dismissed L-1A Case: Entertainment

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. A3042 
WICrnlpv 
Washmgton, DC 2&29 
@ U.S. Citizenship 
--Yhi!-cklctedm and Immigration 
(,,, ,cr Services prevemt dmry .MPW-~W 
ia.sadobolpem~ Dljv~e~ 
8 9qJUN17m 
FILE: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and ~ationali6 Act, 8 U.S.C. $ 1 I0 ](a)( 1 SXL) 
ON 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. 
M boben P. Wiemann, Director 
b 
dministrati~z Appeals Office 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Ccnter, and 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, , claims to be a branch of ' located in 
Australia. The petitioner plans to operate an entertainment business. The U.S. entity was incorporated in the 
State of Nevada on septhber 7, k00. The petitioner seeks to hire the beneficiary as a new employee to 
open its U.S. offi~e.~ Accordingly, on October 25, 2002 the U.S. entity petitioned Citizenship and 
Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-1A) 
pursuant to section 101(a)(15)(1,) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 
IlOl(a)(l5)(L), as an executive or manager for one year. The petitioner endeavors to employ the 
beneficiary's services as the U.S. entity's executive director. 
On March 12, 2003, the director denied the petition. The director determined that the petitioner failed to 
establish a qualifying relationship between the U.S. and foreign companies and that the beneficiary will be 
employed in a primarily managerial or executive capacity. 
On appeal, the petitioner's counsel submits a brief and claims that the beneficiary "meets the definition of 
executivc" and that "the petitioner and Cross Promotions clearly meet the qualifications of an existing 
relationship." 
To establish L1 eligibility under section lOI(a)(lS)(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 qualifying organization must have employed the beneficiary in a qualifying managerial or executive 
capacity, or in a specialized knowledge capacity, 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. 
Pursuant to 8 C.F.R. 4 214.2(1)(3), 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)(IXiiXG) of this section. 
' The petitioner listcd yon the Form 1-129 as the name of the beneefiiaryyr employer 
abroad. However, in a etter submitted in support of the petition, the petitioner indicated that the foreign 
entity, - located in Australia, was the beneficiary's employer for the past 10 
years. 
2 The AAO notes that the petitioner filed for L-1A classification for the beneficiary on October 25,2002. As 
a result, the director indirectly stated that because the petitioner was established on September 7, 2000, the 
director did not consider the petitioner to be a new office. However, the record establishes that the petitioner 
had been doing business for less than one year although it was incorporated on September 7, 2000. 
Therefore, the AAO will evaluate this petition as involving a new oflice. 
(ii) Evidence that the alien will be employed in an executive, managerial. or 
specialized knowledge capacity, including a detailcd description of the services to be 
performed. 
(iii) Evidence that the alien's prior year of employment abroad was managerial, 
executive, or involved specialized knowlcdge and that the alien's prior education, training, 
and employment qualifies himher to perform the intended services in the United States; 
however, thc work in the United States need not be the same work which the alien 
performed abroad. 
(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 scrvices in 
the United States; however, the work in the United States need not be the same work which 
the alien performed abroad. 
Pursuant to 8 C.F.R. 9 214.2(1)(3)(~), if the petition indicates the beneficiary is coming to the United States 
as a manager or executive to open or to be employcd in a new office in the United States, the petitioner 
shall submit evidence that: 
(A) Sufficient physical premises to house the new ofice have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new operation; 
and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) or 
(C) of this section, supported by information regarding: 
1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business in 
the United States; and 
(3) The organizational structure of the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assipmcnt 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 respcct 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 dutics unless the 
employees supervised are professional. 
Section IOl(a)(44XB) of the Act, 8 U.S.C. 5 110l(a)(44)(B), provides: 
The term "executive capacity" means 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 fiom higher level executivcs, the 
board of directors, or stockholders of the organization. 
'The first issue in this proceeding is whether the beneficiary will be employed by the United Slates entity in 
a primarily managerial or executive capacity within one year. 
In an October 5, 2002 offer of employment letter and in the business plan, the petitioner described the 
beneficiary's duties as: 
&-ordinate contracts with CEOIPresident of the Company 
Manager of leasing housing and utilities for All performers 
Hiring.dismissa1 of all staff 
Financial Controller (United States of America and Australia) 
Costumes1 Purchasing-Co-ordinates with designer for costuming and props 
Staging, dealing with any and all special and unique requirements 
Organize tours throughout United States of America and other Countries 
In addition, the petitioner submitted a checklist of the beneficiary's daily duties. In the response to the 
request for additional evidence, the beneficiary was described as being promoted to executive director in 
October 2002 and her proposed U.S. duties were stated as: 
The pcrson in the position must be very familiar with production, and have the ability to 
handle the demands of the show in the United States as well as communication with the 
operations in Australia. 
A lower level manager or executive was not selected for this position because the director 
must deal with multi million dollar companies and contracts. [The beneficiary] possesses 
the'ability and unique expertise in this area. She is highly regarded by her co-workers as 
well as both CEO's [sic]. . . . 
And because of her ability to work in all capacities and departments of the production in 
the United States[,] [slhe is an asset to both CEO's [sic] and to the show. 
The petitioner also provided an example of the bene hedule. This day included 
four hours involved in "[dlaily dealings with the business ticket sales and 
promotions" and dealing with "accounts and other outside promotional activities," two hours involved in 
"[dlealing with other venues throughout Canada and USA," one hour involved with "[c]ontracts, organizing 
all products that are needed. Promotional Material photos, written stories," and one hour in "[alny financial 
dealings in regards of the show - [plurchases." 
On March 12, 2003, the director denied the petition. The director determined that the petitioner failed b 
establish that the beneficiary will be employed in a primarily managerial or executive capacity. The director 
found that the beneficiary would be "the sole employee performing the operational duties of the 
organization with no one to relieve her from performing the non-managerial or non-executive duties." 
On appeal, the petitioner's counsel claims that the beneficiary "meets the definition of executive." Counsel 
claims that the beneficiary's "duties and responsibilities as listed is [sic] to plan, organize, all aspects of the 
performance, from contracts to staging requirements at various venues, directs and controls personnel who 
perform." Counsel also claims that the "end product of the entertainment field is the performance itself and 
such requires an executive to direct all aspects of this function." 
In evaluating a new office petition, the regulations recognize that a designated manager or executive 
responsible for setting up operations will be engaged in a variety of activities not normally performed by 
employees at the executive or managerial level and that often the full range of managerial responsibiiity 
cannot be performed. In order to qualify for L-l nonimmigrant classification during the first year of 
operations, thc regulations require the petitioner to disclose the business plans and the size of the United 
States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 4 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying dutics. 
On review, the petitioner failed to establish that the beneficiary will be employed in a primarily managerial 
or executive capacity within one year. The beneficiary's job description lacks specificity and is vague. The 
petitioner described the beneficiary's duties as "[clo-ordinate contracts," "[fjinancial [c]ontroller,~' 
"[olrganize tours," "[dlaily dealings," "plan," and "organize." The beneficiary's described duties do not 
clearly indicate what specific duties the beneficiary will primarily perform. It is unclear how the beneficiary 
will coordinate contracts, serve as a financial controller, plan, organize tours, and what daily dealings the 
beneficiary will handle. Going on record without supporting documentary evidence is not suficicnt for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of Califounia, 14 
l&N Dec. 190 (Reg. Comm. 1972). 
rhe petitioner also described the beneficiary as having the "abiIity to work in all capacities and departments 
of the production in the United States. She is an asset to both CEO's and to the show." However. the 
petitioner failed to describe how exactly the beneficiary is an asset in relation to serving in a primarily 
managerial or executive capacity within one year. The AAO acknowledges that the beneficiary may 
perform some non-managerial or non-executive tasks during the first year of operation; however, the 
petitioner must specifically identify the beneficiary's duties in order for the AAO to evaluate whether the 
organization will support a managerial or executive within one year of operation. Specifics are clearly an 
important indication of whether a beneficiary's duties will be primarily executive or managerial in nature, 
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., 
Lrd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In this matter, it is 
unclear whether the beneficiary will reach the level necessary to primarily perform managerial or executive 
duties because of the lack of specificity in the job duties and role the beneficiary will represent within the 
U.S. company. 
lo addition, the AAO notes that although the petitioner claimed on the Form 1-129 that the U.S. company 
employed two workers, the petitioner's U.S. organizational chart indicated that there were eight additional 
employees. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attcmpt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Mailer qf Ha, 19 I&N 
Dec. 582, 591-92 (BIA 1988). 
Moreover, in examining the business plan, a CIS precedent decision lists possiblc criteria for establishing an 
acceptable business plan. Mutter of Ho, 22 I&N Dec. 206, 213 (Comm. 1998). According to the decision, 
"The plan should set forth the business's organizational structure and its personnel's experience. It should 
explain the business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions." The decision concluded, "Most importantly, the business plan must be credible." Id. at 
213. Although Matter of Ho addresses the specific requirements for the immigrant investor visa 
classification as set forth at section 203(b)(5) of the Act, the decision's discussion of the business plan 
requirements is instructive for the L-1A new office requirements. Here, the business plan lacks specificity. 
For example, the petitioner stated that the beneficiary "has the authority to decide the direction of the show 
with briefing the CEO's of any and all changes taking place that also includes marketing, recruitment, 
dismissal and public relations." However, this description fails to reveal sufficient detail describing exactly 
what the beneficiary's duties will entail. In sum, the petitioner has failed to clearly establish the proposed 
nature of the office and dcscribe the scope of the entity and its organizational structure. Thus, given the 
business plan's generalities and lack of applicable information, it cannot demonstrate whether the new 
office will support a manager or executive within one year of filing this petition. 
Finally, the term "function manager" applies generally when a beneficiary does not supervise or control the 
work of a subordinate staff but instead will be primarily responsible for managing an "essential function" 
within the organization. See section 101(aX44)(A)(ii) of the Act, 8 U.S.C. 3 IlOl(a)(44)(A)(ii). Here, the 
petitioner claims that the beneficiary's proposed duties include managing an essential function, i.e., "the 
stage performance." However, the petitioner must identify the function with specificity, articulate the 
essential nature of the function, and establish the proportion of the beneficiary's daily duties that will be 
attributed to managing the essential function. In addition, the petitioner must provide a comprehensive and 
detailed description of the beneficiary's daily duties demonstrating that the beneficiary will manage the 
function rather than perform the duties relating to the function. In this matter, the petitioner has not 
provided evidence that the beneficiary will manage an essential function. 
In sum, the AAO concludes that the petitioner failed to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity within one year of the approval of the petition. For this reason, 
the petition may not be approved. 
The second issue in this proceeding is whether a qualifying relationship exists between the petitioner and the 
foreign entity. The regulation at 8 C.F.R. 214.2(1)(ii) provides: 
(G) Qualzaing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions 
of a parent, branch, affiliate or subsidiary specified in paragraph (IXIXii) 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 intracompany transferee; and 
(31 Otherwise meets the requirements of section 101 (ax1 5)(L) of the Act. 
(H) Doing busmess means the regular, systematic, and continuous provision of goods and/or 
services by a qualifLing organization and does not include the mere presence of an agent or office 
of the qualifying organization in the United States and abroad. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operation division or office 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) Affiliate means 
(lj 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. 
The regulation and case law confum that ownership and control are factors that must be examined in 
determining whether a qualifying relationship exists between the petitioner and foreign organization. See 
Matter of Church Scientology Internalional, 19 I&N Dec. 593 (BIA 1988); see also Moiler of Siemens 
Medicul Systems, Inc., 19 I&N Dec. 362 (BIA 1986) (in nonimmigrant visa proceedings) Muller of 
Hughes, 18 I&N Dec. 289 (Comm. 1982) (in nonimmigrant visa proceedings). In the context of this visa 
proceeding. ownership refers to the direct or indirect legal right of possession of the assets of an 
organization with full power and authority to control. Matter of Church Scientology International, 19 I&N 
Dec. at 595. Control means the direct or indirect legal right and authority to direct the establishment, 
management. and operations of an organization. Id. 
On the Form 1-129, he petitioner stated that the petitioner is a branch of the foreign entity. The petitioner 
described the stock ownership as "Billy Cross 100% of Australian Company, 50% of USA Company" and 
"Adam Steck 50% of USA Company." On December 11, 2002, the director requested additional evidence. In 
particular, the director requested evidence showing the ownership and co~~trol of the United States and foreign 
entities.   he director requested a copy of the foreign entity's annual report and list of owners, and the U.S. 
cntity's list of owners and clarification establishing whether the U.S. entity is a branch, subsidiary, or joint 
venture. 
In response, the petitioner submitted a copy of the foreign and U.S. entity's financial and bank statements, 
its articles of incorporation, and a copy of its stock certificate. 
On March 12, 2003, the director denied the petition. The director determined that the petitioner failed to 
establish that the U.S. entity had a qualifying relationship with the foreign entity. The director noted, "there 
is no evidence provided of a wire transfer or cancelled checks to indicate that the funds originated from the 
foreign entity for the purchase of the petitioner's stock." 
On appeal, the petitioner's counsel claims that "the petitioner and- clearly meet the 
qualifications of an existing relationship." Counsel references a document titled "Memorandum of 
understanding," and claims that the "amount of stock sold to [the foreign entity]" establishes that "the 
petitioner is a branch." Counsel also asserts that based upon the petitioner's bank statements, the foreign 
entity "receives a percentage of the revenues generated by Thunder From Down Under." 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity 
share common ownership and control. Control may be "dc jure" by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). On 
review, the petitioner submitted insuficient evidence to establish that there is a qualifying relationship 
between the petitioner and foreign entity. Although the petitioner submitted a copy of its articles of 
incorporation and claimed that owned 100 percent of the foreign entity and 50 percent of the 
U.S. company, and that - 50 percent of the United States company," there was no 
evidence to establish that the stock was actually distributed and paid for by the foreign company. The 
petitioner did not submit wire transfers, its stock ledger, or other pertinent evidcnce showing that money 
was actually paid for the shares of stock. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Mafter of Treasure Craft of 
Calfornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
In addition. counsel reiterated that the petitioner is a branch of the foreign company. In defining the 
nonimmigrant classification, the regulations specifically provide for the temporary admission of an 
intracompany transferee "to the United States to be employed by a parent, hranch, affiliate, or subsidiary of 
[the foreign fm, corporation, or other legal entity]." 8 C.F.R. 5 214.2(1)(1)(i) (emphasis added). The 
regulations define the tenn "branch as "an operating division or office of the same organization housed in 
a different location." 8 C.F.R. $ 214.2(IXlXii)(J). CIS has recognized that the branch office of a foreign 
corporation may file a nonimmigrant petition for an intracompany transferee. See Matter of Kloetti, 18 I&N 
Dec. 295 (Reg. Comm. 198 1); Matter of Leblanc, 13 I&N Dec. 81 6 (Reg. Comm. 1971); Matter of Schick, 
13 I&N Dec. 647 (Reg. Comm. 1970); see also Matter of Penner, 18 I&N Dec. 49, 54 (Comm. 
1982Xstating that a Canadian corporation may not petition for L-1B employees who are directly employed 
by the Canadian office rather than a United States office). When a foreign company establishes a branch in 
the United States, that branch is bound to the parent company through common ownership and 
management. A branch that is authorized to do business under United States law becomes, in effect, part of 
the national industry. Matter of Schick, supra at 649-50. 
Probative evidence of a branch ofice would include the following: a state business license establishing that 
the foreign corporation is authorized to engage in business activities in the United States; copies of Internal 
Revenue Service (IRS) Form 1120-F, U.S. Income Tax Return of a Foreign Corporation; copies IRS Form 
941. Employer's Quarterly Federal ?'ax Return, listing the branch office as thc employer; copies of a lease 
for office space in the United States: and finally, any state tax forms that demonstrate that the petitioner is a 
branch office of a foreign entity. 
If the petitioner submits evidence to show that it is incorporated in the United States, then that entity will 
not qualify as "an . . . office of the same organization housed in a different location," as that corporation is a 
distinct legal entity separate and apart from the foreign organization. See Matter of M, 8 I&N Dec. 24, 50 
(BIA 1958, AG 1958); Motrer of Aphrodite Investments Limited, 17 I&N Dcc. 530 (Comm. 1980); and 
Matter of TesseI, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). if the claimed branch is incorporated in the 
United States, CIS must examine the ownership and control of that corporation to determine whether it 
qualifies as a subsidiary or affiliate of the overseas employer. Here, the petitioner established that it was 
incorporated on September 7,2000 in the State of Nevada and therefore, contrary to what counsel claims, it 
is not a branch of the foreign entity. As previously stated, in examining whether the petitioner qualifies as a 
subsidiary of the foreign entity, the petitioner failed to establish the ownership and control of the U.S. 
company. 
After careful consideration of the evidence, it is concluded that the petitioner failed to establish that a 
qualifying relationship exists between the U.S. and foreign organizations. For this reason, the petition may 
not be approved. 
Although not explicitly addressed in the decision, the record contains no documentation to persuade the 
AAO that the beneficiary has been employed abroad in a managerial or executive capacity as defined at 
section 101(a)(44) of the Act, 8 U.S.C. 5 1 101 (a)(44). The petitioner provided a vague description of the 
beneficiary's foreign duties that fails to indicate what duties the beneficiary primarily performed. For 
example, in the response to the request for additional evidence, the petitioner described the beneficiary as 
the "[tlour [mlanagerf [flinancial [c]ontroller" responsible in part for "[plublicity, [dlealing with contracts, 
and [dlealing with all department heads of [vlenues where production was scheduled to appear." However, 
these duties fail to indicate how the beneficiary primarily acted as an executive or manager for the foreign 
entity. Again, going on record without supporting documentary evidence is not suficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Cra$ of CaliJornia, 14 I&N Dec. at 
190. 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 Enlerprises, Inc. v. UnitedStates, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 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 petition proceedings, the burden of proving eligibility for the bcnefit sought remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, 
the appeal will be dismissed. 
ORDER: The appeal is dismissed.