dismissed L-1A Case: Food Service

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3000 
Washington, DC 20529 
identifying data deleted to U. S. Citizenship 
prevent clearly unwarranted and Immigration 
invasion of personal privacy Services 
PUBLIC COPY I 
P-1 
File: EAC-04-219-52795 Office: VERMONT SERVICE CENTER Date: AN 0.32006 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 4 1 101 (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 firther inquiry must be made to that office. 
TH~ o ert P. Wiemann, Chief 
Administrative Appeals Office 
EAC-04-219-52795 
Page 2 
.* 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on apical. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to qualify the employment of its chief executive 
officer as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner is a corporation 
organized under the laws of the State of New Jersey and is engaged in operating a food establishment and 
catering services operation. The petitioner claims that it is the affiliate of Steel I11 and IV, located in 
Moscow, Russia. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the petitioner 
demonstrated the beneficiary would be employed in a primarily managerial position. In support of this 
assertion, the petitioner submitted a brief but no additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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. 8 214.2(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. 
(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 himher to perform the intended 
EAC-04-2 19-52795 
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services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The issue in the present matter is whether the beneficiary will be employed by the United States entity 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 if no 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 hnction 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. 8 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 or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In the initial petition, the petitioner described the beneficiary's job duties as follows: 
1. . Analysis of price of competing restaurants; 
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2. Analysis of [vlolume of [slales of each meal on menu and its share of profit; 
3. Increase effectiveness of each menu meal; 
4. Work out season menus 
5. Designing and drawing plans for the construction of a fast food window; 
6. Creation of complex lunches with various menu options at fixed prices; 
- 7. To work out unified meals at a single price for creation of transformer menu; 
8. Designing plans and building area for baking breads, rolls, and cakes on the premises; 
9. Retrofitting the dining room to build a coffee shop and vegetable and dairy bar; 
10. Hiring professionals to design a logo and rebuild the front entrance into a luxury looking 
entrance; 
11. Order and [plurchase specialized automobile with meal heating and cooling ability for 
delivery of food; 
12. To come to the best offer in sandwiches section in comparison with competing offers; 
13.8 To lead registration of permanent clients and supply them with bonus certificates; 
14. To find out of permanent clients those aged and disabled people requiring home delivery; 
15. To enter into agreements with agents and services for mass celebrations, holidays, etc.; 
16. To arrange sales of hot dogs, sandwiches and coffee for street celebrations. Purchase 
equipment for same; 
17. Joining restaurant association; 
18. Entering into contracts with tourist and bus companies for supply of hot food for passengers; 
19. Purchase and installation of complex accounting system to account volume of sales, supply 
reporting. 
20. Open web page on internet; 
21. Insure stable relationship with media; 
22. Implementing marketing ideas. 
On August, 2, 2004, the director requested additional evidence. Specifically, the director requested evidence 
that the beneficiary's services are to be for a temporary period, additional evidence that the beneficiary's 
duties would be managerial or executive in nature, a more detailed description of what the beneficiary's 
regular duties would be. 
In response, the petitioner submitted an affidavit of an unrelated third party as an "expert opinion" of the 
beneficiary's duties. 
On September 8, 2004, the director denied the petition. The director determined that the petitioner had not 
established the beneficiary would be employed in a managerial or executive nature. 
On appeal, counsel for the petitioner asserts that it demonstrated the beneficiary's duties would be managerial 
in nature. 
Upon review, counsel's assertions are not persuasive. 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. 
2142(1)(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 

EAC-04-219-52795 * 
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which rely on financial support not presently established by the record leads the AAO to conclude that the 
totality of the evidence in the record does not support that the beneficiary will be acting primarily in a 
managerial or executive status. While the AAO can accept that some executive or managerial decisions 
might be made by the beneficiary, the record does not support that the beneficiary will be primarily employed 
in such a capacity. The record as it is presently constituted does not support that the beneficiary will be 
directing the management of the organization. 
The petitioner's assertion that the director selectively "adopted" the expert opinion is a mischaracterization. 
The definitions of managerial and executive status are contained at 8 U.S.C. 9 1101(a)(44)(A) and (B) 
respectively, and have long established history and precedent having been promulgated by Citizenship and 
Immigration Services (formerly INS) under the authority of the Attorney General which was vested in him by 
congress. Asserting that an "expert" can define executive or managerial status for the purpose of this 
classification is not a true statement. The AAO may, in its discretion, use as advisory opinion statements 
submitted as expert testimony. However, where an opinion is not in accord with the law, or with other 
information contained in the record, or is in any way questionable, the AAO is not required to accept or may 
give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 791 (Comm. 1988). In this 
case the affidavit submitted makes no mention of the regulatory requirement and attempts to supplant the 
regulatory defition of managerial and executive status with its own characterization of what those terms mean 
in general business usage. As a legal opinion it is not persuasive and will not be afforded any weight in these 
proceedings. The director's statement highlighted the only relevant statement in the document, and was not in 
any way an endorsement of the "expert's" letter. 
Counsel and petitioner's characterization that there is little difference between the criteria for a new office 
petition and a petition for an existing office has no basis in fact or law and contradicts the plain meaning of 
pertinent regulations. The criteria for establishing eligibility of a new office petition are contained at 8 C.F.R. 
5 2142(1)(3)(v). The criteria for establishing eligibility for an existing office are listed above and contained 
at 8 C.F.R. 9 214.2(1)(3). In this case the record indicates that the petitioner has been conducting business 
since 1997. A "new office" is defined as an organization that has been conducting business in the United 
States for less than one year and, as such, the petitioner cannot be deemed to be a new office for purposes of 
the L-1 nonimmigrant classification. 8 C.F.R. 3 214.2(1)l)(ii)(F). In this case the record does not support that 
the petitioner can financially support a non-revenue producing executive or managerial position. Thus, the 
director's conclusion that the petitioner is not currently eligible to receive this classification is in accordance 
with the pertinent regulations and based on the record. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The petitioner indicates that it plans to hire additional managers and 
employees in the future. However, the petitioner must establish eligibility at the time of filing the 
nonirnmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). In the instant matter, the petitioner has not reached the point that it can employ the beneficiary 
in a predominantly managerial or executive position. 
EAC-04-219-52795 
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Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity, as required by 8 C.F.R. § 2 <4.2(1)(3). 
Beyond the decision of the director, the petition also may not be approved because there is insufficient 
evidence of a qualifying relationship between the petitioner and the Russian entity. The regulation and case 
law confirm that ownership and control are the factors that must be examined in determining whether a 
qualifying relationship exists between United States and foreign entities for purposes of this visa 
classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comrn. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
The petitioner claims that it is the affiliate of the foreign entity by way of the beneficiary's sole ownership of 
both companies. In support of this contention, the petitioner submits a copy of its "Charter of the Limited 
Liability Partnership Steel I11 and V," where Chapter 11, Article 8 states that for consideration of 10,000 
rubles, the beneficiary has received one share in the foreign entity, thereby encompassing 100% of the 
outstanding charter capital. With regard to the ownership of the U.S. entity, the only evidence submitted in 
support of this claim is a copy of its stock certificate number 4 issued in May 2004 (the exact date of issue is 
not noted). The certificate indicates that the beneficiary owns 1,500 shares of the petitioning 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. 362. Without full disclosure 
of all relevant documents, CIS is unable to determine the elements of ownership and control. 
In this matter, the AAO cannot conclude that a qualifying relationship exists between the parties. 
Specifically, the petitioner submits stock certificate number 4 issued to the beneficiary in 2004. There is no 
ledger in the record, thereby rendering it impossible to determine whether other shares of stock are currently 
outstanding. Since the petitioner was incorporated in 1997, and stock certificates 1,2, and 3 and unaccounted 
for, it is simply unfeasible to rely on this one share certificate as decisive evidence of the beneficiary's sole 
ownership of the petitioner. For this additional reason, the petition may not be approved. 
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), afd. 345 F.3d 683 
EAC-04-219-52795 
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(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
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, afd, 345 F.3d 683. 
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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed and the petition hereby denied.