dismissed L-1A Case: Jewelry

identifying1ata 'deleted to
prevent cleav. unWaiT8nted
mvasi~ of personal privacy
PUBLICCOP~~
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washin gton, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: WAC 05 060 53012 Office : CALIFORNIA SERVICE CENTER Date: .·MAR 'G7 211)1 .
INRE: Petitioner:
Beneficiary:
PETITIO N: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigrat ion and
Nationality Act, 8 U.S.c. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER :
INSTRUCTIONS :
This is the dec ision of the Administrative Appeal s Office in your case. All documents have been returned to the office
that orig inally decided your case. Any further inquiry must be made to that office.
- ~~
Robert P. Wiemann , Chief
Administrative Appeals Office
www.uscis.gov
WAC 0506053012
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The .
matter is now before the Administrative-Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its general manager as an
L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.c. § 1101(a)(15)(L). The petitioner, a corporation organized in the State of
California, claims to be the subsidiary of Stone Cache Gems & Jewelry, located in Islamabad, Pakistan. The
petitioner identifies itself as a jewelry wholesaler and retailer. The beneficiary was initially granted an initial
period of stay to open a new office in the United States, and the petitioner now seeks to extend the
beneficiary's stay for two years.
The director denied the petition concluding that the petitioner did not establish that (1) the petitioner and the
organization which employed the beneficiary abroad were qualifying organizations; or (2) the beneficiary will
be employed in the United States in a primarily managerial or executive capacity., '
On appeal, counsel for the petitioner contends that the director erroneously misinterpreted the organizational
structure of the foreign entity as well as the duties of the beneficiary and, as a result thereof, wrongfully
denied the petition. In support of these assertions, counsel submits a brief and additional evidence.
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 ina 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 defmed in paragraph (1)(1)(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
education, training, and employment qualifies him/her to perform the intended
WAC 0506053012
Page 3
serv ices 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)(14)(ii) provides that a visa petition , which involved the
. opening of a new office , may be extended by fil ing 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 III
paragraph (l)(I)(i i)(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 descr ibing the staffing of the new operation, includ ing 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 petitioner and the foreign organization are qualified
organ izations as defined by 8 C.F.R. § 2 14.2(1)(1)(ii)(G) . The regulation defines the term "qualifying
organization" as a United States or foreign firm, corporation , or other legal entity which:
(1) . Meets exactly one of the qualifying relationships specified in the definitions of a parent ,
branch, affiliate or subsidiary specified in paragraph (l)(1)(ii) of this section;
(2) Is or will be doing busines s (engaging in international trade is not required) as an
employer in the United States and in at least one other country directly or through a
parent , branch , affiliate, or subsidiary for the duration of the alien's stay in the United
States as an intracompany transferee ; and .
(3) Otherw ise meets the requirements of section 101(a)(15)(L) of the Act.
Additionally, the regulation at 8 C.F.R. § 214.2(l)(1)(ii) provides:
(I) Parent means a firm , corporation , or other legal entity which has subsidiaries.
(1) Branch means an operating division or office of the same organization housed in a
different location.
WAC 0506053012
Page 4
(K) Subsidiary means a finn, corporation, or other <legal entity of whi~h a parent owns ,
directly or indirectly, more than half of the entity and controls the entity; or owns,
directly or indirectly , half of the entity and controls the entity ; or owns , directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over
the entity; or owns , directly or indirectly, less than half of the entity , but in fact controls
the entity.
(L) Affiliate means
(1) 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 ind ividual owning and controlling approximately the same share or
proportion of each entity , or
(3) In the case of a partnership that is organized in the United States to prov ide
accounting services along with managerial and/or consulting services and that
markets its accounting services under an internationally recognized mime under
an agreement with a worldwide coordinating organization that is owned and
controlled by the member accounting firms, a partnership (or similar
. organization) that is organized outside the United States to provide accounting
services shall be considered to be an affiliate of the United States partnership if it
markets its accountiI?g services under the same internationally recognized name
under the agreement with the worldwide coordinating organization of which the
United States partnership is also a meI?ber.
In this case, the petitioner claims that the U.S . entity is the subsidiary of the foreign entity by way of its 50
percent ownership of a 50-50 joint venture, with equal control and veto power over the entity. In support of this
contention , the petitioner submitted a copy of the Minutes of Organizational Meeting dated July 11 , 2003,
which indicated that 100 ,000 shares were authorized. In addition, the minutes demonstrated that the shares
were di vided as follows:
Stone Cache (the foreign employer) 50,000
25,000
25,000
The petitioner further claimed that were husband and wife.
With regard to the ownership of the foreign ent ity, the petitioner .indicated that it was a partnership established
in 1995. The petitioner also submitted a document entitled "Change in Constitution," which indicated that the
partner ship interests had changed as of April 9,2003 , and that the current ownership of the foreign entity was
as follows :
WAC 0506053012
Page 5
Beneficiary
40%
30%
30%
Additionally, copies of wire transfers were submitted, evidencing the transfer of $60,000 to the petitioner on
August 13,2005 and the transfer of $15,000 to the petitioner on October 16,2005. The transfers, however,
'originated from individuals and not from the forei corporate entity. It should be noted that the transfer in
the amount of$15,000 was initiated by a partner in the foreign entity.
The director found this initial evidence submitted with the petition to be insufficient to qualify the petitioner
for the benefit sought and consequently issued a request for evidence on January 4, 2005. In the request, the
. director requested the petitioner to submit evidence that definitively established its qualifying relationship
with the foreign entity. Specifically, evidence of the purchase of the outstanding shares by the foreign entity,
in the form of wire transfers or other mediums, was requested. The director also requested a more detailed
list of the petitioner's owners, as well as copies of its articles of incorporation and annual report.
) On March 25, 2005, the petitioner through counsel submitted a detailed response to the director's request
which was accompanied by supporting documentary evidence. The petitioner submitted its articles of
incorporation and also re-submitted the wire transfers originally filed with the petition. Counsel instructed the
director to review the letters from the petitioner accompanying the transfers, which claimed that the
individuals who ordered the transfers were employees of the foreign entity and had instituted the transactions
on its behalf.
Upon review of the evidence submitted, the director concluded that the U.S. entity was not majority owned or
controlled by the foreign entity and was thus not a subsidiary of the foreign entity as defined by the
regulations. Specifically, the director noted that the U.S. entity did not meet the definition of affiliate, and
therefore was not a qualified organization for purposes of this analysis.
Counsel for the petitioner appealed the decision, asserting that the U.S. entity was in fact a subsidiary of the
foreign entity. In support of this contention, the petitioner contends that the foreign entity is part of a 50-50
joint venture and has equal control and veto power over the entity.
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 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, 19 I&N Dec. at 595.
WAC 0506053012
Page 6
Upon review of the record of proceeding, the petitioner has not established that it has the required qualifying
relationship with the foreign entity.
In this case, the petitioner has provided documentary evidence outlining the shareholder interests in the U.S .
and foreign entities, and has supplemented .this evidence with explanatory statements which d iscuss the
percentages of shareholder ownership. Specifically , the statements of counsel accompanying the initial
petition claimed that the U.S. entity is equally owned by the foreign entity and a husband and wife, each of
whom equally own the remaining 50 % of the U .S. entity. The corporate documentation accompanying the
petition supports this contention.
Upon initial review of the petition, the director found the evidence to be insufficient to establish that the U.S.
entity was a qualifying subsidiary of the foreign entity and, furthermore, found that the wire transfers offered
as proof of the foreign entity 's purchase of the petitioner's stock was insufficient. The director , therefore,
issued a request for additional evidence and clarification on these issues.
In response to the director's request, counsel submitted a statement explaining the nature of the origin of the
wire transfers, and contends again that the petitioner is asubsidiary of the foreign entity by way of the foreign .
entity's 50 percent ownership of a 50-50 joint venture with equal control and veto power over the petitioner.
Although counsel provided no further commentary or evidence with regard to this matter, it is clear that this
statement was intended to persuade the director that the ownership composition of the U.S. entity met the
definition of subsidiary.
On appeal, counsel for the petitioner briefly claims that the director erroneously determined that the U.S . .
entity was not a subsidiary of the foreign entity. Counsel once again maintains that the U.S . entity is the
subsidiary of the foreign entity by wayof the foreign entity's ownership of 50% of the U.S. entity.
The definition of subsidiary requires that a parent own, directly or indirectly :
more than half of the entity and control the entity;or
half of the entity and control the entity;or
50 percent of a 50-50 joint venture and have equal control and veto power over the
entity; or
less than half of the entity, but in fact controls the entity.
See 8 C.F.R. § 214.2(l)(l)(ii)(K).
Upon review, it does not appear that the U.S. and foreign entities meet any of the above criteria.
First, the record is devoid of evidence that the foreign entity in fact legitimately acquired ownership of the
petitioner 's stock. The record indicates that the petitioner's stock was sold for $1.50 per share, which would
total $75,000 for the petitioner. While the record contains evidence of two wire transfers totaling $75,000,
both transfers were ordered by individuals , not the foreign entity itself. While one of the transfers was
ordered by a partner in the foreign entity, the other and more sizeable transfer was sent by an individual not
WAC 0506053012
Page 7
identified in the record. Although the petitioner submits a letter from the foreign entity claiming that this
person was acting on beh~lf of the company , there is insufficient documentation to corroborate this claim.
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 ofHo, 19 I&N Dec. 582 ,
591 (BIA 1988) . If CIS fa ils to believe that a fact stated in the petition is true , CIS may reject that fact.
Section 204(b) of the Act , '8 U.S.c. § 1154(b); see also Anetekhai v.l.NS., 876 F.2d 1218, 1220 (5th
Cir.1989) ; Lu-Ann Bakery Shop , Inc . v. Nelson , 705 F . Supp. 7 ; 10 (D.D.C.1988); Systronics Corp. v. INS,
153 F. Supp. 2d 7 , 15 (D.D.C. 2001) . Therefore , the cruc ial factor of ownership has not been definitely
established in this matter. Go ing 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 ofTreasure Craft of California , 14 I&N Dec..190 (Reg. Comm. 1972)) .
Although the ab sence of the above evidence creates a presumption of ineligibility, the AAO will also examine
the additional deficiencies in the record . .First, the evidence does not establish that the fore ign entity owns
more than half of the ,U.S. entity and controls the U.S. entity. It is undisputed that at the time of the filing of
the petition, the U.S . entity was allegedly owned by three parties: the fore ign entity,
_ This claim is supported by the ev idence submitted with the in itial petition , in the response to the
request for evidence , and in the appeal brief. Consequently, it is evident that that the foreign entity does not
own more than half of the entity and control the entity.
Second, although it is claimed that the foreign entity owns half of the U .S. entity, it does not control the
entity . There is no documentation in the record to suggest that the foreign entity has voting agreements or
other such documents which would challenge the conclusion that control is shared equally with another party.. .
Therefore , although the foreign entity claims to own half of the U.S. entity , it has not established that it has de
jure control of the entity .
Third , the petitioner has not proven that a qualifying relationship exists via the foreign entity's direct or
indirect ownership of 50 percent of a 50-50joint venture with equal control and veto power over the entity as set
forth under 8 C.F .R. § 214.2(l)(l)(ii)(K) . On appeal, the AAO notes some confusion on the part of counsel with
regard to this claimed relationship between the parties. In the denial, the director concluded that the pet itioner
was not an affiliate of the foreign entity. On appeal, rather than continuing to expand on the claim that the foreign
entity is part of a joint venture, counsel focuses on disproving the director 's reliance on the affiliate analysis.
A joint venture, the director stated, is "a partnership between organization s in the joint prosecution of a particular
transaction for mutual profit."J The AAO notes, however, that neither the Act nor regulation provides a definition
of the phrase 'joint venture." However, the Commissioner has applied a broad definit ion of joint venture in a
prior decision. The decision in Matter ofHughes states that a joint venture is "a business enterprise in which two
or more economic entities from different countries participate on a perm anent basis." 18 I&N Dec . at 289
(quoting a definition from , International Business Enterprise (Prentice Hall, 1973).
I Black 's Law Dictionary 753 (5IhEd. 1979).
WAC 0506053012
Page 8
The director determined that the record was devoid of evidence suggesting that the business relationship between
Southern and Meitac was that of a joint venture. On appeal, counsel states that Southern and Meitac are engaged
in a continuing business through the U.S. entity , and specifically states , on page three of the appeal brief , that
their relationship is not a joint venture as d efined by the director. Although counsel's allegation , on its face ,
appears to argue that a joint venture does not exist , the AAO has determined that counsel' s objection is with
regard to the defmit ion of "joint venture" relied upon by the d irector in the denial, and not an admission that a
joint venture does not exist.
In reviewing the evidence for compliance with the definition of "joint venture," the AAO will look at the
evidence contained in the record . 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 sub sequent percentage
ownership and its effect on corporate control. Additionally , a petitioning company must disclose all
agreements relating to the vot ing of shares, the d istribut ~on of profit, the management and direction of the
subsidiary, and any other factor affecting actual control of the entity. See Matter ofSiemens ¥edi cal Systems.
19 I&N Dec. 362 . Without full disclosure of all relevant documents, Citizenship and Immigration Services
(CIS) is unable to determine the elements of ownership and control.
The petitioner failed to discuss and 'has not disclo sed all agreements between the foreign entity and the other
two shareholders relating to the voting of shares, management and direct ion of the subsidiary , and other
factors which would affect control over the subsidiary joint venture as requiredby Matter of Siemens. !d.
The record contains stock cert ificates and meeting minutes of the shareholders which imply that there is 50-50
ownership of the U.S. petitioner by the fore ign entity and the two other . parties. However , despite the
petitioner's contentions that are husband and wife , that fact alone does not
establish that thes e two shareholders are in agreement with regard to voting of shares or the management of
the petitioner. However, as stated above, ownership is but one of two essential factors that needs to be
established in order to demonstrate the existence of a qualifying relationship. In this matter, the petitioner has
failed to prov ide any voting agreements or agreements pertaining to the management of the company which
would establish that the foreign entity exercises the crucial element of control and veto power o ver the U.S.
petitioner. The only other document attesting to the relationship and the element of control is the petitioner's
claim on the Form 1 -129 that claims the foreign entity has effective control over the petitioner. As stated
above, however, the decision in Matter. of Siemens requires disclosure of all relevant agreements establishing
control. Since no documentation or agreements pertaining to this factor have been submitted, the AAO is
unable to conclude that the foreign entity exercises both ownership and control over the U.S. petitioner in this
matter. 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
As described in Matter of Siemens, 'the joint venture parent company mus.t have the power to prevent action by
the subsidiary company through exercise of its veto power due to the ownership and control of 50 percent of the
WAC 0506053012
Page 9
voting shares. See Matter of Siemens, 19 I&N Dec. at 364. Without disclosure of all relevant voting and other
management agreements, this factor cannot be ascertained.
Finally, the petitioner has not shown that the foreign entity owns less than half of the U.S. entity but controls the
entity. . As a result , the petitioner has not established that it meets the criteria for a qualifying subsidiary
relationship under 8 C.F.R. § 214 .2(l)(l)(ii)(K).
Based on the evidence presented, it is concluded that the ·U.S. entity was not a qualify ing subsidiary of the
foreign entity as of the filing date of this pet ition , and thus did ·not have a qualifying relationship as required
by the regulations .
The second issue in this matter is whether the beneficiary will be employed by the United States entity in a
primarilymanagerial or executive capacity.
Section 101(a)(44)(A) of the Act , 8 U.S.c. § 1101(a)(44)(A) , defines the term "managerial capacity" as an
assignment within an organization in which the employee I?rimarily: .
(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 manager ial
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 super vised, 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 cons idered 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. § 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 ;
WAC 0506053012
Page 10
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
In a letter dated December 18, 2004, the petitionerstated that the beneficiary oversees three managers,
namely, Marketing Manager, and Vice President of Operations. Thepetitioner
clarified by stating that the third manager, an Appraisal Manager, would be hired in the near future. With
regard to the beneficiary's duties, the petitioner stated:
[The beneficiary] manages the affairs and directs the activities of [the petitioner] on a day-to­
day basis. He carries out company policies to ensure that [the petitioner] achieves its goals
and attains its objectives. [The beneficiary] closely supervises the activities of other
managers and controls the work of other supervisory personnel. He is responsible for hiring
and firing professional and managerial staff. Further, [the beneficiary] determines company
personnel policies pertaining to employee benefits, compensation packages, promotional
guidelines, leave authorization, insurance, and related matters.
[The beneficiary's] responsibilities include analyzing our organization's structure and
recommending specific measures for improving our efficiency. Further, [the beneficiary]
monitors and controls the flow of cash receipts and disbursements to meet our needs. He is
responsible for the firm's cash flow, and directs our company's financial affairs on a daily
basis. [The beneficiary] is also in charge of expanding the company's operations, and will
plan and direct the establishment of other company locations, and execute capital raising
strategies to support the firm's expansion.
On January 4,2005, the director requested additional evidence pertaining to the nature of the beneficiary's
position. in the U.S. business. The request asked the petitioner to submit a more detailed description of the
day-to-day duties of the beneficiary, an organizational chart for the U.S. entity showing all employees with a
brief explanation of their duties, and quarterly wage,reports for the last four quarters.
The petitioner submitted a response dated March 25, 2005. The petitioner submitted copies of its quarterly
wage reports which confirmed that the petitioner employed the two subordinate employees identified
previously. However; the petitioner failed to submit any new information or details with regard to the
beneficiary's duties.
On April 12, 2005, the director denied the petition. The director found that the evidence in the record was
insufficient to establish that the beneficiary would primarily be employed in a managerial or executive
capacity. The director concluded that the description of duties was broad and encompassed many non-
,qualifying duties, specifically marketing tasks, which were not traditionally deemed managerial duties. The
director also concluded that the beneficiary was not supervising, a subordinate staff of professionals,
managers, or supervisors. On appeal, counsel for the .petitioner alleges that the evidence submitted in
response to the request for evidence was ignored by the director, and asserts that a review of this information
WAC 05 060 53012
'Page 11
clearly establishes that the beneficiary was primarily engaged in qualifying duties on a day-to-day basis in
contrastto the director 's findings.
When examining the execut ive .or managerial capacity of the beneficiary , the AAO will look first to the
petitioner's des cription of the job duties. See 8 C.F .R. § 214.2(l)(3)(ii). The definitions of executive and
managerial capacity have two parts. First , the petitioner must show that the beneficiary performs the high
level responsibilities that are specified in the definitions. Second , the petitioner must prove that the
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her
time on day-to-day functions. Champion World, Inc . v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th
Cir. July 30, 1991).
In the letter dated December 18, 2004, the petitioner provided a broad view of the beneficiary's duties: The
director found this initial description insufficient to.determine the exact nature of the beneficiary's day-to-day
role in the company, and therefore requested a more detailed description . Although the petitioner responded
to this request , it merely restated these duties in a different context. It failed to expand on the initial
description or discuss any new duties not previously provided. On appeal , counsel resubmits a copy of the
petitioner's letter dated March 1, 2005, which was included with the response to the request for evidence
dated March 25 , 2005, and alleges that the director 's denial was erroneous because it failed to consider the
statements presented therein .' The AAO, however , notes that this respon se merely restates the initial job
description , and more importantly, paraphrases the regulatory definitions . .While counsel contends by way of.
the de scription provided that the beneficiary is responsible for all essential duties pertaining to the company,
it is unclear exactly what the beneficiary does on an average work day. Reciting the beneficiary's vague job
responsibilities or broadly-cast business objectivesjs 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. ~. Sava, 724 F. Supp. 1103 ,1108 (E.D.N.Y.1989) , aff'd,
905 F.2d 41 (2d. Cir. 1990).
Despite counsel's contentions that the duties discussed in the initial petition and again in th~ response to the
request for evidence clearly qualify the beneficiary for the benefit sought, the AAO disagrees. Conclusory
assertions regarding the b eneficiary's employment capacity are not sufficient. Merely repeating the language
of the statute or regulations doesnot satisfy the petitioner' s burden of proof. Fedin Bros. Co., Ltd. v . Sava,
724 F . Supp.1103 , 1108 (E .D.N.Y. 1989), aff'd , 905 F . 2d 41 (2d. Ci r. 1990); Avyr Associat es, [nco v.
Meissner , 1997 WL 188942 at *5 (S.D .N.Y.). Furthermore, without documentary evidence to support the
claim, the assertions of counsel will not satisfy the petit ioner's burden of proof. The unsupported assertions of
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matt er of
Laureano, 19 I&N Dec. I (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).. .
In addition, the petitioner claims that a great deal of the beneficiary's time is devoted to supervising the
marketing manager and the vice-president of operations. Although the beneficiary is not required to supervise
personnel , if it is claimed that h is duties invol ve supervising employees, the petitioner must establish that the
subordinate employees are supervisory, professional , or managerial. See § 101(a)(44)(A)(ii) of the Act.
WAC 0506053012
Page 12
Though requested by,the director , the petitioner did not provide the level of education required to perform the,
duties of its marketing manager andvice-president of operations, Any failure to submit requested evidence
that"precludes a material line of inquiry shall be grounds for denying the petition. 8 .C.F,R § 103 .2(b)(l4) .
Thus, the petitioner has hot established that these employees possess or require an advanced degree, such that
they could be classified as professionals. Nor has the petitioner shown that either .of these employees
supervise subordinate staff members or manage a clearly defined department or function of the petitioner,
such that they could be classified as managers or supervisors . Pursuant to the quarterly wage reports, these
employees have no subordinate personnel. Thus, the petitioner has not ' shown that the beneficiary's
subordinate employees are supervisory, professional, or managerial,as required by section 101(a)(44)(A)(ii)
of the Act. Despite the high-ranking titles of these employees, it cannot be concluded that they are
managerial or professional merely by virtue of the titles of their positions.
Pursuant to section 101(a)(44)(C)of the Act , 8 U.S.c.§ 1101(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, howe ver, 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. § 214.2(l)(l4)(ii)(D). The regulation at 8 C.F.R. § 214.2(l)(3)(v)(C)
allows the "new office" operation one year within the date of approval of the petition to support an executive
or managerial po sition . 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
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an
extension . In the instant matter, despite the claims of expected expansion and anticipation of hiring an
appraisals manager in the future, the petitioner has not reached the point that it can employ the beneficiary in
a predominantly managerial or executive position. For this additional reason the petition may not be
approved.
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only
if she shows that the AAO abused it discretion with respect to all of the AAO's enumerated grounds. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp . 2d 1025, 1043 (E.D .Cal. 2001), afJ'd. 345 F.3d 683
(9th Cir. 2003) .
The petition will be den ied for the above stated reasons , with each consider ed as an independent and
alternative basis for denial. In visa petition proce edings, the burden of proving .eligibility for the benefit
sought remains entirel y with the petitioner . Section 291 of the Act , 8 U .S.c. § 1361. Here, that burden has
not been met.
ORDER: ' The 'appeal is dismissed.