dismissed L-1A Case: Construction And Building Materials

PUBLIC COPY 
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U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 07 106 52334 Office: VERMONT SERVICE CENTER Date: JUL 2 4 2008 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101 (a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101 (a)(15)(L) 
IN 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. 
, - Robert P. Wiemann, C 
I Administrative ~p~eals Office 
EAC 07 106 52334 
Page 2 
DISCUSSION: The Director, Vermont 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 employ the beneficiary in the position of vice 
president to be employed at a new office in the United States as an L-1A nonimmigrant intracompany 
transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 
1101(a)(15)(L). The petitioner, a corporation organized under the laws of the State of Louisiana, is allegedly 
in the construction and building materials business.' 
The director denied the petition concluding that the petitioner failed to establish that the United States 
operation will support an executive or managerial position within one year. 
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 asserts that the petitioner has established 
that the beneficiary will perform qualifying duties within one year of petition approval. 
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. 
I 
It is noted that both the organizational materials submitted by the petitioner and the public records on file 
with the Louisiana Department of State indicate that the petitioner's correct corporate name is "Apollo 
Enterprise Development Limited." It is further noted that, according to the Louisiana Department of State, 
the petitioner's corporate status is "not in good standing." Therefore, it appears that the corporation may no 
longer be doing business in the United States. Accordingly, if this appeal were not being dismissed for the 
reasons explained herein, this would call into question the petitioner's eligibility for the benefit sought. 
EAC 07 106 52334 
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 hider 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. 
In addition, the regulation at 8 C.F.R. 5 214.2(1)(3)(~) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office, the 
petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been 
secured; 
(B) 
 The beneficiary has been employed for one continuous year in the 
three year period preceding the filing of the petition in an executive 
or managerial capacity and that the proposed employment involved 
executive or managerial authority over the new operation; and 
(C) 
 The intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial 
position as defined in paragraphs (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial 
ability of the foreign entity to remunerate the beneficiary and 
to commence doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 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 
EAC 07 106 52334 
Page 4 
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 
(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. 5 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 primary issue in this matter is whether the intended United States operation, within one year of the approval 
of the petition, will support an executive or managerial position. 
In support of the petition, the petitioner submitted a letter dated February 22, 2007 in which it indicates that 
the United States operation was formed to fulfill orders for building supplies and equipment related to 
demolition and construction projects in New Orleans, Louisiana. The petitioner explained that the foreign 
entity will invest $300,000.00 and that the beneficiary will perform the following duties: 
We send [the beneficiary] to the United States in the capacities of Vice President of [the 
petitioner] in order to directly operate and develop all business happened [sic] between our 
Company and US customers. He is also in charge of assisting the president in planning, 
developing and implementing company policies, business strategies, operational guidelines, 
administrative procedures, business goals and markets, sales volumes, marketing surveys, 
market reports, managerial reports, shipping manifests, economic forecasts and financial 
statements in order to make efficient and effective decisions. 
In a separate document titled "Position and Duty," the petitioner claims that the beneficiary will devote 85% 
of his time to "managing and directing all development activities" and 15% of his time to "conducting 
information seminars and marketing research." 
EAC 07 106 52334 
Page 5 
The petitioner also submitted a document outlining the "American Project" dated October 25, 2006. This 
document indicates that the petitioner will establish three retail stores within three years which will sell 
hardware, locks, steel pipes, building materials, and other products. The petitioner also indicates that it will 
open "wholesale centers" in New York and New Jersey and that it will employ its president, the beneficiary, a 
secretary, an office manager, a sales manager, a cashier, a driver, a "worker," and four commission-based 
salespersons. Finally, the "American Project" outline projects that the United States operation will have 
$5,35 1,500.00 in expenses in 2007, which will include $250,000.00 in wages. 
The petitioner submitted an organizational chart for the United States operation. The chart indicates that the 
president, the beneficiary, the office manager, the treasurer, and the secretary will be supervised directly by an 
"executive director." The beneficiary is not portrayed as having supervisory responsibility over any 
subordinate employees. 
Finally, the petitioner submitted a document titled "Corporate Profile." This document reiterates that the 
business of the United States operation includes "supply building materials, varies [sic] Steel Pipes, 
Decoration panel and other construction equipments, etc." 
On April 2, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed description of the beneficiary's proposed duties in the United States, a list of all employees in the 
United States which includes complete position descriptions for each worker, payroll records, wage reports, 
photographs of the United States operation, evidence that the foreign entity transferred hds to the United 
States operation, evidence that the petitioner has commenced doing business, and evidence that the owner of 
the petitioner's claimed premises in Brooklyn, New York, has consented to the petitioner's sublease of the 
property for its enterprise. 
In response, the petitioner submitted a letter dated May 22, 2007 in which it claims that it has "signed a 
contract" with Eastern Energy Limited pertaining to supplying materials related to Hurricane Katrina 
reconstruction efforts. The petitioner also claims to be "working together with Sciortino Home Inc. in the real 
[elstate developing [sic] project 'Crystal Lake' in Mississippi, 55 miles from New Orleans." However, the 
petitioner did not submit any documents substantiating these claims. The only business documents submitted 
by the petitioner appear to be three invoices relating to the sale of garments. The petitioner also submitted a 
table indicating that the petitioner currently employs the president, the beneficiary, and two office workers 
described as performing clerical tasks. 
On August 27, 2007, the director denied the petition concluding that the petitioner failed to establish that the 
United States operation will support an executive or managerial position within one year. 
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying 
duties within one year of petition approval. 
Upon review, the petitioner's assertions are not persuasive. 
EAC 07 106 52334 
Page 6 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target market/prospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
Id. 
For several reasons, the petitioner in this matter has failed to establish that the United States operation will 
succeed and rapidly expand as it moves away from the developmental stage to full operations, where there 
would be an actual need for a manager or executive who will primarily perform qualifying duties. The 
petitioner has failed to sufficiently describe both the beneficiary's and his subordinates' proposed duties after 
the petitioner's first year in operation; has failed to establish that an investment has been made in the United 
States operation; has failed to sufficiently describe the nature, scope, and financial goals of the new office; 
and has failed to sufficiently describe the organizational structure of the foreign entity. 8 C.F.R. 5 
2 14.2(1)(3)(v)(C). 
First, as correctly noted by the director, the petitioner has failed to establish that the beneficiary will be 
performing primarily "managerial" or "executive" duties after the petitioner's first year in operation. When 
EAC 07 106 52334 
Page 7 
examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the proposed job duties. See 8 C.F.R. tj 214.2(1)(3)(ii). The petitioner's description 
of the job duties must clearly describe the duties that will be performed by the beneficiary and indicate 
whether such duties will be either in an executive or managerial capacity. Id. 
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states that 
the beneficiary will develop and implement company policies, business strategies, operational guidelines, 
administrative procedures, and business goals and will devote 85% of his time to "managing and directing all 
development activities." However, the petitioner did not specifically define these policies, strategies, 
operational guidelines, administrative procedures, and business goals, or explain what, exactly, the 
beneficiary will do in "managing and directing all development activities." The fact that the petitioner has 
given the beneficiary a managerial title and has prepared a vague job description which includes inflated 
duties does not establish that the beneficiary will actually perform managerial or executive duties after the 
first year of operations. Specifics are clearly an important indication of whether a beneficiary's duties will be 
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), afd, 905 F.2d 
41 (2d. Cir. 1990). 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 (Reg. Comm. 1972). Failure to submit requested evidence that precludes a material line of inquiry shall 
be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). 
Likewise, the record is not persuasive in establishing that the beneficiary will be, after the first year, relieved 
of the need to perform the non-qualifying tasks inherent to his duties and to the operation of the business in 
general. Other than two primarily clerical workers, the petitioner failed to specifically describe the duties of 
the proposed subordinate employees or to explain how, exactly, these prospective employees will relieve the 
beneficiary from performing non-qualifying tasks even though this evidence was requested by the director. 
Once again, failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. tj 103.2(b)(14). For example, the petitioner claims that the beneficiary will be 
assigned duties associated with sales, marketing, shipping, and business planning. However, the petitioner 
fails to explain who, exactly, will relieve the beneficiary of the need to continue the non-qualifying tasks 
inherent to these duties after the petitioner's first year in operation. As the petitioner fails to explain what 
tasks the beneficiary and his subordinate staff will perform after the petitioner's first year in operation or to 
explain how much time the beneficiary will devote to performing non-qualifying tasks, it cannot be confmed 
that he will be "primarily" employed as a manager or executive. 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; see also Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1 988).2 
2 
It is noted that, on appeal, the petitioner attempts to supplement the record with more detailed descriptions of 
the duties of its proposed workforce. However, 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 the AAO will not now consider this evidence on 
EAC 07 106 52334 
Page 8 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As noted above, the petitioner has failed to specifically describe the duties of the proposed subordinate 
employees. Therefore, it cannot be confirmed that the beneficiary will supervise and control other 
supervisory, managerial, or professional employees.3 
 Regardless, the organizational chart and job 
descriptions in the record fail to describe the beneficiary as having supervisory authority over any subordinate 
workers. It appears that the petitioner's "executive director" will supervise and control the subordinate 
workers, including the beneficiary. Therefore, the petitioner has not established that the beneficiary will be 
employed primarily in a managerial or executive capacity after the petitioner's first year in operation. 
Second, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because it failed to establish that an investment was made in the 
enterprise. 8 C.F.R. 5 214.2(1)(3)(v)(C)(2). In this matter, the petitioner claims that the foreign entity will 
invest $300,000.00 in the United States operation. However, the record is devoid of evidence of any 
investment having been made in the United States operation prior to the filing of the petition. Once again, 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. 5 103.2(b)(14). While the petitioner submitted evidence on appeal that it maintains a bank 
account having a balance of approximately $30,000.00, it is unclear whether this sum was transferred by the 
foreign entity to the petitioner and whether this transfer occurred prior to the filing of the instant 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, as the petitioner projects 
that it will incur $5 million in expenses in 2007, a $30,000.00 investment would not be sufficient to support 
the start up of the United States operation. Accordingly, the petitioner has failed to establish that the United 
States operation will support an executive or managerial position within one year for this additional reason. 
Third, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner has failed to sufficiently and credibly describe the 
nature, scope, and financial goals of the new office. 8 C.F.R. 5 214.2(1)(3)(v)(C)(I). As explained above, the 
petitioner's "business plan" vaguely describes the United States operation as a proposed construction and 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 
1988). The appeal will be adjudicated based on the record of proceeding before the director. 
3 
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 1 101 (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). 
EAC 07 106 52334 
Page 9 
building supply company. While the petitioner claims to have developed relationships with businesses in 
Louisiana and Mississippi, the petitioner failed to support this claim with any evidence. The petitioner also 
failed to specifically describe its retail marketing plan or its primary compefitors. Furthermore, the only 
evidence submitted by the petitioner pertaining to its business activities in the United States appear to relate to 
the sale of garments. However, neither the business plan nor the supporting correspondence mentions the 
garment industry as a component of the petitioner's proposed business in the United States. The petitioner 
failed to explain this fundamental inconsistency in the record concerning its business activities. 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). Finally, the petitioner failed to corroborate its financial projections or business plans with any 
evidence. The petitioner failed to establish that it has secured locations suitable for its proposed retail and 
wholesale locations, that it has established business relationship with third parties on the Gulf Coast, or that it 
has received an investment which would permit the proposed enterprise to succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. Once again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Treasure Crafi of California, 14 I&N Dec. 190. Accordingly, the petitioner has failed 
to establish that the United States operation will support an executive or managerial position within one year 
for this additional reason. 
Fourth, the petitioner failed to establish that the United States operation will support an executive or 
managerial position within one year because the petitioner failed to describe the organizational structure of 
the foreign entity. 8 C.F.R. § 214.2(1)(3)(v)(C)(3). The petitioner failed to specifically describe the personnel 
structure of the foreign employer even though this evidence was specifically requested by the director. Once 
again, failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. 9 103.2(b)(14). 
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or 
managerial position within one year as required by 8 C.F.R. 9 214.2(1)(3)(v)(C), and the petition may not be 
approved for the above reasons. 
Beyond the decision of the director, the petitioner has failed to establish that it has secured sufficient physical 
premises to house the new office. 8 C.F.R. 3 214.2(1)(3)(v)(A). 
In support of the petition, the petitioner submitted a copy of a "sublease agreement" between Johnson Chang 
and the petitioner purportedly representing the petitioner's sublease of "two room[s] on 2 Floor" at 2463 East 
22 Street, Brooklyn, New York. The petitioner also submitted photographs of a small office space 
presumably at the above address. However, it does not appear that this small space will be able to 
accommodate the petitioner's expanding business as described in the record. Furthermore, despite being 
requested by the director in the Request for Evidence, the petitioner failed to provide a copy of any 
acknowledgement from the landlord or owner of the premises establishing that the landlord acquiesces to the 
sublease arrangement. Once again, failure to submit requested evidence that precludes a material line of 
EAC 07 106 52334 
Page 10 
inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14). Absent this evidence, it cannot be 
concluded that the petitioner's location in Brooklyn will permit the United States operation to expand to the 
point that it will support the employment of a primarily managerial or executive employee within one year. 
Furthermore, the lease submitted on appeal pertaining to a warehouse in Louisiana is not relevant to the 
instant matter. The Louisiana lease is dated August 1, 2007, almost five months after the filing of the instant 
petition. Once again, the petitioner must establish eligibility at the time of filing the nonimrnigrant 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. Therefore, this lease may 
not be used to establish that the petitioner has secured sufficient physical premises to house the new office. 
Accordingly, as the petitioner has failed to establish that it has secured sufficient physical premises to house 
the new office, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been 
employed in a primarily managerial or executive capacity with the foreign entity for one year within the 
preceding three years. 8 C.F.R. 9 214.2(1)(3)(v)(B). The petitioner failed to specifically describe the 
beneficiary's job duties abroad as manager of the import and export department. Specifics are clearly an 
important indication of whether a beneficiary's duties were 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, afd, 905 F.2d 41. Furthermore, the petitioner failed to describe the duties of 
the beneficiary's twelve purported subordinates abroad even though this evidence was specifically requested 
by the director. Once again, failure to submit requested evidence that precludes a material line of inquiry 
shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). Absent detailed descriptions of the duties 
of both the beneficiary and his purported subordinates, it is impossible for Citizenship and Immigration 
Services (CIS) to discern whether the beneficiary was "primarily" engaged in performing managerial or 
executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary has been employed in a primarily 
managerial or executive capacity for one continuous year in the three years preceding the filing of the petition 
as required by 8 C.F.R. 4 214.2(1)(3)(v)(B), and the petition may not be approved for this reason. 
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with 
the foreign entity. 
The regulation at 8 C.F.R. § 214.2(1)(3)(i) states that a'petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. 5 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a fm, 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" and "is or will be doing 
business." "Subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or 
EAC 07 106 52334 
Page 1 1 
indirectly, more than half of the entity and controls the entity." "Doing business" is defined in part as "the 
regular, systematic, and continuous provision of goods and/or services." 
In this matter, the petitioner, a Louisiana corporation, asserts that it is 100% owned by the foreign employer, 
China Third Metallurgy Construction Corporation. In support of this assertion, the petitioner submitted a copy of 
a stock certificate representing the claimed issuance of 100% of the petitioner's stock to the foreign employer. 
However, as this stock certificate is invalid under Louisiana law, it is not persuasive evidence that the foreign 
employer truly owns and controls the petitioner. Louisiana law requires that a stock certificate state, at a 
minimum, the number of shares the certificate represents. La. Stat. Ann. 5 12:57 (2007). The stock certificate in 
the record fails to state the number of shares issued to the foreign employer, if any. Therefore, the petitioner has 
failed to establish that it has a qualifying relationship with the foreign employer. 
Furthermore, the record is not persuasive in establishing that either the United States operation or foreign 
employer is or will be "doing business" as defined by the regulations. As noted above, the record contains several 
fundamental and unresolved inconsistencies pertaining to the petitioner's business activities in the United States. 
While the petitioner describes its business as being related to construction and building supplies, the only 
evidence submitted by the petitioner pertaining to its business activities appears to relate to the sale of garments. 
Moreover, the record is devoid of evidence establishing that the foreign employer is engaged in the regular, 
systematic, and continuous provision of goods andfor services. While the petitioner submitted undated 
promotional materials highlighting the foreign employer's business accomplishments and past activities, these 
materials do not establish that the foreign employer is currently doing business. 
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity, 
and the petition may not be approved for this additional reason. 
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), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
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., 229 F. Supp. 2d at 1043. 
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. 
ORDER: The appeal is dismissed.