dismissed L-1A Case: Property Investment And Management

US. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(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\bert P. Wiemann, ~h;ef 
ministrative Appeals Office 
SRC 04 240 50133 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1 lOI(a)(15)(L). The petitioner is a limited liability company organized in the State of Texas that 
intends to engage in property investment and management. The petitioner claims that it is the affiliate or 
subsidiary of Wigatap Trade and Investment Limited, located in Lagos, Nigeria. The petitioner seeks to 
employ the beneficiary as vice-president and chief operating officer of its new office in the United States for a 
three-year period. 
The director denied the petition concluding that the petitioner did not establish the existence of a qualifying 
relationship between the United States entity and the foreign entity. 
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 U.S. entity 
qualifies as both an affiliate and subsidiary of the foreign entity. Counsel submits a brief and new evidence in 
support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(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. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
SRC 04 240 50133 
Page 3 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
(v) 
 If the petition indicates that the beneficiary is coming to the United States as a 
manager or executive to open or to be employed in a new office 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 of the 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: 
(I) 
 The proposed nature of the office describing the scope of the entity, 
its organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of 
the foreign entity to remunerate the beneficiary and to commence 
doing business in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The issue in the present proceeding is whether the petitioner established that the beneficiary's foreign 
empIoyer and the U.S. entity have a qualifying relationship as required by 8 C.F.R. § 214.2(1)(3)(i). 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzfjring 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 subsidiary specified in 
paragraph (l)(l)(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 
SRC 04 240 50 133 
Page 4 
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[.] 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(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) AfJiliate 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 nonimmigrant petition was filed on September 10, 2004. On the L classification supplement to Form I- 
129, the petitioner stated that the U.S. company is a subsidiary of the company abroad and described the 
ownership of each company as follows: 
[Foreign entity] : .S. enti Members: 
1. 
2. 
3. 
4. 
5. 
. . 
m 
The petitioner submitted its art~cles of organization, which Identify the beneficiary,- 
1 as managers of the limited liability company. The articles of 
organization dd-not ~dentifjr the membership of the organization or indicate the number of membership units 
authorized by the company. 
SRC 04 240 50 133 
Page 5 
The petitioner also provided a copy of the foreign entity's registration indicating that the entity is authorized 
to issue 900,000 shares. The document provides the following information regarding share issuance: 
The director issued a request for evidence on September 23, 2004, instructing the petitioner to submit: (1) 
evidence that a money transfer has taken place to fund the start-up of the U.S. company; (2) a copy of all 
pages of the company's articles of incorporation; and (3) copies of stock certificates showing who owns the 
U.S. company. 
In a response dated October 6, 2004, the petitioner re-submitted its articles of organization, noting that the 
document is only two pages long. Counsel for the petitioner noted that as a limited liability company, the 
owners hold membership certificates rather than stock certificates, and stated that "the owners of [the 
petitioner] are the owners of [the foreign entity]. The petitioner submitted a total of seven membership 
certificates, all of which are dated June 10, 2004. The membership certificates indicate on their face that the 
company is authorized to issue 1,000,000 membership units with a par value of $1.00 per unit. None of the 
submitted certificates indicate the number of units issued to each member. The petitioner provided copies of 
the following certificates: 
The petitioner submitted evidence that the foreign entity transferred $25,000 to the petitioner's bank account 
on July 28,2004. 
The director denied the petition on October 21, 2004, concluding that the petitioner had not established that 
the U.S. company has a qualifyrng relationship with the foreign entity. The director noted that the petitioner 
had provided inconsistent evidence regarding the ownership of the U.S. entity and observed that the submitted 
membershrp certtficates did not identify the number of shares or membership units held by each member. The 
director concluded that the petitioner had failed to establish that the U.S. entity is a subsidiary of the foreign 
entity, and failed to establish that the two entities are affiliates based on common ownership and control by an 
individual or group of individuals. , 
SRC 04 240 50133 
Page 6 
On appeal, counsel for the petitioner asserts that the U.S. entity is both a subsidiary and an affiliate of the 
foreign entity. Counsel asserts that the U.S. company is owned by the following members in the following 
proportions: 
Counsel states: 
It is clear from the above that all of the . . .shares of the foreign company are owned by 
members and owners of the U.S. Company. In addition, the foreign company is also an owner 
and member of the U.S. Company. Thus, of the seven members of the U.S. Company, five 
are owners of the foreign company while a sixth member is the foreign company itself. 
Accordingly, there is a near unanimity of ownership between the foreign and U.S. Company. 
The service states however that the percentage or proportion shareholding in the U.S. 
Company was not stated in the response to its request for evidence. However, this omission 
flows directly from the nature of the U.S. Company as a Limited Liability Company. . . . 
Unlike a corporation, an LLC's organizing article does not require the delineation of 
members' interest in the company. Members' interest is usually provided for in less informal 
arrangements, such was [the petitioner's case]. The same individuals that own the entire 
foreign corporation also own the U.S. Company. In addition, the foreign company owns 5 1% 
of the U.S. Company. Thus 96% of the U.S. Company is owned by both the same owners of 
the foreign company and foreign company itself. Accordingly we submit. . .the same owners 
of the foreign company own more than 50% of the U.S. company and therefore meets the 
statutory definition of a subsidiary of the foreign company. 
Counsel further contends that the petitioner and the foreign entity are affiliates since "virtually the same 
individuals own both companies." Counsel asserts that the ownership structure "sufficiently demonstrates 
that the foreign company has control of the U.S. Company and therefore meets the statutory requirements of 
an affiliate of the foreign company." 
In support of the appeal, the petitioner submits a "Pre-Organization Agreement" for the U.S. entity, dated 
May 12,2004. The agreement indicates at clause seven: 
The [members] shall pay to the limited liability company the following sums, and the 
managers shall authorize the officers of the limited liability company to issue membership 
certificates of the limited liability company representing the percentage of members as 
follows: 
SRC 04 240 501 33 
Page 7 
Commitment Contribution Membership Certificate No. 
Upon review, counsel's assertions and the submitted documentation do not establish that the petitioner has a 
qualifying relationship with the foreign entity. The regulation and cake 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 vlsa classification. Matter of Church Scientology 
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 (Comrn. 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 indirgct legal right and authority to direct the establishment, 
management, and operations of an entity. Matter of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates, or in this case, 
membership certificates, alone are not sufficient evidence to determine whether a stockholder or member 
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, or equivalent documents, 
must also be examined to determine the total number of shares or membership units issued, the exact number 
issued to each shareholder or member, and the subsequent percentage ownership and its effect on control of 
the company. Additionally, a petitioning company must disclose all agreements relating to 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., 19 I&N Dec. at 362. Without full disclosure of all 
relevant documents, Citizenship and Immigration Services (CIS) is unable to determine the elements of 
ownership and control. 
The evidence submitted with the initial petition indicated that five individuals own the foreign entity, with 
none of them holding a majority of the shares. The petitioner initially indicated that the U.S. entity has four 
members, but did not disclose required information regarding the percentage interest owned by each member 
and the resulting control of the company. The initial evidence suggested that the two companies had three 
owners in common, but not necessarily sufficient common ownership and control to establish an affiliate 
relationship as defined at 8 C.F.R. 4 214.2(1)(l)(ii)(K)(2). 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 
8 C.F.R. 
 214.2(1)(3)(viii). In this case, the petitioner failed to submit the required initial evidence to 
establish a qualifying relationship with the foreign entity, so the director reasonably requested additional 
documentation, namely the petitioner's stock certificates (or membership certificates) showing who actually 
owns the United States company. The petitioner chose to submit its membership certificates numbers 2, 3, 4, 
SRC 04 240 50133 
Page 8 
5, 6, 19 and 20, issued to six individuaIs and one company. The petitioner provided no explanation as to why 
it initially indicated that the company had only four individua1 members. It is incumbent upon the petitioner 
to resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 5 82, 59 1-92 (BIA 1988). 
Similarly, the petitioner failed to provide an explanation regarding the absence of membership certificates 
number 1, and numbers 7 through 18. Without additional clarification, the AAO cannot just assume that these 
certificates were not issued, and it is therefore not clear whether the petitioner has fully disclosed the 
identities of all of its members. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter ofSofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, as noted by the director, the evidence submitted in response to the director's request for evidence 
failed to answer the critical question in this case: who actually owns and controls the United States entity? 
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. 8 C.F.R. ij 103.2(b)(14). Instead of providing the requested evidence regarding the petitioner's 
ownership, counsel stated: "The owners of [the U.S. entity] are the owners of [the foreign entity]." Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N 
Dec. 503,506 (BIA 1980). 
As none of the submitted membership certificates disclosed the number of membership units issued to each 
member, and as the petitioner failed to clarify the inconsistencies noted above, the director correctly 
concluded that the petitioner had not established the existence of the requisite qualifying relationship between 
the petitioner and the foreign entity. 
Counsel for the petitioner now submits additional evidence regarding the ownership and control of the 
petitioning entity on appeal in the form of a "Pre-Organization Agreement," and claims that the foreign entity 
owns a 51 percent interest in the petitioning organization. The regulation states that the petitioner shall 
submit additional evidence as the director, in his or her discretion, may deem necessary. The purpose of the 
request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has 
been established, as of the time the petition is filed. See 8 C.F.R. $3 103.2(b)(8) and (12). Where, as here, a 
petitioner has been put on notice of a deficiency in the evidence and has been given an opportunity to respond 
to that deficiency, the AAO will not accept evidence offered for the first time on appeal. See Matter of 
Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the 
petitioner had wanted the submitted evidence to be considered, it should have submitted the documents in 
response to the director's request for evidence, Id. Under the circumstances, the AAO need not consider the 
sufficiency of the evidence submitted on appeal. 
Counsel has not provided an explanation for the previous omission of the "pre-organization agreement," 
which provides the type of information specifically requested by the director in her request for evidence. 
SRC 04 240 50133 
Page 9 
Further, the existence of the formal pre-organization agreement appears to be contrary to counsel's statement 
on appeal that "[mlembers' interest [in a limited liability company] is provided for in less informal 
arrangements, such as [the petitioner's] case." The agreement is not accompanied by secondary evidence, 
such as evidence that the seven claimed members actually paid for their interest in the company as required 
by the agreement. Further the petitioner has still not explained why it initially stated that the U.S. company 
had only four members, or why the company opted not to issue membership certificates number 1 and 
numbers 7 through 18. A petitioner may not make material changes to a petition in an effort to make a 
deficient petition conform to CIS requirements. See Matter of Izurnrni, 22 I&N Dec. 169, 176 (Assoc. Cornrn. 
1998). 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer 
seelung immigration benefits. See, e.g., Spencer Enterprises Inc. v. US., 345 F.3d 683, 694 (9th Cir., 2003). 
However, anytime a petition includes numerous errors or discrepancies, and the petitioner fails to resolve 
those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will raise 
serious concerns about the veracity of the petitioner's assertions. Doubt cast on any aspect of the petitioner's 
proof may undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter ofHo, 19 I&N Dec. at 591. 
The petitioner in this matter has not submitted consistent or credible evidence of its ownership and control 
and therefore has not established that it has a qualifying relationship with the foreign entity. For this reason, 
the appeal will be dismissed. 
Beyond the decision of the director, the evidence of record does not demonstrate that the U.S. entity will 
support a managerial or executive position withn one year of the petition approval as required by 8 C.F.R. tj 
214.2(1)(3)(v)(C). The petitioner has not submitted a business plan or other evidence clearly describing the 
name of the proposed office, the scope of the entity, its organizational structure, the size of the United States 
investment, the financial ability of the foreign entity to remunerate the beneficiary, and the financial ability of 
the petitioner to commence doing business in the United States. The petitioner indicates that it intends to 
acquire investment properties and to invest up to $2.5 million in real estate, but has not specifically described 
the services it intends to provide or provided evidence of funding, other than a single $25,000 wire transfer in 
the petitioner's bank account. The record also contains no evidence of the financial status of the foreign 
entity. The petitioner provided a proposed organizational chart listing seven positions subordinate to the 
beneficiary, but provided no explanation as to when the positions would be filled or what duties the 
beneficiary's subordinates would perform. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SoBci, 22 I&N Dec. at 
165. 
In order to qualify for L-1 nonirnrnigrant classification during the first year of operations, the regulations 
require the petitioner to disclose the business plans and the size of the United States investment, and thereby 
establish that the proposed enterprise will support an executive or managerial position within one year of the 
approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). The minimal evidence submitted with this petition 
does not demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves 
away fi-om the developmental stage to full operations, where there would be an actual need for a manager or 
6r 
SRC 04 240 50133 
Page 10 
executive who will primarily perform qualifying duties. For this additional reason, the petition cannot be 
approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 8 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.