dismissed L-1A Case: Household Goods And Furniture

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarr~ted 
um'oa ofperson& privafy 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
y File: WAC 05 019 52081 Office: CALIFORNU SERVICE CENTER Date: a 24 28@ 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
lN 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 orignally decided your case. Any further inquiry must be made to that office. 
-/--;72 / 
< c .Af 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 05 0 19 5208 1 
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 visa petition seeking to extend the employment of its president as an L- 
1 A nonimmigrant intracompany transferee pursuant to section 1 O l(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of California and is allegedly engaged in the business of manufa 
household goods and furniture.' The petitioner claims that it is the subsidiary of 
business entity located in Israel. The beneficiary was initially granted tw6 one-year 
new office in the United States, and the petitioner now seeks to extend the beneficiary's stay for two years. 
The director denied the petition concluding that the record failed to establish that the petitioner and the 
foreign entity are qualifying organizations as defined in 8 C.F.R. 8 214.2(1)(l)(ii)(G). 
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 the director erred and that 
the record establishes that the petitioner is a subsidiary of the foreign entity by virtue of the foreign entity's 
ownership of 51% of the petitioner's stock. In support of this assertion, the petitioner submits a brief and 
additional evidence. 
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. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
I 
It should be noted that, according to California state corporate records, the petitioner's corporate status in 
California is "conditionally dissolved." Therefore, as the petitioner has voluntarily elected to wind up its 
business operations and is completely dissolved (with the exception of not receiving a tax clearance from the 
Franchise Tax Board), the company can no longer be considered a legal entity in the United States. 
Therefore, even if issues raised on appeal were overcome, given the petitioner's current corporate status in the 
United States, it would remain ineligible for the classification sought. 
WAC 05 019 52081 
Page 3 
(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 hirnlher 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 regulation at 8 C.F.R. tj 214.2(1)(14)(ii) also provides that,-a visa petition, which involved the opening of a 
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 (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(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 primary issue in the present matter is whether the petitioner and the foreign entity are qualifying 
organizations as defined in 8 C.F.R. tj 2 14.2(1)(l)(ii)(G). 
In support of its initial petition, the petitioner provided a copy of its Articles of Incorporation indicating that 
the corporation is authorized to issue 1,000 
 bylaws; three 
stock certificates as follows: Certificate #1 (510 shares is 
 Certificate #2 (250 
shares to the beneficiary), and 
the organizational meeting of the 
shares of stock to 
C 
and 400 shares to 
 in exchange for the transfer of property and 
(b) authorized the issuance o no more than 1,000 shares of common stock; wire transfer statements showing 
transferred funds to the beneficia 
 twice in August 2002; and the etitioner's 2003 Form 
petitioner avers that it is owned by 
 (50%) an 50%). 
On December 16, 2004, the director requested additional evidence. Specifically, the director requested, inter 
WAC 05 019 52081 
Page 4 
alia, proof of stock purchase by the foreign entity, a copy of the petitioner's stock ledger, and a detailed list of 
the petitioner's owners. 
In response, counsel to the petitioner indicated that the wire transfer fromo the beneficiary is a 
transfer from the foreign entity because 
 eans "white flowers" in Hebrew. However, counsel 
offered no explanation as to why these 
 to the beneficiary and not to the petitioner. The 
petitioner also provided a copy of the stock ledger which indicates;that the foreign entity owns 51% of the 
petitioner's stock. Finally, the petitioner provided a copy of the peti 
like in its 2003 Form 1120, the petitioner avers that it is owned by 
(50%). i 
On March 29, 2005, the director denied the petition. The director concluded that the record did not establish 
that the petitioner and the foreign entity are qualifying organizations. Specifically, the director determined 
that there are numerous unresolved inconsistencies in the record regarding the ownership of the petitioner and 
that the petitioner failed to establish that the foreign entity made a cash investment in the petitioner in 
exchange for shares of stock. 
On appeal, counsel to the petitioner asserts that the director erred and that the record sufficiently establishes a 
qualieing relationship. Counsel included a copy of excerpts from an amended Form 1120 now listing the 
foreign entity as the 5 1% owner of the petitioner, and describes the averments made in the original 2003 and 
2004 Forms 1120 as "clerical" errors. The petitioner does not provide complete amended returns and does not 
indicate when these returns were filed. Moreover, counsel in -his brief reiterates that the foreign entity 
invested in the petitioner, and acquired its stock, by 
 Israel. Counsel maintains that the 
documentation showing that wires were initiated by 
 orroborates this averment because Perah 
Lavan means "white flowers" in Hebrew. 
 provides no explanation for why 
these transfers were made to the beneficiary and does not offer any translation of the words "Perah Lavan." 
Upon review, petitioner's assertions are not persuasive. 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
10 l(a)(15)(L) of the Act; 8 C.F.R. tj 214.2(1). A "subsidiary" is a firm, corporation, or other legal entity of 
which a parent owns more than half of the entity and controls the entity. See 8 C.F.R. 5 214.2(1)(l)(ii)(K). 
Moreover, the regulations and case law confirm that ownership and control are the factors that must be 
examined in determining whether a qualifying relationship exists between 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 (Comrn. 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. 
WAC 05 019 52081 
Page 5 
In this case, the petitioner alleges that, because the foreign 
 owns 5 1% of its stock, 
the petitioner and the foreign entity have a 
 and the foreign entity 
owns and controls the petitioner. 
 However, because the evidence submitted is full of inconsistencies 
regarding the ownership of the petitioner, the record does not establish that a qualifying relationship exists. 
As indicated above, the petitioner provided documents which point to two different, and conflicting, 
ownership structures. While the stock certificates and stock ledger are consistent with the petitioner's 
averment that it is a subsidiary of the foreign entity, the organizational minutes and the 2003 and 2004 Forms 
1120 indicate instead that the petitioner is owned solely by the beneficiary and his spouse. This latter 
structure would not be qualifying. Although the petitioner dismisses the averments in the Forms 1120 as 
clerical errors and offers on appeal evidence that it has amended its tax returns, there is no evidence that these 
amendments were ever filed and, if they were, that they were filed prior to the decision of the director. 
Moreover, the petitioner offers no explanation as to how this clerical error was made two years in a row, and, 
importantly, offers no explanation as to why the minutes of the organizational meeting of the directors issuing 
all authorized shares of stock to the beneficiary and his spouse are in direct conflict with the stock certificates. 
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 of Ho, 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. Id. 
In addition to the inconsistencies in the record, the petitioner failed to establish that the foreign entity ever 
made an investment in the petitioner in exchange for stock. The regulations specifically allow the director to 
request additional evidence in appropriate cases. As ownership is a critical element of this visa classification, 
the director may reasonably inquire beyond the issuance of paper stock certificates into the means by which 
stock ownership was acquired. See 8 C.F.R. fj 214.2(1)(3)(viii). As requested by the director, evidence of this 
nature should include documentation of monies, property, or other consideration furnished to the entity in 
exchange for stock ownership. Additional supporting evidence would include stock purchase agreements, 
subscription agreements, corporate by-laws, minutes of relevant shareholder meetings, or other legal 
documents governing the acquisition of the ownership interest. 
In this case, the petitioner provided 
 ired money to the beneficiary in August 
2002. While the petitioner asserts that 
 flowers" in Hebrew, the petitioner 
offered no explanation as to why these funds were wired to the beneficiary and not to the petitioner.2 
2 
It must be noted that counsel to the petitioner never provided any evidence that Perah Lavan means "white 
flowers" in Hebrew. The unsupported statements of counsel on appeal or in a motion are not evidence and 
thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Because the petitioner failed to submit certified 
translations of the document in question, the AAO cannot determine whether the evidence supports counsel's 
claims. See 8 C.F.R. $ 103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any 
weight in this proceeding. 
WAC 05 019 52081 
Page 6 
Therefore, since these funds were wired to the beneficiary, the petitioner has not proven that the purported 
parent company ever acquired its stock. Therefore, due to this gap in the evidence coupled with the 
inconsistencies in the record discussed above, the petitioner has not established that it has a qualifying 
relationship with the foreign entity. For this reason, the petition may not be approved. 
Accordingly, the petitioner has not established that the petitioner and the foreign entity are qualifying 
organizations as defined in 8 C.F.R. 5 214.2(1)(l)(ii)(G). 
The director's decision does not indicate whether he reviewed the approvals of the initial new office petitions. 
However, if the previous nonimmigrant petitions were approved based on the same evidence of a qualifying 
relationship that is contained in the current record, the approvals would constitute material and gross error on 
the part of the director. The AAO is not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church ofScientology International, 19 I&N Dec. at 597. It would be absurd to suggest that Citizenship and 
Immigration Services (CIS) or any agency must treat acknowledged errors as binding precedent. Sussex 
Engr. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). In 
addition, a prior approval does not preclude CIS fi-om denying an extension of the original visa based on a 
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5fi Cir. 2004). 
Beyond the decision of the director, an additional issue is whether the petitioner has established that the 
beneficiary will be employed by the United States entity in a primarily managerial or executive capacity. 
Section 10 l(a)(44)(A) of the Act, 8 U.S.C. 9 1 10 1 (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. 
WAC 05 0 19 5208 1 
Page 7 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 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 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. 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A beneficiary may not claim to be 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. Given the lack of clarity, the AAO 
will assume that the petitioner is asserting that the beneficiary is acting either as a managerial or as an 
executive and will consider both classifications. 
In the initial petition, the petitioner included a support letter dated October 14, 2004, in which it describes the 
beneficiary's job duties and elaborates on what percentage of time the beneficiary devotes to each duty. 
These duties include manage human resources (20%); review activity reports and financial statements (15%); 
manage sales and promotional activities (15%); liaise with suppliers, contractors, and professional agents 
(15%); expand business (10%); establish policies and objectives (10%); liaise with foreign entity (10%); and 
examine and review market opportunities (5%). However, the petitioner failed to provide any specific 
examples illustrating the beneficiary's performance of these duties. The petitioner also provided copies of 
wage reports from the last quarter of 2003 and the first three quarters of 2004 indicating that the petitioner 
employed four or less people from October 1,2003 through September 30,2004. 
In response to the request for evidence, counsel to the petitioner provided a different set of job duties for the 
beneficiary with different percentages of time spent on each duty.3 The petitioner also provided an 
3 
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
CIS requirements. See Matter of Izurnmi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). As such, the AAO 
will only consider the duties and the corresponding percentages provided by the petitioner in its support letter 
appended to the initial petition. 
WAC 05 01 9 5208 1 
Page 8 
organizational chart which places the beneficiary at the top of the organization. According to the chart, the 
beneficiary directly supervises three employees: a human resources/accounting employee, an operations 
manager, and a sales manager. The operations manager, in turn, supervises the storage and moving 
employees, while the human resources/accounting employee supervises an unnamed administrative assistant. 
Finally, the petitioner lists all ten of its employees, all of whom have no more than a high school education. 
The petitioner does not provide job descriptions for the employees nor does it offer an explanation as to why 
its list of ten employees is more than twice the number of employees identified in the wage reports appended 
to the initial petition. It must be concluded, given the petitioner's inclusion of Forms W-9, that these 
additional employees are actually independent contractors. 
Upon review, the AAO has concluded that the petitioner has not established that the beneficiary will be 
employed by the United States entity in a primarily managerial or executive capacity. 
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. fj 214.2(1)(3)(ii). 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. As explained above, a petitioner 
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are 
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager~' and rely on partial 
sections of the two statutory definitions. 
The petitioner's description of the beneficiary's job duties has failed to prove that the beneficiary will act in a 
"managerial" capacity. In support of its petition, the petitioner has 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 broadly that the beneficiary's duties include developing and 
establishing policies, organizing and developing business capabilities, and reviewing sales strategies. The 
petitioner did not, however, define the beneficiary's policies, the developed business capabilities, or the 
reviewed sales strategies. The petitioner's elaboration on what percentage of time the beneficiary devotes to 
each duty is not helpful given the vague, non-descriptive duties listed in the support letter. 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 (Reg. Comm. 1972). Specifics 
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees. While the petitioner provided an organizational chart 
and employee list, these documents do not establish that that the beneficiary supervises and controls the work 
of supervisory, managerial, or professional employees.4 Most of the employees are employed as movers. 
4As a threshold issue, most of the people employed by the petitioner appear to be independent contractors, and 
not employees of the petitioner. As indicated above, the petitioner's wage reports establish that it has 
WAC 05 019 52081 
Page 9 
Since the petitioner failed to provide job descriptions for the remaining subordinate employees, particularly 
the operations manager, the sales manager, and the human resources/accounting employee, it cannot be 
determined whether these employees are supervisory, managerial, or professional. In view of the above, the 
beneficiary would appear to be a first-line supervisor, the provider of actual services, or a combination of 
both. 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); see also Matter of Church Scientology International, 19 I&N Dec. at 604. A 
managerial or executive 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. 101(a)(44)(A)(iv) of the 
Act; see also Matter of ChurchiScientology International, 19 I&N Dec. at 604. Also, since the record fails to 
reveal the educational or skill levels necessary for entry into the positions held by the subordinate employees, 
it cannot be determined if they rise to the level of professional employees.5 Therefore, the record does not 
prove that the beneficiary is acting in a managerial capacity.6 
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employed no more than four people since October 2003. Therefore, it must be concluded that these additional 
employees, many of whom completed Forms W-9, are independent contractors. The beneficiary's supervision 
of these independent contractors is not qualifying under the clear language of the Act, which requires the 
supervision or control of employees. 
5 
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 101(a)(32) of the Act, 8 U.S.C. 5 1 101(a)(32), states that "[tlhe term profession 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 of Shin, 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 subordinate employee. The possession of a bachelor's 
degree, or even a master'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. 
6 
While the petitioner has not specifically argued that the beneficiary manages an essential function of the 
organization, the record nevertheless would not support this position. 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 
101(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. 9 214.2(1)(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 manages an essential function. Despite its use of percentages, the 
WAC 05 01 9 5208 1 
Page 10 
Similarly, the petitioner has failed to prove that the beneficiary will act 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 lOl(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 malung" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. As indicated above, while the petitioner may have provided a vague 
job description which reiterates the regulations, the petitioner has failed to prove that the beneficiary, who is 
managing three employees or less with unknown job duties, will be acting primarily in an executive capacity. 
Therefore, it must be concluded that the reasonable needs of this moving company, in light of the overall 
purpose and stage of development of the organization, do not require the services of an executive employee. 
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. 200 1). 
Accordingly, 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. 5 214.2(1)(3), and the petitioner may not be approved for that 
reason. 
The initial approval of an L-IA new office petition does not preclude CIS from denying an extension of the 
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556, 
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have 
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a 
subsequent petition. See section 291 of the Act, 8 U.S.C. 5 1361. 
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), afyd, 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 
- - 
petitioner's vague job description fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. Absent a clear, specific, and credible 
breakdown of the time spent by the beneficiary performing his duties, the AAO cannot determine what 
proportion of his duties would be managerial, nor can it deduce whether the beneficiary is primarily 
performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 
24 (D.D.C. 1999). 
WAC 05 019 52081 
Page 11 
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 of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
Finally, based on the reasons for the denial of the instant petition, a review of the prior L-1 nonimmigrant 
petitions approved on behalf of the beneficiary is warranted to determine if they were also approved in error. 
Therefore, the director shall review the prior L-1 nonimmigrant petitions approved on behalf of the 
beneficiary for possible revocation in accordance with 8 C.F.R. § 2 14.2(1)(9). 
ORDER: The appeal is dismissed. 
FURTHER ORDERED: 
 The director shall review the prior L-1 nonimmigrant petitions approved on 
behalf of the beneficiary (WAC-03-016-55269 and WAC-04-018-51934) for 
possible revocation pursuant to 8 C.F.R. 9 2 14.2(1)(9).