dismissed L-1A Case: Clothing Manufacturing

.-... D.S. Department of Homeland Security .
. 20 Massachusetts Ave. N.W., Rrn. 3000
Washington , DC 20529 .
~4 .'.
U.S. Citizenship
and Immigration
Services
Ij .
. -' .
Office: CALIFORNIA SERVICE CENTER Date:WAC 05 12751047
. Petitioner :
Beneficia
. . .
:PUBL ICcoPy
idel!tifyingdata dele~ to
' ~t ¢1~ly unwarranted.
~fpersdMl privaI)
File:
INRE:
, "" ~
Petition:
. .
Petiti6n for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration '
and Nationality Act, S·U.S.c. § 11ot'(a)(15)(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.
. ! •
~ ' . ~
l~bert P. Wiemann , Chief
Odministrative Appeals q ffice
www.uscis.gov
WAC 0525751487
Page 2
DISCUSSION : The Director , California 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-IA
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act (the Act) , 8 U.S.c. § 1101(a)(15)(L) . The petitioner is a California corporation that claims to operate as a
clothing manufacturer. The petitioner states that it is a subsidiary of Confecoes Nabiran Ltda, located in Sao
Paulo, Brazil. The beneficiary has been employed by the petitioner in L-IA status since January 2003, and '
the petitioner now seeks to extend his status for three additional years.
The director denied the petition, concluding that the petitioner did not establish : (1) that the beneficiary would
be employed in the United States in a qualifying managerial or executive capacity; or (2) that the U.S.
company has a qualifying relationship with the fore ign entity. Specifically, the director noted that the
petitioner had failed to provide requested evidence to establish that the foreign entity funded the U.S.
company.
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 disputes the director 's
findings that the petitioner failed to submit requested evidence pertaining to the funding of the U.S. company ,
noting that the documentation submitted was found to be sufficient at the time the beneficiary's initial L-I
petition was approved. Counsel asserts that the director placed undue emphasis on the size of the company
and disregarded the stage of development of the petitioning company in determining whether the beneficiary
would be employed in a primarily managerial or executive capacity. Counsel submits a brief in support of the
appeal.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in ~ection 101(a)(15)(t) 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(l)(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 (1)(1)(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 .
WAC 0525751487
.Page 3
, (iii)
(iv)
Evidence ,that the alien has at least one continuous year of full' time employment
, abroad wi 'th a qualifying organization within the three years preceding the filing of
, the petition .
Evidence that the alien 's prior year of employment abroad was in a position that was ,
managerial.executive or invol ~ed specialized knowledge and that the alien 's prior
education, training, and employment qualifies Him/her to perform : the intended
services in the United States; however , 'the work in the United States need not be the
same workwhich the alien performed abroad.
The first issue in the present matter is whether the beneficiary would be employed by the petitioner in :a
'primarily managerial or executive capacity under the extended pennon.
Section 101(a)(44)(A) of the Act , 8 U.S.C § 1l01(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. ror comporient of
the organization; "'
.
, (ii) supervises and' controls the work of oth~r supervisory, profess ional, 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 ias other personnel actions (such as
promotion ' and .leave authorizationj .cor if po other employeeisdirectly supervised,
functions at a senior level withinthe organizational hierarchy or with respect tothe
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A firstline 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. § I 101 (a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employ~e ,pri~arily:
(i) directs the .management of the organization or amajor 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 '
('
... ' .
WAC 0525751487 .
Page 4
I ' . ' . '
.(iv)
.' .
receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization. .
. .
The nonimmigrant petition was filed on March 31, 2005. The petitioner stated on Form 1-129 that the
. beneficiarywould continue to serve as president of the company and would "direct corporate management."
The petitioner stated ' th~t .it has seven employees and ' submitted an organizational chart depicting the
beneficiary as president over a production manager, who supervises five "production and operations"
employees. The petitioner also provided monthly payroll summaries for the months of April through
September 2004.
hi a request for evidence dated April 29, 2005, the director instructed the petitioner to provide additional
evidence to establish that the beneficiary would be employed in .a managerial or executive capacity .
Specifically, the director requested: (1) an organizational chart for the U.S. company clearly identifying the
beneficiary's position and all employees under his supervision by name and job title; (2) job descriptions ,
educational level, immigrat ion status and annual 'salaries/wages for all employees under the beneficiary's
supervision; (3) adetailed description of the beneficiary's duties and the percentage of time devoted to each 'of
the listed duties ; and (4) copies of California ,po~~ DE-i>, Quarterly Wage and Withholding Report, for the .
last four quarters that were accepted by the State of California.
In a response received on July 21,.2005, the petitioner provided the following description of the beneficiary's .
.duties as presid~ntof the company: . ' . . . . . .
The President will be responsible for duties involved in directing corporate management.
Specifically , these areas of management include the following :
.General Management - approximately '50% the time will be spent engaged in activities .'
involved in:
• Managing and overseeing the production of all materials of the company and supervising
the personnel pursuant to the production goals of the company.
• Overseeing sales to buyers and wholesale companies in the U.S .
U.S. Sales Management - approximately 20%6f the time will be spent engaged in 'activities
involved in :
• Overseeing salesto local buyers and store owners
• . Managing and overseeing sales to wholesalers .
Production Control'-- .approximately 15 % of the time will be spent engaged.in activities
involved in: . .
.• Overseeing orders and managing production schedules with vendors .
• Overseeing quality .control for contractors and subcontractors
..'
Design .Selections - approximately 10 % of the time will be spent engaged in activities
involved in:
• Managing the design of current and next season's product lines
I,
,WAC 0525751487
, Page 5
• Overseeing th~ purchase of fabrics, texbies and other materials
, . ' . ' .
Market Research - approximately 5% of the time will be spent engaged in activities involved
m:
• Managing the research for new product trends and emerging markets
• Determining the viability of new products
The petitioner also submitted a revised organizational chart which depicts the beneficiary as president, a
production manager, and eleven "production and operations" employees. The petitioner did not provide the
requested information regarding the job duties and educational background of the company's other employees,
nor did it provide the requested California Forms DE~6, Quarterly Wage and Withholding Report, for the
previous , four quarters. Instead,' the petitioner subniitt~d monthly payroll summaries for the months of
December 2004 through May 2005. The payroll summary for April 2005 indicated that the company had
, thirteen employees, the majority .of whom were employed on a full-time basis. The petitioner also submitted. " . .
various bank deposit receipts identified as "quarterly wage withholding payments."
The director denied the petition on 'August 25, 2005 , concluding that the 'petitioner had not established that the
, beneficiary would be employed in a primarily managerial or executive capacity under the extended petition.
The director noted the petitioner's failure to submit all of the documentationspecifically requested in the April
29; 2005 notice. The director also fo~nd that the ' petitioner had provided insufficient de'tail regarding the
beneficiary's actu~l job duti es, ~nd observed th~t soine of the beneficiary's duties have not been demonstrated
,to,be managerial or executi ve in nature. The director concluded that the petitioner had not shown that the
beneficiary would be managing a subordinate staff of professional, managerial, or supervisory personnel who
would relieve him from performing non-qualifying duties, ~r that he would manage an essential function of
the organization. " , '
The petitioner filed the instant appeal on September 26,2005. On appeal, counsel for the petitioner as~erts
that the director's determination that the petitioner had not provided "quarterly wage reports" was erroneous ,
as the petitioner had in fact provided automated quarterly wage reports and payroll summaries. Counsel
further contends that even if the petitioner had failed to submit the requested documentation, "such
, documentation did not in .any ,way constitute a mater ial omission that detracted from the Petitione~'s having
met its burden of establishing the Beneficiary's qualifications for L-l classification."
Counsel asserts ,that the director misinterpreted the regulatory provisions and "other guidelines" relating tothe
definition of a manager:.Specifically, counsel emphasizes that "an individual shall not be 'considered to [be]
,:,acting in a 'managerial or executive capacity merely on 'the basis of the number of employees that the
, ' individual supervises, . . ." " Counsel contends that the director's interpretation of the regulations , and
governing 'precedent ,decisions would exclude persons who manage relatively small companies , as such
'managers "could never be considered to be engaged in primaril y performing managerial responsibilities." "
Co~nsel further asserts that the director's' decision' "flatly contradicts the prov isions of the regulations w ith
respect to qualifying on 'the basis of "managing ,an essent ial function.i, Counsel suggests that the "funct io~
,manager" provisionexists to provide an alternative basis of qualification for smaller companies, and claims
that ,the director provided no such alternative by :requiring a showing that the beneficiary supervises other
WAC 0525751487
Page 6
employees who directly perform the function, Finally , counsel contends that the petitioner disregarded the
petitioner's stage of development and failed to consider the beneficiary's "decision-making tole in facilitating
the ongoi~g growth and viability .of the Petitioner." '
Upon review of the petitionand the evidence , the petitioner has not established that the beneficiary will be
employed in a primarily managerial or e?Cecutivecapacity under the extended petition.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's descriptionof the job d~ties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner'sdescription of the job
duties must clearly describe the ' duties to be performed by the beneficiary and indicate whether such duties are
eitherin an executive or managerial capacity. Id. ..
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the
'beneficiary performs the h igh-level responsibilities that are specified in,the definitions. Second, the petitioner
must show that the , beneficiary primarily performs these specified responsibilities and does not spend a
majority of his or her time on day-to-day functions : Champion World, Inc. v. INS, 940 F.2d "153~ (Table),
' 1991 WL 144470 (9th Gir. July 30, 1991). The test is basic to ensure that a person 'not only has therequisite
authority , but that a majority c;{his or her duties are .related to operational or policy management, not tothe
supervision of lower-levelemployees, or the performance,of other non-managerial or non-executive duties.
The petitioner provided the requested description of the beneficiary's duties and indicated how the beneficiary
would allocate his time among his various responsibilit ies. However, the evidence of record does not establish ,
that these duties will be primarily managerial : or executive in nature. The pet itioner indicates that the
beneficiary will devote 20 percent of his time to managing and overseeing sales to Wholesalers; local buyers
and store owners , and approximately 50 percent of his time to "general management" activities which include
"overseeing sales to buyers and wholesale companies in theU.S." While petitioner claims that the beneficiary
"manages" and "oversees" sales activities, it does not claim to have anyone on its staff to actually perform the
sales function. Although requested by the director, the petitioner has not provided job descriptions for any of
its other employees. Failure to submit requested evidence that precludes a material line of inquiry shall be
, grounds for denying the petition. 8 C.F,R. § J03.2(b)(14). The AAO notes that position titles of all of the
petitioner's remaining employees suggest that they are .involved in production activities: Accordingly, it has
not been established that there are any employees to relieve the beneficiary from performing all of the sales
activities of the company and the beneficiary's claimed respons ibilities for "overseeing '" these activities ,'
which accounts for a large proportion of his timercannot be considered managerial in nature. .
Similarly, 'the petitioner states that the benefic iary devotes an additional ten percent ofhis time to "managing
the design" of product lines and "overseeing the purchase of fabrics, textiles and other materials ," and an
additional 'five percent ofhis time to "managing ,the research for new product trends" and "determining the '
viability of new products . AgaIn, 'the petitioner has not identified who would actually perform the company's
routine design, purchasing and market research .duties. Going on record without supporting docurrientary
"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 a/Treasure Craft of California, 14 I&N Dec. 190 (Reg ,
Comm. 1972)). Ba sed on,the limited evidence presented , it is reasonable to conclude, and has not been shown
, ,
WAC 0525751487
Page 7
· otherwise, that the beneficiary himself is responsible for market research, materials purchasing and design
activities, rather than managing these activities as claimed by the petitioner. .
Finally, the petitioner iridicated that the beneficiary devotes 15 percent of his time to "overseeing orders and
managing production schedules ~ithvendors ,"and "overseeing quality control for contractors a~d
subcontractors." . The petitioner has not provided evidence that the company actually utilizes the services or
contractors or independent contractors and therefore it has not been 'established that the beneficiary "oversees"
these external employees, as claimed by the petitioner. Again; 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. at 165. Further, the beneficiary's responsibility for overseeing orders, without
additional. explanation, appears to be a routine duty to ensure timely service delivery, rather than ' a
managerial-level task.
Based on the above, while it is evident that the beneficiary exercises discretion over the day-to-day operations
of the U.S . company as its president, the petitioner has failed to establish that the majority of his time is
al~.ocat~d to the performance of managerial or executive duties . The actual duties themselves reveal the true
nature of the employment. Fedin Bros. Co. , Ltd. V" Sava, 724 F. Supp . 1103, 1108 (E.D.N.Y. 1989), afJ'd, 905
F.2d 41 (2d: Cir. 1990) . 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 'I, 19 I&N Dec. 593 , 604 (Comm. 1988).
.The petitioner 's description of the beneficiary 's duties cannot be re~d ot considered in the abstract ; rather the
AAO must determine based on a totality of the record whether thedescription of the beneficiary 's duties
represents a credible perspective of the beneficiary's role within the organizational hierarchy. While the
petitioner employs production staff to provide the company's clothing embroidery services, the record does
not establish that it has any subordinate staff to perform the many other non-qualifying operational and
administrative tasks inherent in operating the business. As discussed above, the petitioner has not established
that the company employed staff to perform sales, marketing, or purchasing functions: Nor does the
petitioner employ any administrative staff, or staff to handle day-to-day bookkeeping and financial tasks. The
.beneficiary himself would necessarily have performed all other duties associated with operating the
'petitioner's embroidery contracting and clothing manufacturing business, other than the actual production '
work While these duties may be crucial to the proper functioning of the petitioner's business, they are also
the daily operational tasks that cannot be deemed managerial or executive in nature . .. . .
The statutory definition of "managerial capacity" allows for 'both "personnel managers" and "function .
managers ." See section 101(a)(44)(A)(i) and (ii) of the Act , 8 u.S.C. § 1101(a)(44)(A)(i) and (ii). Personnel
· managers are required to primarily supervise mid control the work of other. supervisory , professional , or
managerial employees . Here, the petitioner does not claim that the beneficiary qualifies ' as a manager 'based
on his supervision of supervisory , professional or managerial employees. The petitioner's staff consists of
hourly production personnel who are likely engaged in sewing and embroidery activities which are clearly not
professional , and a production manager, whose dut ~es have not been described . Based on the job description '
provided, the beneficiary oversees "the production ' of all materials of the company" and supervises · the
production personnel, thus suggesting that he maypers .onally supervise the activities of the lower-level
WAC 0525751487
Page 8
production workers. It cannot be concluded that the beneficiary would be primarily supervising professional,
supervisory or managerial personnel, as required by section 101(a)(44)(A)(ii) of the Act.
On appeal, counsel for the petitioner contends that the director erred bynot finding that the beneficiary serves
as a function manager. Counsel further asserts that the director's interpretation of managerial capacity does
not allow for the alternative basis of managing an essential function, noting that the director's decision "would
require a showing that some other supervised employee(s), and not the beneficiary 'directly perform(s) the
function.'" The term "function manager" applies generally when a beneficiary does not supervise or control
the work of a subordinate staff but instead .is primarily responsible for managing an "essential function"
within the organization. See section 101(a)(44)(A) of the Act, 8 U.S.C. § I 101(a)(44)(A). If a petitioner
claims that the beneficiary is managing an essential function, the petitioner must provide ajob description that
clearly describes the duties to be performed in managing the essential function, i.e. identify the function with
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's
daily duties attributed to managing the essential function. See 8 C.P.R. § 214.2(l)(3)(ii). In addition, the
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the
function rather than performs the duties related to the function. In such a situation, the AAO recognizes that
other employees carry out the functions ofthe organization, even though those employees may not be directly
under the function manager's supervision. It is the petitioner' s obligation to establish that the day-to-day non­
managerial tasks of the function managed are performed by someone other than the beneficiary.
The addition of the concept of a "function manager" by the Immigration Act of 1990 simply eliminates the
requirement that a beneficiary must directly supervise subordinate employees to establish managerial.
capacity. Despite the changes made by the Immigration Act of 1990, the statute continues to require that an
individual "primarily" perform managerial or executive duties in order to qualify as a managerial or executive
employee under the Act. The word "primarily" is defined as "at first," "principally," or "chiefly." Webster's II
New College Dictionary 877 (2001). Where an individual is "principally" or "chiefly" performing the tasks
necessary to produce a product or to provide a service or other non-managerial, non-executive duties, that
individual cannot also "principally" or "chiefly" perform managerial or executive duties.
Moreover, federal courts continue to give deference to CIS's interpretation of the Immigration Act of 1990
and the concept of "function manager," especially when considering individuals who primarily conduct the
business of an organization or when the petitioner fails to establish what proportion of an employee's duties
might be managerial as opposed to operational. See Boyang Ltd. v. INS, 67 F.3d 305(Table), 1995 WL
576839 at *5 (9
th
Cir. 1995 (unpublished)(citing to Matter of Church Scientology Int'l and finding an
employee who primarily performs operational tasks is not a managerial or executive employee); see also,
IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C.1999); Republic of Transkei v. INS, 923
F.2d 175, 177 (D.C.Cir. 1991).
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function.
Counsel has claimed that the beneficiary manages an essential function, but has not identified the function
managed or articulated the essential nature of the function, other than asserting that the beneficiary has had an
"instrumental role" in the petitioner's growth. 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 ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano, 19
..' . .
· WAC 0525751487
Page 9 ·
I&N D~c. ·l (BIA '1'983); Matter ojRamirez-Sanch ez, '17 I&N Dec. 503 , 506 (BlA 1980). Moreimportantly ,
as discussed above, the petitioner has not established that the beneficiary performs primarily managerial
duties.
· With regard to the petitioner's employees , counselcorrectly observes that , when staffing levels are used as a
· determining factor in denying" a visa to a multinational manager or executive , thereas(mable needs of the
organization in relation' to its overall purpose ~nd stage of development must be considered and addressed .
See § 101(a)(44)(C) oftheAct, 8 U.S:C. § 1101(a)(44)(C). However, there is no indication in this matter that
the reasonable needs of the organization were not considered by the director. On the contrary, it appears the
reasonable needs were considered, and the director concluded that the petitioner was incapable based on its
overall purpose and stageof development to support a primarily managerial or executive position as defined
by sections 101(a)(44)(A) and (B) of the Act.
In addition, it is important for Citizenship and Immigration ' Services (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 business, in a regular and continuous manner. See, e.g.Systro~ ics
<Corp. v. INS, 153 F. Supp. 2d 7, is (D.D.C. 2001) . TheAAO has long interpreted the regulations andstatute:
to prohibit discrimination against small or medium -size businesses, and does not dispute that small companies. ,
require leade~s or individuals who plan, fOrJ!lulate, direct, manage, oversee and coordinate activities.
Howeyer , regardless of the size of the company, the petitioner must establish .with specificity that the. . . .. .
beneficiary 's duties comprise primarily managerial or executive responsibilities and not routine operational or
administrative tasks.
T~e reasonable needs .of the petitioner will not supersede the requirement that the beneficiary be "primarily"
employed in a managerial or executive capacity -as required by the statute. See sections 101(a)(44)(A) and (B)
of the Act, 8U.S.C. § 1101(a)(44). The reasonable needs of the petitioner may justify a beneficiary who
allocates 51 percent of his duties to managerial or executive tasks as opposed to 90 percent, but those needs
will not excuse a beneficiary who spends the majority of his or her time on non-qualifying duties. The fact .
I • • '
that the beneficiary manages a business, regardless Of its size, does not necessarily establish eligibility for
Classification as an intracompany transferee in a managerial or executive capacity within the meaning of
sections 101(a)(15)(L)ofthe Act. ·See 52 Fed. Reg r ,5738, 5739 (Feb. 26,1987).
Based on the foregoing discussion, .the petitioner has not established that the beneficiary ~ill · serve in a ,
primarily managerial or executive capacity under the extended petition. Accordingly, the' appeal' will be
dismissed.
'The second issue to ,be discussed in the present matter is whether the petitioner has established that a .
qualifying relationship exists with the beneficiary 's ~verseas employer. To establish a "qualifying
relationship" under the Act" and the regulations , .the .petitioner must show that the beneficiary's foreign .
employer and the proposed U .S. employer are the same employer (i.e. one entity with "branch" offices) , or
related as a "parent and subs idiary" or as "affiliates ." .See generally section 101 (a)(l5)(L) of the Act; 8 C:F.R..
§ 214.2(1).
WAC 0525751487
Page 10
The pertinent regulations .at.S c.p .R.§ 214.2(1)(1)(ii) define the term "qualifying organization" and related
terms as follows: .
(G) Qua/ifyinE?organization means a ,l!I1ited States or foreign finn' ,corporation, or other
legal entity which:
(1) . Meets exactly one of the qualifying relationships specified in the
definitions of a parent, branch, affiliate or subsidiary specified' in
paragraph (1)(l)(ii) of this section; .
(2) Is or will be doing business (engaging in intemational trade is not
required) as an employer in .the United States and in at least one other
country directly or through aparent, branch, affiliate or subsidiary for .the
duration of the alien's stay in the United .States as 'an intracompany
transferee[.]
* * * '
(I) Parent means a finn, corporationor other legal entity which has subsidiaries.
* * *
• • L
(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.
The petitioner claims to .be a subsidiary of ocated in Sao Paulo, Brazil. In .support
of the petition, the petitioner submitted: (1) its Articles of Inc-orporation dated April 12, 2002, which indicate
that the company is authorized to issue 100,000 shares of common stock; (2) its stock certificate number one
issuing 100,0000 shares of stock to the claimed foreign parent company, dated May 2 ;2002; (3) a Unanimous
Written Consent of Board of Directors dated May 2, 2002 ; which indicates that"100,000 shares of stock would
.be issue~ , to - . . , ' .' in exch~O, and that the init .ialinvestment would be used ·
"to acquire embroidery machmes owned by~; and (4) an "agreement for the purchase of a
business asset" dated April 30, 2002, indicating that the petitioner agreed to purchase four embroidery
machines owned by for $100 ,000.
On April 29, 2005, the director requested evidence to show that the foreign parent company has in fact paid
for'the U .S. entity. Specificallythe director instructed the petitioner as follows : .
. ,
"' or , . : :
WAC 05 257 51487
Page 11 , _
"
. , I
• j
' The e vi de n ~ e should include copies of the original wire transfers from the parentcompany.
Also, cancelled 'checks, ' deposit receipts , 'etc., detailing monetary amounts for 'the stock
, purchase 'should be submitted. Provide the account holder names and affiliation to the foreign ,
entity for all persons making purchases and the bank accounts that , were used. The
originator(s) of the monies deposited or ~ir~dmust be clearly shown and verifiable by name
.with full address and phone/fax number. For all funds not originating , with the foreign
company, explain the source and reason for receiving such funds, and provide the names of
all account holders ', depositing these funds, and their affiliation to the foreign or U.S. '
company.
, The director' also requested a copy of the petitioner's Notice of Transaction Pursuant to Corporations Code ' ,
Section 25102(f) showing the total stock offering amounts, and again advised that the petitioner "must clearly ,
" docllmentthatthe parent coml?any has paid for the .stock ownership."
in a response dated July 18, 2005 , the petitioner re-submitted its articles of incorporation ~nd stock certificate
number o~e.'The petitioner submitted two notices of credit (incoming wire) receipts from Wijshire state Bank
i?dicating that "Stitch Craft" received a $70,000 wire transfer from' 'on March 5, 2002, and
received a $30,QOO wire transfer from' on April 1, 2002 . Finally,
the petitioner submitted its California Notice of Transaction Pursuantto Corporations Code -SectionZfi l Ozff) .
dated May 2, 2002, showing that the U.S. company issued 'stock value~ at $100:000 in exchange for 'money.
The director denied the petition on Au~ust 25', 2005, concluding that the petitioner had failed to estab1'lsh the
" claim ed qualifying parent-subsidiary relationship between the foreign and U.S. entities . .Specifically , the
. director noted the petitioner's failure,t9 docu~ent that thb foreign entity contributed to the initial capital to
establish the U.S. co~pany . . , ' ,
.. On appeal, counsel asserts that 'wire credit transfer notices were provided ' "as well as stock certificates and
other documentation that was found sufficient at the time of the initial granting of L-l classification." Counsel .
. asserts that even if the requested documentation pad not .been submitted "such documentation did not iIl any
way constitute a material omission that detracted from the Petitioner's having met its burden of establishing
'the Beneficiary'squalifications for L-l classification ." Counsel does not further address this issue, nor does
- . • I •
the petitioner submit any additional supporting documentation in support .of its claim of ownership by the
foreign entity.
Upon review, counsel's assertions are not persuasive. The regulation and case law confirm that ownership and
c'ontrol are the factors that must be ~xamined in determining whether a qualifying .relationship exists between
United States and foreign entities for purposes of this visa classification. Matt er of Church Sci entology :
International , i9 I&N pec.593 (BIA 1988) ; see also Maiter of Siemens Medical Systems ; Inc., 19 I&N Dec .
362 {BIA 1986); Matt er of Hughes ,' 18 I&N Dec . i89 (Comm. 1982). In the context of this visa petition,
ownership refers to the di~ect 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. Matt er,,o fChurch Scientology International, 19 I&N,Dec. at 595.
WAC 0525751487
Page 12
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient
evidence to determine whether a stockholder maintains ownership and control of 'a corporate entity. The
corporate stock certificate ledger, stock certificate registiy, corporate bylaws, and the minutes of relevant
annual shareholder meetings 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.
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8
C.F.R. § 214.2(l)(3)(viii). As ownership is a critical element of this visa classification, the director may
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership
was acquired. As requested by the director, evidence of this nature should include documentation of monies,
property,or other consideration furnished to the entity in exchange for stock ownership.
, Although the,petitioner submitted copies of wire transfer receipts, the monies were deposited into the 'account
of a company other than the petitioning company, and have not been shown to originate with the foreign
.entity. While the AAO acknowledges the petitioner's agreement to purchase assets of using
funds provided by the foreign entity, it is noted that the money transfers to Stitch Craft preceded the date of
the purchase agreement by one to two months, and in fact preceded the incorporation' of the U.S. company.
The petitioner has not identified how the two transferors of the funds, an individual, and a Panamanian .
company, are related to the foreign entity, nor provided, evidence that these funds ,were provided by the
claimed parent company. 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 ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988). Furthermore, the director specifically instructed the petitioner to provide
clear evidence to establish that the funds used to purchasethe U.S. entity's stock were provided by the foreign
, entity. 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).
On appeal, the petitioner fails to acknowledge or overcome, the director's conclusion that the petitioner did
not provide evidence that the foreign entity paid for its interest in the U.S. company. The non-existence or
other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). The
petitioner has not adequately substantiated its claim that the petitioner is owned by the claimed foreign parent
company. For this additional reason.the appeal will be dismissed.
The AAO acknowledges that CIS previously approved an L-IA petition filed by the petitioner on behalf of
this beneficiary. The prior approval does not preclude CIS from denying an extension of the original visa
based on reassessment of the beneficiary's qualifications. Texas A&M Univ.v. Upchurch, 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). It must be emphasized that each nonimmigrant petition filing is a separate
record of proceeding with a separate record and a separate burden of proof. See 8 CF.R.§ 103.8(d). Due to
the lack of evidence of eligibility in the present record, the AAO finds that the director was justified in
departing from the previous approval by denying the present request to extend the beneficiary's status,
WAC 0525751487
Page 13
TheAAO is 'not required to, approve applications 'or petitions where -eligibility has not been demonstrated ,
merely because of prior approvals that may ha ve been erroneous. See, e.g. Matter of Church Scientology
International , 19 I&N Dec. 593 , 597 (Comm.. 1988). · It would be absurd to suggest that CIS or any agency
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988) . . '
Furthermore; the MO's authority over 'the ' serv i ~ e centers is comparable t~\he relationship between a court
of appeals arid a district court '. Even if a service c~nter, director had approved the nonimmigrant petitions on
behalf of the beneficiary , .the AAO would not be bound to follow the contradictory . decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 200P W~ 282785 (ED. La.); affd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001). .' "
The petition will be denied and the appeal dismissed for the above stated reasons; with each considered as an
independent 'and alternative basis for the decision .' In visa petition proceedings , the bu;den of proying
eligibility 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: '.
.: ' .
. ~ .