dismissed L-1A Case: Import/Export

r
PUBLIC COpy
identifying data deleted to
prevent clearly unwarranted
invasion ofpersonalprivacy
U.S. Department ofHomeJlIDd Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship .
and Immigration
Services
File: EAC 04 24251244 Office: VERMONT SERVICE CENTER Date: SEP 052001
IN RE: 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.
R~~ef
Administrative Appeals Office
www.uscis.gov
EAC 04 24251244
Page 2
DISCUSSION: The Director, Vennont 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 president
to open a new office in the United States as an L-1A nonimmigrant intracompany transferee pursuant to
section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The
petitioner, a limited liability company organized under the laws of the State of New Jersey, is allegedly an
import/export business.
The director denied the petition concluding that the petitioner failed to establish that the United States
operation will support an executive or managerial position within one year.
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 asserts that the petitioner has established
that the beneficiary will perfonn qualifying duties within one year of petition approval.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 10l(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 Fonn 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)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perfonn the intended
services in the United States; however, the work in the United States need not be the
same work which the alien perfonned abroad.
EAC 04 24251244
Page 3
In addition, the regulation at 8 C.F.R. § 214.2(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) 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; and
(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) of this 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) The organizational structure of the foreign entity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § I 101(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
EAC 04 24251244
Page 4
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;
(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 primary issue in this matter is whether the intended United States operation, within one year of the approval
of the petition, will support an executive or managerialposition.
In support of the petition, the petitioner submitted a letter dated August 10, 2004 which describes the
beneficiary's proposed duties as follows:
The president's order of business will be to complete the staff for both the company business
[sic]. Once this is done, the president will be responsible for the setting of business and
financial goals and policies and making certain that these goals are met.
The president will exercise control over the development of business relationships between
the company and financial institutions, its business associates, and its clientele. He will to
[sic] manage and coordinate all operations and business transactions in with the company and
will engage and oversee the relationship between [the petitioner] and the overseas company.
The petitioner also submitted an "anticipated" organizational chart for the first year of operation. This chart
identifies a president (the beneficiary), a vice president, a secretary, and two "foreign clerks." The petitioner
did not describe the proposed duties of these subordinate employees.
On February 15,2005, the director requested additional evidence. The director requested, inter alia, a more
detailed description of the petitioner's proposed business activity; a business plan; organizational charts for
both the foreign employer and United States operation which include complete position descriptions for all
employees; evidence establishing that the foreign entity has supplied funds to the United States operation;
evidence that the petitioner has secured sufficient physical premises to house the new office; and evidence
that, within one year, the beneficiary will be relieved from performing non-qualifying duties.
EAC 04 242 51244
Page 5
In response, the petitioner submitted a letter dated May 12,2005 and a "business plan" in which the petitioner
vaguely describes its proposed business. The petitioner proposes to import "plastic goods, garments, steel
utensils, and dollar store merchandise" into the United States and to export metal and paper scrap. While the
petitioner projects $500,000.00 in sales in 2005, it submitted no corroborating evidence to support this
projection. The record is devoid of any independent analysis, contracts, or purchase orders. Likewise, while
the petitioner claims $38,288.00 in revenue thus far in 2004, it submitted no evidence corroborating this
claim.
Furthermore, the petitioner submitted an organizational chart "as of May [20]05." This chart portrays the
beneficiary as the president supervising a sales associate and a driver. The petitioner also submitted an
organizational chart "projected as of January 2006." This chart portrays the beneficiary as the president
directly supervising a sales manager, an administrative staff, a warehouse manager, and, indirectly, two sales
associates, two warehouse associates, and two drivers. However, the petitioner did not describe the duties of
the beneficiary or any of the current or anticipated employees.
On October 13,2005, the director denied the petition concluding that the petitioner failed to establish that the
United States operation will support an executive or managerial position within one year.
On appeal, counsel asserts that the petitioner has established that the beneficiary will perform qualifying
duties within one year of petition approval.
Upon review, the petitioner's assertions are not persuasive.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 214.2(lX3)(vXc). This
evidence should demonstrate a realistic expectation that the enterprise will 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.
As contemplated by the regulations, a comprehensive business plan should contain, at a nllmmum, a
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec.
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
EAC 04 242 51244
Page 6
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefor. Most importantly, the business plan must be credible.
ld.
For several reasons, the petitioner in this matter has failed to establish that the United States operation will
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. The
petitioner has failed (1) to sufficiently describe both the beneficiary's and his subordinates' proposed duties
after the petitioner's first year in operation; (2) to establish that an investment has been made in the United
States operation; (3) to sufficiently describe the nature, scope, organizational structure, and financial goals of
the new office; and (4) to sufficiently describe the organizational structure of the foreign entity. 8 C.F.R. §
214.2(l)(3)(v)(C).
First, as correctly noted by the director, the petitioner has failed to establish that the beneficiary will be
performing primarily "managerial" or "executive" duties after the petitioner's first year in operation. When
examining the proposed executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the proposed job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description
of the job duties must clearly describe the duties that will be performed by the beneficiary and indicate
whether such duties will be either in an executive or managerial capacity. ld.
In this matter, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that
fails to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states that
the beneficiary will establish "financial goals and policies," "exercise control over the development of
business relationships," and "manage and coordinate all operations and business transactions." However, the
petitioner did not specifically define these goals, policies, business relationships, operations, and transactions.
The fact that the petitioner has given the beneficiary a managerial title and has prepared a vague job
description does not establish that the beneficiary will actually perform managerial duties after the first year
of operation. Specifics are clearly an important indication of whether a beneficiary's duties will be 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), af!'d, 905 F.2d 41 (2d.
Cir. 1990). 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).
EAC 04 24251244
Page 7
Likewise, the record is not persuasive in establishing that the beneficiary will be, after the first year, relieved
of the need to perform the non-qualifying tas~ inherent to his duties and to the operation of the business in
general. As explained above, the petitioner failed to specifically describe the duties of the proposed
subordinate employees or to explain how, exactly, these prospective employees will relieve the beneficiary
from performing non-qualifying tasks even though this evidence was requested by the director. Failure to
sublpit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition.
8 C.F.R. § 103.2(bX14). As the petitioner fails to explain what tasks the beneficiary and his subordinate staff
will perform after the petitioner's first year in operation or to explain how much time the beneficiary will
devote to performing non-qualifying tasks, it cannot be confirmed that he will be "primarily" employed as a
manager or executive. An employee who "primarily" performs the tasks necessary to produce a product or to
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See
sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec.
593,604 (Corom. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
The petitioner has failed to specifically describe the duties of the proposed subordinate employees. Once
again, 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(bXI4). Therefore, it cannot be confirmed that the beneficiary will
supervise and control other supervisory, managerial, or professional employees, and it appears that the
beneficiary will primarily be, at most, a first-line supervisor of non-professional employees.I A managerial or
executive employee must have authority over day-to-<iayoperations beyond the level normally vested in a
first-line supervisor. See 101(a)(44) of the Act; see also Matter ofChurch Scientology International, 19 ~&N
Dec. at 604. Therefore, the petitioner has not established that the beneficiary will be employed primarily in a
managerial or executive capacity after the petitioner's first year in operation.
lIn 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. § 1101(a)(32), states that n[t]he 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 by a subordinate employee does not automatically lead to the conclusion that an employee will be
employed in a professional capacity as that term is defined above. In the instant case, the petitioner has not,
in fact, established that a bachelor's degree is actually necessary to perform the work of any of the proposed
subordinate employees.
EAC 04 24251244
Page 8
Second, the petitioner failed to establish that the United States operation will support an executive or
managerial position within one year because it failed to establish that an investment was made in the
enterprise. 8 C.F.R. § 214.2(l)(3)(v)(C)(2). In this matter, the record is devoid of evidence of any investment
having been made in the United States operation prior to the filing of the petition. In the Request for
Evidence, the director specifically requested evidence that the foreign entity funded the incorporation of the
United States entity. In response, the petitioner submitted evidence that $5,000.00 was transferred to the
petitioner's bank account by on or about May 12, 2005. However, not only was this
money not transferred by the foreign employer, it was sent and received almost nine months after the petition
was filed on August 20, 2004. Therefore, this purported investment is not relevant. 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 petitioner submitted no other evidence
addressing the director's request. Once again, 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). Accordingly, the petitioner
has failed to establish that the United States operation will support an executive or managerial position within
one year for this additional reason.
Third, the petitioner failed to establish that the United States operation will support an executive or
managerial position within one year because the petitioner has failed to sufficiently describe the nature, scope,
organizational structure, and fmancial goals of the new office. 8 C.F.R. § 214.2(l)(3)(v)(C)(l). As explained
above, the petitioner's "business plan" vaguely describes the United States operation as a proposed
"import/export" business. However, despite the director's request, the plan fails to specifically describe the
petitioner's proposed products, services, customers, or competitors. The plan also fails to corroborate its
projections regarding revenue, income, expenses, or financial goals. The record does not contain any
independent analysis, contracts, or purchase orders. Once again, 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)(l4). Absent
a detailed, credible description of the petitioner's proposed United States business operation addressing the
petitioner's proposed product, marketing plan, customers, staffing, and income/expense projections, it is
impossible to determine whether the proposed enterprise will 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. Accordingly, the petitioner has failed to establish that
the United States operation will support an executive or managerial position within one year for this
additional reason.
Fourth, the petitioner failed to establish that the United States operation will support an executive or
managerial position within one year because the petitioner failed to describe the organizational structure of
the foreign entity. 8 C.F.R. § 214.2(l)(3)(v)(C)(3). Other than a vague organizational chart consisting only of
job titles, the record is devoid of any explanation of the foreign employer's organizational structure. The
petitioner failed to describe the duties of the subordinate employees or to disclose the identities of the
purported subordinate supervisors. As indicated above, failure to submit requested evidence that precludes a
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § I03.2(b)(l4).
EAC 04 24251244
Page 9
Accordingly, the petitioner has failed to establish that the United States operation will support an executive or
managerial position within one year as required by 8 C.F.R. § 214.2(l)(3)(v)(C), and the petition may not be
approved for this reason.
Beyond the decision of the director, the petitioner has failed to establish that it has secured sufficient physical
premises to house the new office. ·8 C.F.R. § 214.2(l)(3)(v)(A).
In support of the petition, the petitioner submitted no evidence that it had secured
than purported photographs of the petitioner's "office interior and exterior" at
New Jersey. In response to the Request for Evidence, counsel submitted a letter dated May 12,2005 which
indicates that the petitioner changed its address to The
petitioner also submitted a "Lease Agreement" dated January 1, 2005 for an apartment located at
_ The lease indicates in paragraph 1 that the apartment may be used "as the primary residence of
the Tenant and for no other reason." The petitioner also submitted a "Commercial Lease" for warehouse
space dated January 1, 2005. The instant petition was filed on August 20, 2004.
In view of the above, the petitioner has failed to establish that it has secured sufficient physical premises to
house the new office. First, the leases submitted in response to the Request for Evidence are both dated, and
concern lease terms commencing, after the filing of the instant petition. Once again, 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. Therefore, these leases may not be used to establish that the
petitioner has secured sufficient physical premises to house the new office. As the record is devoid of
evidence addressing the petitioner's purported original occupancy of
Jersey, the petition may not be approved.
Second, the photographs submitted with the initial petition as evidence of the petitioner's occupancy of the
location do not appear to be related to the petitioner's purported business. One of the
photographs shows a worker displaying a 2003 calendar in her workspace. The instant petition was filed on
August 20,2004. Another photograph shows a male worker displaying papers in his cubicle concerning "U.S.
Cash & Carry LLC," a completely different business. 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 ofthe visa petition. Id. at 591.
Third, as noted by the director, the apartment lease for , even if relevant, concerns a
residential unit. As paragraph I of the lease specifically restricts the use of this apartment for residential
purposes, and as the record is devoid of evidence establishing the needs of the United States operation during
its first year in operation, the petitioner has not established that these premises will be sufficient to house the
prop~sed import/export business. It is noted that the petitioner submitted on appeal a letter allegedly from the
landlord 0 dated January 15,2005, which indicates that the petitioner may use the
EAC 04 242 51244
Page 10
premises in question "for office [and] residence as we have already one commercial tenant in the same
premises." This letter, however, fails to establish that this apartment will be sufficient to house the new
office. Not only is the letter dated after the date of the instant petition, and is thus irrelevant (see supra), the
petitioner was put on notice of required evidence regarding the sufficiency of its physical premises and was
given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. The
petitioner failed to submit the requested evidence and now submits it on appeal. The AAO will not consider
this evidence for any purpose. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); Matter ofObaigbena, 19
I&N Dec. 533 (BIA 1988).
Accordingly, as the.petitioner has failed to establish that it has secured sufficient physical premises to house
the new office, the petition may not be approved for this additional reason.
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been
employed in a primarily managerial or executive capacity with the foreign entity for one year within the
preceding three years. 8 C.F.R. §214.2(l)(3)(v)(B). The petitioner failed to specifically describe the
beneficiary's job duties abroad. Specifics are clearly an important indication of whether a beneficiary's duties
will be primarily executive or managerial in nature; otherwise meeting the defmitions would simply be a
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, affd, 905 F.2d 41.
Furthermore, the petitioner failed to describe the duties of the beneficiary's purported subordinates abroad
even though this evidence was specifically requested by the director., Once again, failure to submit requested
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. §
I03.2(b)(14). Absent detailed descriptions of the duties of both the beneficiary and his purported
subordinates, it is impossible for CIS to discern whether' the beneficiary was "primarily" engaged in
performing managerial or executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act; see also
Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
Accordingly, the petitioner has not established that the beneficiary has been employed in a primarily
managerial or executive capacity for one continuous year in the three years preceding the filing of the petition
as required by 8 C.F.R. § 214.2(l)(3)(v)(B), and the petition may not be approved for this reason.2
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon
completion of the temporary assignment in the United States. 8 C.F.R. § 214.2(I)(3)(vii).
2It is noted that the director stated the following in her decision: "It is noted at this time that although this
does not serve as an additional reason to deny the 1-129petition, the record lacks evidence to demonstrate that
the beneficiary served in an actual managerial or executive capacity with the foreign entity.... " Upon review,
the AAO will withdraw the director's decision not to deny the petition on these grounds, and, as explained
above, the AAO will deny the petition for this additional reason. It must be emphasized that, in this
proceeding, the burden of proving eligibility for the benefit sought remains entirely with the petitioner.
Section 291 of Act, 8 U.S.C. § 1361.
EAC 04 24251244
Page 11
In this matter, the petitioner claims to be 51% owned and controlled by the beneficiary. As a purported owner
of the petitioner, the petitioner is obligated to establish that the beneficiary's services will be used for a
temporary period and that he will be transferred to an assignment abroad upon completion of the assignment.
Id. However, the record is devoid of any evidence establishing that the beneficiary's services will be used
temporarily. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190).
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary
assignment in the United States, the petition may not be approved for this additional reason.
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with
the foreign entity.
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
101(aXI5)(L) of the Act; 8 C.F.R. § 214.2(1). If one individual owns a majority interest in the petitioner and
the foreign employer, and controls those entities, then the entities will be deemed to be "affiliates" under the
definition. 8 C.F.R. § 214.2(l)(I)(iiXL).
In this matter, the petitioner asserts that it is a limited liability company and that it is 51% owned and
controlled by the beneficiary. In support of this assertion, the petitioner submitted an untitled document
which resembles a stock certificate and which states in pertinent part the following:
This is to certify that [the beneficiary] is the owner of an interest as specified in the operating
agreement of [the petitioner] which is transferable only on the books of the Limited Liability
Company by the holder hereof in person or by a duly authorized attorney or agent upon
surrender of this certificate properly endorsed. The transfer of this interest and the transfer of
all membership rights is subject to the restrictions set forth in the Limited Liability Company
operating agreement and may be effected only upon compliance with the procedures provided
in the operating agreement.
The document also contains the number "51" in the interest block in the upper right corner. The petitioner,
however, did not provide a copy of the operating agreement. Because the certificate indicates that the
beneficiary's interest is specified in the operating agreement, it is impossible to confirm the beneficiary's
purported ownership and control of the petitioner in the absence of this operating agreement. 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 ofCalifornia, 14 I&N Dec. 190.
Furthermore, the organizational documents pertaining to the foreign employer contain unresolved
inconsistencies regarding its ownership and control which undermine the credibility of the petition. For
EAC 04 24251244
Page 12
example, while the petitioner asserts that the foreign employer is an Indian partnership 50% owned by the
beneficiary, the petitioner submitted a tax enrollment form dated February 9, 2003 indicating that the
proprietor of the foreign employer is Once again, 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 ofHo, 19 I&N at 591-92.
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity,
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 997, 1002 n. 9 (2d Cir. 1989) (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 of proving eligibility for the benefit sought remains entirely ~ith the
petitioner. 8 V.S,C. § 1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.