dismissed L-1A Case: Jewelry

identifyingdata deletedto
preventclearlyunwllllllMd
invasionofpenaaalpritIq
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: LIN 06 034 54172 Office: NEBRASKA SERVICE CENTER Date: AUG 032007
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.
_ ~~_."-
L:. / -,
Robert'. iemann, Chief
Administrative Appeals Office
www.uscis.gov
LIN 06 034 54172
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 petition seeking to employ the beneficiary in the position of marketing
manager to open a new office in the United States as an L-IA nonimmigrant intracompany transferee
pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(15)(L) . The petitioner, a corporation organized under the laws of the State of Washington , claims to
be a jewelry business , and alleges a qualifying relationship with a purported "spousal
partnership" located in Israel.
The director denied the petition concluding that the petitioner failed to demonstrate (1) that the beneficiary
has been employed abroad in a managerial or executive capacity; (2) that the intended United States
operation, within one year of the approval of the petition , will support an executive or managerial position; (3)
that the petitioner has secured sufficient premises to house the new office; or (4) that the petitioner and the
foreign employer have a qualifying relationship.
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 asserts that the petitioner had submitted
adequate evidence to entitle it to an approval of the petition. In support of the appeal, counsel submitted a
brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification , the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically , a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity , or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary 's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial , executive, or
specialized knowledge capacity .
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(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.
LIN 06 034 54172
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 him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; and
(C) The intended United States operation, within one year of the approval
of the petition, will support an executive or managerial position as
defined in paragraphs (l)(l)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
The first issue in this proceeding is whether the beneficiary has been employed abroad in a managerial or
executive capacity as required by 8 C.F.R. § 2l4.2(l)(3)(v)(B).
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;
LIN 06 034 54172
Page 4
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major 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 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.
As the petitioner did not submit a description of the beneficiary's duties abroad with the initial petition, the
director issued a request for additional evidence on November 17, 2005. The director requested, inter alia,
job descriptions for the beneficiary and all other employees abroad as well as an organizational chart for the
foreign employer.
In response, the petitioner submitted an organizational chart identifying the beneficiary as the "sales and
marketing manager" for the foreign entity. He is not portrayed as supervising any employees. The chart also
identifies the beneficiary's spouse, the production manager/creative director, who is portrayed as supervising
one designer. The petitioner also submitted the following description of the beneficiary's job duties abroad:
LIN 06 034 54172
Page 5
Tasks Time
Planning and supervision of marketing 75%
Accounts 50/0
Graphic design of the products catalogue 100/0
Supervision of orders and shipping 100/0
Total 100%
On February 10, 2006, the director denied the petition. The director concluded, inter alia, that the petitioner
failed to establish that the beneficiary has been 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.
Counsel asserts that the director in denying the petition placed too much emphasis on the size of the
organization and the number of employees supervised.
Upon review, the petitioner's assertions are not persuasive.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. §§ 214.2(l)(3)(ii) and (iv). The petitioner's description
of the job duties must clearly describe the duties being 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 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 is acting
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 does on a day-to-day
basis. For example, the petitioner states that the beneficiary primarily "plans and supervises marketing" and
is engaged in "customer relations." However, the petitioner offers no explanation regarding what, exactly, the
beneficiary does on a day-to-day basis to plan and supervise marketing or to work with customers. This is
especially important in this matter because the operational and administrative tasks inherent to marketing,
sales, and customer relations (e.g., designing advertisements, assembling brochures, and sales calls), do not
rise to the level of being managerial or executive in nature when the beneficiary performs those tasks himself.
Without a clear explanation of the beneficiary's job duties, it cannot be confirmed that the beneficiary is truly
employed primarily in a managerial capacity. 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).
LIN 06 034 54172
Page 6
Moreover, given that the foreign entity does not appear to employ a subordinate staff which could relieve the
beneficiary of the need to perform non-qualifying marketing, sales, and customer relations duties, it must be
concluded that the beneficiary is "primarily" performing these tasks himself. 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 10I(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 supervises and controls the work of other
supervisory, managerial, or professional employees, or manages an essential function of the organization. As
explained in the organizational chart, the beneficiary supervises no employees. Further, the record does not
establish that the beneficiary manages an essential function of the organization. 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
10I(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(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties' must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function.
In this matter, 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, if any, and what proportion would be non-managerial. Also, as explained above, given
the lack of a subordinate staff, it appears that the beneficiary is performing those non-qualifying tasks
inherent to his claimed planning and supervising of marketing. Absent a clear and credible breakdown of the
time spent by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties
would be managerial , nor can it deduce whether the beneficiary is 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).
Therefore, the petitioner has not established that the beneficiary is employed primarily in a managerial
capacity abroad.
Similarly, the petitioner has failed to establish that the beneficiary is acting 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 10I(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. Id.
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"
LIN 06 034 54172
Page 7
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 is acting primarily in an executive capacity. The job description provided for the
beneficiary is so vague that the AAO cannot deduce what the beneficiary does on a day-to-day basis.
Moreover, as explained above, the beneficiary appears to be performing marketing and sales tasks necessary
to produce a product or to provide a service. Therefore , the petitioner has not established that the beneficiary
is employed primarily in an executive capacity
Counsel correctly observes that a company's size alone , without taking into account the reasonable needs of
the organization , may not be the determining factor in approving a visa for a multinational manager or
executive. See § 101(a)(44)(C) of the Act; Mars Jewelers , Inc. v. INS , 702 F. Supp. 1570 (N.D. Ga. 1988).
However, it is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the
petitioning company in conjunction with other relevant factors, such as a company's small personnel size, the
absence of employees who would perform the non-managerial or non-executive operations of the company,
or a "shell company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics
Corp. v. INS, 153 F. Supp. 2d 7 , 15 (D.D.C. 2001) . Furthermore, the reasonable needs of the petitioner will
not supersede the requirement that the beneficiary be "primarily" employed in a managerial or executive
capacity as required by the statute. See sections 101(a)(44)(A) and (B) of the Act. Accordingly, in this
matter, the petitioner has failed to establish that the beneficiary is primarily performing managerial or
executive duties , and the petition may not be approved for that reason.
Accordingly, the petitioner did not establish that the beneficiary has been employed for one continuous year
in the three year period preceding the filing of the petition in an executive or managerial capacity as required
by 8 C.F.R. § 2l4.2(l)(3)(v)(B), and for this reason the petition may not be approved.
The second issue in this proceeding is whether the intended United States operation, within one year of the
approval of the petition, will support an executive or managerial position as required by 8 C.F.R. §
214.2(l)(3)(v)(C).
In the initial petition, the petitioner asserts that it plans to open a "new office" in the United States as an
extension of the foreign employer's Israel-based jewelry business. As the director determined that the
petitioner's description of the goals and scope of the "new office" was not sufficient to establish that the
intended United States operation, within one year of the approval of the petition , will support an executive or
managerial position, the director requested additional evidence on November 17, 2005. The director requested,
inter alia, the petitioner's business plan and audited financial statements establishing that the foreign entity is able
to remunerate the beneficiary and to commence doing business in the United States.
In response, the petitioner submitted a "business plan" which generally states the petitioner's intent to market its
products at exhibitions and to retail stores owned by third parties. The petitioner vaguely predicts , without any
corroborating studies or analyses , that "[i]t is anticipated that revenues and profits will grow steadily and that
there will be need to increase the number of employees." The petitioner also submitted financial statements
indicating that the foreign business had $77,950 .00 in gross revenue and $31 ,628.00 in income , before taxes, in
2004. The unaudited, and unsubstantiated , estimate of the foreign employer's gross revenue as submitted with the
LIN 06 034 54172
Page 8
initial petition for the period January 1, 2005 through August 15, 2005 was $67,092.00. The petitioner did not
account for 2005 expenses and did not provide any estimates for the foreign employer's net income during this
period. The instant petition was filed on November 14, 2005.
On February 10, 2006, the director denied the petition. The director determined that the petitioner failed to
demonstrate that the intended United States operation, within one year of the approval of the petition, will
support an executive or managerial position. The director found that the petitioner's business plan did not
establish that, after one year, the petitioner will employ a subordinate staff of personnel who will relieve the
beneficiary of the need to perform non-qualifying duties. The director also found that the petitioner failed to
establish that the foreign entity is able to commence doing business in the United States or to remunerate the
beneficiary.
On appeal, counsel to the petitioner asserts that the petitioner established that the foreign entity is able to
remunerate the beneficiary and to commence doing business in the United States. In support of the appeal,
counsel submits updated financial data attempting to establish the foreign employer's business activities after
the filing of the instant petition.
Upon review, the petitioner's assertions are not persuasive.
As a threshold matter, it must be noted that the financial data submitted on appeal relating to the foreign
employer's business activities after the filing of petition will not be considered. 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). The appeal will be adjudicated based on the record of
proceeding before the director.
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties.
As contemplated by the regulations, a comprehensive business plan should contain, at a mmimum, a
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec.
206,213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
LIN 06 034 54172
Page 9
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefore. Most importantly, the business plan must be credible.
Id.
The petitioner has failed to present evidence sufficient to prove that the intended United States operation,
within one year of the approval of the petition, will support an executive or managerial position. The petitioner
has submitted a vague "business plan" which states only the petitioner's intent to market its products to United
States retailers. Not only does this plan fail to articulate any financial, organizational, or hiring goals, the
petitioner's goal of selling products to certain retailers and at events is entirely unsupported by independent
studies or analyses. The plan, and the record as a whole, fails to establish the financial goals, scope,
organizational structure, or nature of the United States operation. The petitioner has not described a business
operation which will succeed and rapidly expand as it moves away from the developmental stage to full
operations, where there would be an actual need for a manager or executive who will primarily perform
qualifying duties. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190).
Likewise, the petitioner has failed to establish that the foreign business is currently capable of remunerating the
beneficiary and of doing business in the United States. As indicated above, the petitioner has provided audited
financial statements through the end of 2004. These statements show that the foreign employer, apparently an
unincorporated entity, generated $31,628.00 in income, before taxes, in 2004. The petitioner proposes to pay the
beneficiary $40,000.00 per year. Assuming that this financial data, which describes the foreign entity's financial
status almost one year prior to the filing of the instant petition, could be relevant to these proceedings, this data
establishes that the foreign business would not be able to remunerate the beneficiary as proposed. While the
foreign business allegedly had gross revenues of $77,950.00 in 2004, the audited financial statement reveals that
the expenses and costs deducted from that amount did not include any salaries. As the record is devoid of any
evidence regarding the elimination of any of these expenses in 2005, the petitioner has not established that the
foreign business is able to remunerate the beneficiary or is able to commence doing business in the United States.
Moreover, the record is devoid of any credible evidence establishing the foreign employer's current financial state
of affairs. The petitioner did not provide any information regarding the availability of funds, accounts receivable,
or accounts payable. While the petitioner did provide an unaudited, unsubstantiated financial statement indicating
LIN 06 034 54172
Page 10
that the foreign entity generated approximately $67,092.00 in gross revenue between January 1,2005 and August
15,2005, the accountant did not estimate the foreign employer's expenses or net income during that time. As the
record is devoid of any evidence that the foreign employer's expenses will differ materially in 2005 from 2004, it
must be concluded that the foreign entity is in a similar financial state as in previous years and, consequently, will
not be able to remunerate the beneficiary or commence doing business in the United States.
In addition, while not directly addressed by the director, the petitioner has also failed to establish that an
investment has been made in the United States operation as required by 8 C.F.R. § 214.2(l)(3)(v)(C)(2). The
petitioner provided two documents with the initial petition titled "Form of Offer to Purchase Stock." These
documents indicate that both the beneficiary and his spouse have offered to purchase stock from the petitioner
and that the purchase price will "be paid when required by the Corporation." However, the record is devoid of
any evidence that this investment has ever been made. Therefore, as the petitioner has not provided evidence of
any investment in the United States operation, it has failed to establish that the intended United States operation,
within one year of the approval of the petition, will support an executive or managerial position for this additional
reason.
Accordingly, the petitioner has not established that the intended United States operation, within one year of the
approval of the petition, will support an executive or managerial position as required by 8 C.F.R. §
214.2(l)(3)(v)(C), and for this reason the petition may not be approved.
The third issue in this proceeding is whether the petitioner has secured sufficient physical premises to house
the new office as required by 8 C.F.R. § 214.2(l)(3)(v)(A).
In the initial petition, the petitioner provided a copy of a one-year lease dated September 1, 2005 for 300
square feet of general office space. In the Request for Evidence, the director requested photographs of the
interior and exterior of the leased premises. In response, the petitioner provided several photographs
allegedly of the interior and exterior of the leased premises. The director denied the petition concluding that
the 300 square foot space was not "adequate space to grow the business and employ additional individuals."
On appeal, counsel asserts the following:
The Service Center's complaint about the size of the office ignores that it is only for the first
year, when the beneficiary will be working there alone, and it can easily be expanded
thereafter. There should be no requirement to rent larger space at the outset, when it is not
necessary and will only be a financial burden.
The size of the premises is reasonably suited to the work of one manager during the first year
of start up activities and development according to the business plan.
Upon review, counsel's assertions are not persuasive.
Title 8 C.F.R. § 214.2(l)(3)(v)(A) requires only "sufficient" physical premises be secured by the petitioner.
While "sufficient" is not defined in the regulations, the regulations are clear that this requirement relates to the
LIN 06 034 54172
Page 11
petitioner's first year in operation during which time it must expand and move away from a developmental
stage to full operations , where there would be an actual need for a manager or executive who will primarily
perform qualifying duties. In this matter, the petitioner has vaguely asserted in its business plan that it
foresees the hiring of additional staff. However , as the petitioner has not provided plans describing how it
intends to use the 300 square feet of space once additional staff is hired and has failed to explain how many
additional staff members it intends to hire by the end of the first year in operation, the petitioner has failed to
carry its burden of establishing that the leased space is "sufficient" to house the new office. Therefore, the
petition may not be approved for this reason.
The fourth issue in this proceeding is whether the petitioner has established that it has a qualifying
relationship with the foreign entity as required by 8 C.F .R. § 214.2(1)(3)(i).
To establish a "qualifying relationship" under the Act and the regulations , the petitioner must show that the
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section
101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1).
In the current case, the petitioner alleges that the beneficiary and his spouse each own 50% of both the foreign
employer and the petitioner and, thus, own and control both enterprises as affiliates. In support, the petitioner
submitted corporate organizational documents and stock certificates indicating that, on September 1, 2005,
1,000 shares of stock were issued to both the beneficiary and his spouse. However, as the petitioner did not
provide any evidence establishing the ownership and control of the foreign business, the director requested
additional evidence. In response , the petitioner submitted a letter from counsel dated January 2006 indicating
that the foreign business is not incorporated. Counsel explained that the beneficiary and his spouse "jointly
operate the business as a spousal partnership." In support , the petitioner provides copies of various tax and
financial documents. The notes on the 2004 income statement state that "[t]he business is registered with the
Israel Tax Authority in the name of [the beneficiary's spouse]. However , in reality it is a spousal partnership
between her and her husband."
On February 10, 2006, the director denied the petition concluding that the record did not establish the
ownership and control of the foreign entity.
On appeal, counsel asserts that the tax and financial documentation in the record establishes that the
beneficiary and his spouse jointly own and operate the incorporated foreign business operation.
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
LIN 06 034 54172
Page 12
and authority to direct the establishment, management, and operations of an entity. Matter of Church
Scientology International, 19 I&N Dec. at 595.
In this matter, the petitioner has failed to establish ownership and control of the foreign business. As
explained above, the petitioner's has presented evidence that the "business" is registered to the beneficiary's
spouse. However, the petitioner has also presented evidence that "in reality" the business is a "spousal
partnership" between the beneficiary and his spouse. This explanation, when considered with the record as a
whole, is not sufficient for two reasons. First, the petitioner offers no evidence to substantiate the claims
made in the financial statement regarding ownership. The petitioner does not explain why the business is
registered solely in the beneficiary's spouse's name or what legal basis the accountant uses to conclude that
the business is a "spousal partnership" despite its registration. Going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter of SojJici, 22 I&N Dec. at 165. Second, the record is devoid of any explanation regarding the
significance of a "spousal partnership" under Israeli law and the effect this may have on ownership and
control. In immigration proceedings, the law of a foreign country is a question of fact which must be proven
if the petitioner relies on it to establish eligibility for an immigration benefit. Matter ofAnnang, 14 I&N Dec.
502 (BIA 1973). For these reasons, the petitioner has failed to establish the ownership and control of the
foreign entity.
Moreover, as explained above, the petitioner has not established that the beneficiary and his spouse have paid
for the stock issued to them by the petitioner. The petitioner provided two documents with the initial petition
titled "Form of Offer to Purchase Stock." These documents indicate that both the beneficiary and his spouse have
offered to purchase stock from the petitioner and that the purchase price will "be paid when required by the
Corporation." However, the record is devoid of any evidence that the stockholders have ever paid for the stock.
As ownership is a critical element of this visa classification, the means by which stock ownership is acquired
may be as relevant as the issuance of paper stock certificates to the stockholders. Therefore, as the petitioner
has failed to establish the means by which the stockholders acquired their shares, the petitioner has also failed
to establish the ownership and control of the United States operation.
Finally, and beyond the decision of the director, the petitioner has failed to establish that the foreign employer
is a "qualifying organization" because it failed to establish that the foreign employer is currently "doing
business" as defined in the regulations. As explained above, the record is devoid of any evidence of current
business activity. The unaudited, unsubstantiated financial statements do not establish that the foreign
employer has current business activity. Therefore, for this additional reason, the petition may not be approved.
Accordingly, the petitioner did not establish that the petitioner and the organization which employed the alien
overseas are qualifying organizations as required by 8 C.F.R. § 214(1)(3)(i), and for this 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
LIN 06 034 54172
Page 13
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 is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.