dismissed L-1A Case: Hair Care Products

identifying data deleted to 
prevent clearly unwarranted 
invasion of prsonal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 05 007 50658 Office: TEXAS SERVICE CENTER D~~~: AUG 3 0 2006 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1 10 1 (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. 
$&Robert P. Wiemann, Chief 
Administrative Appeals Office 
SRC 05 007 50658 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner, a Georgia corporation, claims to be a subsidiary of SA Kanellia Diffusion located in 
France. The petitioner states that the United States entity is engaged in the business of importing hair 
care products and operating salons. Accordingly, the United States entity petitioned CIS to classify the 
beneficiary as a nonimrnigrant intracompany transferee (L- 1 A) pursuant to section 10 1 (a)(15)(L) of the 
Act as an executive or manager for three years. 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 
in order to continue to fill the position of director of operations. 
The director denied the petition concluding that the record contains insufficient evidence to demonstrate 
that the beneficiary will be employed in a managerial or executive capacity. The director also determined 
that the record contained insufficient evidence to establish the claimed qualifying relationship between 
the petitioner and the foreign entity. 
The petitioner subsequently filed an appeal on April 1,2005. The director declined to treat the appeal as 
a motion and forwarded the appeal to the AAO for review. On the Form I-1290B Notice of Appeal, 
counsel for the petitioner asserts: "The decision to deny the petition is in error because the evidence 
submitted in support of the petition warrants a favorable decision. The service has denied the petition for 
erroneous/misunderstood evidence." 
Counsel indicated on Form I-1290B that he would submit a brief and/or evidence to the AAO within 30 
days. As no additional evidence has been incorporated into the record, the AAO contacted counsel by 
facsimile to request that counsel acknowledge whether the brief and/or evidence were subsequently 
submitted, and, if applicable, to afford counsel an opportunity to re-submit the documents. Counsel for 
the petitioner responded to the AAO on August 6,2006 indicating that no brief or evidence was submitted 
in support of the appeal. Accordingly, the record will be considered complete. 
To establish eligibility under section 10 l(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. 
Upon review, the MO concurs with the director's decision and affirms the denial of the petition. 
Counsel's general objections to the denial of the petition, without specifically identifying any errors on the 
part of the director or providing new evidence to support that the beneficiary is in a position of managerial 
or executive capacity, are simply insufficient to overcome the well-founded and logical conclusions the 
director reached based on the evidence submitted by the petitioner. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I & N Dec. 158, 165 (Cornrn. 1998)(citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). The assertions of counsel do not constitute evidence. Matter of 
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Obaigbena, 19 I & N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I & N Dec. 503, 506 (BIA 
1980). 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states 
that the beneficiary's duties include "direct and coordinate activities of [the petitioner] to obtain 
maximum efficiency and economy of operations and maximize profits," "plan and develop organizational 
policies and goals," and "improve upon these goals through his discretion and management of subordinate 
administrative personnel." The petitioner did not, however, define the beneficiary's goals and policies, or 
clarify the role of the subordinates that the beneficiary will supervise. 
The description also includes several non-qualifying duties such as "direct and coordinate promotion of 
products and services to develop new markets and cultivate relationship with potential U.S. companies," 
and "analyze marketing potential of new and existing products and recommend marketing strategies and 
sales goals to the President." Without further explanation, these duties suggest that the beneficiary is 
directly involved in the company's marketing, sales and promotion activities rather than supervising 
others who perform non-managerial duties related to these functions. 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 provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather 
the AAO must determine based on the totality of the record whether the description of the beneficiary's 
duties represents a credible account of the beneficiary's role within the organizational hierarchy. As noted 
by the director, the record does not demonstrate that the petitioner has any employees to perform the 
routine non-executive and non-managerial functions of the business. 
Accordingly, the director reasonably concluded that the beneficiary as the petitioner's only employee will 
be performing the day-to-day operations and directly be providing the services of the business rather than 
directing such activities through subordinate employees. An employee who "primarily" performs the 
tasks necessary to produce a product or provide services is not considered to be "primarily" employed in a 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology International 19 I & N Dec. 593, 604 (Comm. 1988). 
The petitioner indicated on the Form 1-129 that the company has two employees. 
 In addition, the 
petitioner submitted in its response to the director's request for evidence an organizational chart of the 
United States entity which indicated that the U.S. entity has two payroll employees in addition to the 
beneficiary, as well as five contract employees. However, the petitioner's quarterly tax return for the 
fourth quarter of 2004, the quarter in which the petition was filed, indicates that the company paid only 
$858.00 in wages for the three-month period, a figure which is inconsistent with the petitioner's claim 
that the U.S. entity has two employees in addition to the beneficiary. It is incumbent upon the petitioner 
to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
SRC 05 007 50658 
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reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 5 82, 59 1-92 (BIA 1988). 
In addition, the organizational chart of the U.S. entity submitted by the petitioner indicates that five 
employees are given 1099 forms, however, the petitioner has not submitted any evidence that these 
contract employees have received any payments by the U.S. company. Therefore, although the 
organizational chart indicates that the petitioner has contractual employees in the areas of distribution, 
conventions and events, marketing, bookkeeping and customer care, the petitioner has not presented 
evidence to document the existence of these employees. Additionally, the petitioner has not explained 
how the services of the contracted employees obviate the need for the beneficiary to primarily conduct the 
petitioner's business. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, on review, the record as presently constituted is not persuasive in demonstrating that the 
beneficiary has been or will be employed in a primarily managerial or executive capacity. The petitioner 
has not demonstrated that the U.S. company has hired additional employees who would relieve the 
beneficiary from performing primarily non-qualifying duties associated with operating a salon and retail 
business. An employee who "primarily" performs the tasks necessary to produce a product or to provide 
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Intn 'l., 19 I&N Dec. 593,604 (Cornm. 1988). 
8 C.F.R. 9 214.2(1)(3)(v)(C) 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. 
In addition, as noted by the director, the petitioner failed to provide sufficient evidence to establish that a 
qualifying relationship exists between the foreign company and the petitioner. To establish a "qualifLing 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary's foreign 
employer and the proposed U.S. employer is the same employer (i.e. one entity with "branch" offices), or 
related as a "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8 
C.F.R. tj 214.2(1). In the instant petition, the petitioner claims that the U.S. entity is 51% owned and 
controlled by SA Kanellia Diffusion [foreign parent company] and 49% owned by the beneficiary. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for 
purposes of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 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, 
SRC 05 007 50658 
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management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 
595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not 
sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate 
entity. The petitioner submitted two stock certificates, number one and two, indicating that SA Kanellia 
Diffusion is the owner of 510 shares of stock and the beneficiary own 490 shares of stock for the U.S. 
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. 
In addition, as noted by the director, the petitioner submitted the IRS Form 1120, U.S. Corporation 
Income Tax Return, for 2003 whereby the petitioner responded "no" to the question as to whether a 
foreign person owns directly or indirectly at least 25% of the total voting power of all classes of stock of 
the corporation entitled to vote or the total value of all classes of stock of the corporation. According to 
the IRS Form 1120, it appears that the petitioner is not owned by any foreign entity which is required in 
order to establish a qualifying relationship between the petitioner and a foreign company. The petitioner 
has not resolved this conflicting information and thus the appeal will be denied. 
Regulations at 8 C.F.R. 9 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
The petitioner 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. 9 1361. Inasmuch as 
counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact in this 
proceeding, the petitioner has not sustained that burden. Therefore, the appeal will be summarily 
dismissed. 
ORDER: 
 The appeal is summarily dismissed.