dismissed L-1A Case: Jewelry

~sntf-dats derwtii 
pRvent clcrrly unwarranted 
~nvuion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts. Ave., N.W., Rm. A3042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 04 217 52994 Office: VERMONT SERVICE CENTER Date: MAR 2 $ 2QQf 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
obert P. Wiemann, Dir 
Appeals 
EAC 04 2 17 52994 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its chief executive as an 
L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
New York that claims to be engaged in the 
 n of silver and gold jewelry. The 
petitioner states that it is the subsidiary of 
 , located in Sharjah, United Arab 
Emirates. 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 for three years. 
The director denied the petition, concluding that the petitioner had not established that the beneficiary would 
be employed in a primarily managerial or executive capacity under the extended petition. 
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 contends that the director abused his 
discretion in denying the petition, and asserts that the director placed undue emphasis on the petitioner's 
staffing levels, rather than considering the beneficiary's actual job duties. The petitioner asserts that the 
beneficiary manages an essential function and performs only managerial and executive duties. The petitioner 
submits a brief and additional evidence in support of the appeal. 
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. 
EAC 04 217 52994 
Page 3 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 9 214.2(1)(14)(ii) also 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 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 primary issue in the present matter is whether the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 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 
EAC 04 217 52994 
Page 4 
(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 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 petition was filed on July 16, 2004. In a July 12, 2004 letter, the petitioner described the beneficiary's 
duties as follows: 
His proposed duties in the U.S. company will be to direct, coordinate and manage the entire 
business operations of [the petitioner]; overseeing the establishment of the U.S. Company, 
planning and developing the U.S. investment, executive [sic] or recommending personal 
actions, determining which and from where the raw silver and gold to be purchased; hiring 
other managers for sales and marketing, training those managers and if need arises to fire 
them also; supervising all financial aspects of the company and set policies and objectives; 
confer with company's officials here and abroad. He will have full discretionary authority in 
day to day business. His position involves executive functions only. The current purchasing 
director as well as the marketing director were hired 4 months ago because the previous 
manager lacked certain technical know how. They are responsible to [the beneficiary] as well 
as a staff of five independent contractors and one accountant. 
The petitioner indicated on Form 1-129 that it had three employees at the time of filing. The petitioner 
submitted its IRS Form 941, Employer's Quarterly Tax Return, for the first quarter of 2004, showing the 
beneficiary as the only employee. The petitioner also submitted two letters of appointment for the 
beneficiary's subordinates, including: one for a "general managerldirector purchase" dated March 26, 2005, 
stating that the employee was hired on a full-time basis at an annual salary of $32,500; and one for its 
"director marketing & distribution," dated June 28, 2004, stating that the employee was hired on a full-time 
basis at an annual salary of $3 1,500. 
EAC 04 21 7 52994 
Page 5 
On September 14, 2004, the director requested additional evidence to establish that the beneficiary would be 
employed in a managerial or executive capacity under the extended petition. Specifically, the director 
instructed the petitioner as follows: 
Please provide a list of all employees and contractors. Please indicate their job title, job 
description, how long they have been employed by the petitioner, and their daily interaction 
with the beneficiary. Further, please provide copies of all W-2's and respective W-3 for the 
2002 and 2003 tax years. Please provide a detailed description of the beneficiaries' [sic] 
hourly duties. 
In a letter dated December 3, 2004, the petitioner provided the following expanded job description for the 
beneficiary: 
(1) Chief Executive (beneficiary) functions at a senior level within the organization hierarchy 
which consists of General Managermirector Purchase, Director Marketing & Distribution, 
Office ManagertAccountant, 5 independent contractors. (2) Holds telephone conferences to 
include oversees [sic] conferences, directs all the managers and contractors in carrying out 
business operations. (3) Beneficiary does not perform tasks to physically market or distribute 
the products. (4) Devise plans, locating outlets and arranging for their establishments [sic], 
negotiating and hiring contractors to run the operations. (5) Beneficiary would have total 
discretion over expansion sites and the projected rate of expansion. (6) Coordinates the key 
activities necessary to achieve technical and commercial success. (7) Supervises all the 
financial aspects of the company and set policies and goals. (8) Exercises his discretionary 
authority to hiretfire managerial staff and contractors. 
The petitioner indicated that its general managerldirector purchase is employed on a full-time basis and 
performs the following duties: managing the key operations of the company including purchasing raw 
materials; conducts surveys to identify sources for purchasing cost effective materials; supervises the director 
marketing and distribution and independent contractors; negotiates contracts for the final approval of the 
beneficiary; manages inventory; assists the beneficiary with banking and accounts management; and assists 
the beneficiary with hiring of new staff. 
The petitioner stated that its director, marketing and distribution is responsible for market analysis; setting 
strategic goals, negotiating sales and payment terms with U.S. contractors; setting sales quotas and expenses, 
developing advertising and promoting products in the United States; selecting new territories for expansion, 
and advising the beneficiary on the profitability of specific products under budget constraints. 
The petitioner submitted its IRS Forms 941, Employer's Quarterly Federal Tax Return, for the first three 
quarters of 2004, which confirm the employment of the general manager/purchase director at a monthly salary 
of $600, and the employment of the director, marketing and distribution, at a monthly salary of approximately 
$833. The Forms 941 show that both employees were first paid in April 2004. 
EAC 04 217 52994 
Page 6 
With respect to its independent contractors, the petitioner provided the following list of companies and briefly 
utside 
New 
New 
e dish 
: New 
Y ork) 
Jersej 
ributo~ 
York) 
0 
:s inside New 
York) 
The petitioner submitted a letter from five companies identified as independent contractors. The distribution 
executive ofconfirmed that his company has a "business dealing7' with the petitioner by 
sharing its network as an outlet for its jewelry products. The president of dicated that 
his company has an "administrative arrangement" with the petitioner on a commission basis, noting that it 
assists the petitioner with importing materials, that its sales executive and staff have "sold some of their 
stuff," and that "we strictly work under the guidance of [the petitioner's] marketing and distribution director." 
-. 
The president of ated that the petitioner has utilized his company's servlces as an 
independent contractor to sell and market its products in Sayville, New York. The president of Sai Jewelers 
stated that his company has a "business arrangement" with the petitioner to promote and distribute the 
petitioner's products, under the supervision of the petitioner's marketing and distribution director. Finally, 
the president of stated that his company acts as a marketing and distribution agent for the 
petitioner on a commission basis, under the leadership of the petitioner's marketing and distribution manager. 
The director denied the petition on February 8, 2005, concluding that the petitioner had not established that 
the beneficiary would be employed in a primarily managerial or executive capacity under the extended 
petition. The director noted that the job description provided for the beneficiary was vague and general in 
nature and suggested that he would be directly involved in the company's sales activities, based on his 
responsibility for negotiating and hiring contractors. The director also referred to the petitioner's business 
plan, noting that the company had intended to hire five employees during its first year of operations. The 
director concluded that as the company had only three employees, it was not fully staffed and therefore the 
beneficiary would not be relieved from performing the day-to-day tasks of running the company. 
On appeal, the petitioner asserts that the beneficiary qualifies as a manager because he "manages, directs and 
controls the Corporation." The petitioner claims the director erred in determining that the beneficiary would 
directly supervise the sales activities of the independent contractors, noting that the beneficiary's subordinate, 
the general manager, would perform this responsibility. The petitioner states: "The responsibility for hiring or 
firing [the independent contractors] is only one time activity over which the chief executive exercises 
discretionary authority." 
The petitioner also contends that the beneficiary's responsibility for managing the petitioning company 
should be considered management of an "essential function" within the organization owned by the foreign 
entity. The petitioner states that the beneficiary is responsible for "developing sales and marketing strategies 
and plans; coordinating and developing new business opportunities; researching new markets; and gradually 
EAC 04 217 52994 
Page 7 
expanding the size of the corporation. . . . Therefore, he manages and controls essential functions and, as the 
highest ranking manager and executive of [the petitioner], functions at and holds a senior level post." The 
petitioner cites an unpublished MO decision in support of its assertion that "the issue of supervising other 
personnel is not a component to qualify for non-immigrant visa status as a functional manager." 
The petitioner argues that the burden of proof for large and small companies is identical and that pursuant to 
the Immigration Act of 1990, CIS is required to consider staffing levels in relation to the reasonable needs of 
the business and its stage of development. The petitioner asserts that the U.S. company has sufficient 
resources to hire additional staff but finds it unnecessary to do so, as its current staff of three employees and 
five contractors is sufficient to provide its services. The petitioner also emphasizes that it intends to hire 
additional permanent employees to replace its contractors, and indicates that it hired a sales manager in 
January 2005. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. When examining the executive or managerial 
capacity of the beneficiary, the MO will look first to the petitioner's description of the job duties. See 8 
C.F.R. 9 214.2(1)(3)(ii). 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 l(a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act. A petitioner must clearly describe the duties to be performed by the beneficiary and indicate whether 
such duties are either in an executive or managerial capacity. In this matter, the petitioner utilizes the terms 
interchangeably, and also indicates that the beneficiary will serve as a "function manager. 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 chooses to represent 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. At a minimum, the petitioner must demonstrate that the beneficiary's 
responsibilities will meet the requirements of one or the other capacity. 
As noted by the director, the petitioner has failed to clearly define the beneficiary's duties, even when put on 
notice that the job description provided with the petition was insufficient to establish that the beneficiary 
would be performing primarily qualifying managerial or executive duties. The petitioner initially indicated 
that the beneficiary's position would involve "executive functions only" and that he would "direct, coordinate 
and manage the overall business operations," "have full discretionary authority in day to day business," and 
"set policies and objectives." The petitioner's initial description merely paraphrased the statutory definition of 
executive capacity. See section 10 l(a)(44)(B) of the Act, 8 U.S.C. $ 1 101 (a)(44)(B). 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). 
In response to the director's request for a detailed description of the beneficiary's duties, the petitioner added 
that the beneficiary "functions at a senior level within the organization hierarchy," "holds telephone 
EAC 04 2 17 52994 
Page 8 
conferences," "directs all managers and contractors in carrying out business operations," "devise[s] plans, 
locat[es] outlets and "arrang[es] for their establishment," has "total discretion over expansion sites and the 
projected rate of expansion," and coordinates "key activities" necessary to achieve success. The petitioner did 
not, however, define what specific duties are involved in managing the daily activities of a three-person 
office, explain the nature or purpose of the beneficiary's "telephone conferences," clarify what specific duties 
the beneficiary performs to "coordinate" key activities or otherwise indicate what these key activities are, or 
provide evidence that the petitioner is actually in the process of establishing "outlets" or "expansion sites." 
Without additional explanation, it is impossible to conclude that the beneficiary's duties associated with these 
functions would be primarily managerial or executive. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 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), afd, 905 F.2d 41 (2d. Cir. 1990). The provided job descriptions do 
not allow the AAO to determine the actual tasks that the beneficiary will perform such that they can be 
classified as managerial or executive in nature. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial or executive functions and what proportion would be non-managerial or non-executive. The 
petitioner's statement that the beneficiary would "perform executive functions only" is not supported by a 
detailed job description or documentary evidence. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. at 165. Accordingly, the director specifically requested that the petitioner submit a detailed 
account of the beneficiary's "typical day" in the form of a detailed description of the beneficiary's hourly 
duties. This evidence is critical, as it would have assisted the director in ascertaining what percentage of the 
beneficiary's time is devoted to performing qualifying versus non-qualifying duties. The petitioner neglected 
to provide the requested detailed job description. It must be emphasized that the petitioner bears the burden 
of documenting what portion of the beneficiary's duties will be managerial or executive and what proportion 
will be non-managerial or non-executive. Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Given the lack of these percentages, the record does not demonstrate that the beneficiary will function 
primarily as a manager or executive. 
The regulation states that the petitioner shall submit additional evidence as the director, in his or her 
discretion, may deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed. See 
8 C.F.R. $9 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). For this reason, the petition cannot 
be approved. 
EAC 04 2 17 52994 
Page 9 
Without a meaningful job description to evaluate, the director reasonably evaluated other factors, such as the 
petitioner's staffing levels, to determine whether the vaguely defined "executive" responsibilities were 
credible within the context of the petitioner's business. Counsel correctly states that, pursuant to section 
101(a)(44)(C) of the Act, 8 U.S.C. 5 1 101(a)(44)(C), if staffing levels are used as a factor in determining 
whether an individual is acting in a managerial or executive capacity, CIS must take into account the 
reasonable needs of the organization, in light of the overall purpose and stage of development of the 
organization. In the present matter, however, the regulations provide strict evidentiary requirements for the 
extension of a "new office" petition and require CIS to examine the organizational structure and staffing 
levels of the petitioner. See 8 C.F.R. 9 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. 3 214.2(1)(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 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 
performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. 
At the time of filing, the petitioner was a one-year-old company that claimed to be engaged in import, export 
and distribution of gold and silver jewelry. The evidence shows that the firm employed the beneficiary as 
chief executive, a "general managerlpurchase director" and a "director, marketing and distribution." 
Although the petitioner indicated that the beneficiary's subordinates are both employed on a full-time basis at 
salaries in excess of $30,000, the petitioner's quarterly tax returns show that these individuals were being paid 
monthly salaries of $600 and $833, respectively, at the time the petition was filed. In addition, the petitioner 
submitted a "letter of appointment" for the director marketing and distribution indicating that he was hired on 
June 28, 2004, yet, the petitioner's Form 941 shows that this employee received wages beginning in April 
2004. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1 - 
92 (BIA 1988). Moreover, doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho at 591. At most, the beneficiary's two subordinates appeared to be employed on a part-time 
basis at the time the petition was filed. 
In addition, the petitioner's use of independent contractors has not been adequately documented in the record. 
The petitioner refers to the contractors as "import manager," "sales managers," and "wholesale distributors" 
but did not provide further explanation as to the nature and scope of the services they provide. The letters 
provided by the claimed contractors are written in very general terms, using vague language such as 
"administrative arrangement," "business arrangement," "business dealing," and "doing business with7' to 
describe their relationship with the petitioning company. Only two of the five companies specifically state 
that they work with the petitioning company on a commission basis. The petitioner did not provide copies of 
agreements, contracts, invoices, or any other evidence to establish that the petitioner has actually paid for 
services provided by the claimed contractors. Again, going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. at 165. Without additional evidence, it is impossible to determine whether or to what extent 
these companies can be considered independent contractors who perform operational duties for the petitioning 
company, or whether the petitioner simply sells its products to these companies for re-sale. The AAO 
EAC 04 21 7 52994 
Page 10 
acknowledges that the petitioner paid $25,190 in commissions for the fiscal year ended April 30, 2004. 
However, there is insufficient evidence to establish to whom these monies were paid and for what purpose. 
The petitioner also claims to employ an "accountant/office manager" as an independent contractor. Again, the 
petitioner did not submit evidence of payments to this claimed employee or describe the type of services he 
provides. While it appears that an accounting firm prepares the petitioner's tax documentation, there is no 
evidence that an employee of the accounting firm performs the clerical and administrative duties of an "office 
manager" as claimed by the petitioner. The evidence of record does not substantiate the petitioner's claim that 
the independent contractors relieve the petitioner's other employees from performing routine tasks associated 
with importing, distributing and selling the petitioner's products, or the company's day-to-day office 
administration. 
Based on the above discussion, the record establishes that the petitioner employs the beneficiary as a full-time 
chief executive, a part-time general managerlpurchase director, and a part-time director of marketing and 
distribution, and achieves an unknown portion of its sales through outside commissioned staff. 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 whether the company is a "shell company" that does not 
conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). The size of a company may be especially relevant when CIS notes discrepancies in the 
record and fails to believe that the facts asserted are true. Id. It is not possible to conclude from the totality of 
the evidence presented that the petitioner employs personnel who would relieve the beneficiary from 
performing the operational and administrative tasks necessary to operate the company. Regardless, the 
reasonable needs of the petitioner serve only as a factor in evaluating the lack of staff in the context of 
reviewing the claimed managerial or executive duties. The petitioner must still establish that the beneficiary 
is to be employed in the United States in a primarily managerial or executive capacity, pursuant to sections 
101(a)(44)(A) and (B) of the Act. As discussed above, the petitioner has not established this essential 
element of eligibility. 
On appeal, the petitioner asserts that the director overlooked evidence that the beneficiary will manage an 
"essential function," and asserts that a function manager is not required to supervise employees. 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 lOl(a)(44)(A)(ii) of the Act, 8 U.S.C. 9 1 10 1 (a)(44)(A)(ii). If a petitioner claims 
that the beneficiary is managing an essential function, the petitioner must 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. In addition, the petitioner must provide a 
comprehensive and detailed description of the beneficiary's daily duties demonstrating that the beneficiary 
manages the function rather than performs the duties relating to the function. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 
1988). The petitioner suggests that the beneficiary manages the "essential function" of overseeing the U.S. 
subsidiary for the petitioner's claimed parent company. The petitioner has not identified the function with 
specificity. More importantly, as noted above, the petitioner has not provided a comprehensive and detailed 
EAC 04 2 17 52994 
Page 11 
description of the beneficiary's duties, nor has it established the proportion of the beneficiary's daily duties 
dedicated to managing these functions. The petitioner has not submitted evidence to establish that the 
beneficiary manages an essential function of the petitioning organization. Again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. at 165. 
Counsel further refers to an unpublished decision in which the AAO determined that the beneficiary met the 
requirements of serving as a "function manager" for L-1 classification even though the petitioner had only 
one other employee. 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. 
The MO has long interpreted the regulations and statute to prohibit discrimination against small or medium 
size businesses. However, the AAO has also long required the petitioner to establish that the beneficiary's 
position consists of primarily managerial and executive duties and that the petitioner has sufficient personnel 
to relieve the beneficiary from performing operational and administrative tasks. The AAO does not dispute 
that small companies require leaders or individuals who plan, formulate, direct, manage, oversee and 
coordinate activities; the petitioner must, however, establish with specificity that the beneficiary's duties 
comprise primarily managerial or executive responsibilities and not routine operational or administrative 
tasks. 
In this matter, the lack of a detailed description of the beneficiary's actual duties, considered in conjunction 
with the inconsistent and vague information provided the petitioner with respect to the beneficiary's 
subordinates and the company's independent contractors, precludes a finding that the beneficiary would be 
performing primarily managerial or executive duties under the extended petition. The fact that an individual 
manages a small business and is assigned a managerial or executive job title does not necessarily establish 
eligibility as an intracompany transferee. Even though the enterprise is in a preliminary stage of 
organizational development, the petitioner is not relieved from meeting the statutory requirements. Based on 
the limited documentation furnished, it cannot be found that the beneficiary will be employed primarily in a 
qualifying managerial or executive capacity. For this reason, the petition may not be approved. 
The petitioner indicates that it has hired an additional employee subsequent to filing the petition and plans to 
hire additional managers and employees in the future. However, the petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm. 1978). Furthermore, as noted above, the regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) 
allows the intended United States operation one year within the date of approval of the petition to support an 
executive or managerial position. There is no provision in CIS regulations that allows for an extension of this 
one-year period. If the business is not sufficiently operational after one year, the petitioner is ineligible by 
regulation for an extension. In the instant matter, the petitioner has not reached the point that it can employ 
the beneficiary in a predominantly managerial or executive position. For this reason the petition may not be 
approved. 
EAC 04 2 17 52994 
Page 12 
Beyond the decision of the director, the petitioner has not submitted sufficient evidence to establish the 
existence of a qualifying relationship between the United States and foreign entities. 
The regulation at 8 C.F.R. 9 214.2(1)(l)(ii) states, in pertinent part: 
(G) 
 QualzJjiing organization means a United States or foreign firm, corporation or other 
legal entity which meets exactly one of the qualifying relationships in the definitions 
of a parent, branch, affiliate or subsidiary specified paragraph (l)(l)(ii) of this section. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
director or indirectly, more than half of the entity and controls the entity; or owns, 
director or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
(L) AfJiliate means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, 
each individual owning and controlling approximately the same share or 
proportion of each entity. 
On the L classification supplement to Form 1-129, the petitioner indicated that it is a wholly owned subsidiary 
of the foreign entity. The petitioner stated in its July 12, 2004 letter that the foreign entity owns 80 percent of 
the ~etitioner's stock. The uetitioner also submitted a November 2, 2002 letter from its accountant who 
indicated that the beneficiary owns 80 percent of the U.S. company's stock, while another individual, = 
owns the remaining 80 percent. The petitioner provided its 2003 RS Form 
1120, which identifies the value of the company's stock as $22,400 at the beginning of the year, and $52,400 
at the end of the year. The petitioner's financial statement for the fiscal year ended on April 30, 2004 
identifies the value of the comvanv's stock as $100,000. The record also includes the foreign entitv's audited 
. < 
financial statement for 2003, which indicates tha; the foreign company is owned by - 
who has a 5 1 percent interest, and the beneficiary, who has a 49 percent interest. 
In his September 14, 2004 request for evidence the director requested that the petitioner submit copies of all 
share certificates, stock ledgers, or other evidence documenting ownership and control of each company. The 
director observed a discrepancy in the foreign entity's percentage of ownership in the petitioning company, 
but did not mention the other discrepancies and inconsistencies catalogued above. 
EAC 04 217 52994 
Page 13 
In response, the petitioner stated that the petitioner's stock is distributed as follows: 
The petitioner submitted its stock certificate numbers one and two, indicating that 160 shares were issued to 
the petitioning company itself on July 1, 2002, and 40 shares were issued to the foreign entity on the same 
date. The stock certificates indicate on their face that the company is authorized to issue 200 shares of 
common stock with no par value. The petitioner did not submit the requested stock transfer ledger or any 
additional evidence or explanation. 
The petitioner has not established the existence of a qualifying relationship between the U.S. and foreign 
entities. 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 (BIA 
1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 
I&N Dec. 289 (Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect 
legal right of possession of the assets of an entity with full power and authority to control; control means the 
direct or indirect legal right and authority to direct the establishment, management, and operations of an 
entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, 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 of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
Given the number of discrepancies in this matter, the petitioner's stock certificates alone are not sufficient to 
establish the company's actual ownership. The petitioner has alternately claimed or submitted evidence 
showing that the foreign entity owns 100 percent, 80 percent, 20 percent or 0 percent of the petitioning 
company's stock. A few errors or minor discrepancies are not reason to question the credibility of an alien or 
an employer seeking immigration benefits. See, e.g., Spencer Enterprises Inc. v. U.S., 345 F.3d 683, 694 (9th 
Cir., 2003). However, anytime a petition includes numerous errors and discrepancies, and the petitioner fails 
to resolve those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will 
raise serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the 
petitioner's proof may undermine the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
 In this case, the unexplained 
discrepancies with respect to the petitioner's actual ownership catalogued above lead the AAO to conclude 
EAC 04 2 17 52994 
Page 14 
that the evidence of the petitioner's eligibility is not credible. For this additional reason, the petition cannot 
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 AAO notes that CIS previously approved an L-1A petition filed on behalf of the beneficiary in order to 
allow him to open a new office in the United States. The prior approval does not preclude CIS from denying 
an extension of the original visa based on reassessment of the petitioner's qualifications. Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). If the previous nonimmigrant petitions 
were approved based on the same unsupported and contradictory assertions that are contained in the current 
record with respect to the petitioner's claimed qualifying relationship with the foreign entity, the approval 
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. Matter of Church Scientology International, 19 I&N Dec. 593, 597 
(Comm. 1988). 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). 
Accordingly, the director is instructed to review the prior nonirnmigrant petition approval for revocation 
pursuant to 8 C.F.R. tj 214.2(1)(9)(iii). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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. tj 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.