dismissed L-1A Case: Electrical Equipment

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U.S. Department of Homeland Security
20 Mass. Ave ., N.W., Rm. A3000
Washington , DC 20529
u.S.Citizenship
and Immigration \ . '7
Services D ,
FILE: WAC 0300152746 Office: CALIFORNIA SERVICE CENTER Date: JUL 2 7 2006
INRE: Petitioner:
Beneficiary
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S .C. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER:
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 .
. .f:u/tL~obert P. Wiemann, Chief .
Administrative Appeals Office
www.uscls.gov
WAC 03 001 52746
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 appeal will be summarily
dismissed.
The petitioner states that it is engaged in the "electric equipment, parts and machine trading and repair"
business. It claims to be a subsidiary of , located in Hong Kong.
The United States entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary
as a nonimmigrant intracompany transferee (L-IA) pursuant to section 101(a)(15)(L) of the Immigration
and Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(L), as an executive or manager for three years. The
petitioner seeks to employ the beneficiary in the position of vice president.
On August 30, 2002, the director denied the petition on the grounds that the petitioner failed to establish
that: (1) a qualifying relationship exists between the foreign company and the United States entity; and, (2)
the beneficiary was employed by the foreign company in a primarily executive or managerial capacity.
The petitioner subsequently filed an appeal on September 20 , 2002. The director declined to treat the
appeal as a motion and forwarded the appeal to the AAO for review. Counsel indicated on Form 1-1290B
that he would submit a brief and/or evidence to the AAO within 30 days. As no additional evidence has
been incorporated into the record, the record will be considered complete.
To establish eligibility under section 101(a)(15)(L) of the Act , the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United States ,
a firm , corporation , or other legal entity , or an affiliate or subsidiary thereof, must ha ve employed the
beneficiary for one continuous year. Furthermore, 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.
Upon review, the AAO concurs with the director 's decision and affirms the denial of the petition.
Counsel's general objections to the denial of the petition , without specifically identifying any errors on the
part of the director, are simply insufficient to overcome the well-founded and logical conclusions the
director reached based on the evidence submitted by the petitioner. The assertions of counsel do not
constitute evidence. Matt er of Obaigbena, 19 I & N Dec. 1 (BIA 1983); Matter of Laureano, 19 I & N
Dec. 1 (BIA 1983); Matt er ofRamire z-Sanchez , 17 I & N Dec. 503, 506 (BIA 1980).
The fir st issue to be discussed in the pre sent matter is whether the petitioner has established that a
qualifying relationship exists w ith the beneficiary 's overseas employer. As noted by the director , the
petitioner failed to provide sufficient evidence to establish that a qualifying relationship exists between the
foreign company and the petitioner. In addition" the director noted that several inconsistencies in
information and documentation were present in the petition. It is incumbent upon the petitioner to resolve
any inconsistencies in the record by independent objective evidence. Any attempt to e xplain or reconcile
such inconsistencies will not suffice unless the petitioner submits competent objective evidence pointin g to
where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
To establish a "qualifying relationship" under the Act and the regulations, the petit ioner must show that the
beneficiary's foreign employer and the proposed U.S . employer is the same employer (i.e. one entity with
'\
WAC 0300152746
Page 3
I 1 _ _"
"branch" offices), or related as a "parent" and subsidiary" or as "affiliates ." See generally section
101(a)(15)(L) of the Act; 8 C .F.R. § 214.2(1).
The regulation and case law confirm that ownership ' and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for
purposes of this visa classification. Matter of Church Scientology International , 19 I&N Dec. 593 (BIA .
1988); see also Matter ofSiemens 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. Matt er ofChurch Scientology International, 19 I&N Dec. at 595.
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate
entity. The corporate stock certificate ledger, stock certificate registry, corporate bylaws , and the minutes
of relevant annual shareholder meetings must also be examined to determine the total number of shares
issued, the exact number issued to the shareholder , and the subsequent percentage ownership and 'its effect
on corporate control. Additionally , a petitioning company must disclose all- agreements relating to the
voting of shares , the distribution of profit , the management and direction of the subsidiary , and any other
factor affecting Cactual control of the entity. See Matter ofSiemens Medical Systems , Inc., supra. Without
full disclosure ofall relevant documents, CIS is unable to determine the elements of ownership .and control.
"
'According to the 'ownership 'chart , submitted by the petitioner
holly owns two branch offices
nd 51 % 0 he
petitioner]. However, in reviewing the record ; the supporting documentation does not correspond with the
. . ""ownership structure claimed by petitioner .
.Specifically, the petitioner submitted two stock certificates for
stock certificate number one certifies that 1 000·shares of stock ue
certificate number two indicates that 500 or 510 (both amounts are 'written on t e stoc certi icate) were
issuedt which petitioner claims is wholly owned by the parent company
abroad, In ad i i n, the stock transfer ledger submitted by
the etihoner ven les . paid $100 ,000 for h is shares, an~
aid $51 ,000 for the 'value of its shares. Thus, according to the stock certificates
an t e stock ledger, it appears that is the majority shareholder of the United States
petitioner. This information is inconsistent with the claim made by petitioner that the parent company of
the United States petitioner i . It is incumbent upon the
petitioner to resolve any incon r or n epe ec rve 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 ofHo, 19 I&N Dec. at 591-92 .
Furthermore , the petitioner 's IR~ Form 1120 , U.S. Corporation Income Tax Return, for 2000 and 2001
indicate at Schedule K that 100 percent of the company 's common stock. In
addition, the petitioner responded "no" to the question as to whether a foreign person owns directly -or
WAC 0300152746
Page 4
indirectly at least 25% of the total voting power of all classes of stock of the corporation entitled to vote or
the total value of all classes of stock of the corporation. According to the IRS Form 1120, it appears that
the petitioner is not owned by the foreign entity which is required in order to establish a qualifying
relationship between the petitioner and a foreign company. The petitioner has not resolved this conflicting
information. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the
reliability and sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho,
19 I&N Dec. 582, 591 (BIA 1988).
In addition, upon review of the record, the stock transfer ledger indicates a total capital stock for the
petitioner in the amount of $100,000.00. However, the petitioner's IRS Form 1120, U.S. Corporation
Income Tax Return, states in item 22 that the value of the capital stock is $10,000.00. It is unclear why the
tax retuf.Ilsstate a different value of stock for the company from the stock ledger; Again, 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 ofHo, 19 I&N Dec. at 591-92. See Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. at 362. Without full disclosure of all relevant documents, CIS
is unable to determine the elements of ownership arid control.
Furthermore, the director issued a request for evidence on June 12,2002 specifically requesting a copy of
the foreign company's annual report that lists all affiliates; subsidiaries, and branch offices, and percentage
of ownership. The petitioner failed to submit this document in response. The purpose of the request for
evidence is to establish the claimed qualifying relationship between the petition and the foreign company.
Further, the purpose of the request for evidence is to elicit further information that clarifies whether
eligibility for the benefit sought has been established. 8 C.F.R. § 103.2(b)(8). The 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)(14). For the foregoing reasons, the petitioner has not established that a qualifying
relationship exists between the U.S. company and the beneficiary's foreign employer;
The second issue in this proceeding is whether the petitioner has established that the beneficiary was
employed abroad by the parent company in a primarily managerial or executive capacity.
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties during
his employment abroad by the parent company. Thus, the description of the beneficiary's duties fails to
demonstrate what the beneficiary did on a day-to-day basis. For example, the petitioner states that the
beneficiary's duties included "plan, develop and establish policies and objectives for the company,"
"control overall operations of this [electrical technique] department managerially and technically," and
"design annual financial plan each year, follow up and check the status of the accomplishment of the plan.
If necessary [the beneficiary] needs to reorganize the plan in accordance with the development of the
company." The petitioner did not, however, define the.beneficiary's goals and policies, or clarify the role
of the electrical technique department that the beneficiary will supervise. Reciting the beneficiary's vague
job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108
(E.D.N.Y. 1989), afj'd, 905 F.2d 41 (2d. Cir. 1990).
WAC 03001 52746
. Page 5
Although the petitioner asserts that the beneficiary is managing a subordinate staff, the record does not
establish that the subordinate staff is composed of supervisory, professional, or managerial employees. See
section 101(a)(44)(A)(ii) of the Act. The petitioner did not submit sufficient documentation regarding the
number of employees the beneficiary supervised or job duties of the subordinate staff. The petitioner
indicated that the beneficiary would supervise electricians, electrical engineers and a secretary. However,
the petitioner never submitted job duties for these positions. In addition, according to the payroll list for
the department supervised by the beneficiary, there are no engineers in the department. Instead, there is
one secretary and the rest of the subordinatesare electricians. A first-line supervisor will not be considered
to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees
supervised are professional. Section 10l(a)(44)(A)(iv) of the Act. Since the petitioner did not submit
sufficient evidence to establish that the beneficiary was primarily supervising a staff of professional,
supervisory or managerial employees, the beneficiary cannot be deemed to be primarily acting in a .
managerial capacity. For this additional reason, the appeal will be dismissed.
While not directly addressed by the director, the minimal documentation of the petitioner's business
operations raises the issue of whether the petitioner is a qualifying organization doing business in the
United States. Specifically, under the regulation at 8 C.F.R. § 214.2(l)(1)(ii)(G)(2) a petitioner must
demonstrate that it is engaged in the regular, systematic, and continuous provision of goods or services and
does notrepresent the mere presence of an agent or office in the United States. For this additional reason,
the appeal must be dismissed and the petition denied.
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), afj'd. 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).
Regulations at 8 C.F.R ..§ 103.3(a)(1)(v) state, in pertinent part:
An officer to whom an appeal is taken shall summarily dismiss any appeal when the
party concerned fails to identify specifically any erroneous conclusion of law or
statement of fact for the appeal.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with
the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Inasmuch as counsel has failed to identify
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not
sustained that burden. Therefore, the appeal will be summarily dismissed.
.ORDER: The appeal is summarily dismissed .