dismissed L-1A Case: Food Service

identifyingdata deletedto
prevent clearlyunwarranted
invasionofpersonalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 02 173 52202 Office: TEXAS SERVICE CENTER Date: JUN 0 4 ZUDI
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10I(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 110I(a)(15)(L)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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 .
. .-.-.~~:~.~ ~
R:berfi~~mann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 02 173 52202
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 extend the employment of its general manager as an
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner describes itself as a Texas limited
liability company engaged in the operation of fast food r t it has a
qualifying relationship with the beneficiary's former employer located in
Juarez, Mexico. The petitioner has employed the beneficiary in L-1A status since May 1999 and now seeks to
extend his status for two additional years.
The director denied the petition concluding that the petitioner did not establish that the U.S. entity and the
foreign entity have a qualifying relationship.
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, the petitioner concedes that its response to the
director's request for evidence did not clearly state the ownership of the foreign and u.S. companies. The
petitioner submits additional documentary evidence in support of the appeal in an attempt to establish the
claimed qualifying relationship.
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 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 (1)(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.
(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 him/her to perform the intended
SRC 02 173 52202
Page 3
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The sole issue addressed by the director is whether the petitioner has established that a qualifying relationship
exists between the petitioner and the beneficiary's previous foreign employer. To establish a "qualifying
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign
employer and the proposed U.S. employer are the same employer (i.e. one entity with "branch" offices), or
related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(l5)(L) of the Act; 8 C.F.R.
§ 214.2(1).
Pursuant to the regulation at 8 C.F.R. § 214.2(1)(l)(ii)(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)(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)(l5)(L) of the Act.
The regulations at 8 C.F.R. § 214.2(l)(1)(ii) provide the following definitions for purposes of establishing a
qualifying relationship.
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries.
* * *
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity; or owns,
directly or indirectly, half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls
the entity.
(L) Affiliate means
(I) One of two subsidiaries both of which are owned and controlled by the same parent
or individual, or
SRC 02 173 52202
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.
The nonimmigrant petition was filed on May 13, 2002. On the Form 1-129
parent of the foreign entity, which was identified as " In an attached
letter dated April 19, 2002, the petitioner stated that it is a qualifying organization as defined at 8 C.F.R. §
214.2(l)(l)(ii)(G) and explained as follows:
£1 Taco Tote is a limited liability company which operates under the trade name of_
•••••• , located in £1 Paso, Texas and under the register Trade Name of___
located in £1 Paso, Texas, Cd. Juarez, Chihuahua, Nuevo Laredo and Durango, Mexico.
The petitioner stated that " was established as a Texas limited liability company on
August 24, 1994. However, the petitioner indicated its na
while the petitioner's letter identifies the company's name as " The petitioner
did not submit evidence of the ownership of the U.S. or foreign entity with the initial petition filing.
The director issued a request for additional evidence on May 22, 2002. In part, the director requested
evidence of a qualifying relationship between the foreign and United States companies, and evidence that the
foreign corporation is currently doing business.
In a response received on or about June 22, 2002, the petitioner provided the following statement from the
beneficiary:
This business is a family owned business that belongs to us, us meaning 1 along with my six
brothers in wich [sic] we are all diferent [sic] sized share holders of our businesses.
My brother , and 1 are the only two equal shareholders of our business in
Torreon Coahila [Mexico] of wich [sic] I provided picture and official documents of.
Whowever [sic], this business is under my wife's name but my brother and 1 both take trips
down there to check on the business. Sometimes we go together and sometimes we alternate
turns. We also have a General Manager for both of us to check up with incase we're not able
to go.
The businesses that are located in Cd. Juarez, Chiuaha [sic], [Mexico] belong to my other
brothers. In this same city we hold weekly meetings in wich [sic] all of us get together and
talk about matters that concern all of our businesses (Torreon Mex, Cd. Juarez, Nuevo Laredo
Tamps, Laredo Tx and £1 Paso, Tx.) We have these weekly meetings to look at any matters
situations or goals any of our businesses might have in mind or simply have to meet.
The petitioner submitted copies of IRS Forms 1065, Return of Partnership Income, for
_, for the 2000 and 2001 years. The Forms 1065 indicate that the U.S. company is a limited partnership
SRC 02 173 52202
Page 5
with five partners, started on October 1, 1997. The Schedules K-1, Partner's Share of Income, Credits,
Deductions, etc." indicate ownership of the company as follows:
44.55%
24.75%
19.80%
9.90/0
1%
The petitioner also submitted a copy of the 2001 Form 1065 with Schedules K-l for Montaco, LLC, which
indicates the following ownership structure:_ (45%); _ (25%); _(20 % ) ;
and 100%).
In addition, the petitioner submitted numerous documents that appear to have been provided as evidence that
the foreign entity continues to do business in Mexico. All of the documents are in the name of'
" Because the petitioner failed to submit certified translations of the documents, the AAO
cannot determine whether the evidence supports the petitioner's claims. See 8 C.P.R. § 103.2(b)(3).
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding.
The director denied the petition on June 28, 2002, concluding that the petitioner had failed to establish that
there is a qualifying relationship between the U.S. and foreign entities. The director noted that the petitioner's
response to the request for evidence indicated that the ownership of the U.S. company is different from that of
the foreign entity. However, the director found insufficient documentary evidence to clearly show the
ownership of the U.S. business, and noted that the regulations require that the petitioner establish the
ownership of both companies in order to establish the qualifying relationship.
On appeal, the petitioner submits the following statement on Form I-290B, Notice of Appeal:
I am submitting additional evidence to show the qualifying relationship between the foreing
[sic] and United States companies. Our response to a previous inquiry did not clearly state the
ownership of the companies, which we hope we have have [sic] done with the attached
evidence.
In an accompanying letter dated July 13, 2002, the petitioner emphasizes that "EI Taco Tote" is a registered
trademark in the United States and Mexico, but notes that the individual businesses owned by the beneficiary
and his brothers "are all under different names in both the U.S. Government and the Mexican Government."
In support of the appeal, the petitioner submits:
• ~ificate of registration for the u.s. Patent and Trademark Office for the " _
_ ' service mark;
• A copy of the company regulations for a Texas limited liability
company established May 5, 2000, which indicates, at Exhibit B, ownership as follows:
SRC 02 173 52202
Page 6
(10%) an(500/0)
(10%);
A membe_rumber four for issuing a 10% ownership
interest to_ on May 5, 2000;
A copy of the limited partnership agreement of_, dated May 30, 2002, which
indicates at article 2.8 that is an "amended and restated Partnership Agreement from
May 15, 2000, which is superseded in its entirety." The partnership agreement
identifies the same ownership structure outlined in the company's Forms 1065,
Schedule K, referenced above, and indicates that is the general partner.
A Spanish-language document identified as "Le al documentation of our business in
Cd. Juarez, [Mexico], being registered as The document
appears to reference a company called '
registered in Mexico in February 1991.
•
•
•
Upon review, the petitioner has not established that there is a qualifying relationship between the petitioner
and the beneficiary's foreign employer. 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 "contro1."
Matter ofSiemens Medical Systems, Inc. 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 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 ofChurch Scientology International, 19 I&N Dec. at 595.
Preliminarily, the AAO notes that the director properly denied the petition based on the petitioner's failure to
submit the documentary evidence to establish a qualifying relationship in response to the director's request.
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 filed. See 8 C.F.R. §§ 103.2(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).
The petitioner has submitted confusing information regarding the name of the petitioning company and its
date of establishment. The petitioner initially described itself as a Texas limited liability company established
in August 1994, and represented its registered name as ' At the same time, the
petitioner submitted corporate tax returns for a limited partnership, ' ," which
indicate that this company commenced operations in October 1997. On appeal, the petitioner submitted a May
15,2002 partnership agreement for_ which references an earlier agreement made on May 15,2000. It
is unclear how this company relates to the Texas limited liability company established in 1994. Finally, the
petitioner has introduced evidence on appeal related to a Texas limited liability company formed in May
2000, but has not adequately explained the purpose for submitting such evidence. 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).
SRC 02 173 52202
Page 7
Notwithstanding the petitioner's inconsistent statements regarding the U.S. company, based on a review of the
submitted federal quarterly tax returns and state quarterly wage reports, appears to be the
beneficiary's U.S. employer and the AAO will focus on the ownership of this company to determine whether
the petitioner has established a qualifying relationship with the foreign entity. The corporate tax returns and
partnership agreement for this company suggest that it was owned by four individuals and one company at the
date of filing, with no individual shareholder holding a majority interest in the company.
With respect to the foreign entity, the petitioner has submitted conflicting evidence regarding the company's
name and ownership structure. In response to the director's request for evidence, the petitioner stated that the
foreign entity that employed the beneficiary is owned in equal part by the beneficiary and his brother, Jorge
Heras. At the same time, the petitioner stated that the business is registered under the beneficiary's spouse's
name. As noted above, the petitioner did not submit probative evidence of the ownership of this business, as
the documents submitted were not translated. See 8 C.F.R. § 103.2(b)(3).
On appeal, the petitioner submits evidence to establish the ownership of "
•••J" which does not appear to be the same foreign business referenced in the petitioner's response to the
request for evidence. Again, because the petitioner failed to submit certified translations of the documents, the
AAO cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. § 103.2(b)(3).
Accordingly, the evidence is not probative and need not be accorded any weight in this proceeding.
Nevertheless, although the petitioner stated that the beneficiary and his brother equally owned the foreign
_ the beneficiary, the beneficiary is not identified as a shareholder of
_IAgain, 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. at 591-92. Doubt cast on any aspect of the petitioner's proof may undermine the reliability and
sufficiency of the remaining evidence offered in support of the visa petition. Id. at 591. The record does not
clearly identify the name and ownership of the entity that employed the beneficiary prior to his transfer to the
United States.
While it appears there may be some common ownership and control between the United States and foreign
entities, the petitioner has not established that one individual or parent company owns a majority interest in
both companies, or that the same group of individuals owns and controls both companies, with each individual
owning and controlling approximately the same share or proportion of each entity. See 8 C.F.R..:..L
214.2(l)(l)(ii)(K). The fact that the owners of the various U.S. and Mexican companies operating under the_
name are members of the same family is insufficient to establish an affiliate relationship between the
companies for the purpose of this visa classification. Rather, the critical elements of ownership and control must
be considered. Matter of Siemens Medical Systems, Inc. 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 18
I&N Dec. 289 (Comm. 1982);
Based on the incomplete and inconsistent documentation in the record, the petitioner has not demonstrated that
the petitioner and the beneficiary's foreign employer have a qualifying relationship. For this reason, the appeal
will be dismissed.
SRC 02 173 52202
Page 8
Beyond the decision of the director, the petitioner has submitted insufficient evidence to establish that the
beneficiary would be employed by the petitioner in a primarily managerial or executive capacity under the
extended petition. The petitioner initially indicated that the beneficiary, as general manager, is responsible for
implementing production processes, directing all departments, developing and coordinating the franchises and
each of their assistant managers, recruiting assistant managers and franchise managers, scheduling,
performing daily income and financial responsibilities, and being responsible for the oversight of assistant
managers and shift managers for all existing and future locations and operations in £1 Paso, Texas. The
petitioner indicated that the beneficiary would supervise 35 employees. These duties suggested that the
beneficiary may serve in a managerial capacity with responsibility for managing supervisory employees who,
in tum, would be responsible for oversight of the lower-level workers operating the petitioner's restaurants.
However, when the director requested that the petitioner clarify how the beneficiary will serve in a managerial
capacity, the beneficiary stated that his critical responsibilities include supervising bus boys, cashiers, a
butcher, "tortilleras," and kitchen staff. The initial description of the beneficiary's duties suggests that he
oversees the operations of several restaurants, while the beneficiary's later statement suggests that he is
primarily involved in the first-line supervision of the non-professional workers of a single restaurant, duties
which are not considered to be managerial in nature. A managerial or executive employee must have
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the
supervised employees are professionals. See Matter of Church Scientology International, 19 I&N Dec. 593,
604 (Comm. 1988). Based on this conflicting information, the AAO cannot determine the beneficiary's actual
duties or level of authority within the company. Again, 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 of Ho, 19 I&N Dec. at 591-92. For this additional reason, the petition will not be
approved.
Finally, the AAO notes that the instant petition is a request for an extension of the beneficiary's previously
approved L-IA status. The prior approval of an L-IA petition does not preclude U.S. Citizenship and
Immigration Services (USCIS) from denying an extension of the original visa based on reassessment of
petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir.
2004). It must be emphasized that that each petition filing is a separate proceeding with a separate record.
See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, USeIS is limited to the
information contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii).
Moreover, if the previous nonimmigrant petition was approved based on the same unsupported and
inconsistent assertions that are contained in the current record, the AAO finds that the director was justified in
departing from the previous approvals by denying the present extension petition. 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 International, 19 I&N Dec.
at 597. It would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding
precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6 th Cir. 1987), cert. denied, 485 U.S. 1008
(1988).
SRC 02 173 52202
Page 9
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decision. 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.
ORDER: The appeal is dismissed.