dismissed L-1A Case: Jewelry

identifying data deleted to 
prevent cl~--ly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
Petition: 
 Petition for a Nonirnrnigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative App 
0 
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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 AAO will dismiss the 
appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its product marketing 
specialist 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. fj 1101(a)(15)(L). The petitioner is a California 
corporation engaged in the importation and wholesale of finished jewelry. It claims to be a subsidiary of 
located in Mumbai, India. The beneficiary was initially granted a one-year 
period of stay in L-1A status in order to open an new office in the United States and subsequently received a 
two-year extension of stay. The petitioner now seeks to extend the beneficiary's status for three years. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a managerial or executive capacity. The director also addressed 
inconsistencies in the evidence submitted by the petitioner to establish the existence of a qualifying 
relationship with its claimed parent company, but did not ultimately deny the petition on these additional 
grounds. 
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 for the petitioner asserts that the evidence 
of record establishes that the beneficiary will be employed in both a managerial and executive capacity. 
Counsel contends that the director performed only a cursory analysis of the evidence submitted with the 
petition and in response to the request for evidence, based his conclusions on speculation, and placed undue 
emphasis on the number of employees supervised by the beneficiary. Counsel briefly addresses the issue of 
the petitioner's qualifying relationship with its claimed parent company, asserting that the director placed 
excessive weight on information contained in the petitioner's corporate income tax returns. Counsel submits 
a brief in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10l(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. fj 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. 
WAC 05 020 50652 
Page 3 
(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 hider 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 primary issue in this matter is whether the beneficiary will be employed by the United States entity in a 
primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 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 
(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; 
WAC 05 020 50652 
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(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 October 28, 2004. On the Form 1-129 petition the petitioner described the 
beneficiary's duties during the previous three years as follows: 
As marketing executive, the alien was responsible for designing strategies [and] test plans to 
increase website traffic, sales, customer lifetime value [and] average order size. He has 
developed marketing programs, identified and assembled marketing information and contact 
management. 
The petitioner indicated that the beneficiary's duties under the extended petition would be to continue "to 
create and implement strategic marketing plan, using established market and competitive research 
techniques and analysis; he will continue to develop objectives, programs, and procedures for marketing 
activities." 
In an October 18, 2004 letter, the petitioner provided the following description of the beneficiary's duties as 
a product marketing specialist: 
(60%) Direct creative development and implementation of seasonal advertising and 
promotional programs, including all marketing collateral materials, displays and 
point of sale materials, through the use of in-house designer and out-source vendors. 
Direct execution of marketing materials associated with product line rollout. 
(20%) Create and implement a strategic marketing plan using established market and 
competitive research techniques and analysis. Develop objectives, programs, and 
procedures for marketing activities. Prepare marketing budgets and monitor 
performance against these numbers. 
(10%) Conduct seasonal promotion review, evaluation and provide reports of work progress 
to the President. Manage scheduled mailings for all marketing programs. 
(5%) Coordinate with management for the hiring of additional personnel for his 
department when a need arises. 
(5%) 
 Special projects as assigned by the Chief Executive Officer. Such as the development 
and implementation of a marketing system that will be available to the marketing 
staff of the company at the conclusion of his period of stay. 
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The petitioner stated that it employed four people, including the beneficiary, and submitted an organizational 
chart depicting a president and vice president over five departments, including quality control, computer 
datalentry, finance and accounting, sales and marketing, and importlexport. The beneficiary is identified as 
the product marketing specialist in the sales and marketing department. According to the chart, the 
department will also include a customer service representative, an advertising coordinator, a public relations 
representative, and a marketing representative. Although the chart shows a total of approximately 13 
positions in the company, only the president and the beneficiary are identified by name. 
The petitioner also submitted its California Forms DE-6, Quarterly Wage and Withholding Report, for the 
first three quarters of 2004. At the end of the September 2004, the petitioner reported four employees 
including the beneficiary, the president and two other employees who were not identified on the 
organizational chart. The Forms DE-6 show that the beneficiary was the petitioner's sole employee during 
the first eight months of 2004. 
On November 4, 2004, the director issued a request for evidence, in part, instructing the petitioner to submit 
the following: (1) an organizational chart including the names and job titles of all executives, managers and 
supervisors, and all employees under the beneficiary's supervision, as well as a brief description of their job 
duties, educational level, and annual salaries and wages; and (2) evidence that the beneficiary 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. 
In a letter dated January 24,2005, the petitioner provided the following response to the director's request for 
evidence that the beneficiary would be employed in a managerial capacity: 
[The beneficiary] is currently performing the duties of both vice-presidentlmarketing 
executive, which is [an] executive level position. Our company realizes that merely using the 
title vice-president does not qualify one to be an executive; however, [the beneficiary] 
actually performs the duties of a vice-president besides working as a marketing executive. 
As vice-presidentlmarketing executive of the U.S. company, [the beneficiary] has ultimate 
control over the enterprise's overall operation and establishment and direction. He will 
establish policies for the enterprise and has authority to hire and fire staffs. 
In addition, [the beneficiary] is responsible for making discretionary decisions and setting 
policies for business operations, and supervising high level employees. He will formulate 
both short-term and long-term goals. [The beneficiary] will carry out special duties with 
regard to operation of the company as delegated by the company president. [The beneficiary] 
will directly report to the president. 
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Moreover, [the beneficiary] will take over duties and responsibilities in lieu of the company 
president during the president's absence. He will prepare a final report of the year's activities 
of the company. His responsibility also include[s] recommendations for the following year. 
The petitioner indicated that it had recently hired two additional employees and anticipated hiring more 
employees as the business grows. The petitioner submitted a revised organizational chart depicting the 
beneficiary as vice presidenumarketing analyst, supervising a sales manager, office manager, and a finance 
and account employee. The office manager is shown over a production and diamond assortment employee 
and an accounts receivable and accounts payable employee. The employees identified as "office manager" 
and "finance and account" were reported on the petitioner's quarterly wage report for the third quarter of 
2004. 
With respect to the beneficiary's direct subordinates, the petitioner indicated that the office manager has a 
bachelor's degree, takes care of "all basic office needs," takes care of walk in customers, and has authority 
to hire employees and order stock from overseas vendors. The petitioner stated that the "finance and 
account" employee has a master's degree in finance and "is in charge of total finances," takes care of 
account receivables, oversees billing, and assists the petitioner's certified public accountant. 
The director denied the petition on February 11, 2005, concluding that the petitioner had not established that 
the beneficiary would be employed in a managerial or executive capacity. The director noted the significant 
revisions made to the beneficiary's job description in response to the request for evidence, and noted that the 
petitioner merely paraphrased the statutory definitions of managerial and executive capacity in the second 
iteration of the beneficiary's job duties. The director further observed that despite the five subordinates 
shown on the second organizational chart, the beneficiary supervised only two employees at the time the 
petition was filed. The director determined that many of the beneficiary's described duties would be tasks 
necessary to provide a service or produce a product and could not be considered managerial or executive 
duties. Finally, the director found that the petitioner had failed to establish that the beneficiary would 
supervise a staff of managerial, supervisory or professional employees, and determined that the beneficiary 
would be required to perform the majority of the day-to-day business activities of the company. 
On appeal, counsel refers to the beneficiary variously as the petitioner's president, product marketing 
specialist, and vice president/product marketing specialist, and asserts that the petitioner submitted sufficient 
evidence to establish that the beneficiary will be employed in a both a managerial and an executive capacity. 
With respect to the beneficiary's employment in a managerial capacity, counsel asserts that the director 
erroneously concluded that the beneficiary's responsibilities, specifically related to marketing, are tasks 
necessary to produce a product or provide a service. Counsel contends that "these job duties are, however, 
beyond those engaged by an employee engaging in primary tasks to justify denial of said Petition. 
Consequently, Petitioner has been precluded from hiring its professional staff in the United States until 
Beneficiary has been transferred to the U.S. subsidiary." 
Counsel also asserts that the director engaged in speculation by concluding that the beneficiary would be 
required to perform all the day-to-day business activities of the petitioner based on a lack of subordinate 
staff, and contends that the record contains "ample evidence of organizational complexity to warrant having 
WAC 05 020 50652 
Page 7 
the beneficiary perform executive duties." In support of this assertion, counsel emphasizes the petitioner's 
gross sales of nearly four million dollars, stating that the petitioner's tax return establishes that "this is a 
sophisticated and complex business operation." 
Referring to the beneficiary's role as "Vice President/Product Marketing Specialist," counsel states that the 
beneficiary also meets the criteria for executive capacity, claiming that he will direct the management of a 
major component of the petitioner's organization. Counsel disputes the director's observation regarding the 
disparate information provided in the petitioner's initial organizational chart and that provided in response to 
the director's request for evidence, and asserts that "this variation is nothing more than an exercise in 
semantics and not a basis to deny the instant application." Counsel contends that the record verifies that the 
beneficiary will establish the goals and policies of the company and exercise wide latitude in discretionary 
decision making. 
Finally, counsel provides an overview of the petitioner's expansion plans and asserts that the director should 
not have adjudicated the petition "based solely on the fact that [the] Beneficiary currently supervises two 
employees." Counsel contends that the director was required to review the totality of the petitioner's 
business operations and consider the gross revenues achieved under the beneficiary's "executive capacity." 
Upon review, counsel's assertions are not persuasive. 
 The petitioner has not established that the 
beneficiary's duties for the petitioner will be primarily managerial or executive. 
 Preliminarily, the AAO 
will address the petitioner's response to the director's request for additional evidence to establish that the 
beneficiary will be employed in a managerial or executive capacity. As noted by the director, the petitioner 
initially identified the beneficiary's position as a product marketing specialist, provided a description of his 
job duties which clearly relates only to the petitioner's marketing activities, and submitted an organizational 
chart identifying his role as a product marketing specialist reporting to an un-staffed vice president position, 
which would in turn report to the president of the company. It appears that the petitioner employed two other 
employees, but they were not identified on the organizational chart, nor was there any other indication that 
the beneficiary would supervise them. 
In its response to the director's request for further evidence regarding the petitioner's employees and 
organizational structure, the petitioner elevated the beneficiary to the role of "vice presidentlmarketing 
executive" and stated that he "has ultimate control over the enterprise's overall operation and establishment 
and direction" including authority to establish policies, develop short-term and long-term goals for the 
company, and supervise "high level employees." The petitioner submitted a new organizational chart 
depicting the beneficiary supervising a total of five employees. Essentially, the petitioner initially indicated 
that the beneficiary would manage a component of the petitioning organization, and, in response to the 
director's request, indicated he would serve as an executive exercising discretionary authority over the entire 
company. On appeal, counsel refers to these material changes as "a variation" and an "exercise in 
semantics," noting that it is common for companies to have more than one vice president position. However, 
the AAO notes that the petitioner did not simply alter the beneficiary's job title, but instead dramatically 
revised his job duties and greatly elevated his level of authority within the company. 
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The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for 
the benefit sought has been established. 8 C.F.R. 3 103.2(b)(8). When responding to a request for evidence, 
a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, its level of 
authority within the organizational hierarchy, or its associated job responsibilities. The petitioner must 
establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
If significant changes are made to the initial request for approval, the petitioner must file a new petition 
rather than seek approval of a petition that is not supported by the facts in the record. The information 
provided by the petitioner in its response to the director's request for further evidence did not clarify or 
provide more specificity to the original duties of the position or clarify the petitioner's organizational 
structure as of the date of filing, but rather, inexplicably elevated his role within the company to that of a 
chief executive with job duties paraphrased from the statutory definition of executive capacity, 
notwithstanding the fact that the petitioner already employs a president. Therefore, the analysis of the 
beneficiary's duties will be based on the job description and organizational chart submitted with the initial 
petition. 
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. 3 214.2(1)(3)(ii). The petitioner's description of the 
job duties must clearly describe the duties to be performed by the beneficiary and indicate whether such 
duties are either in an executive or managerial capacity. Id. 
In the instant matter, the petitioner asserts that the beneficiary is primarily engaged in both managerial duties 
and executive duties. To sustain such an assertion, the petitioner must establish that the beneficiary meets 
each of the four criteria set forth in the statutory definition for executive duties under section 101(a)(44)(B) 
of the Act, and the statutory definition for managerial duties under section 101(a)(44)(A) of the Act. At a 
minimum, the petitioner must establish that the beneficiary is primarily employed in one or the other 
capacity. See 8 C.F.R. 3 214.2(1)(3)(ii). 
The job description submitted with the initial petition does not sufficiently demonstrate that the beneficiary's 
tasks are the high-level responsibilities that are specified in the definitions of managerial or executive 
capacity. For example, the petitioner stated that the beneficiary's primary responsibilities, which account for 
60 percent of his time, include responsibility to "direct creative development and implementation" of all 
marketing and advertising materials through the use of an "in-house designer" and vendors and "direct 
execution of marketing materials associated with product line rollout." However, the petitioner has not 
established that it actually employs an "in-house designer," which raises questions as to whether the 
beneficiary actually "directs" the creation of marketing materials, or performs these duties himself. Further, 
without additional explanation, the AAO cannot determine what specific tasks the beneficiary would 
perform to engage in "direct[ing] execution" of marketing materials and therefore cannot determine whether 
this responsibility would entail qualifying managerial or executive responsibilities. 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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), ard, 905 F.2d 41 (2d. Cir. 1990). 
 Therefore, the 
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beneficiary's duties associated with the development and implementation of marketing materials cannot be 
considered to be primarily qualifying managerial or executive duties. 
The petitioner indicated that the beneficiary allocates an additional 20 percent of his time to "creat[ing] and 
implementing a strategic marketing plan using established market and competitive research techniques and 
analysis," and "develop[ing] objectives, programs, and procedures for marketing activities," and 10 percent 
of his time to "conduct[ing] season promotional review, evaluation and provid[ing] reports to the President, 
and "manag[ing] scheduled mailings for all marketing programs. The petitioner did not, however, define the 
beneficiary's "objectives" and "programs" or indicate how or through whom the beneficiary "manages" 
scheduled mailings and what qualifying duties this would entail. Furthermore, the job description provided 
on the 1-129 petition indicated that the beneficiary designs strategies and test plans to increase website 
traffic, sales, and customer lifetime value, and identifies and assembles marketing information, duties which 
appear to be more akin to those of a marketing analyst than those of an employee who manages the 
petitioner's marketing activities. 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). 
Therefore, although the petitioner provided a breakdown of how the beneficiary's time will be allocated, the 
petitioner has failed to establish any clear distinctions between the proposed qualifying and non-qualifying 
duties of the beneficiary. As discussed further below, the petitioner employed only three employees other 
than the beneficiary as of the date of filing. There is no mention in the record of any other employees who 
perform any duties related to the petitioner's marketing function, other than the beneficiary. Collectively, 
this brings into question how much of the beneficiary's time can actually be devoted to managerial or 
executive duties associated with the petitioner's marketing activities. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary perfoms the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must show 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), 199 1 WL 144470 (9th Cir. July 30, 199 1). The test is basic to ensure that a person not only has the 
requisite authority, but that a majority of his or her duties are related to operational or policy management, 
not to the supervision of lower-level employees, performance of the duties of another type of position, or 
other involvement in the operational activities of the company. 
The record suggests that the beneficiary likely exercises oversight over the petitioner's marketing function 
by preparing the marketing budget and developing strategies. However, as the sole employee charged with 
performing any marketing duties, it is reasonable to assume, and has not been shown otherwise, that the 
beneficiary is performing all other marketing functions, including conducting market research, devising 
marketing plans, contacting advertisers, and performing any public relations tasks. Such a conclusion is 
supported by the petitioner's initial organizational chart, which shows the beneficiary as a staff employee, 
with no subordinates, and identifies open positions for an advertising coordinator, a public relations 
representative and marketing representative in the petitioner's sales and marketing department. Based on 
the record of proceeding, the beneficiary's job duties are principally composed of non-qualifying duties that 
WAC 05 020 50652 
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preclude him from functioning in a primarily managerial or executive role. Again, 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. 
at 604. The petitioner has failed to show that non-qualifying duties will not constitute the majority of the 
beneficiary's time. 
Counsel asserts on appeal that CIS "should not adjudicate this Petition based solely on the fact that the 
Beneficiary currently supervises two employees," but instead should look at the "totality of the business 
operations." Upon review, the director did not deny the petition based solely on the number of employees 
supervised by the beneficiary. The director reviewed the job description submitted with the initial petition, 
which included a number of non-managerial duties, and also observed that the petitioner did not employ 
other employees to perform the marketing activities that the petitioner claimed he "managed." 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 denying a visa to a multinational manager or executive. 
See 4 10 1 (a)(44)(C) of the Act, 8 U.S.C. 4 1 10 1 (a)(44)(C). However, it is appropriate for CIS to consider 
the size of the petitioning company in conjunction with other relevant factors, such as a company's small 
personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). 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. 
At the time of filing, the petitioner was a five-year-old import company that claimed to have a gross annual 
income of nearly $4 million. The firm employed a president, the beneficiary, as a product marketing 
specialist, and two other employees later identified as an office manager and account and finance employee. 
The petitioner did not submit evidence that it employed any subordinate staff members who would perform 
many of the actual day-to-day, non-managerial operations of the company, including, most conspicuously, 
routine marketing, sales, purchasing and import-related duties. Based on the petitioner's representations, it 
does not appear that the reasonable needs of the petitioning company might plausibly be met by the services 
of the beneficiary, a president, an office manager performing primarily administrative duties, and an 
accounting and finance employee. 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) or the Act. As discussed 
above, the petitioner has not established this essential element of eligibility. 
The petitioner claims that the company hired additional employees subsequent to the filing of the petition, 
and indicates that it intends to expand its operations and hire additional employees in the future. In addition, 
counsel asserts on appeal that the petitioner "has been precluded from hiring its professional staff in the 
United States until Beneficiary has been transferred to the U.S. subsidiary." In light of the fact that the 
beneficiary had been employed by the petitioner in the United States for three years at the time the petition 
was filed, this assertion is not persuasive. Evidence of hiring that occurred subsequent to the filing of the 
petition, or assertions that the company anticipates an expansion in its staffing or operations in the future 
WAC 05 020 50652 
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cannot be considered in this proceeding. 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). 
In this matter, the petitioner has not demonstrated that the beneficiary will be primarily supervising a 
subordinate staff of professional, managerial, or supervisory personnel. See section 101(a)(44)(A)(ii) of the 
Act. The organizational chart submitted with the initial petition did not show any employees who would 
work under the beneficiary's supervision. Furthermore, the petitioner has not established that it employs a 
staff that will relieve the beneficiary from performing non-qualifying duties associated with the petitioner's 
marketing function so that the beneficiary may primarily engage in managerial duties. The record is not 
persuasive that the beneficiary will function at a senior level within an organizational hierarchy or manage 
an essential function of the company. Based on the evidence furnished, it cannot be found that the 
beneficiary will be employed in a qualifying managerial capacity as defined at section 101(a)(44)(A) of the 
Act., 8 U.S.C. 9 1101(a)(44)(A). Even though it appears that the enterprise is in a preliminary stage of 
organizational development nearly five years after its establishment, the petitioner is not relieved from 
meeting the statutory requirements. 
Nor has the petitioner substantiated its claim that the beneficiary would be employed in an executive 
capacity. The statutory definition of the term "executive capacity" focuses on a person's elevated position 
within a complex organizational hierarchy, including major components or functions of the organization, 
and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 
1101(a)(44)(B). Under the statute, a beneficiary must have the ability to "direct the management" and 
"establish the goals and policies" of that organization. Inherent to the definition, the organization must have 
a subordinate level of managerial 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-operations of the enterprise. 
An individual will not be deemed an executive under the statute simply because they have an executive title 
or because they "direct" the enterprise as the owner or sole managerial employee. The beneficiary must also 
exercise "wide latitude in discretionary decision making" and receive only "general supervision or direction 
from higher level executives, the board of directors, or stockholders of the organization." Id. The position 
offered to the beneficiary, as described in the initial filing, did not meet any of the criteria for employment in 
an executive capacity. 
Based on the foregoing discussion, the petitioner has not established that the beneficiary will be employed in 
a qualifying managerial or executive capacity under the extended petition. For this reason, the appeal will be 
dismissed. 
The AAO will also address the issue of whether the petitioner established the existence of a qualifying 
relationship between the United States and foreign entities as required by 8 C.F.R. 3 214.2(1)(3)(i). In his 
decision, the director observed deficiencies and inconsistencies in the evidence submitted to substantiate the 
claimed parent-subsidiary, and counsel briefly addresses the director's observations on appeal. Upon review 
of the evidence submitted, the petitioner has not demonstrated that it has a qualifying relationship with its 
claimed foreign parent company. 
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Page 12 
The pertinent regulations at 8 C.F.R. $ 2 14.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzfiing organization means 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)(l)(ii) of this section; 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) 
 Branch means an operating division or office of the same organization housed in a 
different location. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which 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. 
On the L classification supplement to Form 1-129, the petitioner indicated that the foreign entity, 
owns 5 1 percent of the petitioner's stock, with the remainder of the stock 
petitioner's presi ent, 
- I 
. The petitioner submitted its articles of incorporation, dated October 13, 
1999, which indicate tha 
 e company is authorized to issue one hundred thousand shares of stock of no par 
A - 
value, and copies of two stock certificates. Stock certificate number two for 9,800 shares was issued tom 
October 31, 1999. The certificate states on its face that the petitioner is authorized to issue 1 000 
shares of common stock. 
 Stock certificate number three for 10,200 shares was issued tom1 
October 3 1, 2000. The certificate has been altered to show that the petitioner is 
authorized to issue 100,000 shares of common stock. 
The petitioner also provided its 2002 and 2003 IRS Forms 1120, U.S. Co oration Income Tax Return, 
which both show at Schedule E and at Schedule K line 5 that the wns 100 percent of the 
company's stock. The value of the company's common stock is stated as $208,160 at Schedule L, Line 22, 
on both years' tax returns. 
Finally, the petitioner submitted minutes of a meeting of the board of directors of the foreign entity dated 
March 13,2000, in which the foreign entity's board resolved to enter into a joint venture with the petitioning 
WAC 05 020 50652 
Page 13 
company "by investing US $1.02 laos in the equity of the company." The resolution indicates that the 
foreign entity's chairman and managing director would serve as directors.in the "joint venture" in which 5 1 
percent of the shares would be held by the foreign entity. 
In his November 4, 2004 request for evidence, the director noted that the petitioner's Forms 1120 identify 
the petitioner's president as its sole owner and requested additional evidence to clarify the inconsistency and 
to substantiate the claimed parent-subsidiary relationship between the petitioner and the foreign entity. The 
director specifically requested: (1) the petitioner's articles of incorporation that have been date stamped by 
the appropriate state official; (2) copies of all stock certificates (front and back) issued to the present date; 
(3) a copy of the U.S. company's stock ledger showing all stock certificates issued to the present date 
including total shares of stock sold, names of shareholders, and purchase price; (4) a copy of the U.S. 
company's Notice of Transaction Pursuant to Corporations Code Section 25 102(f) showing the total offering 
amounts; and (5) evidence that the parent company has paid for its interest in the U.S. company in the form 
of copies of original wire transfers from the parent company, canceled checks, deposit receipts, etc. detailing 
monetary amounts for the stock purchase. 
In response, the petitioner claimed that the foreign entity owns 51 percent of its stocks, and submitted a 
letter from its accountant who stated: "It has been brought to our attention that ownership of [the petitioning 
company] has been erroneously reported on Schedule E, Form 1120. =a foreign parent company) 
owns 5 1 % andms 49%." The petitioner submitted a bank statement dated November 30,2000, 
and highlighted receipt of a wire transfer from "-' in the amount of $101,980 on November 
1, 2000. The petitioner also provided a Notice of Transaction Pursuant to Corporations Code Section 
25102(f), which shows an offering of $101,980 in exchange for money. The Notice of Transaction is not 
dated. 
The petitioner resubmitted a copy of stock certificate number two for 9,800 shares issued to 
 on 
October 31, 1999. The petitioner submitted a copy of stock certificate number one issued to the foreign 
entity on October 31, 1999. This stock certificate indicates on its face that it is authorized to issue 1,000 
shares of common stock. The petitioner did not re-submit the previously provided stock certificate number 
three issued to the foreign entity for the same number of shares, and dated exactly one year later. The 
petitioner's stock transfer ledger indicates that the foreign entity purchased 10,200 shares for $10 1,980 on 
October 3 1, 1999, and -based 9,800 shares for 98,000 on October 3 1, 1999. 
In his February 11, 2005 decision, the director acknowledged receipt of the letter from the petitioner's 
accountant regarding the claimed error on the petitioner's tax returns. The director noted that the petitioner 
had failed to provide evidence of an attempt to correct the oversight with the Internal Revenue Service, but 
did not specifically enter a determination that the petitioner had failed to establish the claimed qualifying 
relationship. 
On appeal, counsel for the petitioner asserts that the director "places far too much weight on the listing of 
as 100% owner of the U.S. entity on Schedule E of the Form 1120," and failed to consider the 
other evidence submitted to demonstrate that the foreign entity owns a majority interest in the petitioner. 
WAC 05 020 50652 
Page 14 
Upon review, 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 discrepancies noted with respect to the petitioner's income tax returns, the petitioner's stock 
certificates alone were not sufficient to establish the claimed parent-subsidiary relationship between the 
petitioner and the foreign entity. The regulations specifically allow the director to request additional 
evidence in appropriate cases. See 8 C.F.R. ?j 214.2(1)(3)(viii). As ownership is a critical element of this visa 
classification, the director may reasonably inquire beyond the issuance of paper stock certificates into the 
means by which stock ownership was acquired. As requested by the director, evidence of this nature should 
include documentation of monies, property, or other consideration fmished to the entity in exchange for 
stock ownership. Additional supporting evidence would include stock purchase agreements, subscription 
agreements, corporate by-laws, minutes of relevant shareholder meetings, or other legal documents 
governing the acquisition of the ownership interest. 
There are several inconsistencies and unexplained discrepancies in the petitioner's evidence that prohibits a 
conclusion that the foreign entity is the majority shareholder of the U.S. company. First, as noted by the 
director, the petitioner did not adequately resolve the discrepancy found in the petitioner's 2002 and 2003 
income tax returns at Schedules E and K, which indicate that the company is wholly owned by an individual. 
The petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and objective 
evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). As discussed below, the evidence submitted 
to establish the foreign entity's purchase of the petitioner's stock and resulting ownership interest in the 
petitioner is not credible. Further, it was reasonable for the director to expect the petitioner to make a good 
faith effort to correct the acknowledged errors by filing amended tax returns with the Internal Revenue 
Service. There is no evidence that the petitioner has subsequently done so. 
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Page 15 
Although the petitioner submitted a Notice of Transaction and evidence that it received a wire transfer from 
the foreign entity, the AAO notes that the Notice of Transaction is not dated and identifies the 
issuer, leading the AAO to question its validity. The petitioner did not provide a copy of the original wire 
transfer from the foreign entity or evidence of stock purchase agreements as requested by the director. 
Again, going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. at 165. The record contains a board 
resolution from the foreign entity referencing a joint venture with the petitioner and intent to invest in the 
U.S. company, but the record does not contain a joint venture agreement, board resolutions, or any other 
documents referencing the stock purchase by the foreign entity. Without additional supporting 
documentation, the AAO cannot conclude that the wire transfer that appears on the petitioner's bank 
statement was related to the purchase of the petitioner's stock. 
Finally, most damaging to the petitioner's claims is its submission of copies of two different stock 
certificates purportedly issued to the foreign entity. As noted above, the petitioner initially submitted a copy 
of stock certificate number three issuing 10,200 shares to the foreign entity on October 31, 2000. In 
response to the director's request for evidence, the petitioner submitted its stock certificate number one 
issued to the foreign entity on October 31, 1999, and a stock transfer ledger indicated that only two 
certificates had been issued, to the foreign entity and toon October 31, 1999. 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, supra. In light of the fact that the 
petitioner submitted a board resolution from the foreign entity indicating that it agreed to invest in the 
petitioning company in March 2000, and claims to have received payment for the stocks issued in November 
2000, the stock certificate and stock transfer ledger indicating that the foreign entity was an original 
shareholder in the petitioning company when it was formed in October 1999 is not credible. 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, 19 I&N Dec. 582, 591 (BIA 
1988). 
In order to determine whether a qualifying relationship exists, the AAO must examine the number of shares 
of stock issued by the petitioner, the ownership of that stock, and the resulting percentage ownership of the 
U.S. petitioner. The AAO notes that the foreign entity is a publicly traded Indian company with a published 
annual report. The foreign entity's 2003-2004 annual report does not reference the petitioner among its 
subsidiaries or related parties. The petitioner has not provided credible evidence of the number of shares 
issued or the ownership of those shares, and has thus not established the claimed parent-subsidiary 
relationship between the foreign and U.S. entities. 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), afd. 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). 
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Page 16 
The AAO notes that CIS previously approved L-1A nonimmigrant petitions filed on behalf of the 
beneficiary. Each nonimmigrant petition has a separate record of proceeding with a separate burden of 
proof; each individual petition must stand on its own merits. See 8 C.F.R. § 103.8(d). The prior approvals 
do not preclude CIS from denying an extension of the original visa based on reassessment of 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, 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). 
Based on the lack of evidence of eligibility in the current record, the AAO finds that the director was 
justified in departing from the prior approvals and denying the instant petition requesting an extension of the 
beneficiary's status. The director is instructed to review the prior nonimrnigrant petition approval for 
revocation pursuant to 8 C.F.R. 
 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. 1361. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed.