dismissed L-1A Case: Import/Export Trading

identifyingdatadeletedto
preventclearlyunwarranted
invasionofpersonalprivac)
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 06 183 52692
PUBLIC COpy
Office: VERMONT SERVICE CENTER
DEC 0 4lOU7
Date:
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
,,~.,.,~.•.--.
('//'
Robert . lemann, Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 183 52692
Page 2
DISCUSSION: The Director, Vermont 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 as an L-l A nonimmigrant intracompany transferee pursuant to section 101(a)( 15)(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 Illinois and is allegedly an import/export trading company.
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be
employed in the United States 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 are primarily those of an executive or manager.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on 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 (1)(1)(ii)(G) of this section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be performed.
(iii) Evidence that the alien has at least one continuous year of full-time employment
abroad with a qualifying organization within the three years preceding the filing of
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to 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 will be employed by the United States
entity in a primarily managerial or executive capacity.
EAC 06 183 52692
Page 3
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the tenn "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 tenn "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perfonn 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 a beneficiary will be employed as a hybrid "executive/manager" and
rely on partial sections of the two statutory definitions. If the petitioner is indeed representing the beneficiary
as both an executive and a manager, it must establish that the beneficiary meets each of the four criteria set
forth in the statutory definition for executive and the statutory definition for manager.
The petitioning organization described the beneficiary's job duties in a letter dated May 17, 2006 as follows:
As Vice President of marketing, [the beneficiary] will be in charge of expanding the
EAC 06 183 52692
Page 4
marketing program at the Chicago subsidiary. She will be responsible for the formulation
policy [sic] and oversee its implementation. She will also have the authority to hire
personnel, set their compensation and discharge them as she deems necessary. She will be
reporting directly to the president of the parent company.
The petitioner also submitted an organizational chart for the United States operation. The chart shows the
beneficiary reporting to the petitioner's president and supervising a "sales manager" and a "warehouse
manager."
On September 18, 2006, the director requested additional evidence. The director requested, inter alia, job
descriptions for the beneficiary's proposed subordinates, including a breakdown of the number of hours
devoted to each of their job duties on a weekly basis; educational credentials for the proposed subordinates; a
copy of the petitioner's 2005 federal income tax return; copies of the petitioner's 2005 Forms W-2; and copies
of the petitioner's 2005 payroll roster.
In response, counsel submitted a letter dated December 12, 2006 in which she further describes both the
beneficiary's duties and those of her proposed subordinates as follows:
Greater participation in trade shows is another objective of the company. The company
anticipates to partake in at least five (5) trade shows per year. [The beneficiary] will make a
determination in which trade shows the company should participate and what products should
be exhibited. She will determine the presentation of the products and their displays. Prior to
the trade show, [the beneficiary] will oversee and coordinate the preparation of catalogs,
advertising and handouts. She will determine the size and quantity of samples to be made
available to the trade show participants. During the show, [the beneficiary] will be available
to discuss special requirements of interested customers, bulk purchases, price discounts and
payment terms.
[The beneficiary's] duties will include work to increase the company's market share to other
industry leaders. She will also oversee the company's customer service department. She will
develop and implement marketing policies; define and assign territory; set quotas for sales,
evaluate product lines and their success in the market; prepare market reports and analysis for
management. She will have the authority to discuss and arrange for wholesale discounts,
determine credit and payment terms with potential purchasers, determine the need for the
development of new products and the feasibility of marketing them. She will have an input
into the level of inventory on hand.
[The beneficiary] will have two subordinates reporting to her, i.e., the sales manager who
supervises two indoor salespersons and acts as an assistant in handling matters which do not
require the expertise and authority vested in [the beneficiary] by the Board of Directors; and
the warehouse manager, who supervises inventory control, shipping, receiving, and customer
service. While the warehouse manager has the authority to decide how returned goods under
warranty are to be treated, e.g., whether repaired in-house, contracted out or returned to China
for credit, situations dealing with sensitive customers, such as Sears or W.W. Grainger, for
EAC 06 183 52692
Page 5
example, or borderline cases may require [the beneficiary's] final input and decision.
The sales manager monitors performance of the company's sales personnel and independent
sales representatives. This comprises about 50% of his time per week. The assignment of
territory and the monitoring of sales potential takes [sic] about 10% of his time. He also
monitors sales quotas, which comprises about 20% of his time. The review of sales reports
takes up about 10% of his time. Review of reports and preparation of reports takes another
100/0 of his time.
The warehouse manager supervises inventory control, which takes about 20% of his time;
another 20% of his time is spent on monitoring shipping; 15% of his time in verifying the
receiving of merchandise; about 25% is spent on customer service; 10% on returned
merchandise under warranty and 10% on review and preparation of reports.
The petitioner also submitted the first page of its 2005 Form 1120S, U.S. Income Tax Return for an S
Corporation, which indicates that, in 2005, the petitioner paid out $29,400.00 in "compensation of officers"
and $44,960.00 in "salaries and wages," for a total of $74,360.00. The petitioner also submitted a single 2005
Form W-2 showing federal wages of $74,360.00. The employee's name and social security number does not
appear on the single 2005 Form W-2. Finally, the petitioner submitted a 2005 payroll report which lists three
employees - nd _ The total 2005 compensation for all three employees in
the report is $74,360.00. While is identified in the organizational chart as the "warehouse
manager," the other two individuals listed in the payroll report do not appear in the organizational chart.
On February 1, 2007, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or manager.
Upon review, the petitioner'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). 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.
As a threshold issue, the AAO notes that, as counsel failed to corroborate her descriptions of the duties of
both the beneficiary and her proposed subordinates in the letter dated December 12, 2006, these assertions
have no evidentiary value. Without documentary evidence to support the claim, the assertions of counsel will
not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence.
Matter ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983);
Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
Regardless, in this matter, both counsel's and the petitioner's descriptions of the beneficiary's job duties fail to
establish that the beneficiary will act in a "managerial" or "executive" capacity. In support of the petition, the
EAC 06 183 52692
Page 6
petitioner and its counsel have submitted vague and non-specific job descriptions which fail to sufficiently
describe what the beneficiary will do on a day-to-day basis. For example, the petitioner states that the
beneficiary will develop and implement marketing policies, plan the petitioner's participation in trade shows,
and oversee the company's customer service department. However, the petitioner does not specifically define
these marketing policies or the beneficiary's level of participation in the trade shows. Furthermore, the
petitioner does not explain what, exactly, the beneficiary will do in overseeing the "customer service
department" when the petitioner's organizational chart does not identify this department or describe any
employees performing these duties. The fact that the petitioner has given the beneficiary a managerial or
executive title and has prepared a vague job description which includes inflated job duties does not establish
that the beneficiary will actually perform managerial or executive duties. 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), 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
Likewise, many of the duties ascribed to the beneficiary appear to be non-qualifying administrative or
operational tasks which will not rise to the level of being managerial or executive in nature. For example, the
petitioner asserts that the beneficiary will prepare for, and participate in, trade shows. The petitioner also
asserts that the beneficiary "will have the authority to discuss and arrange for wholesale discounts, determine
credit and payment terms with potential purchasers" and will oversee the "customer service department."
However, sales and marketing tasks are considered to be non-qualifying administrative or operational tasks
when those tasks are performed by the beneficiary. As the record does not establish that the petitioner will
employ workers to relieve the beneficiary of the need to perform these "customer service" tasks, it must be
concluded that she will perform them. Furthermore, as the petitioner has failed to establish that her
subordinate workers are supervisory, managerial, or professional employees (see infra), the supervisory
functions ascribed to the beneficiary, e.g., setting sales quotas and assigning sales territory, would also be
non-qualifying, first-line supervisory tasks. As the petitioner has not established how much time the
beneficiary will devote to such non-qualifying tasks, it cannot be found that she will "primarily" be employed
as a manager or an executive. An employee who "primarily" performs the tasks necessary to produce a
product or to provide services is not considered to be "primarily" employed in a managerial or executive
capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the
enumerated managerial or executive duties); see also Matter of Church Scientology International, 19 I&N
Dec. 593, 604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As alleged in the organizational chart, job descriptions, and p~oll report, the beneficiary will directly
supervise a "warehouse manager" and a "sales manager." Despite his managerial title, the warehouse
manager is described as primarily performing non-supervisory tasks necessary to the provision of a service or
the production of a product. While the "sales manager" is described as spending half of his time monitoring
the performance of "the company's sales personnel and independent sales representatives," the petitioner has
nevertheless failed to persuasively establish that the sales manager is ~a fide supervisory or
managerial employee. First, the petitioner has not established that either_, the person allegedly
EAC 06 183 52692
Page 7
•
d as the "sales manager," or any of the "sales representatives" are even employed by the petitioner.
does not appear in the 2005 payroll roster, and the record is devoid of any evidence establishing
when, or whether,_nd the sales representatives were first hired by the petitioner. Furthermore, the
organizational chart fails to identify any sales representatives subordinate to the sales manager, and their
existence was only first alleged in the petitioner's response to the director's Request for Evidence. The
petitioner offers no explanation for their exclusion from the organizational chart or for when or how the
petitioner's employment roster quintupled from three employees at the end of 2005 to the fifteen claimed in
the Form 1-129. Also, the petitioner failed to provide job descriptions for the sales staff, even though such
evidence was specifically requested by the director. 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. Failure to submit requested evidence that precludes
a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). It is incumbent
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent
objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Second, assuming that he is an employee, the petitioner has failed to persuasively establish that the sales
manager is a supervisory or managerial employee because it has not been established that he truly performs
supervisory or managerial duties. The petitioner has not established that it has an organizational complexity
which compels the employment of a subordinate tier of managers or supervisors. To the contrary, it appears
that the sales manager will be performing sales duties alongside the sales representatives, and that he is not a
bona fide supervisory or managerial employee. 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)). Artificial
tiers of subordinate employees and inflated job titles are not probative and will not establish that an
organization is sufficiently complex to support an executive or manager position. The petitioner has not
established that the reasonable needs of the United States operation compel the employment of a managerial
or executive employee to oversee one or more subordinate supervisors. To the contrary, it is more likely than
not that both the beneficiary and her staff will all primarily perform non-qualifying sales tasks. See generally
Family, Inc. v. u.s. Citizenship and Immigration Services, 469 F.3d 1313 (9th Cir. 2006).
In view of the above, it appears that the beneficiary will be· primarily 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. § 101(a)(44)(A)(iv) of the Act; see also Matter of Church
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills
required to perform the duties of the subordinate positions, the petitioner has not established that the
beneficiary will manage professional employees. I Also, the petitioner failed to enclose copies of the
lIn evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall include but not
EAC 06 183 52692
Page 8
beneficiary's educational credentials even though this evidence was specifically requested by the director.
Once again, failure to submit requested evidence that precludes a material line of inquiry shall be grounds for
denying the petition. 8 C.F.R. § 103.2(b)(14). Therefore, the petitioner has not established that the
beneficiary will be employed primarily in a managerial capacity.2
Similarly, the petitioner has failed to establish that the beneficiary will act 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
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 (0.0.1966).
2While the petitioner has not argued that the beneficiary will manage an essential function of the organization,
the record nevertheless would not support this position even if taken. 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 is managing an essential function, the petitioner must furnish a written
job offer that clearly describes the duties to be 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(1)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties will be managerial, if any, and what
proportion will be non-managerial. Also, as explained above, the record establishes that the beneficiary will
primarily be a first-line supervisor of non-professional employees and/or will be engaged in performing non­
qualifying operational or administrative tasks. Absent a clear and credible breakdown of the time spent by the
beneficiary performing her duties, the AAO cannot determine what proportion of her duties will be
managerial, nor can it deduce whether the beneficiary will be primarily performing the duties of a function
manager. See IKEA US, Inc. v. U.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
EAC 06 183 52692
Page 9
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis.
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line
supervisor and will performing tasks necessary to produce a product or to provide a service. Also, as the
beneficiary is described as reporting to the president, it appears that any realistic authority to direct the
enterprise is vested in this individual and not in the beneficiary. Therefore, the petitioner has not established
that the beneficiary will be employed primarily in an executive capacity.
It is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the petitioning
company in conjunction with other relevant factors, such as a company's small personnel size, the absence of
employees who would perform the non-managerial or non-executive operations of the company, or a "shell
company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v.
INS, 153 F. Supp. 2d 7,15 (D.D.C. 2001). The size ofa company may be especially relevant when CIS notes
discrepancies in the record and fails to believe that the facts asserted are true. Id. In this matter, the petition
is rife with inconsistencies regarding its past and current staffing. For example, the petitioner claims to have
fifteen employees in the Form 1-129. However, the petitioner submitted an organizational chart listing nine
employees or officers and 2005 payroll records identifying only three employees. Only one of the three
employees listed in the 2005 payroll records appears on the organizational chart. Furthermore, when asked by
the director to produce its 2005 Forms W-2, the petitioner submitted a single form that omits any information
about the employee yet lists total wages of $74,360.00. As this sum equals the total wages claimed on the
2005 payroll roster for three employees, it calls into question whether more than one employee was employed
by the petitioner in 2005. The petitioner offers no explanation for these inconsistencies or for its exponential,
and uncorroborated, growth from three (or, perhaps, one) employees to the fifteen claimed in the Form 1-129.
As indicated above, it is incumbent upon the petitioner to resolve any inconsistencies in the record by
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo, 19
I&N Dec. at 591-92. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. Id. at 591.
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will primarily perform
managerial or executive duties, and the petition may not be approved for that reason.
Beyond the decision of the director, the petitioner failed to establish that it and the foreign employer are
qualifying organizations.
The r~gulation at 8 C.F.R. § 214.2(l)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by
"[e]vidence that the petitioner and the organization which employed or will employ the alien are qualifying
organizations." Title 8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation,
or other legal entity which "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" and "is or will be doing
business." "Subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or
indirectly, more than half of the entity and controls the entity." "Doing business" is defined in part as "the
regular, systematic, and continuous provision of goods and/or services."
EAC 06 183 52692
Page 10
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 United States and foreign entities for purposes
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm.
1982). In the 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
Scientology International, 19 I&N Dec. at 595.
As a threshold issue, the petitioner submitted only the first page of its 2005 Form 1120S, U.S. Income Tax
Return for an S Corporation, in response to the director's Request for Evidence. As indicated above, the
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the
petition. 8 C.F.R. § 103.2(b)(14). Given that the ownership and control of the petitioner is a fundamental
element of the instant petition, and given that averments made in the petitioner's tax filings concern its
ownership and control, the petitioner's failure to submit a complete copy of its Form 1120S precluded a
material line of inquiry. Therefore, for this reason alone the petition will be denied.
Furthermore, in this matter, the petitioner asserts that it is 1000/0 owned by the Chinese foreign employer,
Shandong Machinery Import & Export Corporation, and is thus a subsidiary. In support of this assertion, the
petitioner submitted organizational documents and a stock certificate dated December 1, 1994 purporting to
represent the issuance of 10,000 shares of stock to the foreign employer. However, in response to the
director's Request for Evidence, the petitioner submitted the first page of its 2005 Form 1120S, U.S. Income
Tax Return for an S Corporation. To qualify as a subchapter S corporation, a corporation's shareholders must
be individuals, estates, certain trusts, or certain tax-exempt organizations, and the corporation may not have
any foreign corporate shareholders. See section 1361 of the Internal Revenue Code, 26 U.S.C. § 1361. A
corporation is not eligible to elect S corporation status if a foreign corporation owns it in any part.
Accordingly, since the petitioner would not be eligible to elect S-corporation status with a foreign parent
corporation, it appears that the United States petitioner is owned by one or more individuals residing within
the United States rather than by a foreign entity. This conflicting information has not been resolved. Once
again, it is incumbent upon the petitioner to resolve any inconsistencies in the record by independent
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec.
at 591-92.
Finally, the petition is devoid of evidence of any current business activity by either the foreign employer or
the petitioner. While the record contains evidence of business activity in 2005, the petition contains only four
bills of lading and some invoices to the petitioner for telecommunications services from 2006. This evidence
is not persuasive in establishing that the foreign employer or the petitioner was engaged in the regular,
systematic, and continuous provision of goods and/or services at the time the petition was filed on or about
May 31,2006.
EAC 06 183 52692
Page 11
Accordingly, the petItIOner has failed to establish that it and the foreign employer are qualifying
organizations, and the petition may not be approved for this additional reason.
3
Beyond the decision of the director, the petitioner failed to establish that the beneficiary had been employed
abroad for at least one continuous year in a position that was managerial, executive, or involved specialized
knowledge. 8 C.F.R. §§ 214.2(l)(3)(iii) and (iv).
The foreign employer described the beneficiary's duties abroad in a letter dated May 17, 2006 as follows:
[The beneficiary] has been employed by the parent company since June, 1991, initially in the
sales department and then as its manager. In 1996, she was named Marketing Manager of the
Department of Machines and Equipment where she supervised 12 employees. This
department exported power tools, machine tools, [w]ood and metal tools and under the
management of [the beneficiary] by 2005 generated $14.5 million.
Upon review, the petitioner has failed to establish that the beneficiary was employed abroad in a primarily
managerial or executive capacity.
As a threshold issue, the petitioner failed to respond to the director's Request for Evidence as it pertained to
the beneficiary's foreign employment. The director requested evidence regarding the beneficiary's
subordinates as well as an organizational chart for the foreign employer. The petitioner ignored this request.
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the
petition. 8 C.F.R. § 103.2(b)(14). 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). For this reason alone, the
petitioner has failed to establish that the beneficiary was employed abroad in a primarily managerial or
executive position, and the petition may not be approved for this additional reason.
Regardless, the petitioner has not described the beneficiary as performing "primarily" qualifying duties
abroad. In support of the petition, the petitioner submitted a vague and non-specific job description which
fails to sufficiently describe what the beneficiary did on a day-to-day basis. 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.
3The AAO notes that, according to the corporate records of the State of Illinois, the petitioner_ears to have
been involuntarily dissolved on April 1, 1997. The State of Illinois assigned file number to the
petitioner when it was incorporated on November 15, 1994. This file number appears at the top of the
petitioner's articles of incorporation dated November 15, 1994, which were submitted in response to the
director's Request for Evidence. While the records of the State of Illinois also indicate th~ration
using the same name as the petitioner was incorporated on January 25, 2005 (file number _, it is
unclear whether this 2005 corporation is connected with the petitioner in light of the its submission of the
1994 articles of incorporation for the dissolved entity. Regardless, this additional inconsistency would call
into question the petitioner's eligibility for the benefit sought if the appeal were not being dismissed for those
reasons explained herein.
EAC 06 183 52692
Page 12
Supp. 1103, aff'd, 905 F.2d 41. Furthermore, the petitioner failed to establish that the beneficiary supervised
and controlled the work of other supervisory, managerial, or professional employees. As alleged in the
record, the beneficiary supervised 12 subordinates. However, as the petitioner failed to describe the
subordinate employees' duties or to submit an organizational chart, the petitioner failed to establish that these
workers were supervisory, managerial, or professional employees.
Accordingly, the petitioner failed to establish that the beneficiary had been employed abroad for at least one
continuous year in a position that was managerial, executive, or involved specialized knowledge, and the
petition may not be approved for this additional reason.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 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.