dismissed L-1A Case: Import/Export

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: WAC 05 053 53740 Office: CALIFORNIA SERVICE CENTER Date: SEP 2 6 2006 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. fj 1 10 1(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
I Administrative Appeals Office 
WAC 05 053 53740 
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 appeal will be 
dismissed. 
The petitioner, a Georgia corporation authorized to conduct business in California, claims to be engaged 
in the import and export of various goods. The petitioner states that it is a subsidiary of Khanh Thien 
Trading Company Limited, located in Vietnam. Accordingly, the United States entity petitioned CIS to 
classify the beneficiary as a nonimmigrant intracompany transferee (L-1A) pursuant to section 
101(a)(15)(L) of the Act as an executive or manager for two years. The beneficiary was initially granted 
a one-year period of stay to open a new office in the United States and the petitioner now seeks to extend 
the beneficiary's stay in order to continue to fill the position of operationslmarketing manager. 
The director denied the petition concluding that the record contains insufficient evidence to demonstrate: 
(1) that the United States company is doing business; or (2) that the beneficiary will be employed in a 
primarily managerial or executive capacity. The director determined that the beneficiary is not eligible 
for an L-1 extension since the new office is not fully operational after the initial year granted to open a 
new office. The director also noted that the petitioner failed to fully respond to the request for evidence, 
and the petitioner did not provide any evidence of additional employees employed by the U.S company. 
On appeal, counsel for the petitioner states that the United States company has being doing business in 
the previous year. In addition, counsel for the petitioner explains that the U.S. company has plans to 
expand and for that reason the petitioner claimed on Form 1-129 that the company was in its "newly setup 
stage." Counsel further asserted that the beneficiary has been and will be employed in a qualifying 
managerial or executive capacity. Counsel submits a brief and additional evidence in support of the 
appeal. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States 
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate 
thereof in a managerial, executive, or specialized knowledge capacity. 
The regulation at 8 C.F.R. 3 214.2(1)(3) fh-ther 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. 
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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 hider 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. 9 214.2(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 (I)(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 first issue to be addressed in this proceeding is whether the petitioner has been doing business for the 
previous year as required by 8 C.F.R. 9 214.2(1)(14)(ii)(B). 
The regulations at 8 C.F.R. 9 214.2(1)(l)(ii)(G) state: 
Qualzfiing 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 (l)(l)(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 
WAC 05 053 53740 
Page 4 
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. 
The regulations at 8 C.F.R. 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods andlor 
services by a qualifying organization and does not include the mere presence of an agent 
or office of the qualifying organization in the United States and abroad. 
The nonimmigrant petition was filed on December 15, 2004. In a letter dated December 7, 2004, the 
petitioner indicated that the beneficiary, upon his admission into the United States in L-1A status in 
February 2004, "discovered that the company's products may not have the strongest market in Atlanta, 
Georgia." The petitioner noted that the beneficiary, with the foreign entity's approval, decided to 
establish the business in California. The petitioner stated that it opened its initial business, "a showroom 
for wholesale and retail furnishings from Vietnam," in July 2004, and in October 2004, signed two 
contracts with companies in Vietnam to import "various commodities" into the United States. 
Finally, the petitioner indicated that it "has been and continued conducting business in a systematic 
manner," but noted that as its year-end financial statement was unavailable, it was "relying on the 
strength" of the foreign entity's 2002 financial results. 
In support of its initial claim that the United States entity has been doing business, the petitioner 
submitted: its articles of incorporation, certification of incorporation and share certificate; certification of 
qualification from the state of California dated May 15, 2004; its business license and seller's permit; two 
different lease agreements (each lease agreement is for a separate rental space); two tentative trading 
contracts referenced above; bank statements and utility bills; merchant statements showing credit card 
sales for the months of July through October 2004; a product brochure; several invoices, shipping 
documents, packing lists and receipts billed to the U.S. company confirming receipt of inventory dating 
back to June 2004; and photographs of the petitioner's store. 
On January 14, 2005, the director requested that the petitioner submit evidence to establish that the U.S. 
company is doing business. Specifically, the director requested copies of the U.S. company's federal 
income taxes for 2003 and copies of the U.S. company's payroll summary, W-2's and W-3's evidencing 
wages paid to employees. In addition, the director requested a copy of the current business plan prepared 
by the foreign company for the U.S. entity; an original cover letter from the foreign parent company 
explaining why the U.S. entity is a new office if it was established almost a year ago; a copy of the 
organizational chart of the U.S. company and a more detailed description of the beneficiary's duties in the 
United States. 
In the petitioner's response, dated March 1, 2005, the petitioner neither submitted the income taxes for 
2003 nor the payroll summary for the U.S. company as requested by the director. The petitioner indicated 
in the letter dated February 15, 2005 that the petitioner was initially organized under the law of the State 
WAC 05 053 53740 
Page 5 
of Georgia but after a few months of business in the area and extensive research of the market, the U.S. 
entity with the parent's company approval, decided to re-locate to southern California. The petitioner 
indicated that the U.S. company is still in the "setting up" stage even though almost a year has passed 
since the company was first established in the U.S. The petitioner stated the following: 
This transfer occurred in or about July of 2004. In Southern California, there are larger 
Asian and American markets for the company's products. For this reason, the Boards of 
Directors of both the [sic] Parent and the Subsidiary companies jointly agreed to relocate 
its personnel and business to California.. .. and this is why the company is still at its 
"setting up" stage. 
Thus, the petitioner appeared to suggest that since the U.S. company is still in its "setting up" stage, the 
petitioner is unable to submit the requested copy of the income tax return for 2003 and documentation 
regarding the payroll summary of the U.S. company. 
The director denied the petition determining that the petitioner had not submitted sufficient evidence to 
establish that the U.S. entity was doing business, in that it continuously and systematically engaged in the 
provision of goods and services. 
On appeal, the petitioner asserts that the United States entity has been doing business in the previous year. 
Specifically, counsel for the petitioner asserts the following: 
Since February of 2004 when [the beneficiary] arrived to the US, [the petitioner] has 
been in full operation. However, approximately seven (7) months after [the beneficiary] 
had arrived, the Board of Directors of the overseas company, Khanh Thien Trading 
Company, Ltd., and the Board of Director of [the petitioner] decided to expand [the 
petitioner's] import/export business internationally and into other industries. Since the 
adoption of that decision, [the beneficiary] had been running [the petitioner's] normal 
business in addition to preparing and setting up the company for the new expansion. That 
is why [the petitioner], in its petition for extension, claimed that the company was in its 
"newly setup stage." 
Within the next couple years, [the beneficiary] will lead and expand the company's 
international activities into the service industry in addition to its already established 
product markets. The company is pursuing the possibility of exporting seafood products 
to the U.S. market after reaching a contract with LHC Enterprises. They are also in the 
process of researching the market to start a Vietnamese restaurant chain in the United 
States. Last but not least, the company is reviewing the negotiation with Vietnam Airline 
to achieve the right to ticket agency for Vietnam Airline. 
Other than the plans to expand, [the petitioner] has been doing business in the previous 
year as required under 8 C.F.R. 241.2(1)(14)(ii). 
On appeal, the petitioner submits a copy of the 2004 federal and state corporate tax returns for the U.S. 
company, a copy of the beneficiary's 2004 individual income tax return, sales and use tax returns from 
WAC 05 053 53740 
Page 6 
June through December 2004, bank statements, copies of previously submitted "trading contracts", and a 
proposed organizational chart for the U.S. company. 
On review, the evidence submitted is insufficient to establish that the U.S. entity has been or is engaged in 
the regular, systematic, and continuous provision of goods andlor services as a qualifying organization. 
The petitioner failed to submit the evidence requested by the director to establish that the U.S. company 
has been doing business. The petitioner was given ample opportunity to produce the required initial 
evidence and other business records to substantiate its claim of doing business as a viable entity in the 
United States. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The non- 
existence or unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
9 103.2(b)(2)(i). 
In addition, the petitioner submitted several bank statements, however, it is not clear if the transactions 
are business related. In addition, the petitioner submitted several bills issued to the U.S. entity for 
purchases it made. Although the purchases appear to be the inventory for the company, the petitioner has 
failed to submit any evidence that the U.S. company has sold any of its inventory. Furthermore, the Form 
1120 indicates that the gross receipts and sales figure for the U.S. company in 2004 was $1,773.00. The 
record as presently constituted is not persuasive in demonstrating that the U.S. entity, at the time of filing 
the petition, was doing business. 
In addition, the U.S. company's Form 1120, U.S. Corporation Income Tax Return, for 2004 establishes 
that the U.S. company does not have assets or inventory, and the form does not indicate any purchases 
made by the U.S. company in 2004. Furthermore, the Form 1120 does not demonstrate that any salaries 
or wages were paid for 2004. Although the Form 1120 in Section E, number 10 indicates that the U.S. 
company has "other income" of $26,642, the source of this income is unknown. Based on this 
information, it is implausible for a company to be doing business without any assets, inventory, salaried 
employees and minimal income. 
In addition, the petitioner submitted copies of sales and use tax returns which show minimal retail sales 
beginning in August 2004. As mentioned above, the company does not have assets, inventory or salaried 
employees, thus it is unclear how the U.S. entity accomplished selling the merchandise indicated in the 
sales and the use tax return. 
Furthermore, the petitioner indicated that the U.S. entity commenced in Georgia prior to moving the 
entity to California. The petitioner has failed to provide any documentation of the U.S. company 
established in Georgia when the petitioner first commenced the business. Thus, the petitioner has not 
provided evidence of the U.S. entity doing business in the United States when the entity commenced its 
operations in Georgia and, as discussed above, the petitioner has provided minimal documentation of the 
U.S. entity doing business in California during the initial year of business and up to the date the instant 
petition was filed. Again, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
WAC 05 053 53740 
Page 7 
Furthermore, it appears that the U.S. company is still deciding as to what kind of business they wish to 
pursue. On appeal, counsel for the petitioner indicates that the petitioner is looking to expand the 
business into other industries. Counsel further indicates that the U.S. company is loolung into the 
possibility of exporting seafood products or to start a Vietnamese food chain. In addition, the petitioner 
submitted a proposed business plan for 2005 - 2007 which indicated that the U.S. company will be 
involved in air tickets, chinaware, pottery, handicrafts, sea products and services. However, the petitioner 
has not submitted any evidence that the U.S. company has been doing business in any of these areas. 
In addition, on appeal, counsel for the petitioner discusses future plans to expand. 
 The petitioner 
submitted two pending contracts to export seafood from Vietnam. However, the business plan for 2005 - 
2007 submitted by petitioner states: 
The process of Sea food contract which has been signed the end of last year with right 
Sea Co., Ltd. and LHC Enterprises Inc., now has been slow down due to some economic 
reason like: high tax rate of sea food from Vietnam and other subjective reason. We 
hope that in 2007 the contract will be launched, and we can complete it to transfer to 
another project. 
The petitioner must establish eligibility at the time of filing the nonimrnigrant 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). In addition, the 
regulation at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to establish the new office. Furthermore, at the time the petitioner seeks 
an extension of the new office petition, the regulations at 8 C.F.R. $ 214.2(1)(14)(ii)(B) requires the 
petitioner to demonstrate that it has been doing business for the previous year. There is no provision in 
CIS regulations that allows for an extension of this one-year period. If the business is not sufficiently 
operational after one year, the petitioner is ineligible by regulation for an extension. Accordingly, the 
appeal will be dismissed. 
The second issue in this matter is whether the beneficiary will be employed in a primarily managerial or 
executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment withn an organization in which the employee 
prirnarily- 
(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; 
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Page 8 
(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, fimctions 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. 
In addition, section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment withn 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-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The nonimmigrant petition was filed on December 16, 2004. The Form 1-129 indicates that the beneficiary 
will continue to be employed in the position of OperationsIMarketing Manager. The beneficiary's proposed 
duties in the United States are described as the following: 
Plan, direct and coordinate all importfexport activities of the U.S. office. Specifically, he 
will oversee the formulation of company policies, administer the sales and marketing 
strategies, and oversee the development of long range goals and objectives; improve upon 
these goals through his direction and management of subordinate administrative personnel; 
direct and coordinate activities of subordinate managerial personnel in all departments 
thereby affecting operational efficiency; coordinate sales and marketing activities of the 
company through subordinate managers; and will analyze marketing potential of new and 
existing products and determine our marketing strategies and sales goals. 
On January 14, 2005, the director requested additional evidence to establish that the beneficiary will be 
performing the duties of a manager or executive with the U.S. company. Specifically, the director requested: 
(1) an organizational chart for the U.S. entity, including names and job titles for all employees; (2) a more 
detailed description of the beneficiary's job duties, indicating who the beneficiary supervises and percentage 
of time spent in each of the listed duties; and (3) copies of the U.S. company's payroll summary, W-2's and 
W-3's evidencing wages paid to employees. 
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Page 9 
In its response dated March 1, 2005, the petitioner submitted an organizational chart for the U.S. company 
depicting the beneficiary as "general manager" over three departments and four positions which had not yet 
been staffed. The petitioner did provide an "indirect employee list" which includes a shipping and transport 
company, an accountant, a bank, telephone and utility companies, the petitioner's lessor, and one contract 
labor employee hired to "fix the store." The petitioner failed to submit a more detailed description of the 
beneficiary's job duties or evidence of wages paid to employees as requested by the director. 
In the director's decision dated April 22,2005, the director noted that the petitioner failed to provide evidence 
that it has any employees and concluded that, "the petitioner has not reached the point that it can employ the 
beneficiary in a predominately managerial or executive position." 
On appeal, counsel for the petitioner indicates that the beneficiary has been serving as "Manager of 
International Development Activities" since July 2004 with additional responsibilities for managing a 
"professional team" withn the foreign entity. Counsel further describes the job duties performed by the 
beneficiary in the United States as the following: 
Throughout his employment with [the petitioner] in Vietnam and in the United States, as 
a key managerial employee with proprietary knowledge of out international operations 
and varied product and service lines, [the beneficiary] demonstrated considerable skill in 
managing product and service development and support functions. He utilized his 
expertise of all aspects of [the beneficiary's] international activities providing the clients 
with exemplary and satisfying services; [the beneficiary] is one of [sic] most valued 
managerial employee [sic] of both [the petitioner] and of Khanh Thien Trading Co. [The 
beneficiary] has demonstrated considerable expertise in the area of decision-making and 
problem solving and is adept in the area of human resources management. 
Upon review of the petition and evidence, the petitioner has not established that the beneficiary would be 
employed in a 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. 8 
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 definitions of executive and managerial capacity have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
The beneficiary's position description is too general and broad to establish that the preponderance of his 
duties is managerial or executive in nature. The beneficiary's job description includes vague duties such 
as the beneficiary will "oversee the formulation of company policies," "administer the sales and 
marketing strategies, and oversee the development of long range goals and objectives," and non- 
qualifying duties such as the beneficiary will "analyze marketing potential of new and existing products 
and determine our marketing strategies and goals." Reciting the beneficiary's vague job responsibilities 
or broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
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Page 10 
beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation of the 
beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the true 
nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afyd, 
905 F.2d 41 (2d. Cir. 1990). The petitioner's descriptions of the beneficiary's position do not identify the 
actual duties to be performed, such that they could be classified as managerial or executive in nature. 
Furthermore, the director specifically requested that the petitioner provide a detailed job description, 
including the beneficiary's specific duties and the percentage of time the beneficiary would allocate to 
each duty. The petitioner did not submit the requested job description as requested by the director. 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying 
the petition. 8 C.F.R. 9 103.2(b)(14). The petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. The petitioner 
failed to submit the requested evidence and now submits it on appeal. However, the AAO will not 
consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. 
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for 
the benefit sought has been established. 8 C.F.R. 8 103.2(b)(8). On appeal, the petitioner presents a new 
job description for the beneficiary which includes a new title and new job duties performed by the 
beneficiary. 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 its 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 ofMichelin Tire Corp., 17 I&N Dec. 248, 249 
(Reg. Comm. 1978). If significant changes are made to the initial request for approval, the petitioner must 
file a new petition rather than seek approval of a petition that is not supported by the facts in the record. 
The information provided by the petitioner in its appeal did not clarify or provide more specificity to the 
original duties of the position, but rather added new generic duties to the job description. Therefore, the 
analysis of this criterion will be based on the job description submitted with the initial petition. 
Furthermore, based on the U.S. company's organizational chart and the petitioner's 2004 Form 1120, U.S. 
Corporation Income Tax Return, it appears that the beneficiary is the only employee for the U.S. company. 
The proposed organizational chart indicates that the beneficiary is in charge of the showroom, air-ticket 
counter, project team, human resources, accounting, administration, and logstics. However, there are no 
employees indicated within these departments. Since there are currently no other employees at the company, 
it appears that the beneficiary will be providing the services of the business rather then directing such 
activities through subordinate employees. Thus, the U.S. company has not hired employees to perform the 
marketing, promotion, merchandising, sales, export and import operations. According to the record, it 
appears that the beneficiary will perform several non-qualifying duties. An employee who "primarily" 
performs the tasks necessary to produce a product or provide a service is not considered to be "primarily" 
employed in a managerial or executive capacity. See sections 101 (a)(44)(A) and (B) of the Act (requiring 
that one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology International, 19 I & N Dec. 593,604 (Comrn. 1988). 
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Page 11 
Moreover, the organizational chart is inconsistent with other information in the petition. The chart 
indicates that the beneficiary directs the air-ticket counter, project team, human resources, accounting, 
administration and logistic departments, however, the petitioner's support letter for the 1-129 and on 
appeal, the petitioner indicates that the U.S. company is looking into air ticket services and will hire a 
project team in the future. Thus, it appears that this organizational chart is not representative of the 
company at the time of filing. 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). 
In addition, the petitioner submitted an "Indirect Employment List" for the U.S. company. This list 
includes a shipping and transport company, an accountant, a telephone company, the lessor of the rental 
space and one individual hired to "fix the store." Although counsel states on appeal that the petitioner has 
indirect employees in the areas of accounting, transportation, shipping, and telephone services, the 
petitioner has neither presented evidence to document the existence of these employees nor identified the 
services these individuals provide. Additionally, the petitioner has not explained how the services of the 
"indirect employees" obviate the need for the beneficiary to primarily conduct the petitioner's business. 
Without documentary evidence to support its statements, the petitioner does not meet its burden of proof 
in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998). 
As the United States company has only employed the beneficiary, it is reasonable to assume, and has not 
been proven otherwise, that the beneficiary is performing all sales, acquisition and marketing functions 
and financial development, and all of the various operational tasks inherent in operating a company on a 
daily basis, such as acquiring products, maintaining inventory, paying bills, handling export and import of 
products. Based on the record of proceeding, the beneficiary's job duties are principally composed of 
non-qualifying duties that preclude him from functioning in a primarily managerial or executive role. 
Since the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not submitted sufficient evidence to establish the 
existence of a qualifying relationship between the United States and foreign entities pursuant to 8 C.F.R. 
2142(l)(l)(ii)(G). 
 As general evidence of a petitioner's claimed qualifying relationship, stock 
certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership and 
control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate 
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage 
ownership and its effect on corporate control. Additionally, a petitioning company must disclose all 
agreements relating to the voting of shares, the distribution of profit, the management and direction of the 
subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all relevant documents, CIS is 
unable to determine the elements of ownership and control. 
The petitioner claims to be a wholly-owned subsidiary of Khanh Thien Trading Company Limited and 
submitted a stock certificate, number one, stating that Khanh Thien Trading Company Limited is the 
owner of 10,000 shares. However, the petitioner's IRS Form 1 120, U.S. Corporation Income Tax Return 
WAC 05 053 53740 
Page 12 
for 2004 indicates at Schedule E and at Schedule K that the beneficiary owns 100 percent of the 
company's common stock. 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. 5 82 at 59 1-92. For this additional reason, the petition cannot be approved. 
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), 
afd. 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 petitioner will be denied and the appeal dismissed for the above stated reasons, with each considered 
as an independent and alternative basis for denial. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 
1361. Here, that burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.