dismissed L-1A Case: Coffee Import/Distribution

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: , LIN 05 030 51335 Office: NEBRASKA SERVICE CENTER Date: JAfd 2 g 2007 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(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. 
Administrative ~~~eals-~ffice 
45 ~ 
LIN 05 030 51335 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (MO) on appeal. The MO will dismiss the appeal. 
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The petitioner filed this nonimmigrant petition seeking to employ the beneficiary 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.I§ 1101(a)(15)(L). The petitioner is a corporation organized in the State of Texas that is engaged in the 
import ,and distribution of coffee. The petitioner claims that it is the subsidiary of C- 
located in Brazil. The petitioner seeks to employ the beneficiary as its president and 
general manager for a three-year period.' 
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The director denied the petition concluding that the petitloner did not establish: (1) that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) that the beneficiary has 
been employed by the foreign entity in a primarily managerial or executive capacity. 
The p{fitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the MO for review. On appeal, counsel for the petitioner asserts that the director 
erred in overlooking evidence regarding the organizational structure of the U.S. and foreign entities and 
erroneously concluded that the U.S. company could not support an executive position. Specifically, counsel 
states that the director only relied on the petitioner's staffing levels and disregarded regulatory requirements 
conceding an executive who oversees a function." Counsel indicated on Form I-290B that she would send a 
brief aldior evidence to the MO in support of the appeal within 30 days. As of this date, the record of 
proceeding does not contain a brief or evidence submitted by the petitioner or counsel. 
On November 7, 2005, the MO received a supplemental letter from Senator Ron Wyden, which is 
accompanied by a statement from the beneficiary, and numerous reference letters written on behalf of the 
beneficiary by his business associates. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
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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: 
' The instant petition is the third nonimmigrant petition filed by the petitioner on behalf of the instant 
beneficiary. The first petition was filed on May 14,2003 and denied by the director, Nebraska Service Center 
on October 22, 2003 (LIN 03 179 53960). The petitioner filed a second L-1A petition on February 19, 2004, 
which was approved on June 16, 2004 (LIN 04 096 52608). On appeal, the beneficiary states that his 
application for an L-1A visa at the U.S. Consulate in Sao Paulo, Brazil was not approved. 
LIN 05 030 51335 
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' (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 (ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
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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 
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 abroad with a qualifying organization within the three years preceding the filing of 
I the petition. 
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I~ (iv) 
 Evidence that the alien's prior year of employmebt abroad was in a position that was 
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 managerial, executive or involved specialized knowledge and that the alien's prior , 
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 education, training, and employment .qualifies hirnlher to perform the intended 
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 services in the United States; however, the work in the United States need not be the 
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 same work which the alien performed abroad.' 
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The first issue in the present matter is whether the petitioner established that the beneficiary will be employed 
by the united States entity in a primarily managerial or executive capacity. 
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section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 IOl(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization.in which the employee primarily: 
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(i) 
 manages the organization, or a department, subdivision, function, or component of 
I the organization; 
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I (ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
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 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 
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hire and fire or recommend those as well as other personnel actions (such as 
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promotion and leave authorization), or if no other employee is directly supervised, 
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 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 
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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: 
LIN 05 030 51335 
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(i) 
 directs the management of the organization or a major component or function of the 
organization; 
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(ii) 
 establishes the goals and policies of the organization, component, or function; 
(I 
I (iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
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 of directors, or stockholders of the organization. 
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The nonimmigrant petition was filed on November 10,2004. On the Form 1-129, the petitioner indicated that 
it employed two workers as of the date of filing, and stated that it intended to employ the beneficiary as its 
president and general manager. The petitioner described the beneficiary's proposed duties as: 
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I/ Overall running of US company aimed at expanding the coffee import business. 
8 Responsibility for the growth and expansion of the US company; overall responsibility for 
1 entering into contracts and legal agreements with suppliers and distributors of coffee 
i imported from Brazil; overseeimport of coffee from parent company. 
In a leker dated November 5, 2004, the petitioner further described the beneficiary's duties in the United 
States gs'follows: 
1 
1 In the offered position, [the beneficiary] is responsible for all international trade decisions, 
/ including the hiring and direction of all trade management and support staff, purchase and 
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I sales contract negotiations, and long term planning of the company's management. 
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Finally, the petitioner submitted a letter from the foreign entity, dated May 1, 2003, which provides the 
following description of the beneficiary's U.S. duties: 
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1 [The beneficiary] will implement and oversee all management operations including import, 
8 sales and contracting, distribution, and support operations for the. subsidiary office located in 
: the Portland metropolitan area of Oregon while communicating with the Brazilian parent 
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i offices under the direction of the Acting General Manager. For the subsidiary office he has 
4i' responsibility for procurement of all management staff including sales and technical support 
1 staff, planning and implementation of goals and policies, and during this initial start-up 
'; period he is responsible fir delegation of tasks and positions to the staff members including 
1 media professionals and marketing researchers. All staff members will be his direct 
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' subordinates. 
The petitioner submitted its most recent quarterly federal and state tax returns confirming the employment of 
one wdrker. The petitioner also provided a "sales commission agreement" made between the petitioner and 
- undcr which the lattcr is provided.with a sales commission for all purchases 
of the 'petitioner's coffee made by "I' The petitioner submitted a letter, dated 
September 3, 2003, from the Vice President of Distribuhon Services and Warehousing, Inc., who confirms 
LIN 05 030 51335 
Page 5 
that his company has been responsible for storing the petitioner's inventory in its warehouse, and shipping the 
petitioner's products according to the beneficiary's instructions. 
The director issued a request for evidence on January 4, 2005. The-director noted that the position description 
submi4ed with the initial petition was too brief and did not include sufficient detail regarding the beneficiary's 
proposed duties. The director also .observed that, as it appeared that the petitioner had only one employee, it is 
not cllar that the U.S. entity currentli employs sufficient.staff who will relieve the beneficiary from 
perfor&ing the duties required in the day-to-day operation of the business. The director requested a statement 
from the petitioner describing' the beneficiary's intended employment in the United States, noting that it 
should.hclude specific job duties, types of employees supervised, and the beneficiary's level of authority. The 
director also requested an organizational chart that lists all employees by-name, position title, and duties. 
In a regponse dated March 28, 2005, the petitioner stated that the beneficiary will perform the following duties 
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in the United States: 
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Implement and oversee all management operations, including import, sales and 
contracting of coffee product, overseeing distribution and support operations for the 
subsidiary office located in Portland, while communicating with the Brazilian parent 
offices; 
Hire all management staff and administrative and warehouse staff; 
Plan and implement company goals and policies; 
Delegate administrative tasks to staff members; 
Negotiate sales agreements for coffee product with wholesalers and roasters; 
Meet with potential customers; marketing researchers and media personnel; 
Attend trade conferences; 
Execute contracts on behalf of both companies; 
Dlrect expansion of company as required, review legal agreements regarding company 
agreements; leases; export and import documents; etc. 
The pktitioner stated that the beneficiary supervises a warehouse employee, 
 a sales 
representative, ), who works on a commission basis selling coffee through - 
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and a management consultant,. The petitioner stated that the company will hire 
addit~onal administrative and managerial staff as the company expands, but requires the beneficiary's presence 
on a full-time basis to further the expansion. 
The petitioner attached an employee list which shows the beneficiary as president, the management 
consultant, 
 as vice, president, and as a sales representative. The petitioner 
indicates that its warehouse, sales, domestic freight, and international freight and customs are provided on a 
contract basis. The petitioner did not provide the requested job duties for the claimed employees and 
contractors. 
The petitioner submitted a second sales commission agreement made between the U.S. company and - 
Although the document indicates that the agreement was made on November 11, 
2004, the duration of the agreement is stated to begin on September 1, 2003. The agreement indicates that 
LIN 05 030 51335 
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will be a "general sales agent." The petitioner also provided a copy of its Apnl 1, 2003 consulting 
agreement with Pursuant to the terms of the agreement, Mr. as 
retained to advise and develop a marketing plan for the sale of green coffee beans to companies in Texas, 
Oklahoma, New York and the West Coast. The petitioner submitted copies of checks paid to Mr. B 
and~onsultin~. 
The director denied the petition on June 15, 2005, concluding that the petitioner had failed to establish that the 
beneficiary would be employed by the U.S. company in a primarily managerial or executive capacity. The 
director concluded that the petitioner 'does not appear to employ sufficient staff who would relieve the 
beneficiary from performing ,the day-to-day duties of the areas that he will oversee, such as administration, 
sales and distribution. The director further noted that the petitioner had not submitted evidence that the 
beneficiary would supervise professional, managerial or supervisory staff. 
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On apbeal, counsel for the petitioner asserts that the director "erred in overlooking the staffing and 
organiiational information provided for the US entity." Counsel asserts that the director relied only on the 
staffin; levels as an indication of the ability of the U.S. company to support an executive position and 
disregarded the services of outside contractors and the relationship between the foreign and U.S. entity. 
 ina all^'; counsel contends that 'the director misapplied the statutory definitions of managerial and executive 
capacity, noting that both definitions"iecognize the concept of a function manager or executive, irrespective 
of stafhg or organizational hierarchies." 
Upon.review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a managerial or executive capacity. When,examining the executive or manageria1,capacity of the 
beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
2142(1)(3)(ii). 
 The petitioner's description of the job duties must clearly describe the duties to be 
perfoded by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacit). Id. 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to, demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner initially 
stated that the beneficiary's duties include "overall running of US company," "overall responsibility for 
entering into contracts and legal agreements with suppliers and distributors," and "overseeing import of 
coffee.',' In addition, the petitioner noted that the beneficiary is responsible for "all international trade 
decisions," and "purchase and sales contract negotiations." The petitioner did not, however, specify or provide 
examples of the types of decisions enacted by the beneficiary, clarify the beneficiary's actual duties and level 
of authority with respect to the purchasing and sales process, or describe what specific duties "overall 
runnini" of the company and "overseeing import" entail. Specifics 'are clearly an important indication of 
whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. ~edin Bros. Co., Ltd. v. Sava; 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
While the beneficiary would evidently exercise discretion over the company's activities as its president and 
general manager, many of his responsibilities, particularly his participation in sales and purchasing activities, 
are not traditionally managerial in nature. Without detailed information regarding what specific tasks the 
beneficiary performs on a daily basis, the AAO cannot determine whether the beneficiary actually performs 
LIN 05 030 51335 
Page 7'' 
management-level duties related to the company's sales, purchasing, import and other key functions. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Cra? 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The actual duties themselves will reveal the true nature 
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. 
The director clearly advised the petitioner that the evidence submitted was insufficient to establish that the 
beneficiary would be employed in a primarily managerial or executive capacity, and in particular, raised 
concems regarding the ability of the petitioner's single employee to relieve the beneficiary from performing 
the duties required in the day-to-day operation of the business: 
In its response tq the director's request for evidence, the petitioner provided an expanded description of the 
benefidiary's duties. However, while the position description is lengthier, it does not provide a clear depiction , 
of the !beneficiary's proposed duties, nor does it suggest that he would perform primarily mafiagerial or 
executive duties as the petitioner's president and general manager. For example, the petitioner stated that the 
benefidiary will "implement and oversee all management operations" and "oversee distribution and support 
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operations." The petitioner provided no concrete examples of what duties would be involved in implementing 
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"management operations," nor did it descrlbe the managerial duties involved in overseeing "distribution" or 
"s.uppo$." Without further explanation, it cannot be concluded that overseeing distribution involves anything 
more than contacting a domestic freight provider to pick up a delivery. Similarly, without further explanation, 
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the belieficiary's responsibility for product support may involve simply responding to customer inquiries 
regardijlg the petitioner's products. The beneficiary's responsibilities for planning and implementing company 
goalsdnd policies and delegating "administrative tasks" to staff members are similarly ambiguous, as the 
petitioner has not described the beneficiary's goals and policies, nor claimed to employ any staff members 
who w,~uld actually perform the petitioner's day-to-day administrative functions. Reciting the beneficiary's 
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detaileh description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanition of the beneficiary's activities in the course of his daily routine.  gain, the actual duties 
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themselves will reveal the true nature of the employment. Fedin Bros. Co., L!d v. Sava, 724 F. Supp. at 1108. 
( 
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The rebainder of the job description submitted in response to the director's request for evidence suggests that 
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the beneficiary is directly involved in the petitioner's marketing, sales, and promotional functions, rather than 
primarily delegating these tasks to subordinate employees. For instance, the petitioner stated that the 
benefidiary will negotiate sales agreements with wholesalers and coffee roasters, meet with potential 
custord~ers, market researchers and media personnel, attend trade conferences, and execute contracts. Based 
on a rekiew of the beneficiary's position descriptions as a whole, and upon review of the totality of the record, 
it is reasonable to conclude that a significant portion of the beneficiary's time is devoted to marketing and 
sellingjthe petitioner's products. An employee who "primarily" peiforms 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 '1, 19 I&N Dec. 593, 
604 (~hmm. 1988). 
LIN 05 030 51335 
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. 
 Based An the current record, the AAO is unable to determine whether the claimed .managerial duties constitute 
the majority of the beneficiary's duties, or-whether the beneficiary primarily performs non-managerial 
administrative or operational duties. Although the director requested a specific description of the duties 
perfoded by the beneficiary on a daily basis, the petitioner's description of the beneficiary's job duties does 
not establish what proportion of the beneficiary's duties is managerial in nature, and what proportion is 
actual& non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). This failure of 
documLntation is important, because some df the beneficiary's duties,' including negotiating sales and 
purchake contracts, do not fall under traditional managerial duties as defined in the statute. The AAO will not 
accept ibroad, unsubstantiated assertions regarding the beneficiary's managerial or executive status' in lieu of 
the reqkired detailed job description. 
counskl correctly- notes on appeal that the beneficiary is not required to supervise personnel in order to 
establiih that the beneficiary is employed in a qualifying managerial or executive capacity. However, since 
the petitioner claims that the beneficiary's duties involve supervising employees, the petitioner must establish 
that tl$ subordinate employees are supervisory, professional, or managerial in order to establish his 
emplojment in a managerial capacity. See 9 lOl(a)(44)(A)(ii) of the Act. The petitioner has not claimed or 
submitted evidence to establish the petitioner's sole employee, who is described as either a warehouse worker 
or a sales representative, or its two contracted employees, are employed in managerial, supervisory, or 
professjonal positions. Although the petitioner's "management consultant" has been given the title of "vice 
presiddnt" on the employee list submitted in response to the request' for evidence, his actual duties, and the 
scope 'knd extent of his employment, have not been described. Going on record without supporting 
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documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
~atterlof ~ofici, 22 I&N Dec. at 165. Based on the above, the MO concurs with the director's finding that 
the beljeficiary will not be supervising a staff of managerial, supervisory or professional employees. An 
individLa1 whose duties encompass duties of a first-line supervisor will not be considered to be acting in a 
managbrial capacity merely by virtue of his or her supervisory duties unless the employees supervised are 
profess)onal. Section 10 1 (a)(44)(A)(iv) of the Act. 
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 Counsel asserts on appeal that the director failed to recognize the concept of a "function manager or 
executihe" and placed undue emphasis on the petitioner's staffing levels and organizational hierarchy. 
counsel's assertion is not persuasive. 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 
"essendal function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 
5 1101(a)(44)(~)(ii). The term "essential function" is not defintd by statute or regulation. If a petitioner 
claims bhat the beneficiary is managing an essential function, the petitioner must furnish a detailed description 
of the beneficiary's duties that identifies the function with specificity, articulates the essential nature of the 
function, and establishes the proportion of the beneficiary's daily duties attributed to managing the essential 
function. 8 C.F.R.5 214:2(1)(3)(ii): In addition, the petitioner's description of the beneficiary's daily duties 
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must demonstrate that the beneficiary manages the function rather than performs the duties related to the 
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function. An employee who primarily performs the tasks necessary to produce a product or to provide 
services is not considered to be employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 
F.3d 305 (Table), 1995 WL 576839 (9th Cir, 1995)(citing Matter of Church Scientology International, 19 
I&N D~C. 593,604 (Comm. 1988)). 
LIN 05 030 51335 
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Beyond the required description of the job duties, CIS reviews the totality of the record when examining the 
claimei managerial or executive capacity of a beneficiary, including the petitioner's organizational structure, 
the duties of the beneficiary's' subordinate employees, the presence of other employee's to relieve the 
benefi&ary from performing operational duties, the nature of the petitioner's business, and any other factors 
that will contribute to a complete understanding of a beneficiary's actual duties and role in a business. In the 
case ofia function manager, where no subordinates are directly supervised, these other factors may include the 
benefidiary's position within the organizational hierarchy, the depth of the petitioner's organizational structure, 
the scope of the.beneficiary's authority and its impact on the petitioner's opkrations, the indirect supervision 
of empjoyees within the scope of the function managed, and the value of the budgets, products, or services 
that thd beneficiary manages. 
~lthoubh counsel correctly asserts that the regulations set forth requirements for a "function manager," 
counsel has not identified .the specific function claimed to be managed or directed by the beneficiary, nor has' - 
counsel provided evidence that the beneficiary is primarily engaged in the management or direction of the 
managdment of an essential function for the petitioning company. Without documentary evidence to support 
the cld?m, 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); 
~atterlof ~aureano, 19 I&N Dec. 1 (BIA 1983); Matter of   am irk-~anchez, 17 I&N Dec. 503, 506 (BIA 
1980). / As discussed above, the record does not contain a detailed description of the beneficiary's actual, 
duties, Ithe proportion of time allocated to each duty, or evidence that the beneficiary performs primarily 
manag(rial or executive duties, therefore, it cannot be concluded that he will primarily manage an essential 
 . . 
function. 
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counsel correctly observes that a c6mpany's size alone, without talung into account the reasonable needs of 
the orgknization, may not be the determining factor in denying a visa' to a multinational manager or executive. 
See sedtion 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C). However, it is appropriate for CIS tb 
considkr the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small dersonnel size, the absence of employees who would perform the non-managerial or ion-executive 
operatibns of the company, or a "shell company" that does not conduct business in a regular and continuous 
manned. See, eg Systronics Corp. v INS, 153 F Supp. 2d 7, 15 (D.D.C. 2001). If staffing levels are usedas 
a facto: in determining whether an individual is acting in a managerial or executive capacity, CIS must take 
into aciount the reasonable needs of the organization in light of the overall purpose and stage of development 
of the 'organization. Although counsel asserts that the director overlooked the staffing and organizational 
information submitted, a review of the director's decision shows that she gave proper consideration to the 
petitioder's claimed staffing levels, including both direct and contracted employees, and reasonably concluded 
that thk petitioner did not have sufficient staff to relieve the beneficiary from performing many non- 
manag4rial duties ass6ciatedwith the day-to-day operations of the company. 
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At the time of filing, the petitioner was a two-year old import and wholesale distribution company claiming 
gross ahnual income of $250,000. At the time of filing, the petitioner employed one warehouse employee, 
one commissioned sales representative, and one contracted management consultant. Although requested by 
the director, the petitioner did not provide job descriptions for the company's employees. Failure to submit 
reqriestlkd evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
103.2(b)(14). The nature and scope of the duties perfomed by the sales representative are unclear, as the 
LIN 05 030 51335 
Page 10 
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petitio$er has submitted two different sales commission agreements, one of which assigns the sales 
representative to a particular customer, and one of which identifies the representative as a "general sales 
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agent."i 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 
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petitiozier submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). Although requested by the director, the petitioner did not submit a 2004 IRS Form 
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1099 for either of its contracted employees, and it cannot be concluded that either employee provides services 
to the bompany on a full-time basis. ~dditionall~, the petitioner has not explained how the services of the 
contracted employees obviate the need for the beneficiary to primarily conduct the petitioner's business, 
particularly in the areas of purchasing and sales. Given that the petitioner is primarily an import and sales 
compahy, it is not clear how a single commissioned representative would perfonn all of the company's day- 
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to-day sales activities. 
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Moreover, the petitioner has a reasonable need for employees to perfonn duties associated with marketing, 
importing, domestic distribution, purchasing, inventory, bookkeeping, and routine administrative and clerical 
tasks ihherent to the day-to-day running of its office. It has not been established that the beneficiary's staff 
would /relieve him from performing the majority of these non-qualifying tasks as of the date of filing. 
~e~ardless, the reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in. the 
context of reviewing the claimed managerial or executive duties. The petitioner must still establish that ;he 
benefidiary is to be employed in the United States in a primarily managerial or executive capacity, pursuant to 
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sections 101(a)(44)(A) and (B) or the Act. 
 As discussed above, the petitioner has not established this 
essentisl element of eligibility, as the beneficiary's job description includes a number of non-qualifying duties. 
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Based ;,on the record of proceeding, the director reasonably concluded that the beneficiary would have to 
particibate extensively in the day-to-day operations of the company, and that such non-managerial tasks 
would Iprevent him from performing primarily, managerial or executive duties. The petitioner has not 
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submitied evidence on appeal to overcome the director's determination on this issue. 
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The pdtitioner indicates that the U.S. company anticipates hiring additional managerial and administrative 
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staff as the company expands. However, the petitioner's prospective staffing levels will not be considered in 
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this proceeding. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. 
A visa betition may not be approved at a future date after the petitioner or beneficiary becomes eligible under 
a new Set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
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Based bn the foregoing discussion, the petitioner has failed to establish that the beneficiary will be employed 
in the !united States in a primarily managerial or executive capacity. Accordingly, the appeal will be 
dismissed. I 
~e~onh the decision of the director, the remaining issue to be discussed in the present matter is whether the 
petitioder has established that a qualifying relationship exists with the beneficiary's overseas employer. To 
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establish a "qualifying relationship" under the Act and the rkgulations, 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 
"brancy' offices), or related as a "parent and subsidiary" or as "affiliates." 
 See generally section 
101(a)(15)(~) of the Act; 8 C.F.R. tj 214.2(1). 
LIN 05 030 51335 
Page 1 ,l 
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The petitioner states that it is a subsidiary of 
 Brazil. The 
petitioner's articles of incorporation indicate that the company is authorized to issue 1,000,000 shares of stock 
with apar value of $1.00 per share. As evidence of the foreign entity's ownership of the U.S. company, the 
petitioner submitted: (1) a notanzed letter from who is identified as the petitioner's vice 
presldlnt, dated Apnl 23, 2003, stating that 510.shares of the 1,000 shares issued to date are owned by the 
forelgr! entity; and (2) the petitioner's stock certificate number e~ght, issuing 510 shares of the petitioner's 
stock tb the foreign entity on April 1,2003. 
The regulation and case law confirm that ownership and control are the factors that must be examined m 
determining whether a qual~fying relationship exists between United States and foreign entitles for purposes 
of thls ha classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
~attet of Siemens Medlcal Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal nght of 
possession of the assets of an entity with full power and author~ty to control; control means the direct or 
indireyt legal right and author~ty to d~rect the establishment, management, and operat~ons of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
I 
As general evidence of a petitioner's cla~med qualifying relat~onship, stock certificates alone are not suffic~ent 
ev~dence to detennlne whether a stockholder maintams ownership and control of a corporate entity. The 
corpor?te stock certificate ledger, stock certificate registry, corporate bylaws, and the mlnutes of relevant 
annualj shareholder meetings must also be examlned to determine the total number of shares issued, the exact 
/I 
number issued to the shareholder, and the subsequent percentage ownership and its effect on, corporate 
control. Addit~onally, a petitioning company must disclose all agreements relating to the voting of shares, the 
11 
distnbution of profit, the management and direction of the subsid~ary, and any other factor affecting actual 
control of the ent~ty. See Matter of Siemens Medical Systems, Inc., supra. W~thout full d~sclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
Based on the l~m~ted evidence submitted, the AAO cannot conclude that the U.S. company is a qualifying 
subsidfary of the foreign ent~ty. The petitioner has not prov~ded copies of its stock certificates numbers one 
through seven, nor a copy of the company's stock transfer ledger, which would show the total number of 
shareholders, the number of shares issued, and the resulting distnbution of ownership and control. Golng on 
'I 
record without supporting documentary evidence is not sufficient for purposes of meetlng the burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
I 
Furthermore, although the petitioner has not submitted copies of any of its IRS Forms 1120, U.S. Corporation 
Income Tax Returns, the record does contain a Form 7004, Application for Automat~c Extension of Time to 
Flle Corporation Income Tax Return for the 2004 tax year. The petitioner indicated on Form 7004 that it will 
file Form 1120S, U.S. Income Tax Return for an S Corporation (Form 1120s). To qualify as a subchapter S 
corporation, a corporation's shareholders must be individuals, estates, certain trusts, or certain tax-exempt 
organizations, and the corporation may not have any foreign corporate shareholders. See Internal Revenue 
Code, $ 1361(b)(1999). A corporation is not elig~ble to elect S corporation status if a foreign corporation 
owns it in any part. Accordingly, since the petitioner would not be el~gible to elect S-corporation status with 
LIN 05 030 51335 
Page 12 
a foreign parent corporation, it appears that the U.S. entity is owned by one or more individuals residing 
within the United States rather than by a foreign entity. This conflicting information has not been resolved. 
Based on the foregoing discussion, the petitioner has not established that there is a qualifying relationship 
between the U.S. and foreign entities. For this additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
spenc&r Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
~inalli, the AAO acknowledges the beneficiary's assertion in a statement submitted on appeal that USCIS had 
previo$sly approved an L-1A petition filed on his behalf by the instant petitioner. It must be emphasized that 
that each petition filing is a separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In making a 
I1 
determination of statutory eligibility, CIS is limited to the information contained in that individual record of 
procee)ing. See 8 C.F.R. 5 103.2(b)(16)(ii). If the previous nonimmigrant petition was approved based on the 
same +supported assertions that are contained in the current record, the approval would constitute material 
and gross error on the part of the director. The AAO is not required to approve applications or petitions 
where kligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. 
See, e.; Matter of Church Scientology International, 19I&N Dec. 593, 597 (Comm. 1988). It would be 
absurdito 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 AAO's authonty over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory declsion of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 
2001),,cert. denied, 122 S.Ct. 51 (2001). 
The pditionwill be denied and the appeal dismissed for the above stated reasons, with each considered as an 
'i 
independent,and alternative basis for the decision. 
 In visa petition proceedings, the burden of proving 
I 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 if the Act, 8 U.S.C. 5 1362. 
Here, that burden has not been met. Accordingly, the director's decision will be affirmed and the petition kill 
be denied. 
I 
ORDER: The appeal is dismissed.