dismissed L-1A Case: Electronics Retail

rdentiiying data aeleted to 
provent dearly unwarranted 
invasion of ~grsona1,prlvacy 
PUBWC copy 
1l.S. Depuament of Homeland Serurity 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: SRC 04 178 5 1704 Office: TEXAS SERVICE CENTER Date: DEL 2 2 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 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 offtce. 
,' 
A- 
/' 
k 
~obe~. Wiemann, Director 
Administrative Appeals Office 
SRC 04 178 51704 
Page 2 
DISCC~SSION: The Director, Texas Service Center, denied the pet~tion for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dlsmiss the appeal. 
The petitioner seeks to extend the employment of the beneficiary in the United States as an L-1A 
nonimmigrant intracompany transferee pursuant to section lOl(a)(lS)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The U.S. petitioner, a corporation organized in the State of 
California that is described as a retailer of electronic testing and measuring equipment 
the beneficiary as its general manager. The petitioner claims that it is the subsidiary o 
. located in San Borja, Peru. 
The director denied the petition, determining that the petitioner had failed to establish that (1) the beneficiary 
would be employed in a managerial or executive capacity; or (2) the petitioner and the organization which 
employed the beneficiary abroad were qualifying organizations. 
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 submits a brief which 
seeks to clarify the petitioner's relationship with the foreign entity and the beneficiary's position while 
employed in the United States. 
To establish eligibility for the L-1 nonimrnigrant 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. 4 214.2(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 (I)(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 knowIedge and that the aIien's prior 
education, training, and employment qualifies himher to perform the intended 
SRC 04 178 51704 
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 1-1 29, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (I)(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 this matter is whether the beneficiary will be empIoyed in a capacity that is primarily 
managerial or executive as required by 8 C.F.R. 4 214.2(1)(3)(iv). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), defines the term "rnanagerial 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 rnanagerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other empIoyees 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 functlon for 
which the employee has authority. A first line supervisor is not considered to be 
SRC 04 178 51704 
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acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(8) of the Act, 8 U.S.C. 4 1101(a)(44)(B), defines the tenn "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, the petitioner submitted three brief descriptions on supplements to the Form 1-129. As a 
non-technical description of the benefic~ary's duties, the petitioner stated that he "oversee[s] day to day 
organization scheduling and implementation of operations. Participate in formulating policies for future 
developments." With regard to the beneficiary's duties during the past three years, the petitioner stated: 
Since June 2003 [the beneficiary] has worked as a [glenera1 [mlanager [for the petitioner]. 
He managed day to day operations of the company. He participated in formulating policies 
for future developments. He negotiated contracts, analyzed financial and operation reports to 
determine requirements for increasing profits. 
Finally, with regard to the beneficiary's proposed duties in the future, the petitioner stated that "[the 
beneficiary] will review and analyze expenditure, financial and operation reports to determine requirements 
for increasing profits. Also [the beneficiary] will manage the day[-]to[-]day operation of the company and he 
will negotiate contractfs] with equipment and materials suppliers." 
The director found this initial description of the beneficiary's duties insufficient and consequently issued a 
request for evidence on June 17, 2004. The request required the petitioner to submit an organizational chart 
for the U.S entity which showed the beneficiary's position in the organizational hierarchy as well as all 
employees under the beneficiary's supervision. In addition, the director requested a more detailed description 
of the beneficiary's duties as well as quarterly wage reports and a payroll summary verifying the employees of 
other persons. 
In response, the petitioner submitted a document entitled "organizational chart" but which was merely a list of 
the petitioner's two shareholders. Furthermore, no detailed description of the beneficiary's duties was 
provided. Although quarterly wage reports for the quarters ending December 3 1, 2003, March 3 1, 2004 and 
June 30, 2004 were submitted, the attachments were incomplete and based on the limited information 
SRC 04 178 5 1704 
Page 5 
provided, it appears that the beneficiary was the petitioner's only employee during the first two quarters of 
2004. 
On September 29. 2004, the director denied the petition. The director found that the evidence in the record 
failed to establish that the beneficiary would be functioning in a primarily managerial or executive capacity. 
Specifically, the director concluded that the beneficiary would be performing the day-to-day tasks of the 
organization. The director further concluded that the beneficiary was performing the tasks necessary to 
provide the petitioner's goods and/or services and that it had not been demonstrated that the beneficiary was 
managing an essential function. 
On appeal, counsel for the petitioner contends that the beneficiary as general manager is in fact a managerial 
employee and that he functions at a senior level within the organization. In addition, counsel states that the 
evidence provided to date was sufficient to establish that the beneficiary will act in a managerial capacity. 
Upon review, the petitioner's assertions are not persuasive. Whether the beneficiary is a manager or executive 
employee turns on whether the petitioner has sustained its burden of proving that his duties are "primarily" 
managerial or executive. See §§ 10 1 (a)(44)(A) and (B) of the Act. In this case, the petitioner asserts that the 
beneficiary is a manager or executive by virtue of his position title and associated duties. However, the 
description of duties provided is vague and falls to specify the exact nature of the claimed 
rnanagerial/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., Lid. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 
F.2d 41 (2d. Cir. 1990). 
In the request for evidence, the director specifically asked for additional details regarding the beneficiary's 
duties, his subordinate employees, and the organizational hierarchy of the petitioner. Clearly, therefore, 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 
therefore the minimal information and vague description of the petitioner's operations and the beneficiary's 
duties therein make it impossible to thoroughly analyze the beneficiary's qualifications as a manager or 
executive. 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). 
On appeal, counsel restates that the beneficiary is a qualified manager or executive by virtue of his position 
title of general manager. Counsel further contends that the evidence contained in the record is sufficient to 
establish this claim. Counsel's position, however, is not supported by evidence to corroborate such claims. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitloner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533,534 (BIA 1988); Marrer of laureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamivez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matfer of Treasure CraB of Calfornia, 14 I&N Dec. 190 (Reg, Comrn. 
1972)). 
SRC 04 I78 5 1704 
Page 6 
Finally, the AAO notes that although counsel claims on appeal that the beneficiary supervises four 
employees, the employment records submitted in response to the request for evidence indicate only one 
employee in 2004, which appears to be tile beneficiary. Consequently, the petitioner's claim that the 
beneficiary oversees a subordinate staff is not supported by independent evidence, and thus cannot be 
considered in this matter. As previously discussed, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Id. 
In reviewing the brief description of the beneficiary's duties, it is evident that the beneficiary is responsible for 
generating the petitioner's goods and services. An employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be employed in a managerial or executive 
capacity. Mutter of Church Scientology intemafianal. 19 I&N Dec. 593, 604 (Comm. 1988). For this reason 
and for the reasons set forth above, the AAO concludes that the beneficiary will not be primarily employed as 
a manager or executive. Therefore, the petition may not be approved. 
The second issue in the present matter is whether the petitioner and the foreign organization are qualified 
organizations as defined by 8 C.F.R. $ 214.2(1)(l)(ii)(G). The regulation defines the term "qualifying 
organization" as a United States or foreign firm, corporation, or other legal entity which: 
(I Meets exactly one of the qualiwing relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (I)( I Xii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United 
States as an intracornpany rransferee; and 
(3) Otherwise meets the requirements of section 10 1 (a)(] 5XL) of the Act. 
Additionally, the regulation at 8 C.F.R. 2 14.2(1)( 1 Xii) provides: 
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries. 
(J) "Branch" means an operating division or ofice of the same organization housed in a 
different location. 
(K) "Subsidiary" means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
(L) "Afiliate" means 
SRC 04 178 51704 
Page 7 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity, or 
(3) In the case of a partnership that is organized in the United States to provide 
accounting services along with managerial andtor consulting services and that 
markets its accounting services under an internationally recognized name under 
an agreement with a worldwide coordinating organization that is owned and 
controlled by the member accounting finns, a partnership (or similar 
organization) that is organized outside the United States to provide accounting 
services shall be considered to be an affiliate of the United States partnership if 
it markets its accounting semces under the same internationally recognized 
name under the agreement with the worldwide coordinating organization of 
which the United States partnership is also a member. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifiing relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Svstems, Inc., 19 I&N Dec. 362 (B1A 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In context of this visa petition, ownership refers to the direct ar indirect legal right ofpossession 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, 
19 I&N Dec. at 595. 
In this case, the petitioner claims that the U.S. entity is the subsidiary of the foreign entity. However, the 
petitioner has provided numerous forms of conflicting evidence with regard to the ownership of the U.S. 
petitioner. 
On Form 1-129, the petitioner indicated that the foreign entity was owned as follows: 
As noted by the director, this percentage totaled an erroneous 149%. With regard to the petitioner, the 
statement on Form 1-1 29 indicated that its ownership was as follows: 
SRC 04-178 51704 
Page 8 
The petitioner also submitted shares certificates for the petitioner which, on their face, appeared 10 
corrobonate this ownership claim.' However, the petitioner's 2002 U.S. Corporation Income Tax Return, 
prepared and signed on November 10, 2003, indicated on Schedule K and on Form 5472 that Diogenes Rios 
owned 100% of the U.S. petitioner. 
The direttor issued a.request for addltiona1 evidence, which included a request for the petitioner's Articles of 
hcorporbtion. In a response dated September 13,2004, the petitioner submitted the requested documentation. 
The Articles of Incorporation, recorded on September 5, 200 1, indicate that the ownership distribution of the 
petitioner were divided equally between 550%) anw0%). However, the 
share ce ificates, also dated September 2001 indicate that the owners ~p o the petitioner is designated as 
51% t mnd 49% r interestingly, these certificates, issued the same by as 
the recor lng o t e icles of Incorporation with the Secretary of State, are numbered 3 and 4. There is no 
discussion of certificates 1 and 2. 
The director denied the petitioner based on the discrepancies in the record, and specifically cited to the 
petitioneh inaccurate listing of the foreign entity's ownership percentages. On appeal, counsel for the 
petitioner merely acknowledges a clerical error in the presentation of the shareholders and their ownership 
interests, and attempts to clarify this issue. Specifically, counsel stated that 20,000 shares are outstanding in 
the foreign entity, and that the breakdown of shares is as follows: 
Counsel provided no further discussion with regard to the major discrepancies in the petitioner's ownership. 
Upon review, the petitioner has not established that the U.S. and foreign entities are qualifying organizations 
as defined by 8 C.F.R. § 214.2(1)(l)(ii)(G). 
Specifically, the statute requires that the beneficiary come to the United States to "render services to the same 
employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive." 9 203(b)(l)(C) 
of the Act. Critical to its claimed eligibility, the petitioner asserts that the U.S. corporation is the subsidiary 
of ., based on the similar ownership interests of one individual out of the two 
dlstinct groups of owners 
I 
It is noted for the record that technically the share certificates only mdicate the ownership percentage and 
not the number of shares issued. 
SRC 04 178 51704 
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In this case, there are far too many discrepancies and contradictory forms of evidence to permit a definite 
finding of ownership in this matter. The ownership of the U.S. petitioner is contradicted in three separate 
documents: the most recent being its 2002 tax return signed on Novehtber 10, 2003 which claims that the 
petitioner has only one owner, whereas counsel continually alleges throughout these proceedings that 
ownership of the petitioner is at a 51/49 percent ratio. Most significantly. the Articles of Incorporation 
indicate that the petitioner is owned equally by two parties. 
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. Mutter of Ho, 19 I&N Dec. 582, 591 
(BIG 1988). 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. Id. If CIS fails to 
believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. 5 
11 54(b); see also Anetekhai v. I.N.S., 876 F.2d 121 8, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, I53 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In this matter, the AAO concurs with the director's decision. The record of proceeding is devoid of credible 
evidence that would establish the ownership interests in each of the entities in question. Without this 
fundamental evidence, the AAO is precluded from examining the control of the entities and thus the overall 
relationship between these two companies.2 For this additional reason. the petition may not be approved. 
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, hc. v. United Slates, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), am. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (26 Cir. 1989Xnoting that the AAO reviews 
appeals on a de novo basis). 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enrerprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cat. 2001). ugd. 345 F.3d 683 
(9th Cir. 2003). 
ip existed between the two entities. it would hinge on the ownershi 
and control interests o It appears that the foreign entity is owned in its majority by Mt 
If this were established by credible evidence pertai 
m to the U.S. petitioner also suggests that its majority shareholder may 
both entities, it is 
y exist between the parties by way of M common ownership 
and control of the entities. However, since the record lacks evidence to support this contention, the AAO is 
precluded from concluding that it is more likely than not that a qualifying relationship exists between the two 
entities. 
SRC 04 178 51704 
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The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for deniaI. 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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.