dismissed L-1A Case: Export Of Building Materials

identifying data deletedto
preventclearlyunwarranted
ilmvasionofpersonalpriVICJ
PUBLICCOP1Y
U.S. Department of Homeland Security
20 Mass . Ave, N.W ., Rm. A3000
Washington, DC '205 29
u.s.Citizenship
and Immigration
Services
1»,
File: WAC 05 168 54289 Office:. CALIFORNIA SERVICE CENTER Date: MAR 0 7 ZUOI
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)(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.
~~~Wi~~;nn , Chief
Administrative Appeals Office
www.uscis.gov
,WAC 05 16854289
, 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) onappeal. the AAO will dismiss the appea~ .
.The petitioner seeks to employ ' the beneficiary temporarily in the Ynited States as 'an L-1A nonimmigrant .
intracompany transferee pursuant to section101(a)(15)(L) of the Immigration and Nationality Act (the Act) , 8
U.S.C. § 11'Ol(a)(15)(L). The U.S. petitioner , acorporation organized in the State of California that is
engaged in the export of building materials , seeks to employ the beneficiary as its marketing .director, The
petitioner claims that it is the subsidiary of ' , located in •••••••
Republic of China.
The .director denied ,thepetition concluding that the ·petitioner did not ,establish ' that (1) sufficient physical
premises had been secured to house the 'new office; (2) the ,beneficiary had been employed abroad in a
primarily managerial or executive capacity; or (3) a qualifying relationship existed between the petitioner and
the ~oreign entity.
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 director '
ignored much 'of the evidence submitted in support of the petition, and argues that ,contrary to the director ;s
findings, the petitioner is in fact qualified 'for the.benefit sought. In support of this assertion, counsel submits
a detailed brief. '" ,. " '. ,
To establish eligibility for the L-1 nonimmigrant 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 in~st seek to enter the United States temporarily to continue rendering his
or her services to the .sameemployer 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 ~n individual petition filed on Form ' , I ~ 1 2 9 shall be
accompanied by: .
(i) . Evidencethat the petitioner and the organization which employed or will employ the
.alien are .qualifying organizations as defined ,in paragraph (l)(I)(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 onecontinuous year of full time employment '
- abroad with 'a qualifying organization within the three years preceding the filing of "
the petition. ' . ,
WAC 05 168 54289
Page 3
(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 himlher 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.
(v) If the petition indicates that the beneficiary is coming to the United States as a manager
or executive to open or to be employed in a new office in the United States, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office 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 (l)(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.
The first issue in this matter is whether the petitioner secured sufficient physical premises to house the new office ..
The petitioner indicates that the beneficiary will be coming to the United States to open a new office. The
regulation at 8 C.F.R. § 2l4.2(l)(3)(v)(A) provides that if the beneficiary is coming to the United States as a
manager or executive to open or to be employed in a n~w offi~e in the United States, the petitioner shall submit
evidence that sufficient physical premises to house the new office have been secured.
The petitioner submitted no documentation regarding the location of its business with the initial petition.
Consequently, in a request for evidence dated June 29, 2005, evidence demonstrating that the petitioner had
complied with this requirement was requested. Specifically, the director asked for photographs of the business
premises, both inside and out, as well as a copy of the lease agreement which detailed the square footage of the
property in addition to a copy of its insurance policy and occupancy permit.
, WAC 05 16854289
Page 4
In a letter dated September 20,2005 , counsel responded to the petitioner's request. The petitioner indicated that it
had secured a business location in Walnut Creek , California. The petitioner included photographs ofthe exterior,
of the business as well ,as copies of bills that represented "rental expenses" for the new office. Counsel stated that
since the lease agreement was on a month-to-month basis , no written agreement could be furnished.
On November 14, 2005, the .director denied the . petition. Specifically, the director found that the evidence
submitted did not establish that sufficient physical premises had been secured by the petitioner as required by the
regulations. The director noted that the absence of a written lease agreement and interior photos of the alleged
business location raised questions regarding the validity of the petitioner's claims. The director further noted that
the petitioner's submission of phone bills and other such documents was simply insufficient to meet the
regulatory requirements. On appeal, counsel alleges that ample evidence was submitted in response to the request
for evidence to establish that sufficient premises had been secured. No new evidence is submitted to support this
claim.
Upon review, the AAO concurs 'with the director 's findings . The regulations clearly state that sufficient
physical premises to house the new office must be secured. In this matter , however, the petitioner failed to
submit a lease agreement or photos of its interior bus iness location. Instead , it relies on photographs of the
exterior of a structure and its claim that it leases that structure on a month-to-month basis as proof it has
satisfied this requirement. The AAO is not persuaded .
The photographs of the alleged business location merely show the address of the building at which it claims to. ,
house its business. No signage indicating that the petitioner 's business operates out of this location has been
submitted. More importantly , a photo of the tenant directory from the building 's lobby indicates that a
number of businesses operate out of Suite 300, the su ite the petitioner allegedly leases. , The petitioner ,
however, is not listed, as far as the AAO can see from the picture submitted, on this directory.' Finally, the
only other evidence submitted .in support of the claim that the petitioner operates from this Walnut Creek
location is an invoice for an answered line, amailbox , and a lobby listing. Since this invoice is dated August
16, 2005 and appears to be for start-up services, it must be concluded that this premises was not secured by
the petitioner at the time of the petition's filing in May 2005. The petitioner must establish eligibility at the
time of filing the nonimmigrant 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 Michelin Tire Corp., 17 I&N
Dec. 248 (Reg . Cornm. 1978).
More importantly , however, is the conflicting information contained in the record regarding the petitioner 's- ,
actual business location . In the initial petition and on the letterhead from which the petitioner 's supporting
letters are written , an entirely different.address is listed. The AAO notes that on the Form 1-129 , this address
is .also listed as the beneficiary's address in the United States. It is incumbent upon the petitioner to resolve
any inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such
I Although another photograph shows the petitioner in Suite 300, it is unclear whether this is from the same
directory for the building . Moreover, this photograph also shows the petitioner as sharing the same suite
and/or operating jointly with a company named Eastbay Service Company, Inc.
WAC 05 168 54289
Page 5
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where
the truth lies. Matter ofHo, 19 I&NDec. 582, 59i-92 (BIA 1988).
As there is insufficient evidence that the petitioner has secured sufficient' physical premises, the petition may
not be approved.
The second issue in this matter is whether the beneficiary was employed abroad in a primarily managerial or
executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(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 ifno 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
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 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 ordirection from higher level executives, the board
of directors, or stockholders of the organization.
WAC 05 168 54289
Page 6
In the Form 1-129, the petitioner only provided a general overview of the beneficiary's duties abroad, and
counsel merely claimed in his letter dated May 24, 2005 that the beneficiary worked in a managerial position
abroad. Specifically, the petitioner stated:
His main responsibility .[as] the new Marketing Director will be to develop and execute plans
to meet the overall objectives agreed for.the Company, to motivate and lead the organization
and act as the Company's interface 'to the market. The Marketing Director will have a high
degree of local autonomy. He therefore will have to develop and execute plans according to
the local market needs .. The Marketing Director will have to maintain and further develop the
business and stay in close contact with decision-makers and customers. He will have to
bridge the interests of the customers and the company and be able to understand the trends in
the market from a technical and economical point of view. He will be also responsible for
collecting data on customer preferences and their buying habits, analyzing competitors'
methods of marketing and distribution, preparing reports about his findings, establishing
research methodology,' determining potential sales of construction products by researching
market conditions in local, regional and national areas in the United States [and] Taiwan.
Taking under consideration the requirements of the trade, the Marketing Director must be
fluent in Mandarin, and English.
The director found this initial overview too vague, and therefore additional evidence was requested on June
29, 2005. Specifically, the director requested more information regarding the beneficiary's day-to-day duties
and those of his subordinates. In response, the petitioner provided the following updated description in a
letter dated September 20, 2005:
The beneficiary, working abroad for [the foreign entity] was responsible for communicating
with people within the construction business in .the United States and Taoyuan region in
Taiwan; determining and formulating policies and providing the overall direction of the
company; taking care of managing daily operations; developing and executing a long-range
planning [sic] and identifying business opportunities in the US and Taiwan market,
establishing relationship with' foreign investor, and maintaining. those bonds;' general
administration affairs of the company, and general management of company's matters in the
American branch; concerning business activities..
No additional documentation was submitted.
The director found this response insufficient to warrant a finding that the beneficiary had been employed in a'
primarily managerial or executive capacity abroad, and subsequently denied the petition. On appeal, counsel
for the petitioner argues that ample evidence was submitted to support a finding in favor of the petitioner, and
asserts that the director ignored a decision dealing with situations where the sole employee of a company
could still be deemed an executive.
WAC 05 168 54289
Page 7
<;
The AAO concurs with the director after reviewing the record. Upon review of the beneficiary's stated duties
abroad , the description of duties is too vague to ascertain whether the beneficiary will be acting in a primarily
managerial or executive capacity. "
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. § 214.2(l)(3)(ii) . In this case, the petitioner vaguely
'described each of the,beneficiary 's duties, and essentially summarized the definition of executive capacity. '
The description of his duties is vague and not specific enough to clearly establish the beneficiary's role in the
foreign company. 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 answer a critical question in this case: What will the beneficiary primarily do on ,a
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd.
v.'Sdva , 724 F . Supp. 1103, 1108 (E .D.N.Y . 1989),ajj'd , 905 F.2d 41 (2d. ~ir: 1990).
On appeal, counsel refers to an unpublished decision in which the AAO determined that the beneficiary met ,
the requirements of serving in a managerial and executive capacity for L-I classification even though he was ,
the sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are
analogous to those in the unpublished decision. While 8 C.F.R. § 103.3(c) provides that AAO precedent
deci~'ions are binding o? all CIS employees in the administration of the Act , unpublished decisions are not '
, similarly binding. Additionally , counsel continually asserts that it had submitted enough evidence to establish
th,e beneficiary's qualifications and therefore the' petition should be granted on that basis. , As previous~y ,
, stated , without documentary evidence to support the claim, the assertions of counsel will 'not satisfy the '
petitioner's burden of proof.' The unsupported assertions of counsel do not constitute evidence. Matter of
Obaigbena, 19 I&N Dec. at -534; Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez­
Sanchez, 17.I&N Dec ; at 506.
The petitioner has failed to submit sufficient evidence establishing that the beneficiary was employed abroad
, in a primarily managerial or executive capacity. For this additional reason, the petition may not be approved.
, The final issue in this matter is whether the petitioner and the foreign entity are qualified organizations as
defined by 8 C.F.R. § 214:.2(l)(l)(ii)(G). The regulation defines the term "qualifying organization" as a ,
United States or foreign firmcorporation, or other legal entity which: ' ...-, . .
, (1) Meets exactly one of the qualifying relationships specified ill the definitions of a parent ,
branch, affiliate or subsidiary specified in paragraph (l)(l )(ii) of this section;
(2) Is or will be doingbusiness (engaging in international trade is not required) as an employer in
the United States and in at least one other Country directly or th,rougha 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)(l5)(L) of the Act.
"
/
WAC 05 168 54289
Page 8
Additionally, the regulation at 8 C.F.R. § 214.2(l)(l)(ii) provides:
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries,
(J) "Branch" means an operating 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 ofthe entity, but in fact controls-the-entity. .
, (L) "Affiliate" 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, or
(3) In the case of a partnership that is organized in the United States to provide accounting
services along with managerial and/or 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 firms, 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 services 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 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 ofHughes, 18 I&N Dec. 289
(Comm. 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, 19 I&N Dec. at 595,
WAt 05 168 54289
' Page 9'
In this matter, the director found that the evidence submitted in support of the claimed relationship between
the foreign entity and the petitioner wa~ , insufficient to warrant apptoval.Specifically" after requesting
additional evidence regarding the Claimed relationship between the two entitieson June 29,2005, the director
noted that despite submitting a copy of the stock certificate and stock ledger evidencing the foreign entity's
alleged 'ownership of all outstanding shares of the Ll.S. entity, the director noted that no evidence had been
, submittedto establish that the foreign entityhad actually paidfor these shares .' Consequently, the director '
denied the petition. On appeal, counsel asserts that the relationship was well documented by the share
certi.ficate and !he petitioner's letter discussing the foreign entity's financial investment in the U.S. entity. "
Upon review, the AAO concurs with the director's findings; and notes an additional basis for finding that a
'qualifying relationship did not exist between the parties. The AAO will first examine the director's basis for
the denial..
As general evidence Or 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 sharehoider meetings must also be examined to determine the total number of shares issued" the exact ,
number issued to the shareholder, and the subsequent perce'~tageown~rship and its effect on corporate
control. Additionally, apetitioning company must discloseall agreements relatingto the voting of shares, the
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual
control of the entity. See Matter -of Siemens Medical Systems , Inc., supra. Without full disclosure of all
relevant documents, CIS is Un~ble to deternrlne the elements of ownership and control. '
In this matter, although the share certificate and ledger' were both submitted, the petitioner failed tosubmit
.evidence ofthepayment for these shares as requested by the director. The regulations specifically allow the
director 'to request additional evidence in appropriate cases. See 8 C.F.R. §,214.2(l)(3)(viii).As ownership is
, a critical element of this' visa Classification, the director may reasonably inquire beyond the issuance of paper
stock certificates into the means ' by which 'stock ownership -was acquired. As requested by the director,
evidence of this nature should include wire transfers or other financial documents evidencing the transfer of
money from the foreign entity to the petitioner. The ,regulation states that the petitioner shall submit
additional evidence as the director, in his or her discretion , may ,deem necessary. The purpose of the request
, for evidence is to elicit further information that clarifies .whether eligibility for the benefit sought has been
established, as of the time the petition is fiied: See 8 C .F.R. §§ lQ3.2(b)(8) and (12). ' 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). " ,
As stated by the director in the denial, merely outlining the foreign 'entity' s, alleged financial interest in the
petitioner, without documentation to corroborate the claim ; is simply insufficient to show that the petitioner
actually received consideration for the shares allegedly issued to the foreign entity . 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: 15'8, 165 (Comm. 1998) ,(citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm : 1972». On appeal, .counsel merely repeats these claims which
were previously deemed ins\!fficie~t by the director , Without documentary evidence to support the claim, the
'. ".
WAC 05 168 54289
Page 10 ·
assertions of counsel wili not satisfy the petitioner's burden of proof. The unsupported assertions of coun~el
do not constitute evidence . ,Matter of Obaigbena, 19 I&N Dec. at 534; Matter ofLaureano, '19 I&N Dec. 1;
M~tter ofRamirez-Sanchez, 17 I&N Dec. at 506. " , " '
"
The :AAO concurs whh the 'director's finding that without evidence to show that the shares were actually ,
acquired by the foreign entity in exchange for a monetary contribution, the critical element of ownership has ·
not been established. However, the AAO notes another problem not addressed by the director. The share
certificate included in the record is dated September 9, 2005. The petition in this matter was filed on May 27,
2005. According to the stock certificate and accompanying ledger, the foreign entity.if in fact it had paid for
the shares, did not acquire its interest inthe petitioneruntil nearly three months after the filing of the petition.
As previously stated, the petitioner must establish eligibility at the time of.filingthe nonimmigrant visa
petition. A visa petition may not be approved at ,a future date after the petitioner or beneficiary becomes
,eligible Undera new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248'(Reg. Comm. 1978). Since
the foreign entity did riot own any shares in the petitioner as of the date of filing, aqualifying relationship
could not have existed at that time. For this additional reason,the petition may not be approved. '
, When the AAO denies a peti~i~non multiple .alternativegrounds, a plaintiff can succeed on a challenge only
if she shows that the AAO ~biJ.sed it discretion with respect to all 'of the J\AO's enumerated grounds. See
Spencer Enterprises,In~. v. UnitedStates, 229 'F. Supp. 2d 1025, 104~ (E.D.CaL2001), aff'd. 345 F.3d '683..
(9th Cir. 2003).
" .
The ,petition will be denied ' for the above stated 'reasons, with each considered as an independent and '
alternative 'basis for denial. , In visa petition ,proceedings, the burden of proving eligibility for the benefit
sought remains entirely with the petitioner. Sectio~ '291 of the' Act; 8 U.S.C. § 1361. Here, that burden has ,
not been met. '
\.
ORDER: ' The appeal is dismissed.
"' . "