dismissed L-1A Case: Computer Consultation Services

'Identifyingdata dp,letedtG,
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PUBLICcorv
u.s.Department of Homeland Security
20 Mass. Avenue, N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: WAC 04 081 51120 Office: CALIFORNIA SERVICE CENTER Date: JUN 0 4 2007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(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.
~-~~
Robe~mann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 081 51120
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 managing director 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 corporation organized under the laws
of the State of California and is engaged in computer consultation services. The petitioner asserts that it is the
subsidiary of Anorak, Ltd., located in the United Kingdom. The beneficiary was initially granted a one-year
period in L-IA status to open a new office in the United States, from February 11, 2002 until February 11,
2003. The Director, California Service Center denied the petitioner's request for an extension of the new
office petition on July 14, 2003 (WAC 03 101 50060). The petitioner now seeks to continue to employ the
beneficiary until February 11,2007.
The director denied the petition concluding that the petitioner 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 U.S. company
and the foreign entity have a qualifying relationship.
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 asserts that the petitioner
met its burden of proof and that the beneficiary qualifies for the classification sought. Counsel submits a brief
and additional documentary evidence in support of the appeal.
To establish eligibility for the L-l 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.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (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.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
WAC 04 081 51120
Page 3
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies himlher to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C.F.R. § 214.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (l)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined III
paragraph (l)(l )(ii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(E) Evidence of the financial status of the United States operation.
The first issue in the present matter is whether petitioner established that the beneficiary will be employed by
the United States entity in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
WAC 04 081 51120
Page 4
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The nonimmigrant petition was filed on January 29, 2004. In a supporting letter from petitioner's counsel, the
beneficiary's duties were described as follows:
As CEO and Business Strategist, [the beneficiary] is able to freely exercise his substantial
authority in the capacity of creating both generalized and categorized policy for the
organization. [The beneficiary's] duties include seeking out new opportunities for the firm by
developing market research regarding competitors and analyzing the demographic of
potential clients. Thus [the beneficiary] has discretion to make contracts for the company
with a high potential for high profits or losses. [The beneficiary] is also responsible for hiring
and supervising contractors who perform work for clients. [The beneficiary's] management
strategy is to "lead from the front" and thus he has provided hands-on assistance to clients
and technicians alike, but only to show others what can be accomplished. Although [the
beneficiary] also engages in non-management functions within the company, this is not
unusual for a start-up business; notably, seventy percent of [the beneficiary's] job duties are
of a managerial or executive nature.
* * *
In the capacity of CEO, [the beneficiary's] work is managerial rather than production or
service-oriented. [The beneficiary] is responsible for developing the business. He does this by
researching business opportunities and potential clients, performing market research on
competitors, and by negotiating consulting and sales contracts. He also generally supervising
[sic] subcontractors who actually provide the services or products he has sold. As the sole
executive in the US office, he is also responsible for all other executive tasks, such as
WAC 04 081 51120
Page 5
company policy and operations. Because the company is new, and has only 4 employees, on
occasion [the beneficiary] must also perform administrative tasks.
The petitioner stated that the petitioner utilizes the services of an account manager and three technicians, who
are all employed on a contract basis. The petitioner submitted evidence related to services provided by three
individuals. The most recent evidence submitted was dated in August 2003, approximately six months prior to
the filing of the petition.
On February 10, 2004, the director requested additional evidence. Specifically, the director requested: (1) a
more detailed description of the beneficiary's duties including the percentage of time the beneficiary spends
on each duty; (2) an organizational chart for the U.S. company clearly identifying the beneficiary's position
and the names, job titles, and job duties of all employees working under his supervision; (3) copies of the
petitioner's California Forms DE-6, Quarterly Wage and Withholding Report, for the last four quarters; and
(4) a list of all employees who worked for the U.S. company since the date of establishment, including names,
job titles, beginning and ending dates of employment, and source of wages (salary, wage, or commission).
In a response received on May 4, 2004, the petitioner stated that the beneficiary is responsible for the
following job functions:
1. Staff hiring - Since the beginning he has been responsible for the interviewing and
hiring of all [the petitioner's] staff. ... As the leader in developing a small business,
he has been figure heads [sic] for each one of these positions, and managed each
person individually on a daily basis. He spends as much time as necessary to
interview project staff for project work, this is not a daily need, but can be time
consuming during busy periods.
2. Job distribution - As the manager for each individual in the business, he allocates
work schedules and provided direction on how each aspect of work is to be done ....
He would oversee the negotiations with clients in creating business opportunities and
visited with [the former account manager] when out discussing sales strategies with
business partners and customers .... He ... is currently negotiating a global
partnership contract on behalf of [the petitioner] in the US and UK that would vastly
increase the business profile within the integration market. This job is a regular and
consistent role which involves [the beneficiary] actively managing the daily routine
of technical staff. He is regularly coordinating with staff to assess work order
requirements, problem resolution and time management. ...
3. Project planning - When developing integration projects, [the beneficiary] uses his
years of Project Management skills to design and develop an end to end project plan,
for the purpose of integrating client systems. Once the plan has been approved by the
client, [the beneficiary] will hire the necessary staff to fulfill the plan as written and
[the beneficiary] will oversee the integration of the project plan on behalf of his
clients .... When new projects are initiated, [the beneficiary] can be involved for up
to 3-4 hours per day in the development of project plans & staff recruitment, prior to
initiating the physical project.
WAC 04 081 51120
Page 6
4. Fund raising - As the senior executive in the United States, [the beneficiary] is
responsible for planning the growth strategies for the business ... [The beneficiary]
is actively and continually seeking ways to grow the business and spends a number of
hours (10 - 15 approx) per week writing business plans and researching strategic
growth opportunities for the company's future ....
5. Budgeting - He is solely responsible for the success of this business venture in the
United States. In order to do this [the beneficiary] is responsible for balancing the
check books, and ensuring funds are available for daily business needs. He budgets
carefully, ensuring that there are more funds coming in then [sic] going out. He will
attend to financial matters on a monthly basis, reviewing the company books with the
company accountant to ensure targets are met.
The petitioner indicated that it currently employs a technical engineer who has worked for the petitioner on a
contract basis since August 2002, and a Unix databa r who was hired as a contractor on
February 23, 2004. The petitioner _temploye as an account executive from March
2002 through September 2002, an as a server technician from July 28, 2003 through August 15,
2003. The petitioner's organizational chart depicts the technical engineer, Unix specialist and a secretarial
assistant under the beneficiary's supervision. The petitioner states that the secretary is a "shared office
resource" included in the cost of its sub-leased office. The evidence submitted indicates that the petitioner
took occupancy of its current lease on March 1, 2004, subsequent to the filing of the petition.
On May 17, 2004, the director denied the petition. The director determined that the petitioner had failed to
establish that the beneficiary would be employed in a primarily managerial or executive capacity. The director
observed that the beneficiary is the only permanent employee of the company, and noted that the fact that the
beneficiary manages IT projects for the petitioner's office does not establish eligibility for this visa
classification. The director concluded that the beneficiary would be performing many of the day-to-day
operations and tasks necessary to provide services, including planning IT projects and marketing the
petitioner's services, and that such non-managerial duties would require the majority of the beneficiary's time.
On appeal, counsel for the petitioner asserts that the beneficiary can be considered to be employed in both an
executive capacity and a managerial capacity because he "directs the U.S. entity" and manages two
subordinate employees who are professionals by virtue of their bachelor's degrees. Counsel asserts that only
an executive would have the authority to meet with "high level corporate executives" and talk to potential
business partners. Counsel contends that the beneficiary "only provides technical input through industry
knowledge to the subcontracting firms that he uses to provide technical services." Counsel further alleges that
the contractors the beneficiary directs are "either professionals or managers and executives and not first line
employees." In addition, counsel states that the beneficiary is negotiating the stock and intellectual property
purchase of another finn, which would result in his role as chief executive officer expanding to cover both W­
2 and 1099 employees.
Counsel asserts that although the petitioner's organizational structure is not complex, the beneficiary will still
be employed in a qualifying capacity because he plans, organizes, directs and controls the organization's
major functions through other employees. Counsel states that the petitioner's four contracted employees
WAC 04 081 51120
Page 7
provide the services and products of the company while the beneficiary manages their work and performs "all
executive tasks." In addition, counsel emphasizes the beneficiary's responsibility for negotiating all sales and
consulting contracts as evidence of his employment in a managerial or executive capacity, noting that such
contracts have the potential to be worth "many tens or hundreds of thousands."
Finally, counsel stresses that U.S. Citizenship and Immigration Services must consider the reasonable needs
of the petitioning company in light of its overall purpose and stage of development if it takes staffing factors
into account as a factor in determining whether a beneficiary is employed in a managerial or executive
capacity . Counsel states that the petitioner is just over two years old and "is operating in a period of
significant economic turmoil." Counsel asserts that it is reasonable for the company to employ the beneficiary
and three contract workers at its current stage of development , and that such contractors "perform the sales
and consulting services provided by [the petitioner]." Counsel cites an unpublished matter in which a sole
employee of a U.S. company was found to be qualified as a manager or executive.
Upon review , counsel's assertions are not persuasive. When examining the executive or managerial capacity
of the beneficiary, the AAO will look first to the petitioner 's description of the job duties . See 8 C.F.R.
§ 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be
performed by the beneficiary and indicate whether such duties are either in an executive or managerial
capacity. Id.
The definitions of executive and managerial capacity have two specific requirements. First, the petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the definitions.
Second, the petitioner must prove 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
1533 (Table), 1991 WL 144470 (9th Cir. July 30 ,1991).
Here, the petitioner repeatedly emphasizes that the beneficiary exercises authority over the petitioning
company as its chief executive officer and sole full-time employee. While the AAO does not doubt the
beneficiary's discretionary authority over the company, the record fails to establish that the beneficiary's
actual duties are primarily managerial or executive in nature .
The petitioner's description of the beneficiary's duties indicates that he is personally responsible for
developing market research regarding competitors and analyzing the demographic of potential clients,
marketing and selling the petitioner's services, performing the day-to-day financial operations of the
company, and designing customer projects. The petitioner has not persuasively demonstrated that any of these
operational tasks would fall under the statutory definitions of managerial or executive capacity. The petitioner
emphasizes that the sales negotiations performed by the beneficiary are not routine sales tasks that could be
performed by a lower-level sales employee because of their potentially "high value." However , as discussed
further below, there is no evidence that the petitioner employed any lower-level employees to sell its products
and services on a day-to-day basis. While the petitioner may require the beneficiary to perform management­
level duties associated with business development activities occasionally, the record does not establish that
these are his primary duties . In addition , activities such as "project design" and seeking client 'approval
constitute providing a service to a company's clients as opposed toprimarily acting .in a managerial or
WAC 04 081 51120
Page 8
executive capacity over the employees who manage and provide the service or product to the customer.
Further, activities centered on marketing or managing a company's "checkbook" are routine functions and
have not been demonstrated to constitute managerial or executive duties. 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 Intn '1., 19 I&N Dec. 593, 604 (Comm. 1988).
In addition, portions of the beneficiary's position description are not plausible when considered in the context
of the company's organizational structure at the time of filing. As discussed below, at the time of filing the
petitioner had one employee and what appeared to be one or two irregular contract employees and yet counsel
asserts that beneficiary's position is a "regular and consistent role which involves [the beneficiary] actively
managing the daily routine of technical staff' and "technicians are out in the field resolving problems, [the
beneficiary] is in the office, providing direction and guidance where necessary." Such assertions are
unpersuasive as the underlying factual presumptions (that the petitioner has a staff of employees) is not
supported by any documentary evidence. As noted above, the description also reveals that the petitioner is
actively involved in market research, financial, sales, marketing and project design activities, and may on
occasion act as a first-line supervisor for the irregular contract employees that are utilized.
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the
beneficiary spends on them, other than repeating the unsupported assertion that 70 percent of the beneficiary's
time is allocated to managerial duties. This failure of documentation is important because several of the
beneficiary's daily tasks, as discussed above, do not fall directly under traditional managerial duties as defined
in the statute. For this reason, the AAO cannot determine whether the beneficiary is primarily performing the
duties of a manager or executive. See, e.g., IKEA US, Inc. v. U.s. Dept. of Justice, 48 F. Supp. 2d 22, 24
(D.D.C. 1999).
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of
the organization, may not be the determining factor in denying a visa to a multinational manager or executive.
See § 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). However, it is appropriate for U.S. Citizenship
and Immigration Services (USCIS) 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. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C.
2001). The size of a company may be especially relevant when CIS notes discrepancies in the record and
fails to believe that the facts asserted are true. Id.
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather the
AAO must determine based on a totality of the record whether the description of the beneficiary's duties
WAC 04 081 51120
Page 9
represents a credible perspective of the beneficiary's role within the organizational hierarchy. The record
does not demonstrate that the beneficiary has subordinate employees who could market and sell the
company's products and services, provide networking and computer consultancy services, and perform the
routine administrative, clerical, and financial operations inherent in operating the business.
While counsel correctly notes that contract employees may be considered in determining whether the
beneficiary has a subordinate staff to relieve him from performing non-qualifying duties, the petitioner in this
matter has not adequately documented its regular use of contract workers, and appears to have misrepresented
the actual number of employees as of the date of filing. At the time of filing, the petitioner indicated that an
account manager assisted the beneficiary with sales operations and business development tasks, while two to
three technicians provided the petitioner's consulting services. However, in response to the director's request
for evidence, the petitioner revealed that the account manager had not worked for the petitioner since
September 2002, more than a year before the petition was filed. It is incumbent upon the petitioner to resolve
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining
evidence offered in support of the visa petition. I d. at 591.
One of the petitioner's claimed contracted technicians worked for the company for 18 days in July and August
2003 and could no longer be considered a contract employee in January 2004. The petitioner's Unix database
administrator was hired subsequent to the filing of the petition. The petitioner must establish eligibility at the
time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N
Dec. 248 (Reg. Comm. 1978). Regardless, there is no evidence of wages paid to this emplo~
contracted worker whose claimed employment dates coincide with the filing of the petition is _
the technical engineer. While he received a Form 1099 from the petitioner for 2003, there is insufficient
evidence that the petitioner was regularly utilizing his services in January 2004 when the petition was filed,
particularly since the petitioner did not claim to employ a technical engineer in its initial description of its
staffing levels. Again, it is incumbent upon the petitioner to resolve any inconsistencies in the record through
the submission of independent objective evidence. Any attempt to explain or reconcile such inconsistencies
will not suffice unless the petitioner submits competent objective evidence pointing to where the truth lies.
Matter of Ho, 19 I&N Dec. at 591-92. The petitioner did not submit a copy of a contract with the technical
engineer, invoices for his services, or evidence of recent payments made to him by the petitioning company.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Overall, the lack of evidence of the petitioner's regular use of contracted employees to provide the services of
the company undermines the petitioner's claim that the beneficiary is relieved from providing such services.
The petitioner has neither presented sufficient evidence to document the existence of its claimed contract
employees nor identified how often they work for the petitioner and how they relieve the beneficiary from
having to perform the routine functions necessary to provide the petitioner's product or service (such as
WAC 04 081 51120
Page 10
project design or sales). Additionally, the petitioner has not explained how the services of the contracted
employees obviate the need for the beneficiary to primarily conduct the petitioner's administrative, financial
and marketing functions. Without documentary evidence to support its statements, the petitioner does not
meet its burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. The AAO
acknowledges the petitioner's claim that the sub-lease for its current office includes the services of a
secretarial assistant as a shared resource with its lessor. However, since the petitioner did not sign its current
lease until after the petition was filed, any services provided by the secretarial assistant are not relevant to this
proceeding. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A
visa petition 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., supra.
Based on the petitioner's representations, it does not appear that the reasonable needs of the petitioning
company might plausibly be met by the services of the beneficiary alone, or by the beneficiary and one
contract employee whose terms of employment have not been established. Regardless, 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 the beneficiary is to be employed in the
United States in a primarily managerial or executive capacity, pursuant to sections 101(a)(44)(A) and (B) or
the Act. As discussed above, the petitioner has not established this essential element of eligibility.
On appeal, counsel cites a number of unpublished decisions and asserts that the AAO previously approved
petitions involving facts that are similar to those in the instant matter. Counsel has furnished no evidence to
establish that the facts of the instant petition are analogous to those in the unpublished decisions. While 8
C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the
administration of the Act, unpublished decisions are not similarly binding. Counsel has not cited any
precedent AAO decisions. Counsel cannot rely on unpublished decisions as a substitute for the petitioner's
burden to show eligibility in this particular case. These citations are not persuasive and will not be granted
any evidentiary weight in these proceedings.
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily
managerial or executive capacity. Counsel indicates that the petitioner intends to hire additional employees
and may acquire another company in the future. However, the petitioner must establish eligibility at the time
of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N
Dec. 248 (Reg. Comm. 1978). As of the date of filing, the petitioner has not reached the point that it can
employ the beneficiary in a predominantly managerial or executive position.
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in
a primarily or managerial capacity. Accordingly, the appeal will be dismissed.
The second issue in this matter concerns whether the petitioner established the existence of a qualifying
relationship between the U.S. company and the beneficiary's foreign employer, as required by 8 C.F.R. §
214.2(l)(3)(i). 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
WAC 04 081 51120
Page 11
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section
101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1).
The pertinent regulations at 8 C.F.R. § 214.2(1)(I)(ii) define the terms "parent," "subsidiary," and "affiliate" as
follows:
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries.
* * *
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity; or owns,
directly or indirectly, half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact
controls the entity.
(L) Affiliate means
(1) One of two subsidiaries both of which are owned and controlled by the
same parent or individual, or
(2) One of two legal entities owned and controlled by the same group of
individuals, each individual owning and controlling approximately the
same share or proportion of each entity.
On the Form 1-129, the petitioner stated that it is a subsidiary of _located in the United Kingdom,
and indicated that the both companies are owned by the same three individuals in equal proportions. The
petitioner submitted its articles of incorporation, indicating that the U.S. company is authorized to issue 2,000
shares of common stock. The minutes of the petitioner's organization meeting held on October 30, 2001,
states that 1,040 shares would be issued to . for consideration of $15,600, while the beneficiary,
and would each be issued 320 shares in exchange for $4,800. The petitioner
also submitted its stock transfer ledger indicating the same ownership structure.
The director subsequently requested additional evidence to establish the claimed qualifying relationship,
including copies of the U.S. company's stock certificates, and evidence to show that the claimed foreign
parent company has paid for its interest in the U.S. entity. The director noted that the evidence should include
copies of the original wire transfers from the parent company, as well as canceled checks, deposit receipts or
other evidence detailing monetary amounts for the stock purchase, as well as an explanation regarding any
funds not originating with the foreign entity.
In response, the petitioner stated that the funds for the purchase of stock in the petitioning company were
provided from the beneficiary's United Kingdom bank account, through the beneficiary's attorneys. The
WAC 04 081 51120
Page 12
petitioner submits a copy of the beneficiary's personal bank account statement for November 2001, which
reflects a wire transfer in the amount of $49,589.33 originating with the U.K. law firm. Counsel indicates that
the beneficiary transferred $30,000 from these funds to an investment account, and subsequently withdrew
funds from this account in the amounts $7,000, $5,000, $6,500 and $1,800, which were deposited into the
petitioning company's checking account between January 24, 2002 and April 25, 2002. The petitioner stated:
"This is a total of $20,300.00 made to [the U.S. entity] which is the equivalent of full payment for shares for
Anorak Ltd (1040 shares) and [the beneficiary] 320 shares." The evidence submitted included deposit
receipts and bank statements.
The petitioner also submitted copies of four stock certificates issued by the petitioning company, including an
un-numbered certificate issued to the foreign entity for 1,040 shares, an un-numbered certificate issued to the
beneficiary for 32~cate number 3 issued to for 320 shares; and certificate
number 2 issued t~1for 320 shares. The AAO notes that the petitioner's stock ledger indicates
that stock certificate number 4 was issued t_, while stock certificate number 2 was issued to
the beneficiary. It is incumbent upon the petit= 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.
at 591-92.
The director denied the petition concluding that the petitioner had failed to establish that the U.S. company
and the foreign entity have a qualifying relationship. The director noted that the petitioner did not demonstrate
that its claimed parent company had actually paid for its stock ownership, as the evidence submitted indicated
that all funds came from the beneficiary's personal accounts. The director determined that since the petitioner
had failed to show any participation of the foreign entity in the purchase of stock in the petitioning company,
no parent-subsidiary relationship could be established.
On appeal, counsel for the petitioner asserts that the U.S. company is both a subsidiary and an affiliate of the
foreign entity. Counsel asserts that the foreign entity owns more than 50 percent of the U.S. company's stocks
thereby establishing ownership and control of the petitioner by the U.K. company. Counsel further states that
the petitioner could be characterized as an affiliate of the foreign entity because the same three individuals
ultimately own an equal share in both companies. Counsel asserts that the two entities are controlled by the
same group of individuals, with each individual owning and controlling approximately the same share or
proportion.
Counsel contends that the petitioner did, in fact, provide evidence of the foreign entity's purchase of the U.S.
company's stock, and explains as follows:
In the instant case, [the beneficiary] entered into an oral agreement with _ and.
_ then the sole owners of , to receive an ownership interest in ~and the
newly-formed [U.S. company] in exchange for [the beneficiary] providing the funds for
_topurchase shares of [the U.S. company].
WAC 04 081 51120
Page 13
Counsel states that "we may infer the existence of the oral agreement based upon the beneficiary's purchase of
the stocks using his own funds and subsequent assignment of ownership of the stocks to the foreign entity."
Counsel's assertions are not persuasive. The regulation and case law confirm that ownership and control are
the factors that must be examined in determining whether a qualifying relationship exists between United
States and foreign entities for purposes of this visa classification. Matter of Church Scientology
International, 19 I&N Dec. 593 (BIA 1988); see also Matter ofSiemens Medical 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 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.
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. Additional
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws,
minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the
ownership interest.
Upon review, there is inconsistent evidence of ownership in the record. As noted by the director, the
petitioner has not been able to demonstrate that the foreign organization paid the stated $15,600 purchase
price for the stocks purportedly issued to it. Although counsel now tries to explain why the beneficiary paid
for both his share in the U.S. company and the foreign entity's share, the petitioner was specifically instructed
to provide an explanation for any funds not originating with the foreign entity when responding to the request
for evidence. It is not clear why the alleged oral agreement was not mentioned at that time.
Further, counsel's explanation regarding the terms of the alleged oral agreement contradicts documentary
evidence in the record which establishes the means by which the beneficiary acquired an ownership interest in
the foreign entity. Specifically, counsel states that the oral agreement provided that the beneficiary would
receive an ownership interest in Anorak and the U.S. company in exchange for providing the funds for
Anorak to purchase shares of the U.S. company. However, in response to the request for evidence, the
petitioner submitted the minutes of an extraordinary board meeting of the foreign entity held on September
20, 2000, which included the following resolution:
As agreed by the current board of Directors of ..- and _
_ of I. it has been proposed that [the ben~f_
~d a full time position to the board of Directors of ~as of 31st December
2000.
[The beneficiary] will join -liiithrOUh the purchase of in
exchange for 33.330/0 of the shares of and the waiver of salary for the year 2001
WAC 04 081 51120
Page 14
and being his tenure with the company in accordance with conditions laid out in a separate
contractual employment agreement.
The petitioner also submitted a copy of the beneficiary's employment agreement with the foreign entity,
which stipulated that the beneficiary would waive his salary for 2001, "in lieu of good will and investment
into the Company and the Subsidiary," and that "such waiver shall be taken as the balance of the transaction
giving the employee full and equal shares in the Company."
Thus, while counsel asserts that the beneficiary made an oral agreement to acquire an ownership interest in
the foreign entity by investing funds in the petitioning company on 's behalf, the foreign entity's
documentation indicates that the beneficiary's ownership interest in the foreign entity was given in exchange
~ment to waive his salary for one year, and his agreement to sell a business known as '
_" to the foreign entity. The AAO finds the written resolution and employment agreement
submitted more persuasive than counsel's unsupported claim of an oral agreement between the beneficiary
and the foreign entity. The unsupported statements of counsel on appeal or in a motion are not evidence and
thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984);
Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). The petitioner has not submitted evidence on
appeal to overcome the director's conclusion that the petitioner's claimed parent company did not in fact pay
for its interest in the U.S. company.
Finally, counsel's assertion that the petitioner and foreign entity have an affiliate relationship due to common
direct and indirect ownership by the same three individuals is not persuasive, as such argument would also be
predicated on a finding that the foreign entity, and the two other individual shareholders, actually paid for
their interests in the U.S. company. As discussed above, the record does not establish that anyone other than
the beneficiary invested in the petitioner. The inconsistencies between the petitioner's stock certificates and
stock transfer ledger, as noted above, further call into question the actual ownership of the U.S. company.
Based on the foregoing discussion, the petitioner has not established that the U.S. and foreign entities have a
qualifying relationship. For this additional reason, the appeal will be dismissed.
Beyond the decision of the director, the AAO finds insufficient evidence to establish that the beneficiary was
employed by the foreign entity for one continuous year within the three years preceding the filing of his initial
petition for L-IA status. The evidence submitted with this petition, including resolutions from the foreign
entity, corporate documents, and the beneficiary's employment agreement, indicate that the beneficiary's full­
time employment with the foreign entity commenced on December 31, 2000. The beneficiary was admitted to
the United States as a visitor in B nonimmigrant status on November 4, 2001 and was subsequently granted a
change of status to L-IA on February 11, 2002. The time the beneficiary spent in the United States as a
visitor cannot be considered in calculating his period of qualifying employment with the foreign entity.
Therefore, he was not employed by the foreign entity for one year and he is ineligible for this visa
classification. For this additional reason, the petition cannot be approved, and the approval of the initial
petition is subject to revocation based on the evidence submitted with this petition. See 8 C.F.R. §
214.2(l)(9)(iii).
WAC 04 081 51120
Page 15
Finally, the AAO notes that the regulation at 8 C.F.R. § 214.2(1)(l4)(i) provides, in pertinent part, that a
petition extension may be filed only if the validity of the original petition has not expired. In the present case,
the beneficiary's authorized period of stay expired on February 11, 2003. Although the petitioner previously
filed a timely request for an extension, that petition was denied on July 14, 2003. This petition was filed on
January 29,2004. Pursuant to 8 C.F.R. § 214.1(c)(4), an extension of stay may not be approved for an
applicant who failed to maintain the previously accorded status or where such status expired before the
application or petition was filed. As the extension petition was not timely filed, it is noted for the record that
the beneficiary is ineligible for an extension of stay in the United States.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.