dismissed L-1A Case: Import/Export

&& w 
prevent clearly ranwarrant& 
invasion of pma~al pdvacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services b 1 
File: WAC 04 19 1 53905 Office: CALIFORNIA SERVICE CENTER Date: JAN 2 7 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
4 Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 04 191 53905 
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 filed this nonimmigrant petition seeking to employ the beneficiary as an 
L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. ?j 1101(a)(15)(L). The petitioner claims to be a partnership and was 
organized as a limited liability company under the laws of the State of California. It claims to import and 
export lubricants, oil and automobile spare parts and equipment. The petitioner states that it is a branch office 
of West East Coast Trading located in Dubai, United Arab Emirates. The petitioner seeks to employ the 
beneficiary as "manager director" of its new office in the United States for a one-year period. 
The director denied the petition concluding that the petitioner did not establish that the U.S. entity has a 
qualifying relationship with the foreign entity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that director failed 
to consider the evidence in its entirety and misinterpreted the documentation submitted by the petitioner. 
Counsel asserts the foreign entity and the U.S. entity are both partnerships owned by the same individuals and 
emphasizes that the two entities share the same name. Counsel contends that the petitioner has submitted 
sufficient evidence to establish a branch relationship between the two companies. Counsel submits a brief and 
copies of previously submitted documentation in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifylng managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year withn 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. ?j 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 qualifylng organization within the three years preceding the filing of 
the petition. 
WAC 04 191 53905 
Page 3 
(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 himher 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. fj 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority ova 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 (I)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 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. 
The primary issue in this matter is whether the petitioner has established a qualifying relationship between the 
United States entity and the benefi ciary's foreign employer. 
The pertinent regulations at 8 C.F.R. fj 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) QualzJLing 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; 
WAC 04 191 53905 
Page 4 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or 
through a parent, branch, affiliate or subsidiary for the duration of the alien's 
stay in the United States as an intracompany transferee; and, 
(3) Otherwise meets the requirements of section 10 1 (a)(l5)(L) of the Act. 
* * * 
(I) Parent means a firm, corporation , or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed in a 
different location. 
(K) Subsidia y means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) AfJiliate means (I) One of two subsidiaries both of which are owned and controlled 
by the same parent or individual, or (2) One of two legal entities owned and 
controlled by the same group of individuals, each individual owning and controlling 
approximately the same share or proportion of each entity. . . . 
On the Form 1-129, the petitioner indicated that the U.S. company is a branch of the foreign entity and 
described the stock owners hi^ as follows, without svecifving; whether the stock ownershia amlied to the U.S. . a- 
entity, the foreign entity, or both entities:'(l) 5 1 percent; (2) Noor Nonis, 24 percent; and 
(3) [the beneficiary], 24 percent. In a June 3, 2004 letter submitted in support of the petition, the petitioner 
referred to the foreign entity as its parent company. 
The petitioner submitted the following documents in support of the petition: (1) its limited liability company 
articles of organization filed with the California Secretary of State on August 25, 2003; (2) its Internal 
Revenue Service (IRS) Form SS-4, Application for Employer Identification Number, on which the company 
is identified as a partnership; (3) a Bank of America "business profile" which identifies s the 
"owner/president" of the company; (5) an amendment to a "Partnership Contract Agreement" dated October 
1,2002; (6) a translation of the foreign entity's 2003 membership registration certificate issued by the Sharjah 
Chamber of Commerce & Industry, identifying the foreign entity as a limited liability company with three 
partners; (7) a translation of an excerpt from the foreign entity's memorandum of association identifying the 
owners of the company as: 5 1 percent) (25 percent) and the 
beneficiary (24 percent) and ldentilying the beneficiary as general manager of the company; and (8) a 
translation of the foreign entity's trading license identifying the same three partners and indicating tha 
is the manager of the foreign entity. m 
WAC 04 191 53905 
Page 5 
The petitioner also submitted a copy of an eight-page sales representative agreement made between the U.S. 
and foreign entities on September 18, 2003, in which the petitioner appoints the foreign entity as its sales 
representative for the United Arab Emirates territory. The agreement contains the following provision: 
6. Independent Contractor. 
Representative is an independent contractor and nothing contained in this Agreement shall be 
construed to (i) give either party the power to direct and control the day-today activities of 
the other, (ii) constitute the parties as partners, joint venturers, co-owners or otherwise, or (iii) 
allow Representative to create or assume any obligation on behalf of Company for any 
whatsoever. . . . 
The director issued a notice of intent to deny the petition on July 28, 2004. The director observed that the 
evidence submitted showed that three individuals owned the foreign entity, but suggested that the U.S. entity 
is 100 percent owned by a minority owner in the foreign entity. The director noted that the 
petitioner does not the foreign entity because it is owned by an individual, and does not 
qualifi as an affiliate of the foreign entity, because both entities had not been shown to be owned by the same 
group of individuals in approximately the same proportion. 
The director also referenced the sales representative agreement submitted in support of the petition, noting 
that the agreement refers to the foreign entity as an independent contractor. The director observed that it is 
evident from a review of the agreement that the two companies are completely independent and have only a 
contractual relationship that is subject to termination, rather than the common ownership and control required 
to establish a qualifying relationship for purposes of the L-1 visa classification. The director informed the 
petitioner that it would be afforded 30 days in which to submit additional information, evidence or arguments 
to support the petition. 
In a response dated August 23,2004, counsel for the petitioner asserted: 
[Tlhe Service misinterprets four of the documents submitted by petitioner in support of his 
application to erroneously conclude that "the U.S. entity is not a 'branch' of the foreign entity 
. . . ." One such documents [sic] is the Sales Representative Agreement (SRA). The SRA was 
only a temporary agreement that was limited to sales made by the U.S. entity in the "territory 
of the United Arab Emirates (See Article 1B of SRA) where the foreign entity is located. The 
SRA has bore [sic] only three signatures. The three partners - who are the same partners for 
both entities - signed each only once, the document bearing no different signatures for 
ownerslpartners of two different entities. . . . Furthermore, after the official documentation for 
creation of the U.S. entity were [sic] filed with the California Secretary of State on October 3, 
2003 (naming the partners who are also managers of the corporation) the partners terminated 
the Sales Representative Agreement. A copy of the Termination of Sales Representative 
Agreement is attached. . . . 
The second document is a "Business Profile" from the Bank of America carrying the name of 
as "owner/president", and under "contact" the names of the other two partners, 
WAC 04 191 53905 
Page 6 
[the beneficiary] and Fathima Gosham. However, having the name o as 
"president" on such a document does not constitute evidence that the U.S. entity has only one 
owner. In fact, the agreement made by the three partners and the official documentation filed 
for the creation of the U.S. entity clearly shows that the California company is a partnership. 
The three partners signed a statement showing "Under the direction of [the beneficiary], [the 
foreign entity] will start the company in the United States. . . ." The Articles of Organization 
endorsed by the California Secretary of State on August 23, 2003. . .indicate that the U.S. 
entity "will be managed by more than one manager" and the State [sic] of Information filed 
with the California Secretary of State on October 3, 2003 names the same three partners as 
the managers of the corporation. . . . Moreover, the I.R.S. Form SS-4 filed by the U.S. entity 
clearly shows under paragraph 8a "Type of entity" that the company is a "Partnership." 
In support of its response to the notice of intent to deny, the petitioner submitted copies of previously 
submitted documentation and an undated statement signed by the partners of the foreign entity titled 
"Termination of Sales Representative Agreement" which states: 
Based on Art 15A of our Sales Representative Agreement that commenced on October 1, 
2003 and following the filing on October 3, 2003 of [the petitioner's] (Secretary of State File 
Number Statement of Information, naming the partners who are also 
managers of our branch in California, we - the partners - are terminating the Sales 
Representative Agreement (for the territory of the United Arab Emirates; see Art 1B of the 
agreement). 
The director denied the petition on September 25, 2004, concluding that the petitioner did not submit 
sufficient evidence to establish a qualifying relationship with the foreign entity. The director acknowledged 
the petitioner's response to the notice of intent to deny, but observed that none of the formal documents 
related to the establishment of the petitioning company clearly show the partners7 names and percentage 
interest owned by each partner. The director determined that the U.S. company is not a branch of the foreign 
entity as claimed, because the U.S. entity is organized as a limited liability company partnership. The director 
further concluded that the petitioner had not established that it is an affiliate of the foreign entity because it 
submitted insufficient evidence to demonstrate that both entities are owned and controlled by the same group 
of individuals. 
On appeal, counsel for the petitioner makes essentially the same assertions submitted in response to the notice 
of intent to deny. Counsel emphasizes that the three individuals who own the foreign entity filed official 
documentation for the creation of the U.S. entity, that the two entities are both partnerships, and that the two 
entities have the same name. Counsel asserts that the petitioner submitted sufficient evidence to establish that 
the U.S. entity is a branch of the foreign entity. The petitioner submits copies of previously submitted 
documents in support of the appeal. 
Upon review, the petitioner has not established that the U.S. entity and the foreign entity have a qualifying 
relationship as required by 8 C.F.R. 9 214.2(1)(3)(i). The regulation and case law confirm that ownership and 
control are the factors that must be examined in determining whether a qualifying relationship exists between 
WAC 04 191 53905 
Page 7 
United States and foreign entities for purposes of this visa classification. Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 
362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comrn. 1982). In context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and 
authority to control; control means the direct or indirect legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientoloay International, 19 I&N Dec. at 595. 
The AAO will first address the petitioner's claim that the U.S. entity is a "branch" of the foreign entity. In 
defming the nonimmigrant classification, the regulations specifically provide for the temporary admission of 
an intracompany transferee "to the United States to be employed by a parent, branch, affiliate, or subsidiary 
of [the foreign firm, corporation, or other legal entity]." 8 C.F.R. 5 214.2(1)(1)(i) (emphasis added). The 
regulations define the term "branch" as "an operating division or office of the same organization housed in a 
different location." 8 C.F.R. $ 214.2(1)(l)(ii)(J). CIS has recognized that the branch office of a foreign 
corporation may file a nonimmigrant petition for an intracompany transferee. See Matter of Kloetti, 18 I&N 
Dec. 295 (Reg. Comm. 1981); Matter of Leblanc, 13 I&N Dec. 816 (Reg. Comm. 1971); Matter of Schick, 13 
I&N Dec. 647 (Reg. Comm. 1970); see also Matter of Penner, 18 I&N Dec. 49,54 (Comm. 1982)(stating that 
a Canadian corporation may not petition for L-1B employees who are directly employed by the Canadian 
office rather than a United States office). When a foreign company establishes a branch in the United States, 
that branch is bound to the parent company through common ownership and management. A branch that is 
authorized to do business under United States law becomes, in effect, part of the national industry. Matter of 
Schick, supra at 649-50. 
Probative evidence of a branch office would include the following: a state business license establishing that 
the foreign corporation is authorized to engage in business activities in the United States; copies of Internal 
Revenue Service (RS) Form 1 120-F, U.S. Income Tax Return of a Foreign Corporation; copies of RS Form 
94 1, Employer's Quarterly Federal Tax Return, listing the branch office as the employer; copies of a lease for 
office space in the United States; and finally, any state tax forms that demonstrate that the petitioner is a 
branch office of a foreign entity. 
If the petitioner submits evidence to show that it is incorporated in the United States, then that entity will not 
qualify as "an . . . office of the same organization housed in a different location," since that corporation is a 
distinct legal entity separate and apart from the foreign organization. See Matter of M, 8 I&N Dec. 24, 50 
(BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Cornm. 1980); and Matter 
of Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Comm. 1980). If the claimed branch is incorporated in the United 
States, CIS must examine the ownership and control of that corporation to determine whether it qualifies as a 
subsidiary or affiliate of the overseas employer. 
In this matter, the petitioner has submitted evidence that it filed articles of organization with the California 
Secretary of State on August 25, 2003. As a limited liability company, the petitioner cannot meet the 
definition of a branch office pursuant to 8 C.F.R. 8 214.2(1)(l)(ii)(J). Therefore, the AAO must examine the 
ownership and control of each company in order to determine whether an affiliate relationship exists between 
the two companies. 
WAC 04 191 53905 
Page 8 
As evidence of the ownership of the foreign entity, the petitioner has submitted various documents which 
establish that the foreign entity is a partnership registered as a limited liability company, and is owned by 
three individuals. The only evidence provided to establish the percentage interest owned by each partner is an 
English translation of a single page of the foreign entity's memorandum of association indicating that one 
individual owns a 5 1 percent interest in the foreign entity, one individual owns a 25 percent interest, and one 
individual owns a 24 percent interest. The petitioner did not provide the remainder of the document, nor did it 
provide a copy of the original document from which the translation was made. Absent a complete signed and 
dated copy of the foreign entity's memorandum of association, with English translation, or other evidence of 
the percentage interest owned by each partner in the foreign entity, the AAO cannot determine the essential 
elements of ownership and control. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
With respect to the United States entity, the AAO acknowledges that the evidence suggests that the same 
three individuals are partners in both the U.S. and the foreign entities. However, in order to establish that the 
two entities are affiliates as defined at 8 C.F.R. 3 214.2(1)(l)(ii)(L), the petitioner must establish either that 
one individual has majority ownership and control of both companies, or that both companies are owned and 
controlled by the same group of individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. 
As discussed above, the petitioner has provided insufficient evidence to establish the percentage interest 
owned by each partner in the foreign entity. As noted by the director, the petitioner has provided no evidence 
to document the percentage interest owned by each partner or member in the petitioning company. Such 
documentation may have included the petitioner's memorandum of association, membership certificates, 
partnership agreement, evidence of monies transferred from each individual in exchange for their ownership 
interest in the petitioning company, and/or the petitioner's Form 1065, Return of Partnership Income for the 
2003 year. Again, going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter ofSofici, 22 I&N at 165. Counsel's assertion that 
both entities are organized as partnerships and observation that the two entities use the same name is 
insufficient to establish an affiliate relationship between the two entities. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
In order to determine whether two companies have a qualifying relationship, the AAO must examine all 
documentation related to the total number of shareholders, partners or members, the exact number of shares 
issued or percentage of interest issued to each shareholder, member or partner, 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 
company, and any other factor affecting actual control of the entity. See Matter of Siemens Medical Systems, 
lnc., supra. Without full disclosure of all relevant documents, CIS is unable to determine the elements of 
ownership and control. 
WAC 04 191 53905 
Page 9 
The petitioner's failure to provide evidence of the percentage interest owned by each claimed partner in each 
company makes it impossible for the AAO to determine whether the two entities have an affiliate relationship. 
Neither the petitioner nor counsel has submitted evidence on appeal to overcome the director's determination 
on this issue. For this reason, the appeal will be dismissed. 
Beyond the decision of the director, the record contains no documentation to persuade the AAO that the 
beneficiary has been employed in a managerial or executive capacity with the foreign entity, or that the 
petitioner would support such a position within one year of approval of the petition. See 8 C.F.R. $8 
214.2(1)(3)(v)(B) and (C). The petitioner's descriptions of the beneficiary's current duties with the foreign 
entity and his proposed duties in the United States merely paraphrase the statutory definition of executive 
capacity. See section 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B). For example, the petitioner states 
that the beneficiary's duties have been and would be "directing the management of the organization, 
establishing goals and policies, exercising a wide latitude in discretionary decision-making." Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), am 905 F.2d 41 (2d. Cir. 1990). In addition, the 
record does not contain adequate evidence: describing the scope of the U.S. entity, its organizational structure, 
and its financial goals; showing the size of the United States investment, the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in the United States; or depicting the 
organizational structure of the foreign entity, as required by 8 C.F.R. fj 214.2(1)(3)(~). As the appeal will be 
dismissed on the grounds discussed, these issues need not be addressed further. 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.