dismissed L-1A Case: Freight Forwarding

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PUBUCCOP'i
U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rm. A3000
Washington, DC 20529
u.S.Citizenshi p
and Immigration
Services
File: SRC 06 035 51773 Office: TEXAS SERVICE CENTER Date:
0" "'yoO 12001
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)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decisi.on 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.
~
o ~~nn, Chief~
Administrative Appeals Office
www.liscis.gov
SRC 06 035 51773
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 appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as its president as an L-IA
nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.c. § 1101(a)(l5)(L). The petitioner is a corporation organized in the State of Texas that
claims to be a freight forwarding agency. I It claims that it is the subsidiary of ••••••••••••
•••• located in San Salvador, El Salvador. The director denied the petition concluding that (l) the
foreign entity was not doing business as required by the regulations; (2) the petitioner did not establish that
the beneficiary will be employed in the United States in a primarily managerial or executive capacity; or (3)
the beneficiary did not have one year of continuous full-time employment with the foreign entity within the
three years immediately preceding the filing of the petition.
The petitioner subsequently filed an appeal of the director's denial. The director declined to treat the appeal
as a motion and forwarded the appeal to the AAO for review. On appeal, counsel contends that the denial
was arbitrary and capricious and submits a brief and additional evidence in support of this position.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized '1qlowledge 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)(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 prece~ing the filing of
the petition.
I It should be noted that, according to the Texas Comptroller of Public Accounts, the petitioner is not
. currently in good standing in Texas due to its failure to satisfy all state tax requirements. Therefore,
regardless of whether the petitioner's tax issues inTexas can be easily remedied or not, it raises the critical
issue of the company's continued existence as a legal entity in the United States.
SRC 06 035 51773
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 him/her 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.
The first issue in this matter is whether the foreign entity has been doing business as required by the
regulations. The regulation at 8 C.F.R. §214.2(l)(l)(ii)(H) defines the term "doing business" as "the regular,
systematic, and continuous provision of goods and/or services by a qualifying organization and does not include
the mere presence of an agent or office of the qualifying organization in the United States and abroad."
The petition in this matter was filed on November 14, 2005. The petitioner submitted copies of the foreign
entity's general balance sheets for the years 2002,2003, and 2004, but omitted any additional evidence pertaining
to 2005. Consequently, the director issued a request for evidence on November 28,2005, requesting evidence to
show the viability of the foreign entity such as current financial records, tax records, employee rosters, annual. .
reports, evidence of business currently being conducted by the entity such as invoices, bills of sale, and product
brochures. In a response dated February 13,2006, the petitioner re-submitted the general balance sheet for 2004,
as well as a document entitled "Municipal Account Solvency," which affirms that the foreign entity was in good
account status as of December 31, 2004. Based on the lack of evidence pertaining to 2005, the director denied
the petition.
On appeal, the petitioner· submits several untrartslated documents, including an "Income Statement" of the
petitioner through December 31, 2005.
On review of the evidence submitted, the AAO concludes that the petitioner failed to <ietrionstratethat the
foreign entity had been doing business. The petitioner was put on notice of required evidence of the foreign
entity's business activities for 2005 and given a reasonable. opportunity to provide it for the record before the
visa petition was adjudicated. However, despite this request, the petitioner merely re-submitted the foreign
entity's 2004 balance sheet. The petitioner failed to submit the requested evidence and now submits it on
appeal. However, the AAO will not consider this evidence for any purpose. See Mader of Soriano, 19 I&N .
Qec. 764 (BIA 1988); MCftter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Additionally, even ·if it was
eligible for consideration, it should be noted that because the petitioner failed to submit a certified translation
of this document, 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 will not be accorded any weight in this
proceeding. The appeal will be adjudicated based on the record of proceeding before the director.
Based on the limited information in the record, it only appears that the foreign entity may have been doing
business until December 31, 2004. Therefore, it does not appear that the foreign entity was doing business as
required by 8 C.F.R. §§ 214)(l)(3)(i) and 214.2(l)(l)(ii)(G) at the time of filing. 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. Comm. 1978). For this reason, the petition may not. be
approved.
SRC 06 035 51773
Page 4
The second issue in this 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 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. § 1 101(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 di~cretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
In support of the petition, the petitioner submitted an undated document entitled "Support Documentation,"
. which described the beneficiary's proposed position as follows: .
The position involves the management of the business enterprise operations including:
o Managing finances;
SRC 06 035 51773
Page 5
o Planning, developing and implementing policies and procedures for company'
operations; ,
o Negotiating contracts;
o Formulating pricing policies for sale of services;
o Approvi~g the budget for the company and determining allocation of funds;
o Planning and implementing new operating procedures to improve efficiency and
reduce costs;' and
o Supervising and training of employees (includIng hiring, and firing).
The petitioner also submitted an organizational chart for the U.S. entity; which indicated that the beneficiary,
as,president, would directly oversee a general manager, The general manager, in tum, would
oversee five other employ~es, namely, Logistics Coordinator;
••••••• , Operations Supervisor; Security.
On November 28, 2005, the director requested additional evidence. Specifically, the,director requested more
specific information with regard to the position descriptions and duties of all listed employees, in addition to
the petitioner's quarterly wage reports for the previous four quarters. In response, the petitioner submitted a
letter dated February 13, 2006 and encl~sed a statement discussing the nature of the duties of each employee.
With regard to' quarterly tax returns and employment records for the petitioner, the petitioner merely
submitted a printout showing wages and withholdings dated December 31, 2005, but no employees were
listed or identified.
On February 28, 2006, the director denied the petition. The director determined that the beneficiary was not
acting in a primarily managerial or executive capacity. Specifically, the director noted that in addition to
providing a vague'description of the beneficiary's duties, the evidence of record suggested that the beneficiary
did not have a subordinate staff to relieve him from performing non-qualifying duties. This contention was
based specifically on the petitioner's failure to provide quarterly tax returns, as requested, to demonstrate the
current staff of the petitioner,
On appeal, counsel for the petitioner asserts that the director's decision reached an erroneous, subjective
conclusion in finding that six staff members working under the beneficiary would be insufficient to,relieve the
beneficiary from performing non-qualifying tasks. The AAO disagrees.
This, issue in this matter is the failure of the petitioner to provide sufficient documentation to corroborate the
claim on the organizational chart that the petitioner actually employs the six people listed therein. Despite the
director's specific request for the quarterly tax returns for the previous four quarters, the petitioner failed
and/or refused to submit such documentation. Instead, the petitioner merely submitted a spreadsheet dated
December 31, 2005, which appears to be a list of payments and withholdings. This document, however"
identifies no employee by name. 'In this matter, despite the director's. specific request for detailed
information, the petitioner failed to adhere to this request. 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 filed.. See 8C.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
SRC 06035 51773
Page 6
C.F.R. § 103.2(b)(14). In this matter, the petitioner's failure to thoroughly address the director's specific
requests has rendered it impossible to conclude that the beneficiary is functioning in a primarily managerial or
executive capacity.
In addition, the record contains the petitioner's Form 1120, U.S. Corporation Income Tax Return, for 2004.
This document indicates that it paid $35,825 in wages during 2004.. Presuming that the petitioner employed
its current staff during that time, each person, if wages were divided equally, would only make, on average,
an annual salary of$5,804. While it is impossible to determine the exact na~ure of the wages paid during this
period, it certainly indicates that the petitioner did not maintain a staff of six full-time employees during this
period.
,
Additionally, the petitioner failed to provide an adequate description of the beneficiary's proposed duties.
Instead, it merely provided a brief, generalized synopsis in the initial support documentation submitted with
the petition. 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 emp10ymerit. Fedin Bros. Co., Ltd. v. Sava,
724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990), The petit~oner must establish
that the position offered to the beneficiary when the petition was filed merits classification as a managerial or
executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). The record is
not persuasive in demonstrating that the beneficiary will be employed in a primarily managerial or executive
capacity.
Despite the contentions of the petitioner and counse.1, it' cannot be determined that the beneficiary will be
employed in a managerial or executive capacity in t~e United States merely based on a claim made in the
record. 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&NDec. 158, 165 (Comm.1998) (citing
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). In the instant matter, the
petitioner would not be employing the beneficiary in a predominantly managerial or executive position as
required by 8 C.F.R.§ 214.2(1)(3). For this reason, the petition may not be approved. In addition, 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 ofObaigbena, 19 I&N Dec..
533,534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N
Dec. 503,506 (BIA 1980).
In conclusion, the petitioner failed to submit requested evidence to corroborate the organizational hierarchy of
the petitioner. In addition, the petitioner failed to specifically articulate the nature of the beneficiary's duties.
The record does not contain ~ufficient evidence to show that the petitioner will employ the beneficiary 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 beneficiary was employed full time by the foreign entity for one
continuous year within the three years immediately preceding the filing of the petition, pursuant to 8 C.F.R. §
214.2(1)(3)(iii).
SRC 06 035 51773
Page 7
The L Supplement to the. Form 1-129 indicated that the beneficiary was employed abroad as the foreign
entity's president since 1997. Since no additional evidence was contained in the record, the director requested
evidence in the form of payroll records to establish that the beneficiary had in fact been employed
continuously for one year out of the three years immediately preceding the petition.
On February 13, 2006, the petitioner submitted s~veraldocuments. First, a document, which the petitioner
contends represents its payroll records, as translated, is entitled "Salvadorean Social Security Institute." The
document is dated October 1, 2001, with the beneficiary's name listed therein. Also submitted is an
untranslated document signed by dated July 9, 2004, which appears to be a list of
employees. As stated above, however, 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 will not be accorded any weight in this
proceeding.
Finally, five untranslated documents dated 10/15/98, 5/12101, 9/30101, 11/30101 and 10/1/02 are submitted.
Evidently these documents are intended as evidence of payroll disbursements, but again, without a certified
translation, this cannot be determined.
The director denied the petition, finding that no evidence of the beneficiary's employment with the petitioner
from November 14,2002 to November 14,2005 was submitted.
On appeal; counsel submits payroll records for the first quarter of 2006, as well as for November and
December of 2005, and claims that this evidence, coupled with the fact that the beneficiary is the petitioner's
president, should serve as adequate evidence of the petitioner's employment of the beneficiary during the
required period. The AAO disagrees.
The petitioner must show that the beneficiary was employed continuously, in a full-time position, for one year
during the period from November 14,2002 to November 14,2005. Simply stated, the record does not contain
credible evidence, such as payroll records or other documentation, showing that the beneficiary was a
legitimate employee during this time. The petitioner was afforded the opportunity to demonstrate this in the
request forevidence, yet no corroborating documentation was submitted. Though recent payroll records were
submitted on appeal, these documents are irrelevant, because they demonstrate employment outsi~e of the.
period in question.
Merely claiming that the beneficiary met this requirement because he was the president of the foreign entity is
insufficient for purposes of meeting the burden of proof in this matter. As previously stated, going on record
without supporting documentary evidence is not sufficient for purposes· of meeting the burden of proof in
these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. For this additional reason, the petition may not be
. approved.
Additionally, the petition also may not be approved because there is insufficient evidence of a qualifying
relationship between the petitioner and the foreign entity. The petitioner claims that it is the affiliate of the
foreign entity by way of the beneficiary's majority ownership of the U.S. entity and his 100% ownership of
the foreign entity. The record, however, contains conflicting evidence regarding the petitioner's ownership.
..............,....
SRC 06 035 51773
Page 8
On the Form 1-129, and on other documents throughout the record, the petitioner claims that the beneficiary
owns 57.14% of the U.S. entity. On a bill of sale dated August 28, 2003, it appears that the beneficiary
acquired all of his rights in the petitioner's business from I for $300. Since the Articles of
Incorporation indicate that shares cost $10 each, this would indicate that the beneficiary owned 30 shares in
the petitioner. However, stock certificate number 2, issued to the beneficiary the same week as the bill of
sale, indicates that the beneficiary owns 100 shares in the petitioner. 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. 582, 591-92 (BIA 1988). No stock ledger or
other stock certificates are submitted to clarify the exact nature and percentage of the beneficiary's ownership
interest.
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 ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter.ofHughes, 18 I&N Dec. 289
(Comm. 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.
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 cotppany 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., supra. Without full disclosure of all
relevant documents, Citizenship and Immigration Services (CIS) is unable to determine the elements of
ownership and control.
The omission of this evidence from the record makes it impossible to conclude that the two entities maintain a
qualifying relationship.· For this additional reason, the petition may not be approved.
Finally, the record suggests that the beneficiary is the sole owner of the foreign entity and the majority owner
of the petitioner. If this fact is established, it remains to be determined that the beneficiary's services are for a
temporary period. The regulation at 8 C.F.R. § 214.2(l)(3)(vii) states that if the beneficiary is an owner or
major stockholder of the company, the p~tition must be accompanied by evidence that the beneficiary's
services are to be used for a temporary perIod and that the beneficiary will be· transferred to an assignment
abroad upon the completion of the temporary services in the United States. In the absence of persuasive
evidence, it cannot be concluded that the beneficiary's services are to be used temporarily or that he will be
transferred to an assignment abroad upon completion of his services in the United States.
SRC 06 035 51773
Page 9
.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. Stipp. 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 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.
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.
ORDER: The appeal is dismissed.