dismissed L-1A Case: Construction

U.S. Department of FIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
identifying daEa &id to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
D7 
FILE: SRC 04 223 53076 Office: TEXAS SERVICE CENTER Date: sEP 2 6 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 10 1 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
@ ~w9J& 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 04 223 53076 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner, a Florida corporation, claims to be a subsidiary of Ural Architecture, Engineering, Process 
of Construction Industry and Trade Limited Company ("Ural Ltd.") located in Turkey. The petitioner 
states that the United States entity is engaged in the construction business. Accordingly, the United States 
entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary as a 
nonimmigrant intracompany transferee (L-1A) pursuant to section 101(a)(15)(L) of the Act as an 
executive or manager for three years. The beneficiary was initially granted a one-year period of stay to 
open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay in 
order to continue to fill the position of project manager/construction supervisor. 
On February 2, 2005, the director denied the petition concluding that the record contains insufficient 
evidence to demonstrate that the beneficiary will be employed in a managerial or executive capacity. 
The petitioner subsequently filed an appeal on March 1,2005. The director declined to treat the appeal as 
a motion and forwarded the appeal to the AAO for review. On the Form I-1290B Notice of Appeal, the 
petitioner asserts: "We are submitting additional evidence which was not available before the date has 
been given as such as copies of State Quarterly Income Tax Returns for 4" quarter 2003, 1.2.3 and 4" 
Quarter of 2004." The petitioner does not submit a brief but submits copies of the U.S. company's Florida 
Form UCT-6, Employer's Quarterly Report, from October I, 2003 through December 3 1,2004. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. 
Regulations at 8 C.F.R. 
 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. The 
petitioner does not specifically identify any erroneous conclusion of law or statement of fact for the 
appeal to overcome the well-founded and logical conclusions the director reached based on the evidence 
submitted by the petitioner. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I & N Dec. 158, 
165 (Comm. 1998)(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
As noted above, the only evidence submitted in support of the appeal is the petitioner's Florida Forms 
UCT-6, Employer's Quarterly Report, for the fourth quarter of 2003 and for all four quarters of 2004. 
SRC 04 223 53076 
Page 3 
However, the director specifically requested the petitioner's last four quarterly reports in her September 
14,2004 request for evidence. In a response received on December 14, 2004, the petitioner indicated that 
the U.S. entity "was a new company for the past year and it has just a 4" quarters report.'' The petitioner 
submitted its quarterly report for the fourth quarter of 2003 identifying the beneficiary as the only 
employee. The petitioner now submits the remainder of requested evidence on appeal, but has failed to 
explain why these documents were not previously available. 
The petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for 
the record before the visa petition was adjudicated. The petitioner failed to submit the requested evidence 
and now submits it on appeal. However, the MO will not consider this evidence for any purpose. See 
Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If 
the petitioner had wanted the submitted evidence to be considered, it should have submitted the 
documents in response to the director's request for evidence. Id. Under the circumstances, the MO need 
not and does not consider the sufficiency of the evidence submitted on appeal. 
On review, the petitioner 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 states 
that the beneficiary's duties include "controlling day to day operation, activities of the company," "setting 
the standards for integrity, ethics and job performance," "directing the activities of the employees; 
assisting them establishing their objectives for sales, profits," and "providing the necessary training to 
employees of company." The petitioner did not, however, define the petitioner's goals and policies, or 
clarify the role of the subordinates that the beneficiary will supervise. 
The petitioner's description of the beneficiary's job duties submitted in response to the director's request 
for evidence indicates that he will allocate 60 percent of his time to non-qualifying duties such as 
"developing business plans and expense budgets;" "preparing estimates to customers;" "drawing plans 
and sketches;" and "calculating material and labor costs for each project." Based on the petitioner's 
representations, the beneficiary is primarily providing the services of the organization, rather than 
performing 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 'I., 19 
I&N Dec. 593,604 (Comrn. 1988). 
Based on the job description submitted with the petition, and considering the petitioner's failure to 
document the employment of any other workers as of the date of filing, the director reasonably concluded 
that the beneficiary will be performing the day-to-day operations and directly be providing the services of 
the business rather than directing such activities through subordinate employees. 
The regulation at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one year within 
the date of approval of the petition to support an executive or managerial position. There is no provision 
in CIS regulations that allows for an extension of this one-year period. If the business is not sufficiently 
operational after one year, the petitioner is ineligible by regulation for an extension. In the instant matter, 
the petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial 
or executive position. 
SRC 04 223 53076 
Page 4 
In addition, the petitioner failed to provide sufficient evidence to establish that a qualifying relationship 
exists between the foreign company and the petitioner. 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 is the same employer (i.e. one 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. Ej 214.2(1). In the 
instant petition, the petitioner claims that the U.S. entity is 50% owned and controlled by the beneficiary 
who also owns 55% of the foreign entity. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 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. 
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 petitioner submitted two stock certificates, number one and two, each indicating that the 
holder of the certificate is the owner of the petitioner. The beneficiary is one of the owners of the 
petitioner but it is not clear as to the percentage he owns of the U.S. entity. In addition, the petitioner has 
not submitted evidence that the beneficiary owns 55% of the foreign entity as claimed in the petition. The 
corporate stock certificate ledger, stock certificate registry, 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. 
Furthermore, beyond the decision of the director, the petition indicates that the beneficiary owns 55 
percent of the foreign entity. The regulation at 8 C.F.R. Ej 214.2(1)(3)(vii) states that if the beneficiary is 
an owner or major stockholder of the company, the petition must be accompanied by evidence that the 
beneficiary's services are to be used for a temporary period and that the beneficiary will be transferred to 
an assignment abroad upon the completion of the temporary services in the United States. In this matter, 
the petitioner has not furnished evidence that the beneficiary's services are for a temporary period and that 
the beneficiary will be transferred abroad upon completion of the assignment. For this additional reason, 
the appeal will be dismissed and the petition denied. 
While not directly addressed by the director, the minimal documentation of the petitioner's business 
operations raises the issue of whether the petitioner is a qualifying organization doing business in the 
United States. Specifically, under the regulation at 8 C.F.R. Ej 214.2(1)(l)(ii)(G)(2) a petitioner must 
SRC 04 223 53076 
Page 5 
demonstrate that it is engaged in the regular, systematic, and continuous provision of goods or services 
and does not represent the mere presence of an agent or office in the United States. For this additional 
reason, the appeal must be dismissed and the petition denied. 
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), 
afyd. 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). 
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. 5 1361. Inasmuch as 
counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact in this 
proceeding, the petitioner has not sustained that burden. Therefore, the appeal will be summarily 
dismissed. 
ORDER: 
 The appeal is summarily dismissed.