dismissed L-1A Case: Medical Supply

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
ka-tcar, , 
Washington, DC 20529 
i&#'".. 2 :*&&$% a-k 
5agp-%S &;'T~,+N $ef pvct~~ - U.S. Citizenship 
~V~io~ &'*MR& @vat' and Immigration 
File: WAC 03 143 53205 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. 9 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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 143 53205 
Page 2 
DISCUSSION: The Director, California Service Center, denied the n for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on he AAO will dismiss the appeal. 
The petitioner filed this nonimrnigrant petition seeking to extend the of its president and chief 
executive officer as an L-1A nonimmigrant intracompany transferee 101(a)(15)1:L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 is a corporation 
organized in the State of California that is engaged in the medical supply 
equipment business through a partially owned but 
subsidiary of ERV Electrical Construction 
initially granted a one-year period of stay 
subsequently granted a two-year extension of 
The director denied the petition concluding that the petitioner did not estab ish that the beneficiary would be 
employed in the United States in a primarily managerial or executive capacit k . 
The petitioner subsequently filed an appeal. The director declined to tr 
forwarded the appeal to the AAO for review. On appeal, counsel for the disputes the director's 
findings and notes that the director failed to provide any specific his conclus~ons. The 
petitioner further asserts that the record contains sufficient the beneficiary is 
employed in a managerial and executive capacity. Counsel 
To establish eligibility for the L-1 nonimmigrant visa classification, the must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying org have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a capacity, for one 
continuous year within three years preceding the beneficiary's into th,e United 
States. In addition, the beneficiary must seek to enter the United rendering his 
or her services to the same employer or a subsidiary or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petiti filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which em or will employ th8= 
alien are qualifying organizations as defined in paragraph of this section. 
(ii) Evidence that the alien will be employed in an executive, or specializetl 
knowledge capacity, including a detailed description of the 
(iii) Evidence that the alien has at least one continuous year f full time employment 
abroad with a qualifying organization within the three yea s preceding the filing of 
the petition. 1 
WAC 03 143 53205 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad 
managerial, executive or involved specialized knowledge that the alien's prior 
education, training, and employment qualifies himher the intended 
services in the United States; however, the work in the Uni 
same work which the alien performed abroad. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), defines the erm "managerial capacity" as an 
assignment within an organization in which the employee primarily: 1 
The sole issue raised in the director's decision is whether the beneficiary 
States entity in a primarily managerial or executive capacity. However, befgre 
notes that the petitioner is seeking to establish the beneficiary's managerial 
on his role as president and chief executive officer of two separate. entities, 
claimed subsidiary, a medical supply company. Therefore, the AAO must 
the beneficiary's actual employer, and must examine the relationship betw 
subsidiary in order to determine whether it is proper to consider the 
companies for purposes of establishing his eligibility for the benefit sought. 
not raised by the director, have a significant impact on the issue of 
employed by in a managerial or executive capacity with a qualifying organization 
Thus, they will be given a full analysis in this decision. will be given a full a 
(i) manages the organization, or a department, subdivision, f nction, or component of 
the organization; 1 
will be employed by the United 
turning to this issue, the AAO 
and executive employment based 
the petitioning company and its 
determine which entity serves as 
:en the petitioner and its claimed 
beneficiary's employment within both 
These additional issues, although 
w~ether the beneficiary would be 
under the extended petition. 
lalysis in this decision. 
(ii) supervises and controls the work of other supervisory, or managerial 
employees, or manages an essential function within the 
or subdivision of the organization; 
(iii) if another employee or other employees are directly has the authority to 
hire and fire or recommend those as well as actions (such as 
promotion and leave authorization), or if no supervisedl, 
functions at a senior level within 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 supervise 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. i 
Section lOl(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the erm "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major com onent or function of tht: 
organization; P 
WAC 03 143 53205 
Page 4 
(ii) establishes the goals and policies of the organization, compc/nent, or function; 
(iii) exercises wide latitude in discretionary decision making; an4 
(iv) receives only general supervision or direction from higher 1 vel executives, the board 
of directors, or stockholders of the organization. 
In its April 1, 2003 letter, submitted with the petition, the petitioner descri ed the beneficiary's job duties as 
follows: t 
In his position as President of [the petitioner], [the beneficiary] su ervises and controls the 
operations of the entire company, including hiring and firing of per onnel, directing business 
strategies and formulating financial plans for all business oper tions. [The beneficiarqf] 
establishes policies and overall operational guidelines and ex rcises wide latitude in 
personnel management. All financial reports and budget pla s are subject to [the 
beneficiary's] review, and [the beneficiary] negotiates contracts with all suppliers and 
customers. i 
Note that as President, [the beneficiary] also supervises and the work of the V.P. of 
Purchasing, Operations Manager and Billing Supervisor. is a breakdown of 
time spent on duties: 
Dutv 
Supervises other managers 
Directs business strategies 
Formulates financial plans for all business operations 
Establishes policies and overall operational guidelines 
Exercises wide latitude in personnel management 
Review's [sic] financial reports and budget plans 
Negotiates contracts on behalf of the company 
[The beneficiary] took on the active role of President and CEO of e petitioner's subsidiary 
medical supply company] in April 2000. In this position, [the is responsible for 
the overall operations of the company, negotiates and in business 
contracts with suppliers and customers, exercises 
formulation, personnel decisions, and overall management strategy. 
The petitioner further explains that, because the medical supply company is he petitioner's biggest asset, the 
beneficiary is carrying out his explicit duties on behalf of the petitioner for its subsidiary, and that his 
assignment within the claimed subsidiary is "in the ordinary course of usiness" for the petitioner, an 
investment company. The petitioner indicated on the Form 1-129 that it had eight employees, and submitted 
an organizational chart labeled as "ERV Organizational Chart" depicting leven employees, including the 
beneficiary. It also submitted the medical supply company's W-2 forms for I 000 which reveal that ;ill of the 
WAC 03 143 53205 
Page 5 
employees depicted on the chart, including the beneficiary, are on the p 
subsidiary. 
On May 28, 2003, the director requested additional evidence. Specil 
organizational chart for the U.S. entity, to include the current names of all 
and clearly identifying all employees under the beneficiary's supervision t 
also requested a brief description of the job duties, educational level, annu 
status for all employees under the beneficiary's supervision, as well as t 
employees. 
In response, the petitioner submitted a new organizational chart whic 
supervises eight employees: V.P. purchasing, operations manager, execu 
sales agent, billing clerk/receptionist, maintenance delivery/supervisor 
provided a brief job description for all employees, but failed to specify thei~ 
salaries, immigration status and source of remuneration. The petition 
employees included in the chart are employed by the petitioner or by its clai 
On November 14, 2003, the director denied the petition. The director not 
who is actually performing the tasks to provide a service or produce the pro 
description provided by the petitioner describes the beneficiary's job dutie! 
The director concluded that the beneficiary would be performing all aspec 
the company and therefore was not serving in a primarily managerial or exe 
On appeal, counsel for the petitioner asserts that the director failed to prc 
denial of the petition other than stating that the information provided is tc 
that the director erred in finding that the beneficiary would not be servi~ 
capacity, and once again describes the beneficiary's duties with the forei 
organization, and with the petitioner's claimed subsidiary, concluding that I- 
employed in a managerial and executive capacity. 
Upon reviewing the petition and the evidence the petitioner has not establi 
employed in a managerial or executive capacity. However, the AAO does nl 
reasons for denying the petition or his analysis of the facts. Specificall 
beneficiary is employed in a managerial or executive capacity because (1) t 
doing business; (2) the petitioner does not appear to actually employ the ber 
not established a qualifying relationship with its claimed subsidiary, wh 
actual employer. 
As noted above, the evidence submitted with respect to the petitioning o 
whether the petitioner is actually doing business, or whether it, in fac~ 
regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(H) defines doing business as "the r 
provision of goods andlor services by a qualifying organization and does nc 
agent of office of the qualifying organization in the United States and abroa 
yroll of the petitioner',; claimed 
:ally, the director requested an 
~ecutives, managers, supervisors, 
name and job title. The director 
salaries/wages and immigration 
: source of remunerati~~n for all 
indicates that the beneficiary 
ve secretary, billing snpervisor, 
id a technician. The petitioner 
:ducational qualifications, annual 
did not identify whether the 
bed subsidiary. 
i that the record fails to indicate 
uct, and further notes that the job 
In only vague and general terms. 
; of the day-to-day ope]-ations of 
ltive capacity. 
ride any specific reasorls for the 
general. Counsel further asserts 
; in a managerial and  executive 
n company, with the petitioning 
has been and will continue to be 
led that the beneficiary has been 
concur with the director's stated 
, the AAO cannot find that the 
: petitioner does not appear to be 
ficiary; and (3) the petitioner has 
h is evidently the beneficiary's 
;anization raises questions as to 
employs the beneficiary. The 
;ular, systematic and cnntinuous 
include the mere presence of an 
." The petitioner was established 
WAC 03 143 53205 
Page 6 
in April 1999. The record includes the petitioner's Forms 1120, U.S. oration Income Tax Rzturns for 
1999, 2000 and 2001. During these three years, the petitioner paid no wages, paid no 
compensation to officers and had no inventory. Other than the in the medical supply 
company in 1999 and two relatively small real estate does not appear to 
have been engaged in any type of business indicates that the 
employees indicated on the petitioner's employees of the 
medical supply company. Therefore, it Based on the 
above, the petitioner has not established 
of goods andlor services as required by 8 C.F.R. 5 214.2(1)(3)(i). 
The AAO will next consider whether the beneficiary's employment with t claimed subsidiary 
can be considered in determining whether the beneficiary qualifies as a under section 
101(a)(15)(L) of the Act. The petitioner states that it purchased 50 
stock in 1999 and that the beneficiary assumed an active role as 
2000. The documents submitted show that the beneficiary 
company in 2000, and received no compensation from the 
therefore assume that the beneficiary remained on the 
entity, at the time the petition was filed. 
Given that the petitioner has not established that it is doing business, it would 
an executive or managerial position. Accordingly, the beneficiary's described 
the context of the nature of the organization, which appears to be only a 
instance, how the beneficiary would exercise wide latitude in personnel 
with suppliers and customers when the petitioner clearly does not have any 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
sufficiency of the remaining evidence offered in support of the visa petition. 
591 (BIA 1988). Although the petitioner suggests that the beneficiary divides 
and its claimed subsidiary, it is not clear what proportion of the beneficiary's 
devoted to the management of a company with no employees and no 
without supporting documentary evidence is not sufficient for purposes of 
The regulation at 8 C.F.R. 5 214.2(1)(7)(i)(C) states that the petitioner file an amended petition . . .to 
reflect changes in approved relationships. . . or any information would affect the beneficiary's 
eligibility under section 101(a)(15)(L) of the Act." CIS has guidance as to when an 
amended petition is required, specifically noting that "[ilf an one company to another 
company in the same organization and becomes the amended petilion must 
not appear to require or support 
duties are not credible within 
s.lell company. It is not clear, for 
management and negotiate contracts 
personnel, customers or suppliers. 
reevaluation of the reliability and 
Matter of Ho, 19 I&N Dec. 582, 
his time between the petitioner 
time would reasonably be 
business activities. Going on record 
meeting the burden of' proof in 
be filed. This is the only way the Service will be able to ascertain if the is related to the foreign firm 
in a qualifying capacity." Memorandum of- Executive Commissioner, Operations, 
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 
review of the record it appears that the beneficiary is in fact employed by 
and devotes most or all of his time to the medical supply company. 
demonstrated that the U.S. company has employed or will employ the 
or executive capacity. 
190 (Reg. Comm. 1972;). Upon 
the petitioner's claimed subsidiary 
Accordingly, the petitioner has not 
bene-ficiary in a qualifying managerial 
WAC 03 143 53205 
Page 7 
Immigration and Naturalization Service, Guidelines for the Filing of Amen H and L Petitions, CO 214H- 
CICO 214L-C (Oct. 22, 1992). In this case, the record suggests that the became the err~ployee of 
the medical supply company in April 2000 and therefore this filed its own 1-129 
petition in order request authorization to employ the accompanied by 
documentation of the medical supply company's employer. As 
the evident of record suggests that the beneficiary 
without the proper filing of an amended 
company are not properly considered in this petition. 
The statutory definitions of executive and managerial capacity refer to an within an organization 
in which the employee either manages the organization or directs the of the organization. 
Section lOl(a)(28) of the Act means, but is not 
limited to, an organization, corporation, company, partnership, or fund; and 
includes a group of persons, whether or not incorporated, 
joint action on any subject or subjects." The statutory 
include a partially owned corporation that is an entity 
However, the petitioner may provide evidence to 
owned entity are either permanently or 
other legal means. Accordingly, a 
partially owned entity may be 
The petitioner and counsel assert, contrary to the evidence presented 
employee of the medical supply company, that the beneficiary serves as 
president "on behalf of the petitioner," suggesting that the beneficiary remai 
company. If the petitioner in fact employs the beneficiary, the duties of the 
on behalf of the petitioner's partially owned company could be viewed 
must establish that the two companies are significantly interrelated; specifici.lly, 
organization. See Memorandum of James J. Hogan, Executive Assooiate 
Immigration and Naturalization Service, Guidelines for the Filing of Amended 
CICO 214L-C (Oct. 22, 1992). 
Here, the petitioner claims that the beneficiary works for the medical company, its claimed subsidiary, 
on behalf of the petitioner. Pursuant to 8 C.F.R. 5 214.2(I)(ii)(K), 
that the beneficiary is in fact an 
the medical supply company's 
is the employee of the petitioning 
beneficiary for the petitioner and 
together. However, the petitioner 
that they are part of the same 
Commissioner, Operations, 
H and L Petitions, C:O 214H- 
A firm, corporation, or other legal entity of which a parent owns, direct1 or indirectly, more than 
half of the entity and controls the entity; or owns, directly or indirect y, half of the entity and 
controls the entity; or owns directly or indirectly, 50 percent of a 50- 0 joint venture and has 
equal control and veto power over the entity; or owns, directly or indire tly, less than half of the 
entity, but in fact controls the entity. 1 
The petitioner claims that it owns 50 percent of the medical supply ny and is therefore required to 
provide documentary evidence not only of its ownership of half of but also evidence that it in 
fact controls the company. With the initial petition, the of the medical supply 
WAC 03 143 53205 
Page 8 
company's stock certificates, numbered 13 through 15, which were iss to the petitioning company as 
follows: (1) 2,000 shares issued on July 31, 1999; (2) 2,500 shares issu n August 6, 1999; and (3) 500 
shares issued on July 31, 1999. All three stock certificates indicate tha medical supply conipany has 
authorized capital stock of 10,000 common shares; however, the pet r did not explain why stock 
certificate number 14 was issued one week later than stock certific No other docu~mentation 
was submitted to establish the petitioner's claimed parent-subsidiary r ship with the medical supply 
company. However, the petitioner also submitted the medical supply co Form 1120, U.S. Corporation 
Income Tax Return for 1999, which was prepared after the petitioner ition of the compan,y's stock. 
Schedules E and K of the medical supply company's Form 1120 indic ntonio Lizardo owned 55% of 
the company's stock at the end of the tax year. In addition, the peti itted its Forms ll:!O for the 
years 1999, 2000 and 2001. In each year, the petitioner indicated o that the company did not 
own, directly or indirectly, 50 percent or more of the voting stock of oration, and in each year, 
the petitioner indicated its stock in the medical supply company t, rather than listing the 
company as a subsidiary. 
Consequently, although the stock certificates submitted appear to show petitioner owns 50 percent of 
the medical supply company's stock, the other evidence discussed that the petitioner does not 
in fact own half of the company's stock. It is incumbent upon the any inconsistencies in 
the record by independent objective evidence. Any attempt to inconsistencies will 
not suffice unless the petitioner submits competent objective truth lies. Matter 
of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
The regulation and case law confirm that ownership and control are the ctors that must be examined in 
determining whether a qualifying relationship exists between United foreign entities for purposes 
of this visa classification. Matter of Chcirch Scientology 593 (BIA 1988); see also 
Matter of Siernens Medical Systerns, Inc., 19 I&N Dec. 18 I&N Dec. 289 
(Comm. 1982). In context of this visa petition, legal right of 
possession of the assets of an entity with full 
indirect legal right and authority to direct the 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock alone are not :sufficient 
evidence to determine whether a stockholder maintains ownership and corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate minutes of relevant 
annual shareholder meetings must also be examined to determine the issued, the exact 
number issued to the shareholder, and the subsequent percentage on corporate 
control. Additionally, a petitioning company must disclose all 
distribution of profit, the management and direction of the 
control of the entity. See Matter of Siemerzs Medical 
relevant documents, CIS is unable to determine the 
As noted above, for the beneficiary's duties for this subsidiary company to b in the determination 
of the managerial or executive capacity, the petitioner must show either association 
WAC 03 143 53205 
Page 9 
through controlling ownership; otherwise the petitioner cannot control the ben.eficiary7s 
appointment to an executive or managerial position. The petitioner consistent evidence 
establishing that it maintains the claimed 50 percent ownership of the operations, 
or any evidence that it maintains control of the claimed subsidiary's 
not demonstrated that the beneficiary's duties for the medical 
petition. 
As discussed above, the petitioner has not demonstrated that it has employed. 
a primarily managerial capacity, or that it employed the beneficiary at all at 
addition as the director determined, the petitioner has not provided a 
beneficiary's duties for either the petitioner or the medical supply companv. 
the beneficiary's duties borrows liberally from phrases found in the definit 
capacity. Statements indicating the beneficiary directs strategies, formulate 
exercises wide latitude in personnel management do not convey an understa~ding 
day duties sufficient to establish eligibility. Conclusory assertions regarding 
capacity are not sufficient. Merely repeating the language of the statute 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Snvn, 724 F. Supp. 
905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 
Beyond the decision of the director, the petitioner has not established that it as a qualifying relation,ship with 
the foreign employer as required by 8 C.F.R. 5 214.2(1)(l)(ii)(G), as the pet tioner has failed to establish that 
it is a qualifying organization engaged in the regular, systematic and conti uous provision of goods andlor 
services pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(H). The regulation at 8 C.F.R. 5 214.2(l)(ii)(G)(2) reflects that, 
in order for an entity to be considered a qualifying organization, the petitione I must show that it: 
or will employ the beneficiary in 
the time the petition was filed. In 
c3mprehensive description of the 
The petitioner's description of 
ons of executive and managerial 
plans, establishes policies and 
of the beneficiary's day-to- 
the beneficiary's employment 
or regulations does not satisfy the 
1\03, 1108 (E.D.N.Y. 1989), aff'd, 
18{3942 at "5 (S.D.N.Y.). 
Based on the foregoing discussion, there is no evidence that the petitioner in 
is there any evidence that the petitioner, which has no income, no employees 
could support a managerial or executive position, even if it does technically 
employer. In addition, the petitioner has not established that its claimed 
beneficiary's actual employer, is sufficiently related to the petitioner to 
manage the partially-owned company on behalf of the petitioner. Finally, 
directly by the petitioner's claimed subsidiary, the subsidiary company is 
amended petition on the beneficiary's behalf and the instant petition was 
Is or will be doing business (engaging in international trade is not re as an employer in 
the United States and at least one other country directly or through a branch, affiliate or 
subsidiary for the duration of the alien's stay in the United an intracompany 
transferee. . . . 
fact employs the beneficiary, nor 
and reports no business activity, 
serve as the ben'2ficiary's 
subsidiary, which appears to be the 
est.ablish that the beneficiary could 
if the beneficiary is employed 
required by regulation 1.0 file an 
;mproperly filed. In light of the 
confusing picture provided of the nature of the petitioner's business and the 
not possible to determine from the record that the beneficiary will be engaged 
executive capacity, as required by 8 C.F.R. 5 214.2(1)(3)(ii). For these 
approved. 
beneficiary's employnlent, it is 
in a primarily managerial or 
reasons, the petition cannot be 
WAC 03 143 53205 
Page 10 
The regulation at 8 C.F.R. § 214.2(l)(ii)(H) defines the term "doing business,' as: 
[Tlhe regular, systematic, and continuous provision of goods and10 services by a qualifying 
organization and does not include the mere presence of an agent office of the qualifying 
organization in the United States and abroad. 
As noted above, the record includes the petitioner's Forms 1120, U.S. Co Income Tax Returns for 
the years 1999, 2000 and 2001. During this three-year period, the no income, paid no 
wages, paid no compensation to officers and had no inventory. an investment in the 
medical supply company in 1999 and two small real estate it is evident that 
the company has not engaged in any business transactions in the regular, 
systematic and continuous provision of goods or services 
the AAO cannot conclude that the petitioner is a 
petition may not be approved. 
An application or petition that fails to comply with the technical of the law may be denied by the 
AAO even if the Service Center does not identify all of the nial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 that the AAC) reviews 
appeals on a de novo basis). 
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. 5 1361. The petitioner has not ustained that burden. Therefore, 
the petition will be denied and the decision of the director will be affirmed. 1 
ORDER: The appeal is dismissed. I