dismissed L-1A Case: Furniture Business

~-deleted to
preventclearlyunwarranted
invasionofpenoaaI privacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm.A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: WAC 03 119 52636 Office: CALIFORNIA SERVICE CENTER Date: SEP 0 6 l007
IN RE: 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 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~bert~nn~f
Administrative Appeals Office
www.uscis.gov
WAC 03 11952636
Page 2
DISCUSSION: The Director, California 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 in the position of president
to open a new office in the United States 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)(15)(L). The
petitioner, a corporation organized under the laws of the State of Arizona, claims to be in the furniture
business, and alleges that it has a qualifying relationship with Siff Corporation of Pakistan. 1
The director denied the petition concluding that the petitioner failed to establish that the beneficiary had been
employed abroad in a primarily executive or managerial 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 to the petitioner asserts that the beneficiary
had been employed abroad in an executive capacity.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 10I(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 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 (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.
lIt should be noted that, according to the corporate records of the State of Arizona, the petitioner was
dissolved on August 8, 2005 and has not applied for reinstatement. Therefore, as the company can no longer
be considered a legal entity in the United States, this would call into question its continued eligibility for the
benefit sought if the appeal were not being dismissed for those reasons set forth herein.
WAC 03 11952636
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.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficientphysical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position as
defined in paragraphs (l)(l)(ii)(B) or (C) of this section, supported by
informationregarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its fmancial goals;
(2) The size of the United States investment and the fmancial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
The primary issue in this proceeding is whether the beneficiary had been employed abroad in a primarily
managerial or executive position.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § ll01(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;
WAC 03 11952636
Page 4
(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. § I 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 discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary had been primarily engaged in
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section
101(a)(44)(B) of the Act. However, on appeal, counsel to the petitioner asserts only that the beneficiary had
been employed abroad in an executive capacity. A beneficiary may not claim to be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. Given the lack of clarity, the
AAO will assume that the petitioner is asserting that the beneficiary had been employed abroad either as an
executive or a manager and will consider both classifications.
The petitioner described the beneficiary's job duties abroad in the Form 1-129 as follows: "[The beneficiary]
has been partner of the company and supervising the overall operation since the inception of the company in
1989."
On April 4, 2003, the director requested additional evidence. The director requested, inter alia, foreign
payroll records and an organizational chart for the foreign organization which includes job descriptions for
the employees who were subordinate to the beneficiary.
In response, the petitioner submitted payroll records indicating that, in June 2002, the foreign organization
employed six people including the beneficiary. The petitioner also submitted an organization chart for the
foreign employer which identifies the beneficiary as "executive" and shows him reporting to the "chief
WAC 03 11952636
Page 5
executive." The chart also shows the beneficiary supervising a sales manager, an import manager, and an
accounts manager. The sales manager and the import manager are, in turn, each portrayed as supervising one
employee. The sales manager's duties were described in an attached job description as follows:
Duties are to develop the plans of a present and future sales, and review company goals. He
also observes all activities dealing with outside sales. Negotiates with all distributors and key
accounts within the company. Sets sales tactics and performance plans. Monitors and tracks
sales as well as profitability throughout [the foreign organization].
The import manager's duties were described in an attached job description as follows:
Handles import and export activities. Keeps accurate and clean records in log book.
Communicates with customs for approval/clearance. Works with other manager as well as
other departments in order to monitor the status of all imports and exports.
Finally, the petitioner submitted a letter from the foreign organization dated July 16, 2002 in which the
beneficiary's overseas job duties were further described as follows:
[The beneficiary's] duties and responsibilities are to check department's performance and
efficiency [o]f the department and he is also conduct [sic] performance appraisal after [e]very
three months.
The foreign organization also indicated in the July 12, 2002 letter that it employs 12 people. However, the
petitioner does not explain why the foreign employer's payroll records for this same timeframe indicate that it
actually employed six people.
On May 30, 2003, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary had been employed abroad in a primarily executive or managerial capacity.
On appeal, counsel to the petitioner asserts that the beneficiary had been employed abroad in an executive
capacity.
Upon review, the petitioner'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. §§ 2l4.2(l)(3)(ii) and (iv). The petitioner's description
of the job duties must clearly describe the duties performed by the beneficiary and indicate whether such
duties were either in an executive or managerial capacity. [d. As explained above, a petitioner cannot claim
that some of the duties of the position entailed executive responsibilities, while other duties were managerial.
A beneficiary may not claim to have been employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
WAC 03 11952636
Page 6
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary acted in
a "managerial" capacity . In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary did on a day-to-day basis.
For example, the petitioner states that the beneficiary supervised "the overall operation" of the foreign
business, checked the "department's performance and efficiency," and evaluated employees. The petitioner
provided no other details regarding the beneficiary's job duties abroad. The fact that the petitioner has given
the beneficiary a managerial title and has prepared a vague job description does not establish that the
beneficiary was actually performing managerial 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. Sava, 724 F.
Supp. 1103 (E.D.N.Y. 1989), afj'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm, 1972). Absent a more detailed
explanation of the beneficiary's duties abroad, it cannot be confirmed whether he was employed "primarily" in
an executive or managerial capacity or whether he "primarily" performed non-qualifying tasks. An employee
who "primarily " performs the tasks necessary to produce a product or to provide services is not considered to
be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the
Act (requiring that one "primarily " perform the enumerated managerial or executive duties); see also Matter
of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the organizational chart, payroll reports, and job descriptions for the subordinate workers, the
beneficiary appears to have supervised a staff of five employees. However , the petitioner has not established
that any of the employees were primarily engaged in performing supervisory or managerial duties . While the
petitioner described the sales manager and the import manager as "managers" and each as supervising a
subordinate employee, the job duties ascribed to these workers do not establish that they were employed
primarily in a managerial or supervisory capacity. To the contrary, it appears from the job descriptions that
these employees were performing the tasks necessary to produce a product or to provide a service. In view of
the above, the beneficiary would appear to have been primarily a first-line supervisor of non-professional
employees, the provider of actual services, or a combination of both. A managerial 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. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology
International, 19 I&N Dec. at 604. Moreover, as the petitioner did not establish the skill level or educational
background required to perform the duties of the subordinate positions, the petitioner has not established that
the beneficiary managed professional employees.' Therefore, the petitioner has not established that the
beneficiary was employed primarily in a managerial capacity.'
2In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S .C. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary
schools, colleges, academies, or seminaries." ·The term "profession" contemplates knowledge or learning, not
WAC 03 11952636
Page 7
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary was acting primarily in an executive capacity. The job description provided for
the beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis.
Moreover, as explained above, the beneficiary appears to have been primarily employed as a first-line
supervisor. Finally, the petitioner did not disclose the duties of the beneficiary's supervisory, the "chief
executive." Without full disclosure of this employee's job duties, it cannot be confirmed that the beneficiary
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
3While the petitioner has not clearly argued that the beneficiary managed an essential function of the
organization, the record nevertheless would not support this position even if taken. The term "function
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff
but instead is primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties were managerial functions, if any,
and what proportion were non-managerial. Also, as explained above, the record establishes that the
beneficiary was primarily a first-line manager of non-professional employees and/or was engaged in
performing non-qualifying tasks. Absent a clear and credible breakdown of the time spent by the beneficiary
performing his duties, the AAO cannot determine what proportion of his duties were managerial, nor can it
deduce whether the beneficiary was primarily performing the duties of a function manager. See lKEA US,
Inc. v. us. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
WAC 03 11952636
Page 8
had the necessary authority to direct the organization to be classified as an executive. Therefore, the
petitioner has not established that the beneficiary was employed primarily in an executive capacity.
It is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the foreign
organization in conjunction with other relevant factors, such as a employer's small personnel size, the absence
of employees who would perform the non-managerial or non-executive operations of the company, or a "shell
company" that does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v.
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes
discrepancies in the record and fails to believe that the facts asserted are true. Id. In this matter, the record
contains inconsistencies regarding the beneficiary's employment abroad and the foreign organization's
staffing. For example, the foreign organization asserted that it employed 12 people. However, the
organizational chart and payroll records only account for 6 employees. The petitioner offers no explanation
for this serious inconsistency. 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). 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. at 591.
Moreover, the payroll records for the foreign organization indicate that the beneficiary had been employed in
Pakistan during the months of March, April, May, and June 2002. The petitioner also claims that the
beneficiary is still employed by the foreign organization. However, the beneficiary's Form 1-94 and the Form
1-129 indicate that the beneficiary was admitted into the United States in B-2 status on March 11, 2002, that
he rented an apartment four days later, that this was his most recent entry into the United States, and that he
was still in the United States when the instant petition was filed on March 24, 2003. In view of the above, the
petitioner's assertion that the beneficiary was employed abroad after March 2002 is simply not credible. If
CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act,
8 U.S.C. § 1154(b); see also Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir.l989); Lu-Ann Bakery Shop,
Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C.
2001).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary had been primarily
performing managerial or executive duties abroad, and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner has not established that the intended United States operation,
within one year of the approval of the petition, will support an executive or managerial position as required by 8
C.F.R. § 214.2(l)(3)(v)(C). Specifically, the petitioner failed to sufficiently describe the scope of the entity, its
fmancial goals, and that a sufficient investment had been made in the United States operation. Id.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during
WAC 03 11952636
Page 9
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See id. This evidence should demonstrate
a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from the
developmental stage to full operations, where there would be an actual need for a manager or executive who
will primarily perform qualifying duties.
As contemplated by the regulations, a comprehensive business plan should contain, at a rmmrnum, a
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec.
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefor. Most importantly, the business plan must be credible.
Id.
In support of its petition, the petitioner submitted bank statements indicating that, at the time the petition was
filed, the petitioner's bank account had a balanceof approximately $2,000.00 and that this money was transferred
from the beneficiary's personal account to the petitioner's account on January 24, 2003. While the petitioner also
submitted evidence that additional funds were transferred into the petitioner's bank account after the filingof the
petition, these deposits are not relevant. 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 ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978). While the record is largely devoid of any evidence describing the new office's proposed start
up expenses, $2,000 would not be a sufficient investment for a retailer and wholesaler of furniture and does
not establish a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from
the developmental stage to full operations. A $2,000 investment would not even cover four months of the
petitioner's yearly rent obligation under the lease submitted as evidence that the petitioner has secured
sufficient physical premises to house the new office.
WAC 03 11952636
Page 10
Moreover, as explained above, the record is largely devoid of any description of the scope or nature of the
petitioner's proposed business operation in the United States. The petitioner did not submit a business plan or
provide any coherent projections regarding its expenses, products, competitors, or hiring plans. Furthermore,
while the petitioner described its proposed business in the Form 1-129 as "wholesale/retail furniture sales,"
counsel to the petitioner described the petitioner's proposed business in the letter dated February 14, 2003 as
the importation of chemical goods and other related commodities. Once 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 ofHo, 19 1&N Dec. at 591-92. 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. at 591.
Accordingly, the petitioner has failed to establish that the intended United States operation, within one year of
the approval of the petition, will support an executive or managerial position as required by 8 C.F.R. §
214.2(1)(3)(v)(C), and for this additional reason the petition may not be approved.
Beyond the decision of the director, the petitioner has also failed to establish that sufficient physical premises
to house the new office have been secured as required by 8 C.F.R. § 214.2(1)(3)(v)(A).
In support of its assertion that sufficient physical premises have been secured, the petitioner submitted a lease
dated March 15, 2002. This lease fails to establish that sufficient physical premises have been secured to house
the new office for three primary reasons. First, the lease expired on November 30, 2002, over three months
before the instant petition was filed. Second, the lease is a residential lease, which, according to paragraph 7, may
only be used as a dwelling. Third, the beneficiary is the tenant, not the petitioner, and paragraph 8 prohibits the
assignment or sublease of the premises absent the landlord's consent. The record is devoid of any evidence that
the landlord has consented to the assignment of this expired, residential lease to the petitioner.
Accordingly, the petitioner has failed to establish that sufficient physical premises to house the new office
have been secured as required by 8 C.F.R. § 214.2(1)(3)(v)(A), and the petition may not be approved for this
additional reason.
Beyond the decision of the director, the petitioner did not establish that it and the organization which allegedly
employed the alien overseas are qualifying organizations as required by 8 C.F.R. § 214(1)(3)(i).
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the
beneficiary's foreign employer and the proposed United States 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). A subsidiary is defined in pertinent part as a corporation "of
which a parent owns, directly or indirectly, more than half of the entity and controls the 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 ofChurch Scientology International, 19 1&N Dec. 593 (BIA 1988); see also
WAC 03 11952636
Page 11
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.
In this matter, the petitioner asserts that the foreign organization owns and controls the United States
operation. In support of this assertion, the petition submitted various documents, including stock certificates.
However, these documents contain serious inconsistencies regarding the petitioner's ownership and control.
First, the petitioner submitted the minutes from the annual meeting of the petitioner's shareholders dated
December 15, 2002. In this document, the beneficiary, and not the petitioner, is identified as the petitioner's
sole stockholder. The petitioner offers no explanation for this serious inconsistency in the record which
undermines the petitioner's assertion that it is owned and controlled by the foreign employer. Once 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 ofHo, 19 I&N Dec. at 591-92.
Second, the petitioner offered no evidence, even though specifically requested by the director in the Request
for Evidence, that the foreign entity paid for the stock allegedly issued to it in December 2002. 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, and the director
may reasonably inquire beyond the issuance of paper stock certificates into the means by which stock
ownership was acquired. As requested by the director, evidence of this nature should include documentation
of monies, property, or other consideration furnished to the entity in exchange for stock ownership. In this
matter, the record is devoid of any evidence that the foreign entity paid for the stock issued to it in December
2002. The only evidence of an investment in the United States operation is the transfer of $2,000 to the
petitioner's bank account by the beneficiary in January 2003. 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).
Accordingly, the petitioner did not establish that it and the organization which employed the alien overseas
are qualifying organizations as required by 8 C.F.R. § 214(l)(3)(i), and 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), 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).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
WAC 03 11952636
Page 12
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.