dismissed L-1A Case: Construction

--- 
prevent clt?ady unwa-tee. 
invasion of ee -- - - 9 3 I ,dvacr 
PUBLIC Copy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN 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. 
Rob 
_3 
&-- iemann, Chief 
Administrative Appeals Office 
WAC 04 255 50994 
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 visa petition seeking to extend the employment of its general 
managerlpresident as an L-1 A nonirnrnigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation 
organized under the laws of the State of California and is engaged in the construction business. The petitioner 
also claims a qualifying relationship with located in 
Paranaque City, the Philippines. The beneficiary was granted two one-year periods of stay to open a new 
office in the United States. The petitioner now seeks to extend the beneficiary's stay for an additional two 
years. 
The director denied the petition concluding that the petitioner (1) did not establish that the beneficiary is 
employed in the United States in a primarily managerial or executive capacity; and (2) did not establish that 
the U.S. and the foreign entities are qualifying organizations. 
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, the petitioner asserts that the director erred in 
denying the petition and that the evidence on record establishes both that the beneficiary will be employed in 
a managerial or executive capacity and that the foreign and United States entities are qualifying organizations. 
In support of its appeal, the petitioner submits a brief specifically identifying those errors allegedly made by 
the director in denying the petition. 
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. 
The regulation at 8 C.F.R. 5 214.2(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 (l)(l)(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 04 255 50994 
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 hirnher 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. 8 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
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 in 
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 the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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 
WAC 04 255 50994 
Page 4 
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 
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 petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of 
the Act. While the petitioner implies in its petition and supporting materials that the beneficiary is acting as 
both, petitioner's Form I-290B and appellate brief emphasize the managerial aspects of the beneficiary's role. 
A petitioner must clearly describe the duties to be performed by the beneficiary and indicate whether such 
duties are either in an executive or managerial capacity. 
 The petitioner must demonstrate that the 
beneficiary's responsibilities will meet the requirements of one or the other capacity. A beneficiary may not 
claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory 
definitions. Given the ambiguity, the AAO will analyze the appeal as if the petitioner is arguing that the 
beneficiary is acting either in a managerial or executive capacity. 
In the support letter dated September 17, 2004 appended to the initial petition, the petitioner describes the 
beneficiary's job duties as follows: 
1. 
 Act as Chief Administrative Officer to plan, develop and establish policies and 
objectives of the company. 
2. 
 Coordinate functions and operations between divisions and departments, to 
establish responsibilities and procedures to attain objectives. 
3. 
 Review activity reports and financial statements to determine progress towards 
goals. 
4. 
 Revise objectives and plans in accordance with current conditions. 
WAC 04 255 50994 
Page 5 
Plan and develop construction deals, schedules, needed labor, and public 
relations/promotional policies designed to improve company image and relations 
with customers and employees. 
Direct and coordinate all activities involved with construction, promotion, and 
sales of services offered. 
Determine projects to be undertaken based on demand and industry reaction to 
past construction projects and current market conditions. 
Negotiate for equipment, labor and other needed products for production. 
Through subordinate managerial personnel, establish policies to utilize human 
resources, equipment and materials productively. 
Coordinate, handle, and manage all construction activities. 
Preparelreview labor and materials estimates. 
Preparelreview construction permits and biddings. 
Review and approve all projects, construction and architectural plans, schedules, 
and other materials developed by staff prior to final implementation. 
In addition, the business plan attached to the initial petition indicates that the U.S. entity will employ three 
people including the beneficiary. 
On November 16, 2004, the director requested additional evidence. 
 The director requested, inter alia, 
evidence that the beneficiary has been or will be performing the duties of a manager or executive with the 
United States entity. Specifically, the director requested details about the other employees of the petitioner, 
an organizational chart, California Quarterly Wage Reports for the past three quarters, a payroll summary, and 
Forms W-2 and W-3. The director also requested federal and state income tax returns for the petitioner and 
bank account information. 
On February 7, 2005, the petitioner responded to the director's request for additional evidence. Counsel 
confirmed in her cover letter that the petitioner employs three people including the beneficiary. Counsel also 
included the following materials: (1) an organizational chart for the petitioner showing the beneficiary at the 
top of the organization acting as president and supervising the two other employees (a corporate secretary and 
corporate treasurer) as well as all subcontractors. The two other employees and the unnamed subcontractors 
are not portrayed as having supervisory or managerial functions; (2) a copy of a selected page from the 
bylaws for the petitioner describing the duties of the two employees, the corporate secretary' and the 
treasure2; (3) a copy of a 2003 Form 1120 showing gross receipts of $64,620.00, compensation of $7,500.00 
being paid to the beneficiary as officer compensation, and no deductions for labor costs, salaries, or wages; 
(4) state tax returns; and (5) bank account information. Counsel to the petitioner also explained in her 
1 
The duties of the corporate secretary as listed in the bylaws are to attend meetings of the Board of Directors, 
committees, and shareholders, and record the minutes and votes. The secretary shall be the custodian of the 
share register. 
2 
The duties of the treasurer as listed in the bylaws are to have custody of the corporate funds and to keep 
accounts of the corporation's properties and business transactions, to disburse funds as appropriate, and to 
account to the Board of Directors. 
WAC 04 255 50994 
Page 6 
February 7, 2005 letter that the petitioner has not filed Quarterly Wage Reports and does not have payroll 
summaries or Forms W-2 or W-3 since the petitioner has not yet paid its employees. The petitioner did not 
provide any information regarding the subcontractors or attempt to explain why the tax returns indicate that 
no money was paid for labor during the reporting period. 
On March 28, 2005, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director concluded that the job description for the beneficiary was so broad and 
nonspecific that it was impossible to understand what the beneficiary would actually do on a day-to-day basis. 
The director further concluded that even the vague job description demonstrated that many of the duties of the 
beneficiary, i.e., marketing, would be non-managerial or non-executive in nature. Finally, the director 
concluded that the petitioner failed to prove that the beneficiary managed an essential function of the 
organization, and that the vague or nonexistent descriptions of the duties of the supervised employees and 
subcontractors failed to prove that they are managerial or professional employees who relieve the beneficiary 
from performing non-qualifying functions. 
On appeal, the petitioner asserts that the beneficiary's duties are managerial or executive in nature. Counsel 
to the petitioner argues in her brief: 
The [bleneficiary conducts his managing by overseeing, reviewing, coordinating, 
planning, negotiating, establishing plans, and preparing initial documents to expand U.S. 
operations. These duties describe high level managing activities, not "marketing and 
production-oriented duties" as described by the [sic] USCIS in its denial. The 
[bleneficiary does not handle placing advertisements or executing any other market[ing] 
strategies, he only decides to advertise and then the Corporate Secretary executes the 
strategy by handling of all the paperwork. Also, he plans, negotiates and prepares initial 
documents, but he does not produce the project, subcontractors handle the production. 
Counsel further argues: 
While the [bleneficiary is managing the US operations expansion, the day-to-day tasks of 
the company are handled by sub-contractors, who the [bleneficiary delegates projects to. 
Most construction companies utilize sub-contractors to complete construction jobs for 
which they have contracted, and it is common practice in the industry. 
The Petitioner submits W-9's [sic] to evidence his [sic] employment of sub-contractors. 
The Beneficiary must oversee the sub-contractors to insure they are fulfilling the 
construction contracts, to insure the projects are completed in a timely fashion and are of 
the agreed upon quality; otherwise, US operations will not successfully expand. 
However, the sub-contractors decide which supplies are needed and only involve the 
Beneficiary for final approval of the costs. Also, the sub-contractors purchase the 
WAC 04 255 50994 
Page 7 
supplies and then use them to build the structures that the Beneficiary has negotiated a 
contract to build. The labor is performed by the sub-contractors, not by the Beneficiary; 
however, the [sic] USCIS found that the day-to-day operations are performed by the 
Beneficiary. This is not true, he oversees the projects to insure the construction is 
accordingly completed by the sub-contractors. The [sic] USCIS found the descriptions of 
the Beneficiary's duties to be unspecific. To be more specific, the Beneficiary is not 
purchasing supplies or providing physical labor at the sites, he negotiates construction 
contracts, delegates work to subcontractors, oversees the work, paying frequent visits to 
the construction sites for a few hours a week, and reviews cost reports provided to him by 
the subcontractors. The Beneficiary does not directly supervise the sub-contractors, he 
simply oversees their work to insure they are working in a timely manner and to insure 
their product quality. 
Further, the Petitioner has two other full-time employees at the US branch, the Corporate 
Secretary and Treasurerminance Manager, which the Beneficiary supervises. The [sic] 
USCIS found in its decision that "staffing levels are a relevant factor in determining 
managerial andlor executive capacity[."] These positions were listed on the 
organizational chart, that was submitted with the [request for evidence], below the 
Beneficiary. The Corporate Se and the 
TreasurerIFinance Manager's name is handles all 
of the paperwork of the US organizing, filing and maintaining every 
contract and document. Mrs. performs all of the billing, accounting and 
anything related to money. 
Upon review, petitioner'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. 5 214.2(1)(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. As explained above, a petitioner cannot claim that some of 
the duties of the position entail executive responsibilities, while other duties are managerial. A beneficiary 
may not claim to be employed as a hybrid "executive/manager~' and rely on partial sections of the two 
statutory definitions. 
The petitioner has failed to prove that the beneficiary will act in a "managerial" capacity by managing a 
department, subdivision, function, or component of the organization. In support of its petition, 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. The 13-point job description states collectively that he is primarily 
engaged in running a small construction business. As correctly explained by the director, while every 
business has a manager in a general sense, "section 101 (a)(15)(L) does not include every type of manager, 
such as self-employed persons who perform the management activities involved in practicing their profession 
or trade." 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). Therefore, the record must establish that the majority of 
the beneficiary's duties will be primarily directing the management of the organization. 
WAC 04 255 50994 
Page 8 
As itemized above, the 13-point job description lists duties such as establishing policies and objectives, 
coordinating construction activities, and planning, directing, and developing public relations and promotional 
policies. However, the petitioner did not define any of the policies, objectives, or other functions. The only 
evidence provided by the petitioner was an organizational chart showing the beneficiary at the top and vague 
job descriptions for his subordinates taken directly out of the petitioner's bylaws. The petitioner failed to 
provide any coherent information regarding its purported team of subcontractors including what they do, 
when they work, and how much they are paid. In fact, the information that was provided regarding payroll 
consistently reveals that the petitioner does not pay, and has never paid, any of the employees or 
subcontractors other than a $7,500.00 payment to the beneficiary as officer compensation. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Cra$ of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 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. Fedin Bros. 
Co., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner also failed to prove that the beneficiary "supervises and controls the work of other supervisory, 
professional, or managerial employees." According to the petition, the beneficiary is directly supervising two 
other uncompensated corporate officers. However, the job descriptions for these employees were too vague 
to ascertain what they do on a day-to-day basis. While the petitioner and its counsel repeatedly assert that 
most of the work is performed by subcontractors, the director correctly concluded that the petitioner failed to 
provide any evidence to substantiate this claim. Moreover, in reviewing the tax documents provided, it 
appears that no subcontractors were ever compensated by the petitioner.3 Finally, while counsel to the 
petitioner attempts to explain on appeal that the subordinate corporate officers and subcontractors perform 
certain duties as directed by the beneficiary, no evidence is submitted to substantiate these claims. While 
contractors may be hired to relieve a beneficiary of performing day-to-day functions, the petitioner must 
provide evidence indicating that the contractors are performing the duties. See Chang v. INS, 940 F.2d 1533, 
1535 (9" Cir. 1991). Without documentary evidence to support these claims, 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); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Therefore, the petitioner has failed to prove 
that there are other managerial employees who relieve the beneficiary from performing non-qualifying duties. 
In view of the above, the beneficiary would appear to be a first line supervisor andlor the provider of actual 
services. 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 International, 19 I&N Dec. 593, 604 (Comm. 1988). 
A managerial or executive employee must have authority over day-to-day operations beyond the level 
3 
 On appeal, counsel to the petitioner submits four Forms W-9 in an attempt to prove the existence of 
subcontractors. These forms, which are either undated or dated after the date of the petition, prove only that 
four individuals signed W-9 Forms. They do not prove that any compensation was paid to these individuals 
as such compensation would be proven through the submission of different forms, i.e., Forms 1099. 
WAC 04 255 50994 
Page 9 
normally vested in a first-line supervisor, unless the supervised employees are professionals. 
101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
In view of the above, the petitioner has also failed to prove that the employees supervised by the beneficiary 
are "professional" employees. In evaluating whether the beneficiary manages professional employees, the 
AAO must evaluate whether the subordinate positions require a baccalaureate degree as a minimum for entry 
into the field of endeavor. Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe term 
profession shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers 
in elementary or secondary schools, colleges, academies, or seminaries." The term "profession" contemplates 
knowledge or learning, not merely skill, of an advanced type in a given field gained by a prolonged course of 
specialized instruction and study of at least baccalaureate level, which is a realistic prerequisite to entry into 
the particular field of endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N 
Dec. 35 (R.C. 1968); Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degrees held 
by the subordinate employees. The possession of a bachelor's, or even a master's, degree by a subordinate 
employee does not automatically lead to the conclusion that the employee is employed in a professional 
capacity as that term is defined above. In the instant case, the petitioner has not provided any information 
regarding the level of education or skills needed by the corporate officers to perform their functions. 
Therefore, it is impossible to determine whether or not these employees are professionals within the meaning 
of Section 101(a)(32). The petitioner has not proven that the beneficiary is managing professional employees. 
Furthermore, the petitioner has not proven that the beneficiary will manage an "essential function" of the 
organization. The term "function manager" applies generally when a beneficiary does not supervise or 
control the work of a subordinate staff but instead is primarily responsible for managing an "essential 
function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
function, the petitioner must furnish a written job description that clearly describes the duties to be performed 
in managing the essential function, i.e., identify the function with specificity, articulate the essential nature of 
the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential 
function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary manages the hnction rather than performs the duties related to 
the 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 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 Dec. at 
604). 
In this matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
The petitioner's vague job description 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 managerial, but it fails to define them with enough specificity to determine which functions are 
being managed and which functions are being performed directly by the beneficiary. This failure of 
documentation is important because several of the beneficiary's daily tasks, such as negotiating for equipment, 
WAC 04 255 50994 
Page 10 
preparing materials estimates, and preparing construction permits and bids, do not fall directly under 
traditional managerial duties as defined in the statute. Absent a clear and credible breakdown of the time 
spent by the beneficiary performing his duties with more specificity, the AAO cannot determine what 
proportion of his duties would be managerial, nor can it deduce whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 
190. 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. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. 
Similarly, the petitioner has failed to prove that the beneficiary has been or will act in an "executive" capacity. 
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a 
complex organizational hierarchy, including major components or functions of the organization, and that 
person's authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a 
beneficiary must have the ability to ''direct the management" and "establish the goals and policies" of that 
organization. Inherent to the definition, the organization must have a subordinate level of managerial 
employees for the beneficiary to direct, and the beneficiary must primarily focus on the broad goals and 
policies of the organization rather than the day-to-day operations of the enterprise. An individual will not be 
deemed an executive under the statute simply because they have an executive title or because they "direct" the 
enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide latitude in 
discretionary decision making" and receive only "general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization." Id. As indicated above, while the 
petitioner may have provided a vague job description, the petitioner has failed to prove that the beneficiary, 
who is apparently acting as a first-line supervisor or provider of actual services, will be acting primarily in an 
executive capacity. 
It is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the petitioning 
company in conjunction with other relevant factors, such as a company's small personnel size, the absence of 
employees who would perform the non-managerial or non-executive operations of the company, or a "shell 
company" that does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v. 
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity as required by 8 C.F.R. tj 214.2(1)(3).~ 
4 
While the petitioner asserts that it intends to grow its business and add more employees, the petitioner must 
establish eligibility for the benefit sought at the time of filing. A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. 1978); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Comrn. 1971). While the petitioner in this matter was granted a second one-year period to open the 
new office, 8 C.F.R. tj 214.2(1)(3)(v)(C) only 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 
WAC 04 255 50994 
Page 11 
The second issue is whether there is a aualifvinp: relations hi^ between the ~etitioner and the foreign entity, 
The regulation at 8 C.F.R. tj 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 (l)(l)(ii)(G) of this 
section. 
Title 8 C.F.R. tj 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal 
entity which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, 
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section." A "subsidiary" is defined, in part, as 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." A branch is defined as "an operating division or office of the same organization housed 
in a different location." If a business organization becomes incorporated in the United States, that office cannot 
be considered a branch since it is a distinct legal entity separate and apart from the foreign organization. See 
Matter of M, 8 I&N Dec. 24, 50 (BIA 1958); Matter of Tessel, Inc., 17 I&N Dec. 631 (Acting Assoc. Commr. 
1980). 
its Form 1-129 that it is a "branch" of the foreign entity, - 
. The petitioner explained, however, in its response to the query "Do the companies 
currently have the same qualifying relationship as they did during the one-year period of the alien's 
employment with the company abroad?'that it does not have the same qualifying relationship because the 
petitioner was incorporated in August 2002. The petitioner also provided articles of incorporation for the 
petitioner dated August 7, 2002 authorizing 250,000 shares of stock, and a copy of an undated stock 
certificate evidencing the issuance of 5,000 shares of stock to 
However, the petitioner supplied copies of federal and state tax returns which depart materially from the 
allegations in the petition. The petitioner's 2003 Form 1120 indicates that the petitioner has issued $10,000 
worth of stock, that the petitioner is not a subsidiary of another corporation, and that the petitioner is 100% 
owned by one person or entity which is not a "foreign person." The instructions to Form 1120 indicate that 
the definition of a "foreign person" includes a "foreign corporation." Also, the petitioner did not include a 
copy of the schedule which should have been attached to Form 1120 identifying the owner of 100% of the 
petitioner's stock as required by Schedule K, Question 5. Likewise, the 2003 and 2002 California Forms 100 
indicate that the "same interests" did not own or control more than 50% of the voting stock of the petitioner 
and one or more other corporations. Moreover, the 2002 California Form 100 indicates that the "single 
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. 
WAC 04 255 50994 
Page 12 
interest" who owns the petitioner is located in the United States. Finally, the petitioner's balance sheet, dated 
April 12,2004, indicates that 10,000 shares were issued in consideration for $10,000.00. 
On March 28, 2005, the director denied the petition. The director determined that the petitioner failed to 
prove that it is a branch of a foreign entity indicating that numerous discrepancies encountered in the evidence 
call into question the petitioner's ability to document the requirements under the statute and regulations. 
On appeal, the petitioner asserts that if it is not a "branch" because it is now separately incorporated in the 
United States, then it wishes to be characterized as a "subsidiary." The petitioner implies that the director 
erred in not determining that the petitioner is, in the alternative, a subsidiary since the evidence presented 
allegedly proves that the foreign entity wholly owns the petitioner. 
Upon review, petitioner's assertions are not persuasive. 
The petitioner correctly asserts that, in order to prove a qualifying relationship between the petitioner and the 
foreign entity, the petitioner must submit evidence proving that it meets one of the definitions listed in 8 
C.F.R. 3 214.2(1)(l)(ii)(G), namely parent, branch, affiliate, or subsidiary. While a petitioner may 
erroneously describes itself as a branch in its petition, this does not disqualify the beneficiary from L-1A 
classification if the evidence should prove that the qualifying relationship is actually one of parentlsubsidiary 
or affiliate. That being said, the evidence presented by the petitioner is this case and as correctly noted by the 
director, is so full of discrepancies and so sufficiently incomplete that it is impossible to determine who owns 
or controls the United States entity. 
While the petitioner submitted articles of incorporation and a stock certificate for the petitioner claiming that 
the foreign entity owns all of the issued shares of stock, the petitioner failed to provide stock ledgers or other 
materials. As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are 
not sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate 
entity. The corporate stock certificate ledger, stock certificate 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. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986). 
Without full disclosure of all relevant documents, CIS is unable to determine the elements of ownership and 
control. 
Moreover, the petitioner provided numerous tax documents and its balance sheet from 2004 which directly 
contradict its claim that the foreign entity wholly owns the petitioner. The Form 1120 and the California 
Forms 100 collectively indicate that a U.S.-based individual owns the petitioner, not a foreign corporation. 
Also, the petitioner's balance sheet indicates that the petitioner has issued 10,000 shares of stock, not 5,000. 
The petitioner makes no attempt to address or explain these serious inconsistencies. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
WAC 04 255 50994 
Page 13 
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). 
While the petitioner argues on appeal that its two prior petitions for this beneficiary were approved without 
providing any additional documentation regarding the qualifying relationship between the United States and 
the foreign entities, it is now clear that the prior approvals were material and gross error and CIS may 
correctly deny the petition. Despite any number of previously approved petitions, CIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act, 8 U.S.C. 9 1361. The prior approvals do not preclude CIS from denying 
an extension of the original visa based on a reassessment of petitioner's qualifications. Texas AM Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Therefore, even though the petitioner was 
successful in the past in petitioning for the beneficiary, the director properly denied the petition in this case. 
Furthermore, if the previous nonimmigrant petitions were approved based on the same unsupported and 
contradictory assertions that are contained in the current record or on the erroneous belief that the petitioner 
was a branch of the foreign entity, the approval would constitute material and gross error on the part of the 
director. The AAO is not required to approve an application or petition where eligibility has not been 
demonstrated merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that CIS or any agency must 
treat acknowledged errors as binding precedent. Sussex Eng'g. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th 
Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown 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), afd, 345 F.3d 683 (9th Cir. 2003). 
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. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
Finally, based on the reasons for the denial of the instant petition, a review of the prior L-1 nonimmigrant 
petitions approved on behalf of the beneficiary is warranted to determine if they were also approved in error. 
Therefore, the director shall review the prior L-1 nonimmigrant petitions approved on behalf of the 
beneficiary for possible revocation in accordance with 8 C.F.R. § 214.2(1)(9). 
ORDER: The appeal is dismissed. 
FURTHERORDERED: 
 The director shall review the prior L-1 nonimmigrant petitions approved on 
behalf of the beneficiary for possible revocation pursuant to 8 C.F.R. 5 
2 14.2(1)(9).