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PUBLICCOPY
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship·
and Immigration
Services
FILE: WAC 05 103 50662 Office: CALIFORNIA SERVICE CENTER Date: MAR 0'1 2001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l(a)(15)(L) of the Immigration and
Nationality Act, 8 U.S.c. §,1101(a)(15)(L)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
SELF-REPRESENTED
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.
---~.c:::-_ ~.
Robe :-Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 05 103 50662
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 extend the employment of its president 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)(l5)(L). The petitioner , a corporation organized-in the State of California,
claims to' be the subsidiary of located in Shanghai , China.
The petitioner identifies itself as an importer of cashmere knitware. The beneficiary was initially granted a
one-year period of stay to open a new office in the United States, which was subsequently extended for an
. additional four years. The petitioner now seeks to extend the beneficiary's stay ,for an additional two years.
The director denied the petition concluding that the petitioner did not establish that (l) the beneficiary will be
employed in the United States in a primarily managerial or executive capacity ; or (2) the petitioner and the
o~ganization which employed the beneficiary abroad are qualifying organizations ..
On appeal , counsel for the petitioner contends that the director erroneously denied the petition and that the
petitioner has satisfied the regulatory requirements regarding both bases of the denial. In support of these
assertions, the petitioner 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) oftheAct. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executi ve 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(l)(14)(ii) provides that a visa petition, which involved the opening of a.
new office, may be extended by filing a new Form 1-129 , accompanied by the following:
(a) Evidence that the United States and foreign entities are still qualifying . organizations as
defined in paragraph (l)(l)(ii)(G) of this section;
(b) Evidence that the United States entity has been doing business as defined in paragraph
(l)(l)(ii)(H) of this section for the previous year;
(c) A statement .of the duties performed by the beneficiary for the previous year and the duties
the beneficiary will perform under the extended petition;
(d) A statement describing the staffing of the new operation , including the number of employees
and types of positions held accompan ied by evidence of wages pa id to employees when the
beneficiary will be employed in a managerial or executive capacity; and
WAC 05 103 50662
Page 3
(e) Evidence of the financial status of the United States operation.
The first issue in the present matter is whether the beneficiary will be employed by the United 'States entity in
a primarily managerial or executive capacity .
Section 101(a)(44)(A) of the Act , 8 U.S.c. § 1101(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 essentiai 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 compo~.ent 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.
In a letter dated February 21 ~ 2005, the petitioner stated that the benefi~iary has been functioning as the
petitioner 's president since March 2000. With regard to the beneficiary 's duties, the petitioner stated:
WAC 05 103 50662
Page 4
1. He determines company's policies and establishes business goals. With business
nature in mind , he considers company's marketing capability, financial capability and
human resources. He also considers the social and economic environment here in the
United States. Then , he determines and formulates company's policies : product
policy, pricing policy, distribution 'policy, promotion policy , financial policy and
human resource policy.
2. He reviews company 's business reports to ensure that the company 's objectives are
achieved. He also analyzes operationsto evaluate company 's performance and to
determine areas of cost reduct ion and program improvement. He directs financial
and budget activit ies to fund operations and increase efficiency.
3. He makes decision to change the company 's business orientation or adjust the
business goals. He also decides to adjust company's policies: product policy , pricing
pol icy, distribution policy , promotion policy, financial policy and human resource
pol icy. .
4. He reports to the parent company in China. He reports about the performance of this
U.S . company and business opportunities here in the United States. He also receives
information and instructions from the parent company .
The petitioner provided an organizational chart, which indicated that the beneficiary oversaw the following
employees:
Finally , the petitioner submitted a copy of its quarterly tax return for the quarter ending 12/31/2004, which
.confirmed the employment of all persons listed above except for the two sales representati ves. However , the
record does contain copies of W-2 forms issued to each salesperson during the year 2004.
On March 7, 2005 , the director requested additional evidence. pertaining to the nature of the beneficiary 's
position in the U.S . business. The request asked the petitioner to submit a more detailed description of the
day-to-day duties of the benefic iary and an organizational chart for the U .S. entity showing all employees
with an explanation of their duties and job titles.
The petitioner submitted .a response dated Apr il 3, 2005. The petitioner submitted additional details with
regard to the beneficiary 's duties . Although the overv iew was identical to that submitted in the February 21,
2005 letter, the response included some .specific details regarding what the beneficiary had done during the
past six months. For example , the petitioner listed some of the beneficiary 's goals, such as "sell $400 ,000 of
cashmereknitware in the 2004 Christmas season,"as well as some of his decisions, including his decision to
WAC 05 103 50662
Page 5
sell the petitioner's merchandise to department stores such as Nordstrom and Neiman Marcus. The petitioner
also provided a brief description of the duties and backgrounds of the beneficiary 's subordinates.
On April 11, 2005, the director denied the petition . The director found that the evidence in the record was
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive
'..capacity . The director noted that the quarterly returns submitted established that -the beneficiary only oversaw
four employees, one of which was a part-time employee. The director further concluded that based on the
evidence of record , it appeared that the beneficiary was performing the services necessary to the continued
operation of the business and thus was not a qualified manager or executive. On appeal, the petitioner
supplements the record with numerous new details regarding the beneficiary 's position which were not
previously submitted . .The petitioner further requests consideration of the new employees. hired by the
petitioner who thus relieve the beneficiary from performing non-qualifying duties. :
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 definitions of executive and
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high
level responsibilities that are specified in the definitions. Second, the petitioner must prove that the, '.
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her
time on day-to-day functions . 'Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th
Cir. July 30, 1991). '
In the letter dated February 21, 2005, the petitioner provided a broad view of the beneficiary's duties. The
director found this initial description insufficient to determine the exact nature of the beneficiary's day-to-day
role in the company, and therefore requested a more detailed description. Although the petitioner responded
to this request, it merely restated these duties in a different context and added a handful of examples of
decisions and policies implemented by the beneficiary during the past six months . The petitioner failed to
expand on the actual duties of the beneficiary as requested by the director ..
On appeal, the petitioner does provide specific details regarding the nature of the beneficiary's duties.
However, the petitioner was put on notice of this required evidence and was given a-reasonable opportunity to .
provide it for the record before the visa petition was adjudicated. The petitioner failed to submit the requested
evidence and now submits it on appeal. The AAO will not consider this evidence for any purpose . See Matter
of Soriano, 19 I&N Dec . 7'64 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533(BIA 1988). The appeal
will be adjudicated based on the record of proceeding before the director.
The response to the request for evidence failed to adequately expand on the initial description or discuss any
new duties not previously discussed. It remains unclear , therefore, exactly what the beneficiary does on an
ave~age work day. Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is
not sufficient; the regulations require a detailed description of the beneficiary's daily job .duties, The
petitioner has failed to answer a critical question in this case: What does the beneficiary primarily do on a
daily basis? The actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co. , Ltd.
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
\WAC 05 10350662
Page 6
. Despite the petitioner's contentions that the duties discussed in the initial petition and again in the response to
the request for evidence clearly qualify the beneficiary for the benefit sought, the AAO disagrees. Conclusory
assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating the language
of the statute or regulat ions does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava,
724 F. Supp. 1103 , 1108 (E.D.N.Y. 1989) , affd, 905 F. 2d 41 (2d.Cir. 1990); Avyr Associates, Inc. v .
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.) .
The petitioner does not claim that the beneficiary supervises personnel in the list of duties provided .
Therefore, the AAO will examine the record to see if the beneficiary is acting as a function manager. 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, 8 U,S.C. §1101(a)(44)(A)(ii) . 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 , i.e., identify the function with specificity, articulate the essential nature of the furiction , and
establish the proportion of the beneficiary's daily duties attributed to managing the essential function . 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 manages the function rather than performs the duties related to the function. .
In this matter, however, it appears that the beneficiary is directly involved in the performance of a number of
marketing-style tasks . He formulates prices , plans ·the budget, and directly negotiates with compan ies such as
Hanna Financial and Saks Fifth Avenue. Although there are four other employees on the petitioner 's payroll,
their stated duties do not include these tasks . Therefore, it appears that the beneficiary is responsible for
performing a large part of the sales and marketing funct ions of the U .S: petitioner. An employee who
primarily performs the tasks necessary to produce a produc t or to provide services is not considered to be
employed in a managerial or executive capacity. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table) ; 1995 WL
576839 (9th Cir , 1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm.
1988». In this matter, therefore, the petitioner has not provided evidence that the beneficiary manages an
essential function.
For the reasons set forth above , the petitioner has failed to establish that the benefic iary has been and will
perform primarily managerial or executive duties. For this reason, the petition may not be approved .
The second .issue in this matter i s whether the petitioner and the foreign organization· are qualified
. organizations as defined by 8 C.F.R. § 214.2(l)(1)(ii)(G). The regulation defines the term "qualifying
organization" as a United States or foreign firm, corporation, or other legal entity which:
(1) Meets exactly one of the qualifying relationships specifiedin the definitions of a
parent, branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this
section;
(2) Is or will be doing business (engaging in international trade is not required) as
an employer in the United States and in at least one other country directly or
WAC 05 103 50662
Page 7
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 101(a)(15)(L) of the Act.
Additionally, the regulation at 8 C.F.R. § 2l4.2(1)(I)(ii) provides:
(I) Parent means a firm , corporation , 'or other legal entity which has subsidiaries.
(1) Branch means an operating division or office of the same organization housed
in a different location.
(K) .: Subsidiary means a firm, .corporation , or other legal entity of which a parent
owns; directly or indirectly, more than half of the ent ity 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) Affiliate 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 , or
(3) In the case of a partnership that is organized in the United States to
provide accounting services along with managerial and/or consulting
services and that markets its account ing services under an
internationally recognized name under an agreement with a worldwide
coordinating organization that is owned and controlled by the member
accounting firms, a partnership (or similar organization) that is
organized outside the United States to provide account ing services shall
be considered to be an affiliate of the Un ited States partnership if it
markets its accounting services under the same internationally
recognized name under the agreement with the worldwide coordinating
organization of which the Un ited States partnership is also a member.
. In this case, the petitioner claims that the U .S. entity is the subsidiary of the foreign entity by way of the
foreign entity 's 75% ownership of the petitioner. In support of this contention, the petitioner submitted a
copy of the Minutes of the First Organizational Meeting dated November 9, 1999, which indicates that the
WAC 05 103 50662
Page 8
petitioner's shares are divided between the foreign ent ity (75%) and
certificates and the accompanying ledger, dated January 28,2000, were also submitted.
Stock
Additionally, copies of wire transfers were submitted , evidencing the transfer of $5,343 and $39,983 into the
petitioner 's bank account on January 10 ,2000 and January 27 , 2000, respectively. Several other deposits in
the amounts of $4,000, $10,000, $40 ,000, and $3,000 were also noted on the petitioner 's January 2000 bank
statement without reference to :the source of funds. The director, therefore , requested additional
documentation proving the purchase of stock by the foreign entity in the request for evidence issued on March
7, 2005. In a response dated April 3, 2005, the petitioner explained the two wire transfers and the $40,000
deposit all originated from the foreign entity, but that the foreign entity sent the money through affiliated
compames.
Upon review of the evidence submitted, the director concludes that the petitionerfailed to establish that the
U.S. entity was majority owned or controlled by the foreign entity and thus was not a subsidiary of the foreign
entity as defined by the regulations. Specifically , the director notes that the U .S. entity did not definitively
establish that the foreign entity -had purchased the claimed shares . The petitioner on appeal stresses that the
foreign entity , in order to avoid delays in tran sferring the money to .the U.S. entity, wired funds through its
business partners to expedite the transfer. No evidence establishing the relationship between these
companies, however , was provided.
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 State s and foreign entities for purposes
of this visa classification ; Matter of Church Sci entology International , 19 I&N Dec . 593; see also Matter of
Siemens Medical Syst ems, Inc., 19 I&N Dec . 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm.
1982). In context of this visa petition, ownersh ip 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 ,
19 I&N Dec. at 595.
Upon review of the record of proceeding, the petitioner has not established that it has the required qualifying
relationship with the foreign entity.
In this case , the petitioner has provided documentary evidence outlining the shareholder interests in the U .S.
and foreign entities, and has supplemented this evidence with explanatory statements which di scuss the
manner in which the majority of the shares were allegedly purchased. However, the mere claim by the
petitioner that independent parties, who have not been established as bu siness partners or affiliates of the
foreign entity, purchased the stock on its behalf is simply insufficient to satisfy the burden of proof in these
proceedings. Going on record without supporting documentary evidence is not sufficient for purpo ses of
meeting the burden of proof in these proceedings . Matter of Soffici, 22 I&N Dec. 158 , 165 (Comm. 1998)
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm . 1972)). Without documentary
evidence to support the claim , unsupported assertions such as these do not constitute evidence . Matter of>
Obaigbena, 19 I&N Dec . 533, 534 (BIA 1988) ; Matt er of Laureano, 19 I&N Dec. 1 (BIA 1983) ; Matter of
Ramirez-Sanche z, 17 I&N Dec. 503, 506 (BIA 1980).
WAC 05 103 50662
Page 9
u should be noted that upon review of the petitioner 's 2003 U.S. Corporation Income Tax Return , the
petitioner indicates on Schedule K that it is 100 % owned by the foreign entity. Again , since there is no
.documentary evidence p. roving the stock purcha se by the fore~ moot. However, this
statement also directly contradicts the claim in the record that _ owns 25 % of the U .S.
petitioner. Doubt ca st on any a spect 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. Matter ofHo, 19
I&N Dec. 582, 591 (BIA 1988).
Based on the evidence presented, it is concluded that the U.S. entity was not a qualifying subsidiary of the
foreign entity as of the filing date of this petition ; and thus did not have a qualifying relationship as required
by the regulations.
The petitioner noted that Citizenship and Immigrat ion Services (CIS) approved other petitions that had been
previously filed on behalf of the beneficiary. The director's decision does not indicate whether he reviewed .
the prior approvals of the other nonimmigrant petitions . If the previous nonimmigrant petitions were
approved based on the same unsupported and contradictory assertions that are contained in the current record ,
the approvals would constitute material and gross error on the part of the director. The AAO is not required
to approve applications or petitions where eligibility has not been demonstrated , merely because of prior
approvals that may have been erroneous. See, e.g. Matt er of Church Scientology International , 19 I&N Dec .
at 597. It would be absurd to suggest that CIS or any agency must treat acknowledged errors as binding
.. precedent. Sussex Engg . Ltd. v. Montgomery, 825 F.2d 1084 , 1090 (6th Cir. 1987) , cert. denied, 485 U.S.
1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La .), aff'd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied for the above stated reasons , with each con sidered as an independent and
alternative basis for den ial. 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 .~. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed .