dismissed L-1A Case: Leather Business

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
43. Z 
File: WAC 07 175 50413 Office: CALIFORNIA SERVICE CENTER Date: 
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- 
obert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 07 175 50413 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (MO) on appeal. The MO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its general manager 
as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L). The petitioner is a limited liability company organized 
under the laws of the State of Nevada and is allegedly in the leather business. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the MO for review. On appeal, counsel to the petitioner asserts that the director 
erred and that the beneficiary's duties are primarily those of an executive. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. $ 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
WAC 07 175 50413 
Page 3 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 8 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 in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (a)(44)(B) of 
the Act, although counsel on appeal appears to limit the beneficiary to the executive classification. Given the 
lack of clarity, the AAO will assume that the petitioner is asserting that the beneficiary will be employed in 
either a managerial or an executive capacity and will consider both classifications. 
The petitioner describes the beneficiary's duties in the United States in an attachment to the Form 1-129 as 
follows: 
[The beneficiary is responsible for all1 administrative affairs and overall arrangement and 
WAC 07 175 50413 
Page 4 
planning concerning the sales on the US market; establishing company goals and policies; 
adjustment of the company's operational direction according to the actual market situation. 
The petitioner also submitted an organizational chart showing the beneficiary at the top of the organization 
supervising two employees in the United States (a customs, transportation, and warehousing employee and a 
"general clerk"). The beneficiary is also portrayed as supervising employees in China and three additional 
United States workers "to be recruited." 
On July 11, 2007, the director requested additional evidence. The director requested, inter alia, a more 
detailed organizational chart for the United States operation, which includes the names, positions, educational 
backgrounds, and job duties of all subordinate employees; a more detailed description of the beneficiary's 
proposed duties in the United States; quarterly wage reports; and the petitioner's United States tax returns. 
In response, the petitioner submitted quarterly wage reports indicating that the United States operation 
employed three people, including the beneficiary, during the quarter in which the instant petition was filed. 
The petitioner also submitted a document titled "US. Business Organizational Chart Duties in the United 
States," in which the beneficiary's duties are described as follows: 
rn 
 Provides strategic guidance and leadership to [the petitioner], overseeing all functions 
of the Nevada operation[;] 
rn 
 Provides the financial management for [the petitioner], establishes terms for sales 
contracts with buyers, prepares documents for Certified Public Accountant and 
reviews the resulting financial reports, and projects future monetary requirements for 
the company[;] 
rn 
 Serves as the Human Resources Manager, directly hiring, firing and supervising 
employees[;] 
rn 
 Develops marketing strategies, trains and supervises Marketing Department[; and] 
rn 
 Has total signature authority on all contracts, local/state/federal documents, contracts 
and financial accounts[.] 
In addition, the petitioner submitted a letter dated August 10, 2007 from Craft & Associates, a third party 
business consultant who opines that the beneficiary will be employed as both an executive and a "functional 
manager." The third party, who partly bases her opinion on the above job description, also indicates that the 
beneficiary's "mixed bag" of "functions" will include establishing terms for sales contracts; preparing 
documents for the accountant; reviewing financial reports; projecting "monetary requirements;" developing 
and implementing marketing and sales strategies; serving as a broker between the foreign employer and 
United States customers; developing "strategies;" setting "regulations and procedures;" and overseeing all 
operations in the United States. 
Finally, the petitioner submitted an organizational chart for the United States operation and job descriptions 
for the subordinate employees. The updated chart shows the beneficiary supervising a "contracted" 
accountant and two "marketing/sales representatives." The two subordinate employees are described as 
performing sales and marketing tasks. 
WAC 07 175 50413 
Page 5 
On September 11, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties are primarily those of an executive. 
Upon review, counsel's assertions are not persuasive. 
As a threshold matter, it must be noted that the more lenient criteria applicable to "new offices" set forth at 8 
C.F.R. 5 214.2(1)(3)(~) are not applicable to the instant petition. A "new office" is defined in part as "an 
organization which has been doing business in the United States through a parent, branch, affiliate, or 
subsidiary for less than one year." 8 C.F.R. 9 214.2(1)(l)(ii)(F). "Doing business" is defined in part as "the 
regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does 
not include the mere presence of an agent or office." 8 C.F.R. 9 214.2(1)(l)(ii)(H). Generally, if an office can 
be characterized as a "new office," a petitioner must establish, inter alia, that it will be able to support an 
executive or managerial position within one year and, consequently, is generally excused from establishing 
that a beneficiary will perform primarily executive of managerial duties immediately upon his or her 
employment in the United States. See 8 C.F.R. 5 214.2(1)(3)(v)(C). 
In this matter, the petitioner claims in the Form 1-129 that the beneficiary is coming to the United States to 
open a "new office." However, the petitioner is also seeking to continue the beneficiary's "previously 
approved employment without change," and to extend her stay in the United States. The record indicates that 
Citizenship and Immigration Services (CIS) previously approved a petition for the beneficiary as an L-1A 
nonimmigrant intracompany transferee filed by the same petitioner (WAC 05 204 53621). The validity 
period for that petition was October 12, 2005 until September 1, 2007. While it is not clear whether CIS 
applied the "new office" criteria in approving the earlier petition, the fact that an L-1A petition has already 
been approved for the United States operation, and the fact that the beneficiary is in the United States in L-1 
status working for the petitioner pursuant to this approved L-1A petition, renders the "new office" criteria 
inapplicable to the petitioner's operation even if it is currently not "doing business" as defined by the 
regulations. Counsel's argument that the petitioner has had a "slow start" due to "post 9/11 worldwide 
problems" will not permit the application of the more lenient "new office" criteria to an enterprise that has 
already been the subject of an approved L-1A petition. The L-1A nonimmigrant visa is not an entrepreneurial 
visa classification that would allow an alien a prolonged stay in the United States in a non-managerial or non- 
executive cqpacity to start up new businesses. The regulations allow for a one-year period for a business 
organization to commence doing business and develop to the point that it will support a managerial or 
executive position. By allowing petitions under the more lenient standard for organizations already approved 
under section 101(a)(15)(L) of the Act, CIS would in effect allow foreign entities to create under-funded, 
under-staffed, or even inactive companies in the United States, with the expectation that they could receive 
multiple extensions of their L-1 status without primarily engaging in managerial or executive duties. 
Accordingly, the more lenient "new office" criteria are not applicable to the instant petition, and consequently 
the petitioner must establish that the beneficiary will be employed in a primarily managerial or executive 
capacity in the United States as of the date the petition was filed. 
In view of the above, when examining the executive or managerial capacity of the beneficiary, the AAO will 
WAC 07 175 50413 
Page 6 
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. A petitioner cannot claim that 
some of the duties of the position entail executive responsibilities, while other duties are managerial. A 
petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager" and rely on 
partial sections of the two statutory definitions. Furthermore, in evaluating the beneficiary's duties and the 
organizational complexity of the United States operation, future hiring and business expansion plans may not 
be considered. A visa petition may not be approved based on speculation of future eligibility or after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Accordingly, 
the petitioner's claim that it will hire additional staff in the future is not relevant to determining whether the 
beneficiary will immediately perform qualifying duties. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will develop "strategies" and set 
"regulations and procedures." However, the petitioner fails to specifically define any of these strategies, 
regulations, or procedures, or to explain what, exactly, the beneficiary will do in "developing" marketing and 
sales strategies. Furthermore, vague managerial-sounding duties such as providing "strategic guidance and 
leadership," "overseeing all functions," having "signature authority," and overseeing all operations in the 
United States are not probative of the beneficiary actually performing qualifying duties. The fact that the 
petitioner has given the beneficiary a managerial or executive title and has prepared a vague job description 
which includes inflated job duties does not establish that the beneficiary will actually perform managerial or 
executive duties. Specifics are clearly an important indication of whether a beneficiary's duties are primarily 
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating 
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. 
Cir. 1990). 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). 
Likewise, the petitioner has failed to establish that any of the duties ascribed to the beneficiary will be bona 
fide managerial or executive duties. To the contrary, many of the duties ascribed to the beneficiary appear to 
be non-qualifying administrative or operational tasks which will not rise to the level of being managerial or 
executive in nature. For example, the petitioner asserts that the beneficiary will establish "terms for sales 
contracts with buyers," prepare documents for the accountant, review financial reports, and serve as a broker 
between the foreign employer and its United States customers. However, these duties appear to be basic 
sales, administrative, or operational tasks necessary to the provision of a service or the production of a 
product, and the petitioner has not explained how the marketinglsales representatives will relieve the 
beneficiary of the need to perform non-qualifying tasks. Finally, as the petitioner has failed to establish that 
the two subordinate employees will be supervisory, managerial, or professional employees (see infra), the 
supervisory and training functions ascribed to the beneficiary are non-qualifying, first-line supervisory tasks. 
Accordingly, it has not been established that the beneficiary will be "primarily" employed as a manager or an 
executive. An employee who "primarily" performs the tasks necessary to produce a product or to provide 
WAC 07 175 50413 
Page 7 
services is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise two rnarketinglsales representatives and a 
"contracted" accountant. However, the petitioner does not describe the marketinglsales representatives as 
having supervisory or managerial responsibilities. To the contrary, these employees are described as 
performing sales and marketing tasks. Furthermore, the intermittent "supervision" of a contracted certified 
public accountant in the context of his or her provision of professional services to the petitioner does not 
constitute the supervision and control of a professional employee. First, in order for the supervision of a 
professional to be qualifying, the professional must be an employee of the petitioner. See section 
101(a)(44)(A)(ii) of the Act, 8 U.S.C. 3 1101(a)(44)(A)(ii). Second, as the accountant is an intermittent 
independent contractor, it has not been established that the beneficiary will truly "supervise" the accountant. 
In order to be a supervisor, the employee must be shown to possess some significant degree of control or 
authority over the employment of a subordinate. See generally Browne v. Signal Mountain Nursery, L. P., 286 
F.Supp.2d 904, 907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy Thomas, Inc., 2007 WL 128287 at *16 (E.D. 
Tex. Jan. 1 1,2007)). 
In view of the above, the beneficiary would appear to be primarily a first-line supervisor of non-professional 
workers, the provider of actual services, or a combination of both of these non-qualifying roles. A managerial 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter 
of Church Scientology International, 19 I&N Dec. at 604. As the petitioner failed to establish the skills or 
education required to perform the duties of the subordinate positions, the petitioner has not established that 
the beneficiary will manage professional employees.' Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in a managerial capacity. 
Finally, the petitioner has failed to establish that the beneficiary will manage 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 101(a)(44)(A)(ii) of the Act. The term "essential function" is 
not defined by statute or regulation. If a petitioner claims that the beneficiary is managing an essential 
1 
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 5 1101(a)(32), states that "[tlhe termprofession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
WAC 07 175 50413 
Page 8 
function, the petitioner must furnish a written job offer that clearly describes the duties to be performed in 
managing the essential function, i.e., identify the function with specificity, articulate the essential nature of 
the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential 
function. See 8 C.F.R. § 214.2(1)(3)(ii). In addition, the petitioner's description of the beneficiary's daily 
duties must demonstrate that the beneficiary manages the function rather than performs the duties related to 
the function. 
In this matter, the petitioner has not established that the beneficiary will manage an essential function of the 
organization. The petitioner's vague job description fails to document that the beneficiary's duties will be 
primarily managerial. Also, as explained above, the record indicates that the beneficiary will primarily be a 
first-line supervisor of non-professional employees and/or will perform non-qualifying operational or 
administrative tasks. Absent a clear and credible breakdown of the time spent by the beneficiary performing 
her duties, the AAO cannot determine what proportion of her duties will be managerial, nor can it deduce 
whether the beneficiary will primarily perform 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). In view of the size and nature of the petitioner's 
purported business, it appears that the beneficiary will more likely than not perform the tasks related to her 
"function" rather than tmly "manage" the function. See generally Family, Inc. v. US. Citizenship and 
Immigration Services, 469 F.3d 13 13, 13 16 (9t" Cir. 2006). 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. The job description provided for the 
beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day basis. 
Moreover, as explained above, it appears that the beneficiary will be primarily employed as a first-line 
supervisor and will perform the tasks necessary to produce a product or to provide a service. Therefore, the 
petitioner has not established that the beneficiary will be employed primarily in an executive capacity. 
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 5 101(a)(44)(C) of 
the Act. However, in reviewing the relevance of the number of employees a petitioner has, federal courts 
have generally agreed that CIS "may properly consider an organization's small size as one factor in assessing 
whether its operations are substantial enough to support a manager." Family, Inc. v. US. Citizenship and 
Immigration Services, 469 F.3d at 1316 (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 178 
(D.C. Cir. 1991); Fedin Bros. Co. v. Suva, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data Consulting, 
WAC 07 175 50413 
Page 9 
Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, 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. 2001). Finally, 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, 8 U.S.C. 9 1101(a)(44). 
As discussed, supra, the petitioner has not established this essential element of eligibility. 
Accordingly, in this matter, the petitioner has failed to establish that the beneficiary will primarily perform 
managerial or executive duties, and the petition may not be approved for that reas~n.~ 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary was employed abroad 
for at least one continuous year in a position that was managerial or executive in nature. 8 C.F.R. $8 
2 14.2(1)(3)(iii)-(iv). 
Upon review, the petitioner failed to specifically describe the beneficiary's job duties abroad. Specifics are 
clearly an important indication of whether a beneficiary's duties were 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, afd, 905 F.2d 41. Furthermore, the petitioner failed to describe the 
duties of the beneficiary's purported subordinates abroad, if any. Absent detailed descriptions of the duties of 
both the beneficiary and her purported subordinates, it is impossible for CIS to discern whether the 
beneficiary was "primarily" engaged in performing managerial or executive duties abroad. See sections 
10 1 (a)(44)(A) and (B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or 
executive capacity for one continuous year in the three years preceding the filing of the petition, and the 
petition may not be approved for this reason. 
Beyond the decision of the director, the petitioner has failed to establish that it and the foreign employer are 
qualifying organizations. 
2 
It is noted that, on appeal, counsel cites an unpublished AAO opinion in support of his contention that the 
beneficiary will primarily be employed as an executive. However, counsel's reliance on this decision is 
misplaced. First, counsel has furnished no evidence to establish that the facts of the instant petition are 
analogous to those in the unpublished decision. Second, while 8 C.F.R. 8 103.3(c) provides that AAO 
precedent decisions are binding on all CIS employees in the administration of the Act, unpublished decisions 
are not similarly binding. Third, as explained above, the petitioner has not established that the beneficiary 
will primarily be employed in an executive or managerial capacity. This is paramount to the analysis, and a 
beneficiary may not be classified as a manager or an executive if he or she is not primarily performing 
managerial or executive duties regardless of the number of people employed by the petitioner. Therefore, as 
the petitioner has not established this essential element, the unpublished AAO decision would be irrelevant 
even if it were binding or analogous. 
WAC 07 175 50413 
Page 10 
The regulation at 8 C.F.R. 9 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, 
or other legal entity which "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" and "is or will be doing 
business." "Subsidiary" is defined in pertinent part as a corporation "of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity." 8 C.F.R. 9 214.2(1)(l)(ii)(K). "Doing business" is 
defined in part as "the regular, systematic, and continuous provision of goods andlor services." 8 C.F.R. 9 
214.2(1)(1)(ii)(H). 
In this matter, the petitioner asserts in the Form 1-129 that the foreign entity owns 100% of the petitioner's stock. 
However, the record contains a serious inconsistency which undermines this claim. Schedule K to the petitioner's 
2006 tax return (Form 1065) indicates that the petitioner is 100% owned by the beneficiary. This averment is 
reinforced by representations made in the beneficiary's 2006 individual tax return, which was also submitted for 
the record. The petitioner offers no explanation for this fundamental inconsistency in the record which 
undermines its claim to be owned and controlled by the foreign entity. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
Furthermore, the record is devoid of evidence of the petitioner doing business. The record does not contain 
any evidence establishing that the petitioner is engaged in the regular, continuous, and systematic provision of 
goods and/or services. All invoices and other business documents appear to pertain solely to the foreign 
employer. Moreover, the petitioner's 2006 tax return reported no revenue or income. Finally, the record is 
not persuasive in establishing that the petitioner maintains a place of business. The lease submitted by the 
petitioner lists the beneficiary as the lessee, not the petitioner. It appears that the petitioner is, at most, a mere 
agent of the foreign employer in the United States and is not engaged in the regular, systematic, and 
continuous provision of goods andlor services. 
Accordingly, the petitioner has not established that it and the foreign entity are qualifying organizations. For 
this additional reason, the petition may not be approved. 
The previous approval of an L-1A petition does not preclude CIS from denying an extension based on a 
reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any 
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent 
petition. See section 291 of the Act, 8 U.S.C. 9 1361. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
WAC 07 175 50413 
Page 11 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.