dismissed L-1A Case: Manufacturing

identifyingdatadeletedto
prevent clearlyUIIW~
invasionofpersonalpnveay
U.s. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLiC CU¥'i
File: SRC 05 169 50877 Office: TEXAS SERVICE CENTER Date: AUG 06 2007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § lI0l(a)(l5)(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.
R~e~ief
Administrative Appeals Office
www.uscis.gov
SRC 05 169 50877
Page 2
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of
international sales manager to open a new office in the United States as an L-IA nonimmigrant intracompany
transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(l5)(L). The petitioner, a limited liability company organized under the laws of the State of Texas,
claims to be engaged in the sale and manufacture of wooden doors and alleges that it is the subsidiary of
Puertas Finas de Madera Montealban, S.A. de C.V., located in Oaxaca, Mexico.
The director denied the petition concluding that the petitioner failed to demonstrate (1) that sufficient physical
premises to house the new office have been secured; (2) that the intended United States operation, within one
year of the approval of the petition, will support an executive or managerial position based on the failure to
establish that an investment had been made in the United States operation; or (3) that the beneficiary has been
employed by the foreign entity for one continuous year in the three year period preceding the filing of the
petition in an executive or managerial capacity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel asserts that the petitioner has secured
sufficient physical premises in the United States because it leases a warehouse in Laredo, Texas; that the
petitioner has made a substantial United States investment of both money and inventory; and that the
beneficiary has been employed abroad as an executive or manager. In support of the appeal, counsel
submitted a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (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.
SRC 05 169 50877
Page 3
(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
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad .
In addition , the regulation at 8 C.F.R . § 214.2(l)(3)(v) states that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or to be employed in a new office, the
petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation ; and
(C) The intended United States operation , within one year of the approval
of the petition , will support an executive or managerial position as
defined in paragraphs (l)(1)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure , and its financial goals;
(2) The size of the United States investment and the financial
ability of the foreign entity to remunerate the beneficiary and
to commence doing business in the United States; and
(3) The organizational structure of the foreign entity.
The first issue in this proceeding is whether the petitioner has established that sufficient physical premises to
house the new office have been secured as required by 8 C.F.R. § 214.2(l)(3)(v)(A) .
In the initial petition , the petitioner failed to provide any evidence that it has secured physical premises to
house the new office. On June 20, 2005, the director requested additional evidence including a copy of a
lease evidencing the securing of physical premises. In response , the petitioner provided an "Apartment Lease
Contract" dated November 9, 2004 . This lease, in which the lessee is the beneficiary , concerns a residential
SRC 05 169 50877
Page 4
apartment and not a commercial space. According to paragraph 1, the lease is for a "private residence only,"
and paragraph 19 generally prohibits the conduct of business in the apartment.
On September 29, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that it has secured sufficient physical premises to house the new office.
On appeal, counsel to the petitioner asserts that, in addition to the apartment described in the Apartment Lease
Contract, the petitioner has leased warehouse space in Laredo, Texas, since 2003. Counsel provided a copy
of this lease with a translation on appeal.
Upon review, the petitioner's assertions are not persuasive.
As a threshold issue, it must be noted that the director clearly requested a copy of the petitioner's lease
agreement in the Request for Evidence. In response, the petitioner chose to provide a copy of the
beneficiary's apartment lease. The petitioner did not provide a copy of a lease for the warehouse space. The
petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the
record before the visa petition was adjudicated. The petitioner failed to submit the requested evidence and
now submits it on appeal. However, the AAO will not consider this evidence for any purpose. See Matter of
Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will
be adjudicated based on the record of proceeding before the director.
In view of the above, the petitioner has failed to establish that it has secured sufficient physical premises to
house the new office. The lease submitted by the petitioner is clearly a residential apartment lease which
generally prohibits the conduct of business from the apartment. Moreover, the beneficiary is the lessee, not
the petitioner. As there is no evidence that the lease has been assigned to the petitioner for the conduct of its
business, the petitioner has not established that it has secured sufficient physical premises to house the new
office. For this reason, the petition must be denied.
The second issue in this proceeding is whether the intended United States operation, within one year of the
approval of the petition, will support an executive or managerial position. In the initial petition, the petitioner
indicated in an undated letter that it intends to expand into more "territorial areas of the United States."
However, the petitioner provided no evidence regarding the proposed nature of the office, the scope of the
entity, its organizational structure, its financial goals, the size of the United States investment, the foreign entity's
financial ability to remunerate the beneficiary and to commence doing business in the United States, or the
organizational structure of the foreign entity.
On June 20, 2005, the director requested additional evidence. The director requested, inter alia, a copy of the
petitioner's business plan and evidence of an investment in the United States entity.
In response, the petitioner provided a two-page document titled "business plan;" a letter from US Bank dated
August 24, 2005 confirming that the foreign entity has maintained a checking account since 2000 which has
has an average balance of $25,300.00; and personal bank account information for the beneficiary. The
petitioner also provided an undated letter in which the president of the foreign entity explains that, because
SRC 05 169 50877
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the petitioner does not yet have a tax identification number, the beneficiary is holding part of the invested
funds in a personal bank account.
On September 29, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that a sufficient investment has been made in the United States operation.
On appeal, counsel to the petitioner asserts that the petitioner has made a substantial United States investment
of both money and inventory. Counsel submitted additional documentation on appeal concerning these
claims. Counsel also asserts that the director failed to consider the foreign entity's account with US Bank.
Upon review, the petitioner's assertions are not persuasive.
As a threshold issue, it must be noted that the director clearly requested evidence regarding an investment in
the United States entity in the Request for Evidence. In response, the petitioner chose to provide only a copy
of bank statements relating to the beneficiary and a letter from US Bank confirming the foreign entity's
maintenance of a checking account. The petitioner did not provide any information regarding an investment
of inventory in response to the Request for Evidence. The petitioner was put on notice of required evidence
and given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. The
petitioner failed to submit the requested evidence and now submits additional evidence regarding inventory
and bank accounts on appeal. However, the AAO will not consider this evidence for any purpose. See Matter
of Soriano, 19 I&N Dec. 764; Matter ofObaigbena, 19 I&N Dec. 533. The appeal will be adjudicated based
on the record of proceeding before the director. I
When a new business is established and commences operations, the regulations recognize that a designated
manager or executive responsible for setting up operations will be engaged in a variety of activities not
normally performed by employees at the executive or managerial level and that often the full range of
managerial responsibility cannot be performed. In order to qualify for L-l nonimmigrant classification during
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of
the United States investment, and thereby establish that the proposed enterprise will support an executive or
managerial position within one year of the approval of the petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). This
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it
moves away from the developmental stage to full operations, where there would be an actual need for a
manager or executive who will primarily perform qualifying duties.
As contemplated by the regulations, a comprehensive business plan should contain, at a rrummum, a
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec.
lIt should be noted that, even if the AAO considered the evidence concerning the investment of "inventory" in
the United States entity, the evidence provided on appeal would not establish that any investment has been
made. The record on appeal is devoid of any evidence that title to this inventory has ever been transferred to
the petitioner. The simple movement of inventory from Mexico to a warehouse in the United States without
any evidence that ownership and control of this inventory shifted to the United States petitioner will not
generally establish that an investment has been made in the "new office."
SRC 05 169 50877
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206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefor. Most importantly, the business plan must be credible.
Id.
The petitioner has failed to present evidence sufficient to prove that the intended United States operation,
within one year of the approval of the petition, will support an executive or managerial position. The petitioner
provided no information regarding an investment in the United States entity other than evidence that a bank
account had been opened by the beneficiary; that it had a balance of $7,766.29 on or about August 17,2005; that
the foreign entity has maintained a checking accounting in the United States since October 12, 2000; and that the
average balance of this account has been $25,300.00. However, the letter from US Bank does not reveal the
current balance of the checking account or the source of any of the deposits into this account. Moreover, while
the petitioner maintains that it did not open a bank account because it does not yet have a tax identification
number, this explanation is not credible. According to the Form SS-4 submitted on appeal, the petitioner did not
even apply for a tax identification number until at least October 12, 2005, approximately two weeks after the
director denied the instant petition. In view of the above, the petitioner has not established that an investment has
been made in the United States operation. The evidence regarding the beneficiary's bank account is irrelevant to
the petition and the evidence regarding the foreign entity's checking account lacks sufficient specificity to confirm
the size and source of the investment, if any. For this reason, the petition may not be approved.
Likewise, and beyond the decision of the director on this issue, the petitioner failed to submit a business plan
establishing that the enterprise will likely succeed and rapidly expand as it moves away from the
developmental stage to full operations, where there would be an actual need for a manager or executive who
will primarily perform qualifying duties. While the petitioner outlined a basic strategy of establishing the
business in the United States, the vague, self-serving business plan provided by the petitioner does not outline
a credible plan, especially when coupled with the lack of evidence of any U.S. investment, for expansion
beyond the initial start-up phase. Also, the petitioner failed to corroborate its plan, including financial goals
and the scope of the entity, with any documentation, studies, or independent analyses. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
SRC 05 169 50877
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these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)) .
Accordingly , the petitioner has not established that the intended United States operation, within one year of the
approval of the petition, will support an executive or managerial position as required by 8 C.F.R. §
214.2(l)(3)(v)(C) , and for this reason the petition may not be approved.
The third issue in the proceeding is whether the petitioner has established that the beneficiary has been
employed by the foreign entity for one continuous year in the three year period preceding the filing of the
petition in an executive or managerial capacity as required by 8 C.F.R. § 214.2(l)(3)(v)(B).
Title 8 C.F.R. § 214.2(l)(3)(v)(B) requires that the petitioner prove that the "beneficiary has been employed
for one continuous year in the three year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved executive or managerial authority over the
new operation ."
Section 101(a)(44)(A) of the Act, 8 U.S.C. § I I 01(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;
SRC 05 169 50877
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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 petitioner does not clarify whether the beneficiary is claiming to have been primarily engaged in
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section
101(a)(44)(B) of the Act. A beneficiary may not claim to have been employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets
each of the four criteria set forth in the statutory definition for executive and the statutory definition for
manager.
In the initial 1-129 petition, the petitioner provided virtually no information regarding the beneficiary's duties
with the foreign employer. While the petitioner characterized the beneficiary as the "international sales
manager" responsible for coordinating all sales and exportation of products to the United States from Mexico,
his exact duties or job description were never disclosed.
On June 20, 2005, the director requested additional evidence. The director requested, inter alia, evidence that the
beneficiary has been employed primarily in an executive or managerial capacity, an organizational chart for the
foreign entity, and a description of the beneficiary's subordinate employees.
In response, the petitioner provided an undated letter in which the beneficiary's duties abroad were described as
follows:
[The beneficiary's] primary duties are to develop markets, and expand the marketing territory in
the United States. [The beneficiary's] executive duties include making critical decisions as to
involvement with certain vendors and the decision to develop a territorial market. His
responsibilities include overseeing the purchase order, coordinating with the support staff to
produce the product, and ensuring the product is delivered to its proper destination. He is
instrumental from the inception of the product to the delivery to the vendor in the United States.
The petitioner also provided an organizational chart showing the beneficiary supervising two unnamed sales
executives and five unnamed United States sales representatives. The chart does not reveal whether these are
actual positions, prospective positions, or vacant positions. The chart also does not reveal the duties or
educational levels of these subordinate staff members or explain whether these staff members are employees or
independent contractors.
On September 29, 2005, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary has been employed by the foreign entity for one continuous year in the three­
year period preceding the filing of the petition in an executive or managerial capacity.
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On appeal, counsel to the petitioner asserts that the beneficiary has been employed as an executive or
manager. Counsel submitted additional documentation on appeal concerning these claims.
Upon review, the petitioner's assertions are not persuasive.
As a threshold issue it must be noted that the director clearly requested evidence regarding the beneficiary's
job duties abroad and the names, titles, and duties of all subordinate employees. In response, the petitioner
chose to provide only a letter from the president of the foreign employer and a vague organizational chart.
The petitioner was put on notice of required evidence and given a reasonable opportunity to provide it for the
record before the visa petition was adjudicated. The petitioner failed to submit the requested evidence and
now submits additional evidence regarding job duties and purported subordinate employees on appeal.
However, the AAO will not consider this evidence for any purpose. See Matter ofSoriano, 19 I&N Dec. 764;
Matter of Obaigbena, 19 I&N Dec. 533. The appeal will be adjudicated based on the record of proceeding
before the director.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(1)(3). 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.
The petitioner's description of the beneficiary's job duties has failed to establish that the beneficiary has acted
in a "managerial" capacity. In support of its petition, the petitioner has provided a vague and nonspecific
description of the beneficiary's duties that fails to demonstrate what the beneficiary does on a day-to-day
basis. For example, the petitioner states that the beneficiary develops markets, expands marketing territory,
and ensures product delivery. However, the petitioner does not explain, exactly, what the beneficiary does to
fulfill these duties. Given that sales, marketing, and product delivery tasks do not rise to the level of being
managerial or executive duties when the tasks inherent to these functions are performed by the beneficiary, it
is vital that the petitioner provide a full explanation regarding how the beneficiary primarily manages these
functions rather than performs the related non-qualifying tasks. As the petitioner has provided a vague job
description and has failed to disclose the duties, or confirm the existence, of subordinate staff members, it
cannot be concluded that the beneficiary is "primarily" employed as a manager or executive abroad. The fact
that the petitioner has given the beneficiary a title and has prepared a vague job description which includes
lofty duties does not establish that the beneficiary is actually performing managerial or executive duties. An
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not
considered to be "primarily" employed in a managerial or executive capacity. See sections 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). Specifics are clearly
an important indication of whether a beneficiary's duties are primarily executive or managerial in nature;
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co.,
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972).
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The petitioner has also failed to establish that the beneficiary supervises and controls the work of other
supervisory, managerial, or professional employees, or manages an essential function. As explained above,
while the petitioner provided an organizational chart for the foreign entity, the petitioner failed to reveal the
identities, job duties, or educational backgrounds of the subordinate employees. Therefore, the petitioner has
not established that these staff members are primarily engaged in performing supervisory or managerial duties
or are professionals. In view of the above, the beneficiary would appear to be primarily a first-line supervisor
of non-professional staff members, the provider of actual services, or a combination of both. 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. Therefore, the petitioner has not established that
the beneficiary will be employed primarily in a managerial capacity.
Similarly, the petitioner has failed to establish that the beneficiary has been or 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 be acting primarily in an executive capacity. The job description
provided for the beneficiary is so vague that the AAO cannot deduce what the beneficiary does on a day-to­
day basis. Moreover, as explained above, the beneficiary appears to be employed as a first-line supervisor
and/or is performing non-qualifying tasks. Therefore, the petitioner has not established that the beneficiary is
employed primarily in an executive capacity.
Accordingly, the petitioner did not establish that the beneficiary has been employed for one continuous year
in the three year period preceding the filing of the petition in an executive or managerial capacity as required
by 8 C.F.R. § 214.2(1)(3)(v)(B), and for this reason the petition may not be approved.
Beyond the decision of the director, the petitioner did not establish that the petitioner and the organization
which employs the alien overseas are qualifying organizations as required by 8 C.F.R. § 214(1)(3)(i).
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the
beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e., one entity with
"branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section
101(a)(l5)(L) of the Act; 8 C.F.R. § 214.2(1). A subsidiary is a firm, corporation, or other legal entity
(including a limited liability company) of which a parent owns more than half of the entity and controls the
SRC 05 169 50877
Page 11
entity. See 8 C.F.R. § 214.2(l)(l)(ii)(K). In this matter, the petitioner asserts that it is 100% owned by the
foreign entity.
In support of its petition, the petitioner provided a certificate of organization dated April 12, 2005. In
response to the director's Request for Evidence which sought evidence of ownership of the petitioner, the
petitioner also provided a copy of the petitioner's articles of organization. These articles identify the
beneficiary as the registered agent and organizer of the limited liability company. The articles list four
individuals in Mexico as the managers. The initial member or members are not identified in the articles. The
petitioner did not supply any other organizational documents for the United States entity.
While limited liability companies generally do not issue share certificates like corporations, the petitioner has
failed to provide sufficient evidence demonstrating the ownership of the United States entity. Texas limited
liability companies formed in 2005 are regulated by the Texas Limited Liability Company Act. Tex. Rev.
Civ. Stat. Ann. Art. 1528n? This law provides guidance on how to interpret the articles of organization of a
Texas limited liability company as these relate to ownership interests, and how a Texas limited liability
company can evidence ownership interests by members.
Sections 3.02 and 4.01 permit a person to become a member of a limited liability company upon formation
and to be identified as an "initial member" in the articles of organization. Tex. Rev. Civ. Stat. Ann. Art.
1528n, §§ 3.02 and 4.01. Section 4.01 also permits new members to be added after formation of the limited
liability company. Id. Furthermore, section 2.22 requires Texas limited liability companies to maintain
records including, but not limited to, a list identifying each member by name, address, and percentage of
ownership; a written statement of the contributions made by each member, the times at which additional
contributions are to be made, events requiring the dissolution of the limited liability company, and the date on
which each member became a member; and copies of the regulations of the limited liability company, if any.
Tex. Rev. Civ. Stat. Ann. Art. 1528n, § 2.22.
In the current case, the only evidence provided by the petitioner to prove that the foreign entity "owns" the
petitioner was a copy of the articles of organization which fails to identify the foreign entity as the "initial
member." The petitioner did not provide a copy of the list, which it is compelled to maintain by Texas law,
identifying the members of the limited liability company or any other company records which could have
proven who, as of the date of the petition, are the members of the limited liability company.
Moreover, the Form SS-4, which was submitted on appeal, contains information which calls into question the
petitioner's claim that the foreign entity is the sole member of the limited liability company. This document
states that the petitioner is a "multiple member" limited liability company. However, this averment directly
contradicts the petitioner's assertion that the foreign entity is the sole owner of the petitioner. The petitioner
offers no explanation for this inconsistency. It is incumbent upon the petitioner to resolve any inconsistencies
2While the Texas Limited Liability Company Act was substantially amended in 2005, and was made effective
in 2006, these revisions do not generally affect limited liability companies formed in 2005, such as the
petitioner. The petitioner, therefore, is still regulated by the Act as it appeared in 2005. Tex. Bus. Org. Code
Ann. Chapter 101.
SRC 05 169 50877
Page 12
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
ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Therefore, given the lack of evidence and contradictory information, the petitioner has not established that the
petitioner and the organization which employed the beneficiary abroad are qualifying organizations as defined
by 8 C.F.R. § 2l4.2(l)(l)(ii)(G). The owners or owner of the petitioner have not been adequately identified.
For this additional reason, the petition may not be approved.
An application or petition that fails to comply with the technical requirements of the law may be denied by
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.