dismissed L-1A Case: Earth Products

identi@ing data dew to 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W ., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 07 191 52217 Office: CALIFORNIA SERVICE CENTER Date: 
 APR 0 3 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (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. 
Administrative Appeals Office 
WAC 07 191 52217 
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 extend the employment of its vice president of 
sales and marketing and treasurer as an L-IA nonimmigrant intracompany transferee pursuant to section 
10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 4 1 10 1 (a)(15)(L). The petitioner is 
a limited liability company organized under the laws of the State of Ohio and is allegedly in the earth 
products business. The beneficiary was 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 director denied the petition concluding that the petitioner did not establish (1) that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) that the petitioner has a 
qualifying relationship with the foreign employer. 
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, that the beneficiary's duties will primarily be those of an executive, and that the petitioner has 
established that both it and the foreign employer are owned and controlled by the same group of individuals 
thus establishing that the two entities are qualifying organizations. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(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. 
 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
WAC 07 191 52217 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. $ 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 (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence 
of wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 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 
WAC 07 191 52217 
Page 4 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 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. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. While counsel appears to limit the beneficiary to the executive classification on appeal, the petitioner 
asserts in both the initial petition and in its response to the Request for Evidence that the beneficiary will 
manage a function of the organization. A petitioner may not claim that a beneficiary will be employed as a 
hybrid "executive/manager" and rely on partial sections of the two statutory definitions. Given the lack of 
clarity, the AAO will assume that the petitioner is asserting that the beneficiary will be employed in either a 
managerial or an executive capacity and will consider both classifications. 
The foreign employer describes the beneficiary's proposed duties in the United States in a letter dated May 10, 
2007 as follows: 
[The beneficiary] will have continued responsibility for major decisions and company 
development strategies of [the petitioner] and will formulate and execute strategic objectives, 
and utilize her expertise to manage and direct the Company's operational efforts in the US 
and emerging markets. She has thorough knowledge of the non-ferrous products which we 
manufacture and fully understands the market. [The beneficiary] has profound experience in 
international business transactions. 
[The beneficiary] will also continue to oversee the marketing of our full line of Cobalt 
products in the US. She will assist the parent company in outsourcing of consistent and 
reliable raw materials for supply to China, and marketing of products into the American and 
NAFTA marketplace. We also continue to plan for our US branch to serve as the 
international business transaction hub of our group companies, and ultimately to serve as the 
headquarters for the group of companies. 
The foreign employer also asserts in the May 10, 2007 letter that the beneficiary will direct the management 
of a major component, or function, of the organization; will establish goals/policies of the component, or 
function of the organization; will exercise wide latitude in discretionary decision-making; will receive only 
WAC 07 191 52217 
Page 5 
general supervision fiom higher levels; and will expand the business. Specifically, the foreign employer 
claims that the beneficiary will "direct our marketing efforts via the formulation and execution of strategic 
operation objectives" and will source "new and existing product possibilities." Her purported management of 
the petitioner's marketing function is further described in the letter as follows: 
[The beneficiary] will benchmark the objectives for high quality, competitive pricing, sales, 
and excellent service and customized products for end-users' needs. [The beneficiary] will 
develop at least 3-5 major clients during the US company's second (2007) year of business. 
She will create at least one major distributor relationship on the West Coast, Southeast, and 
Eastern US regions to expand our business where our product volumes warrant. She will also 
build international marketing alliances in NAFTA and Europe, and Japan ([with third 
parties]). [The beneficiary] will also oversee our raw materials sourcing programs to assure 
sales growth of finished goods. 
Finally, while the foreign employer claims that the petitioner plans to employ additional workers in the future, 
the petitioner indicates in the Form 1-129 that it currently employs three workers. The petitioner claims to 
employ the beneficiary, a vice president of special projects, and an executive assistant. 
On June 20, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed job description for the beneficiary, including a percentage breakdown of the time devoted to each of 
the beneficiary's ascribed duties, and job descriptions for each of the beneficiary's claimed subordinate 
workers. 
In response, the foreign employer submitted a letter dated September 6, 2007 in which the foreign employer 
further describes the beneficiary's proposed duties as follows: 
The Duties of the Beneficiary 
1 
 Daily oversight of major industry information 
I I 
direction and business principles for coordination with our marketing plans and 
chances in Global Market pricing. trends. conditions. and ~olitical develo~ments. 
l2 I 
Leads and develops customer accounts by maintaining high profile contacts and 
interactions with executive customer contacts 
15% 
3 
4 
I 
Develops and implements business strategies for the USA office, which has 
im~roved and increased our overall effectiveness. 
Establishes business goals and objectives, and sales budgets. Directs and coordinates 
same with [the vice president of special projects] relative to specific NAFTA sales 
targets and outsourcing opportunities. 
Finalizes transactions and executes corresponding documents and contracts 
10% 
10% 
5% 
5% 
6 
-- - -- 
' Conducts discussions with group companies' key management pursuant to global and 
North American market conditions, changes, and trends to facilitate the group 
companies' strategic plans to further develop business strategies that are critical to 
our successful growth. 
- 
5% 
- 
 - -- - 
7-~eets with local professional associations and industry 
 to enhance 
sales and marketing opportunities regarding our products and services related to their 
WAC 07 191 52217 
Page 6 
The foreign employer also further described the duties of the beneficiary's two subordinate employees. The 
vice president of special projects is described generally as performing sales, marketing, and administrative 
tasks. The executive assistant is described as performing clerical and general office administration tasks. 
Both the vice president of special projects and the executive assistant are described as reporting directly to the 
beneficiary. 
8 
9 
10 
11 
On September 17, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties are primarily those of an executive. In support of the 
appeal, counsel submits a brief and additional evidence, including an "expert opinion" addressing the 
beneficiary's purported employment in an "executive" capacity. Counsel also asserts that the petitioner has 
established that there are at least two levels of employees below the beneficiary. 
industries. 
Travels within the USA and Canada for marketing our products, and the 
establishment of outsourcing opportunities; also hosts travel with American and 
Canadian customers and suppliers to our plants in China. 
Provides general supervision of the work of [the vice president of special projects and 
the executive assistant]. 
Conducts recruiting efforts for qualified personnel to assist with further market 
distribution and outsourcing plaris for our Group Companies. 
Liaises with Company's Accountants and Lawyers to ensure proper Legal structures 
for the operation of the USA Office, and other business and legal matters. 
Upon review, counsel's assertions are not persuasive. 
1 
20% 
5% 
10% 
5% 
Title 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of approval of 
the petition to support an executive or managerial position. There is no provision in Citizenship and 
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business 
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing 
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. Future hiring 
and expansion plans may not be considered in determining whether the beneficiary will be employed in a 
managerial or executive capacity upon petition approval. A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set of facts. 
See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Comm. 1971). In the instant matter, the United States operation has not reached the point that it will 
employ the beneficiary in a predominantly managerial or executive position. 
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. § 2 14.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. As explained above, a petitioner 
WAC 07 191 52217 
Page 7 
may not claim that a beneficiary will be employed as a hybrid "executive/manager~' and rely on partial 
sections of the two statutory definitions. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executivett capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will "direct [the petitioning 
organization's] marketing efforts via the formulation and execution of strategic operation objectives" and will 
source "new and existing product possibilities." However, the petitioner never specifically describes any of 
these marketing efforts or objectives, or explains what, exactly, the beneficiary will do on a day-to-day basis 
to "direct" or "oversee" the marketing efforts when the record indicates that the petitioner employs only one 
other sales-related employee. Furthermore, general managerial-sounding duties such as "responsibility for 
major decisions and company development strategies" are not probative of the beneficiary performing 
qualifying duties. The fact that the petitioner has given the beneficiary a managerial or executive title and has 
prepared a vague job description which includes inflated job duties does not establish that the beneficiary will 
actually perform managerial or executive duties. Specifics are clearly an important indication of whether a 
beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the definitions would 
simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 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. Comm. 1972). 
Likewise, most of the duties ascribed to the beneficiary appear to be non-qualifying administrative or 
operational tasks which will not rise to the level of being managerial or executive in nature. For example, the 
petitioner asserts in the breakdown of duties that the beneficiary will directly contact, and interact with, 
customers (15% of her time); execute documents and contracts (5% of her time); meet with "local 
professional associations and industry professionals to enhance sales and marketing opportunities" (5% of her 
time); travel and directly market products and meet with customers (20% of her time); recruit personnel (10% 
of her time); and liaise with accountants and lawyers (5% of her time). However, these tasks, which will 
consume 60% of the beneficiary's time, are not quali&ing managerial or executive duties. To the contrary, 
these are operational or administrative tasks necessary to the provision of a service or the production of a 
product. Furthermore, the remaining duties ascribed to the beneficiary are so vaguely described that it has not 
been established that any of these duties constitute qualifying managerial or executive duties. See supra. 
Finally, as the petitioner has failed to establish that the two subordinate employees are supervisory, 
managerial, or professional employees (see infra), the supervisory functions ascribed to the beneficiary (5% 
of her time) are non-qualifying, first-line supervisory tasks. As the petitioner has indicated that the 
beneficiary will devote most of her time to these non-qualifying tasks, it has not been established that she will 
be "primarily" employed as a manager or an executive. 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). 
WAC 07 191 52217 
Page 8 
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 asserted in the record, the beneficiary will directly supervise a vice president of special projects and an 
executive assistant. However, these employees are not described as having supervisory or managerial 
responsibilities. To the contrary, these employees are described as performing sales and clerical tasks. 
Furthermore, the record clearly indicates that the beneficiary will directly supervise both of these employees. 
In view of the above, the beneficiary would appear to be primarily a first-line supervisor of non-professional 
workers, the provider of actual services, or a combination of both. 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. 10 1 (a)(44)(A)(iv) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills and education 
required to perform the duties of the subordinate positions, the petitioner has not established that the 
beneficiary will manage professional employees.' Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in a managerial capacity.' 
1 
In evaluating whether the beneficiary will manage 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 10 1(a)(32) of the Act, 8 U.S.C. fj 1 10 1 (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. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
The petitioner has also not established that the beneficiary will manage an essential function of the 
organization. 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. fj 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 not provided evidence that the beneficiary will manage an 
essential function. The petitioner's vague job description fails to document that the beneficiary's duties will 
be primarily managerial. Also, as explained above, the record establishes that the beneficiary will primarily 
be a first-line supervisor of non-professional employees andlor will perform non-qualifying operational or 
administrative tasks. Absent a clear and credible breakdown of the time spent by the beneficiary performing 
her duties, the AAO cannot determine what proportion of her duties will be managerial, nor can it deduce 
whether the beneficiary will primarily perform the duties of a function manager. See IKEA US, Inc. v. U.S. 
Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
WAC 07 191 52217 
Page 9 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce with any certainty what the beneficiary will do on a day- 
to-day basis. Moreover, as explained above, it appears that the beneficiary will be primarily employed as a 
first-line supervisor and will perform the tasks necessary to produce a product or to provide a service. 
Therefore, the petitioner has not established that the beneficiary will be employed primarily in an executive 
capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that CIS "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 (9" Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 (D.C. 
Cir. 199 1); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d 25,29 (D.D.C. 2003)). Furthermore, it is appropriate for 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). While staffing levels 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, the "reasonable needs" of the petitioner will not supersede the 
requirement that the beneficiary be "primarily" employed in a managerial or executive capacity as required by 
the statute. See sections 101(a)(44)(A)-(C) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A)-(C). Accordingly, in this 
matter, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
Finally, on appeal, counsel submits an "expert opinion" dated October 29, 2007 and signed by 
Ph.D., Professor of Marketin and Marketing Department Chair at Albers school of Business, 
Seattle University. In the letter, Professo goncludes that the position offered to the beneficiary "is 
fairly characterized as 'Executive' in nature." Professor -dicates that, in reaching this ultimate 
conclusion he relied on the accuracy of the job description provided to him by the petitioner. However, 
professor letter fails to serve as persuasive evidence for several reasons. First, while the author 
opines that the position offered to the beneficiary may be "fairly characterized" as executive in nature, the 
author fails to conclude, or even address, whether the beneficiary will primarily perform these executive 
WAC 07 191 52217 
Page 10 
duties. The author, who admits that he assumes the accuracy of the job description, fails to address who will 
perform the non-qualifying tasks inherent to the inflated job duties ascribed to the beneficiary. Second, while 
the author lists some of the broad, executive-sounding duties ascribed to the beneficiary to support his 
conclusion, he ignores the fact that over 60% of the duties ascribed to the beneficiary (see supra) are not 
executive in nature. Third, the author adds no useful facts or analysis to the record and simply attempts to 
draw an inadmissible and unpersuasive legal conclusion that the beneficiary will perform qualifying duties. 
See generally Good Shepherd Manor Found. v. City of Momence, 323 F.3d 557, 564 (7" Cir. 2003) (cited in 
Superior Aluminum Alloys, LLC v. United States Fire Insurance Company, 2007 WL 1850858 at *8 (N.D. 
Ind. June 25, 2007)). However, the authority as to whether the petitioner has met its burden of proof rests 
with CIS, and, in this matter, the petitioner has failed to establish that the beneficiary will be primarily 
employed in an executive, or a managerial, capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive 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 it and the foreign 
employer are qualifying organizations. 
The regulation at 8 C.F.R. 8 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." 
 See also 8 C.F.R. 5 2 14.2(1)(14)(ii)(A). 
 Title 8 C.F.R. 8 2 14.2(i)(l)(ii)(G) defines a 
"qualifying organization" as a firm, corporation, or other legal entity which "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." "Subsidiary" is defined in pertinent part as a legal entity "of which a parent 
owns, directly or indirectly, more than half of the entity and controls the entity." 8 C.F.R. 8 214.2(1)(l)(ii)(K). 
"Affiliate" is defined in pertinent part as "[olne 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." 8 
C.F.R. tj 2 14.2(1)(1)(ii)(L)(2). 
The petitioner asserts in the Form 1-129 that it is 90% owned by the foreign employer and 10% owned by the 
petitioner's vice president of special projects. However, counsel asserts in his letter dated June 8, 2007 which 
accompanied the initial petition that the petitioner is 70% owned by 20% owned by the 
beneficiary, and 10% owned by the vice president of special projects. The petitioner also submitted (1) its 
balance sheet dated March 3 1, 2007 which assigns "partner capital" to ($106,969.50), the 
beneficiary ($37,919.88), and the vice president of special projects ($1,709.94); and (2) a copy of its 2006 
1065, U.S. Return of Partnership Income, which indicates that the petitioner is 70% owned by 
20% owned by the beneficiary, and 10% owned by the vice president of special projects. 
On June 20, 2007, the director requested additional evidence. The director requested, inter alia, further 
evidence establishing the ownership and control of the foreign employer and a list of the petitioner's members 
and ownership percentages. 
In response, the petitioner submitted a copy of its Operating Agreement indicating that the members of the 
limited liability company are (70%), the beneficiary (20%). and the vice president of special 
WAC 07 191 52217 
Page 11 
projects (10%). The petitioner also submitted evidence that it amended its 2006 tax return to indicate that the 
foreign employer owns 90% of the petitioner. However, the petitioner did not submit evidence that it had 
amended its Operating Agreement or other organizational documents. 
On September 17, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that it has a qualifying relationship with the foreign employer. 
 The director noted that the 
petitioner's Operating Agreement indicates that its owners are 70%), the beneficiary (20%), and 
the vice president of special projects (lo%), while other documents, including the amended tax returns, 
indicate that the petitioner is 90% owned by the foreign employer. In view of these inconsistencies, the 
director concluded that the record was not persuasive in establishing that the petitioner and the foreign 
employer are qualifying organizations. 
On appeal, counsel asserts that the petitioner and the foreign employer demonstrate an "overwhelming 
showcase [of] commonality in both ownership and control." Specifically, counsel asserts that "the same 
group of seven shareholders" controls 94% of the foreign employer's interests and 82.09% of the petitioner's 
interests. Counsel also submits a document titled "Amendment of Establishment of Branch Company in 
USA" which purportedly supports counsel's argument that J 
 and the beneficiary are holding their 
collective 90% interest in the petitioner on behalf of the foreign shareholders "according to their each 
shareholding rate in our group of companies as revised in this time's 2006 shareholders' meeting resolution." 
In addition, counsel submits a document titled "Common Shareholders and Percentage of Ownership" 
(Exhibit 11). This document describes the owners of the foreign employer as follows: 
The owners of the petitioner are described as follows: 
WAC 07 191 52217 
Page 12 
Furthennore, counsel submits a letter dated November 17, 2007 from a certified public account, 
which the author provides a materially different description of the ownership structure of both the foreign 
employer and the petitioner. =claims that owns 34.6645% of the petitioner and 38.5161 1% 
of the foreign employer. Finally, counsel submits an organizational chart labeled exhibit 10 which provides 
yet another materially different descri 
 ownership structure of both the'foreign employer and the 
petitioner. This chart indicates that 
 owns 81.7% of the foreign employer and 70% of the 
petitioner. 
Upon review, the petitioner's assertions are not persuasive. 
As a threshold matter, the petitioner's attempt to further describe the ownership and control of both it and the 
foreign employer on appeal was inappropriate under the circumstances. The director specifically requested a 
list of members and corresponding percentages of ownership for both the foreign employer and the petitioner 
in the Request for Evidence. The petitioner chose to submit its Operating Agreement indicating that it is 70% 
owned by and its amended tax returns indicating that it is 90% owned by a Chinese business 
entity. As 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 may not now submit additional 
evidence on appeal which could have been submitted in response to the Request for Evidence. The AAO will 
not consider this evidence and will adjudicate appeal based on the record of proceeding before the director. 
See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 
Accordingly, as the record before the director failed to reconcile the two conflicting descriptions of the 
petitioner's ownership and control, the director correctly determined that the petitioner failed to establish that 
it and the foreign employer are qualifying organizations. 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). The appeal shall be dismissed for this 
reason. 
Regardless, even if the evidence on appeal were being considered by the AAO, it is not persuasive in 
establishing that the petitioner and the foreign employer are qualifying organizations. To the contrary, the 
evidence submitted on appeal only serves to render both the petitioner's and the foreign employer's ownership 
and control more unclear. 
First, as noted above, the record, including the evidence submitted on appeal, contains a variety of 
descriptions of both the petitioner's and the foreign employer's ownership structures. For example, = 
has been described as owning 70%, 45.428%, and 34.6645% of the petitioner. He has also been 
as owning 24%, 38.5161 I%, and 81.7% of the foreign employer. The record fails to persuasively 
resolve any of these inconsistencies, or the inconsistency identified by the director in the decision denying the 
petition. As noted above, 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. 
at 591-92. 
Second, the petitioner has not credibly established that and the beneficiary are holding their 
interests on behalf of the alleged foreign owners of the foreign employer. As indicated above, the petitioner's 
WAC 07 191 52217 
Page 13 
Operating Agreement clearly states that 
 and the beneficiary 
 0% and 20% interests in the 
petitioner respectively. The record is devoid of evidence establishing tha 
 or the beneficiary has agreed 
to cede control of these interests to any third parties. 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 Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190). 
Third, even accepting the version of the petitioning organization's ownership and control that "the same group 
of seven shareholders" controls 94% of the foreign employer's interests and 82.09% of the petitioner's 
interests, this description of the organizations' ownership and control fails to describe an "affiliate" 
relationship. As noted above, "affiliate" is defined in pertinent part as "[olne 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." 8 C.F.R. § 2 14.2(1)(l)(ii)(L)(2). In this matter, the same group of individuals 
do not necessarily own and control both the petitioner and the foreign employer. For example, over 22% of the 
~etitioner's membershir, interests are alleeedlv owned bv three Dersons who do not own anv interests in the 
" J 
'foreign employer. Tl;ese three persons could control ;he peti;ioner in combination with 
 who 
allegedly owns 45.428% of the petitioner. ~urthermore, is described as owning an interest in the 
petitioner (45.428%), which is almost twice the size as his interest in the foreign employer (24%). Consequently, 
the six other common interest owners own interests in the petitioner, which are approximately half the size of 
their Chinese interests. Accordingly, the petitioner's description of the petitioner's and the foreign employer's 
ownership and control in exhibit 11 submitted on appeal does not establish that the two entities are "affiliates." 
Accordingly, the petitioner has failed to establish that it and the foreign employer are qualifying organizations, 
and the petitioner may not be approved for this reason. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
in a position that was managerial or executive in nature. 8 C.F.R. $8 214.2(1)(3)(iii), and (iv). 
The foreign employer described the beneficiary's duties abroad in a letter dated May 10,2007 as follows: 
In 2003, [the beneficiary] was promoted to Vice President of Marketing, and was responsible 
for the supervision of two managers from our international and domestic marketing divisions, 
as well as a marketing staff of six (6) persons. 
Upon review, the record is not persuasive in establishing that the beneficiary was employed abroad in a 
managerial or executive capacity. The petitioner failed to specifically describe the beneficiary's job duties 
abroad. Specifics are clearly an important indication of whether a beneficiary's duties were primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, aff'd, 905 F.2d 41. Furthermore, the 
petitioner failed to describe the duties of the subordinate "managers" and marketing staff purportedly 
supervised abroad. Absent detailed descriptions of the duties of both the beneficiary and her purported 
subordinates, it is impossible for CIS to discern whether the beneficiary was "primarily" engaged in 
performing managerial or executive duties abroad or supervised and controlled other supervisory, managerial, 
WAC 07 191 52217 
Page 14 
or professional employees. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, and the petition may not be approved for this reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 
 2 14,2(1)(3)(vii). 
In this matter, the petitioner claims to be partly owned by the beneficiary. As a purported owner of the 
petitioner, the petitioner is obligated to establish that the beneficiary's services will be used for a temporary 
period and that she will be transferred to an assignment abroad upon completion of the assignment. Id. 
However, the record is devoid of any evidence establishing that the beneficiary's services will be used 
temporarily. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. at 165 (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
The previous approval of an L-1A petition does not preclude CIS from denying an extension based on a 
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act, 8 U.S.C. $ 1361. 
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), afyd, 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
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.