dismissed L-1A Case: Product Distribution

U.S. Department of Homeland Securitv 
,we ~"~oh7. ;-acted ta 
20 ~asiachusetts Ave , N W , Rm ,43042 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
APR 0 5 2005 
File: WAC-03-244-53 15 1 Office: CALIFORNIA SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 l(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that ofice. 
%L- Robert . Wiemann, ~rc or 
Administrative Appeals dfice 
b 
WAC-03-244-53 15 1 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its General Manager as 
an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)(] 5)(L). The petitioner is a corporation organized in the State of 
California that operates as a distributor of disc-lock products for use in bolted metal-to-metal applications. 
The petitioner claims that it is the subsidiary of, located in Caloocan City, 
Philippines. The beneficiary was initially approved for L-IA status in the United States, and the petitioner 
now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that: (1) the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity; and (2) the petitioner has a 
qualifying relationship with the beneficiary's foreign employer. 
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 petitioner 
has submitted sufficient evidence to show that the beneficiary is employed in a primarily managerial or 
executive capacity, and that the petitioner has a qualifying relationship with the beneficiary's foreign 
employer. Counsel further asserts that the director erroneously focused on the petitioner's financial status 
rather than the beneficiary's actual duties. In support of these assertions, counsel submits a brief, additional 
evidence, and previously submitted documents. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or execlltive 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. 3 214.2(1)(3) states that an individual petition filed on Form I-i29 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 (I)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
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(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 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 first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(8) of the Act, 8 U.S.C. $ 1 101(a)(44)(B), defines the term "executive capaci~ " as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision making; and 
(iv) receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
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In the initial petition filed on August 27, 2003, the petitioner described the beneficiary's job duties as follows: 
[The beneficiary's] duties include establishing and implementing company goals, strategies, 
policies and procedures. Using her independent discretion and authority in identifying and 
cultivating new distributors in the pursuit of the Petitioner's objectives, she implements sales 
strategies and marketing programs designed to increase revenue and client base within the 
distribution territory. She negotiates with manufacturers and product users on payment and 
shipping terms, consults with the Vice President and confers with the distributors and sales 
representatives to promote her strategies. 
[Tjhe Beneficiary retains the highest position within the Petitioner's organization. 
Beneficiary will continue to perform the above-described duties, and she will continue to 
determine goals and time frames, funding and operational procedures. She will further 
examine and structure staffing requirements and allocation of resources. 
A critical function performed by lthe beneficiary] involves the resale of products the 
Petitioner carries. It is imperative that Beneficiary be updated on developments in the market 
and should always be aware of trends in cost. She will continue to ensure that the Petitioner's 
resources are optimized by keeping costs down and maximizing the use of resources. 
Additionally, Beneficiary will direct activities of the personnel to ensure high quality of 
service to clients, schedule compliance, [and] budgetary concerns. She will further establish 
standards and procedures for documentation, and modify schedules and plans, as required. 
Cn October 19, 2003, the director requested additional evidence. In part, thedirector requested: (1) an 
organizational chart for the petitioner that identifies the beneficiary's position and the names and titles of all 
employees under the beneficiary's supervision; (2) copies of the petitioner's California Forms DE-6, Quarterly 
Wage Report, for the previous six quarters; (3) copies of the petitioner's Forms 941, Employer's Quarterly 
Tax Return, for the previous six quarters; (4) copies of the petitioner's payroll summary, W-2s, and W-3 
evidencing wages paid to employees; (5) a copy of the petitioner's 2002 Form 1120, U.S. Corporate lncome 
Tax Return, with all schedules; (6) a copy of the petitioner's 2002 State Income Taxes; and (7) a detailed 
description of the beneficiary's job duties. 
In a response dated January 8, 2004, in part the petitioner submitted: (I) an organizational chart; (2) copies of 
the petitioner's Forms DE-6 for the fourth quarter of 2002, and the first and second quarters of 2003; (3) 
copies of the petitioner's Forms 941, Employer's Quarterly Tax Return, for the four quarters of 2002; (4) 
copies ~f the petitioner's 2002 payroll summary, W-2s, and W-3; (5) a copy of the petitioner's 2002 Form 
1120, U.S. Corporate Income Tax Return, with all schedules; (6) a copy of the petitioner's 2002 State Income 
Taxes; and (7) a letter providing a more detailed description of the beneficiary's duties in the United States as 
f0l:ows: 
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Procurement 
Analyze statistics pertaining to inventory and demand 
Analyze market and delivery conditions to determine present and future product 
availability 
Sales & Distribution 
Review sales activities 
Coordinates sales distribution by establishing sales territories 
Analyzes sales statistics to formulate basis for variable pricing among Special 
Distributors and sales potential for other possible customers 
Reviews documentation of prospective customers verifying financial status and 
reputation and renders final approval of [sic] rejection 
Negotiates contracts with various courier services for national and international sales 
distribution for volume shipping 
Reviews periodic Sales Reports showing sales volume and potential sales 
Marketing 
Reviews market analysis to determine customer needs, volume potential, price 
schedules, discount rates 
Develops sales campaign to promote sales and acconodate [sic] the goals of the 
company 
Renders final approval over Brochures, Manuals, and Technical Publications 
May direct product research and development, as lleeded 
General Administration 
Analyzes and devises operational procedures to ensure most effecient [sic] methods 
of ccomplishing [sic] work 
Formulates procedures for systematic retention. prokction, retrieval, transfer, and 
disposal of records 
Initiates cost reduction programs 
Directs the company's financial goals and budgets 
Plans and implements policies related to personnel, inciuding recruitment, 
promotions, transfers, terminations 
On January 3 1, 2004, the director denied the petition. In part, the director determined that the petitioner did 
not establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. The director stated the following: 
The petitioner was established in 1988, and claims to have 1 employees with a gross income 
of $190,000.00[.] However, a review of the IRS Form 1120, U.S. Corporate Income Tax 
Return for year 2002 shows the company have [sic] a gross receipts of $135,247.00, and with 
an income of minus $898,621.00[.] There are no cost [sic] of labor, [and] an inventory of 
WAC-03-244-53 15 1 
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only $2,720. The organizational [chart] indicates that there are four corporation officers, yet, 
the 1120 tax return does not indicate any compensation or salary paid to those officers. The 
quarterly State wage report ending September 30, 2003 indicates four employees, which 
includes the beneficiary. However, based on these taxes withheld from these employees, it 
appears that they are skilled workers and not managers as claimed in the petition. 
When a company has an abundance of manager[s] (4) and 1 support staff, it become[s] 
questionable as to whether the operator of the business in engaged primarily in managerial or 
executive duties. There is insufficient evidence to demonstrate that the beneficiary will 
supervise and control the work of other supervisory, professional, or managerial employees 
who will relieve him/her from performing non-qualifying duties. The petitioner has not 
shown that the beneficiary has been and will function at a senior level within an 
organizational hierarchy. The petitioner already employs a president who is in charge of the 
overall operation of the company. In this instance, it appears that the beneficiary's title along 
with the other two managers is a position title only. It appears that the beneficiary has been 
performing the routine non-qualifying duties of the day-to-day operations of the business . . . . 
On appeal, counsel asserts that the petitioner has submitted sufficient evidence to show that the beneficiary is 
employed in a primarily managerial or executive capacity. Counsel further asserts that the director 
erroneously focused on the petitioner's financial status rather than the beneficiary's actual duties. In her brief, 
counsel states the following: 
As General Manager for the company, the Beneficiary is involved in 100% 
managerial/executive duties in that she directs the overall operation of the corporation and 
specifically, directs the operation of the corporation through the Assistant General Manager 
and Operations and Distribution Manager. 
[Citizenship and Immigration Services' (CIS)] decision refers to the 2002 corporate income 
tax return submitted in reply to the RFE and somehow conc!udes that the Beneficiary is not 
managing Managers, but rather skilled wcrkers, based on the taxes withheld. This conclusion 
is entirely irrational and speculative as the withholding of taxes bears no indication on the 
type of duties performed by an individual. 
Additionally, [CIS] points out that the Petitioner maintains four (4) corporate officers, but 
that the corporate income tax return does not indicate any compensation paid to the officers. 
The Petitioner contends that this confirms the high-level nature of the Beneficiary's duties 
within the organization. The corporate officers receive no compensation as their involvement 
in the activities of the company are wholly limited in nature. Rather, it is the Beneficiary 
who has been charged with the overall development and implementation of the corporation's 
WAC-03-244-53 15 1 
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goals and strategies, which confirms that her position is that of a multinational executive or 
manager. 
Upon review, counsel's assertions are not persuasive. 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. 
2142()(3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
managerial or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
In the instant case, the petitioner does not clearly state whether the beneficiary will perform managerial or 
executive tasks, yet the beneficiary has the title of general manager. Counsel states that the beneficiary's 
duties "are those primarily of a manager or executive," and cites the statutory definitions of both "managerial 
capacity" and "executive capacity." To establish eligibility, at a minimum the petitioner must show that the 
beneficiary's duties satisfy either the definition of "managerial capacity" or "executive capacity." To sustain 
an assertion that the beneficiary is primarily engaged in both managerial duties and executive duties, the 
petitioner must establish that the beneficiary meets each of the four criteria set forth in the statutory definition 
for executive duties under section 1 Ol(a)(44)(B) of the Act, and the statutory definition for managerial duties 
under section 1 0 1 (a)(44)(A) of the Act. 
The description of the beneficiary's duties and the documentation of the beneficiary's subordinate employees 
do not provide a clear indication of the beneficiary's actual duties. The petitioner submitted an organizational 
chart that reflects that the beneficiary will have supervisory authority over an assistant general manager, an 
operations & distribution manager, an administrathe assistant, and 20 special distributors. The petitioner 
submitted a list of its alleged special distributors including 24 companies, yet it has not explained their precise 
role in the petitioner's operations such that the AAO can understand their impact on the beneficiary's duties. 
The only independent evidence the petitioner has provided to show that it utilizes outside distributors consists 
of eight invoices. All but one of these invoices are dated after the date of filing the petition. The petitioner 
must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be 
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. Matter 
of Michelin Tire Cbrp., 17 I&N Dec. 248 (Reg. Comm. 1978). Thus, all but one of the invoices are not 
probative of the petitioner's eligibility as of the filing date, and the petitioner has not sufficiently documented 
that it utilizes the services of 24 special distribbtors. Gcing 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 Calvornia, 14 I&N Dec. 190 (Reg. Comm. 1972). 
The job descriptions submitted for the beneficiary contain general and ambiguous statements, as well as 
assertions that are inconsistent with representaticns made elsewhere in the record. Thus, the job descriptions 
provide little insight into the true nature of the tasks the beneficiary will perform in the United States on a 
daily basis. For example, the petitioner states that "the Beneficiary retains the highest position within the 
Petitioner's organization," yet the petitioner's organizational chart clearly reflects that it employs a president 
who has authority over the beneficiary. The petitioner states ihat the beneficiary "consults with the Vice 
WAC-03-244-53 15 1 
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President," yet the petitioner has failed to identify its vice president, and no such employee is presented in the 
organizational chart. The petitioner provides that the beneficiary "will continue to determine goals and time 
frames, funding and operational procedures" and "modify schedules and plans," yet such general statements 
provide no indication as to what the beneficiary's actual day-to-day tasks will be. The actual duties 
themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103 
(E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner provides that the beneficiary will have responsibility for numerous marketing tasks, such as 
"[reviewing] market analysis to determine customer needs, volume potential, price schedules, discount rates." 
The petitioner states that the beneficiary "[dlevelops sales campaign[s] to promote sales and accomodate [sic] 
the goals of the company." Yet, upon review of the position descriptions for the beneficiary's subordinates, it 
is evident that no other employees share in marketing tasks. Thus, the evidence of record suggests that the 
beneficiary is solely responsible for marketing the petitioner's products. The petitioner further states that the 
beneficiary "[rlenders final approval over Brochures, Manuals, and Technical Publications," yet the duty of 
creating such materials is not attributed to any of the beneficiary's subordinates. Thus, the evidence of record 
suggests that the beneficiary must create these materials. The petitioner provides that the beneficiary "[mlay 
direct product research and development," yet no other emp!oyee is responsible for performing such research 
and development. Thus, the evidence of record suggests that the beneficiary performs these tasks herself. 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that her duties are "primarily" managerial or executive. See sections 101 (a)(44)(A) and 
(B) of the Act. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial or executive functions and what proportion would be non-qualifying. As discussed above, the 
petitioner lists the beneficiary's duties as including both managerial and administrative or operational tasks, 
but fails to quantify the time the beneficiary spends on them. This failure of documentation is important 
because several of the beneficiary's daily tasks, such as marketing and research tasks, do not fall directly 
under traditional managerial or executive duties as defined in the statute. For this reason, the AAO cannot 
determine whether the beneficiary is primarily performing the duties of a manager or executive. See sections 
10 1 (a)(44)(A) and (B) of the Act. 
The petitioner indicates that the beneficiary will have supervisory authority over an assistant general manager, 
an operations & distribution manager, and an administrative assistant. Altho~~gh the beneficiary is not 
required to supervise personnel, if it is claimed that her duties involve supervising employees, the petitioner 
must establish that the subordinate employees are supervisory, professional, or managerial. See section 
10 1 (a)(44)(A)(ii) of the Act. 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101 (a)(32) of the Act, 8 U.S.C. 5 1 101 (a)(32), states that "[tlhe term profession .shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
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endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, I 1 I&N Dec. 686 (D.D. 1966). 
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held 
by a subordinate employee. The possession of a bachelor's degree by a subordinate employee does not 
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is 
defined above. In the instant case, the petitioner states that all three of the petitioner's subordinates possess 
college degrees. Yet, the petitioner failed to indicate what degrees these individuals hold, and whether their 
degrees are required in order to successfully perform their duties. Nor has the petitioner shown that any of the 
beneficiary's silbordinates supervise other staff members or manage a clearly defined department or function 
of the petitioner, such that they could be classified as managers or supervisors. Thus, the petitioner has not 
shown that the beneficiary's subordinate employees are supervisory, professional, or managerial, as required 
by section I0 l(a)(44)(A)(ii) of the Act. 
The fact that the beneficiary and two of her subordinates have managerial titles does not, by itself, show that 
they are employed in a managerial capacity. As noted by the director, the fact that four of the petitioner's five 
employees have managerial titles dilutes the value of using such titles as evidence of their employment 
capacity. Again, the actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd 
v. Suva, 724 F. Supp. I 103, I 108 (E.D.N.Y. 1989), aff'd, 905 F.?d 4 1 (2d. Cir. 1990). 
The director indicated that, "based on [the] taxes withheld from [the petitioner's] employees, it appears that 
they are skilled workers and not managers as claimed in the petition." Counsel asserts that "withholding of 
taxes bears no indication on the type of duties performed by an individual." The AAO agrees, and the 
director's comment on this point will be withdrawn. Nevertheless, the petitioner has failed to establish that 
the beneficiary and her subordinates are managers for the reasons discmsed above. 
The director stated that "[tlhe [petitioner's] organizational [chart] indicates that there are four corporation 
officers, yet, the 1120 tax return does not indicate any compensation or salary paid to those officers." Upon 
review of the petitioner's organizational chart, it appears that the director interpreted the chart to indicate that 
the beneficiary, the assistant general manager, and the operations & distribution manager are officers of the 
company. However, the only officer identified in the chart is the petitioner's president. Thus, the director's 
comments suggest that he misunderstood the organizational chart, and his comments in this regard will be 
withdrawn. Counsel takes issue with the director's statement, and alleges that the petitioner's corporate 
officers are not compensated due to the minimal role they play in the petitioner's operations, and that this fact 
supports that the beneficiary has significant responsibility and IS employed in a primarily managerial or 
executive capacity. However, the petitioner has failed to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity for the reasons discussed above. 
Based on the foregoing, the petitioner has not esbblished that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 5 2 14.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
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The second issue in this proceeding is whether the petitioner has established that it has a qualifying 
relationship with the beneficiary's employer abroad. See 8 C.F.R. 8 214.2(1)(3)(i). 
The regulation at 8 C.F.R. § 214.2(1)(1)(ii) provides: 
(G) Qualifiing organization means a United States or foreign firm, corporation, or other legal entity 
which: 
(I) Meets exactly one of the qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (IXl)(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. 
(H) Doing business means the regular, systematic, and continuous provision of goods andor services 
by a qualifying organization and does not include the mere presence of an agent or office of the 
qualifying organization in the United States and abraad. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed in a different 
location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half 
of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint 
venture and has equal control and veto power over the entity; or owns, directly or indirectly, less 
than half of the entity, butin fact controls the entity. 
(L) -4filiate means 
(I) 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. . . 
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In the initial petition, the petitioner indicated that it is the subsidiary of the beneficiary's foreign employer, as 
the foreign entity owns 100 percent of the petitioner's stock. As evidence of this relationship, the petitioner 
submitted: (1) a copy of the petitioner's articles of incorporation; (2) a copy of the petitioner's certificate of 
amendment of articles of incorporation; and (3) a copy of a stock certificate showing that the foreign entity 
acquired 3000 shares of the petitioner's stock. 
In the director's request for evidence, he requested a copy of the petitioner's 2002 Form 1120, U.S. Corporate 
Income Tax Return, with all schedules, and evidence that the petitioner is doing business in the United States, 
such as receipts of transactions and signed contracts. 
In response, the petitioner submitted: (1) a copy of its 2002 Form 1120X, Amended U.S. Corporate Income 
Tax Return, dated December 23,2003; (2) a copy of its 2002 Form 1120, U.S. Corporate Income Tax Return; 
(3) copies of invoices; and (4) copies of bills issued to the petitioner for communications, shipping, and 
insurance services. 
In his denial, the director found that the petitioner did not establish that it has a qualifying relationship with 
the beneficiary's foreign employer. The director stated that following: 
The IRS Form 1120, U.S. Corporate Income Tax Return for the year 2002, SCHEDULE K 
Part 4 and Part 7, does not indicate that the U.S. Corporation is a subsidiary in an affiliated 
group or a parent-subsidiary controlled group. In addition, the U.S. Corporation did not file 
Form 5472, information return of a 25% Foreign owned U.S. Comoration or a Foreig~! 
Cornoration engaged in a U.S. Trade or Business. 
The record does not show that the two companies are owned and controlled by the same 
parent or individual, or that the two companies are owned and controlled by the same group 
of individuals, each owning and controlling approximately the same share or proportion of 
each entity. There is no significant commonality of ownership that exists between the United 
States and the foreign entities. 
On appeal, counsel asserts that the petitioner has a qualifying relationship with the beneficiary's foreign 
employer. Counsel states that the director "failed to adequately review the documents presented." Counsel 
provides that: 
The documents prove that the Petitioner is entirely owned and controlled by the parent 
company.. . . . The stocks were validly transferred . . . to [the foreign entity] on January I, 
2001, in exchange for a $202,000 promissory note . . . . Additionally, the Petitioner has 
indicated on the corporate income tax return that [the foreign entity] is the sole owner of the 
Petitioner. 
In support of these assertions, the petitioner submits: (1) a copy of its stock ledger; (2) a copy of an additional 
stock certificate; (3) an document titled "Agreement for Purchase and Sale of Stock," dated January 1, 2001; 
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(4) a copy of a promissory note surrendered as consideration for stock; and (5) previously submitted 
documents. 
Upon review, a portion of the director's analysis will be withdrawn, yet the decision on this point will 
ultimately be affirmed. The regulation and case law confirm that ownership and control are the factors that 
must be examined in determining whether a qualifying relationship exists between United States and foreign 
entities for purposes of this visa classification. Matter of Church Scientolop International, 19 I&N Dec. 593 
(BIA 1988); see also Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Comm. 1982). In context of this visa petition, ownership refers to the direct or 
indirect legal right of possession of the assets of an entity with full power and authority to control; control 
means the direct or indirect legal right and authority to direct the establishment, management, and operations 
of an entity. Mutter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
The AAO notes that the petitioner provides documentation on appeal that was not previously available to the 
director. As the director declined to request additional evidence of the petitioner's qualifying relationship 
with the foreign entity, the newly submitted evidence will be considered. Specifically, the petitioner submits 
evidence to show that the foreign entity acquired 100 percent of the petitioner's outstanding shares of stock on 
January 1, 2001, including a stock ledger, stock certificates, a stock purchase agreement, and a promissory 
note. 
The director pointed out that the petitioner's 2002 Form 1120, U.S. Corporate Income Tax Return failed to 
indicate that the foreign entity owns the petitioner's stock. However, as correctly noted by counsel, the 
petitioner supplemented its 2002 Form 1120 with a Form 1120X, Amended U.S. Corporate Income Tax 
Return, in order to reflect that the foreign entity is the sole owner of the petitioner. The director's comment on 
this issue will be withdrawn. As noted by the director, the petitioner did not provide its 2002 Form 5472, 
information return of a 25% Foreign owned U.S. Corporation or a Foreign Corporation engaged in a U.S. 
Trade or Business. However, considered in aggregate, the petitioner has submitted sufficient evidence to 
establish that its stock is 100 percent owned by the foreign entity. 
Yet, in order for the petitioner to establish that it has a qualifying relationship with the foreign entity, it must 
show that it was actively doing business at the time the petition was filed. See 8 C.F.R. $ 214.2(l)(ii)(G)(2). 
In response to the director's request for documentation of the petitioner's business activity, the petitioner 
submitted bills and invoices. With the exception of one insurance bill dated July 9, 2003 and one invoice 
WAC-03-244-53 15 1 
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dated August 25, 2003, all of these documents reference activity that occurred after the date of filing the 
petition. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The documents regarding 
activity that occurred after the date of filing are not probative of whether the petitioner was doing business as 
of the filing date. 
The petitioner's invoice and insurance bill are not sufficient evidence to establish that it is doing business as 
contemplated by 8 C.F.R. 5 214.2(l)(ii)(H). The petitioner's income tax filings and quarterly reports reflect 
summaries of income, expenses, and wages paid, yet, by themselves, they are not adequate to show "the 
regular, systematic, and continuous provision of goods and/or services." See 8 C.F.R. 5 214.2(l)(ii)(H). Thus, 
the petitioner has failed to show that it is doing business. See id. 
As the petitioner has failed to show that it is doing business, it has failed to establish that it can be considered 
a qualifying organization. See 8 C.F.R. 5 214.2(l)(ii)(G)(2). Based on the foregoing, the petitioner has failed 
to show that it has a qualifying relationship with the foreign entity as required by 8 C.F.R. Fj 214.2(1)(3)(ij. 
For this additional reason, the appeal will be dismissed. 
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 I36 1. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.