dismissed L-1A Case: Food Retail

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Ident 1 unwarrantedpreventclearY l' ac)invasionofpersona prtV
U.S. Department of Homeland Security
20 Mass Ave., N.W., Room 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
PUBLICCOpy
FILE: SRC 0524151166
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Office: TEXAS SERVICE CENTER Date:
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)
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,
obert P. Wiemann, Chief
rbAdministrative Appeals Office
www.uscis.gov
SRC 05 241 51166
Page 2
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 nonimmigrant petition seeking to employ the beneficiary as its president.
Accordingly, the petitioner endeavors to classify the beneficiary as an L-IA nonimmigrant intracompany
transferee pursuant to section IOI(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.c.
§ 1101(a)(15)(L). The petitioner is a corporation organized in the State of Florida and claims to be engaged
in the food retail, bakery and restaurant business. The petitioner claims that it is a wholly owned subsidiary
of Apsys Investment S.A.R.L. (Apsys), a Luxembourg limited liability company, which also has ownership
interest in a California limited liability company called French House Select Kosher Products, LLC (French
House) where the beneficiary is presently employed. The petitioner further claims that the beneficiary was
employed overseas b a French corporation located in Neuilly Sur Marne, France,
which the petitioner claims is the majority owner of French House.
The director denied the petition, concluding that the record does not show that the beneficiary has the required
employment with a qualifying foreign entity for at least one year out of the three years prior to his transfer to
the United States.
On appeal, counsel asserts that there exists a qualifying relationship between the petitioner and a qualifying
foreign entity in that (l) ELDAI, the beneficiary's foreign employer prior to his transfer to the United States,
and French House, his current employer, were owned and controlled by the same group of shareholders
during at least one year of the beneficiary's employment overseas, and (2) French House has merged into the
U.S. petitioner. Counsel submits additional documentation in support of these assertions on appeal.
To establish L-l eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). Specifically, within three years
preceding the beneficiary's application for admission into the United States, the beneficiary must have been
employed abroad by a qualifying organization, in a qualifying managerial, executive, or specialized
knowledge capacity, for one continuous year. 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. § 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)(1)(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.
SRC 05 241 51166
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.
At issue in this proceeding is whether a qualifying relationship exists between the petitioner and the
beneficiary's foreign employer, and whether the beneficiary was employed abroad by a qualifying
organization for one continuous year during the three years preceding the filing of the petition.
The pertinent regulations at 8 C.F.R. § 214.2(1)(1)(ii) define the term "qualifying organization" and related
terms as follows:
(G) Qualifying 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 (1)(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)(l5)(L) ofthe 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 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
SRC 05241 51166
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 August 31, 2005, accompanying the initial petition, the petitioner stated that between 1995
and 1999, the beneficiary served as national sales manager for ELDAI in France. The petitioner indicated
that in June 2001, the beneficiary entered the United States, in E-2 status, to serve as President and CEO of
French House.! In the same letter, the petitioner stated that ELDAI owned 51% of French House, and the
remaining 49% of French House is held by Apsys, which owns 100% of the petitioner. There appears to be
no direct relationship between ELDAI and Apsys.
The petitioner submitted with the initial petition a copy of its share certificate number 1 dated March 15,
2004, showing that Apsys holds 1,000 common shares, comprising all of the authorized shares of the
petitioner. The petitioner also submitted copies of membership certificates for French House, all dated
October 18, 2000, setting forth the membership interests in that company as follows:
FINAP
37%
24%
25%
1%
1%
12%
In addition, the petitioner submitted a copy of a document entitled "Memorandum of Merger" between French
House and the petitioner, dated August 30, 2005 and signed by the beneficiary as president and CEO of both
entities. The document states that "[French House] shall be merged into Apety Group, Inc. such that Apety
Group, Inc. shall acquire the shares and control over the operations of [French House] and that said merger
shall become effective on the date that the [beneficiary] obtains an L-IA visa with Apety Group, Inc." The
petitioner also provided a chart outlining the corporate relationships among Apsys, French House, ELDAI,
and the petitioner. There was no documentation in the initial submission regarding the ownership or control
ofELDAI.
In a request for evidence (RFE) dated September 9, 2005, the director requested, among other things,
evidence that French House is owned and controlled by the petitioner and evidence of ownership and control
of ELDAI, S.A.
In response to the RFE, the petitioner resubmitted its August 31, 2005 letter, the memorandum of merger, and
the corporate relationship chart. The petitioner also included a copy of the minutes of ELDAI's board meeting
on December 11, 2002, in which the ELDAI board adopted the following transfers of shares as of that date:
I The petitioner submitted a copy of the beneficiary's resume describing his employment with these two
companies during the periods "1995-1999" and "2001 to the present." However, there is no information in the
record regarding the beneficiary's employment from 1999 through June 2001.
SRC 05241 51166
Page 5
Transferor Transferee No. of shares
1
1
3,796
2
1,518
2
2,280
%
.001
.001
50.00
;0026
20.00
.0026
30.00
In a decision dated September 14,2005, the director denied the petition. The director noted that the record
does not show that the same individuals who own ELDAI also own 51% of French House. Therefore, no
qualifying relationship exists between those two entities. Moreover, the director observed, the evidence
shows that at the time of filing the petition, the merger between French House and the petitioner has not yet
occurred. Based on these findings, the director concluded that the petitioner has not shown that the
.beneficiary has the required employment with a qualifying foreign entity for at least one year out of the three
years prior to his transfer to the United States in E-2 classification.
On appeal, counsel submits two new documents: (1) the minutes of the board meeting of ELDAI on
December 30, 1998, which lists the owners of the company and their respective holdings at that time, and (2)
a copy of an amended memorandum of merger between the petitioner and French House, this time stating that
the merger is effective as of August 30, 2005. The amended memorandum of merger is undated and signed
by the beneficiary as president and CEO of both entities. Counsel asserts that the new documents show that
ELDAI and French House have a qualifying relationship during at least one year of the beneficiary's foreign
employment, and a qualifying relationship exists between French House and the petitioner as French House
has merged into the petitioner.
At the outset, the AAO notes that insofar as the evidence submitted on appeal pertains to the ownership and
control of ALDAI and the relationship between French House and the petitioner, it is evidence specifically
requested by the director in the RFE, which the petitioner failed to provide prior to adjudication of the
petition. 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). Moreover, where a petitioner has been put on notice of a
deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will not
accept evidence offered for the first time on appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); see
also Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence
to be considered, it should have submitted the documents in response to the RFE. Id. Under the
circumstances, the AAO need not and does not consider the sufficiency of the evidence submitted on appeal.
Therefore, the appeal will be adjudicated based on the record of proceeding before the director.
Upon review, the AAO finds that the record does not demonstrate that there exists a qualifying relationship
between the petitioner and the beneficiary's foreign employer, or that the beneficiary has the required
employment with a qualifying foreign entity for at least one year out of the three years prior to the filing of
this petition.
...... ._--------
SRC 05241 51166
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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 of Church
Scientology International, 19 I&N Dec. 593 (BIA 1988) (in immigrant 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.
Counsel claims on appeal that a qualifying relationship exists between the beneficiary's foreign and U.S.
employers because ELDAI shares common ownership with French House when the beneficiary was
employed by ELDAI, and French House in tum has merged into the petitioner. The record does not support
counsel's claims. It must be emphasized that the petitioner must establish eligibility at the time offiling 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978). Accordingly, the petitioner is required to show that a qualifying relationship exists between
the foreign and U.S. entities at the time the petition was filed.
First, the record does not show that there is, or has been at any point in time, a qualifying relationship
between ELDAI and the petitioner. The petitioner is 100% owned by Apsys. ELDAI's shares are held by a
number of individuals unrelated to Apsys. There is no evidence in the record that would suggest that the two
entities have any common ownership or control such that they could be considered "affiliates," nor is there
evidence of any other qualifying relationship as defined under 8 C.F.R. § 214.2(1)(1)(ii) between the two
entities.
Second, contrary to counsel's claims, the record is insufficient to establish that there is a qualifying
relationship between ELDAI and French House, either at the time of the beneficiary's employment with
ELDAI, or at the time the petition was filed. Even if the AAO were to consider the document submitted on
appeal which purportedly sets forth the ownership of ELDAI in December 1998, there is no documentation
evidencing French House's ownership during the same period? Moreover, the only evidence of record
documenting the ownership of the two entities, including French House's membership certificates dated
October 18, 2000 and ELDAI's December II, 2002 board minutes, do not show that there is common
ownership or control that would qualify the two entities as "affiliates," nor does the evidence support the
petitioner's claim that ELDAI owns 51% of French House. Thus, the record is insufficient to demonstrate that
a qualifying relationship exists between ELDAI and French House at the time the petition was filed.
Furthermore, even if the record had shown a qualifying relationship between ELDAI and French House, that
would not in tum establish a qualifying relationship between the foreign employer and the petitioner, since
the record does not establish that at the time of the filing of this petition, the merger between French House
and the petitioner had occurred. Prior to the issuance of the director's decision, the petitioner twice submitted
a memorandum of merger stating that the merger would take effect upon the beneficiary acquiring L-l A
status through his employment with the petitioner. However, on appeal, counsel submits an amended
2 As previously noted, the Membership Certificates and LLC Operating Agreement for French House
submitted with the initial petition are dated October 18, 2000.
SRC 05 241 51166
Page 7
memorandum of merger, changing the effective date of the merger to August 30, 2005. As stated earlier, the
AAO does not accept documents submitted on appeal that were previously requested by the director and
could have been made available prior to the director's decision. Moreover, even if the AAO were to take into
consideration the amended memorandum of merger, it is noted that neither the petitioner nor counsel has
offered any explanation or clarification of the change in the effective date of the merger. It is incumbent upon
the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective
evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). Without any
explanation accounting for the change in the effective date of the merger, the AAO must question whether the
amendment was made solely in an attempt to cure the beneficiary's ineligibility for the benefit sought. Doubt
cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and
sufficiency of the remaining evidence offered in support of the visa petition. Id. Furthermore, a petitioner
may not make material changes to a petition in an effort to make a deficient petition conform to CIS
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). Under these
circumstances, the AAO finds that the evidence of record is insufficient to establish that French House had
merged into the petitioner at the time the petition was filed.
Finally, the evidence does not establish that any other qualifying relationship exists between French House
and the petitioner. The petitioner claimed that Apsys, the petitioner's parent company, holds 49% interest in
French House through the beneficiary and an entity called Finap, which the petitioner claimed to be another
subsidiary of Apsys. However, the petitioner has submitted no documentation to support its claim that Apsys
controls the beneficiary's and Finap's membership interests in French House. Moreover, even if the petitioner
did submit such documentation, control or ownership of 49% of French House by the petitioner's parent
company is insufficient to establish that French House and the petitioner are "affiliates" as that term is defined
in the regulations.
Accordingly, the AAO finds that the petitioner has failed to show that the petitioner and the foreign entity that
employed the beneficiary are "qualifying organizations" as required by the regulation at 8 C.F.R.
§ 214.2(l)(3)(i).
The AAO notes that in her decision, the director concluded that "the beneficiary does not have the required
employment with a qualifying foreign entity for at least one yearout of the three years prior to his transfer to
the United States in E-2 classification." If a qualifying relationship had been established between ELDAI and
French House, the beneficiary's employment at French House between June 2001 and the filing of the present
petition would be a "[period] spent in the United States in lawful status for a branch of the same employer or a
parent, affiliate, or subsidiary thereof," which, according to the regulation, "shall not be interruptive of the one
year of continuous employment abroad but ... shall not be counted toward fulfillment of that requirement,"
and, accordingly, the required "one-out-of-three-year" period of overseas employment for the beneficiary
would have to fall within the three years preceding June 2001. 8 C.F.R. § 214.2(l)(1)(ii)(A). However, since
the evidence does not show that a qualifying relationship exists between ELDAI and French House, the
period of employment with French House does not fall under the exception set forth in 8 C.F.R.
§ 214.2(l)(l)(ii)(A). Therefore, the petitioner must establish that the beneficiary was employed by a
qualifying foreign entity for at least one year out of the three years prior to the filing of this petition, rather
than prior to his transfer to the United States in E-2 classification to work for French House. To the extent the
SRC 05241 51166
Page 8
director applied the requirement to the incorrect time period, that aspect of the director's decision will be
withdrawn.
Notwithstanding the foregoing, however, the AAO finds that the petitioner has failed to establish that the
beneficiary 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, as required by the regulation at 8 C.F.R.
§ 214.2(l)(3)(iii). The present petition was filed on September 2, 2005. According to the records, the
beneficiary was employed in the United States by French House from June 2001 until that time. Since French
House is a corporation organized in the State of Florida that, as discussed earlier, does not have a qualifying
relationship with the petitioner, the beneficiary cannot be said to have been employed "abroad" or "with a
qualifying organization" during those years. Consequently, the requirement set forth under 8 C.F.R.
§ 214.2(l)(3)(iii) has not been met.3
ill light of the foregoing, the AAO concludes that the evidence of record does not establish that there exists a
qualifying relationship between the beneficiary's foreign employer and the U.S. petitioner, or that the
beneficiary was employed abroad by a qualifying organization for one continuous year during the three years
preceding the filing of the petition.
Beyond the decision of the director, the AAO fmds that the evidence is insufficient to establish that the
beneficiary would be employed by the petitioner in a 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). 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.
. ill its August 31, 2005 letter, the petitioner described the beneficiary's job duties in the United States as
follows:
[The beneficiary will] take on full responsibility over [the petitioner]. This will include
directing and coordinating the activities of [the petitioner] including the overseeing [sic] the
development and expansion of PAUL USA stores in the U.S. [The beneficiary] will
formulate and administer company policies and administrative policies as well as develop
long range goals and objectives for [the petitioner]. [The beneficiary] will review analysis of
activities, costs and operations and forecast data to determine the progress of the company
3 The AAO notes that, even if a qualifying relationship had been established between ELDAI and French
House, and the relevant time period were the three years preceding the beneficiary's employment with French
House in June 2001, the petitioner still would have failed to show that the beneficiary has the required "one­
out-of-three-year" period of overseas employment. While the record indicates that the beneficiary was
employed by ELDAI from 1995 to 1999, it does not specify when in 1999 the beneficiary ceased to work for
that entity. Therefore, it is not clear based on the record whether the beneficiary indeed worked for ELDAI
for "at least one year" out of the three years preceding his admission to the United States to work for French
House in £-2 status.
SRC 05241 51166
Page 9
towards stated goals and objectives. [The beneficiary] will confer with executive
management and directors of [the petitioner] to review achievements and discuss required
changes and goals or objectives. [The beneficiary] will also assist [the petitioner] in
searching for and hiring qualified executive and managerial employees.
Without further details, the above description of the beneficiary's anticipated job duties is vague and
nonspecific and fails to demonstrate what the beneficiary would do on a day-to-day basis. 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. 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. Sam, 724 F.
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. CiT. 1990). Moreover, while the record does include a
business plan with a proposed organizational chart for the petitioner, there is no evidence that a staff is
actually in place to relieve the beneficiary from performing non-qualifying duties relating to the day-to-day
oPerations of the company. In light of these deficiencies in the record, the AAO finds that the petitioner has
not sufficiently demonstrated that it would employ the beneficiary in the United States in a primarily
managerial or executive capacity. For this additional reason, the petition will be denied.
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 CiT. 1989)(noting that the AAO reviews
appeals on a de novo basis). When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if she shows that the AAO abused it discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043.
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. Section 291 of the Act, 8 U.S.c. § 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.