dismissed L-1A Case: International Trade

identify i " "deleted to 
prevent nwarmnted 
invasion oi y~rsanal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
File: LIN 05 014 50 147 Office: NEBRASKA SERVICE CENTER Date: NOV 0 3 2)@ 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101(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. dCh%, 
Administrative Appeals Office 
LIN 05 014 50147 
Page 2 
DISCUSSION: The Director, Nebraska 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 president as an L- 
1 A nonimmigrant intracompany transferee pursuant to section 1 O 1 (a)( 15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. $ 1 101 (a)(15)(L). The petitioner is a corporation incorporated under the 
laws of the State of Minnesota and allegedly engaged in the business of international trade. The petitioner 
claims a qualifying relationship with ZAO Kolmat of the Russian Federation as an affiliate. 
After determining that the petitioner was not a "new office" in the United States, the director denied the 
petition based on the following independent grounds of ineligibility: (1) the petitioner did not establish that 
the beneficiary will be employed in the United States in a primarily managerial or executive capacity; (2) the 
petitioner did not establish that the beneficiary had been employed by the foreign entity in a primarily 
managerial or executive capacity; and (3) the petitioner did not establish that it is a qualifying organization 
because it is not presently "doing business." 
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, the petitioner asserts, inter alia, that it is a "new 
office" and that the beneficiary's duties overseas are primarily those of an executive or manager. In support of 
this assertion, the petitioner submits a brief. 
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. 5 214.2(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 
managerial, executive or involved specialized knowledge and that the alien's prior 
LIN 05 014 50147 
Page 3 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
While the regulation at 8 C.F.R. 3 214.2(1)(3)(~) provides additional criteria to be met should the petition 
indicate that the beneficiary is coming to the United States to open a new office, the regulation at 8 C.F.R. 9 
214.2(1)(l)(ii)(F) defines a "new office" as: 
[A]n organization which has been doing business in the United States through a parent, 
branch, affiliate, or subsidiary for less then one year. 
Moreover, the regulation at 8 C.F.R. 8 214.2(1)(l)(ii)(H) defines "doing business" as: 
[Tlhe regular, systematic, and continuous provision of goods andlor services by a qualifying 
organization and does not include the mere presence of an agent or office of the qualifying 
organization in the United States and abroad. 
A threshold issue in this matter is whether the petitioner is a "new office" as a defined by the regulations.' 
In a letter dated September 6, 2004 appended to the initial petition, the foreign entity indicated that the 
petitioner was incorporated in Minnesota in 1992 by the deceased husband of the beneficiary. The petitioner 
further alleges that, since the 1998 death of the beneficiary's husband, the United States operation has been 
"more or less dormant." The record further reveals that articles of incorporation, in addition to the 1992 
filing, were filed for the petitioner in 1998 and in 2004. However, the petitioner indicates in its shareholder 
meeting minutes dated October 12, 2004 that, not withstanding the numerous corporate filings, the petitioner 
has been continuously in existence since its original incorporation in 1992. 
In addition to the articles or incorporation and a collection of corporate records, the petitioner provided copies 
of its 2001, 2002, and 2003 United States tax returns and a June 30, 2004 bank statement showing a balance 
of $43,987.20. The foreign entity also indicates in its letter dated January 24, 2005, provided in response to 
the request for evidence, that the petitioner currently employs a vice president of marketing. Finally, counsel 
to the petitioner concedes that the petitioner has been doing business in the United States in his letter dated 
February 1, 2005: "Although the company's activity has been limited so far, ironically, based on the 
requirement of [the beneficiary's] presence, there has been nonetheless activity sufficient to satisfy 8 C.F.R. 5 
214.2(l)(1)(ii)(H).1' 
On April 4, 2005, the director denied the petition. The director determined that the petitioner was not a "new 
office" as defined by the regulations and adjudicated the petition using those standards and criteria applicable 
to an established petitioner seeking to classify an intracompany transferee pursuant to section 101(a)(15)(L) 
of the Act. 
'As a preliminary matter, the issue of whether the petitioner is a new office or not must be addressed first to 
determine whether the first basis of the director's denial was properly considered, i.e., whether the beneficiary 
will be employed in the United States in a primarily managerial or executive capacity. 
LIN 05 014 50147 
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The petitioner appealed the director's decision. On appeal, the counsel to the petitioner asserts that the 
petitioner is a "new office" and that the evidence submitted establishes eligibility under the pertinent 
regulations for new offices. Specifically, counsel argues that, since the petitioner filed new articles of 
incorporation in 2004, it is "technically" a new office in the United States. Counsel takes this position even 
though the rest of the record, including the October 12, 2004 shareholder meeting minutes and his own letter 
dated October 14, 2004, demonstrate that the petitioner does not consider itself to be an entity separate and 
apart from the entity formed in 1992. Counsel also asserts that the record establishes that, notwithstanding its 
continuous corporate existence since 1992, the petitioner has been dormant since 1998 and that the 
beneficiary's desire to revive the United States operation should constitute the opening of a "new office." 
Counsel does not attempt to reconcile his argument on appeal with the assertion made in his letter dated 
February 1,2005 that the petitioner has been "doing business" in the United States. 
Upon review, the petitioner's assertions are not persuasive. 
Although a petitioner may request that it be treated as a new office, the determination of whether a petitioner 
qualifies under this diminished evidentiary standard remains with Citizenship and Immigration Services 
  CIS).^ Thus, regardless of whether such a request is made or not, a petitioner will be, or will not be, treated 
as a "new office" for purposes of 8 C.F.R. 5 214.2(1)(3)(~) depending on whether the petitioner meets, or does 
not meet, the definition of a "new office" contained in the regulations at 8 C.F.R. 3 214.2(1)(l)(ii)(F). 
In this matter, the petitioner was incorporated in 1992. While the petitioner may have ceased doing business 
in the United States for a period of time after the death of the beneficiary's husband, the record clearly 
establishes that the petitioner has been regularly, systematically, and continuously doing business in the 
United States for more than a year before the current petition was filed on October 18, 2004. Not only has 
counsel conceded this point as indicated above,3 the tax returns submitted by the petitioner confirm 
continuous, and increasing, business activity in 2001, 2002, and 2003. Also, the petitioner admits that it 
employs a vice president of marketing in the United States and maintains a bank account. Therefore, the 
director properly determined that the petitioner is not a "new office" for purposes of adjudicating the petition.4 
'1t is noted for the record that the petitioner did not initially request on the L Supplement to the Petition for a 
Nonimrnigrant Worker (Form 1-129) that it be treated as a new office. This request was not made until after 
the petition was filed. 
3 
While counsel properly points out in his appellate brief that the assertions of counsel to not constitute 
evidence (see Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988)), CIS may properly rely on counsel's 
legal assertions and concessions in adjudicating an appeal provided the record corroborates these assertions 
andlor concessions. In this case, since the record corroborates counsel's assertion that the petitioner has been 
doing business as defined by 8 C.F.R. 5 214.2(1)(l)(ii)(H), CIS may rely on that assertion. 
4 
Counsel's assertion that the petitioner is "technically" a new office in the United States because it filed 
articles of incorporation in 2004 is without merit. First, as explained above, the record establishes that the 
petitioner does not consider itself to be an entity separate and apart from the entity formed in 1992. This was 
made clear in both the October 12, 2004 shareholder meeting minutes and counsel's letter dated October 14, 
2004. Second, assuming the truth of the petitioner's assertions, as the record establishes that the foreign entity 
LIN 05 014 50147 
Page 5 
Accordingly, as the petitioner has not established that the petitioner should be classified as a "new office," the 
director properly considered the first main issue in this appeal, namely 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. 9 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101 (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. 
has been doing business through a parent, branch, affiliate, or subsidiary for at least one year prior to the 
filing of the petition, i.e., through the claimed previously incorporated but separate entities, the formation of a 
new business organization is immaterial to this petition. 8 C.F.R. fj 214.2(1)(l)(ii)(F). Otherwise, a foreign 
entity with an established United States business operation could continually qualify under the diminished 
new office criteria simply by forming a "new" corporation every year. 
LIN 05 014 50147 
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The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. While counsel to the petitioner states in his letter dated February 1, 2005 that it may be "clearer" that 
the beneficiary is an executive of both the petitioner and the foreign entity, he also states that the beneficiary 
could be qualified under either category. Regardless, a beneficiary may not claim to be employed as a hybrid 
"executivelmanager" 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. Given the ambiguity, the AAO will adjudicate the appeal as if the petitioner is asserting that the 
beneficiary is either an executive or a manager. 
In the letter dated September 6, 2004 appended to the initial 1-129 petition, and as expanded and restated in 
the letter dated January 24, 2005 provided in response to the request for evidence, the foreign entity described 
the beneficiary's job duties as follows: 
1. 
 Overall and general administration of [the petitioner]; 
2. 
 Developing and seeing to the execution of a marketing plan in the Upper 
Midwest and facilitating the introduction and distribution of skin and fur 
products in the United States, including the identification of strategic partners; 
3. 
 Directing the identification and realization of potential retail space; 
4. 
 Directing a coherent plan to export goods to St. Petersburg and northern Russia[;] 
5. 
 Direct current [vice president of marketing] in carrying out the company's 
marketing plan, which shall include hiring a saleslmarketing representative to 
develop distribution contacts and bring in sales orders; 
6. 
 Locate and hire a Vice President of Operations to cany out the day-to-day 
operational activities of the company; 
7. 
 Meet with banks and investors to generate working capital for the company 
through loans/credit lines and investments; 
8. 
 Further develop the long-term plan of the company to export goods to St. 
Petersburg. 
The petitioner further elaborated on the beneficiary's proposed job duties in the attachment to the 
organizational chart provided in response to the request for evidence. This description is consistent with the 
above list of duties and further adds that the beneficiary "will identify and hire managers to run the daily tasks 
associated with the management" of new accounts. In the same attachment, the petitioner provided a job 
description for the beneficiary's one subordinate employee, the vice president of marketing: 
[The vice president of marketing] is currently responsible for [the petitioner's] activities 
in the U.S., and will play a key role in the initial establishment of the company in 
Minnesota. 
 To date he has secured office space, overseen required legal filings, 
communicated with service providers, begun establishing marketing networks in the 
Upper Midwest. Under the [beneficiary's] direction, he will ensure the smooth import of 
foreign goods for sale in the U.S. and the export of U.S. goods, ensuring that all proper 
regulatory processes are followed. He currently is in almost daily contact with the 
LIN 05 014 50147 
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[beneficiary]. 
On April 4, 2005, the director denied the petition concluding that the petitioner did not establish that the 
beneficiary will be employed by the United States entity in a primarily managerial or executive capacity. 
On appeal, the petitioner asserts that the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity and relies on the foreign entity's support letters, the business plan, 
and the organizational chart. 
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(1)(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 has failed to prove that the beneficiary will act in a "managerial" capacity. In support of its 
petition, the petitioner has provided a description of the beneficiary's duties which appear to be related 
primarily to the expansion of the petitioner's United States operation. Many of these duties will undoubtedly 
involve non-qualifying operational and administrative tasks, such as those related to "the general 
administration" of the petitioner. Since the petitioner only employs one other person, it is more likely than 
not that, at the outset, the beneficiary will need to perform non-qualifying tasks as there are no employees 
available to relieve her of performing these tasks. In fact, the beneficiary's job description admits that the 
day-to-day operational activities are not being performed by a subordinate employee since one of the 
beneficiary's duties is to hire a vice president of operations to relieve her of this burden. 
Also, the beneficiary's job description is so vague and nonspecific it is impossible to determine how much 
time she will spend performing managerial duties versus non-qualifying administrative or operational tasks. 
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 (Cornm. 1988). 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 Calzjornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 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. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
Also, the job descriptions and organizational chart provided in response to the request for evidence do not 
establish that the beneficiary will supervise and control the work of supervisory, managerial, or professional 
employees. While the vice president of marketing has been assigned a lofty title, the job description does not 
list any qualifying duties for him, and all the positions beneath him on the organizational chart are listed as 
"vacant." In view of the above, the beneficiary would appear to be a first-line supervisor, the provider of 
actual services, or a combination of both. A managerial or executive employee must have authority over day- 
LIN 05 014 50147 
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to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees 
are professionals. 10 l(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N 
Dec. at 604. Also, since the record fails to reveal the educational or skill levels necessary for entry into the 
position held by the subordinate employee, it cannot be determined if he rises to the level of a professional 
employee.' Therefore, the record does not prove that the beneficiary is acting in a managerial capacity.6 
Similarly, the petitioner has failed to prove 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 
'In 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 10 1 (a)(32) of the Act, 8 U.S.C. $ 1 10 1 (a)(32), states that "[tlhe 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. 8 17 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. The possession of a bachelor's 
degree, or even a master's degree, by a subordinate employee does not automatically lead to the conclusion 
that an employee is employed in a professional capacity as that term is defined above. 
6 
While the petitioner has not specifically argued that the beneficiary manages an essential function of the 
organization, the record nevertheless would not support this position. 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 manages an essential function. The petitioner's vague job 
description fails to document what proportion of the beneficiary's duties would be managerial functions and 
what proportion would be non-managerial. This failure of documentation is important because several of the 
beneficiary's duties, as explained above, likely include operational and administrative tasks. Absent a clear 
and credible breakdown of the time to be 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 
be primarily performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of Justice, 48 F. 
Supp. 2d 22,24 (D.D.C. 1999). 
LIN 05 014 50147 
Page 9 
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. As indicated above, the petitioner has failed to prove that the 
beneficiary, who will manage one employee and who will be engaged in performing the duties related to a 
function, will be acting primarily in an executive capacity. 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity as required by 8 C.F.R. $ 214.2(1)(3)(ii). 
The second issue in this appeal is whether the beneficiary has been employed by the foreign entity in a 
primarily managerial or executive capacity. 
In response to the request for evidence, the petitioner provided an organizational chart for the foreign entity 
along with job descriptions for the beneficiary's overseas position and her two subordinates, an import 
specialist (flex-time, as needed contract employee) and an import manager (full-time employee). The job 
description for the beneficiary's overseas position is as follows: 
[The beneficiary] has been Deputy General Director for [the foreign entity] for 
approximately 6 years, and, along with the General Director, takes responsibility for the 
entire operation and success of [the foreign entity]. Her specific area of responsibility in 
the company is international and domestic sourcing as well as business development in 
domestic and international markets. 
[The beneficiary] negotiates new business, follows up and retains sales. She develops 
and supervises the preparation, issuance, and delivery of sales materials. With the 
General Director she participates in the development of operating goals and objectives of 
the company, and recommends, implements, and administers methods and procedures to 
enhance operations. 
[The beneficiary olversees development of policies, procedures and objectives for 
marketing and selling the organization's products and services. With the general director, 
she periodically reviews the quality of products on the market for the purpose of price 
and distribution assessments. [She olversees product/service development, pricing, 
marketing budgets, and sales objectives. She directly oversees personnel acting in the 
area of import. She meets with the import manager and other relevant personnel on a 
periodic basis to ensure achievement of goals. She also ensures that import personnel 
carry out their responsibilities in the best manner. She periodically meets with customers 
and strategic partners for the purpose of ensuring long-term relationships and to negotiate 
pricing and other terms. 
 She directs market and pricing research. 
 She meets with 
LIN 05 014 50147 
Page 10 
government officials to verify and maintain smooth processing of shipments. 
The job descriptions for the two subordinate employees demonstrate that they are primarily engaged in 
performing the tasks necessary to an importlexport business. 
On April 4, 2005, the director denied the petition concluding that the petitioner did not establish that the 
beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. 
On appeal, the petitioner asserts that the beneficiary has been employed overseas in a primarily managerial or 
executive capacity. 
Upon review, the petitioner's assertions are not persuasive. 
Once again, when examining the executive or managerial capacity of the beneficiary, the AAO will look first 
to the petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(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. 
In this matter, the job descriptions and organizational chart provided in response to the request for evidence 
do not establish that the beneficiary will supervise and control the work of supervisory, managerial, or 
professional employees. The job descriptions for the beneficiary's two subordinate employees, the import 
manager and the import specialist, demonstrate that these employees are primarily engaged in performing the 
tasks necessary to an importlexport business. In view of the above, the beneficiary would appear to be a first- 
line supervisor. A managerial or executive 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. Also, 
since the record fails to reveal the educational or skill levels necessary for entry into the positions held by the 
subordinate employees, it cannot be determined if they rise to the level of a professional employees. 
Therefore, the record does not prove that the beneficiary is acting in a managerial capacity. 
Similarly, the petitioner has failed to prove that the beneficiary will act in an "executive" capacity. In her 
letter dated January 24, 2005, the director general of the foreign entity made it clear that "[the beneficiary] 
makes no decisions substantially affecting the company without my knowledge." Therefore, it is apparent 
that the beneficiary does not exercise the wide latitude in discretionary decision-making necessary to qualify 
as an executive. Moreover, as explained above, inherent to the definition of "executive," 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. In this matter, the beneficiary's role as a first-line supervisor is not sufficient to establish that she 
is employed in an executive capacity. 
Accordingly, the petitioner has not established that the beneficiary has been employed in a primarily 
managerial or executive capacity as required by 8 C.F.R. 9 214.2(1)(3)(iv). 
The third issue in this appeal is whether the petitioner has established that it is a qualifying organization as 
LIN 05 014 50147 
Page 11 
one "doing business" in the United States. As explained above, the AAO has determined that the record 
establishes that the petitioner has been doing business in the United States for more than one year prior to the 
filing of the petition. As such, the director's analysis and comments with regard to this issue will be 
withdrawn. Nevertheless, as explained below, the petitioner has failed to establish that it is a qualifying 
organization because it has not established that it has a qualifying relationship with the foreign employer, 
ZAO Kolmat, as required by 8 C.F.R. 5 2 14.2(1)(l)(ii)(G). 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., one entity with 
"branch" offices), or related as a "parent and subsidiary1' or as "affiliates." See generally section 
101(a)(15)(L) of the Act; 8 C.F.R. 5 214.2(1). An affiliate is, in part, "one of two legal entities owned and 
controlled by the same group of individuals." See 8 C.F.R. fj 214.2(1)(l)(ii)(L). In this case, the petitioner 
asserts that it is 100% owned by the beneficiary and the foreign entity is 55% owned by the beneficiary, thus 
establishing, if true, that the two entities are affiliates. 
In this matter, the record is devoid of any evidence establishing the ownership structure of the foreign entity. 
While counsel to the petitioner asserts in his letter dated October 14,2004 that "at some point" the beneficiary 
became the owner of 55% of the shares of the foreign entity, no evidence other than a statement to this effect 
in a letter from the foreign entity dated September 6, 2004 was provided. The record contains no stock 
certificates, stock ledgers, or other document which could establish the beneficiary's ownership and control of 
the foreign entity. Therefore, the petitioner has failed to establish that the two entities are affiliates, and for 
this additional reason the petition may not be approved. 
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. 5 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.