dismissed L-1A Case: Construction And Property Development

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
Q 
PUBLIC cow 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 04 156 5 1 184 Office: VERMONT SERVICE CENTER Date: A% 0 1 2006 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
COURTESY COPY TO: 
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, Chief 
Administrative Appeals Office 
EAC 04 156 51184 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimrnigrant petition seeking to extend the employment of its financial manager 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. $ 1101(a)(15)(L). The petitioner is a corporation formed in the 
Commonwealth of Puerto Rico that claims to be involved in construction and property development services. 
The petitioner states that it is an affiliate or subsidiary of Demo1 SAC, located in Peru. The beneficiary was 
initially granted a one-year period of stay to open a new office in the United States and the petitioner now 
seeks to extend the beneficiary's stay for two additional years. 
The director denied the petition concluding that the petitioner did not establish: (1) that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) that a qualifying 
relationship exists between the United States and foreign entities. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded it to the AAO for review. On appeal, the petitioner asserts that the evidence submitted establishes 
a qualifying affiliate relationship between the foreign and U.S. entities, and emphasizes that Citizenship and 
Immigration Services (CIS) has approved other L-1 petitions filed by the petitioner based on the same 
documentation that was submitted in the instant matter. With respect to the beneficiary's employment 
capacity, the petitioner notes that the beneficiary is a shareholder of the company and he will accordingly be 
involved in its decision-malung processes. The petitioner notes that the U.S. company expects to hire and 
train a staff who will progressively free the beneficiary from performing routine, day-to-day duties. The 
petitioner submits a brief and additional evidence in support of the appeal. 
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. 
EAC 04 156 51184 
Page 3 
(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 himher 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 Fom 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 management 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 101(a)(44)(A) of the Act, 8 U.S.C. 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
EAC 04 156 51 184 
Page 4 
(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 1 101(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 malung; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The nonimmigrant petition was filed on April 28, 2004. In an April 21, 2004 letter submitted in support of 
the petition, the petitioner provided the following description of the beneficiary's duties: 
[The beneficiary] is working with great effectiveness for our company here in Puerto Rico, he 
is also one of the main shareholders of our enterprise, and his work is essential to the 
functionality of [the petitioner] in this stage of consolidation of our activities. 
[The beneficiary's] responsibilities include managing the finances of our company, auditing, 
bookkeeping and buying related functions. 
The petitioner did not provide further evidence with respect to the beneficiary's job duties or the staffing of 
the U.S. company. Accordingly, on June 7, 2004, the director issued a request for evidence instructing the 
petitioner to submit, in part: (1) a statement regarding the specific duties performed by the beneficiary during 
the previous year and the duties he will perform if an extension is granted; (2) a list of the U.S. company's 
employees including their names, job titles, and a complete job description for each employee, indicating the 
number of hours devoted to each of the employee's job duties on a weekly basis, including one for the 
beneficiary; (3) copies of IRS Forms W-2 and W-3 issued by the U.S. business in 2003; (4) copies of IRS 
Forms 1099 issued to contract employees, if applicable; (5) a complete copy of IRS Form 941, Employer's 
Quarterly Tax Return for the first quarter of 2004. 
EAC 04 156 51184 
Page 5 
The petitioner's August 22, 2004 response to the request for evidence included the following more detailed 
description of the beneficiary's duties: 
Since our company. . . is in its first year of operation here in Puerto Rico, [the beneficiary] is 
not only responsible for the traditional duties inherent to this position, as may be the 
preparation of financial reports, direct investment activities, and implement cash management 
strategies, but also and fundamentally he spent a great part of his time improving his 
knowledge of federal and state laws and regulations, learning about special tax laws and other 
regulations that affects our industry. Besides, in his quality of a shareholder the offers support 
to the operative tasks according to the situation necessities. 
The following were the main duties performed by [the beneficiary] in this first year: 
1) To obtain the permissions for the operation of the company, such as Incorporation in the 
Registry of Corporations, Municipality permits, IRS, and other local authorities. 
2) To quote and contract insurance coverage including commercial policies, working 
insurance, health insurance. . . He manages the organizations' insurance budget. 
3) To quote and to rent the appropriate premises for [the petitioner's] offices, and take care 
of its adequate furnishing. During office hours, he offers attention to clients and visitors. 
4) To contact with financial institutions, such as commercial banks, mortgage and finance 
companies in order to obtain loans (work capital) or guarantees required for some 
working contracts and auctions. . . . 
5) To perform as the corporation treasurer, directing the organization's financial goals, 
objectives and budges. To oversee the investment of funds and supervise cash 
management activities. 
6) To monitor and control the flow of cash receipts and disbursements to meet the business 
and investment needs of the firm. To make cash flow projections. 
7) To prepare financial reports that summarize and forecast the organization's financial 
position, such as income statements, balance sheets, and analyses of future earnings or 
expenses. 
8) To prepare special reports required by regulatory authorities. 
9) To establish contact with possible clients, this includes visits to works, interviews with 
officials of municipalities, government offices, private institutions, general contractors, 
inscriptions in several registries of suppliers, etc. 
10) He acts as the company buyer in the local market as well as in the international market. 
We made several purchases of mechanical equipment and construction tools in 
continental U.S. 
11) To guard for the fulfillment of the legal and tributary obligations, making the correct 
payments in the appropriate dates. 
12) To advise the clients in the financing of their construction projects as well to help them to 
obtain the construction permits and licenses. 
EAC 04 156 51 184 
Page 6 
The petitioner stated that, under the extended petition, the beneficiary would continue to perform the above- 
described "general duties" as well as "important tasks related with the consolidation of our company, which 
may include hiring personnel, managing loans and lines of credit, establishing a rapport with the community 
to attract business, and assisting customers with account problems." The petitioner stated that the U.S. 
company obtained a contract for the construction of an office building valued at more than one million 
dollars, noting that the project "is in its final stage of approval." The petitioner stated that the contract "will 
be a turning point for the consolidation of our firm" necessitating the extension of the beneficiary's stay, 
particularly because the company "has "other major construction projects in perspective." 
The petitioner indicated that it currently has two permanent employees on its staff, including the beneficiary 
and an operations manager. The petitioner noted that it recently obtained approval of another L-1 visa for an 
employee who will "perform his duties in the logistics area." The petitioner noted that it will contract 
additional local personnel in the "near future" including a civil engineer, foreman, carpenters, iron workers, 
plumbers, electricians, general laborers and a storekeeper/warehouse employee. The petitioner provided 
proposed job descriptions for the construction employees, but failed to provide a job description for the 
operations manager, the only other position that was staffed at the time the petition was filed. The petitioner 
submitted copies of its IRS Form 941-PR and Puerto Rico Employer's Quarterly Return of Income Tax 
Withheld, confirming the employment of the beneficiary and the operations manager as of the date the 
petition was filed. 
The director denied the petition on November 10, 2004, concluding that the petitioner had not established that 
the beneficiary would be employed in a managerial or executive capacity under the extended petition. The 
director determined that based on the beneficiary's job description, and the limited number of employees 
worlung for the company, "it is not clear how the beneficiary would be relieved of the day[-]to[-]day duties of 
running the operations." The director noted that the job description provided suggests that the beneficiary is 
functioning as an accountant, bookkeeper and sales representative, rather than performing duties normally 
performed by someone in a managerial position. The director further observed that the petitioner did not 
employ other staff members who would relieve the beneficiary from performing these non-qualifying tasks. 
On appeal, the petitioner emphasizes that the beneficiary "is a majority and founding partner" of the U.S. 
company, noting that "his main interest is to consolidate the position of the new company in the Puerto Rican 
market." The petitioner further explains: 
This is a very delicate task requiring the management of a person of absolute confidence, 
with ample criterion and field experience in the decision making process. Although it is 
certain that the duties mentioned are numerous, it is also true that a newly opened enterprise 
demands the sacrifice and conjunction of efforts of all its members beyond job titles. 
Given the nature of the company, active in the construction sector, the personnel needs are 
always fluctuating.. . . In the next months we expect to hire and to prepare and train a suitable 
staff who will free progressively [the beneficiary] from the day to day routine and will permit 
EAC 04 156 51184 
Page 7 
him to dedicate most of his time to the managerial preoccupations, meanwhile, he must take 
care of certain duties not necessarily of managerial nature. 
The petitioner's assertions are not persuasive. Upon review of the petition and supporting evidence, the 
petitioner has not established that the beneficiary will be employed in a managerial or executive capacity 
under the extended petition. 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. 8 214.2(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. 
The petitioner's initial description of the beneficiary's job duties did not establish that the beneficiary would 
be employed in a primarily managerial or executive capacity, other than in position title. The petitioner 
indicated that the beneficiary's responsibilities would include auditing, bookkeeping and "buying related" 
functions. These duties, while potentially complex in nature, are administrative tasks which do not fall under 
the statutory definition of managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act, 8 
U.S.C. 1101 $5 (a)(44)(A) and (B). Although the petitioner claimed that the beneficiary would be responsible 
for "managing the finances" of the company, the petitioner did not describe any duties performed by the 
beneficiary that rise to the level of managerial capacity. 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). 
In response to the director's request for a detailed statement describing the beneficiary's actual duties, the 
petitioner again failed to establish that the beneficiary would perform primarily managerial or executive 
duties. The petitioner indicated that the beneficiary will handle the company's banking activities, prepare 
income statements, balance sheets and other financial reports, "establish contact with possible clients," 
"control the flow of cash receipts and disbursements," process documentation related to the company's 
insurance, lease, tax and licensing requirements, "offer attention to clients and visitors," "act as the company 
buyer," and assist clients with financing, permit and licensing issues. These duties, which comprise the 
majority of the job description provided, are an indicative of an employee performing the duties of an 
accountant, buyer, sales representative and office administrator, rather than one who is performing primarily 
managerial or executive duties. Further, the petitioner has not shown that it employed other employees to 
relieve the beneficiary from primarily engaging in non-qualifying duties associated with the routine, day-to- 
day functions of the company. 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 Int 'l., 19 I&N Dec. 593, 
604 (Comm. 1 9 8 8). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Although requested by the director, the petitioner did not provide a breakdown of the number 
of hours the beneficiary would devote to each of his listed job duties on a weekly basis. The petitioner lists 
EAC 04 156 51184 
Page 8 
the beneficiary's duties as including both managerial and administrative or operational tasks, but fails to 
quantify the time the beneficiary spends on them. This failure of documentation is important because, as 
noted above, the majority of the beneficiary's daily tasks do not meet any of the criteria for executive or 
managerial capacity as described in the statute. For this additional reason, the AAO cannot determine 
whether the beneficiary has been or will be primarily performing the duties of a manager or executive. See 
IKEA US, Inc. v. U.S. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The test is basic to ensure that a person not only has the requisite 
authority, but that a majority of his or her duties related to operational or policy management, not to the 
supervision of lower level employees, performance of the duties of another type of position, or other 
involvement in the operational activities of the company. 
The AAO acknowledges that, as a major shareholder of the petitioning company and one of only two 
employees, the beneficiary likely exercises a heightened level of authority over its operation and is charged 
with establishing its financial goals and objectives. However, the petitioner concedes on appeal that the 
beneficiary continues to "take care of certain duties not necessarily of [a] managerial nature." The actual 
duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In the instant matter, the petitioner has failed to 
show that non-qualifying duties will not constitute the majority of the beneficiary's time. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 9 1101(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into 
account the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for 
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. fj 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) 
allows the "new office" operation one year within the date of approval of the petition to support an executive 
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year 
period. If the business does not have sufficient staffing after one year to relieve the beneficiary fiom 
primarily performing operational and administrative tasks, 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. 
The petitioner repeatedly references its prospective construction projects and its intention to hire additional 
staff as the company undertakes these projects. However, the petitioner must establish eligibility at the time 
of filing the nonimrnigrant visa petition. 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. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 
1971). Regardless, based on the petitioner's representations regarding its proposed staff, its future hires 
EAC 04 156 51184 
Page 9 
would be performing the actual construction-related work, rather than relieving the beneficiary from 
performing non-qualifying duties associated with the company's financial, purchasing and administrative 
functions. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be employed 
in a primarily managerial or executive capacity under the extended petition. For this reason, the appeal will 
be dismissed. 
The second issue in this proceeding is whether the petitioner established that the United States and foreign 
entities still have a qualifying relationship, as required by 8 C.F.R. 5 214.2(1)(14)(ii)(A). 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) QualiJLing organization means 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 (l)(l)(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 10 1 (a)(15)(L) of the Act. 
(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 
EAC 04 156 51184 
Page 10 
(1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity; 
The petitioner stated on the L classification supplement to Form 1-129 that it is a subsidiary of the 
beneficiary's foreign employer, Demo1 SAC, located in Peru. The petitioner attached a list of shareholders 
for the U.S. company: 
250 Stocks 
2,250 Stocks 
2,250 Stocks 
250 Stocks 
With respect to the U.S. company, the petitioner submitted: (1) its April 1, 2003 certificate of incorporation, 
which indicates that the company is authorized to issue 50,000 shares of stock with par value of $10.00; (2) 
its 2003 Corporate Annual Report, which lists the value of the company's capital stock as of December 3 1, 
2003 as "0'; and (3) an untranslated copy of its 2003 income tax return, Form 480.2, Planilla de Contribucion 
Sobre Ingresos de Corporaciones, certified by the Puerto Rico Department of Finance, which lists the 
shareholders of the comoration at Part 10, Com~ensation to Officers. The ~etitioner's Form 480.2 shows that 
the beneficiary owns 56 percent of the common stock of the corporation, while 
owns the remaining 44 percent of the company's stock. - 
As evidence of the ownership of the foreign entity, the petitioner submitted, among other documents, the 
company's March 8, 1999 corporation register which identifies its shareholders as 
Dupont (4,990 shares) and (4,990 shares). - 
In his June 7, 2004 request for evidence, the director noted the ownership of the two companies as stated 
above, and advised the petitioner that the record was not persuasive in establishing that a qualifying 
relationship exists. The director instructed the petitioner to confirm the ownership and control of each 
company by submitting copies of all stock certificates, stock ledgers or other evidence to support its claims. 
The petitioner's August 22, 2004 response included the following statement regarding the ownership and 
control of each company: 
The shareholders of [the petitioner] (Puerto Rico Corporation) are: 
250 shares 5% 
2,250 shares 45% 
2,250 shares 45% 
EAC 04 156 51184 
Page 11 
[Tlhe present shareholders of Demol SAC (Peruvian-based company) are the following 
persons: 
4,990 shares 50% 
4,990 shares 50% 
i'he orignal partner wnership of his 4,999 
shares on October 15, 1999, in favor 
In consequence, it is demonstrated that the two shareholders of Demol S.A.C. are also 
shareholders of the 50% of the [the petitioner's] stocks. 
The petitioner submitted two share certificates for the forei entity, dated October 20, 1999, confirming the 
ownership of 4,990 shares each by and The petitioner did 
not submit supporting documentation to substantiate the claimed ownership of the U.S. entity. 
The director denied the petition on November 10, 2004 concluding that the petitioner had not established the 
ies. The director determined that 
wn shares of both companies, the 
companies cannot be considered to be related to each other as affiliates. Specifically, the director observed: 
"The companies are not owned and controlled by the same group of [individuals] where each owns and 
controls approximately the same share or proportion of each entity[:]" 
On appeal, the petitioner asserts that the U.S. company was established "as an affiliate" of the foreign entity 
and emphasizes that the companies "share the same name and the same objectives." The petitioner further 
explains: 
The Demol SAC shareholders .rhey are brothers- 
in-law and at the same time they possess the 50% of [the etitioner]. The other 50% are 
owned by [the beneficiary] and his -Literally speaking, this is a 
family-owned business. 
The duplicity of criteria about this matter is demonstrated because the USCIS have granted 
recently the approval of our petitioners for another two offers using exactly the same 
documentations that we presented in the case of [the beneficiary]. 
In support of the appeal, the petitioner submits a letter from the foreign entity confirming the ownership of 
each company; evidence of a $4,155 wire transfer from the foreign entity that was deposited into the 
petitioner's bank account on March 22, 2004; an excerpt from the foreign entity's web site, which lists the 
petitioner as its representative in Puerto Rico; and, copies of Form 1-797 Approval Notices for two other L-IA 
nonimmigrant petitions filed by the petitioner in 2004. 
EAC 04 156 51184 
Page 12 
The regulation and case law confirm that ownership, and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entitjl with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
The petitioner has failed to sufficiently document the ownership and control of the U.S. company. The only 
evidence submitted by the petitioner with respect to the ownership of the U.S. company are various lists of 
shareholders provided by company officials. The petitioner's claims regarding the ownership of the U.S. 
company are not supported by any documentary evidence. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
The regulation at 8 C.F.R. 214.2(1)(3)(viii) states that the director may request additional evidence in 
appropriate cases. Although specifically and clearly requested by the director, the petitioner declined to 
provide copies of all of its issued stock certificates and stock transfer ledger. The petitioner's failure to submit 
these documents cannot be excused. The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. See 8 C.F.R. fj 103.2(b)(14). For this reason, the petition 
cannot be approved. 
Furthermore, as noted above, the U.S. company's Puerto Rico income tax return, Form 480.2, which was 
prepared and signed by one of the petitioner's claimed shareholders, indicates that the U.S. company has only 
two shareholders, not four shareholders as claimed by the petitioner. The tax return also indicates that the 
beneficiary, who holds no interest in the foreign entity, is the majority owner of the U.S. company. If true, 
this would invalidate the petitioner's arguments that the two companies share 50% common ownership and 
control. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
EAC 04 156 51184 
Page 13 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Id at 591. 
Finally, for the sake of completeness, the AAO notes that even if the petitioner submitted an accurate list of 
shareholders for each corporation, the petitioner's description of the stock distribution of the companies does 
not meet exactly the definitions constituting a qualifying relationship between the United States and the 
foreign entity pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). To establish eligibility in this case, it must be shown 
that the foreign employer and the petitioning entity share common ownership and control. Control may be "de 
jure" by reason of ownership of 5 1 percent of outstanding stocks of the other entity or it may be "de facto" by 
reason of control of voting shares through partial ownership and possession of proxy votes. Matter of Hughes, 
18 I&N Dec. 289 (Comm. 1982). Generally, if one individual owns a majority interest in a petitioner and a 
foreign entity, and controls those companies, then the companies will be deemed to be affiliates under the 
definition even if there are multiple owners. In this case, the petitioner does not claim that one individual 
owns a majority of the stock of both companies. 
Rather, the U.S. entity claims to be owned by four individuals, with no individual holding more than 45 
percent of She shares, and the foreign entity is claimed to be owned equally by two individuals. Absent 
documentary evidence such as voting proxies or agreements to vote in concert so as to establish a controlling 
interest, the petitioner has not established that the same legal entity or individuals control both entities. Thus, 
the companies, based on the purported ownership of each company, are not affiliates as both companies are 
not owned and controlled by the same individuals. Although counsel claims that the two individuals who 
own the foreign entity together own half of the U.S. entity, there is no evidence that these two individuals 
actually control the U.S. entity. Again, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165. The fact that these individuals are purportedly related as brothers-in-law does not assist in establishing a 
qualifying relationship under the regulations. 
Based on the foregoing discussion, the petitioner has not established that the U.S. entity and the foreign entity 
have a qualifying relationship. For this additional reason, the appeal will be dismissed. 
On appeal, the petitioner references other L-1A nonimmigrant petitions that have been approved, claiming 
that the petitioner previously submitted the same supporting documentation to establish the claimed 
qualifying relationship between the U.S. and foreign entities. The AAO notes that in making a determination 
of statutory eligibility, CIS is limited to the information contained in the record of proceeding. See 8 C.F.R. 8 
103.2(b)(16)(ii). If the previous nonimrnigrant petitions filed on behalf of other beneficiaries were approved 
based on the same unsupported 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). 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. It would be absurd to suggest that CIS or any agency must treat acknowledged 
EAC 04 156 51184 
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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 nonimrnigrant 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.), afd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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. 
ORDER: The appeal is dismissed.