dismissed L-1A Case: Contactless Technology

U.S. Citizenship
and Immigration
Services
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
File: WAC 06 133 53049
IN RE: Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date:
OCT 02 2001
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15XL) of the Immigration
and Nationality Act, 8 U.S.C. § 110l(a)(15XL)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
R~ef
Administrative Appeals Office
www.uscis.gov
WAC 06 133 53049
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as its "America
technical support manager" as an L-IA nonimmigrant intracompany transferee pursuant to section
101(a)(15XL) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15XL). The petitioner is
a corporation organized under the laws of the State of Delaware and is allegedly engaged in the contactless
technology business.
The director denied the petition concluding that the petitioner did not establish (l) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; (2) that the beneficiary has
been employed abroad in a primarily managerial or executive capacity; or (3) that the petitioner has a
qualifying relationship with the 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 to the petitioner asserts that the director
erred and that the beneficiary's duties will be, and have been, primarily those of a manager. Counsel further
argues that the petitioner established that it has a qualifying relationship with the foreign employer. Counsel
submits a brief and additional evidence, including evidence purporting to establish that the foreign entity
owns and controls the petitioner.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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. § 214.2(JX3) 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 (J)(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
WAC 06 133 53049
Page 3
education, trammg, and employment qualifies hinv'her 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 in the present matter is whether the beneficiary will be employed by the United States entity in
a primarily managerial capacity.I
Section IOI(a)(44XA) of the Act, 8 U.S.C. § I 101(a)(44)(A), defines the tenn "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.
The beneficiary's proposed job duties were described in a letter from the foreign entity dated March 17, 2006
as follows:
[The beneficiary] will be responsible for establishing U.S. sales operations, including the
hiring of professional staff for the Technical Support Team. Additionally, [the beneficiary]
will supervise and coordinate all technical issues with respect to U.S. sales of [the
organization's] products. He will report directly to the U.S. General Manager. [The
beneficiary's] responsibilities will include the following:
• Establish and manage American Technical Support Team to provide pre and post
sales support to the American Sales [T]eam and their customers;
• Direct Technical Support Team in providing support to customers for integration and
'Because counsel specifically limits the beneficiary to the managerial classification, the AAO will not
consider the executive classification.
WAC 06 133 53049
Page 4
use of [the organization's] products, including training and diagnostic analysis of
technical problems;
• Oversee Technical Support Team support to Sales Team in promoting sales of new
products from our product range;
• Lead Technical Support Team in interface between customers and Product
Development at corporate headquarters in France where necessary;
• Direct Technical Support Team interface with Product Development Team with
respect to products and technologies unique to and required by the American market;
• Prepare reports for senior management and Research and Development regarding
hardware issues encountered in the field.
On April 3, 2006, the director requested additional evidence. The director requested, inter alia, a more
detailed description of the beneficiary's proposed duties, an organizational chart, and wage reports.
In response, the petitioner submitted a letter dated April 30, 2006 further elaborating on the beneficiary's
proposed job duties as follows:
• Establish and oversee the American Technical Support Team in accordance with
business opportunities, establishing job descriptions and setting forth responsibilities;
• Manage American Technical Support Team to provide pre and post sales support to
the American Sales [T]eam and their customers;
• Direct Technical Support Team in providing support to customers for integration and
use of [the organization's] products, including training and diagnostic analysis of
technical problems;
• Meet with our key American customers on a routine basis to better understand their
technical needs and concerns;
• Interface internally with sales, and product development, production and quality
control departments at our headquarters in France;
• Oversee Technical Support Team support to Sales Team in promoting sales of new
products from our product range;
• Lead Technical Support Team in interface between customers and Product
Development at corporate headquarters in France where necessary;
• Direct Technical Support Team interface with Product Development Team with
WAC 06 133 53049
Page 5
respect to products and technologies unique to and required by the American market;
• Prepare reports for senior management and Research and Development regarding
hardware issues encountered in the field.
The petitioner also supplied a separate "job descriptionIt in which the beneficiary is generally described as
working with customers and setting up the technical support team.
Finally, the petitioner submitted an organizational chart for the United States operation and wage reports. The
organizational chart shows the beneficiary reporting to an "Americas" sales employee who, in turn, reports to
a "corporate sales" employee. The beneficiary is not portrayed in the chart as having a supervisory function.
The wage reports indicate that, in the month the petition was filed, the petitioner employed one person, the
beneficiary's proposed direct supervisor. At the time the petition was filed, the petitioner did not employ any
members of the technical support team which the beneficiary is being hired to supervise.
On May 15,2006, the director denied the petition. The director concluded, inter alia, that the petitioner failed
to establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of a manager.
Upon review, the petitioner's assertions are not persuasive.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(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. In this matter, the petitioner has asserted that the
beneficiary will be employed in a primarily managerial capacity.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary will do on a day-to-day
basis. For example, the petitioner states that the beneficiary will direct, oversee, and lead a "technical support
team." However, the record indicates that the petitioner does not employ a "technical support team." Other
than hiring employees and serving customers directly, the record does not clearly establish what the
beneficiary will do on a day-to-day basis. Specifics are clearly an important indication of whether a
beneficiary's duties are primarily managerial in nature; otherwise meeting the definitions would simply be a
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd,
905 F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Corom. 1972).
Likewise, most of the duties listed by the petitioner appear to be non-qualifying administrative or operational
tasks which do not rise to the level of being managerial in nature. For example, the petitioner states that the
beneficiary will meet with customers, hire employees who will perform the tasks necessary to provide a
WAC 0613353049
Page 6
service, and, eventually, supervise hypothetical employees who have not been proven will be supervisory,
managerial, or professional workers (see infra). Instead, these duties constitute non-qualifying administrative
or operational tasks. As the organizational chart fails to identify any employees who will relieve the
beneficiary of the need to perform services for customers and other non-qualifying tasks, it must be concluded
that he will perform these tasks. It is important to note that the petitioner, as a fully-formed business entity
organized in 2002, must establish that the beneficiary will be employed primarily as a manager immediately
upon his arrival in the United States. Even if the petitioner plans to hire subordinate employees in the future
to relieve the beneficiary of the need to perform some non-qualifying tasks, 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. Corom. 1978). Therefore, for the reasons outlined above, it cannot be
confirmed that the beneficiary will be "primarily" employed as a manager immediately upon his arrival in the
United States or even after the "technical support team" is hired. An employee who "primarily" performs the
tasks necessary to produce a product or to provide services is not considered to be "primarily" employed in a
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained in the organizational chart and wage reports, the beneficiary will not supervise or control any
employees upon his arrival in the United States. Therefore, for this reason alone, the petitioner has not
established eligibility under this criterion. Moreover, even assuming that the petitioner hires, and the
beneficiary ultimately supervises, the "technical support team," it has not been established that these
employees will be supervisory, managerial, or professional employees. To the contrary, it appears that these
prospective employees will perform the tasks necessary to provide a service or to produce a product and,
consequently, the beneficiary will be primarily their first-line supervisor. A managerial employee must have
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the
supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. at 604. Moreover, as the petitioner did not establish the skill level or educational
background required to perform the duties of the prospective "technical support team," the petitioner has not
established that the beneficiary will manage professional employees. 2
2In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.c. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (0.0.1966).
WAC 06 133 53049
Page 7
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial
. 3
capaCIty.
It is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the petitioning
company in conjunction with other relevant factors, such as a company's small personnel size, the absence of
employees who would perform the non-managerial or non-executive operations of the company, or a "shell
company" that does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v.
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial duties, and the petition may not be approved for that reason.
The second issue in the present matter is whether the petitioner has established that the beneficiary has been
employed abroad in a primarily managerial capacity.
4
The beneficiary's foreign job duties were described in a letter from the foreign entity dated March 17,2006 as
follows:
[The beneficiary] has held the position of Hardware Operations Manager at [the foreign
entity] since 2002. In this capacity, he has complete oversight of the technology of our
products. [The beneficiary] directs the industrialization of new hardware products and
subsequent technical management of the product, and thus is a functional manager. He has
3While the petitioner has not clearly argued that the beneficiary will manage an essential function of the
organization, the record nevertheless would not support this position even if taken. The term "function
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff
but instead is primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job 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(l)(3Xii). 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
not provided evidence that the beneficiary will manage an essential function. As explained above, the record
establishes that the beneficiary will be performing the function rather than managing the function. Moreover,
even assuming the "technical support team" is hired, the beneficiary will serve as a first-line supervisor.
Absent a clear and credible breakdown of the time spent by the beneficiary performing his duties, the AAO
cannot determine what proportion of his duties would be managerial, nor can it deduce whether the
beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. Us. Dept. of
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
4Because counsel specifically limits the beneficiary to the managerial classification, the AAO will not
consider the executive classification.
WAC 06 133 53049
Page 8
the following responsibilities:
• Leads the APR (Preliminary Risk Analysis) for new hardware products during
product development;
• Defines financial goals for the hardware team and monitor[ s] progress of achieving
these goals;
• Supervises training and support to hardware team;
• Negotiates with subcontractors with respect to hardware product costs and lead-time;
• Manages development of specific tooling for the final product;
• Directs testing of hardware products and validation of specifications;
• Oversees certification processes;
• Analyzing field reports on hardware products to coordinate corrective actions with
Research & Development and/or subcontractors;
• Directs market research with respect to new hardware technologies for potential
adaptation of [the foreign entity's] products.
As Hardware Operations Manager, [the beneficiary] interfaces with hardware subcontractors,
external laboratories and customers as well as [the foreign entity's] Production and Test
Engineers, Product, Packaging, Quality Assurance and Logistics teams. His position can
clearly be defined as managerial in nature as he has supervisory responsibility for
professionals, staff and a key department at [the foreign entity]. [The beneficiary] plans,
organizes, and directs the management [of] all Hardware Operations and has full discretion to
decide how best to perfonn these essential duties.
The petitioner also submitted a series of organizational charts for the foreign entity which place the
beneficiary in the operations department under "hardware & systems." He is portrayed as supervising a
"validation" employee and a "control & repair" employee. The petitioner did not provide job descriptions for
the two subordinate workers.
On April 3, 2006, the director requested additional evidence. The director requested, inter alia, an
organizational chart in which the job duties of the beneficiary's subordinate employees are described and a
more detailed description of the beneficiary's duties.
In response, the petitioner submitted a letter dated April 30, 2006 which includes a description of the
beneficiary's foreign duties which is identical to the description contained in the March 17, 2006 letter. The
petitioner did not provide job descriptions for the beneficiary's purported subordinate employees abroad.
WAC 06 133 53049
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On May 15, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary has been employed abroad in a primarily managerial or executive capacity.
On appeal, counsel to the petitioner asserts that the beneficiary has been employed abroad in a primarily
managerial capacity. In support of this assertion, the petitioner submitted additional evidence regarding his
job duties abroad and the responsibilities of his subordinate employees. Furthermore, counsel argues that the
director erred in failing to consider whether, alternatively, the beneficiary had been employed abroad in a
capacity which involved specialized knowledge.
Upon review, the petitioner's assertions are not persuasive.
As a threshold issue, it must be noted that the petitioner's attempt to supplement the record on appeal with
additional information regarding the duties of the beneficiary and his subordinate employees abroad was
inappropriate and will not be considered by the AAO. The petitioner was put on notice of required evidence
and given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. The
Request for Evidence clearly requested a more detailed description of the beneficiary's duties abroad and "a
brief description of job duties, educational level and annual salaries" for all employees under the beneficiary's
supervision abroad. The petitioner failed to submit the requested evidence and now submits it on appeal.
However, the AAO will not consider this evidence for any purpose. See Matter ofSoriano, 19 I&N Dec. 764
(BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on
the record of proceeding before the director.
Moreover, counsel's assertion that the director was obligated to determine whether the beneficiary had been
employed abroad in a capacity involving specialized knowledge is completely without merit. The petitioner
clearly asserted in the letter dated March 17, 2006, which was appended to the initial petition, that the
beneficiary had been a "functional manager." The petitioner does not even assert in the alternative that the
beneficiary was employed in a capacity involving specialized knowledge. On appeal, a petitioner cannot
offer a new position to the beneficiary, or materially change a position's title, its level of authority within the
organizational hierarchy, or the associated job responsibilities. The petitioner must establish that the
beneficiary's position merits classification as a managerial, executive, or specialized knowledge position at
the time the petition was filed. See Matter ofMichelin Tire Corp., 17 I&N Dec. at 249. A petitioner may not
make material changes to a petition in an effort to make a deficient petition conform to CIS requirements. See
Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Regardless, the petitioner failed to identify
any specialized or advanced body of knowledge which would distinguish the beneficiary's role from that of
other workers employed by the petitioner or in the industry at large. Going on record without documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici,
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190).
Specifics are clearly an important indication of whether a beneficiary's duties involved specialized
knowledge; otherwise meeting the definitions would simply be a matter of reiterating the regulations. See
Fedin Bros. Co., Ltd. v. Sava, 724, F. Supp. 1103, aff'd, 905 F.2d 41.
Once again, when examining the executive or managerial capacity of the beneficiary, the AAO wil1look first
to the petitioner's description of the job duties. See 8 C.F.R. §§ 214.2(l)(3)(ii) and (iv). The petitioner's
WAC 06 133 53049
Page 10
description of the job duties must clearly describe the duties performed by the beneficiary and indicate
whether such duties were either in an executive or managerial capacity. Id. In this matter, the petitioner has
asserted that the beneficiary was employed in a primarily managerial capacity.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary acted in
a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary did on a day-to-day basis.
For example, the petitioner states that the beneficiary led, managed, and directed the processes related to the
development of products and their technical management. However, the record is devoid of any explanation
regarding the identities, duties, or skill levels of the "hardware team" which the beneficiary was purportedly
leading. Moreover, the petitioner failed to explain how the beneficiary was being relieved of the need to
perform the non-qualifying tasks inherent in such duties as "directs testing of hardware products," "manages
development of specific tooling," "analyzes field reports," "directs market research," and "negotiates with
subcontractors." As explained above, the organizational chart for the foreign entity, which does not include
job descriptions, only identifies two employees as being subordinate to the beneficiary. Specifics are clearly
an important indication of whether a beneficiary's duties are primarily managerial in nature; otherwise
meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava,
724 F. Supp. 1103, aff'd, 905 F.2d 41. Once again, going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of
Treasure Craft of California, 14 I&N Dec. 190. Therefore, it cannot be confrrmed that the beneficiary was
"primarily" employed as a manager abroad. An employee who "primarily" performed the tasks necessary to
produce a product or to provide services is not considered to have been "primarily" employed in a managerial
capacity. See sections 101(aX44)(A) of the Act (requiring that one "primarily" perform the enumerated
managerial or executive duties); see also Matter ofChurch Scientology International, 19 I&N Dec. at 604.
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the organizational chart, the beneficiary apparently supervised two employees abroad. However,
even though the director specifically requested further evidence regarding the duties, salaries, and educational
levels of these subordinate workers, the record is devoid of any evidence establishing that these workers were
supervisory, managerial, or professional in nature. Failure to submit requested evidence that precludes a
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). Therefore, for this
reason alone, the petition must be denied. Regardless, the record establishes that, at most, the beneficiary was
employed as a first-line supervisor of non-professional employees. A managerial employee must have
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the
supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter ofChurch Scientology
International, 19 I&N Dec. at 604. Furthermore, the petitioner has not established that the beneficiary
managed an essential function of the organization. The term "function manager" applies generally when a
beneficiary did not supervise or control the work of a subordinate staff but instead was primarily responsible
for managing an "essential function" within the organization. See supra. As explained previously, the
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary managed the
function rather than performed the duties related to the function. In this matter, the petitioner has not
provided evidence that the beneficiary managed an essential function. As explained above, the record is
devoid of evidence that the beneficiary was relieved by a subordinate staff of the need to perform the non-
WAC 06 133 53049
Page 11
qualifying tasks inherent to his function. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties were managerial,
nor can it deduce whether the beneficiary was primarily performing the duties of a function manager. See
IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d at 24.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary was primarily performing
managerial duties abroad, and the petition may not be approved for this reason.
The third issue in the present matter is whether the petitioner has established that it has a qualifying
relationship with the foreign entity.
The regulation at 8 C.F.R. § 214.2(lX3)(i) states that a petition filed on Form 1-129 shall be accompanied by:
Evidence that the petitioner and the organization which employed or will employ the alien are
qualifying organizations as defmed in paragraph (l)(I)(ii)(G) of this section.
Title 8 C.F.R. § 214.2(iXIXii)(G) defines a "qualifying organization" as a firm, corporation, or other legal
entity which "meets exactly one of the qualifying relationships specified in the defmitions of a parent, branch,
affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing business." A
"subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or indirectly, more than
half of the entity and controls the entity."
In this matter, the petitioner, a corporation, asserts that it is 100% owned by the foreign employer. In support, the
petitioner submitted an "attestation" signed by the directeur general of the foreign entity stating that the petitioner
is 100% owned by the foreign entity as well as a copy ofthe petitioner's Delaware certificate of incorporation.
On April 3, 2006, the director requested additional evidence. The director requested, inter alia, copies of stock
certificates, the petitioner's stock ledger, and proof of stock purchase by the foreign entity.
In response, the petitioner did not provide any of the evidence requested by the director regarding its ownership
and control by the foreign entity, although the petitioner did submit a copy of its 2005 federal tax return in which
the petitioner avers that it is 100% owned by the foreign entity.
On May 15,2006, the director denied the petition. The director concluded that the petitioner failed to establish
that it has a qualifying relationship with the foreign entity.
On appeal, counsel asserts that the record sufficiently establishes the existence of a qualifying relationship.
Counsel also seeks to supplement the record on appeal with further evidence allegedly establishing that the
foreign entity and the petitioner are qualifying organizations.
Upon review, the petitioner's assertions are not persuasive.
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
WAC 0613353049
Page 12
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 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. The regulations specifically allow the director to request
additional evidence in appropriate cases. See 8 C.F.R. § 214.2(l)(3)(viii). As ownership is a critical element
of this visa classification, the director may reasonably inquire beyond the self-serving averments of the
petitioner and the foreign entity and request additional evidence such as paper stock certificates, stock
ledgers, and the means by which stock ownership was acquired.
In this matter, the director's Request for Evidence was entirely appropriate, and the petitioner chose not to
provide the requested evidence regarding its ownership and control. Failure to submit requested evidence that
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § l03.2(b)(14).
Moreover, the petitioner's attempt to supplement the record on appeal with additional evidence regarding the
petitioner's ownership and control was inappropriate and will not be considered by the AAO. The petitioner
was put on notice of required evidence and given a reasonable opportunity to provide it for the record before
the visa petition was adjudicated. The petitioner failed to submit the requested evidence and now submits it
on appeal. However, the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19
I&N Dec. 764; Matter ofObaigbena, 19 I&N Dec. 533. The appeal will be adjudicated based on the record
of proceeding before the director.
Therefore, as the petitioner failed to submit evidence sufficient to establish the petitioner's ownership and
control, the petitioner has not established by a preponderance of evidence that the it is fully qualified for the
benefit sought. Matter ofMartinez, 21 I&N Dec. 1035, 1036 (BlA 1997); Matter ofE-M-, 20 I&N Dec. 77,
79-80 (Comm. 1989); Matter of Soo Hoo, 11 I&N Dec. 151 (BlA 1965). As explained above, the petitioner
did not submit a stock certificate or any corporate organizational documents confirming the petitioner's
ownership and control.
Accordingly, the petitioner has not established that it and the foreign entity have a qualifying relationship, and
the petition may not be approved for this reason.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.