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PUBLIC·COPY
U.S. Department of Homeland security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File: WAC 06 207 50740 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
OCT 02 2001
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
IN BEHALF OF PETITIONER:
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.
R~;;;ief
Administrative Appeals Office
www.uscis.gov
WAC 06 20750740
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of chief
operating officer to be employed at a new office in the United States as an L-IA nonimmigrant intracompany
transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(15)(L). The petitioner, a Delaware limited liability company, is allegedly engaged in the business of
staffing nurses and providing other healthcare services.!
The director denied the petition concluding that the petitioner failed to establish (1) that sufficient physical
premises to house the new office have been secured, (2) that the beneficiary has been employed primarily in a
managerial or executive position abroad, or (3) that the petitioner has a qualifYing relationship with the
foreign employer.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that, even though it has been
unable to lease commercial space for the enterprise due to the beneficiary's status in the United States, the
beneficiary has managed to lease an apartment for use by the petitioner. Also, the petitioner asserts that the
beneficiary was employed abroad in a primarily managerial or executive capacity. In support, the petitioner
attempts to supplement the record with job descriptions for the beneficiary's purported subordinate employees
abroad. Finally, the petitioner asserts that, since it is 50% owned by the beneficiary and 50% owned by an
officer of the Indian employer, it has established that it is a "wholly owned subsidiary" of M&M Healthcare
Services of New Delhi, India.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(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. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
lIt is noted for the record that the petitioner checked "no" to the query "Is the alien coming to the United
States to open a new office?" found in the L Classification Supplement to Form 1-129. The director,
however, applied the "new office" criteria found in 8 C.F.R. § 214.2(1)(3)(v) to the instant petition. Because
the petitioner clearly meets the definition of a "new office" in that it has been "doing business" for less than
one year, the director's application of these criteria under the circumstances was not inappropriate. 8 C.F.R.
§§ 214.2(1)(l)(ii)(F) and (H). The AAO will likewise apply the "new office" criteria in this matter.
WAC 06 207 50740
Page 3
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l )(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(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. § 2 I4.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficientphysical premisesto 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
defmed in paragraphs (l)(I)(ii)(B) or (C) of this section, supported by
informationregarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizationalstructure, 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 organizationalstructure of the foreign entity.
The first issue in this proceeding is whether the petitioner has established that sufficient physical premises to
house the new office have been secured as required by 8 C.F.R. § 214.2(l)(3)(v)(A).
WAC 06 20750740
Page 4
As the petitioner did not provide any evidence in support of its petition regarding the securing of sufficient
physical premises to house the United States operation, the director requested additional evidence on June 29,
2006. The director requested, inter alia, a lease agreement, a description of the square footage of the
premises, and photographs of the premises.
In response, the foreign entity submitted an undated letter stating that "an office premises has been taken on
Lease with effect from June 30, 2006. The leased business premises is located at
The petitioner also submitted a one-page document titled "Definition Annex to
Apartment Lease" which apparently concerns a residential apartment unit located at •••••••••
The beneficiary is listed as the only lessee, and the lease states that a "community policies" attachment was
made a part of the lease. However, the petitioner did not submit a copy of the "community policies." The
petitioner also did not reveal the square footage of the premises.
On August 14, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that sufficient physical premises to house the new office have been secured.
On appeal, the petitioner asserts that, even though it has been unable to lease commercial space for the
enterprise due to the beneficiary's status in the United States, the beneficiary has managed to lease an
apartment for use by the petitioner.
Upon review, the petitioner's assertions are not persuasive.
When a new business is established and commences operations, the regulations require that the petitioner
establish that the United States operation has secured sufficient physical premises to house the new office. 8
C.F.R. § 214.2(1)(3)(v)(A). While the regulations do not specifically define "sufficient," it is clear from the
"new office" criteria that the petitioner must establish that the physical premises will permit the proposed
enterprise to succeed and rapidly expand as it moves away from the developmental stage to full operations,
where there would be a need for a manager or executive who will primarily perform qualifying duties within
one year of petition approval.
In this matter, the petitioner has failed to establish that its United States operation has secured sufficient
physical premises. First, the petitioner has submitted evidence that the beneficiary has leased a residential
apartment unit. The record is devoid of any evidence establishing that an apartment could sufficiently house
the proposed United States operation. To the contrary, it is not credible that this apartment in question could
adequately serve the business as proposed in the record. Second, the petitioner has submitted an incomplete
lease for the apartment and has failed to reveal the apartment's square footage, even though this evidence was
specifically requested by the director. The petitioner failed to attach the "community policies" section of the
lease. 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Failure to submit requested evidence
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
Absent full disclosure of the lease terms, including the "community policies" attachment, it cannot be
determined whether the apartment could be used for commercial purposes. Third, the beneficiary is the lessee
WAC 06 20750740
Page 5
under the lease. The petitioner is not listed as a lessee. Therefore, the petitioner has failed to establish that it
has secured any phy~ical premises. Fourth, as explained in the foreign entity's letter, the apartment lease did
not commence until June 30, 2006, 10 days after the receipt of the instant 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. Matter of
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The beneficiary's speculative occupancy of an
apartment is not probative of the petitioner securing sufficient physical premises to house the new office.
Accordingly, the petitioner has failed to establish that sufficient physical premises to house the new office
have been secured as required by 8 C.F.R. § 214.2(l)(3)(v)(A), and the petition may not be approved for that
reason.
The second issue in the present matter is whether the beneficiary was employed abroad 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;
(ii) establishes the goals and policies of the organization, component, or function;
WAC 06 20750740
Page 6
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary was primarily engaged in
performing managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. A petitioner may not claim that the beneficiary was employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets
each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
The petitioner described the beneficiary's job duties abroad in a document titled "Annexure A" which was
attached to the initial petition. As this document is in the record, the job description will not be repeated here.
Generally, the beneficiary is described as the "general manager" of the foreign entity's activities in the Middle
East.
On June 29, 2006, the director requested additional evidence. The director requested, inter alia, payroll
records pertaining to the beneficiary's foreign employment, an organizational chart for the foreign employer,
job descriptions for all the employees under the beneficiary's supervision, and a more detailed description of
the beneficiary's foreign duties.
In response, the petitioner submitted an organizational chart describing the beneficiary as the general manager
and director of operations of the organization's office in the United Arab Emirates. The beneficiary is
portrayed as supervising a chief of manager placement, head of finance, senior manager of healthcare
products, and manager of nursing. However, the petitioner did not specifically describe the duties, skills, or
educational backgrounds of these four subordinate employees.
The foreign entity also described the beneficiary's duties in the United Arab Emirates in a document titled
"Duties Abroad (Detailed) of the Beneficiary" as follows:
The Beneficiary has been directing the entire Dubai (DAE) operations of the company as
Director Operations.
As Director Operations[, the beneficiary] was directing and monitoring the performance and
working of the staff under his area of responsibility.
The beneficiary was involved in directing a group of consultants with regard to the
specialized skill sets of Nursing, so as to enable them to draw up a list of hospitals and
healthcare institutions where the company pitched for contracts.
[The beneficiary] was also involved in assisting and supervising 'the consultants in the
WAC 06 207 50740
Page 7
preparation of the proposed listing of hospital and healthcare institutions. He was involved in
hiring the necessary temporary professionals for preparing the marketing pitch and
accompanying them for making presentations to the various hospitals and healthcare
institutions. This was be [sic] followed by continued interaction with the respective hospitals
and healthcare institutions.
The beneficiary supervised the Director of Nursing (DoN) to simultaneously identify the
Nursing staff. Accompanied by the Director of Nursing, [the beneficiary] was involved in the
interview of each of the Nurses, so as to ensure that we get the best of the Nurses for
placement with the various hospitals.
Simultaneously, [the beneficiary] hired attorneys and directed them regarding the contracts
that were required to be drawn up for signing between the company and the Hospitals and
Healthcare Institutions.
The beneficiary orchestrated Director of Nursing (DoN) priorities to follow up with the
hospitals and healthcare institutions the continued perfonnance of the nursing staff placed
with them.
The beneficiary was also in direct touch with the hospitals and healthcare institutions on a
continued basis on telephones taking all their requests for new placement of nurses.
Furthennore, the beneficiary supervised finance and accounts department on a daily basis
keeping track of payables and receivables. This is an essential element of managing the
financials.
The foreign entity also provided a breakdown of how much time the beneficiary devoted to each of his duties
abroad as follows:
Percentage Job Responsibilities
45% Sourcing, Interviewing and hiring of Nursing and Healthcare Professionals, including RNs,
LPNs, CNAs and Therapists[.]
27% Financials, Managing Finance including developing & approving budgets, reviewing
financial statements, revenues and outlay of major expenses.
15% Directing firms' energies and channeling Marketing for building new business and
expanding on existing business relationships.
8% Client Interaction and customer needs - working along with the Director of Nursing (DoN).
5% Administration, Appraisals and Perfonnance Reviews. Misc., activities including attending
Healthcare Seminars and Symposiums etc.
On August 14, 2006, the director denied the petition. The director concluded, inter alia, that the petitioner
failed to establish that the beneficiary was employed abroad primarily in a managerial or executive capacity.
WAC 0620750740
Page 8
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager.
In support, the petitioner attempts to supplement the r~cord with job descriptions for the beneficiary's
purported subordinate employees abroad.
Upon review, the petitioner's assertions are not persuasive.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. §§ 214.2(l)(3)(ii) and (iv). The petitioner's description
of the job duties must clearly describe the duties performed by the beneficiary and indicate whether such
duties were either in an executive or managerial capacity. Id. The petitioner must specifically state whether
the beneficiary was primarily employed in a managerial or executive capacity. As explained above, a
petitioner cannot claim that some of the duties of the position entailed executive responsibilities, while other
duties were managerial.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary acted in
a "managerial" capacity. Most of the beneficiary's duties were non-qualifying administrative or operational
tasks which do not rise to the level of being managerial or executive in nature. For example, the petitioner
states that the beneficiary devoted 45% of his time to interviewing and hiring healthcare professionals for
placement with clients. However, this is a task necessary to the business and is not a qualifying duty.
Furthermore, the petitioner states that the beneficiary devoted 15% of his time to performing marketing tasks.
However, marketing and sales duties constitute administrative or operational tasks when the tasks inherent to
these duties are performed by the beneficiary. As the organizational chart fails to identify any employees or
contractors who relieved the beneficiary of the need to perform the non-qualifying tasks inherent to both the
sales and marketing duties and the management of the business in general, it must be concluded that he
primarily performed these tasks. An employee who "primarily" performs the tasks necessary to produce a
product or to provide services is not considered to be "primarily" employed in a managerial or executive
capacity. See sections lOl(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). Absent job descriptions for the beneficiary's claimed subordinate employees, it
cannot be confirmed that these employees relieved the beneficiary of the need to primarily perform non­
qualifying administrative or operational tasks.
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the organizational chart, the beneficiary appears to have supervised a staff of four employees.
However, as indicated above, the petitioner failed to specifically describe the duties, skills, or educational
backgrounds of these subordinate employees. Therefore, it cannot be determined whether these employees
were supervisory, managerial, or professional workers. Going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of
Treasure Craft of California, 14 I&N Dec. 190. While the petitioner attempted to supplement the record on
appeal with job descriptions for the subordinate employees, these job descriptions will not be considered by
the AAO. The petitioner was put on notice of required evidence and given a reasonable opportunity to provide
it for the record before the visa petition was adjudicated. The director specifically requested job descriptions
WAC 06 20750740
Page 9
for the subordinate employees, and the petitioner chose not to provide this evidence. The AAO will not
consider this evidence for any purpose, and the appeal will be adjudicated based on the record of proceeding
before the director. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec.
533 (BIA 1988).
In view of the above, it appears that the beneficiary was primarily a first-line supervisor of non-professional
employees, the provider of actual services, or a combination of both. A managerial employee must have
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the
supervised employees are professionals. Section lOl(a)(44)(A)(iv) of the Act; see also Matter of Church
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner did not establish the ski111evelor
educational background required to perform the duties of the subordinate positions, the petitioner has not
established that the beneficiary managed professional employees? Therefore, the petitioner has not
established that the beneficiary was employed primarily in a managerial capacity.3
2In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the
subordinate positions required a baccalaureate degree as a minimum for entry into the field of endeavor.
Section lOl(a)(32) of the Act, 8 V.S.c. § 1101(a)(32), states that "[t]he termprofession 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
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&NDec.686(D.D.1966).
3While the petitioner has not clearly argued that the beneficiary managed an essential function of the
organization, the record nevertheless would not support this position even if taken. The term "function
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff
but instead is primarily responsible for managing an "essential function" within the organization. See section
10l(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 2l4.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary managed an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties were managerial functions, if any,
and what proportion were non-managerial. Also, as explained above, the record establishes that the
beneficiary was primarily a first-line supervisor of non-professional employees and/or was engaged in
performing non-qualifying operational or administrative tasks. Absent a clear and credible breakdown of the
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties
were be managerial, nor can it deduce whether the beneficiary was primarily performing the duties of a
function manager. See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
WAC 06 207 50740
Page 10
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary acted primarily in an executive capacity. The beneficiary appears to have been
primarily employed as a first-line supervisor and was performing tasks necessary to produce a product or to
provide a service. Therefore, the petitioner has not established that the beneficiary was primarily employed
abroad in an executive capacity.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary was primarily performing
managerial or executive duties, and the petition m'ay not be approved for that reason. 4
The third issue in the present matter is whether the petitioner has established that it has a qualifying
relationship with the foreign employer.
41t is noted that the director stated in his decision that the petitioner failed to describe the beneficiary's duties
abroad. Upon review, the AAO agrees with the petitioner that the director appears to have failed to consider
the job descriptions submitted with the Form 1-129 and in response to the Request for Evidence. The
director's statement that the petitioner failed to submit a job description for the beneficiary will be withdrawn.
However, as indicated above, the AAO has considered these job descriptions in adjudicating the instant
appeal and has determined that the petitioner failed to establish that the beneficiary was employed abroad in a
primarily managerial or executive capacity. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting
that the AAO reviews appeals on a de novo basis).
Moreover, it is noted that, at the end of his analysis on page 5 regarding the petitioner's failure to establish
that the beneficiary was performing qualifying duties abroad, the director states "[i]t is concluded that the
record contains insufficient evidence to demonstrate that the beneficiary will be employed in a managerial or
executive capacity." This paragraph appears to be a typographical error, because it addresses the beneficiary's
proposed duties in the United States, which had not been raised as an issue by the director earlier in the
decision. Therefore, this paragraph will be withdrawn. Regardless, as explained above, the AAO has
determined after a thorough review of the record that the petitioner has failed to establish that the beneficiary
was employed abroad in a primarily managerial or executive capacity, and the appeal will be dismissed for
that reason.
WAC 06 207 50740
Page 11
The regulation at 8 C.F.R. § 214.2(l)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by
"[e]vidence 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." Title 8 C.F.R § 214.2(l)(ii)(G) defmes a
"qualifying organization" as a firm, corporation, or other legal entity which "meets exactly one of the
qualifying relationships specified in the definitions of a parent, branch, affiliate or subsidiary specified in
paragraph (l)(l)(ii) of this section." A "subsidiary" is defined, in part, as a legal entity which "a parent owns,
directly or indirectly, more than half of the entity and controls the entity."
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of
Siemens 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 asserted that it is 50% owned by the beneficiary and 50% owned by _
_ he chief executive officer of the foreign entity in India. The foreign entity's tax documents in the
record indicates that the foreign entity in India is a sole proprietorship owned by Neither
nor the beneficiary appear to own or control the foreign entity in India. Therefore, the
petitioner has not established that the two entities are qualifying organizations. The fact that
is the "chief executive officer" and a "director" of the foreign proprietorship does not establish that he owns or
controls the entity. Also, the petitioner's assertion that some or all of its ownership interests are being held
"on behalf' of the foreign entity is not persuasive. The record is devoid of any evidence supporting this
claim.
Furthermore, the record is devoid of any evidence addressing the relationship between the Indian
proprietorship, the petitioner, and the beneficiary's foreign employer since 1999 in the United Arab Emirates.
In order for the beneficiary to be eligible under this visa classification, the petitioner must establish that the
beneficiary's employer abroad in the United Arab Emirates has a qualifying relationship with the petitioner.
The record, however, does not contain any evidence addressing the ownership and control of the employer in
the United Arab Emirates. Once again, going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of
California, 14 I&N Dec. 190.
Accordingly, as the petitioner has failed to establish that it has a qualifying relationship with the beneficiary's
foreign employer, the petition may not be approved for this additional reason.
Beyond the decision of the director, because the petitioner has failed to establish that employer in the United
Arab Emirates is a qualifying organization, the petitioner has also failed to establish that the beneficiary has at
least one continuous year of full-time employment abroad with a qualifying organization within the three
WAC 06 207 50740
Page 12
years preceding the filing of the petition. 8 C.F.R. § 214.2(l)(3)(iv). The petition may not be approved for
this additional reason.
Beyond the decision of the director, the petitioner has failed to establish that the intended United States
operation, within one year of the approval of the petition, will support an executive or managerial position as
required by 8 C.F.R. §214.2(lX3Xv)(c). Specifically, the petitioner has failed to establish that a sufficient
investment has been made in the United States operation. The only evidence in the record addressing an
investment in the new office is a June 2006 bank statement indicating that two deposits totaling $7,500.00 were
made into the petitioner's bank account prior to the filing of the petition. Given the start up expenses projected in
the business plan, it is not likely that this modest investment will permit the enterprise to succeed and rapidly
expand as it moves away from the developmental stage to full operations, where there would be an actual
need for a manager or executive who will primarily perform qualifying duties. Furthermore, the petitioner's
assertion that "funds will be brought into the company" by an American investor once the instant petition is
approved is not persuasive. The petitioner must establish eligibility at the time of filing the nonimmigrant
visa petition. A visa petition may not be approved at a future date after the petitioner or beneficiary becomes
eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248.
Accordingly, the petitioner has failed to establish that the intended United States operation, within one year of
the approval of the petition, will support an executive or managerial position, and the petition may not be
approved for this additional reason.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d at 1002 n. 9 (noting that the AAO reviews appeals on a de novo
basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO/s
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.
________J