dismissed L-1A Case: Import/Export

u.s.Citizenship
and Immigration
Services
f\JBUCCOPY
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
File: WAC 04 192 52743 Office: CALIFORNIA SERVICE CENTER Date: SEP 07 2001
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)(l5)(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.
~
" " . , ..."._._'
(" ""*'Robert ~~ . mann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 04 19252743
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to employ the beneficiary as its vice president of
marketing and sales as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(l5)(L) of
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner is a corporation
organized under the laws of the State of California and is allegedly an importer of bearing products. The
petitioner claims a qualifying relationship with the beneficiary's foreign employer, Import and Export Trading
Company. Import and Export Trading Company is allegedly a "branch" of Harbin Bearing Group Company,
which, in tum, allegedly owns and controls the petitioner.'
The director denied the petition concluding that the petitioner did not establish that the beneficiary was
employed abroad in a primarily managerial or executive capacity.
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 to the petitioner asserts that the director
erred and that the beneficiary's duties were primarily those of a manager or executive. In support, counsel
submits a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
'Although the petitioner repeatedly refers to the beneficiary's foreign employer as a "branch," it appears that
the purported relationship between it and Harbin Bearing Group Company is more a akin to a
parent/subsidiary relationship. However, as further discussed infra, because the petitioner failed to establish
the ownership and control of the foreign employer either as a subsidiary or as a branch of Harbin Bearing
Group Company, the petition may not be approved for this additional reason.
WAC 04 192 52743
Page 3
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 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.
The primary issue in the present matter is whether the beneficiary was employed abroad in a primarily
managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § IIOl(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(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.
WAC 04 19252743
Page 4
The petitioner does not clarify in the initial petition whether the beneficiary performed primarily managerial
duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B) of
the Act. A petitioner may not claim that the beneficiary was employed as a hybrid "executive/manager" and
rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that
the petitioner is asserting that the beneficiary was employed in either a managerial or an executive capacity
and will consider both classifications.
The petitioner described the beneficiary's job duties abroad as the "manager" of Import and Export Trading
Company in a letter dated June 23,2004 as follows:
• Overall supervise and manage all business of the import/export company;
• Overall supervise the Marketing and Sales of the branch, including marketing
research of domestic and international market and set up the sales development plan;
• Direct and set up trade and cooperative relations with similar enterprises in other
countries;
• Participate in major import and export, buy/sell, and joint venture negotiations and
signing up contracts;
• Direct and supervise the setting up of purchasing/selling lines; review report of
market research and price analyzing;
• Hire and fire employees and assign proper jobs; etc.
The petitioner indicated in the letter that the beneficiary directly and indirectly supervised approximately 15
employees in his claimed management of the Import and Export Trading Company.
The petitioner also submitted an organizational chart for the Import and Export Trading Company. The chart
shows the beneficiary at the top of the alleged branch directly supervising two "vice managers" and,
indirectly, 13 sales representatives and sales managers. The petitioner did not describe the duties of any of
the subordinate employees.
On July 9, 2004, the director denied the petition. The director concluded that the petitioner did not establish
that the beneficiary was employed abroad in a primarily managerial or executive capacity.
On appeal, counsel asserts that the beneficiary's duties were primarily those of a manager or an executive. In
support, counsel submits a brief and additional evidence? In her brief, counsel argues that the beneficiary's
management of the Import and Export Trading Company constitutes the management of an essential function
2Although not addressed by counsel on appeal, the AAO notes that the director did not request further
evidence before denying the instant petition pursuant to 8 C.F.R. § 103.2(b)(8). However, even if this failure
to request further evidence could be construed to be a procedural error by the director, it is not clear what
remedy would be appropriate beyond the appeal process itself. Counsel to the petitioner has in fact
supplemented the record on appeal, and therefore it would serve no useful purpose to remand the case simply
to afford the petitioner the opportunity to supplement the record with new evidence addressing the
beneficiary's foreign employment.
WAC 04 19252743
Page 5
of the parent company, Harbin Bearing Group Company. Counsel further argues that the beneficiary makes
decisions regarding the petitioning organization's plans and goals and that he "exercises wide latitude in
discretionary decision-making, reports directly to the Board of Directors and the General Manager, and thus
receives only general supervision or direction from his higher level executives."
Finally, counsel argues that the beneficiary supervises subordinate managers and professionals. She asserts
that "[m]ost of [the subordinate employees] have bachelor's degree[s] or equivalent education[al]
background[s]" and describes the subordinate employees' duties as follows:
Sales representatives contact customers, negotiate and sign import and export contracts on
behalf of [Harbin Bearing Group Company]. Managing sales conduct marketing research on
the international and domestic market for the purpose of importing foreign-made materials
and equipment and exporting bearing products to other countries. This part of their duties
involves professional knowledge and experience not normally found in a first line worker.
Furthermore, Managing Sales also manage the import and export business of [Harbin Bearing
Group Company] by coordinating the cooperation relationship between [Import and Export
Trading Company] and other departments, such as Production Department, Quality Control
Department and Financial Department, according to the import and export decisions, plans
and goals set by [the beneficiary].
To determine whether [the beneficiary's] employees are professionals and managers, or just
first-line workers/sales persons, it is also necessary to take into account of the overall
organization of [Harbin Bearing Group Company]. [Import and Export Trading Company] is
not an individual business with a few sales persons. [Import and Export Trading Company]
itself and all of its employees are at the management level of [Harbin Bearing Group
Company]. [Import and Export Trading Company's] decisions and plans act as orders to
[Harbin Bearing Group Company's] other departments regarding plans of production, design,
supply, technical support and etc. Therefore, [the beneficiary] supervises professionals or
managers, and not first-line workers.
It must be noted that neither counsel nor the petitioner provided a job description for the "vice managers."
Upon review, counsel's assertions are not persuasive.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. §§ 214.2(l)(3)(ii) and (iv). The petitioner's description
of the job duties must clearly describe the duties performed by the beneficiary and indicate whether such
duties were either in an executive or managerial capacity. Id. As explained above, a petitioner cannot claim
that some of the duties of the position entailed executive responsibilities, while other duties were managerial.
A petitioner may not claim that a beneficiary was employed as a hybrid "executive/manager" and rely on
partial sections of the two statutory definitions.
WAC 04 192 52743
Page 6
In this matter, the petitioner's description of the beneficiary's job duties has failed to establish that the
beneficiary acted in a "managerial" capacity. In support of its petition, the petitioner has provided a vague
and nonspecific description of the beneficiary's duties that fails to demonstrate what the beneficiary did on a
day-to-day basis. For example, the petitioner states that the beneficiary managed "all business" of the foreign
employer, supervised market research and sales plans, established relationships with similar enterprises, and
negotiated contracts. The beneficiary also allegedly established plans and goals. However, the petitioner
does not explain what, exactly, the beneficiary did on a day-to-day basis to perform these duties. The
petitioner neither defines the plans and goals established, nor provides a specific description of what the
beneficiary supposedly managed. The fact that the petitioner has given the beneficiary a managerial title and
has prepared a vague job description which includes overly broad duties does not establish that the
beneficiary actually performed managerial duties. Broad, conclusory statements such as those found in the
instant job description are not probative of the beneficiary's performance of managerial or executive duties.
Specifics are clearly an important indication of whether a beneficiary's duties were primarily executive or
managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating the
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir.
1990). 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).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary devoted to the duties
ascribed to him. This is particularly important in this matter because some of the duties listed by the
petitioner appear to have been non-qualifying administrative or operational tasks which do not rise to the level
of being managerial or executive in nature. For example, the petitioner states that the beneficiary "set up
trade and cooperative relations with similar enterprises in other countries" and "[p]articipate[d] in major
import and export, buy/sell, and joint venture negotiations and signing up contracts." However, these duties
constitute administrative or operational tasks. As the petitioner has not established how much time the
beneficiary devoted to such non-qualifying tasks, it cannot be confirmed that he was "primarily" employed as
a manager. 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 (requiring that one "primarily" perform the enumerated managerial or
executive duties); see also Matter ofChurch Scientology International, 19 I&N Dec. 593,604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other
supervisory, managerial, or professional employees, or managed an essential function of the organization. As
explained in the organizational chart and job descriptions, the beneficiary appears to have directly or
indirectly supervised approximately 15 workers including 2 vice managers, 7 sales representatives, and 6
"managing sales" workers. However, the petitioner has not established that any of these workers were
supervisory or managerial employees. To the contrary, the "managing sales" and sales representatives were
described by the petitioner as performing the tasks necessary to provide a service or to produce a product,
e.g., contacting customers, negotiating contracts, and conducting market research. Counsel's argument that
these employees are not "first-line workers" because of their alleged important or sophisticated role within the
petitioning organization is not persuasive. The record is devoid of any evidence that these subordinate
workers truly had any managerial or supervisory functions as required by the Act. Furthermore, as the
petitioner failed to provide any job description for the "vice managers," it has also failed to establish that these
WAC 04 192 52743
Page 7
two workers were supervisory or managerial employees. Once again, going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190
In view of the above, the beneficiary would appear to have been, at most, a first-line supervisor of non­
professional employees, the provider of actual services, or a combination of both. A managerial employee
must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor,
unless the supervised employees are professionals. Section 101(a)(44)(A)(iv) of the Act; see also Matter of
Church Scientology International, 19 I&N Dec. at 604. Furthermore, the petitioner has not established that
the beneficiary's subordinates were professional employees.' Therefore, the petitioner has not established that
the beneficiary was employed primarily in a managerial capacity."
3In evaluating whether the beneficiary managed professional employees, the AAO must evaluate whether the
subordinate positions required a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[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 ofShin, 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 the subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. In this matter, the petitioner has not established that a bachelor's degree is actually necessary
to perform the work of the subordinate employees. The petitioner offered no evidence connecting the degrees
allegedly earned by the subordinate workers to the job duties. Furthermore, as noted above, the petitioner
failed to provide descriptions of the "vice managers." Regardless, the record is devoid of evidence
establishing that the degrees earned by the subordinates are actually equivalent to United States bachelor's
degrees. 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.
4The petitioner has also not established that the beneficiary managed an essential function of the organization.
The term "function manager" applies generally when a beneficiary does not supervise or control the work of a
subordinate staff but instead is primarily responsible for managing an "essential function" within the
organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute
or regulation. If a petitioner claims that the beneficiary managed an essential function, the petitioner must
furnish a written job offer that clearly describes the duties performed in managing the essential function, i.e.,
identify the function with specificity, articulate the essential nature of the function, and establish the
proportion of the beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. §
214.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary's daily duties must demonstrate that
the beneficiary managed the function rather than performed the tasks related to the function. In this matter,
the petitioner has not provided evidence that the beneficiary managed an essential function. The petitioner's
WAC 04 19252743
Page 8
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary acted primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary did on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary was, at most, employed as a first-line supervisor
and likely performed tasks necessary to produce a product or to provide a service. Therefore, the petitioner
has not established that the beneficiary was employed primarily in an executive capacity.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary was primarily performing
managerial or executive duties abroad, and the petition may not be approved for that reason.'
Beyond the decision of the director, the petitioner also failed to establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
vague job description fails to document what proportion of the beneficiary's duties were managerial, if any,
and what proportion were non-managerial. Also, as explained above, the record establishes that the
beneficiary was, at most, a first-line supervisor of non-professional workers and/or performed non-qualifying
operational or administrative tasks. Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties were managerial,
nor can it deduce whether the beneficiary primarily performed the duties of a function manager. See IKEA
US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
5It is noted that the director stated in his decision that the job description provided by the petitioner is
inconsistent with the organizational chart. According to the director, because the organizational chart does
not include a "sales and marketing branch" beneath the beneficiary, the beneficiary's supervision of "the
marketing and sales branch" in the job description is inconsistent with the chart. On appeal, counsel asserts
that the director misread the job description. The job description states that the beneficiary "supervise[d] the
Marketing and Sales of the branch." Counsel asserts that "the branch" in this context refers to the petitioner's
foreign employer, Import and Export Trading Company, which is allegedly a "branch" of the parent company,
Harbin Bearing Group Company. Upon review, the AAO agrees that the job description is not inconsistent
with the organizational chart in this regard. Therefore, this statement by the director is hereby withdrawn.
However, as indicated above, the petitioner has nevertheless failed to establish that the beneficiary was
employed abroad in a primarily managerial or executive capacity, and the petition may not be approved for
that reason.
WAC 04 192 52743
Page 9
The petitioner described the beneficiary's proposed job duties in a letter dated June 23, 2004 as follows:
• To direct and manage the overall marketing and sales operations of the U.S. branch;
• To supervise the setting up of company marketing and sales methods and procedures;
• To review market research and data analysis reports so to determine company
development directions and major trade items;
• To approve sales or representative agreements so to develop network for marketing
and sales development;
• To supervise, negotiate and sign up marketing and sales related contracts;
• To hire/fire and supervise key marketing and sales personnel and assign proper jobs,
etc.
The petitioner indicated in its letter that it intends to hire between four and seven additional sales and
marketing workers after the beneficiary "takes his position as the Vice President in Charge of Marketing and
[Sales]."
The petitioner also submitted an organizational chart for the United States entity. The chart shows the
beneficiary reporting to the president and supervising a secretary/bookkeeper, a marketing manager, a sales
representative, two marketing and sales representatives, and several proposed workers. The beneficiary's
subordinate employees are not portrayed in the chart as having any supervisory or managerial functions over
other employees.
Finally, the petitioner submitted job descriptions for the marketing manager, the sales representatives, and the
secretary/bookkeeper. These employees are described as either performing clerical tasks or marketing the
petitioning organization's products.
Upon review, the petitioner has failed to establish that the beneficiary will be employed in the United States
in a primarily managerial or executive capacity.
Once again, 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 duties performed by the beneficiary and indicate whether such duties
will be either in an executive or managerial capacity. Id.
In this matter, the petitioner's description of the beneficiary's job duties has failed to establish that the
beneficiary will act in a "managerial" capacity. Many of the beneficiary's proposed duties appear to be non­
qualifying administrative or operational tasks which would not rise to the level of being managerial or
executive in nature. In fact, many of the duties appear related to establishing, and not managing, the
petitioner's marketing and sales component. Furthermore, the beneficiary is described as reviewing research
and analysis, approving agreements, and negotiating contracts. However, these duties are more likely than
not administrative or operational tasks. As the petitioner has not established how much time the beneficiary
will devote to performing non-qualifying tasks, it cannot be confirmed that he will "primarily" be employed
as a manager. An employee who "primarily" performs the tasks necessary to produce a product or to provide
WAC 04 192 52743
Page 10
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 ofChurch Scientology International, 19 I&N Dec. at 604.
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.
As explained in the organizational chart and job descriptions, it appears that the beneficiary will directly
manage approximately five workers. However, the petitioner has not established that any of these workers
are supervisory or managerial employees. To the contrary, the secretarylbookkeeper and the marketing and
sales representatives are described as performing the tasks necessary to provide a service or to produce a
product. Furthermore, while the petitioner has given the "marketing manager" a supervisory title, it has not
been established that this worker is truly a managerial or supervisory employee. For example, the marketing
manager is not portrayed in the organizational chart as having any supervisory authority over subordinate
employees. Moreover, the marketing manager is vaguely described as setting up marketing and sales
objectives, sales teams, and bonus standards. An employee will not be considered to be a supervisor simply
because of a job title or because he or she supervises daily work activities and assignments. Rather, the
employee must be shown to possess some significant degree of control or authority over the employment of
subordinates. See generally Browne v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn.
2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11,2007)). Inflatedjob
titles alone and artificial tiers of subordinate employees are not probative and will not establish that an
organization is sufficiently complex to support a managerial position. In this matter, the petitioner has failed
to establish that this worker is truly a supervisory or managerial employee.
In view of the above, it appears that the beneficiary will be, at most, a first-line supervisor of non-professional
employees, the provider of actual services, or a combination of both. A managerial employee must have
authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the
supervised employees are professionals. Section 101(a)(44)(A)(iv) of the Act; see also Matter of Church
Scientology International, 19 I&N Dec. at 604. Furthermore, as the petitioner has not established the
educational backgrounds or skill levels required to perform the subordinate positions, it has not been
established that the subordinate employees are professional employees. Therefore, the petitioner has not
established that the beneficiary will be employed primarily in a managerial capacity.
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. As
explained above, it appears that the beneficiary will primarily perform non-qualifying tasks, and/or act as a
first-line supervisor, and will not perform executive duties.
Accordingly, the petitioner has failed to establish that the beneficiary will be employed in a managerial or
executive capacity, and the petition may not be approved for this additional reason.
Beyond the decision of the director, the petitioner has failed to establish that it has a qualifying relationship
with the foreign employer, Import and Export Trading Company.
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
WAC 04 192 52743
Page 11
101(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1). If one individual or company owns a majority interest in a
petitioner and a foreign employer, and controls those entities, then the entities will be deemed to be
"affiliates" under the definition. 8 C.F.R. § 214.2(1)(l)(ii)(L).
In the current case, the petitioner alleges that both it and the foreign employer, Import and Export Trading
Company, are owned and controlled by Harbin Bearing Group Company. However, the record is devoid of
any evidence that Harbin Bearing Group Company owns and controls its alleged "branch," Import and Export
Trading Company. Once again, going on record without supporting documentary evidence is not sufficient
for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14
I&N Dec. 190.
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign
employer, 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 Dar 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 is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.