dismissed L-1A Case: Furniture Manufacturing

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: SRC 03 173 00176 Office: TEXAS SERVICE CENTER Date: JUN C 9 2005 
IN RE: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1101(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. 
~obert P. Wiemann, ~irecior 
f Administrative Appeals Office 
SRC 03 173 00176 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Texas Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated in May of 
2002 and claims to be a manufacturer and seller of specialist furniture. The petitioner claims to be a 
subsidiary of Moon Co UK Limited, located in London, UK. The petitioner seeks to employ the beneficiary 
temporarily in the United States as manager of its new office for a period of three years, at a yearly salary of 
$100,000.00. The director determined that the petitioner had failed to submit sufficient evidence to establish 
that: (1) a qualifying relationship exists between the U.S. and foreign entities; and (2) the foreign entity has 
been doing business. 
On appeal, the petitioner asserts that sufficient evidence has been submitted to establish the existence of a 
qualifying relationship between the U.S. and foreign entities, and that the foreign entity has been doing 
business. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer, or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 9 214.2(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 with the three years preceding the filing of the 
petition. 
SRC 03 173 00176 
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(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 himther to perform the intended 
serves in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 9 214.2(1)(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 in the United States, the 
petitioner shall submit evidence that: 
(A) Sufficient physical 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 information regarding: 
(1) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial 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 first issue in this proceeding is whether a qualifying relationship exists between the U.S. and foreign 
entities. 
The regulations at 8 C.F.R. 5 214.2(1)(l)(ii)(G) state: 
Qualifying organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(I) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (I)(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 
SRC 03 173 00176 
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(3) Otherwise meets the requirements of section 101(a)(15)(L) of the 
Act. 
The regulations at 8 C.F.R. $3 214.2(1)(l)(ii) define, in pertinent part, "parent," "branch," "subsidiary," and 
"affiliate" as: 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operation division or office of the same organization housed in a 
different location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) Afiliate means 
(1) One of two subsidiaries both of which are owned and controlled by the same parent 
or individual, or 
(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 regulations at 8 C.F.R. 5 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods andor 
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 petitioner claims to be a subsidiary of Moon Co UK Limited. The petitioner claimed that Woodhouse 
NL LLC is 50 percent owned b 25 percent owned by 
percent by Moon Co UK Limit ed that the 
States to manage its Huisraad project. The petitioner submitted copies of the U.S. entity's certificate of 
siness plan for -nancial statements covering a period of July 1, 
2002, two stock certificates, and an operating agreement. 
The director determined that insufficient evidence had been submitted, and subsequently made a request for 
evidence, specifically stating in part: 
Please submit evidence of the ownership of Moon Co UK Limited. Please submit copies of 
stock certificates, stock ledgers or other documentary evidence that clearly shows ownership 
and the percent owned by each entity. 
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U.S. Company 
Please submit a copy of the business license and occupancy permit. 
Please submit a copy of the corporate tax return for 2002. 
Please submit evidence of the funding or capitalization of the U.S. company. Submit copies 
of wire transfers, canceled checks deposited to the corporate account or a letter signed by a 
bank officer stating the amount and source of the funding. Other documentary evidence may 
also be submitted. 
Foreign Company 
... 
Please submit a copy of the current business license. 
Please submit the corporate tax return for Moon Co. UK Ltd. for 2002. 
Please submit evidence the company is conducting business for April, May and June 2003. 
Submit five documents for each month. 
The stock distribution for the U.S. and foreign entities is as follows: 
U.S. ENTITY-WOODHOUSE NL, LLC FOREIGN ENTITY -MOON CO. UK LTD 
Shareholders % of Shares Shareholders % of Shares 
Habufa Maeubelen B.V. 
Jeremy Josephson 
Moon Co, UK 
Marcus Johnson 52% 
Matteas Johnson 12% 
Joshua Johnson 12% 
Gabiel Johnson 12% 
Rebecca Johnson 12% 
In response to the director's request for additional evidence, the petitioner resubmitted a copy of the U.S. 
entity's Certification of Formation and financial statement covering the period from July 1, 2002, through 
December 31, 2002. The petitioner also submitted copies of the foreign entity's company registration, stock 
certificates number two through six, IRS Form 1-9, Employment Eligibility Verifications, invoices, purchase 
orders, utility bills, and bank statements covering the period of April, May, and June of 2003. 
The director denied the petition determining that the petitioner had failed to submit sufficient evidence to 
establish the existence of a subsidiary relationship between the U.S. and foreign entities. The director stated 
that the petitioner had failed to show that the foreign company owns more than half of the U.S. entity or that 
the foreign company has control over the U.S. entity. 
On appeal, the petitioner's representative disagrees with the director's decision and asserts that the foreign 
entity has effective and overall control of the U.S. entity. The petitioner submits a Participation and Proxy 
SRC 03 173 00176 
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Agreement, a letter of confirmation from CPA Moore Stephens, a group organizational chart, and an affidavit 
of support. 
The petitioner's representative's assertions are not persuasive. The purpose of the L-1 visa category is to 
facilitate key personnel between companies in the United States and their associated firms abroad. All L-1 
Intracompany Transferee petitioners must initially establish that a qualifying relationship exists between the 
U.S. and foreign entities. See Section IOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. !j 1 lOl(a)(15)(L); 8 C.F.R. !j 214.2(1)(l)(ii); 8 C.F.R. 3 214.2(1)(3)(i); and 8 C.F.R. 5 214.2(1)(l)(ii)(G). 
The petitioner has not submitted sufficient evidence to establish that a qualifying relationship exists between 
the U.S. and foreign entities. The regulations and case law confirm that ownership and control are the factors 
that must be examined in determining whether a qualifying relationship exists between U.S. and foreign 
entities for purposes of a nonimmigrant visa petition. Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362 (Cornm. 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornm. 1982); see also Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Cornm. 1988) (in immigrant visa proceedings). 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, supra. 
Evidence of record fails to demonstrate that the U.S. entity owns, directly or indirectly, more than half of the 
foreign entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; 
or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. In this matter, the 
petitioner submitted as evidence of stock ownership stock certificate number three, dated October 1, 2002, 
which stated that Moon Co. UK Ltd owned 25 percent of the U.S. entity's stock. 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., supra. Without full disclosure of all relevant documents, CIS is 
unable to determine the elements of ownership and control. 
Although the petitioner had an opportunity to submit evidence of management and control over the U.S. 
entity prior to the director's denial, it elected not to do so. On appeal the petitioner submitted a Participation 
and Proxy Agreement, which does not name the petitioner, is undated, and does not give Marcus Johnson 
ownership and control of the petitioner. The proxy agreement is for the formation of a U.S. based company 
known as Huisraad (Venture), not Woodhouse NL, LLC. The petitioner must establish eligibility at the time 
of filing the nonimmigrant visa petition. 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 8 C.F.R. $5 103.2(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. 5 103.2(b)(14). 
SRC 03 173 00176 
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Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need 
not and does not consider the sufficiency of the evidence submitted on appeal. 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. Cornm. 1978). 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. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Even if the AAO were to consider the proxy agreement submitted on appeal, there has been no evidence 
presented in the record that demonstrates management and control over the U.S. entity by the foreign entity 
sufficient to establish a qualifying relationship. There is no evidence to show who or what- 
is and to what extent it granted ontrol over its voting shares. In order to 
establish "de facto" control of both entities by must provide agreements relating 
to the control of a majority of the shares' voting rights through proxy agreements. Matter of Hughes, supra. 
A proxy agreement is a legal contract that allows one individual to act as a substitute and vote the shares of 
another shareholder. See Black's Law Dictionary 1241 (7" Ed. 1999). 
The business documents presented by the petitioner to qualify the U.S. entity's operations are insufficient to 
establish that the foreign entity maintains management, ownership, or control over it. For example, neither 
the company's Certification of Incorporation, tax documents, payroll records, financial statements, bank 
statements or other company business documents demonstrate management and control over the U.S. entity - 
by the foreign co as failed to produce meeting minutes or a stock certificate 
demonstrating tha owns any shares of stock in the U.S. entity. Documents 
submitted to reflect the business status of the U.S. entity do not reflect management and control by the foreign - 
entity or a legal representative. 
Likewise, the petitioner has failed to establish that there is an affiliate relationship between the U.S. and foreign 
entities, as the record does not show that both entities are owned and controlled by the same group of individuals, 
each owning and controlling approximately the same share or proportion of each entity. The record demonstrates 
that three individuals own unequal shares of stock in the U.S. entity, and that six individuals own unequal shares 
of stock in the foreign entity. In order to qualify as an affiliate, there must be a showing of commonality in the 
ownership and control of the U.S. and foreign entities. In the instant matter no votin proxies or other 
agreements had been made a part of the record demonstrating that 
C 
ho has majority 
ownership and control of the foreign entity, had any ownership or con o o e petitioning entity when the 
petition was filed. 
Upon review of the entire record, the petitioner has not established that a qualifying relationship exists 
between the U.S. and foreign entities. For this reason, the petition may not be approved. 
The second issue in this proceeding is whether the petitioner has submitted sufficient evidence to show that 
the foreign entity is doing business. 
The director determined that insufficient evidence had been submitted to establish that the foreign entity was 
doing business. She subsequently requested that the petitioner submit a current business license, the 
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corporate tax return for Moon Co. UK Ltd. for 2002, and evidence that the foreign company is conducting 
business for April, May, and June of 2003. 
In response to the director's request for evidence on this subject, the petitioner submitted copies of five 
invoices for goods purchased, several copies of invoices that were not legible, and a financial statement. 
The director denied the petition after determining that the invoices submitted were not legible and that there 
had been no corporate tax records submitted. The director also concluded the invoices for purchases did not 
clearly support a finding that the foreign entity was continuously and systematically engaged in business at 
the time the petition was filed. 
On appeal, the petitioner's representative disagrees with the director's decision and asserts that the foreign 
entity is continually and systematically engaged in the provision of goods and services. The petitioner's 
representative concludes by stating: "[wle understand that invoices alone do not demonstrate the foreign 
company is continuously and systematically engaged in business at the time the petition was filed. Therefore, 
we are submitting copies of purchase orders and credit notes, as evidence to support this." As evidence on 
appeal, the petitioner submitted copies of the foreign entity's corporate tax return for 2002, original invoices, 
and copies of purchase orders and credit notes. 
On reviewing the petition and the evidence, the petitioner has established that the foreign entity is engaged in 
the regular, systematic or continuous provision of goods and/or services. Therefore, the director's decision 
with respect to the issue of the foreign entity doing business will be withdrawn. 
Although not explicitly addressed in the decision, the record contains insufficient documentation to persuade 
the AAO that the beneficiary has been and will be employed in a managerial or executive capacity as defined 
at section 101(a)(44) of the Act, 8 U.S.C. $ 1101(a)(44). The petitioner described the beneficiary's past 
duties as "manager, shareholder oversee and manage operations in the UK, overall responsibility for business 
development and marketing." In response to the director's request for evidence on this subject, the petitioner 
described the beneficiary's proposed duties as being responsible for devising strategies and formulating 
policies, management of the Huisraad project, decision making, the implementation of a business plan, and 
building potential client relationships. The descriptions are too vague to establish that the beneficiary has 
been and will be employed primarily in a managerial or executive capacity. There has been insufficient 
evidence submitted to demonstrate that the beneficiary has been or will be relieved from performing non- 
qualifying duties by managerial, professional, or supervisory personnel. There is nothing in the record to 
demonstrate that the beneficiary has been or will be responsible for managing or directing the organization, a 
function, or division of the U.S. or foreign entity. Furthennore, there has been insufficient evidence 
submitted to demonstrate that the U.S. entity would be able to support a managerial or executive position 
within one year of operation. For these additional reasons, the petition may not be approved. 
Beyond the decision of the director, a related issue is whether the petitioner has established that it has secured 
sufficient physical premises to house the new office. See 8 C.F.R. 5 214.2(1)(3)(v)(A). In response to the 
director's request for evidence on this subject, the petitioner submitted a copy of a lease agreement entered 
into by Shopping Center Associates and Huisraad, LLC. There has been no evidence submitted to 
demonstrate that the U.S. entity, Woodhouse NL LLC, has entered into any form of commercial lease 
agreement to house its office. In addition, the petitioner has not descrikd its anticipated space or size 
requirements. Based on the insufficiency of the evidence, it cannot be concluded that the petitioner has 
secured sufficient space to house the U.S. entity. For this additional reason, the petition may not be approved. 
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In visa petition proceedings, the burden of proving eligibility for the benefit sought rests solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.