dismissed L-1A Case: Construction And Import/Export

U.S. Department of Elomeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
US. Citizenship 
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PUBLIC COPY 
File: SRC 04 172 51420 Office: TEXAS SERVICE CENTER Date: JUN 0 2 2006 
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 lOl(a)(15)(L) 
IN BEHALF OF PETITIONER: SELF-REPRESENTED 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
SRC 04 172 5 1420 
Page 2 
DISCUSSION: The Director, Texas 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 chief executive officer 
as an L-1A nonimmigrant intracompany transferee pursuant to section 1 Ol(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). fhe petitioner is a corporation organized in the State of 
Wyoming that is engaged in both construction and the importation of clothing and gifts, and claims to have 
recently expanded 
 the distribution of medical equipment. The petitioner claims that it 
is the subsidiary of 
 located in Budapest, Hungary. 
The director denied the petition concluding that (1) the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity, and (2) the petitioner and the 
claimed foreign parent do not appear to be qualifying organizations as required by the regulations. 
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 beneficiary is in fact 
employed in a primarily executive capacity, and submits evidence in support of this contention. No evidence 
or attempt to address the qualifying relationship between the petitioner and the foreign entity was provided. 
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. fj 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. 
(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 
SRC 04 172 5 1420 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
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 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 
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. 
With the petition, only minimal information regarding the petitioner's business and the beneficiary's duties 
therein was provided. The evidence submitted claimed that the petitioner was established in 1997, currently 
employed 28 employees, and recently acquired the new business address of 
8 
SRC 04 172 5 1420 
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Florida, which simultaneously serves as the beneficiary's residence. A statement from the petitioner claims 
that five executives, including the beneficiary, were currently employed b the U.S. etitioner. Quarterly tax 
returns for 2003, however, indicated that only two employees, namely, 
 identified as the vice 
president for marketing, and , manager of the construction division, were on the payroll. With 
regard to the beneficiary's duties, no details were provided except for the claims that the beneficiary shared a 
seat on the board of directors and that the beneficiary divided his time between the U.S. and the foreign 
entities during his periods of stay in the United States. 
On August 10, 2004, the director denied the petition. The director determined that, based on the petitioner's 
claim that it was involved in a variety of business ventures, the fact that it only employed two full-time 
employees raised questions with regard to the validity of the petitioner's business venture. More specifically, 
the director found that, with only two other employees on the petitioner's payroll and at least three distinct 
business ventures, it appeared unlikely that the beneficiary would be relieved from performing day-to-day 
operational tasks essential to the petitioner's ongoing survival. The director concluded by noting that despite 
being in business for over five years, the petitioner still had not established a subordinate team of employees 
who would relieve the beneficiary from performing non-qualifying duties. Although the petitioner indicated 
its plans to hire approximately 10 employees in the coming year, the director noted that the petitioner's future 
plans were not pertinent to the examination of the current position of the beneficiary. 
On appeal, the petitioner reasserts its claim that the beneficiary is in fact primarily an executive within the 
U.S. company. The petitioner states that the beneficiary has sole power in decision-making and is further 
qualified by way of his majority ownership interest in the foreign entity and his position on the boards of 
directors of both companies. 
Upon review, the AAO concurs with the director's determination. While the petitioner's assertions prior to 
adjudication and on appeal certainly suggest that the petitioner is actively pursuing expansion and a variety of 
business opportunities, there is nothing concrete in the record of proceeding, other than the petitioner's 
assertions, to clearly show that the beneficiary functions in a primarily executive capacity. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Cornm. 1972)). 
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. tj 214.2(1)(3)(ii). In this matter, however, a detailed 
description of the beneficiary's duties has been omitted. The petitioner seems to rely on the executive title of 
the beneficiary as evidence that he is primarily an executive as contemplated by the regulations. The 
petitioner's assertion that the beneficiary makes all decisions and holds a seat on the board of directors is 
insufficient to establish that his average workday requires him to perform only executive duties. The 
petitioner's omission of a detailed description of duties has prohibited further analysis into this matter. 
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. 1 103 (E.D.N.Y. 1989), affd, 905 F.2d 4 1 (2d. Cir. 
1990). In this case, the petitioner has failed to answer a critical question in this case: What does the 
SRC 04 172 5 1420 
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beneficiary primarily do on a daily basis? The actual duties themselves will reveal the true nature of the 
employment. Id. 
Without a definitive statement of duties to assist in clarifying the actual role of the beneficiary in the U.S. 
organization, the director examined the evidence submitted with regard to the staffing levels of the petitioner. 
As required by section 101(a)(44)(C) of the Act, if staffing levels are used as a factor in determining whether 
an individual is acting in a managerial or executive capacity, Citizenship and Immigration Services (CIS) 
must take into account the reasonable needs of the organization, in light of the overall purpose and stage of 
development of the organization. At the time of filing, the petitioner was a 5-year-old company that claimed 
to engage in international trade, construction, and distribution of medical equipment. It claimed to have a 
gross annual income of $93,603 and claimed on the Form 1-129 that it employed 28 persons. The evidence 
contained in the record shows that only two employees were on the petitioner's payroll in 2003, both of 
whom allegedly held managerial or executive positions within the company. However, total wages paid to 
these persons for 2003 amounted to $4,800, and there is no record of the petitioner paying any wages to the 
beneficiary during this period. While it is noted that the petitioner acknowledged that the foreign entity still 
provided financial assistance, there are no records evidencing what role, if any, the beneficiary actually 
occupied within the petitioner's organizational hierarchy since its incorporation in 1997. The petitioner did 
not submit evidence that it employed any subordinate staff members who would perform the actual 
day-to-day, non-managerial operations of the company. 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 as chief executive officer plus two managerial employees. 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. 
The petitioner's assertions on appeal provide no new evidence with regard to the beneficiary's duties. 
Instead, the petitioner merely reiterates its unsupported claim that the beneficiary is an executive by way of 
his position title. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. at 165. As previously 
stated, 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. The petitioner 
has failed to provide such a description in the instant matter. Although the petitioner indicates that it plans to 
hire additional managers and employees in the future, 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). 
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. 5 214.2(1)(3). 
SRC 04 172 5 1420 
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The second issue in this proceeding is whether the petitioner and the foreign organization are qualified 
organizations. The regulation at 8 C.F.R. $ 214.2(1)(l)(ii)(G) defines the term "qualifying organization" as a 
United States or foreign firm, corporation, or other legal entity which: 
(I) 
 Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (1)(1 )(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not required) as an employer 
in the United States and in at least one other country directly or through a parent, branch, 
affiliate, or subsidiary for the duration of the alien's stay in the United States as an 
intracompany transferee; and 
(3) 
 Otherwise meets the requirements of section 1 Ol(a)(15)(L) of the Act. 
Additionally, the regulation at 8 C.F.R. $ 2 14.2(1)(1 Xii) provides: 
(I) 
 "Parent" means a firm, corporation, or other legal entity which has subsidiaries. 
(J) 
 "Branch" means an operating division or office of the same organization housed in a 
different location. 
(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 
(I) 
 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, or 
(3) 
 In the case of a partnership that is organized in the United States to provide 
accounting services along with managerial andlor consulting services and that 
markets its accounting services under an internationally recognized name under an 
agreement with a worldwide coordinating organization that is owned and controlled 
by the member accounting firms, a partnership (or similar organization) that is 
organized outside the United States to provide accounting services shall be 
considered to be an affiliate of the United States partnership if it markets its 
SRC 04 172 51420 
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accounting services under the same internationally recognized name under the 
agreement with the worldwide coordinating organization of which the United States 
partnership is also a member. 
In this case, the petitioner claims that the petitioner is a wholly owned subsidiary o . In 
support of this contention, the petitioner submitted a copy of the Minutes of the Meeting of Shareholders for 
the petiti 
 ber 4, 1998, where it states that 1,000,000 shares of stock in the petitioner were 
issued to 
 A stock certificate dated December 15, 1998 further corroborated this claim. 
Based on this information, the petitioner and foreign entity would appear to have a parent-subsidiary 
relationship as defined by 8 C.F.R. fj 214.2(1)(l)(ii)(I) and (K). However, the petitioner has submitted 
documentation evidencing that the U.S. petitioner is an S-corporation. To qualify as a subchapter S corporation, 
a corporation's shareholders must be individuals, estates, certain trusts, or certain tax-exempt organizations, 
and the corporation may not have any foreign corporate shareholders. See lnternal Revenue Code, 
fj 1361(b)(1999). A corporation is not eligible to elect S corporation status if a foreign corporation owns it in 
any part. 
The petitioner submitted a copy of the petitioner's election to become a subchapter S-Corporation, dated June 
6, 2000, as well as the petitioner's Form 1120S, U.S. Income Tax Return for S Corporation for the year 2003. 
These documents indicate that the beneficiary is the sole owner of the U.S. petitioner. No documentation of 
this ownership, or the transfer of ownership from the foreign parent to the beneficiary, is contained in the 
record. 
Accordingly, since the petitioner would not be eligible to elect S corporation status with a foreign parent 
corporation, it appears that the U.S. entity is in fact owned by one or more individuals residing within the 
United States rather than by a foreign entity. 
 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). If CIS fails to believe that a fact stated in 
the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. fj 1154(b); see also 
Anetekhai v. I.N.S., 876 F.2d 12 18, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 
10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). Since the petitioner is 
clearly an S Corporation and the petitioner would not be eligible to elect S corporation status with a foreign 
- 
paren; corporation, it does not appear that the petitioner and 
 are qualifying organizations as 
defined by 8 C.F.R. fj 214.2(1)(l)(ii)(G). For this additional reason, the petition must be denied. 
Beyond the decision of the director, the record reflects that the petitioner did not file the petition for an 
extension within the required time frame. The regulation at 8 C.F.R. fj 214.2(1)(14)(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 L-1A status expired on May 1, 2004. However, the petition for an 
SRC 04 172 5 1420 
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extension of the beneficiary's L-IA status was filed on June 3, 2004, almost one month following the 
expiration of the beneficiary's status. As the extension petition was not timely filed, it must be denied.' 
Additionally, the conflicting evidence with regard to the ownership of the petitioner, though unresolved, 
suggests that the beneficiary may be the sole owner of the U.S. entity. If this fact is established, it remains to 
be determined that the beneficiary's services are for a temporary period. The regulation at 8 C.F.R. $ 
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 the absence of persuasive evidence, it cannot be concluded that the beneficiary's 
services are to be used temporarily or that he will be transferred to an assignment abroad upon completion of 
his services in the United States. 
The petitioner noted that CIS approved other petitions that had been previously filed on behalf of the 
beneficiary. The director's decision does not indicate whether he reviewed the prior approvals of the other 
nonimmigrant petitions. If the previous nonimmigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval would 
constitute material and gross error on the part of the director. The AAO is not required to approve 
applications or petitions where 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. 593, 597 
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as 
binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 
U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), agd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
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), agd. 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 it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, agd., 345 F.3d 683. 
I 
 It is noted that a denial on this basis does not preclude a petitioner from refiling as a petition for new 
employment. 
SRC 04 172 51420 
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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. 9 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.