dismissed L-1A Case: Equestrian Goods

File: SRC-03-210-5 1567 Office: 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 . 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
IN 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. 
&en P. Wiemann, Director 
Administrative Appeals Office 
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DISCUSSION: The Director, Texas 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 nonimrnigrant petition seeking to extend the employment of its Vice President and 
Manager as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of Texas that is engaged in the marketing and sale of horse saddles and related goods. 
The petitioner claims that it is the affiliate of Tapetes Tipico, S.A. de C.V., located in Guadalupe, Mexico. 
The beneficiary was initially granted a two-year period of stay in L-1A status, and the petitioner now seeks to 
extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that it has a qualifying 
relationship with the beneficiary's 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 for the petitioner asserts that the petitioner 
and the beneficiary's foreign employer are affiliates, as they are owned and controlled by the same group of 
individuals in approximately the same proportion. In support of this assertion, the petitioner submits 
additional evidence. 
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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (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 knowledge and that the alien's prior 
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education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue in the present matter is whether a qualifying relationship exists between the petitioner and the 
beneficiary's foreign employer. 
The regulation at 8 C.F.R. 3 214.2(1)(l)(ii)(G) states: 
Qualzjjing organization means a United States or foreign firm, corporation, or other legal entity 
which: 
(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (I)(l)(ii) 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 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(I) states: 
Parent means a firm, corporation, or other legal entity which has subsidiaries. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(J) states: 
Branch means an operation division or office of the same organization housed in a different 
location. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(K) states: 
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. 
The regulation at 8 C.F.R. 3 214.2(1)(l)(ii)(L) states, in pertinent part: 
AJgiliate means (1) 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. 
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In the initial petition, the petitioner stated that it is the affiliate of the beneficiary's foreign employer. 
Specifically, the petitioner indicated that four shareholders each own 25 percent of the petitioner, and the 
same four shareholders own 74 percent of the foreign entity. The petitioner submitted three documents, 
executed by its shareholders, reflecting changes in stock ownership and identifying the percentage of 
ownership held by the current shareholders. In an attached letter, the petitioner provided the following: 
Both [the petitioner1 and [the beneficiary's foreign employer1 are majority owned by the same 
employer's] 600,000 total shares, giving the [petitioner's] shareholders a 74 percent 
ownership interest in [the beneficiary's foreign employer]. 
On September 1, 2003, the director requested additional evidence. In part, the director requested 
"documentary evidence to establish the ownership and control of the foreign company." 
In a response dated September 4, 2003, counsel for the petitioner submitted: (1) a letter further explaining the 
corporate relationship between the petitioner and the beneficiary's foreign employer; (2) a partially translated 
document reflecting internal action taken by directors of the petitioner's foreign employer which reflects the 
ownership of the company; (3) articles of a company titled Figusa, reflecting its ownership as of December 6, 
1983; and (4) a document reflecting action taken at a Figusa shareholder general assembly, reflecting a 
change is stock ownership. In the letter, counsel stated: 
[The beneficiary's foreign employer] is primarily owned bym.~. de C.V., which is 
owned by four individuals in equal shares, and by the four individual owners of-. . 
[The beneficiary's foreign employer] has five classes of shares. -wns 71,709 out of a 
total 71,800 shares of Classes A-C with the four individual ownerseach owning in near equal 
total 328,200 and are divided so-that the four individual shareholders each own 
approximately 18% and-owns 28%. 
[sic] is owned in four equal shares by the individuals who each own equal shares of 
[the beneficiary's foreign employer]. Each of these individuals owns 25% of the Class D 
shares of [the beneficiary's foreign employer] (100%) and 18% of the Class E shares of [the 
beneficiary's foreign employer] (72%). These same four individuals owned [the petitioner] in 
equal shares on February 4, 2003. However, three of the owners gave portions of their shares 
to their children on that day without giving up control of the corporation. As shown in the 
written consent of shareholders, the original four owners (and the owners of [the beneficiary's 
foreign employer] and of Figosa [sic]) presently own 77.2% of the shares of [the petitioner]. 
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Thus, these four individuals own and control the majority of the shares in the Texas and 
Mexican companies. 
On September 19, 2003, the director denied the petition. The director determined that the petitioner did not 
establish that it has a qualifying relationship with the beneficiary's foreign employer. Specifically, the 
director indicated that "[ilt is stated that the foreign and United States companies are majority owned by the 
same 4 individuals, however the remaining portions of the 2 companies are owned by different individuals. 
In view of this there is no qualifying relationship." 
On appeal, counsel for the petitioner asserts that the petitioner and the beneficiary's foreign employer are 
affiliates, as they are owned and controlled by the same group of individuals in approximately the same 
proportion. In support of this assertion, counsel submits: (1) a voting agreement between the shareholders of 
the petitioner, the beneficiary's foreign employer, and - S.A. de C.V.; (2) four stock certificates for the 
petitioner; (3) charts and graphs showing the ownership of the petitioner, the beneficiary's foreign employer, 
and Figusa, S.A. de C.V.; and (4) a statement on Form I-290B that provides: 
[Tlhe majority owners of [the petitioner], [the beneficiary's foreign employer], and - 
S.A. de C.V. control these three corporations. The individual owners of these companies 
have executed a Voting Agreement that makes clear that the four individual majority owners 
of each of the three companies have consolidated their voting rights with respect to their 
stock in each of the corporations. Thus, the four majority owners vote as a block in all 
decision concerning each corporation. They control 77.2% of [the petitioner] and 74% of 
[the beneficiary's foreign employer] and 100% of Figusa S.A. de C.V. 
Upon review, counsel's assertions are not persuasive. 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 of Siemens Medical Systems, Inc., 
19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornm. 1982). In 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. Matter of Church Scientology International, 19 I&N 
Dec. at 595. 
In the instant matter, the facts of who owns the relevant corporations are not at issue. The petitioner has 
provided ample documentation to show who possesses an ownership interest in the petitioner, the 
beneficiary's foreign employer, and Figusa, S.A. de C.V. Further, the petitioner has established what 
percentage of outstanding shares each shareholder currently possesses. The petitioner has shown that four 
individuals collectively own approximately 77 percent of the petitioner's shares, approximately 74 percent of 
the shares of the beneficiary's foreign employer, and 100 percent of the shares of Figusa S.A. de C.V. No 
single individual owns a majority of shares in any of the three companies. The petitioner is owned by a total 
of seven individuals in varying proportions. The beneficiary's foreign employer is owned by four individuals 
holding 18.5 percent each, and Figusa S.A. de C.V. holding the remaining 26 percent. S.A. de C.V. is 
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apparently a holding company owned in equal parts by the same four individual shareholders of the 
beneficiary's foreign employer. 
The record clearly indicates that the petitioner does not maintain a qualifying "affiliate" relationship with the 
beneficiary's foreign employer. As the petitioner states, seven individuals own the beneficiary's foreign 
employer, yet four individuals and a holding company own the petitioner. Accordingly, the two entities are 
not "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. 5 214.2(1)(l)(ii)(L)(2)(emphasis 
added). The fact that four individuals collectively own a majority interest in both entities does not satisfy the 
plain meaning of the regulatory definition for "affiliate". See id. The petitioner contends that four 
shareholders vote as a majority block and thus control all three of the entities in question.' However, even if 
this assertion is proven, the petitioner still must establish that the entities are owned by the same group of 
individuals with each individual owning the same share or proportion of each entity. See 8 C.F.R. 
5 214.2(1)(1)(ii)(L)(2). As discussed above, the petitioner clearly states that all three entities are not owned by 
the same group of individuals. The AAO further notes that there is no parent entity with ownership and 
control of both companies that would qualify the two as affiliates. 
Based on the foregoing, the petitioner has failed to show that it has a qualifying relationship with the 
beneficiary's foreign employer as required by 8 C.F.R. 5 214.2(1)(3)(i). For this reason, the appeal will be 
dismissed. 
The AAO notes that Citizenship and Immigration Services (CIS) approved another petition that was 
previously filed on behalf of the beneficiary. The director's decision does not indicate whether she reviewed 
the prior approval of the other nonirnmigrant petition. If the previous nonimmigrant petition was approved 
based on the same corporate relationship as presented in the present record, the approval would constitute 
material and gross error on the part of the director. The AAO is not required to approve applications or 
petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g. Matter of Church Scientology Dttemational, 19 I&N Dec. at 597. 
Beyond the decision of the director, the record is not persuasive in demonstrating that the beneficiary would 
be employed in a managerial or executive capacity as defined at section 101(a)(44) of the Act. In response to 
the director's request for evidence, the petitioner submitted a document describing the beneficiary's 
prospective duties with the percentage of time he will devote to categories of tasks. The beneficiary's duties 
include numerous non-qualifying tasks, such as "[developing a] new line of show saddles and roping 
I As evidence of the control of the companies, the petitioner submits a voting agreement between the 
shareholders of the petitioner, the beneficiary's foreign employer, and, S.A. de C.V. This document is 
dated October 9, 2003, after the date of filing the present petition. The petitioner must establish eligibility at 
the time of filing the nonirnmigrant visa petition. A visa petition may not be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Micheliit Tire Corp., 17 
I&N Dec. 248 (Reg. Cornrn. 1978). Thus, as the voting agreement was executed after the petition was filed, it 
is not probative of the petitioner's eligibility as of the date of filing, and it is accorded no weight in this 
proceeding. 
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saddles," "purchas[ing] all products sold in two retail locations," and "attend[ing] [shows and expositions] as 
[an] exhibitor with distributors or stand-alone." The breakdown of the beneficiary's duties does not 
sufficiently reflect whether such non-managerial and non-executive tasks constitute the majority of the 
beneficiary's time. Further, while the record indicates that the beneficiary will supervise other employees, the 
petitioner has not shown that the beneficiary's subordinates will be supervisory, professional, or managerial, 
as contemplated by section 101(a)(44)(A)(ii) of the Act. Thus, the petitioner has not established that the 
beneficiary would be employed in a primarily managerial or executive capacity as required by 8 C.F.R. 
8 214.2(1)(3)(ii). For this additional reason, the appeal will be dismissed. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
In visa proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.