dismissed L-1A Case: Metal Coating

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. preventclearlyunw~ted
invasionof personalpnvacy
PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., NW, Rm. 3000
Washington , DC 20529
U.S.Citizenship
and Immigration
Services
File: LIN 06 044 51619 Office: NEBRASKA SERVICE CENTER Date: DEC 21 2007
INRE: 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. § 1101(a)(15)(L)
ON 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~be~an~:Chief
Administrative Appeals Office
www.uscis.gov
LIN 06 044 51619 '
Page 2 .
DISCUSSION: The Director , Nebraska Service Center denied the nonimmigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant
intracompany transferee pursuant to section 10l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.c. §.1101(a)(15)(L). The petitioner, a Delaware limited liability company , states that it is engaged in the
metal coating business . : The petitioner claims to be a subsidiary of the located in
Germany, and an affiliate of the beneficiary's foreign employer, The petitioner seeks
to employ the beneficiary as the chief operating officer of its new office in the United States for a one-year
period.
The director denied the petition concluding that the petitioner did not establish : (1) that the beneficiary has
been employed by the foreign entity in a primarily managerial or executive capacity; or (2) that the U.S .
company and the foreign entity have a qualifying relationship.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal , counsel for the petitioner asserts that the director
based his conclusions upon an incorrect standard of proof for a new or start-up L-l company. Counsel asserts
that the beneficiary's current position with the foreign entity meets the criteria for a function manager.
Counsel also contends that the petitioner provided sufficient documentation to establish the claimed affiliate
relationship between the petitioner and the beneficiary 's foreign employer. Counsel submits a brief and
additional evidence in support of the appeal.
To establish eligibility for the L-l 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 '(1)(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.
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(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.
LIN 06 044 51619
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(iv) Evidence thatthe alien's prior year of employment abroad was in a position that was
managerial, executive or invol ved special ized knowledge and that the alien's prior
education , training , and employment qualifies himlher 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 regulation at 8 C.F.R . § 214.2(l)(3)(v) also provides that if the petition indicates that the beneficiary is
coming to the United States as a manager or executive to open or be employed in a new office in the United
States, 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 involves executive or managerial authority over the new
operation; and
(C) The .intended United States operation, within one year ofthe approval of the petition ,
will support an executive or managerial position as defined in paragraphs (l)(l)(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 organ izational structure of the for eign entity .
The first issue addressed by the director is whether the petitioner established that the beneficiary has been
employed by the foreign entity in a primarily managerial capacity , as required .by 8 C.F .R. §
214 .2(l)(3)(v)(B) . The petitioner does not claim that the beneficiary was employed by the foreign entity in an
executive capacity .
Section 101(a)(44)(A) of the Act, 8 U.S.c. § 1101(a)(44)(A), defines the term "managerial capacity" asan
assignment within an organization in which the employee primarily:
(i) manages the organization , or a department , subdivision , function, or component of
the organization ;
LIN 06 044 51619
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(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.
The nonimmigrant petition was filed on November 29, 2005: On Form 1-129, the petitioner indicated that the
beneficiary has held the position of chief of the quality control department for the petitioner's claimed affiliate
in Poland since July 2001 , and stated this his duties are "to p[l]an, direct and coordinate the work activities
and resources necessary for [manufacturing] products in accordance ·with cost , quality, and quantity
specifications." The petitioner submitted an organizational chart depicting the structure for its corporate
group, which identifies the beneficiary and one other individual as "quality managers" responsible for
"installation QM system" and "Controlling of QM system." The chart does not clearly depict any
subordinates under the beneficiary. The chart identifies "Jorg Gorschluter" as head of quality, senior to the
beneficiary's position.
The petitioner also submitted a letter from the foreign entity, dated November 14,2005, which indicates that
the beneficiary is a quality manager for the petitioner's group, responsible for introducing and controlling the
quality management system in all subsidiaries. The letter indicates that the beneficiary and another quality
manager have been responsible for introducing the company's quality management system in new plants in
Poland, Spain and Turkey.
The director issued a detailed request for additional evidence on December 5, 2005, instructing the petit ioner
to provide additional evidence to establish that the beneficiary has been employed in a managerial or
executive capacity with the foreign entity . Specifically, the director requested : (1) a complete, detailed
statement and corroborating documentation of the duties performed by the beneficiary for the employer
abroad, detailing the routine day-to-day tasks performed by the beneficiary as well as the percentage of
weekly hours expended in the performance of each task identified; (2) a detailed statement and corroborating
documentation fully describing the foreign employer , its products and/or services , its size and its
organizational structure ; and (3) a revised organizational chart for the foreign entity that clearly illustrates an
identifiable chain of command among the employees , and identifying any employees supervised by the
beneficiary by name , job title andjob duties. The director also noted that the init ial evidence suggested that
the beneficiary works at various subsidiary sites, and requested that the petitioner clarify how the beneficiary
exercises managerial authority over employees.
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In a response dated February 22,2006, counsel for the petitioner explained that the beneficiary has performed
~everal functions for both the corporate group and for the Polish division of the group. Specifically, counsel
stated:
At the [corporate group], the beneficiary's position was called Project Developer, one of his
functions was to establish , set up, and run new facil ities as they came on line . At the Polish
division, he had the dual role of COO and Quality Manager. ... As with most management
organizations where an individual has multiple locations to manage and supervise, there are
many routine reports which must be prepared to keep management informe.d. There is
delegation of duties to local management, and there is obviously communication via phone
calls, and e-mails, Periodic trips to the various divisions are always necessary as. well to
maintain a hands-on presence .
. The petitioner submitted an organizational chart for its corporate group , which depicts the beneficiary as
"Chief of QualitylProject Developer" with responsibil ity for supervising local production management , local
quality management , local maintenance management , and local logistics . The petitioner provided the
following description of this position:
The main targets are to maintain and develop the implemented quality system in all the
[group] facilities and to implement and maintain a [group] technology and standards in all the
facilities. To achieve this target, a [Quality ManagerlProject Developer] needs to control and
supervise all . local Quality, Production and Maintenance [sic] Managers , that are then
responsible for reporting and taking operat ive actions and general system care.
• Quality system implementation and staff training
• Internal and external complaints and analysis
• Participating in FEMA team work
• Internal cost source analysis and management
• Creating various control plans and giving responsibilities to the operative area.
• Planning and implementing technological novelties and their improvements
• Investigating and improving production efficiency
• Investigat ing and improving processes efficiency
• Statistical process control
• Continuous improvement of processes and technologies
• Analysis of subordinate reporting cells
• Approving internal process instructions .
• Responsible for HR related issues in all subordinate cells
Responsible for all tasks related to maintaining a well functioning of the implemented quality
systems.
Responsible for keeping a constant development level in all projects issued by the highest
management.
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The beneficiary's qualifications are listed as "academical [sic] education ," "practical experiences in the quality
department," "advanced IT knowledge," "internal auditors experience for ISO , VDA 6.1, 6 .3, 6.5" and
"knowledge of at least 2 foreign languages."
The petitioner submitted a second organizat ional chart for the beneficiary's employer in Poland , which depicts
the beneficiary as "Chief Operating Officer (COO)/Quality Manager," reporting to the company's chief
executive officer. The petitioner attached a job description indicating that the position supervises "lower
management." The job description indicates that the position is responsible "to maintain and develop the
implemented technologies and quality systems in facility and to develop the company's financial and
productive growth" through "supervision of all loc~l lower management officers that are then responsible for
reporting and taking operative actions and general system care." The description describes the main activities
as follows:
• Strategic decision making
• . Internal and external complaints analysis
• Participating in FEMA team work
• Internal cost sources analysis and management
• Creating various control plans and gi ving responsibilities to the operative area
• Planning and implementing technological novelties and their improvements
• Investigating and improving production efficiency
• Investigating and improving processes efficiency
• Statistic methods implementation
• Continuous improvement
of processes and technologies
• Analysis of all subordinate reporting cells
• Approving internal process instructions
• Responsible for HR related issues in all subordinate cells.
The description indicates that the role reports to the company's 'highest management, and is responsible for
"financial and production reviews."
The petitioner attached the following additional description of the ben~ficiary's role within the Polish
company:
The main responsib ility ... was to maintain companies [sic] high quality level and
production capacity through a close cooperation with all the operating cells in the facility .
[The beneficiary] was in charge of all quality and technology related issues , as he was the
main responsible person for monthly based efficiency and quality reports given to the highest
company management. Because of his nearly 5 years of experience he gained a big range of
practical knowledge about all the processes (metal treatment), as he was always a member of
the process development team from the beginning of the company's operation in Poland . He
also had a very big input into implementation of new technologies like zinc plating,
phosphating, different adhesive coating techniques, etc. Because of his wide quality
LIN 06 044 51619 '
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background and process experience , he was also the first customer contact regarding new
product implementations and quality issues .
[The beneficiary] reported directly to the company's president and CEO. In order to supply
the highest management with necessary monthly production results, he was in charge of the
following organization cells: production supervisors, maintenance supervisors , quality
officers, shift supervisors.
The director denied the petition on March I, 2006 , concluding that the petitioner had failed to establish that
the beneficiary has been employed by the foreign entity in a primarily managerial or executive capacity. The
director found that the organizational chart submitted in response to the request for evidence was insufficient
to establish the beneficiary's managerial/executive authority. The director noted that although the petitioner
states that the beneficiary is responsible for quality officers, production managers and maintenance managers,
"the chart appears to indicate that he is in a stand alone position." The director further found that the petitioner
had failed to specifically identify the beneficiary's subordinate reports including a description of their job
duties, or evidence of their educational credentials .
Accordingly, the director found that the record did not establish that the beneficiary has been supervising a
subordinate staff of professional, managerial .or supervisory personnel, or that he would manage an essential
function within the organization. The director further found that because the beneficiary travels substantially
and performs his duties off site, "the Service must ' conclude that the beneficiary's current employment
involves performing the day-to-day duties of the function rather than the management [or] direction of the
function."
On appeal, counsel for the petitioner asserts that the director's decision "was based upon the incorrect standard
of proof for a 'new company' or start-up Ll company." Counsel asserts that the position of "Chief of Quality
Control," would in fact qualify as a functional manager responsible for a "vital function" of the company .
Counsel asserts that a "more flexible standard for LlA should have been applied in the Service's decision ."
Counsel submits a slightly revised organizational chart for the Polish entity, on which the beneficiary is
identified as "COO" rather than "COO/Quality Manager." In an attached statement, the beneficiary is
identified as "Chief of the Quality Department ," and stated to supervise the director of finance, human
resources manager, environmental director, sales/purchasing manager, logistics manager , production
manager, production process technician , quoting officer, etc. The petitioner also provided job descriptions for
employees who appear below the beneficiary on the organizational chart. Of these, the following positions are
identified as reporting . directly to the beneficiary: production manager, director of environmental
management, galvanic operations manager, process ,technician, logistics manager , quality officer , surface
technician, maintenance manager, and the Jastrzebie plant manager.
Upon review , and for the reasons discussed herein , the petitioner has not establi shed that the beneficiary was
employed by the foreign entity in a primarily managerial or executive capacity.
LIN 06 044 51619
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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(l)(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 . !d.
Here, given the inconsistencies between job titles and job duties attributed to the beneficiary, and the number
and type of subordinates supervised by him, the AAO cannot determine in what capacity he was employed by
the foreign entity. At the time of filing, the beneficiary was simultaneously identified as "quality manager ,"
in both the foreign entity's letter and the company organizational chart, and as "chief of quality department" in
the petitioner's letter and on the L Classification Supplement to Form 1-129 . As "quality manager ," the
beneficiary was stated to "introduce and control" the quality management system in all subsidiaries, having
worked in Poland from 2000 to 2004, and In Spain and Turkey in 2005. Notably , the organizational chart
submitted at the time of filing indicated that the beneficiary reported to a higher-level employee responsible
for the quality department or function . The foreign entity's "letter dated November 14,2005 also stated that the
beneficiary has been working cooperatively with another quality manager in performing these duties.
While the foreign entity identified the beneficiary as holding the position of quality manager, the petitioner
indicated that the beneficiary has served as Chief of Quality Department with the Polish company since
joining the company in July 2001. The petitioner stated that his duties are "to plan , direct and coordinate the
work activities and resources necessary for manufacturing products in accordance 'with cost , quality and .
quantity specifications." While it is certainly possible for the beneficiary to have held two concurrent
positions with qua~ifying organizations abroad it is unclear why neither the pet itioner nor the foreign entity
acknowledged such a dual role at the time of filing. In the absence of such explanation or acknowledgement,
it simply appeared that the petitioner was submitting inconsistent informat ion. It is incumbent upon the
petitioner to resolve any incons istencies 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). Nevertheless,
neither position description was sufficiently detailed to establish that the beneficiary has been performing
primarily managerial or executive duties for the foreign entity.
Given these discrepancies , the very brief position descriptions submitted, and the lack of evidence that the
beneficiary supervises any subordinate employees , the director reasonably requested a revised organizat ional
chart indicating a clearly identifiable chain of command among employees , and a clear indication of who the
beneficiary supervises , including their names, job titles, and job duties. The AAO acknowledges that the
petitioner explained the different job titles by indicating that the beneficiary worked for both the petitioner's
Polish affiliate and for the petitioner's Germany-based corporate group , while based in Poland. Counsel stated
that the beneficiary's position in the group was "Project Development," a position also designated as "Chief of
QualitylProject Developer," and "Group Quality ManagerlProjects Developer" with responsibility for setting
up and running new facilities and supervising all local quality , production and maintenance managers
throughout the group's locations. The organizational chart submitted to depict this position showed the
beneficiary as being just below the chief executive officers of each subsidiary company in the group .
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At the same time , the beneficiary is stated to ha ve held the position of "Chief Operating Officer and Quality
Manager" of the Polish company with responsibility for "supervision of all lo wer management officers," and
respons ibility for the company's financial growth . The accompanying organizational chart showed the
beneficiary supervising every employee in the Polish company with the exception of the chief executive
officer, while the position description indicated that only the company's production supervisors, maintenance
supervisors , quality officers and shift supervisors reported to the beneficiary . As noted by the director , the
petitioner failed to provide the job duties of the beneficiary's claimed subordinates in either position. Failure
to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the
petition. 8 C.F.R. § 103.2(b)(l4).
The evidence submitted on appeal references the beneficiary's role as simply "Chief Operating Officer" of the
Polish entity, and no reference is made to his previously claimed separate position as a quality manager or
project developer for the corporate group. Counsel provides no explanation for the assignment of yet another
job title for the beneficiary's position with the foreign entity. The petitioner's organizational chart and '
accompanying statement indicates' that the benefic iary supervises essentially every management and lower ­
level employee in the company , including the director of finance, human resources manager, sales/purchasing
manager, and other managers who would appear to have little to do with the quality function. At the same .
time, counsel indicates on Form I-290B that the benefic iary has been serving as "Chief of Quality Control"
and managing an essential function of the foreign entity. .
Overall, upon review of the totality of the record , the AAO finds that the petitioner has continually revised the
beneficiary's title, duties 'and level of authority within the foreign entity to the extent that it is impossible to
determine his actual role within the foreign organization . When responding to a request for evidence or filing
an appeal, a petitioner cannot offer a new position to the beneficiary , or materially change a position's title, its
level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner
must establish that the position offered to the beneficiary when the petition was filed merits classification as a '
managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec . 248, 249 (Reg. Comm. 1978) .
A petitioner may not make material changes to a pet ition in an effort to make a deficient petition conform to
USCIS requirements. See Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The petitioner has
not submitted independent and objective documentation to establish the beneficiary's role within the foreign
entity during the three years preceding the filing of the petition.
Therefore , the analysis of this criterion will be based on the job descriptions submitted with the initial
petition, one of which identified the beneficiary simply as one of two quality managers responsible for
implementing and controlling the quality management system. As noted above , the position description did
not contain sufficient detail to establish the beneficiary's employment in a primarily managerial capacity , and
the organizational chart submitted did not identify any subordinates to be supervised by the beneficiary. The
group quality manager position, based on this very lim ited information, appears to be more akin to an internal
technical consultant or specialist, rather than a position that involves control of an essential function or
supervision of subordinate employees. Further, the AAO notes that the petitioner did not explain how work
was divided between the two employees performing in the same role . Notably, the individual ident ified as
having worked alongside the beneficiary in the position of quality manager for several years is not identified
on any of the organizational charts submitted in response to the request for evidence or on appeal.
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Further, even assuming that the beneficiary concurrently held the position of chief of quality department
within the Polish entity , the department appears to consist of three quality officers and one sampling
employee, and insufficient evidence has been provided to establish that this position would amount to more
than a first-line supervisory role, or that it would rise to the level of a function manager. Again, the petitioner
has provided no detailed description for this position, as it instead opted to elevate the beneficiary to the
position of chief operating officer of the Polish entity when responding to the director's request for evidence.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting "the
burden of proof in these proceedings. Matter of Soffici, 22 I~N Dec. 158, ~65 (Comm. 1998) (citing Matter
of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Based on the foregoing discussion, the petitioner has failed to provide consistent, detailed descriptions of the
beneficiary's position title(s) and job duties while employed by the foreign entity, and has offered no
independent or objective evidence to establish where the truth lies. Doubt cast on any aspect of the petitioner's
proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence
offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
fu addition, in reviewing the totality of the evidence submitted, the AAO questions the petitioner's claim that
the beneficiary has been employed in a managerial position since joining the foreign entity in either 2000 or
2001. The record shows that the beneficiary was twenty years old at that time, and it is reasonable to question
whether he was originally hired as a quality manager , chief of quality department, or chief operating officer ,
as claimed by the petitioner. The record does not demonstrate how the beneficiary would have possessed the
qualifications for a managerial position at that time. Further , one of the submitted position descriptions
emphasizes the beneficiary's practical knowledge of metal treatment processes , and his responsibility as a
"customer contact regarding product implementations and quality issues," which implies that he may have
previously held different positions within the organization. Overall, it is not clear that the petitioner has
"provided a complete history of the beneficiary's employment with the.foreign entity, and its claims that he has
always served as a senior-level manager are not persuasive.
As the AAO cannot identify with any degree of certainty what position or positions the beneficiary held
within the three years preceding the filing of the petition, the petitioner has not met its burden to establish that
the beneficiary was employed in a managerial or executive position for at least one year. Accordingly , the
"appeal will be dismissed .
The second issue to be discussed in this matter is whether the petitioner has established that a qualifying. "
relationship exists with the beneficiary 's overseas employer. 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)(15)(L) of the Act; 8 C.F.R § 214.2(1).
The pertinent regulations at 8 C.F.R. § 214.2(1)(1)(ii) define the term "qualifying organization" and related
terms as follows:
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(G) Qualifying organization means a United States or foreign firm , corporation, or other
legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the definitions of
a parent, branch , affiliate or subs idiary specified in paragraph (l)(1)(ii) of this
section ;
(2) Is or will be doing business (engaging in international trade is not required) as
an employer in the United States and in at least one other country directly or
through a parent, branch, affiliate or subsidiary for the duration of the alien's
stay in the United States as an intracompany transferee; and,
. (3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act.
* * *
en Parent means a firm, corporation, or other legal entity which has subs idiaries.
(J) Branch means an operating division or office of the same organization housed in a
different location.
(K) Subsidiary means a firm, corporation , or other legal entity of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity; or owns , ·
directly or indirectly, half of the entity and controls the entity ; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over
the entity; or owns, directly or indirectly, less than half of the entity , but in fact controls
the entity.
(L) Affiliate means
(1) One of two subsidiaries both of which are owned and controlled by the same
parent or individual, or
(2) One of two legal entities owned and controlled by the same group of
individuals , each individual owning and controlling approximately the same
share or proportion of each entity.
The petitioner indicated on Form 1-129 that it is a subsidiary of "Gotec" located in Poland. The petitioner
submitted a copy of the U.S. company's certificate of formation as a Delaware limited liability company on
October 11 , 2005, a copy of its certificate of authority to transact business in Indiana, and a copy of the
company's limited liab ility company agreement. The agreement was made on October 22, 2005 between
. as members of the limited liability company, and indicates that each
LIN 06 044 51619
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member pas a 50 percent interest in the company. The agreement indicates that
German corporation , is an affiliate 011••••••
_. - --- --- - , a
On December 1, 2005, the director requested additional evidence to establish that a qualifying corporate
relationship exists between the petitioner and the beneficiary's foreign employer . Specifically , the petitioner
requested documentary ownership of cornmon ownership 'and control between the two companies , to include
annual reports, articles of incorporation/organization , financial statements, and/or evidence of ownership of
all outstanding stock for both entities.
In its response dated February 22,2006, the petitioner submitted: (1) a copy of the above-referenced limited
liability agreement; (2) two transfer and assignment agreements by which transferred a 50
percent interest in the petitioner to . , and a 100% interest in I to_
••••••• (3) a letter from , the beneficiary's current employer , stating that
th~ Polish company is wholly owned by of Germany; and , (4) an excerpt from the
••••• web site which identifies the petitioner] as
subsidiaries of the German parent company.
The director denied the pet ition on March 1, 2006, concluding that the petitioner had failed to establish that it
has a qualifying relationship with the beneficiary's foreign employer. The director determined that the limited
liability agreement submitted did not adequately illustrate the ownership of the U.S. entity and its relationship
to the foreign entity, and observed that the petitioner had failed to subm it documentary evidence to
corroborate its claim that the beneficiary's Polish employer is a subsidiary of The
: director acknowledged receipt ofthe stock transfer agreements granting ndirect 50
percent ownership of the petition ing company , but noted that the petitioner had provided no evidence of the
creation and ownership of prior to the transfer, nor did it submit stock certificates or stock
ledgers to demonstrate the ownership of this company after the stock transfer.
On appeal, counsel does not specifically address this issue, but the petitioner does submit a group
organizational chart which indicates that owns a 100 percent interest in both ••••• and
••••• 1, and that ( owns a 50 percent interest in the petitioning company.
Upon review , the AAO finds sufficient evidence to establish that the petitioner and the beneficiary's foreign
employer are affiliates as defined at 8 C .F.R. § 214.2(l)(1)(ii)(K)(l ). Although the petitioner did not submit
copies ofstock certificates and membership certificates , the totality of the evidence submitted is sufficient to
. I .
demonstrate that both the petitioning company and the beneficiary's foreign employer are ultimately owned
and controlled by y and are part of the multinational " JI." The director's request for
evidence advised the petitioner that the evidence submitted "may include , but is not limited to" documentation
such as annual reports , financial statements, and/or evidence of stock ownership. The petitioner therefore was
not specifically requested to submit copies of stock cert ificates or stock ledgers and the AAO will not deny
the petition on this basis when it finds the other evidence satisfactory to establish the claimed relationship. In
particular, the petit ioner provided evidence that both the U .S. and Polish companies are listed among the
parent company's subsidiaries on the group's public web site, as well as a tax return for the Polish company
LIN 06 044 51619
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that identifies
issue only will be withdrawn.
as the company's owner. The director's decision with respect to this
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 V.S.c. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.