dismissed L-1A Case: Garment Import/Trade

U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Room 3000
Washington, DC 20529
File:
INRE:
WAC 04 0485
Petitioner:
Beneficiary:
u.S.Citizenship
and Immigration
Services
Date: JUN 20 2007
)'
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)(15)(L)
ON 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.
Cf~£~ief
Administrative Appeals Office
www.uscis.gov
WAC 04 04851759
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 appeal will be dismissed.
The petitioner seeks to extend the temporary employment of the beneficiary as its manager in the United
States as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The U.S. petitioner, a corporation
organized in the State of California, claims to be engaged in the import and trade of garments, and claims to
be the subsidiary of Universal Clothing, a sole proprietorship located in Delhi, India. The beneficiary was
initially granted a one-year period of stay to open a new office in the United States, and the petitioner now
seeks to extend the beneficiary's stay for an additional two years.
The director denied the petition concluding that the petitioner did not establish that: (1) the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) a qualifying relationship
existed between the petitioner and the foreign organization.
On appeal, counsel for the petitioner asserts that the petitioner and beneficiary are in fact qualified for the
benefit sought. In support of these contentions, counsel submits a brief and additional evidence.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
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(1)(14)(ii) provides that a visa petition, which involved the
opening ofa new office, may be extended by filing a new Form 1-129, accompanied by the following:
(a) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (1)(1)(ii)(G) of this section;
WAC 04 04851759
Page 3
(b) Evidence that the United States entity has been doing business as defined III
paragraph (l)(1)(ii)(H) of this section for the previous year;
(c) A statement of the duties performed by the beneficiary for the previous year and the
duties the beneficiary will perform under the extended petition;
(d) A statement describing the staffing of the new operation, including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(e) Evidence of the financial status of the United States operation.
The first 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. § 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;
WAC 04 04851759
Page 4
(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 a letter from the foreign entity dated December 8, 2003, the following overview of the beneficiary's duties
as General Manager/Executive of the United States entity was provided:
[The beneficiary] is in charge of operations, and is continuously in the process of developing
market niche, exploring possibilities of business expansion and diversification to keep in sync
with the changing fashion trends. [The beneficiary] has attended several industry trade shows
representing the corporation. During the year, [the petitioner] has paid approximately
$311,000 in custom duties and freight charges etc.
[The beneficiary] has proved himself to be indispensable for the Company. [The beneficiary]
is authorized by the parent company to continue providing his managerial expertise and keen
business sense to [the petitioner] for another period of two years to take the corporation from
its infancy to the significant place in the business community.
The petitioner also provided copies of the petitioner's quarterly tax returns for the first three quarters of 2003.
The returns indicated that as of the date of filing, the petitioner employed four persons in addition to the
beneficiary.'
The minimal evidence provided with the petition prompted the director to issue a request for additional
evidence on December 18, 2003. In this request, the director asked the petitioner to submit evidence
demonstrating the beneficiary's managerial and/or executive capacity in the United States. Specifically, the
director requested that the petitioner provide details regarding the total number of employees on the
petitioner's payroll, including an organizational chart which showed the managerial hierarchy of the
petitioner. A more detailed description of the beneficiary's duties in the United States, as well as a payroll
summary, was also requested.
Counsel for the petitioner submitted a response dated March 4, 2004. The letter explained that the petitioner
currently employed five full-time employees. In addition, counsel stated that the petitioner employed
salesmen on a commission basis and that it hired independent contractors, or "casual labor," approximately
eight times per month to load and unload shipments. Regarding the staffing of the petitioner, counsel
explained that the beneficiary oversees three employees: a warehouse manager, a sales manager, and
] The AAO notes upon review of these records that the return for the quarter ending September 30, 2003
contains a spelling error. Upon review of the social security numbers listed on the prior returns, it appears
that despite a spelling error in the beneficiary's name, he was in fact on the paYroll during the quarter ending
September 30, 2003.
WAC 04 04851759
Page 5
bookkeeper/accountant. In tum, counsel stated that the warehouse manager oversees a full-time sales clerk,
as well as the commission-based salespersons and the casual labor.
The following list of the beneficiary's responsibilities was also submitted:
• To control the operations of marketing, sales, service, finance and strategic management of
U.S. [c] orporation[.]
• To explore the feasibility of expanding the new business venture[.]
• To integrate all business function, including defining company policies and procedures[.]
• Responsible for planning and overall direction of the [c]orporation. He will plan and develop
all aspects of the U.S. [i]nvestment and establish long term and short term goals and policies
of the [c]orporation[.]
• Research, analyze and determine the market trends and economic conditions[.]
• Negotiate substantial purchase contracts, decide on credit terms and volume discounts,
approve contracts and vendors, estimate stock requirements [.]
• Responsible for making personnel decisions, for management, sales, distribution and
professional position[.]
• Control all the financial aspects of the [c ]orporation including receiving and disbursing
funds[.]
• Approve and sign all contracts [.]
• Evaluate performance[.]
• Overseas [sic] the work of designers to develop new lines of clothing, dealing with shipping
companies, bank, etc. to open new lines and company's banking needs.
• Represent [c]ompany in trade shows.
On March 12, 2004, the director denied the petition. The director found that the evidence in the record was
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive
capacity. The director concluded that the documentary evidence submitted did not establish that the
beneficiary would function at a senior level within the organization or that the beneficiary had sufficient
subordinate staff to relieve him from performing non-qualifying duties. More specifically, the director noted
that the record suggested that three of the five employees on the payroll were part-time employees. Finally,
the director concluded that the description of the beneficiary's duties was broad and generalized and,
therefore, it appeared that the beneficiary was performing most of the key day-to-day duties himself.
On appeal, counsel for the petitioner attempts to refute the director's basis for the denial by contending that
the beneficiary is in fact functioning in a managerial capacity, and contends that the director's basis for the
denial, particularly his conclusion that three of the employees are part-time employees, is based on the
director's own conclusions and not based on the evidence in the record.
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. § 214.2(l)(3)(ii). The definitions of executive and
managerial capacity have two specific requirements. First, the petitioner must show that the beneficiary
performs the high level responsibilities that are specified in the definitions. Second, the petitioner must prove
WAC 04 048 51759
Page 6
that the beneficiary primarily performs these specified responsibilities and does not spend a majority of his or
her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th
Cir. July 30, 1991).
The description of duties provided, both in the initial letter of support and in response to the request for
evidence, simply adopt many of the key phrases used in the regulatory definitions of managerial and
executive capacity. General statements such as "overall direction of the corporation" and "evaluate
performance" do little to clarify the exact nature of the beneficiary's duties. Conclusory assertions regarding
the beneficiary's employment capacity are not sufficient. Merely repeating the language of the statute or
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103,
1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Aryr Associates, Inc. v. Meissner, 1997 WL
188942 at *5 (S.D.N.Y.). 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 does the beneficiary primarily do on
a daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co.,
Ltd. v. Sava, 724 F. Supp. at 1108.
Based on this vague description of duties, the director found that the beneficiary must be performing many of
the day-to-day operations of the business. Counsel, however, claims that this finding is erroneous and not
supported by specific evidence in the decision. Upon review, however, the AAO concurs with the director's
finding regarding this issue. In addition to the vague duties presented in the record, the list of duties also
includes such tasks as "approve and sign all contracts," "represent [c]ompany in trade shows," and negotiate
substantial purchase contracts." These tasks are not traditionally considered to be managerial or executive in
nature, and are commonly designated to sales, marketing or purchasing personnel. The petitioner's
description of the beneficiary's job duties does not establish what proportion of the beneficiary's duties is
managerial in nature, and what proportion is actually non-managerial. See Republic of Transkei v. INS, 923
F.2d 175, 177 (D.C. Cir. 1991). While counsel did provide an hourly breakdown of the beneficiary's tasks in
the March 4, 2004 letter, the breakdown of time is merely generalized. For example, stating that the
beneficiary "spends about 1 hour a day managing warehouse operations, 2 hours a day managing the import
operations, 4 hours a day managing sales operations and half and hour each per day in designing and book
keeping accounting functions," does little to clarify to what duties the beneficiary devotes most of his time.
While it can be argued that the majority of his time, namely four hours, is devoted to managing sales
operations, there is nothing in the record to clarify what type of sales operations he is engaged in. As a result,
since it is clearly stated that the beneficiary is engaged in crucial tasks of the business, the director's finding
that the beneficiary is engaged in the daily operations of the business is appropriate in this case. An employee
.who primarily performs the tasks necessary to produce a product or to provide services is not considered to be
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).
In addition, counsel refutes the director's finding that the beneficiary does not have a subordinate staff of
managers and professionals to relieve him from performing non-qualifying duties, and specifically focuses on
WAC 04 04851759
Page 7
the director's conclusion that three of the five employees are part -time personnel. The AAO w ill address each
of these issues separately.
First, although the beneficiary is not required to supervise personnel, if it is claimed that his managerial duties
involve supervising employees, the petitioner must establish that the subord inate employees are supervisory,
professional , or managerial. See § 101(a)(44)(A)(ii) of the Act.
Though requested by the director , the petitioner did not pro vide the level of education required to perform the
duties of its four other employees. While the organizational chart does include the current educational level
for all four subordinates , no employee , aside from the beneficiary, has obtained a bachelor's degree. In
addition , no information has been provided to show that the positions occupied by these employees require a
bachelor 's degree or specific education. Any 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)(l4). Thus, the petit ioner has not
established that these employees possess or require a bachelor 's degree, such that they could be classified as
professional s. Despite counsel's specific claim that the beneficiary 's subordinates are professional and
managerial employees , no independent evidence to corroborate these claims has been submitted. 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 of Obaigbena, 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). 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&N Dec. 158, 165
(Comm. 1998 ) (citing Matter of Treasure Craft of California, 14 I&N Dec . 190 (Reg. Comm. 1972)).
The only documentation addressing the subordinate employees is the organ izational chart and accompanying
quarterly tax returns. Upon review of the quarterly wages paid to all employees for the quarter ending
December 31,2003 , it appears that three of the five employees listed earned less than the State of California 's
minimum wage for 2003 ? Furthermore , although the organizational structure suggests that the warehouse
manager oversees a sales clerk and multiple sales persons and "casual" laborers , there is no documentation to
support this claim. Since the record contains no evidence of compensat ion paid to independent contractors ,
nor are there any agreements between the petitioner and sales persons to wo rk on a commission basis, it
appears that the only persons supporting the beneficiary are one full-time employee and three part-time
employees. There is no definitive evidence in the record that these employees supervise subordinate staff
members or manage a clearly defined department or function of the petitioner , such that they could be
2 The minimum wage in the State of California for 2003 was $6 .75 per hour. See U.S. Department of Labor,
"Changes in Minimum Wages in Non-Farm Employment under State Law: Selected Years 1968 to 2006 ,"
available at http://\vww.do l.gov!esa/programs /v/hd!state!stateM in\VarrclIis.htm (accessed May 15 , 2007).
Assuming that all employees were full-time employees as claimed by counsel , and based on the assumption
that a typical full-time job requires a 40-hour work week , all employees should earn at least $3 ,240 per
12-week quarter . The quarterly report for the quarter ~mber 31,2003 indicate that three persons ,
namely an~ earned only $2 ,880, $2,240 and $2,400 ,
respect ively. Absent evidence to the contrary , the d irector 's observation that three of the five employees
worked part-t ime for the petitioner is justified.
WAC 04 048 51759
Page 8
classified as managers or supervisors. The petitioner has failed to explain these inconsistencies. If
Citizenship and Immigration Services (CIS) fails to believe that a fact stated in the petition is true, CIS may
reject that fact. See e.g. Anetekhai v. INS., 876 F.2d 1218, 1220 (5th Cir.1989); 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).
Thus, the petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional,
or managerial, as required by section 101(a)(44)(A)(ii) of the Act.
On appeal, counsel simply restates the previous assertions of the beneficiary's duties, and requests the AAO
to accept the petitioner's unsupported claims that the entity in fact employs a number of full-time personnel in
addition to many sales person and contractors. As previously stated, the assertions of counsel will not satisfy
the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of
Obaigbena, 19 I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. 1; Matter of Ramirez-Sanchez, 17 I&N
Dec. at 506. 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.
In the instant matter, it is unclear how the beneficiary can engage primarily in managerial or executive tasks,
particularly when the positions of three of the four subordinate employees are merely part-time. Although the
sales manager appears to be the only other full-time employee, his role is unclear since the petitioner claims
that the beneficiary is the person who negotiates contracts and attends trade shows, thus dealing with new
clients and customers. 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). The petitioner claims that the beneficiary oversees a subordinate staff of
managerial and/or professional employees, and is thus qualified for an extension of the petition. The ultimate
fact, however, is that the employment situation presented before the AAO is not credible.
Based on the record of proceeding, and absent evidence to the contrary, the beneficiary's job duties are
principally composed of non-qualifying duties that preclude him from functioning in a primarily managerial
or executive role. The record as presently constituted, therefore, is not persuasive in demonstrating that the
beneficiary has been or will be employed in a primarily managerial or executive capacity. The regulation at 8
C.F.R. § 214.2(l)(3)(v)(C), however, allows the intended United States operation one year within the date of
approval of the petition to support an executive or managerial position. There is no provision in CIS
regulations that allows for an extension of this one-year period. If the business is not sufficiently operational
after one year, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner
has not reached the point that it can employ the beneficiary in a predominantly managerial or executive
position. For this reason, the appeal will be dismissed.
The second issue in the present matter is whether the petitioner and the foreign organization are qualifying
organizations as defined by 8 C.F.R. § 214.2(l)(1)(ii)(G). The regulation defines the term "qualifying
organization" as a United States or foreign firm, corporation, or other legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the definitions of a parent,
branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section;
WAC 04 04851759
Page 9
(2) Is or will be doing business (engaging in international trade is not required) as an employer
in the United States and in at least one other country directly or through a parent, branch,
affiliate, or subsidiary for the duration of the alien's stay in the United States as an
intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.
Additionally, the regulation at 8 C.F.R. § 214.2(l)(1)(ii) provides:
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries.
(J) "Branch" means an operating 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) "Affiliate" 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, or
(3) In the case of a partnership that is organized in the United States to provide
accounting services along with managerial and/or consulting services and that
markets its accounting services under an internationally recognized name under an
agreement with a worldwide coordinating organization that is owned and controlled
by the member accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide accounting services shall be
considered to be an affiliate of the United States partnership if it markets its
accounting services under the same internationally recognized name under the
agreement with the worldwide coordinating organization of which the United States
partnership is also a member.
In this case, the petitioner claims that the Indian entity, a sole proprietorship, owns 75% of the U.S. entity,
and thus the U.S. entity is a subsidiary of the foreign entity.
WAC 04 04851759
Page 10
After requesting and receiving additional evidence documenting the foreign entity's purchase of petitioner's
stock, the director, the director concluded that the evidence in the record was insufficient to prove that the
foreign entity had purchased the stock. Consequently, the petition was denied on March 12,2004.
On appeal, counsel asserts that the evidence was clear that the foreign entity purchased the shares, via
evidence of (1) the beneficiary's deposit of travelers' checks, purchased by the foreign entity, into the
petitioner's corporate account, and (2) the foreign entity's wire transfer of $24,980 to the petitioner's account.
The Minutes of Organizational Meeting dated May 1, 2002 indicate that 50,000 shares were authorized at
$1.00 per share. The minutes further indicate that the shares are dispersed as follows:
37,500 shares (750/0)
12,500 shares (250/0)
Share certificates numbers one and two, along with a stock ledger, were submitted In support of the
petitioner's claim that the ownership structure is as claimed in the minutes.
The issue, therefore, is whether the foreign entity paid $37,500 for its 37,500 shares in the petitioner. There
are two problems with the evidence submitted. First, the wire transfer dated November 12, 2002 indicates
that a transfer of $24,980 was deposited into the petitioner's account. The originator of the transfer was the
Bank of Baroda ffiB, New Dehli, India. Reference is made to the foreign entity in the transaction notes, and
their account number is listed as 110702. Also submitted in the record is a letter from the Bank of Baroda,
dated November 12, 2002, which confirms that the foreign entity, Universal Clothing, maintained account
number 201326 with the bank. There is conflicting evidence, therefore, that the transfer of these funds was
from the account of the foreign entity, since the account numbers on the wire and on the letter from the Bank
of Baroda do not match. 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. Matter of Ho, 19 I&N Dec. at 591. As a result, there is insufficient evidence that the transfer was
initiated by the foreign entity.
Second, copies of American Express travelers' checks payable to and signed by the beneficiary, are submitted
as evidence of the foreign entity's payment. The checks, in denominations of $500 and $1,000, were
allegedly combined into two deposits of $8,000 and $6,000 into the petitioner's account on February 8, 2002
and May 8, 2002, respectively. The petitioner provides copies of two "receipts" for the purchase of the
checks, which indicate that the beneficiary purchased them on behalf of the foreign entity.'
3 The AAO notes that the transaction receipt dated March 19, 2002 is altered at the top of the page in the area
where it states the person to whom the checks were sold. The beneficiary's name is listed, and an unreadable
item was crossed out and replaced with the "Universal Clothing" to indicate that he was purchasing these
checks on the company's behalf. If CIS fails to believe that a fact stated in the petition is true, CIS may reject
WAC 04 04851759
Page 11
There is no evidence to substantiate the claim that these travelers' checks were in fact paid for by the foreign
entity in exchange for shares in the petitioner's organization. Despite the claim that the beneficiary was
acting on behalf of the foreign entity when purchasing these checks, this claim alone, without supporting
documentation and clearly traceable funds, is simply insufficient to prove the claim. The two receipts are
difficult to read, and one has been altered by a handwritten notation to indicate that the beneficiary was
purchasing the checks on behalf of the foreign entity. Furthermore, the receipts indicate that the beneficiary
purchased a total of $19,000 in checks; yet only $14,000 was allegedly allotted toward the purchase of stock.
It is unclear why the foreign entity would wish to purchase an additional $5,000 in travelers' checks.
Furthermore, there is nothing in the record to corroborate the claim that the deposits of $6,000 and $8,000
were actually the cumulative total of these particular travelers' checks. Moreover, since the price of the stock
is $1.00 per share, there is no explanation why the petitioner would pay a total of $38,980 (when combined
with the alleged wire transfer of $24,980) for stock priced at $37,500. Finally, if the foreign entity allegedly
initiated one wire transfer for the purchase of stock, it is unclear why it would choose to purchase the
remainder of the stock in such an unconventional way. Furthermore, the evidence indicates that the wire
transfer was initiated on November 12, 2002, over six months after the stock was issued. No explanation for
this delay was provided by the petitioner. 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 ofHo, 19 I&N Dec. at 591. If CIS fails to believe that a fact stated in the petition is true, CIS
may reject that fact. See e.g. Anetekhai v. I.N.S., 876 F.2d at 1220; Lu-Ann Bakery Shop, Inc. v. Nelson, 705
F. Supp. at 10; Systronics Corp. v. INS, 153 F. Supp. 2d at 15.
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 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.
In this matter, the petitioner has failed to establish that the foreign entity legitimately acquired a 75%
ownership interest in the petitioner. As a result, it is concluded that the petitioner and the Indian entity were
not affiliates as of the filing date of this petition, and thus did not have a qualifying relationship as required by
the regulations. For this additional reason, the appeal will be dismissed.
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if he or she shows that the AAO abused its discretion with respect to all of the AAO's enumerated grounds.
that fact. See e.g. Anetekhai v. I.NS., 876 F.2d at 1220; Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. at
10; Systronics Corp. v. INS, 153 F. Supp. 2d at 15.
WAC 04 04851759
Page 12
See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd. 345 F.3d
683 (9th Cir. 2003).
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.