dismissed L-1A Case: Construction/Remodeling

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdmrnrstratrve Appeals, MS 2090 
identifying data deleted to 
 Washington, DC 20529-2090 
prevent clearly unwarranted U.S. Citizenship 
invasion of personal privacy 
 and Immigration 
PUBLIC COPY 
File: WAC 08 143 5401 3 Office: CALIFORNIA SERVICE CENTER Date: SEP 3 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. ij 103.5(a)(l)(i). 
F. Grissom 
Chief, Administrative Appeals Office 
WAC 08 143 54013 
Page 2 
DISCUSSION: The Director, California Service Center denied the nonimmigrant petition and 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 beneficiary's employment as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner, a California corporation established in 2002, 
operates a flooring, cabinetry and remodeling business. It claims to have a qualifying relationship with AL 
Khalsa Aluminum Glass and Decor Contracting and AL Khalsa Carpentry, located in United Arab Emirates. 
The beneficiary has been employed as the petitioner's managing director and chief executive officer since 
April 2003 and the petitioner now seeks to extend his L-1A status for two additional years. 
The director denied the petition on two separate grounds, concluding that the petitioner failed to establish: (1) 
that the beneficiary will be employed in a primarily managerial or executive capacity; and (2) that the U.S. 
maintains a qualifying relationship with a foreign entity. 
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 established by a 
preponderance of the evidence that the petitioner and beneficiary are eligible for the requested extension of 
status. Counsel contends that the director erred by issuing a request for additional evidence in this matter, and 
by failing to defer to three prior L-1A approvals granted to the beneficiary for the same position with the 
petitioner. Counsel requests that the instant petition be approved "as a matter of equity." Counsel submits a 
lengthy 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 10 1 (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. 8 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
WAC 08 143 5401 3 
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 himlher 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 first issue addressed by the director is whether the petitioner established that beneficiary will be employed in 
a primarily managerial or executive capacity under the extended petition. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
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-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
WAC 08 143 54013 
Page 4 
The petitioner filed the nonimmigrant petition on April 16, 2008. The petitioner indicated on Form 1-129 that it 
had three employees as of the date of filing. In a letter dated April 11, 2008, the petitioner stated that the 
beneficiary, as managing director, "is occupying the highest managerial position in the US office," and performs 
the following duties: 
Planning and organization purchasing and distribution; 
Formulation of policies, developing and implementing short and long range goals of the 
company's developmental plan; 
Manage the day to day operations of the subsidiary company; 
Hire or fire employees and independent contractors; 
Managing compliance with scheduling needs and creation and administration of 
standards for work quality; 
Determination and implementation of investment of policy and financial plan; 
Negotiating and contracting with vendors and customers; 
Develop business relations with suppliers; 
Establishing purchasing and sale channels; 
Signing sale contracts; 
Handling and solving commercial disputes; and 
Coordination with the parent company in UAE and reviewing daily international 
material prices. 
The director issued a request for additional evidence on September 10, 2008, in which she instructed the 
petitioner to submit, inter alia: (1) the total number of employees working at the U.S. office; (2) a more detailed 
description of the beneficiary's duties: (3) an organizational chart for the U.S. company; (4) job descriptions for 
all U.S. employees supervised by the beneficiary; (5) copies of IRS Forms 94 1, Employer's Quarterly Federal Tax 
Return, and state quarterly wage reports filed by the petitioner for all four quarters of 2007 and the first two 
quarters of 2008; and (6) copies of IRS Forms W-2 issued by the petitioner in 2007. The director also requested 
additional evidence to establish the nature of the petitioner's business and the types of products and services it 
provides. 
In a letter dated November 19,2008, the petitioner provided the following description of the beneficiary's duties: 
Direct and coordinate financiabudget activities to fund U.S. operations, maximize 
investments, and increase efficiency. 
Deal with offshore company officials and staff members to discuss budget, marketing & 
manufacturing issues, coordinate activities, and resolve product output and delivery 
problems. 
Oversee U.S. operations to evaluate performance of company and staff in meeting 
business objectives and to determine areas of potential cost reduction, program 
improvement or policy change. 
Direct, plan and implement policies, objectives, and activities of U.S. operation to ensure 
continuing operations, to maximize returns on investments, and to increase productivity. 
Direct and coordinate with Finance manager, Purchase Manager and project supervisor. 
WAC 08 143 54013 
Page 5 
Negotiate and approve contracts and agreements with suppliers, contractors, and other 
organizational entities. 
Handle and solve disputes with suppliers, contractors, and other Organizational entities 
Hire or fire employees and independent contractor, assign or delegate responsibilities to 
them. 
Coordinate with the parent company in UAE; 
he petitioner submitted an organizatior 
- - 
, a finance managerlsecretary = 
The chart shows two workers under the projects supervisor, 
provided the requested job descriptions for all positions identified on the organizational chart. 
The petitioner also provided evidence of wages paid to employees since 2007, including copies of its IRS Forms 
941 and W-2, and California quarterly wage reports. The evidence shows that the beneficiary and his spouse were 
the only employees working for the petitioning company in 2007. The petitioner employed a total of five 
employees during the first quarter of 2008. However, the petitioner reported only three employees for the month 
of April 2008, the month in which the petition was filed, and four employees for the months of May and June 
2008. None of the submitted evidence reflects any payments to the purchasing manager. It appears that the 
staffing as of the date of filing included the beneficiary, the secretarylfinance manager, and the project supervisor. 
The petitioner also submitted additional evidence documenting the nature of the U.S. company's business 
activities. The records shows that the company is engaged in kitchen and bath remodeling, specializing in custom- 
made cabinets and flooring. 
The director denied the petition on December 5, 2008, concluding that the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity under the extended petition. In 
reviewing the submitted organizational chart and payroll records, the director noted that the petitioner had not 
submitted evidence of wages paid to the purchasing manager, and further noted that the beneficiary's spouse, 
has not had authorization to work in the United States since April 2006. The director further found 
that the job description provided for the beneficiary is not sufficient to establish that he is relieved from 
performing many aspects of the day-to-day operations of the business. The director concluded that the petitioner 
failed to demonstrate that the beneficiary would be primarily managing a subordinate staff of professional, 
managerial or supervisory personnel, or that he would manage an essential function of the company. 
On appeal, counsel for the petitioner asserts that USCIS has approved every L-1A petition previously filed by the 
petitioner on behalf of the beneficiary, and emphasizes that the director has not explained why there was a sua 
sponte re-adjudication, nor articulated a material change, changed circumstance or new material information that 
would warrant denial of this third request for an extension. Counsel asserts that, in the absence of such 
explanation, the director should have deferred to the three previous adjudicator's approvals, rather than denying 
the instant petition for "subjective reasons." Counsel specifically refers to a 2004 USCIS memorandum to 
support his assertion that it is USCIS policy that prior approvals should be given deference in matters relating 
to an extension of nonimmigrant petition validity involving the same parties and the same underlying facts. 
See Memorandum of William R. Yates, Associate Director for Operations, USCIS: "The Significance of a 
WAC 08 143 54013 
Page 6 
Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding 
Eligibility of Petition Validity" (April 23, 2004)("Yates memorandum"). The memorandum provides that 
exceptions to this policy should be made where: (1) it is determined that there was a material error with regard 
to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there is new 
material information that adversely impacts the petitioner's or beneficiary's eligibility. Id. Counsel asserts that 
the instant petition involves the same parties and underlying facts and that none of the above-referenced 
exceptions to USCIS policy apply. Counsel requests that the AAO grant the extension "as a matter of fairness." 
In support of the appeal, the petitioner submits copies of the three Forms 1-129, Petition for a Nonimmigrant 
Worker, that were previously filed on behalf of the beneficiary. The petitioner also submits an affidavit from the 
beneficiary, who states that he has been performing the same duties with the U.S. company throughout his L-1 
employment. The petitioner also provides a letter from who states that he is employed by 
the petitioner as a purchasing officer, along with evidence of wages paid to during the months of 
November 2008, December 2008, and January 2009. 
Upon review, the petitioner has not established that the beneficiary will be employed in a primarily managerial or 
executive capacity. 
When 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. 5 214.2(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. 
The petitioner's initial description of the beneficiary's duties offered little insight into what specific tasks he 
performs on a day-to-day basis. Several of the listed duties merely paraphrased the statutory definitions of 
managerial and executive capacity. For example, the petitioner stated that the beneficiary is responsible for 
"formulation of policies," "developing and implementing short and long range goals," and "managing the day- 
to-day operations" of the company." 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), afd, 
905 F.2d 41 (2d. Cir. 1990). 
Furthermore, it is unclear what specific qualifying managerial tasks would be involved in "planning and 
organization of purchasing and distribution," "establishing purchasing and sales channels," "signing sales 
contracts," and "negotiating and contracting with vendors and customers." The petitioner does not employ any 
sales staff and, as discussed further below, has not established that it actually employed a purchasing officer 
or manager at the time the petition was filed, or any employees who are responsible for providing customers 
with estimates for their projects. Therefore, it is reasonable to conclude that the beneficiary himself is directly 
responsible for purchasing materials for the petitioner's showroom and for customer projects, as well as 
performing duties associated with the sales of the petitioner's products and services, rather than merely 
planning or organizing such activities. Many of the purchase invoices in the record identify the beneficiary as 
the person placing orders for purchases, and the documentation submitted further suggests that the beneficiary 
has been responsible for providing estimates for proposed customer projects. Such duties would be in line 
WAC 08 143 5401 3 
Page 7 
with the beneficiary's stated responsibility for negotiating contracts with customers. 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. 1988). 
In response to the directors' request for a more detailed description of the beneficiary's duties, the petitioner 
submitted a job description that was both shorter and more nonspecific than that provided at the time of filing. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 5 103.2(b)(8). The information provided by the petitioner in its 
response to the director's request for further evidence did not clarify or provide more specificity to the original 
duties of the position, but rather added new generic duties to the job description, while removing other duties 
entirely. 
For example, rather than elaborating upon the initial job description, the petitioner removed all references to 
the beneficiary's involvement in any sales and purchasing activities or customer interactions. The petitioner 
also added that the beneficiary has responsibility for coordinating manufacturing and other activities with 
"offshore company officials," however, the extensive evidence in the record indicates that the petitioner 
purchases its materials from local suppliers in the United States and there is no evidence that the company has 
any business dealings with its claimed parent or affiliate company abroad. Finally, the petitioner indicated that 
the beneficiary is responsible to "oversee U.S. operations," and to "direct, plan and implement policies, 
objectives and activities of U.S. operation." Again, conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108; Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). 
Therefore, despite the multiple position descriptions provided, the petitioner has failed to provided a detailed, 
consistent account of what the beneficiary primarily does on a day-to-day basis as the managing director of 
the petitioner's kitchen and bath remodeling and cabinetry business. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation 
of the beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1 108. 
The definitions of executive and managerial capacity each 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 fact that the beneficiary manages a business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of sections 10l(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 
1987) (noting that section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive"). While the AAO does not doubt that the beneficiary exercises discretion over the petitioner's 
WAC 08 143 540 13 
Page 8 
day-to-day operations and has the appropriate level of decision-making authority, the petitioner has failed to 
show that his actual duties will be primarily in a managerial or executive capacity. 
When examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and Immigration 
Services (CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of 
his or her subordinate employees, the nature of the petitioner's business, and any other facts contributing to a 
complete understanding of a beneficiary's actual role in a business. The evidence must substantiate that the 
duties of the beneficiary and his or her subordinates correspond to their placement in an organization's 
structural hierarchy; artificial tiers of subordinate employees and inflated job titles are not probative and will 
not establish that an organization is sufficiently complex to support an executive or manager position. 
At the time of filing, the petitioner claimed to employ three employees. The petitioner's state and federal tax 
records confirm that the petitioner did in fact have only three employees during the month of April 2008, 
when the petitioner was filed. The em lo ees aid in April 2008 include the beneficiary, his spouse, and the 
project supervisor. It appears that a "worker," may be employed on an intermittent basis, as he 
received wages in the months preceding and following the filing of the petition. The AAO acknowledges that 
the petitioner claimed to employ a purchasing manager and a second worker as of November 2008 when it 
responded to the request for evidence. However, 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). 
Furthermore, as noted by the director, USCIS records indicate that 
 who is claimed to hold the 
positions of finance manager and secretary, has not been authorized by USCIS to work in the United States 
since April 2006 and has not filed an application for employment authorization since that time. The petitioner 
has not addressed employment status on appeal. 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). 
Although the beneficiary's job description refers to his responsibility for hiring contractors, the record does 
not contain documentary evidence corroborating the petitioner's use of independent contractors to carry out its 
business activities, and no payments to contractors are evident based on a review of the petitioner's Form 
1120, U.S. Corporation Income Tax Return, for 2007. 
Therefore, despite the managerial and supervisory job titles given to the beneficiary's subordinates as of 
November 2008, the totality of the record does not support a conclusion that the beneficiary supervised a 
subordinate staff of supervisors or managers as of April 2008, and the petitioner does not claim that the 
subordinates are professionals. Instead, the record indicates that the beneficiary's subordinates perform the 
actual day-to-day tasks of remodeling kitchens and/or administrative duties. Thus, the petitioner has not 
shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, and he 
cannot qualify as a "personnel manager" pursuant to section lOI(a)(44)(A)(ii) of the Act. 
WAC 08 143 54013 
Page 9 
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a 
subordinate staff but instead is primarily responsible for managing an "essential function" within the 
organization. See section 10 1 (a)(44)(A)(ii) of the Act, 8 U.S.C. § 1 10 1 (a)(44)(A)(ii). The term "essential 
function" is not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an 
essential function, the petitioner must furnish a written job offer that clearly describes the duties to be 
performed in managing the essential function, i.e. identify the function with specificity, articulate the essential 
nature of the function, and establish the proportion of the beneficiary's daily duties attributed to managing the 
essential function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's 
daily duties must demonstrate that the beneficiary manages the function rather than performs the duties 
related to the function. In this matter, the petitioner has neither claimed nor provided evidence that the 
beneficiary manages an essential function. As discussed above, the petitioner has not clearly described the 
beneficiary's job duties. The fact that the beneficiary manages a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity within the 
meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739 (Feb. 26, 1987). The record must 
establish that the majority of the beneficiary's duties will be primarily directing the management of the 
organization or a component or function of the organization. 
A company's size alone, without taking into account the reasonable needs of the organization, may not be the 
determining factor in denying a visa to a multinational manager or executive. See 5 101(a)(44)(C) of the Act, 
8 U.S.C. $ 1 101(a)(44)(C). However, in reviewing the relevance of the number of employees a petitioner has, 
federal courts have generally agreed that USCIS "may properly consider an organization's small size as one 
factor in assessing whether its operations are substantial enough to support a manager." Family Inc. v. US. 
Citizenship and Immigration Services 469 F. 3d 13 13, 13 16 (9th Cir. 2006) (citing with approval Republic of 
Transkei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 
1990)(per curiam); Q Data Consulting, Znc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is 
appropriate for USCIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non- 
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (3.D.C. 2001). 
At the time of filing, the petitioner was a five-year-old company engaged in the operation of a kitchen and 
bath remodeling, flooring and cabinetry business. The petitioner has not established how one project 
supervisor, one intermittent "worker," and one secretary are able to perform the non-managerial tasks 
associated with the business such that the beneficiary is not engaged in the day-to-day operations of sales, 
marketing, purchasing, or other administrative and operational functions. In fact, the petitioner has not 
established that the beneficiary has consistently been relieved from participating in directly providing the 
services of the company. As noted above, the beneficiary and his spouse were the only employees of the 
company throughout 2007. As the petitioner has not documented payments to any sub-contractors, it appears 
that the beneficiary himself may have provided the cabinet and flooring installation services. 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 managing director and two to three subordinates. 
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 
WAC 08 143 540 13 
Page 10 
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 AAO acknowledges that the beneficiary has held L-1A status for five years, and that his most recent 
approval was granted in April 2006. The AAO also acknowledges the petitioner's claim that the beneficiary's 
role and responsibilities within the company have remained unchanged throughout his employment. 
However, as noted above, the evidence shows that the beneficiary and his spouse (who had no employment 
authorization from USCIS), were the petitioner's only employees for at least an entire year, and as recently as 
a few months prior to the filing of the petition. Given the service-oriented nature of the petitioner's business, 
this evidence could reasonably suggest either a substantial change in circumstance, or raise questions 
regarding the approvability of prior petitions that may have been based on similar facts. It must be 
emphasized that each petition filing is a separate proceeding with a separate record. See 8 C.F.R. 3 103.8(d). 
In making a determination of statutory eligibility, USCIS is limited to the information contained in that 
individual record of proceeding. See 8 C.F.R. 3 103.2(b)(16)(ii). Accordingly, the AAO finds that the 
director's close analysis and detailed request for evidence were appropriate in light of the referenced 
memorandum and the petitioner's evidentiary burden. USCIS records indicate that the petitioner was never 
issued an RFE in any prior nonimmigrant proceeding, so it does not appear that the director requested 
evidence in this matter that was previously provided and reviewed for sufficiency. 
While USCIS previously approved multiple petitions for L-IA status filed on behalf of the beneficiary, the 
prior approvals do not preclude USCIS from denying an extension of the original visa based on reassessment 
of beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th 
Cir. 2004). If the previous nonimmigrant petitions were approved based on the same insufficient evidence 
that is contained in the current record, the approvals would constitute material and gross error on the part of 
the director. Due to the lack of evidence of eligibility in the present record, the AAO finds that the director 
was justified in departing from the previous approvals by denying the present request to extend the 
beneficiary's stay. 
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 USCIS 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). USCIS memoranda merely articulate internal guidelines 
for USCIS personnel; they do not establish judicially enforceable rights. An agency's internal personnel 
guidelines "neither confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may 
rely." Loa-Herrera v. Trorninski, 23 1 F.3d 984, 989 (5th Cir. 2000)(quoting Fano v. O'Neill, 806 F.2d 1262, 
1264 (5th Cir. 1987)). 
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 
WAC 08 143 54013 
Page 11 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afyd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 5 1 (2001). 
The petitioner has not submitted evidence on appeal to overcome the director's determination that the 
beneficiary will not be employed in a managerial or executive capacity. Accordingly, the appeal will be 
dismissed. 
The second issue addressed by the director is whether the petitioner established that it has a qualifying 
relationship with the foreign entity. To establish a "qualifying relationship" under the Act and the regulations, 
the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same 
employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 10 l(a)(15)(L) of the Act; 8 C.F.R. 5 2 14.2(1). 
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) Qualzhing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) 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. 
WAC 08 143 54013 
Page 12 
(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. 
The petitioner indicated on Form 1-129 that it is an affiliate of Al Khalsa Aluminum Glass & DCcor 
Contracting, located in Sharjah, United Arab Emirates. In its letter dated April 14, 2008, counsel for the 
petitioner stated that the petitioner "is 100% owned by the parent companies A1 Khalsa Aluminum, Glass and 
DCcor Contracting and A1 Khalsa Carpentry." Counsel stated that the two foreign companies are owned and 
managed by the same person, and share the same business premises, staff and equipment. Counsel further 
indicated that A1 Khalsa Carpentry's financial information is incorporated into the financial reports for A1 
Aluminum Glass and DCcor Contracting. In a letter dated April 11, 2008, the petitioner stated that the 
beneficiary is the owner of both foreign entities. 
The petitioner submitted a copy of its IRS Form 1120, U.S. Corporation Income Tax Return, which indicates 
at Schedule K that the beneficiary is the company's sole shareholder. According to information provided at 
Schedule L, the company's issued common stock is valued at $1 0,000. 
The petitioner submitted audited balance sheets for A1 Khalsa Aluminum, Glass & DCcor Contracting for the 
years ended on December 3 1,2006 and 2007. The company is described as a limited liability company owned 
by one or more partners. However, the petitioner did not submit documentation to establish the ownership and 
control of the company. The AAO notes that there is no reference to "A1 Khalsa Carpentry" in the notes 
accompanying the balance sheets. 
In the RFE issued on September 10, 2008, the director requested copies of the petitioner's stock certificates, 
stock ledger, articles of incorporation, Notice of Transaction Pursuant to Corporations Code Section 25 102(f), 
and evidence that the foreign entity has paid for its shares in the U.S. entity in the form of canceled checks or 
wire transfer receipts. 
In response, counsel for the petitioner stated that the petitioner is "100% owned by Al Khalsa Aluminum, 
Glass and DCcor Contracting and A1 Khalsa Carpentry," and indicated that Al Khalsa Carpentry paid for the 
stock ownership. 
The petitioner submitted a copy of its stock certificate number 100, issuing 10,000,000 shares of stock to Al 
Khalsa Aluminum, Glass and Decor Contracting on September 5, 2002. The stock transfer ledger indicates 
that the petitioner received eight money transfers totaling $81,332.67, between September 2003 and 
December 2004 as consideration. The petitioner also submitted copies of wire transfer receipts issued by the 
petitioner's bank indicating that A1 Khalsa Carpentry transferred the funds to the U.S. company. 
WAC 08 143 54013 
Page 13 
In addition, the petitioner submitted a copy of its articles of incorporation filed with the California Secretary 
of State on August 21, 2002, which indicate that the company is authorized to issue 1,000,000 shares of 
common stock. 
The director denied the petition, concluding that the petitioner failed to establish that the petitioner and the 
foreign entity have a qualifying relationship. The director, acknowledging the petitioner's response to the 
RFE, noted that "[slince the payments, made over a period of more than a year, do not correspond to the date 
of transfer of shares, the petitioner has not established that an affiliate relationship exists between the two 
companies." 
On appeal, the petitioner submits evidence, which it claims was submitted in support of a previous L-1 
petition. The evidence includes a letter dated February 1, 2003, in which the beneficiary states that he is the 
sole owner of A1 Khalsa Aluminum Glass & Decor Contracting and A1 Khalsa Carpentry. The newly 
submitted evidence also includes a professional license issued to the beneficiary on August 28, 1990, which 
states that he is licensed to operate a manual carpentry business under the trade name A1 Khalsa Carpentry in 
the United Arab Emirates. 
The petitioner also provides a signed statement dated January 30, 2009, in which the beneficiary once again 
states that he is the sole owner of both foreign entities. The beneficiary states: 
The stock certificates were issued in 2002 and the transfer occurred later in 2003 and 2004. 
Though the transfer of funds was initially intended to be parallel to the issuance of the stock 
certificates, it was delayed as the money could be used more efficiently in UAE and was not 
urgently required in the U.S. at that time. Since I was the owner of both companies I did not 
deem it to be of any consequence. 
Upon review, the petitioner has not established that it has a qualifying relationship with the foreign entity. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
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 
WAC 08 143 54013 
Page 14 
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, USCIS is unable to determine the elements of ownership and control. 
While the director addressed the issue of whether the petitioner established that its shareholder actually paid 
for its ownership interests in the U.S. entity, the AAO notes that there are other discrepancies and omissions 
which further undermine the petitioner's claims of a qualifying relationship with a foreign entity. 
The petitioner has submitted a stock certificate indicating that A1 Khalsa, Aluminum Glass and Decor 
Contracting was issued 10,000,000 shares of the company's stock in September 2002. However, the 
company's articles of incorporation indicate that the petitioner is authorized to issue only one million shares of 
stock. The petitioner has not submitted evidence that the company amended its articles of incorporation to 
authorize the issuance of nine million additional shares of stock. 
The petitioner claims that A1 Khalsa Carpentry paid in excess of $81,000 for the 10,000,000 shares of stock 
between September 2003 and September 2004. However, the petitioner has not submitted evidence to 
establish that the funds transferred had any relation to the issuance of stock to A1 Khalsa Aluminum Glass and 
Decor Contracting. As noted by the director, the dates of the transfers do not coincide with the issuance of the 
stock. The claim that the new U.S. company did not require any funding prior to September 2003 is not 
persuasive, particularly given that the petitioner was required to show evidence of the size of the U.S. 
investment at the time it filed a new office petition in February 2003. See 8 C.F.R. $ 214.2(1)(3)(v)(C)(2). 
Furthermore, the petitioner's 2007 tax return indicates at Schedule L that the value of the company's issued 
stock is $10,000, while the petitioner's stock ledger indicates that the company received $27,700 in exchange 
for its issued stock. 
Furthermore, the petitioner did not submit any documentary evidence to establish the relationship between the 
two foreign entities. The beneficiary has stated that he owns both companies, and counsel indicates that the 
two companies share a premises, staff, equipment and financial records. The evidence submitted shows that 
the beneficiary established A1 Khalsa Carpentry as a sole proprietorship in 1990. However, the record 
contains no evidence of the ownership of A1 Khalsa Aluminum Glass and Decor Contracting. The company's 
balance sheets indicate that it was established as a limited liability company owned by one or more partners. 
The petitioner's and counsel's unsupported assertions that the two foreign entities are affiliates are insufficient. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of SoBci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). The claim that A1 Khalsa Carpentry paid for the other foreign entity's ownership interest in the 
petitioning company must be supported by some documentation of the relationship between these two 
companies. The RFE specifically instructed the petitioner to explain the source and reason for all funds not 
originating with the foreign company. 
WAC 08 143 54013 
Page 15 
Finally, the petition's Form 1120, U.S. Corporation Income Tax Return, indicates at schedule K that the 
beneficiary is its sole owner of the company's issued shares. This information directly conflicts with the 
information contained on the petitioner's stock certificate. As discussed above, the petitioner has not 
supported its claim that the beneficiary owns, directly or indirectly, all three of the companies involved. 
The AAO does not discount the possibility that the petitioner has a qualifying relationship with a foreign 
entity. However, 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). Here, there are sufficient deficiencies and unexplained inconsistencies in 
the submitted evidence to warrant an adverse finding. For this additional reason, the appeal will be dismissed. 
The petition will be denied and the appeal dismissed 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. fj 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.