dismissed L-1A Case: Industrial Security Equipment

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PUBLIC COpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 06 051 52705 Office: TEXAS SERVICE CENTER Date: ~UO 0 6 Z001
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 P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 051 52705
Page 2
DISCUSSION: The Director, Texas 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 extend the employment of its director of
operations as an L-1A nonimmigrant intracompany transferee pursuant to section lOl(a)(l5)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § llOl(a)(l5)(L). The petitioner is a corporation
organized under the laws of the State of Florida and is allegedly engaged in the purchase and sale of industrial
security equipment. The beneficiary was initially granted a one-year period of stay to open a new office in
the United States, and the petitioner now seeks to extend the beneficiary's stay.
The director denied the petition concluding that the petitioner did not establish (l) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) that the petitioner still
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 to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of an executive or manager. Counsel further argues
that the petitioner established that is has a qualifying relationship with the foreign employer in the initial "new
office" petition and that the doctrine of res judicata applies to the instant extension petition. Counsel also
submits a brief and additional evidence, including a copy of a stock certificate purporting to establish that the
foreign entity owns and controls the petitioner.
To establish eligibility for the L-1 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 (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
the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that was
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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 regulation at 8 C.F.R. § 2 14.2(l)(l4)(ii) also provides that a visa petition, which involved the opening ofa
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 accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) Evidence of the financial status of the United States operation.
The first issue 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 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
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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.
The petitioner does not clarify in the initial petition whether the beneficiary is claiming to be primarily
engaged in 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 beneficiary may not claim to 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 petitioner described the beneficiary's job duties in a letter dated November 30, 2005 appended to the
petition as follows:
As Directed [sic] of Operations for the US subsidiary [the beneficiary] has been engaged in
coordinating the effective operations of the company as well as planning, coordinating and
supervising business operations and preparation and executing the annual report. In addition
her duties involve defining strategies and following through on projected expansion plans as
well as developing business objectives, coordinating work efforts and communication
between the foreign/parent and the US/subsidiary related business alliances, and serving as
liaison with the US, foreign and other business partners.
Consequently, [the beneficiary] has other managerial and executive responsibilities such as
formulating policies, manage daily operation, plan the use [of] materials and organize sales.
[The beneficiary] will have authority to determine staffing requirements, interview, hire, and
train new employees, oversee other personnel, processes, direct and coordinate the
organization's financial and budget activities to fund operation, maximize investments, and
increase efficiency. She will establish and implement departmental policies, goals, objectives
and procedures, confer and meet with our Board of Directors in order to provide reports,
manage staff, assign specific duties to company officials, managers, staff as sales promotions,
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advertising and marketing and review financial statements, sales and activity reports, measure
productivity and goal achievements including to determine the area needing cost reduction
and implement marketing strategies including advertising campaigns and sales promotion.
[The beneficiary] is directing and coordinating activities as business concerning the
production, advertising, marketing and sales planning and directing advertising policies and
programs. She will create extra interest in the purchase of products, confer with department
heads in order to select method of advertising and media and coordinate with the media
advertising campaigns.
On December 14, 2005, the director requested additional evidence. The director requested, inter alia, an
organizational chart for the petitioner, job descriptions for all employees on the organizational chart, and
federal and state wage reports.
In response, the petitioner submitted an organizational chart showing the beneficiary reporting to a president
and directly supervising an "assistant purchasing" employee and an "assistant accounting" employee. These
subordinate employees are shown, in tum, to supervise three service providers (a freight forwarding
contractor, a purchasing and inland freight contractor, and an accounting contractor). The petitioner also
submitted federal and state wage reports confirming its employment of the four employees identified in the
organizational chart. Finally, the petitioner provided brief job descriptions for the two subordinate employees
which reveal that they are both performing administrative or operational tasks necessary to the operation of
the petitioner's business.
On January 19, 2006, the director denied the petition. The director concluded, inter alia, 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.
Title 8 C.F.R. § 2l4.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the business
does not have sufficient staffing after one year to relieve the beneficiary from primarily performing
operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In the instant
matter, the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
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. The petitioner must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As explained above, a petitioner
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are
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managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary will act
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 will do on a day-to-day
basis. For example, the petitioner states that the beneficiary defines strategies; develops business objectives;
increases efficiency; and establishes and implements departmental policies, goals, objectives, and procedures.
However, the petitioner does not explain what strategies will be defined, what business objectives will be
developed, how the beneficiary will increase efficiency, or what policies, goals, objectives, and procedures
will be established and implemented. The fact that the petitioner has given the beneficiary a managerial title
and has prepared a vague job description which includes lofty duties does not establish that the beneficiary
will actually perform managerial duties. Despite counsel's assertion on appeal that the beneficiary's job duties
were described "extensively," 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 of California, 14
I&N Dec. 190 (Reg. Comm. 1972).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary will devote to the
many duties ascribed to her. This is particularly important in this matter because some of the duties listed by
the petitioner appear to be 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 will "direct
and coordinate" marketing and sales planning and "advertising policies and programs." However, marketing
and sales duties constitute administrative or operational tasks when the tasks inherent to these duties are
performed by the beneficiary. As the organizational chart and job descriptions for the subordinate employees
fail to identify any employees or contractors who will relieve the beneficiary of the need to perform the non­
qualifying tasks inherent to both the sales and marketing duties and the administration of the business in
general, it must be concluded that she will perform these tasks. As the petitioner has not established how
much time the beneficiary will devote to such non-qualifying tasks, it cannot be confirmed that she will
"primarily" be 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 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 explained in the organizational chart, wage reports, and job descriptions for the subordinate staff members,
the beneficiary appears to supervise a staff of two employees and, indirectly, the provision of certain
specialized services by three contracted service providers. However, the petitioner has not established that
the two employees are primarily engaged in performing supervisory or managerial duties. To the contrary, it
appears that these employees are performing the tasks necessary to produce a product or to provide a service.
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Also, the supervision or management of independent contractors will not permit a beneficiary to be classified
as a managerial employee as a matter of law. See section 101(a)(44)(A)(ii) of the Act; 8 C.F.R. §
214.2(l)(l)(ii)(B)(2). The Act is quite clear that a managerial employee must manage employees in order to
be classified as a manager for purposes of this visa classification. In view of the above, the beneficiary would
appear to 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 did not reveal the skill level or educational background of the two subordinate
employees, the petitioner has not established that the beneficiary will manage professional employees. J
Therefore, the petitioner has not established that the beneficiary will be employed primarily in a managerial
. 2
capacity.
1In evaluating whether the beneficiary will manage professional employees, the AAO must also 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 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).
2While the petitioner has not clearly 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 will manage 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(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
will manage the function rather than perform 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 would be managerial functions, if
any, and what proportion would be non-managerial. Also, as explained above, the record establishes that the
beneficiary is primarily a first-line supervisor of non-professional employees and/or is 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 would be
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager.
See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
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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
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will be acting 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, the beneficiary appears to be primarily employed as a first-line
supervisor and is performing tasks necessary to produce a product or to provide a service. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in an executive capacity.'
It is appropriate for 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).
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason."
3Counsel cited the Foreign Affairs Manual (FAM) in his brief as authority. It must be noted that the FAM is
not binding upon CIS. See Avena v. INS, 989 F. Supp. 1 (D.D.C. 1997); Matter of Bosuego, 17 I&N 125
(BIA 1979). The FAM provides guidance to employees of the Department of State in carrying out their
official duties, such as the adjudication of visa applications abroad. The FAM is not relevant to this
proceeding.
4It is noted that counsel to the petitioner cited the unpublished opinion in Matter ofIrish Dairy Board, A28­
845-42 (AAO Nov. 16, 1989), in support of his contention that the beneficiary is primarily employed as an
executive or manager. In that decision, the AAO recognized that the sole employee could be employed
primarily as a manager or executive provided he or she is primarily performing executive or managerial
duties. However, counsel's reliance on this decision is misplaced. First, counsel has furnished no evidence to
establish that the facts of the instant petition are analogous to those in the unpublished decision. While 8
C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the
administration of the Act, unpublished decisions are not similarly binding. Second, as explained above, the
petitioner has not established that the beneficiary will be primarily employed in an executive or managerial
capacity. This is paramount to the analysis, because a beneficiary may not be classified as a manager or an
executive if he or she will not primarily perform managerial or executive duties regardless of the number of
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The second issue in the present matter is whether the petitioner has established that it still has a qualifying
relationship with the foreign entity.
The regulation at 8 C.F.R. § 2l4.2(l)(l4)(ii)(A) states that a petition to extend a "new office" petition filed on
Form 1-129 shall be accompanied by:
Evidence that the United States and the foreign entity are still qualifying organizations as
defined in paragraph (l)(l)(ii)(G) of this section[.]
Title 8 C.F.R. § 2l4.2(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 (1)(1)(ii) of this section" and "is or will be doing business." A
"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."
In this matter, the petitioner, a corporation, asserts that it is 100% owned by the foreign employer. However, as
the petitioner provided no evidence supporting this assertion, the director requested additional evidence. In
response, the petitioner again provided a copy of its articles of incorporation. The petitioner did not provide a
copy of any stock certificates or other evidence of ownership and control.
On January 19, 2006, the director denied the petition. The director concluded that the petitioner's articles of
incorporation fail to reveal the owner or owners of the petitioner's stock. Therefore, the director concluded that
the petitioner failed to establish that it is owned and controlled by the foreign entity and is thus a qualifying
organization.
On appeal, counsel argues that the petitioner established that is has a qualifying relationship with the foreign
employer in the initial "new office" petition and that the doctrine of res judicata applies. Counsel also
submits a brief and additional evidence, including a copy of a stock certificate purporting to establish that the
foreign entity owns and controls the petitioner.
Upon review, counsel's assertions are not persuasive.
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.
people employed by the petitioner. Therefore, as the petitioner has not established this essential element, the
decision in Matter ofIrish Dairy Board would be irrelevant even ifbinding or analogous.
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In this matter, the record is devoid of any evidence regarding the ownership and control of the petitioner.
Counsel's argument on appeal that the president of the foreign parent is both the incorporator and the sole
director of the petitioner does not establish ownership and control of the petitioner even if supported by
evidence. Therefore, as the petitioner has not submitted any evidence establishing the ownership or control of
the petitioner, the petitioner has not established that is has a qualifying relationship with the foreign entity,
and the petition may not be approved for that reason.
Moreover, it must be noted that the record contains a serious and unexplained inconsistency regarding the
petitioner's ownership and control. As indicated above, the petitioner claims to be 100% owned by the
foreign employer, a company formed under the laws of Venezuela. However, the petitioner clearly averred in
its 2004 Form 1120 that more than 50% of its stock is not owned by anyone entity and that no "foreign
person" owned more than 25% of its stock. These averments directly contradict the petitioner's assertion in
the Form 1-129 that it is 100% owned by a Venezuelan company, and the petitioner offers no explanation for
this inconsistency. 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). For this additional reason, the petitioner has failed to establish that it has
a qualifying relationship with the foreign entity.
It is noted that counsel submitted a copy of a stock certificate on appeal as evidence of the petitioner's
ownership and control. However, this stock certificate will not be considered by the AAO in the adjudication
of this appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533
(BIA 1988). The petitioner was put on notice of required evidence and given a reasonable opportunity to
provide it for the record before the visa petition was adjudicated. The petitioner failed to submit the requested
evidence and now submits it on appeal. The appeal will be adjudicated based on the record of proceeding
before the director.
It is also noted that counsel asserts on appeal that "the initial L1 package contained evidence of the transfer of
all the stock in the U.S. company to the foreign company." As this evidence was not submitted with the
instant petition, it must be assumed that counsel is referring to the initial "new office" petition. However,
each petition filing is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In making a
determination of statutory eligibility, CIS is limited to the information contained in the record of proceeding.
See 8 C.F.R. § 103.2(b)(16)(ii). Therefore, counsel may not rely on, or incorporate by reference, evidence
submitted with other petitions.
Regardless, even if the stock certificate submitted on appeal was properly before the director and/or the AAO,
stock certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership
and control of a corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the total
number of shares issued, the exact number issued to the shareholder , and the subsequent percentage
ownership and its effect on corporate control. Additionally, a petitioning company must disclose all
agreements relating to the voting of shares, the distribution of profit, the management and direction of the
subsidiary, and any other factor affecting actual control of the entity. See Matter ofSiemens Medical Systems,
Inc., supra. Without full disclosure of all relevant documents, CIS and/or the AAO would be unable to
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determine the elements of ownership and control. In addition, given the inconsistencies in the record
regarding ownership and control, the credibility of the stock certificate has been undermined, and its
evidentiary value is therefore questionable.
Accordingly, the petitioner has not established that it and the foreign entity are still qualifying organizations.
For this additional reason, the petition may not be approved.'
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.
SFinally, counsel asserts on appeal that the doctrine of res judicata applies to the instant petition. While
counsel's argument is not entirely clear, it appears that he is asserting that, since the director approved the
initial "new office" petition, she is required to approve the instant petition because the petitioner provided a
similar position description for the beneficiary and because the petitioner's ownership and control is allegedly
unchanged from the initial petition. This argument, however, is entirely without merit. First, 8 C.F.R. §
214.2(l)(l4)(ii) clearly sets forth specific criteria which must be met in order to extend a "new office" petition,
criteria that is different from that required to secure the approval of the initial "new office" petition. Second,
the initial approval of an L-l A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of petitioner's qualifications. Texas A&M Univ., 99 Fed. Appx. 556,
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a
subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361. As indicated above, the petitioner has
failed to establish (1) that the beneficiary will be employed in the United States in a primarily managerial or
executive capacity; or (2) that the petitioner still has a qualifying relationship with the foreign entity.
Therefore, not only does the doctrine of res judicata not compel CIS to approve the instant petition, the
regulations specifically prohibit CIS from approving the instant petition because the petitioner has failed to
establish that it qualifies for the benefit sought.