dismissed L-1A Case: Dry Cleaning Service

U.S. Department of Homeland Security 
20 Massachusetts Ave., NW, Rm. A3042 
Washington, DC 20529 
*ml,m\c &:k jb- % 
k. U. S. Citizenship 
and Immigration 
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File: SRC-01-087-53283 Office: TEXAS SER 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
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. 
I,' 
d&ert P. Wiemann, Director 
Administrative Appeals Office 
SRC-01-087-53283 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonirnrnigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonirnmigrant petition seeking to extend the employment of its President as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of Florida that 
operates a dry cleaning service. The petitioner claims that it is the subsidiary of Semavenca Semaforos de 
Venezuela C.A., located in Venezuela. 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. 
The petitioner filed the petition on January 26, 2001. On June 19, 2001, the director issued a request for 
additional evidence. The petitioner filed a response to the request for evidence, which was received by the 
Texas Service Center on September 18, 2001. On November 19, 2001, the director denied the petition, 
erroneously noting that the petitioner failed to respond to the request for evidence. On November 26, 2001, 
the petitioner filed a Motion to Reconsider, together with evidence reflecting that it did respond to the request 
for evidence. The director granted the motion, and considered the petitioner's evidence in response to the 
request for evidence. The director again denied the petition, concluding that the petitioner did not establish 
that the beneficiary would be employed in the United States in a primarily managerial or executive capacity. 
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 for the petitioner asserts that the evidence 
shows that the beneficiary will be employed in a primarily managerial or executive capacity. In support of 
this assertion. counsel submits a brief and additional evidence. 
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. 
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(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. 3 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 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 (I)(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 primary 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. 3 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; 
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(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 lOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, on Fonn 1-129 the petitioner indicated that the beneficiary's job duties entail the "overall 
management of the business." The petitioner provided no further description of the beneficiary's duties. 
In the request for additional evidence dated June 19, 2001, the director requested: (1) an organizational chart 
for the petitioner; (2) an organizational chart for the foreign entity; (3) evidence of who is managing the 
foreign entity; and (4) evidence of the petitioner's staffing level in the United States, including the position 
titles and duties of all employees, as well as an indication of who the beneficiary is managing. 
In response, the petitioner submitted: (1) a letter from counsel describing the petitioner's staffing and the 
management of the foreign entity; (2) a list of employees of the foreign entity; (3) an organizational chart for 
the foreign entity; (4) a two-year business plan for the petitioner; (5) a 2000 internal balance sheet and income 
statement for the petitioner; and (6) a copy of the petitioner's Form 1120, U.S. Corporation Income Tax 
Return. In the letter, counsel described the petitioner's staffing as follows: 
As to the staffing of the [petitioner], the beneficiary is the President of the company. At this 
time they have one other employee who works in the sales and production area and are 
currently considering persons for a second position in sales and production so that it may free 
the beneficiary to aggressively pursue expansion plans for the business. The petitioner is 
currently planning to purchase additional vans to offer pick up and delivery service county- 
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wide and to open new stores. The [sic] expect to hire two drivers and additional sales, 
production persons to reach a payroll of 7 persons. 
On July 8, 2003, the director denied the petition. The director determined that the petitioner did not establish 
that the beneficiary will be employed in the United States in a primarily managerial or executive capacity. 
Specifically, the director noted that the petitioner did not submit evidence of the beneficiary's duties with the 
petition. The director pointed out that the petitioner only paid its second employee $2,000 in 2000, and stated 
that "[wlith only one other employee, it is logical to conclude that the beneficiary is performing most of the 
day to day duties of the business." The director highlighted that the petitioner's Form 1-129 indicates that it is 
an import and export company, while the included documentation reflects that it is operating as a dry cleaner. 
The director further stated that "the petitioner has not demonstrated that the beneficiary's primary assignment 
will be directing the management of the organization nor that the beneficiary will be primarily directing or 
supervising a subordinate staff of professional, managerial, or supervisory personnel, who relieve him from 
performing non-qualifying duties. Nor has the petitioner established that the beneficiary will primarily 
manage an essential function within the organization." 
On appeal, counsel for the petitioner asserts that the evidence shows that the beneficiary will be employed in 
a primarily managerial or executive capacity. In support of this assertion, counsel submits: (I) a brief; (2) an 
organizational chart for the petitioner; (3) 2001 and 2002 internal balance sheets for the petitioner; (4) a 
mission statement for the petitioner; and (5) a document listing the petitioner's current employees and 
identifying their backgrounds. In the brief, counsel recites the procedural history of the present petition. 
Counsel asserts that "[Citizenship and Immigration Services (CIS)] incorrectly assessed the beneficiary's 
position as nonexecutive in nature." 
Upon review, counsel'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. 
2142()(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 must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner does not clearly state whether the beneficiary will perform managerial or 
executive tasks. In the brief counsel refers to the position as an executive position, yet on Form 290B counsel 
states that the "majority of [the beneficiary's] duties are policy management oriented." Counsel further 
indicates that the beneficiary has supervisory authority over other employees. Thus, it appears that counsel 
intends to represent that the beneficiary will be primarily engaged in both managerial duties and executive 
duties. Therefore, the petitioner must establish that the beneficiary meets each of the four criteria set forth in 
the statutory definition for executive duties under section lOl(a)(44)(B) of the Act, and the statutory 
definition for managerial duties under section 101(a)(44)(A) of the Act. 
Despite the director's request, the petitioner failed to provide a complete job description for the beneficiary. 
On appeal, the petitioner provides no clear indication as to the beneficiary's duties in the United States. Going 
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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. Cornm. 1972). 
Further, failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8C.F.R. 5 103.2(b)(14). As provided above, the regulation at 8 C.F.R. 
3 214.2(1)(14)(ii)(C) requires the petitioner to submit "[a] statement of the duties performed by the beneficiary 
for the previous year and the duties the beneficiary will perform under the extended petition." The petitioner's 
failure to provide a job description for the beneficiary precludes the material line of inquiry of whether his 
duties are primarily managerial or executive in nature. 
As evidence of the beneficiary's role within the petitioner's company, the petitioner submits an organizational 
chart for the U.S. entity on appeal. However, though requested by the director, the petitioner did not submit 
an organizational chart for the U.S. entity in response to the request for evidence. The regulation states that 
the petitioner shall submit additional evidence as the director, in his or her discretion, may deem necessary. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). 
The failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. 5 103.2(b)(14). Where, as here, a petitioner has been put on notice of a deficiency in the 
evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept evidence 
offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BL4 1988). If the petitioner had wanted the organizational chart for the U.S. 
entity to be considered, it should have submitted the document in response to the director's request for 
evidence. Id. Under the circumstances, the AAO need not and does not consider the sufficiency of the 
organizational chart for the U.S. entity submitted on appeal. 
On appeal, the petitioner further submitted 2001 and 2002 internal balance sheets, reflecting its operations in 
those years. The petitioner submitted a document listing its current employees that indicates that it hired two 
new employees since the date of filing the petition. In response to the director's request for evidence, the 
petitioner's prior counsel discussed the petitioner's plans for future hiring and expansion. However, the 
petitioner must establish eligibility at the time of filing the nonirnmigrant 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 Michelitt Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). As the present petition was filed on 
January 26, 2001, the petitioner's 2002 internal balance sheet is not probative of the petitioner's eligibility as 
of the date of filing. As the 2001 internal balance sheet addresses combined financial figures for all of 2001, 
without separating out January, it, too, is not probative of the petitioner's eligibility on January 26, 2001. The 
petitioner's employee list suggests that the beneficiary supervises two new employees. However, as these 
employees began after the petition was filed, their employment with the petitioner does not support a finding 
that the beneficiary was engaged in managerial or executive duties at the time of filing the petition. 
Further, the record contains a substantial inconsistency regarding the nature of the petitioner's operations. 
The petitioner indicated on Form 1-129 that it is an import/export company. However, the petitioner 
submitted evidence to show that it is operating a dry cleaning service. The record contains no explanation or 
documentation to reflect that the petitioner is engaged in the import or export of goods. It is incumbent upon 
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
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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). Though the 
director noted this inconsistency, on appeal counsel has failed to address this issue. Thus, from the evidence 
submitted the AAO is unable to determine the exact nature of the petitioner's business, such that it can 
understand the true scope of the beneficiary's duties. 
The record suggests that, at the time of filing the petition, the beneficiary supervised one subordinate 
employee. Although the beneficiary is not required to supervise personnel, if it is claimed that his duties 
involve supervising employees, the petitioner must establish that the subordinate employees are supervisory, 
professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. 
Despite the director's request, the petitioner did not provide a job description for its second employee, beyond 
the statement that this individual "works in the sales and production area." Thus, the record lacks sufficient 
information for the AAO to determine whether this employee manages a department or function of the 
petitioner's operation, such that the employee could be deemed managerial. Further, as the record implies that 
this employee has no subordinates, his duties are not deemed supervisory. 
In evaluating whether the beneficiary manages professional. employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Cornrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). As the petitioner has not identified the duties of its second 
employee, the AAO cannot determine whether his tasks require an advanced degree, such that he could be 
deemed a professional. 
Accordingly, the petitioner has not established that the beneficiary's subordinates would be supervisory, 
professional, or managerial. See 5 101(a)(44)(A)(ii) of the Act. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the intended United States 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 is not sufficiently operational 
after one year, 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. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying corporate 
relationship with the beneficiary's foreign employer as required by 8 C.F.R. 5 214.2(1)(l)(ii)(G). 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 
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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., 19 I&N Dec. 362 (BIA 1986). Without 
full disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
The single document submitted that indicates the ownership of the petitioner is its 2000 Form 1120. This tax 
form reflects that the petitioner is 51% owned by the foreign entity. However, as this document is dated July 
11, 2001, approximately six months after the present petition was filed, it is of limited probative value of 
whether the petitioner and the foreign entity possessed a qualifying relationship on the date of filing. As the 
petitioner provided no further documentation to show its ownership and control, the petitioner has not met its 
burden to show a qualifying relationship. See 8 C.F.R. 5 214.2(1)(l)(ii)(G). 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 ofCali$omia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
Further, the petitioner has not established that the foreign entity is currently doing business. The regulation at 
8 C.F.R. 5 214.2(l)(ii)(G)(2) reflects that, in order for an entity to be considered a qualifying organization, the 
petitioner must show that it: 
Is or will be doing business (engaging in international trade is not required) as an employer in 
the United States and 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 . . . . 
The regulation at 8 C.F.R. 5 214.2(l)(ii)(H) defines the term "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
The petitioner submitted numerous untranslated documents pertaining to the foreign company. If translated, 
these documents may shed light on the operation of the foreign company. However, because the petitioner 
failed to submit certified translations of the documents, the AAO cannot determine whether the evidence 
supports the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence is not probative and 
will not be accorded any weight in this proceeding. Thus, the record is insufficient to show that the foreign 
entity is doing business, such that it can be deemed a qualifying organization. 
Therefore, the petitioner has not established that it possesses a qualifying corporate relationship with the 
foreign entity as required by 8 C.F.R. 5 214.2(1)(14)(ii)(A). For this additional reason, the appeal will be 
dismissed. 
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An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
In visa proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 6 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.