dismissed L-1A Case: Import/Export

ld .,... -..1 d1 entrtymg data delete to
prevent clearly unwarranted
invasionof personal privacy
U.S. Department of Homeland Security
20 Mass Ave., N.W., Room 3000
Wash ington , DC 20529
U.S. Citizenship
and Immigration
Services
File: WAC 05 061 52663 Office: CALIFORNIA SERVICE CENTER Date: FEB 07 200ff
INRE: Petitioner:
.Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of.the Immigration
. .and Nationality Act , 8 U.S.c. § 1101(a)(15)(L)
. 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.
c-p ~ .a. Robert~rann, ~y-
Administrative Appeals Office
www.uscls.gov
WAC 05 061 52663
Page 2
DISCUSSION: The Director of the California Service Center deriied the nonimmigrant visa petition, and the
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a new office engagil1g in the export and import of building and construction materials,
automotive parts and other goods. It seeks to employ the beneficiary as its executive director and filed a
petition to classify the beneficiary, as an L-l A non immigrant intracompany transferee pursuant to section
101(a)(15)(L) of the Immigration and National ity Act (the Act), 8 V.S.c. § 1101(a)(15)(L) . The petitioner
claims on Form 1-129, Petition for a Nonimmigrant Worker, that it is an affiliate of
located in Amman, Jordan.
The director denied the petition after determining that the petitioner has not sufficiently demonstrated that (1)
the beneficiary was employed abroad in a primar ily managerial or executive capacity for one continuous year
out of the three years preceding the filing ofthe petition, and (2) there exists a qualifying relationship between
a qualifying foreign entity and the petitioner.
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 , counsel for the petitioner asserts that the beneficiary
has been employed abroad in a managerial or executive capacity. Counsel also asserts that the foreign entity
,and the petitioner are owned and controlled by the ,same individual and therefore a qualifying relationship
exists between them. In support of these assertions , the petitioner submits additional evidence.
To establish L-l eligibility , the petitioner must meet the cr iteria outlined in section 101(a)(15)(L) of the Act, 8
U.S.C. § 1101(a)(15)(L). Specifically , within three years preceding the beneficiary 's application for
admission into the :United States, 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.
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:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organization s as defined in paragraph (l)(l )(ii)(G) of this section.
(ii) Evidence .that the alien will be employed in an execu tive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) E vidence 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
WAC 05 061 52663
Page 3
education, trammg, and employment qualifies himlher 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.
Moreover, pursuant to the regulation at 8 C.F.R. § 2l4.2(l)(3)(v), if the petitioner indicates that the
beneficiary is coming to the United States as a manager or executive to open or be employed in a new office
in the United States, the petitioner shall submit evidence that:
(A) Sufficient physical premises to 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;
(C) The intended United States operation, within one year of the approval of the petition,
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B)
or (C) ofthis section, supported by information regarding:
(1) . The proposed nature of the office describing the scope of the entity, its
organizational structure, 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) Theorganizational structure of the foreign entity.
The first issue in this proceeding is whether the beneficiary was employed abroad in a primarily managerial or
executive capacity for one continuous year in the three years prior to the filing of the petition.
/
On Form 1-129, the petitioner claims that the beneficiary is' employed by in
Amman, Jordan. In a letter submitted with the initial petition, the petitioner indicates that the beneficiary has
been employed since 1976 as executive director of in
Baghdad, Iraq, and since 2004 as executive director of ••••••••••••••• '
letter, the petitioner claims that both of these entities are subsidiaries of the petitioner.
On January 10,2005, the director issued a request for further evidence. In connection with the beneficiary's
employment abroad, the director requested the foreign company's payroll records for the year preceding the
filing of the petition, along with the date the beneficiary was hired, the positions that he held, and a statement
of the reason why the beneficiary was being hired for the position with the U.S. entity. To establish that the
beneficiary was employed abroad in a managerial or executive capacity, the director requested: (1) the total
number of employees at the foreign location where the beneficiary is employed; (2) the foreign entity's
organizational chart identifying the beneficiary's position, the names of all executives, managers and
WAC 0506152663"
Page 4
supervisors, and all employees under the beneficiary's supervision by name and job title , with a description of
job duties , educational level and annual salaries for each such employee ; (3) a detailed description of the
beneficiary's duties abroad , indicating the percentage of time spent on each duty , and (4) an explanation of
why the beneficiary is coming to the United States at this time , why a lower level manager was not selected ,
and how the foreign company will continue to function in the beneficiary's absence .
In response to the director's request, the petitioner submitted the payroll records for the company in Jordan for
the period from June through November 2004, and for the company in Baghdad from September 2003
through May 2004. In the documentation submitted in response to the request for further evidence , the
beneficiary is variously referred to as the "director" and the "general manager" of the foreign entities. The
petitioner provided the following description of the beneficiary's job duties overseas (without specifying the
location where he performs these duties):
Elaborate company's strategy
Set annual business plan/targets
Monitor the performance o'rall divisions and key individuals
Recruit/[c]ontract necessary staff
Review business progress with key staff
Review improvements/action plans suggested by group divisions
Contribute to the sales and marketing effort of the company, by providing contacts/business openings
Maintain healthy relationship with key customers and vendors
Asses[ s] new ventures
Review periodic reports
Represent the company
The petitioner also provided the following breakdown of the beneficiary's duties based on percentage of time
spent per duty:
Asses[s] new ventures/ developments 20%
Marketing/PresentationslDevelop New Contacts 20%
Administration and recruitment 10%
Review of work progress 10%
Review of accounts 10%
Management meetings . 5%
Set strategies/ planning 20%
Miscellaneous 5%
The petitioner submitted organizational charts for both of the foreign companies , on which the beneficiary
was listed as director at the top of the corporate hierarchy of each company. The organizational chart for the
company in Baghdad shows the following employees under the direct supervision of the beneficiary: a senior
accountant, a legal adv isor, a deputy manager , and two showroom managers who in turn have additional
subordinate staff. The chart of the company in Jordan shows the following employees under the direct
.. supervision of the beneficiary: a deputy manager , an accountant, a "logistics" employee, a "procurement"
employee, a secretary , a senior engineer who supervises another engineer , and a sales manager who
WAC 05 061 52663
Page 5
supervises additional sales staff. The petitioner .provided the name, title , brief job description, educational
level and annual salary for each of the beneficiary's immediate subordinates listed above, except for the
secretary in the Jordanian company.
On.March 17,2005 , the director denied the petition , concluding that the petitioner has failed to show that the
beneficiary was employed abroad in a primarily managerial or executive capacity for one continuous year in
the three years prior to the filing of the petition . Specifically, the director noted that the petitioner desc~bed
the beneficiary's duties only in broad' and general terms with insufficient details to demonstrate that the
beneficiary actually is employed in a managerial or executive capacity. Moreover, the director noted that the
petitioner did not submit an organizational chart and failed to identify the beneficiary's subordinates at the
foreign employer, as requested. The director observed that a preponderance of the beneficiary's duties
appears to have been directly providing the services of the foreign organization and supervising non­
professional employees. The director found the petitioner has not demonstrated that the beneficiary has been
primarily supervising a subordinate staff of professional , managerial or superv isory personnel who would
relieve the .beneficiary from the performance of non-qualifying duties, or otherwise has been primarily
managing the organization , or a department , subdivision , function, or component of the organization .
Moreover, the director found , the petitioner has not demonstrated that the foreign entity has a level of
organizational complexity wherein the hiring/firing of personnel, discretionary decision-making , and setting
company goals and policies constitute significant components of the duties performed on a day-to-day basis .
On appeal, counsel for the petitioner asserts that the beneficiary manages an essential function overseas in
that he travels to different countries to negotiate and enter into contracts on behalf of the company. Counsel
also asserts that the beneficiary has managerial control and authority over all of the functions of the
operations of the comp any in Jordan and Iraq . Counsel also contends that the AAO has recognized that
. overseeing a corporation and its employees is a functional managerial position even when employees are not
.professionals and there are no mid-level supervisors. Counsel further claims that beyond supervising
warehouse workers, the beneficiary has other duties that qualify him as a manager.
Upon review, the AAO finds that the record is insufficient to establish that the beneficiary was employed
overseas in a primarily executive or managerial 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. § 214.2(l)(3)(ii). The petitioner's description of the.job duties must clearly describe the dut ies to be
performed by the beneficiary and indicate whether such duties are either in an executive or managerial
capacity. Id. First, as the d irector observed, the. petitioner's description of the beneficiary's job duties is
insufficient in deta il. Phrases such as "elaborate company's strategy ," "set annual business plan/targets ,"
"contribute to the sales and marketing effort of the company ," or "represent the company" are vague and
nonspecific and fa il to demonstrate what the beneficiary does on a day-to-day basis. Reciting the
beneficiary's vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations
require a detailed description of the beneficiary's daily job duties. The petitioner has failed to answer a
critical question in this case: What does the beneficiary primarily do on' a da ily basis? The actual duties
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp . 1103,
1108 (E.D.N.Y. 1989), affd , 905 F.2d 41.(2d. Cir. 1990).
WAC 05 061 52663
Page 6
Furthermore, while the petitioner did provide a breakdown .of the beneficiary's duties by percentage of time
spent per duty, that breakdown applies to a different set of duties from those listed in the document identified
as the beneficiary 's "job description." The petitioner did not reconcile the difference between these two lists
of job duties. 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 tru th lies. Matter ofHo, 19 1&N Dec.
582,591-92 (BIA 1988). Moreover , based on the information provided, the AAO cannot determine what the
beneficiary's exact dut ies are, nor can it determiiIe the amount of time he actually 'spends on each duty ;
consequently, it cannot be determined whether the beneficiary primarily performs managerial or executive
duties, as the regulations require. See Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470
(9th Cir. July 30, 1991) .
The AAO also finds that , although the petitioner did provide some of the requested information regarding the
foreign entities' personnel, the information provided is either inconsistent or incomplete ,such that it is not
possible to determine accurately the size and makeup of the staff of either fore ign entity.I For example, in
response to the request for further evidence , the petitioner stated that the foreign entity's staff consists of 45
employees, including 4 in administration , 2 in accounts , lOin sales, 4 in operations , 4 in engineering , 2 office
staff, 2 store keepers , 2 drivers , and 15 laborers. However, the petitioner did not specify whether these
numbers represent the staff in Jordan, in Iraq , or both . Furthermore, this information does not match either of
the organizational charts of the foreign entities that the petitioner provided, nor does it conform to ' the payroll
records for either of the foreign entities? As previously noted, the petitioner must resolve any inconsistencies
in the record by independent objective evidence. Matter ofHo , 19 1&N Dec. at 591-92. Doubt ca st 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 : ld. ;.
Furthermore, the evidence is insufficient to demonstrate that the beneficiary was employed abroad with a
qualifying organization for one continuous year in the three years prior to the filing of the petition. First , the
exact identity of the beneficiary's foreign employer is unclear. As noted earlier , the petitioner stated on the
Form 1-129 that the beneficiary works for , Jordan. However, in a letter
accompanying the petition , the petitioner indicated that the beneficiary has been working as executive director
of , Baghdad, Iraq since 1976 , and as executive director
.of in Amman , Jordan since 2004 . Again, the petitioner must resol ve any
inconsistencies in the record by independent objective evidence , and the petit ioner did not explain or, ' ' I
reconcile th~s inconsistency. See Matter ofHo , 19 1&N Dec. at 591-92.
I In his decision , the director stated that the petitioner has failed to submit an organizational chart and to
identify the beneficiary's subordinates at the foreign employer as requested. However , the AAO
acknowledges that the petitioner did in fact submit organizational charts for the entities in Iraq and Jordan and
some information regarding some of the beneficiary's subord inated employees . '
2 It is noted that the payroll records the petit ioner provided have not been translated , nor has the petit ioner
specified the currency in which the salaries were paid to employees. Additionally, only some of the
employees were identified by name in English on the payroll records.
WAC 05 061 52663
Page 7
Second, as will be discussed more fully below , the petitioner has not shown that either of the foreign entities
is a "qualifying organization" as defined under the regulations at 8 C.F.R.§ 214.2(1)(1)(ii). Given these
deficiencies in the record , the AAOdoes not find the evidence to be sufficient to support the conclusion that
the beneficiary was employed abroad with a qualifying organization for one continuous year in the three years
prior to the filing of the petition , as required under 8 C.F.R. § 214.2(1)(3)(iii) .
In light of the foregoing, the AAO concurs with the director's conclusion that the petitioner has fa iled to
establish that the beneficiary was employed abroad in a managerial or executive capacity for one continuous
year in the three years prior to the filing of the petition, as required under 8 C.F.R. § 214.2(1)(3).
,
The second issue in this proceeding is whether the petitioner has established that a qualifying relationship
exists between the beneficiary's foreign employer and the u.s. entity.
The pertinent regulations at 8 C.F .R ~ § 214.2(1)(l)(ii) define the term "qualifying organization" and related
terms as follows :
(G) Qualifying organization means a United States or foreign firm , corporation, or other
legal entity which:
(1) Meets exactly one .of the qualifying relationships specified in the
definitions of a parent, branch , affiliate or subsidiary specified in
paragraph (1)(1)(ii) 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)(15)(L) of the Act.
* * *
(1) Parent means a firm, corporation , or other legal entity which has subsidiaries .
(J) Branch means an operating division or office of the same organization housed in a
different location.
(K) . Subsidiary means a firm, corporation , or other legal entity of which a parent owns,
directly or indirectly , more than half of the entity and controls the entity; or owns ,
directly or indirectly, half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact
controls the entity.
WAC 05061 52663
Page 8
(L) Affiliate 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 6wning and controlling approximately the
same share or proportionof each entity.
On the L Supplement to Form 1-129, the petitioner indicated that the U .S. entity and the foreign entity are
affiliates and described the ,stock ownership and managerial control of each company as follows:
-:=====:~: (Jordan & Iraq) (100% ownership)• (USA) (50% ownership)
In a letter accompanying the petition, the petitioner stated,
••••IBaghdad, Iraq and Jordan are all subsidiaries of •••••••••
Inc." The petitioner submitted a copy of a certification from the recorder of free regions corporations in
Jordan confirming that was registered as a limited responsibility company on July
10,2004, and that 50% of its shares are held by the beneficiary and 50% by an individual named 11]••••
•••••••. The petitioner' also submitted several real property registrations filed with the ministry of
justice in Iraq, but it is unclear how and if these registration documents relate to the company in Iraq . With
respect to the U .S. entity, the petitioner submitted, among other things, the articles of incorporation, filed on
September 30, 2004, identifying the company as a corporation formed "in the State at Arizona. At the same
time, the petitioner provided a limited partnership agreement , dated November 12, 2004, identifying the entity
as a limited partnership under the laws of the State of Arizona. The limited partnership agreement indicates
that the two partners, , each made an initial capital contribution of
US$550,000 to the entity. The petitioner did not submit any other documentation relating to the ownership
and managerial control of the U.S. entity.
In his request for further evidence, the director requested the following documentary evidence of the
qualifying relationship between the U.S . and foreign entities: (1) evidence that the foreign company has in
fact paid for its shares of the U.S. entity, including copies of the orig inal wire transfer from the parent
company and, for funds not originating with the foreign entity, an explanation of the source and reason for the
transfer of such funds, (2) copies of all stock certificates of the U.S. entity issued to the present date , and (3)
copies of the US. entity's stock ledger showing all stock certificates issued to the present date. ,
In response , the petit ioner submitted a copy of the U.S. entity's share certificates number 102 and 103,dated
October 1, 2004, showing that the beneficiary and an indiv idual named each owns 50 shares
of the company . The petitioner also submitted a copy of a wire transfer dated July 12, 2004, in the amount of
US$49,975.00, from the beneficiary's bank account to what appears to -be the personal account of
••• The petitioner did not provide a copy of the U.S. entity's stock ledger as requested .
WAC 05 061 52663
Page 9 .
In denying the petiti on, the direct or observed that .whil e t he e videnc e of record doe s indicate that some
common owner ship exists b etween the U.S " and f oreign e ntities, namely that the beneficiary own s 50% of
each entity, signific ant co mmo n ownership a lone is not s uffic ient to e stablish a n affiliat e relationship between
the two entities as defined in th e rele vant regulations. T he director also not ed that there is no evidenc e that a
parent-subsidiary relationship ex ists betwe en the two entit ies. Therefore , the d irector concluded, the record is
insufficient to show that th ere is a qualif ying relationship between the t wo entities.
On appeal, counsel simp ly claims that the U.S. entity and the foreign entit y are owned and controlled by one
individual, the benefi ciary . Counsel did not submit any evidence in support of this claim.
At the outset, the AAO find s counsel's claim regardin g the ownership and control of the two entities to .be
without merit. . Couns el's cla im that the benefic iary o wns and controls both the U.S . and foreign entities is
incons istent with th e e vidence previousl y submitt ed on this issue , and couns el has pro vid ed no new evidence
to support this claim .
In reviewing the record , the AAO agrees with th e director' s conclusion that the e vidence is insufficient to
demon strate that a qu alifying relation ship exis ts b etween the U.S. and foreign e ntities as required under 8
e.F.R. § 214 .2(1)(3)(i): ' The re gu lations and caselaw confirm that owner ship a nd c ontrol are the factors that
.must be e xamined in d etermin ing wheth er a qu alifying relationship exists between the U .S. and foreign
. entities for purpo ses o f thi s visa cla ssificati on. Matter of Church S cientology International , 19 I&N Dec . 593
(Conun. 1988); see also Matter of Siemens Medical Systems, In c., 19 I&N D ec. 3 62 (BI A 1986) ; Matt er of
Hughes, 18 I&N Dec. 289 (Comm, 1982) . Ownership refers to the direct or indirect legal right of possession
of the assets of an entity w ith full po wer and authority t o control ; con trol means the d irect or indire ct legal
right and authorit y to direct the establishment , manag ement, and operation s of an ent ity. Matt er of Church
Scientology International; 19 I&N Dec. at 595 . .
The AAO notes that the petitioner has provided incon sistent evidence with regard to the formation and legal
status of the U.S. entit y. As described above , the p etit ioner submitted the articles of incorporation of the U.S .
company identifying it as a c orporation formed und er the laws of the State of Arizon a. At the same time , the
petitioner submitted a limit ed partnership a greement iden tifying the company as a limited partnership formed
und er Arizona law . T he p etiti oner has not explained or reco nciled this discrepancy, nor has the petitioner
clarified wh ich typ e of legal e ntity the U .S. co mpany actually is." Again, t he p etitioner must res olve a ny
inc onsi stencies in th e record by independent objective evid ence. See Malter ofHo, 19 I&N Dec . at 591-92.
It i ~ noted foi· th e record t hat the anal ysis of the dir ector is incorrect with regar d to the insuffici ency of
50% owner ship a nd de.facto control of an entit y. As s uc h, the director' s erroneou s c omments with regard to
th is issue are her eb y withdrawn . Howe ver , the director's co nclusion th at the petition er has failed to establish
a qu alifying relati onship in thi s matt er is co rrect for the re asons discus sed infra .
4 The AAO notes that a search of the pub lic records filed w ith the Arizon a Co rpo ration Commi ssion (ACe)
reveals that the U .S. e ntity was formed as a co rporation in Arizona , but h as si nce been admini strat ive ly
dis solved by the ACC effective September 16, 2005 for failure to file an affida vit of publication for articles
filed with the ACe. The petitioner has not provide d the Citizenship and Immi gration Services (CIS) with any
WAC 05 061 52663
Page 10
Moreover, the record is insufficient to establish the ownership and control of the U.S. entity. The pet itioner
provided copies of stock certificates showing that the beneficiary and another individual each own 5 0 shares ·
of the U .S. entity. As g eneral evidence of a p etitioner's claimed qualifying relationship, s tock certificates
alone are not sufficient e vidence to determine w hether a stockholder m aintains ownership and c ontrol of a
corporate entity. The corporate stock certificate l edger, stock certificate registry, corporate bylaws, a nd the
' minutes of relevant a nnual shareholder me etings m ust also be examine d to determine the total number of
shares issued, th e exac t nu mber issued to th e shareholder, and the subsequen t percentage ownership and its
effect on corporate control. Additionally, a petit ioning company must di sclose all agreements relating to the
voting Qf shares, the distribution of profit, the m anagement and, direction o f the subsidiary, and any other
factor affecting actual control of the entity . . See Matter of Siemens M edical Sys tems, Inc., 19 I&N Dec. at
362.
The regulations specifically a llow the director to r equest a dditional e vidence i n appr opriate cases. See 8
. C.P.R. § 214.2(l)(3)(viii). A s ownership i s a c ritical element of this v isa classification, the director may
reasonably inquire beyond t he issuance of paper stock certificates into th e means by which stock ownership
was acquired . In this matter, the director had re quested the comp any's s tock l edger as well as any wire
transfers documenting monies, property, or other consideration furni shed to t he entity in exchange for stock
ownership . The petitioner did not provide a co py of the company's stock ledger, as the director requested , or
any other documentation relating ~ o the company's stock issuance. While tlie petitioner-did submit a copy of a
wire tran sfer dated July 12, 2004, in the am ount of 0 S$49,975.00, the transfer appears to ha ve been from the
beneficiary's personal acco unt to the personal acco unt o f the U.S. entity's other s ha ~ eho l der. The petitioner
did not e xplain how this fund tran sfer relates to the ca pitalization o f the U.S. entity, despite the director's
request for e vidence of the source and rea son for fund t ransfers that are n ot di rectly between the U.S . and
foreign entities .". Without full disclosure of a ll r elevant documents, the petitioner's claims regarding the
ownership and cont rol o f the U .S. entity cann ot be verified. Moreover , failure to, submit requested e vidence
that precludes a mat erial line ofi nquiry shall be grounds for denying the petiti on. 8 C.F.R. § 103.2(b)(l4).
As previously noted, t he p etitioner also submi tted a limited partnership a greement, which states that the
beneficiary and an other i ndividual each cont ributed $ 550,000 as initial capit alization for the U.S. entity .
Even ass uming that th e agreement is a valid document, the record contains no documentation of these capital
contributions .. Thus, eve n without taking into consideration the i ssue.of inconsistent ev idence re garding the
corporate status o f the U.S. entity, the record fails to provide corroborating e vidence of the ownership interest
in, and capitalizati on of, the U.S. entity is as set forth in the limited partnership agreement. .
information regarding this ac tion b y the A CC or any subsequent action th e petitioner may have taken to
remedy the situation. Thu s, the current legal status of the U.S. entity is unclear.
5 A handwr itten notation on the cop y of the wiretra nsfer states that the fund s were "from •••••••
; ' ) to ," and a notation on the foll owing page states I
on July 6, 2004." However , there is no explanation as to h ow this
transaction relates to the capitalization of the U.S. entity.
WAC 05061 5266 3
Page 11
The e vidence of record indicates tha t there a re two foreign companies , one in Iraq and one in Jordan , that may
be related to the U.S. entity in que stion. The petitioner has failed to mak e clear whether it is claiming to have
a qualifying relati onship with one or both of those en tities, thus the AAO will consider th e relationship of the
U.S. entity to b oth fo reign entities. R egarding the c ompany in Iraq , the pet itioner has submitted no
documentat ion ·that would sh ed light on the c ompany's ow nership or control. As noted earlier ,the petitioner
did submit several re al propert y certification s relating to certain real propert y in Iraq, but the petitioner did not
offer any explanat ion as to how this document ation pertains to the comp any i n Ir aq. Without any evidence
demonstrating the o wnership a nd control of the Iraqi ent ity, the AAO cannot determine whether that company
is a "qualifying organization" pursuant to the r egulations at 8 C.F.R. § 214 .2(1)(1)(ii). Further, since the
record is insufficient to establish the ownership and c ontrol of the U.S. entity, as discussed above, the AAO is
unable to determine whether the Jordanian entity and the U.S. entity share common ownership and control
and thus are affili ates, as counsel cl aims .
Based on .the evid ence s ubmitted , the AA O fi nds that the petitionerh as not est ablished that a qualifying
relationship exists between the U.S. and for eign organizations .
Beyond the di rector's decision , the pet itioner has not es tablished th at it h as s ecured sufficient physical
premises to h ouse t he n ew offi ce pur suant to the regulation a t 8 C.F.R. § 2 14.2(1)(3)(vi)(A). Along with the
Form 1-129, the petitioner s ubmitted a cop y o f a lease for premise s at 2908 W. · Camelback Rd., Phoenix ,
Arizona. The lease was s igned on December 2 1, 2004, and the lease term i s from Janu ary 15, 2005 through
January 14, 2006 . In its response to the dire ctor's re q ues ~ for further e vidence , the petitioner provided another
lease for premis es at 8245 Sunland Bl vd., Sun Valley, Califomia , w ith a le ase term of March 15, 2005
through March 15, 2007 . First, neither of these ad dresses are the sam e as that provided as the petitione r's
addre ss on the Form 1-)29 and elsewhere in the record. Second , the lease term on both leases commence after
the filing of the pe tition, a nd thu s the petiti oner ca nnot b e said to have secured suffic ient physical premi ses to
house the new office at the t ime the petition was filed. The petitioner must est ablish eligibility at the time of
the filing Ofthe non immigrant visa petition. A visa petition may not be approv ed at a future date after the
petitioner or benefici ary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N
Dec. 248 (Reg. Comm. 1 978). The petitioner also has not de scribed the anticip ated space requirements for its
business, nor do the l eases in the record specify the amount or type of space secured . Moreover, although the
petit ioner claims t hat these premises are bein g used to house its new office , the petitioner is listed as lessor
rather t han l essee o n b oth leases . The p etitioner has not explained or addressed these inconsi stencie s a nd
irregularities an ywhere in the re cord. As p reviously noted, it is incumbent upon the petitionerto resolve any
inconsistencies in th e record by independent objective evidence. An y attempt to explain or recon cile such
inconsi stencies will not suffice unle ss the p etitioner submits competen t obj ective evidenc e pointing to where
the truth lies. Matter ofHo, 19 I&N Dec. at 591-92. Doubt cast on any as pect o f the petitioner's proofmay ,
"of course , lead to a r eevaluation of the reliab ility and sufficiency of the r emainin g evidence offered in support
.of the visa petition. ld. In light of the se deficiencies in th e record, the AAO cannot determine whether the
petitioner has s ecured sufficient space to h ouse the new office. For this additional reason , the petition may
not be appro ved.
In addition , the 'petitioner has not pro vided a dequate d ocumentation to e stablish that the U.S. entit y will
support the benefi ciary in a managerial or e xecutive position within one year o f approval of the petition. In
order to qualify forL>I nonimmigrant classification during the first year of operat ions, the regulations require
WAC 05 061 5 2663
Page 12
the petitio ner to disclose the business plans, organizational structure, and size of the United States in vestment,
and thereby establish t hat the proposed enterpri se will support an executi ve or managerial position within one
year of the appro val o f the petition. See 8 C.F.R. § 2l 4.2(1)(3)(v)(C). This e vidence s hould demonstrate a
realistic expectation that th e enterprise will succeed and rapidl y ex pand a s it mo ves away from the
developmental stage to full operations, wh ere there would be an actual n eed for a manager or executive who
.will primarily p erform qualifying duties. Other tha n two letters dated 'September and October 2004 from the
beneficiary to the other shareholder o f the U .S. entity s tating very br iefly the foreign entity's intention to
expand into the U.S. m arket, the record doe s not contain any detailed bu siness plan in which the company 's
policies, strategies, organizational structure and financial goals are clearly defined. The petitioner did submit
what appears to be a proposed organizationalch artfor the U.S. entity and j ob a pplications from several
individuals, but there ar e no projections for the hirin g of any employees in addition·to the beneficiary. It is
therefore unclear wh ether any of the propo sed sta ff w ould be in place to r elieve the beneficiary from
performing non-quali fying job duties to permit him t o function in a primarily mana gerial capacity within one
year of the filing of the petition. Moreover, given that no information has been provided regarding start up
costs or other finan cial projections for the U.S. entity, the AAO cannot det ermine w hether the foreign ent ity
has the finan cial a bility to remunerate the b eneficiary a nd to commence doing business in the United States ,
as required by the regulation a t 8 C.F.R. § 214.2(1)(3)(v )(C)(2). For this additional reason, the petition ma y
not be approved.
. . .
An appli cation or p etition that fails to c omply w ith the technical requirements of the la w: may be denied by
the AAO even if the Service Center does not id entity a ll of the grounds for denial in the initial deci sion. See
Sp encer Ente rp rises, In c. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aIrd , 345 F.3d 683
(9th Cir. 2( 03); se ealso D ol' v. INS, 891 F .2d 99 7, 1002 n. 9 (2d Cir. 1 989) {noting that the AAO r eviews
appeals on a de novo basis).
The · petition will b e denied for the above stated r easons; with each considered as an independent and
alternative basis for d enial. When the AAO denie s a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if she shows that the AAO abused it discretion with respect to all of the AAO's
enumerated grounds . See Sp encer Enterpris es, Inc. v. United States, 229 F. Supp. 2d at 1043.
In visa petition. proceedings; t he burden of proving eligibility for the benefit so ught reI? ain ~ entirely with the
petitioner. Section 29 ] of theAct, 8 U.S.c. § 1361. H ere, that burd en has not been me t. Accordingly, t he
director 's decision will be affirmed and the petition will be denied.
ORDER: The appeal is dismissed.