The word "primarily" is deiined as "at first," principally,' or "chicfly." 
Webster's I1 New College Dictionary 877 (2001). Where, as here, an individual is "principally" or "chiefly" 
performing the tasks necessary to produce a product or to provide a service, that individual cannot also be 
"principally" or "chiefly" performing managerial or.executive duties. 
SRC 04 121 52165 
Page 10 
Accordingly, thc petitioner has not established that the beneficiary will be employed in a pnmarily managerial 
or execut~ve capacity, as required by 8 C.F.K. 9 214.2(1)(3)(11). For this reason, the appeal will be d~smissed. 
The second issue m the present proceeding is whether the petitioner has subm~tted suffic~ent evidence to show 
that it has a quahfymg relattonshlp with the foreign entity. See 8 C.F.R. 6 214.2(1)(14)(ii)(A). 
The regulation at 8 C.F.R. 6 2 14.2(1)(1)(11) provides: 
(G) QuullJyiizg organizutioiz means a United States or foreign firm, corporat~on, or other legal 
entlty which: 
(I) Meets exactly one of the qualifjmg relationships specified m the definibons of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(n) of this 
sccfion; 
(2) Is or will be doing business (engagmg In internabonal trade IS not required) as an 
employer 1,n the Unlted States and in at least one other country directly or through 
a parent, branch, affiliate, or subsid~ary for the durahon of the alien's stay m the 
Unlted States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
* * * 
(I) Pareizt 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 entlty and controls the entlty; or owns, d~rectly or 
mndlrcctly, half of the enhty 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, dlrectly or indirectiy, less than half of the entity, but in fact controls the enhty. 
In the initial petition, the petitioner indicated that it is the subsidiary of the beneficiary's foreign employer, 
and submitted its stock certificate showing that all of its authorized stock had been issued to the foreign 
entity. The petitioner indicated that it is doing business as "The Royal Maid Service" pursuant to a licensing 
agreement. In the request for evidence, the director instructed the petitioner to submit a copy of its franchise 
including its Articles of Incornoration. In rewonse. the Petitioner submitted a Partial coi>v of the licensing 
L, , --~ r~ - ~- -----~~ -1 12 " 
agreement with the I~ounsel advised that the articles of incorporation and 
evidence of ownership for Royal Maid Enterprises were not available "as these are the personal property of 
SKC 04 121 52165 
Page 11 
the Franchisor who has no relationship with the Petitioner othcr than the aforementioned Franchise 
Agreement." 
In denying the petition, the director found that the petitioner did not estiblish that it is a subsidiary of the 
foreign entity as defined at 8 C.F.R. ($ 214.2(1)(l)(ii)(K). Specifically, the director noted that the petitioner 
had entered into a franchise agreement and concluded that the evidence submitted did not establish that the 
parent company controls the entity. 
On appeal, counsel claims that the pet~tioner only purchased a license to use the 
but the business is completely operated by the petitioner without interference from the 
Counsel claims that the llcense agreement is not a franchise agrcement, and asserts 
agreement reveals that the licensor does not retain any right to control services offered by the petitioner. 
Upon review; the petitioner has not submitted sufficient evidence to establish a qualifying relationship wlth 
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 tor purposes of this visa classification. Matter- of'churcl? Scientology Iuternutional, 19 I&N Dec. 593 
(BIA 1988); see also Matter of Siemens Medical Systems, Iitc., 19 I&N Dec. 362 (BIA 1986); Mutter of 
Hughes, 18 I&N Dec. 289 (Cornrn. 1982). In the context of this visa petition, ownership rcfers 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 general, a "franchise" is a cooperative business operation based on a contractual agreement ~n which the 
franchisee undertakes to conduct a business or to sell a product or service in accordance with methods and 
procedures prescribed by the franchiser, and, in return, the franchiser undertakes to assist the' franchisee 
through advertising, promotion, and othcr advisory services. A fianchise agreement, like a license, typically 
requires that the franchisee comply with the franchiser's restrictions, without actual ownership and control of 
the fi-anchised operation. See Mutter of Schick, 13 I&N Dec. 647 (Reg. ~omm. 1970) (finding that no 
qualifying relationship exists where the association between two companies was based'on a license and 
royalty, agreement that was subject to termination since thc relationship was "purely contractual"). An 
association between a foreign and U.S. entity based on a contractual franchise agrcement is usually. 
insufficient to.establish a qualifying relationship. Id. See also, 9 FAM 41.54 N7.1-5; 0.1. 214.2(1)(4)(iii)(D) 
(noting that associations between companies based on factors such as ownership of a small amount of stock in 
another company, or licensing or franchising agreements, do not create affiliate relationships between the 
entitie's for L-1 purposes). 
By itself, the fact that a petition involves a franchise will not automatically disqualify the petitioner under 
section 101(a)(15)(L) of the Act. When reviewing a petition that involves a franchise, the director must 
carefully examine the record to determine how the fianchise agreement. affects the claimed qualifying 
relationship. As discussed, if a foreign company enters into a franchise, license, or contractual relationship 
with a U.S. company, that contractual relationship can .be terminated and will not establish a qualifying 
relationship between the two entities. See Matter of Schick, 13 I&N Uec. at 649. However, if a foreign 
SRC 04 121 52165 
Page 12 
company claims to be related to a U.S. company through common ownership and cyntrol, an4 that U.S. 
company is doing business,as a franchisee, the director must cxamine whether the U.S. and foreign entities 
possess a qualifying rclationship through common ownership and management under section 101(a)(15)(L) of 
the Act. The petitioner has provided a stock certificate indicating that all of its stock was issued to the foreign 
entity. 
Nonetheless, it is critical in a11 cases that the petitioner fully disclose the terms of any franchise agreement, 
especially as the agreement relates to the transfer of ownership, voting of shares, distribution of profit, 
management and direction of the tianchisee, or any other factor affecting actual control. of the entity. CJ: 
~atter of Siemens Medi,cul Systems, hc., 19 I&N Dec. at 364-65. The petitioner did not submit the license 
agreement with the initial petition. In response to the director's request for a copy of the agreement, and again 
on appeal, the petitioner opted to submit only pages one, four, and sixteen of the agreement. 'Counsel's 
statement on appeal that the petitioner signed a license agreement as opposed to a franchise agreement is not 
persuasive, as the terms have been used interchangeably throughout the record. Without a comnplete copy of 
the agreement, the AAO is unable to determine whether its terms affect the petitioner's ultimate decision- , 
malung authority and control over its operations. Again, going on record without supporting documentary 
evidence is not sufficient for purposcs of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. at 165. Due to this failure of documentation, the petitioner has not persuasively demonstrated 
that the foreign entity controls the petitioner. For this additional reason, the appeal will be dismissed. 
The third issue in the present proceeding is whether the petitioner has established that it has been doing 
business for the previous year, as required by 8 C.F.R. 6 214.2(1)(14)(ii)(B). 
The regulation at 8 C.F.R. 5 214.2(l)(il)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office of thc qualifying 
organization in the United States and abroad. 
The pehtloner submitted evidence of ~ts buslness actlvlty wlth the inltlal petltlon, lncludlng recent bank 
statements, invoices for services provided, a lease agreement for a one-year penod commencing on June 1, 
2003, a letter from a thlrd party payroll company lndlcatlng that it had an agreement with the petltioner since 
June 8,2003, and ev~dence of purchases of automobiles in May 2003. The earliest ~nvolce for the provision of 
clean~ng servlccs was dated September 2003. 
B; 
In denying the petltlon, the dlrector concluded that the petitloner has not been actlvely doing buslness 
continuously for one year. On appeal, counsel claims that the petitloner began doing buslness ~mmediately 
upon the beneficiary's arrlval in the Un~ted States on May 13, 2003. 
The AAO notes that the director dld not address this Issue m ~ts Apnl 24, 2004 request for evidence. 
However, even ~f we concluded that the director erred m this regard, the appropriate remedy would be to 
conslder the ev~dence that would have been subm~tted In response to such a request on appeal. On appcal, the 
petltioner submits no new cvldence to overcome the d~rector's finding. 
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Page 13 
Wlthout documentary evidence to support his claims, the assertions of counsel will not sat~sfy the petitloner's 
burden of proof. The unsupported assertions of counsel do not const~tute evidence. Matter ofObaigbeiza, 19 
I&N Dec. 533,534 (BIA 1988); Matter oflaureano, 19 I&N Dcc. 1 (BIA 1983); Matter of Kainirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). The petitloner has not adequately documented that it was providmg 
services dunng the pcnod between the approval of the new office pet~tion on March 3 1,2003 and September 
2003. For this add~tional reason, the appeal wlll be dismissed. 
The petltlon wlll be denied for thc above stated reasons, with each considered as an Independent and 
alternative baas for denial. In visa petition proceedmgs, the burden of provlng ellgtb~hty for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.