dismissed L-1A Case: Gems And Jewelry

mtifyhg data deke:lered to 
pmt dearly unwarmted 
iovatbt~dpenroOSrp~ 
U.S. Department of Homeland Security 
20 Massachusetts Ave.. N.W., Rm. A3042 
Washington, I)C 20529 
U. S. Citizenship 
and Immigration 
File: EAC-04-021-53 190 Office: VERMONT SERVICE CENTER Date: J)( Z 8 2085 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section I0 I (a)(I 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 IOl(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
eobert P. Wiernann, Director 
Administrative Appeals Office 
EAC-04-02 1-53 190 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking employ the beneficiary in the position of Vice 
President as an L- I A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. tj 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of an importer of gems and jewelry. The petitioner claims 
that it is the subsidiary o located in Mumbai, India. The beneficiary entered the 
United States in B-2 status as a visitor for pleasure, and the petitioner now seeks to change the beneficiary's 
status to L- I A and extend his stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently fled an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the beneficiary 
is a senior executive and manager, and that the petitioner's large volume of business reflects that it can 
support the beneficiary's managerial and executive position. In support of these assertions, counsel submits a 
lengthy brief, additional evidence, and previously submitted documents. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section IOI(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 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 quai ifying organizations as defined in paragraph (l)( 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 
EAC-04-02 1-53 190 
Page 3 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The first issue in the present matter is whether the beneticiary 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. 5 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 IOl(a)(44)(B) of the Act, 8 U.S.C. $ 1 101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goats 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. 
With the initial petition filed on October 30, 2003, the petitioner described the beneficiary's prospective job 
duties on Form 1-129, in a detailed letter dated October 28, 2003, and in an extensive letter from counsel 
EAC-04-02 1-53 190 
Page 4 
dated October 29, 2003. The petitioner provided an organizational chart that reflects that the beneficiary will 
act as one of two vice presidents, sharing authority over three subordinate employees, including a marketing 
executive, an inventory manager, and an accounting & finance manager. In the letter from counsel, counsel 
stated the following: 
[The beneficiary] shall be the Vice-President of the [petitioner] and shall head the newly 
established division dealing with the marketing of loose and polished diamonds. He has been 
vested with complete authority to make all policy decisions and establish marketing 
procedures. He will clearly be performing duties in a "managerial" and "executive" capacity 
in the United States. . . . 
The organizational setup of the [petitioner] is such that there are 2 distinct Vice-Presidents, 
one in charge of the Jewelry division and the other in charge of the Loose and Polished 
Diamonds division. A subordinate and professional staff of an Accounting & Finance 
Manager, an Inventory and Production Manager and a Marketin Executive will ensure that 
[the beneficiary], as the newly appointed Vice-president of th - division, 
will not be involved with any of the day-to-day operations and running of the company. He 
will have independent control over the new division and will focus only on his primary 
objective of establishing the operations of this division and developing a market base in the 
US. 
In part, the petitioner's letter described the beneficiary's duties as the following: 
[The beneficiary] will report only to the Group President and the management and has been 
vested with complete discretion to take all necessary decisions concerning the activities of the 
new division. His primary duty will be the setting up of this'division and the expansion of 
the company's market base into the loose diamond segment in the US. We will be required to 
build business relationships and liaise with existing and prospective customers. 
[The beneficiary's] executive and managerial duties will include: 
(1) Marketing Strategies: Studying the global and local US market conditions relevant 
to the diamond industry and designing marketing strategies to achieve maximum 
exposure, visibility and sales growth. His primary objective shall continue to be an 
expansion of the company's marketing base. To this end he must establish cordial 
business relationships and be well prepared for presentations etc[.] of the company's 
product line and strengths. 
(2) Representing the company in negotiations with customers and making all 
decisions with regard to costing, pricing, quality etc. 
EAC-04-02 1-53 190 
Page 5 
(3) Overseeing all buying and sourcing activity to ensure that the diamonds are exactly 
as per the buyers [sic] needs. He will supervise the placing of all orders with the 
parent company from various suitable locations around the world (Far East, Belgium 
etc.) 
(4) Coordinating and liaising with clients and meeting all their specific requirements 
as to the orders placedho be placed. Advising them on the type and quality of the 
diamonds. 
(5) Negotiating contracts and all agreements, He will also assist the marketing 
personnel in the preparation of their proposals by scrutinizing the financial elements 
in all contracts. He will also be involved in discussions with customers regarding the 
financial and contractual details. 
(6) Setting, planning and attending periodic meetings of the Board of Directors to 
discuss the multinational activities of the CM group and to report the activities of the 
US office and the new division. He will also be required to notify the senior 
management of recent developments and trends in the worldwide and US diamond 
markets and suggest measures for structuring the company's marketing strategy and 
increasing the customer base. He must prepare reports that would alert the 
management on likely new market requirements and conditions so that new sourcing 
arrangements may be promptly made. 
(7) Attending domestic and international trade fairs and exhibitions as necessary. 
[The beneficiary] will represent the company at all such trade fairs and exhibitions 
and in this way work toward furthering the market base. 
(8) Identifying and introducing new products/ designs into the US markets. The 
diversification of the product line can often complement the existing range and it will 
be his discretion as to the type of product that can be introduced, such as for instance 
colored diamonds that have recently become fashionable. 
(9) Maintaining and ensuring strict quality standards in line with CM group policies 
and guidelines. 
Since there is no manufacturing activity being undertaken by the US petitioner and the 
company is a marketing outlet for the large parent unit in India, its current staffing levels are 
as per its business needs for the marketing of jewelry and now, loose and polished diamonds 
in the US. The subordinate employees are all qualified managers, professionals and 
otherwise experienced in their specific job duties and meet with the company's realistic staff 
requirements. 
EAC-04-02 1 -53 1 90 
Page 6 
The petitioner indicated that its gross annual income is $3.98 million. The petitioner's IRS Form 1120, U.S. 
Corporation Income Tax Return, reflects that the petitioner's gross income for that year was $3,975,167, with 
total assets valued at $4,7 10,684. 
On November 5, 2003, the director requested additional evidence. In part, the director requested: (I) 
additional evidence that the beneficiary will be engaged in a primarily managerial or executive position with 
the petitioner; (2) a complete position description for the beneficiary and all of the petitioner's employees, 
including a breakdown of the number of hours devoted to each duty on a weekly basis; and (3) an indication 
of the minimum education requirements for the beneficiary's subordinates, including an explanation of how 
the specific education is required to perfor~n their respective duties. 
In a response dated January 8, 2004, in part the petitioner submitted a letter from counsel and a letter from the 
petitioner, both of which addressed the director's concerns. As each of these lengthy letters are part of the 
record, they will not be repeated entirely herein. Both letters provide detailed accounts of the beneficiary's 
proposed duties in the United States, and the duties of the petitioner's additional four employees. In 
explaining why the petitioner seeks to have two vice presidents, counsel notes that the two vice presidents 
will head separate and distinct divisions of the petitioner. Specifically, counsel states: 
[The petitioner's] financial figures and documents are once again being highlighted as 
evidence of the substantial volume of business that is being conducted by the US petitioner 
and hence, the need for [the beneficiary] to be appointed in the organizational hierarchy as a 
distinct Vice-President, to head the 1,oose & Polished Diamond Division of the company. 
Separate orders are placed, separate invoices raised, different buvers and markets are tapped, 
different marketing strategies are used and entirely different products are being sold by 
these 2 distinct divisions. 
The petitioner provided a general breakdown of the amount of time the beneficiary will devote to his 
respective duties as follows: 
Duties 
Building business relationships, meetings with customers, 
negotiating contracts 
Establishing and setting up policies, directives, systems 
and programs; supervising the activities of the subordinate 
staff; overseeing all activities for sale and market of loose 
The petitioner described the job duties of the beneficiary's proposed subordinates, and counsel discussed the 
educational credentials required to perform their respective tasks. 
Hours/week 
15 
12 
and polished diamonds 
Market analysis 
Communicating with the parent company 
8 
5 
EAC-04-02 1-53 190 
Page 7 
On January 22, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated the following: 
The description of the beneficiary's duties is vague and gives no sense of the day-to-day 
activities of the beneficiary, and appears to merely paraphrase [Citizenship and Immigration 
Services' (CIS)] definition of an executive. The record does not show what the beneficiary 
did that qualifies him as an executive, other than in position title. 
It is also indicated that both of [the vice presidents] will supervise and manage three 
subordinates . . . . [CIS] is not persuaded that the beneficiary has sole executive direction 
over these individuals since the other vice president also supervises them as well. 
While the beneficiary apparently carries a multitude of managerial titles. [CIS] is not 
persuaded that in an organization the size and nature of [the petitioner's], the beneficiary will 
be engaged in primarily executive job duties. Rather, we presume that he will be engaged 
primarily in the non-managerial, day-to-day operations involved in producing a product or 
providing a service. 
On appeal, counsel for the petitioner asserts that the beneficiary is a senior executive and manager, and that 
the petitioner's large volume of business reflects that it can support the beneficiary's managerial and 
executive position. In her 13-page brief, counsel discusses the beneficiary's duties in detail. As the brief is 
part of the record, it will not be repeated entirety herein. Counsel cites the statutory definitions for managerial 
and executive capacity, and analyzes the beneficiary's prospective tasks in light of each criterion. Counsel 
notes that a company's size alone may not serve as the determinative factor in weighing a petitioner's 
eligibility, without taking into consideration the reasonable needs of the organization. In support of this 
assertion, counsel cites judicial cases and an unpublished AAO decision. Counsel further points to the 
petitioner's high gross annual income as evidence of the petitioner's ability to support the beneficiary in a 
managerial or executive position. 
The petitioner submits an 1 I-page letter that largely repeats information submitted in response to the 
director's request for evidence, further describing its business operations, its organizational structure, and the 
beneficiary's prospective role in the United States. The petitioner distinguishes the beneficiary's duties from 
those of its existing vice president. 
The petitioner supplements the record with copies of its bank statements and invoices, all dated after the date 
of tiling the petition. 
EAC-04-02 1-53 190 
Page 8 
Upon review, counsel's assertions are not persuasive. When examining the executive or managerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. See 8 C.F.R. 
$ 2142()(3)(). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A petitioner cannot claim that a beneficiary is employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner asserts that the beneficiary is primarily engaged in both managerial duties 
and executive duties. To sustain such an assertion, the petitioner must establish that the beneficiary meets 
each of the four criteria set forth in the statutory definition for executive duties under section 101(a)(44)(B) of 
the Act, and the statutory definition for managerial duties under section 10 1 (a)(44)(A) of the Act. 
On appeal and in response to the director's request for evidence, counsel and the petitioner have submitted 
detailed and lengthy descriptions of the petitioner's business operations and the beneficiary's role in the 
United States. These job descriptions reflect that the beneficiary will be primarily engaged with non- 
qualifying sales and marketing tasks. In fact, the petitioner states that the beneficiary's "primary objective 
shall continue to be an expansion of the company's market base." The majority of the duties that the 
beneficiary will perform are centered around sales activities including "build[ing] business relationships and 
liais[ing] with existing and prospective custo~ners," "establish[ing] cordial business relationships and be[ing] 
well prepared for presentations . . . of the company's product line and strengths," "[cloordinating and liaising 
with clients and meeting all their specific requirements as to the orders placedlto be placed," "[aldvising 
[clients] on the type and quality of the diamonds," and "[alttending domestic and international trade fairs and 
exhibitions." The petitioner provides that the beneficiary will spend 15 hours per week directly on such sales 
activities, including "[bluilding business relationships, meetings with customers, [and] negotiating contracts." 
The petitioner provides that the beneficiary will spend 12 hours per week in part "overseeing all activities for 
[the] sale and marketling] of loose and polished diamonds," which appear to be sales and marketing functions. 
Thus, the evidence of record reflects that the beneficiary spends as much as 27 hours per week on non- 
qualifying sales and marketing tasks. Accordingly, the job descriptions do not establish that the beneficiary 
will be primarily engaged with managerial or executive duties. See sections IOl(a)(44)(A) and (B) of the Act. 
The petitioner claims that the beneficiary will share supervisory authority over three subordinate employees, 
including a marketing executive, an inventory manager, and an accounting and finance manager. Although 
the beneficiary is not required to supervise personnel, if it is claimed that his duties involve supervising 
employees, the petitioner must establish that the subordinate employees are supervisory, professional, or 
managerial. See $ 101 (a)(44)(A)(ii) of the Act. 
In 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 I0 1 (a)(32) of the Act, 8 U.S.C. 6 1 10 1 (a)(32), states that "[tlhe term prtgession 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 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
EAC-04-02 1-53 190 
Page 9 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Mutter (fl Seu, 19 I&N Dec. 8 1 7 (Cornrn. 1988); Mutter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Mutter cflShin, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner provides that the marketing executive completed a 
bachelor's degree in commerce and a "PG Diploma" in marketing and sales. Yet, the petitioner has not 
sufficiently explained how a bachelor's degree in commerce is required to perform marketing and sales 
activities. The petitioner has not indicated the level of education completed by the inventory manager, thus it 
has not established that he is a professional. It is further noted that Citizenship and Immigration Services 
(CIS) approved a petition on behalf of the inventory manager so that he could work as a market research 
analyst in H-1 B status. This fact further clouds an understanding of his true duties and the requirements for 
his position. The petitioner indicates that the accounting and finance manager possesses a bachelor's degree 
in commerce, with a major in accounts and financial management. Yet, while such academic experience 
would appear to be helpful, the petitioner has not explained that it is actually necessary to successfully 
perform his duties. Thus, the petitioner has not shown that the beneficiary's subordinates are in fact 
professionals. 
It is further noted that CIS records reflect that the beneficiary's three subordinates have been approved for 
H-1 B status, which requires the necessity of the equivalent of a bachelor's degree that is relevant to their 
respective duties. However, it is must be emphasized that that each petition filing is a separate proceeding 
with a separate record. See 8 C.F.R. 5 103.8(d). In making a determination of statutory eligibility, CIS is 
limited to the information contained in that individual record of proceeding. See 8 C.F.R. 9 103.2(b)(16)(ii). 
In the instant matter, the petitioner has failed to provide sufficient evidence for the current record to establish 
that the beneficiary's subordinates require at least a bachelor's degree to perform their duties. 
Nor has the petitioner shown that any of the beneficiary's subordinates supervise other staff members or 
manage a clearly defined department or function of the petitioner, such that they could be classified as 
managers or supervisors. The fact that they possess managerial titles is not determinative of their true 
employment capacity. The actual duties themselves reveal the true nature of the employment. Fedin Bros. 
Co.. Ltd v. SUVU, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 19891, (~ff'd, 905 F.2d 41 (2d. Cir. 1990). Thus, the 
petitioner has not shown that the beneficiary's subordinate employees are supervisory, professional, or 
managerial, as required by section IOI(a)(44)(A)(ii) of the Act. 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See section 10 l (a)(44)(C), 8 U.S.C. 5 1 10 1 (a)(44)(C). However, it is appropriate for CIS to consider the size 
of the petitioning company in conjunction with other relevant factors, such as a company'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 ). As required by section 101(a)(44)(C) of the 
EAC-04-02 1-53 190 
Page 10 
Act, if staffing levels are used as a factor in determining whether an individual is acting in a managerial or 
executive capacity, CIS must take into account the reasonable needs of the organization, in light of the overall 
purpose and stage of development of the organization. 
The petitioner operates as an importer of gems and jewelry. The loose and polished diamonds division will 
rnake contact with customers in order to conduct sales. It is evident that the reasonable needs of the petitioner 
require its employees to perform non-managerial and non-executive tasks such as answering questions about 
merchandise from customers, tracking the petitioner's sales, managing a checking account and paying bills, 
answering telephones, coordinating deliveries to customers, attending trade shows, making sales calls to 
potential customers and conducting sales transactions. In addition to the beneficiary, the petitioner employs a 
marketing executive, an inventory manager, and an accounting & finance manager. The job descriptions for 
these employees establish that they will perform some of the non-qualifying tasks associated with the 
petitioner's business. Yet, these three subordinates are already engaged with assisting another department of 
the petitioner, and their efforts are not solely committed to supporting the beneficiary. The petitioner has not 
established that they will adequately relieve the beneficiary from performing non-managerial and non- 
executive tasks. As discussed above, the petitioner indicates that the beneficiary will invest the majority of 
his time performing marketing and sales functions. Accordingly, the evidence of record, in light of the 
reasonable needs of the petitioner, suggests that the beneficiary will be primarily engaged with non-qualifying 
duties. See section 101 (a)(44)(B) of the Act. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving in a managerial and executive capacity for L-1 classification even though he was the 
sole employee. Counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. While 8 C.F.R. 5 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
On appeal, the petitioner submits additional copies of its bank statements and invoices, all dated after the date 
of filing the petition. 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. Mutrer ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
Thus, the petitioner's documentation of business activity that occurred after filing the petition is not probative 
of the petitioner's eligibility as of the filing date. 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. $ 214.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
Beyond the decision of the director, the petitioner has not established that it has a qualifying corporate 
relationship with the beneficiary's foreign employer as required by 8 C.F.R. 6 214.2(1)(3)(i). 
The regulation at 8 C.F.R. $214.2(1)( 1 Xii) provides: 
EAC-04-02 1-53 190 
Page 1 1 
(G) Quallfiing 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)( I Xii) 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 
(3) Otherwise meets the requirements of section 101 (a)(] 5XL) of the Act. 
(H) Doing business means the regular, systematic, and continuous provision of goods andlor 
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. 
(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) Sub.sidicny 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 
(I) 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 
EAC-04-02 1 -53 190 
Page 12 
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. 
On the initial petition, the petitioner indicated that it is the subsidiary of the beneficiary's foreign employer. 
The petitioner explained that the beneficiary's foreign employer is a partnership, initially organized in India in 
1978 and reconstituted in 1998. The petitioner indicated that, in 1990, the foreign partnership was established 
in New York by the same partners, hereinafter referred to as the "New York partnership." The petitioner 
indicated that it was incorporated in 1998, and that the New York partnership owns 51 percent of its 
outstanding stock. As evidence of these relationships, the petitioner submitted: (1) the partnership deed for 
the foreign partnership, dated February 2, 1998; (2) the petitioner's certificate of incorporation; (3) the 
petitioner's stock certificates; (4) a business certificate establishing the New York partnership; and (5) the 
petitioner's 2000 and 2001 Forms 1 120, U.S. Corporation Income Tax Return. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology Intern~ltional. 19 I&N Dec. 593 (BIA 1988); see also 
Mutter of Siemens Medical *terns, Inc., 1 9 I&N Dec. 362 (BIA 1986); Matter of Hughes, 1 8 I&N Dec. 289 
(Comm. 1982). In 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. Mutter 
of C'hurch ,YcientoIogy Internationul, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, inc., 19 I&N Dec. at 362. Without full 
disclosi~re of all relevant documents, CIS is unable to determine the elements of ownership and control. 
Upon examining the evidence of record, the petitioner has submitted documentation to show that the New 
York partnership owns 5 1 percent of its stock, rendering it the parent entity of the petitioner. However, in 
order to show that the beneficiary's foreign employer has a qualifying relationship with the petitioner, the 
petitioner must establish that the foreign entity has a qualifying relationship with the New York partnership. 
The partnership deed for the foreign partnership reflects that it consists of 11 partners. The business 
certificate for partners for the New York partnership reflects that it consists of seven partners. The two 
EAC-04-02 1-53 190 
Page 13 
partnerships have six partners in common, while the New York partnership has one partner who is not a 
member of the foreign partnership, and the foreign partnership has five members who are not members of the 
New York partnership. Thus, the two partnerships are separate and distinct entities, and the New York 
partnership does not represent a direct establishment of the foreign partnership in the United States as claimed 
by the petitioner. As the two partnership are owned by different groups of individuals in varying proportions, 
the two partnerships are not affiliates due to ownership and control by the same group of individuals with each 
individual owning and controlling approximately the same share or proportion of each entity. See 8 C.F.R. 
8 214.2(1Xl)(ii)(L)(Z). Further, the petitioner's documentation does not support that a single partner exercises 
majority ownership and control over the two partnerships, such that an affiliate relationship could be 
established between the two partnerships due to ownership and control by the same individual. See 8 C.F.R. 
ji 214.2(I)(I)(iiXL)(I). For example, section 11 of the partnership deed for the foreign partnership provides a 
breakdown of the percentage of profit allocated to each partner. No single partner enjoys more than 15 
percent of the entity's profit, suggesting that no partner can claim over 15 percent ownership in the foreign 
entity. 
It is further noted that Schedules K of the petitioner's 2000 and 2001 Forms 1120, U.S. Corporation Income 
Tax Return, indicate that no individual or partnership owns more than 50 percent of its voting stock. The 
Schedules K further provide that no foreign person owned at least 25 percent of the total voting power of all 
classes of the petitioner's stock or the total value of all classes of the petitioner's stock. Thus, the petitioner's 
tax forms contradict that the foreign entity or the New York partnership own a majority interest in the U.S. 
company. 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. Mutter of Ho, 19 I&N Dec. 
582, 59 1-92 (RIA 1988). 
Accordingly, the petitioner has failed to show that the beneficiary's foreign employer possesses a qualifying 
relationship with the New York partnership, and that the foreign partnership is a parent entity to the 
petitioner. See 8 C.F.R. 5 214.2(1)(3)(i). For this additional reason, the appeal will be dismissed. 
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. Uniled Stures, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 1 ), afd. 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 u'c. novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. 6 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.