dismissed L-1A Case: Fast Food Franchise

U.S. Department of Homeland Security 
20 Mass NW, Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
File: WAC 02 092 51466 Office: CALIFORNIA SERVICE CENTER Date: Q 1 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(! 5)(L) of the Tmmigation 
and Nationality Act, 8 U.S.C. 3 1 lOl(a)(lS)(L) 
lN 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. 
m4 Robert P. Wiemann, Director 
Administrative Appeals Ofice 
b 
WAC 02 092 5 1466 
Page 2 
DISCUSSION: The pirector, California Service Center, denied the petition for a nonimmigrant visa in this 
matter on September 13,2002. On October 17,2002, the petitioner filed an untimely appeal on Form I-290B, 
which was treated as a Motion to ReopenIReconsider by the director pursuant to the regulations at 8 C.F.R. 
103.3(a)(2)(v)(B)(2). Upon review of the motion, the director rendered a decision again denying the petition 
on May 15,2003. The matter is now before the Administrative Appeals Ofice (AAO) on appeal. The AAO 
will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager 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. 3 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
located in Bombay, India. The beneficiary was initially granted a two-year L-1A visa and the petitioner now 
seeks to extend the beneficiary's stay for two additional years. 
The director denied the petition concluding that although a qualifying relationship has been established 
between the foreign entity and the petitioner, the petitioner has not establish that a qualifying relationship 
exists between the foreign entity and the franchise where the beneficiary will render services. 
On appeal, counsel for the petitioner asserts that the director's determination with respect to the ownership 
and control of the franchise is in error. Counsel further asserts that because a qualifying relationship has been 
established between the foreign entity and the U.S. entity, the petition should be approved. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(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 (l)(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. 
WAC 02 092 5 1466 
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 himker 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 peifonned abroad. 
  he issue in this proceeding is whether a qualifying relationship exists between the beneficiary's foreign 
employer and the U.S. organization. 
The pertinent regulations at 8 C.F.R. 4 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) QualEfLing 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)( 1 )(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. 
(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 of the entity, but in fact controls the entity. 
(L) AfJiate means 
(1) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
WAC 02 092 5 1466 
Page 4 
(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. 
In a letter dated January 13,2002 accompanying the initial petition, the petitioner described the foreign entity 
and the U.S. entity as "affiliates" and stated that "[the] shareholding relationship of our Indian Affiliate and 
our California Corporation is exactly identical as of today." The petitioner submitted the relevant minutes of 
special board meeting, the share register, and share certificates number 1 through 4 of the foreign entity, 
evidencing the ownership of the company by four individuals as follows: 
# 1.62,3 75 shares 
62,375 shares 
112.= #3. i, 62,375 shares 
#4. 62,375 shares 
With respect to the U.S. entity, the petitioner submitted copies of share certificates number 4 through 1 1, and 
an incomplete excerpt from the share register relating to those certificates, denoting the ownership of the 
company as follow: 
3,000 shares 
3,000 shares ( 
,000 shares 
2,000 shares 
2,000 shares 
1.000 shares 
'certificate cancelled upon transfer) 
1,000 shares 
1,000 shares I' 
Each of the above share certificates bears the following restrictive legend on its face: 
The transfer of this stock is subject to the terms and conditions of a Franchise Agreement 
with Burger King Ccrporation. Reference is made to such Franchise Agreement and to the 
restrictive provisions of the Charter and By-Laws of this corporation. 
The petitioner did not submit copies of the U.S. entity's share certificates number 1-3, or the portion of the 
ledger relating to those shares. The record also does not contain the U.S. entity's charter and by-laws, minutes 
of board meetings, or any other documentation relating to the ownership and control of the U.S. entity. 
On February 22, 2002, the director issued a request for further evidence. Specifically, the director requested 
"a complete copy of the petitioner's franchise agreement, including all addendums, attachments, additional 
statements, exhibits, etc." to establish that the U.S. and foreign entities have a qualifying relationship as 
defined in the regulations. In addition, the director requested the following evidence in connection with the 
foreign entity for the purpose of ascecaining that it is a valid business entity: photographs of the company's 
business premises; financial statements; bank statements; business licenses; telephone directory listing; and 
publications containing advertisements or articles about the company. 
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In response to the request for evidence, the petitioner submitted the requested documentation relating to the 
foreign entity. The petitioner also submitted a co of a franchise agreement dated September 30, 1998, 
between Burger King Corporation and -and -as franchisees, attached to 
which were Exhibits A and B to the agreement (a description of the site of the restaurant and the New 
Restaurant Marketing Account, respectively) and an amendment to the agreement dated the same date. In a 
letter accompanying the response, the petitioner referred to two other visa petitions, apparently also filed by 
the petitioner in connection with the beneficiary's employment, and sought to "incorporate by reference the 
entire record files of [those] two cases."' 
In his September 13, 2002 decision denying the petition, the director concluded that although a qualifying 
relationship has been established between the foreign entity and the petitioner, the evidence does not establish 
a qualifying relationship between the foreign entity and the franchise where the beneficiary will render 
services. The director reasoned that "because of the structure provided in a franchise agreement, wherein the 
[franchisee] is allowed to use the name of the franchising organization but must comply with certain 
operational restrictions, there can never be any actual ,ownership and control of the franchise by either the 
qualifying organization abroad or the one in the United States." The director noted that the franchise 
agreement could terminate upon the occurrence of any of the default events listed in Section 18 of the 
franchise agreement. In his May 15, 2003 decision again denying the petition following the petitioner's 
motion to reopen/reconsider, the director added that since the franchise was acquired by only two of the four 
owners of the foreign entity and the petitioner, common ownership has not been established. Moreover, the 
director concluded, even if either the foreign entity or the petitioner owned the franchise, "control" of the 
franchise ultiikately rests with Burger King Corporation, the franchiser. 
On appeal before the AAO, counsel for the petitioner asserts that the director erred in finding that neither the 
foreign entity nor the petitioner owns the franchise, because the original franchisees had assigned the 
franchise to the petitioner pursuant to an assignment agreement dated September 30, 1998.~ Moreover, 
counsel asserts, Burger King Corporation does not have ultimate control of the franchise, given the 
franchisee's independence of action in setting product, prices, hours, staffing, compensation of workers, etc. 
Counsel contends that since the director agrees that the foreign and U.S. entities are related as required under 
the regulations, the petition should be approved. 
At the outset, the AAO finds that the ownership and control of the franchise is not the dispositive issue in this 
case. The qualifying relationship at issue in an L-1 visa petition is that between the beneficiary's overseas 
' The AAO notes that the record of proceeding does not contain copies of the visa petitions that the petitioner 
claims were previously approved. It must be emphasized that that each petition filing is a separate proceeding 
with a separate record. See 8 C.F.R. 3 103.8(d). In making a determination of statutory eligibility, the 
Citizenship and Immigration Services (CIS) is limited to the information contained in that individual record 
of proceeding. See 8 C.F.R. 5 103.2(b)(16)(ii). 
2 Counsel submitted a copy of the assignment agreement on appeal, indicating that it was submitted earlier. 
However, the AAO notes that the record contains no copy of the assignment agreement other than the copy 
submitted on appeal, nor was there any reference to the assignment in the petitioner's previous 
correspondences contained in this record of proceeding. 
WAC 02 092 5 1466 
Page 6 
employer and the beneficiary's U.S. employer. See section 101(a)(15)(L) of the Act; 8 C.F.R. §§ 
214.2(1)(2)(a) and 214.2(1)(3)(i). In this instance, the record reflects that it is the petitioner, - 
and not the Burger King franchise, which is the beneficiary's U.S. employer.' As such, the "qualifying 
relationship" that the petitioner must establish in order to satisfy the regulatory requirements for an I,-1 visa is 
the relationship between the foreign entity and the petitioner, not the franchise owned and operated by the 
petitioner. Thus, insofar as the director's denial of the petition is based on his conclusion that there is no 
qualifying relationship between the beneficiary's foreign employer and the franchise, it is in error and will be 
withdrawn. 
Notwithstanding the foregoing, the AAO disagrees with the director's conclusion that the petitioner has 
sufficiently demonstrated that a qualifying relationship exists,.between the foreign entity and the U.S. 
petitioner. The regulations and case law confirm that the key factors for establishing a qualifying relationship 
between the U.S. and foreign entities are ownership and control. Matter of Siemens Medical Systems, Inc. 19 
I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982); see also Matter c,f Church 
Scientology International, 19 I&N Dec. 593 (BIA 1988) (in idmigrant visa proceedings). In the context of 
this visa petition, ownership refers to the direct and 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. \*. 
As noted earlier, the petitioner represented that the foreign entity and the U.S entity are "affiliates" in that the 
shares of each entity are held by the same four, individuals in the same proportion. However, while the 
petitioner has submitted evidence to show that the same four individuals who own all of the shares in the 
foreign entity in equal proportion also own shares in the U.S. entity in equal proportions, the evidence is 
insufficient to establish that the shareholding of those four individuals in the U.S. entity constitute ownership 
of all of the issued and outstanding shares of the U.S. entity. Specifically; the petitioner failed to produce 
copies of the U.S. entity's share certificates 1-3, or any other evidence relating to those share certificates. The 
petitioner also did not submit any documentation relating to the ownership of the U.S. entity other than copies 
of the share certificate numbered 4 through 1 1 and the incomplete excerpt of the share ledger pertaining to the 
shares held by the owners of the foreign entity. Thus, it is not clear based on the evidence in the record that 
the petitioner disclosed all of the issued and outstanding shares of the U.S. entity. 
1 
Finally, each of the share certificates of the U.S. entity bears a legend referencing restrictions on the transfer 
of such shares pursuant to the franchise agreement and the charter and by-iaws of the company. it is noted 
that section 15 of the franchise agreement sets forth certain conditions and restrictions that nray be imposed 
upon the transfer or assignment of the agreement to a corporation. However, absent further evidence, such as 
3 See, e.g.. the Quarterly Wage and Withholding Reports of, listing the beneticiary as 
one of its salaried employees. See also section I1.B of the franchise agreement, which states that 
"FRANCHISEE shall be the sole and exclusive employer of its employees with the sole right to hire, 
discipline, discharge, and establish wages, hours, benefits, employment policies, and other terms and 
conditions of employment and conditions of employment of FRACHISEE'S employees. [Burger King 
Corporation] shall have no control over the terms and conditions of employment of FRANCHISEE'S 
employees." 
WAC 02 092 5 1466 
Page 7 
the charter and by-laws of the company or any documentation specifying what if any of such restrictions 
- apply in the transfer of the franchise to the U.S. entity, the AAO isGnable to determine what effect such 
transfer restrictions would actually have on the ownership and control of the U.S. entity. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
~ distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. at 364-365. Without full 
disclosure of all relevant documents, the elements of ownership and control cannot be determined. 
In light of the defects in the evidence relating to the ownership and control of the petitioner, as described 
above, the AAO must conclude that the petitioner has not sufficiently demonstrated that the foreign and U.S. 
entities are affiliates as described in the regulation at 8 C.F.R. 3 214.2(1)(l)(ii)(L)(2), or that a qualifying 
relationship exists between those entities. 
Beyond the decision of the director, the AAO finds that the record contains insufficient evidence to establish 
that the beneficiary would be employed by the U.S. entity, 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. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or execytive capacity. 
In the Form 1-129, the petitioner described the beneficiary's proposed job duties as "overseeing the day to day 
operation, finance, banking, hiring, leasing, expansion, of the fast food business in California." The only 
other description of the beneficiary's job duties in the U.S. is found in the beneficiary's resume, which states: 
Burger King Corporation, as General ~ana~ei, acting as Direct~r of Operations, overseeing 
the functioning, financing, and expansion of their Hamburger Fast Food business. Currently 
working on company's expansion plans for opening new restaurant in Suisun City, California 
and acquiring existing locations in Milpitas & San Jose, California. 
These descriptions of the beneficiary's 'duties are vague and non-specific, and fail to demonstrate what the 
beneficiary does on a day-to-day basis: Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craji of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). 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., Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 
1989), afS'd, 905 F.2d 41 (2d. Cir. 1990). Absent further evidence relating to the beneficiary's job duties with 
the U.S. entity, the AAO cannot conclude that the petitioner has sufficiently established that the beneficiary 
WAC 02 092 5 1466 
Page 8 
would be employed in the U.S. in a primarily executive or managerial capacity, as required under the 
regulation at 8 C.F.R. 5 214.2(1)(3)(ii). 
4 
Similarly, the record contains insufficient evidence to establish that the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity for the requisite period preceding the filing of 
the petition. The only description of the beneficiary's job duties with the overseas entity, or the duration of 
such employment, appears to be a brief paragr 
March 1998, the beneficiary "[wlorked w 
General Manager overseeing the Food & Bev 
and Business Development Manager." A brief description on the beneficiary's resume, without more, is 
insufficient to support a finding that the requirements set forth at 8 C.F.R. 5 214.2(1)(3)(iii) and (iv) with 
respect to the beneficiary's employment with the foreign entity have been met. 
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), aj'd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. IiVS, 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 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 to deny the petition will be affirmed and the appeal will be dismissed. 
ORDER: The appeal is dismissed.