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U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
File: SRC 0506251912 Office: TEXAS SERVICE CENTER Date: fEB 0 1 200~
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~- ---..",",",....~ ~/
, .... ....---- _ .0_""01' .~.,...---
RobertP . Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 0506251912
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 the manager of its sales
department as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner, a corporation
organized under the laws of the State of Florida, claims to be a real estate and development company. The
director denied the petition concluding that the petitioner failed to establish that (1) the beneficiary will be
employed primarily in a managerial or executive capacity; (2) the beneficiary has been employed by the
foreign entity primarily in a managerial or executive capacity; or (3) the beneficiary was employed abroad for
one continuous year within the three years preceding the filing of the petition.
An appeal was subsequently filed. The director declined to treat the appeal as a motion and forwarded the
appeal to the AAO for review. On appeal, the petitioner asserts that the director erred in denying the petition
because the record establishes that the beneficiary will be, and has been, employed primarily as an executive
or manager. The petitioner also asserts that the beneficiary was employed abroad for one continuous year
within the three years preceding the filing of the petition.
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 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)(1)(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 him/her to perform the intended
services in the United States; however, the work in the United States need not be the
SRC 0506251912
Page 3
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. § 1101(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a senior level within the organizational hierarchy or with respect to the
function managed; and
(iv) exercises discretion over the day to day operations of the activity or function for
which the employee has authority. A first line supervisor is not considered to be
acting in a managerial capacity merely by virtue of the supervisor's supervisory
duties unless the employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an
assignment within an organization in which the employee primarily:
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision making; and
(iv) receives only general supervision or direction from higher level executives, the board
of directors, or stockholders of the organization.
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial
duties under section 101(a)(44)(A) of the Act or primarily executive duties under section 101(a)(44)(B) of the
Act, and implies that the beneficiary will be acting as both an executive and a manager. A beneficiary may
not claim to be employed as a hybrid "executive/manager" and rely on partial sections of the two statutory
SRC 0506251912
Page 4
definitions. If the petitioner is indeed representing the beneficiary as both an executive and a manager, it
must establish that the beneficiary meets each of the four criteria set forth in the statutory definition for
executive and the statutory definition for manager. Given the ambiguity, the AAO will consider the appeal as
if the petitioner is asserting that the beneficiary will be employed primarily as either an executive or a
manager and will consider both classifications.
The petitioner described the beneficiary's proposed duties in a letter dated December 29, 2004 appended to
the initial petitioner as follows:
[The beneficiary] will fill the position of Manager in the Sales Department in Miami, Florida
in the office of [the petitioner]. This position is a key managerial one within the Miami office
because this position in this city particularly brings together the creative team to work in each
deal, supervises their work, sets standards for the work and general guidelines for each
assignment which must be followed and executed by the team, and coordinates the various
teams to assure that each deal is attended adequately and on schedule.
The Manager of the Sales Department is responsible for the projects and the beginning of
new deals, accounts, sells, distribution, and suministration [sic] of [the petitioner]. She has a
[sic] day[-]to[-]day discretionary authority in coordinating and directing the work of the
distribution department and is responsible for proper execution of [the petitioner's] accounts.
For this position, the Manager must spend a majority of her time coordinating the work of
this office and the established clients, reviewing its quality for conformity to overall [the
petitioner] and administering [its] department staff.
On January 27, 2005, the director requested additional evidence. The director requested, inter alia, details
regarding the petitioner's current staffing including position titles and job duties of each employee, wage
reports, and tax returns.
In response, the petitioner provided a letter dated April 12, 2005 in which it provides further details regarding
the beneficiary's job duties and the petitioner's current staffing levels. In that letter, the petitioner describes its
staff as a president, a sales manager (the beneficiary), fifteen real estate agents, an advisor on international
contracts (who is also identified as one of the fifteen real estate agents), and an administrative secretary.
While the petitioner asserts that all employees report directly to the beneficiary, the organizational chart
provided by the petitioner is not consistent with this assertion. That chart shows the beneficiary reporting to
the president and supervising "sales persons" and an administrative secretary. The chart also shows other
employees, who were not identified in the letter dated April 12, 2005, supervising a variety of employees,
including "sales persons" and an administrative secretary. Finally, the petitioner provided wage reports
indicating that, as of the last quarter before the filing of the petition, the petitioner had three employees (the
president, the secretary, and a third employee not listed on the organizational chart or in the April 12, 2005
letter). The petitioner makes no attempt to explain the numerous inconsistencies in the record regarding its
staff.
On May 11, 2005, the director denied the petition concluding that the petitioner failed to establish that the
SRC 0506251912
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beneficiary will be employed primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the director erred in denying the petition because the record establishes
that the beneficiary will be employed primarily as an executive or a manager. The petitioner specifically
states that the beneficiary will be a "functional manager."
Upon review, the petitioner'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. § 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. Id. The petitioner must specifically state whether the
beneficiary is primarily employed in a managerial or executive capacity. As explained above, a petitioner
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on partial
sections of the two statutory definitions.
The petitioner has failed to establish that the beneficiary will act in a "managerial" capacity. In support of its
petition, the petitioner has provided a vague and nonspecific description of the beneficiary's duties that fails
to demonstrate what the beneficiary will do on a day-to-day basis. For example, the petitioner states that the
beneficiary's duties will primarily be "coordinating the work of this office and the established clients,
reviewing its quality for conformity to overall [the petitioner] and administering its department staff." The
petitioner did not, however, specifically define what work will be coordinated, what services will be provided
to clients, what work product the beneficiary will review, and what, exactly, will be administered. Without a
more specific description, it cannot be determined that the beneficiary will be primarily engaged in
performing managerial duties and will not be primarily performing non-qualifying administrative or
operational tasks. An employee who "primarily" performs the tasks necessary to produce a product or to
provide services is not considered to be "primarily" employed in a managerial or executive capacity. See
sections 101(a)(44)(A) and (B) of the Act (requiring that one "primarily" perform the enumerated managerial
or executive duties); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm.
1988). Going on record without supporting documentary evidence is not sufficient for purposes of meeting
the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972). Specifics are clearly an important indication of whether a beneficiary's duties are primarily
executive or managerial in nature; otherwise meeting the definitions would simply be a matter of reiterating
the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d.
Cir. 1990).
The petitioner also failed to prove that the beneficiary will supervise and control the work of other
supervisory, professional, or managerial employees, or that she will manage an essential function within the
organization. Overlooking the numerous inconsistencies, the record generally indicates that the beneficiary
will supervise a secretary and approximately fifteen real estate agents. However, the petitioner fails to
provide detailed job descriptions for the subordinate employees, and the position titles alone indicate that
these subordinate employees have no supervisory functions and are performing the tasks necessary to produce
SRC 0506251912
Page 6
a product or provide a service. In view of the above, the beneficiary would appear to be a first-line
supervisor, the provider of actual services, or a combination of both. A managerial or executive employee
must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor,
unless the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church
Scientology International, 19 I&N Dec. at 604. Moreover, the information provided for the subordinate
employees do not establish that they are professionals. I Therefore, the record does not establish that the
beneficiary will be acting in a managerial capacity.
Also, the petitioner has not established that the beneficiary will manage an essential function of the
organization. The term "function manager" applies generally when a beneficiary does not supervise or
control the work of a subordinate staff but instead is primarily responsible for managing an "essential
function" within the organization. See section 101(a)(44)(A)(ii) of the Act. The term "essential function" is
not defined by statute or regulation. If a petitioner claims that the beneficiary will manage an essential
function, the petitioner must furnish a written job offer that clearly describes the duties to be performed in
managing the essential function, i.e., identify the function with specificity, articulate the essential nature of
the function, and establish the proportion of the beneficiary's daily duties attributed to managing the essential
function. See 8 C.F.R. § 214.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary's daily
duties must demonstrate that the beneficiary will manage the function rather than perform the duties related to
the function. In this matter, the petitioner has not provided evidence that the beneficiary will manage an
essential function. The petitioner's vague job description fails to document what proportion of the
beneficiary's duties would be managerial functions, if any, and what proportion would be non-managerial.
Absent a clear and credible breakdown of the time spent by the beneficiary performing her duties, the AAO
cannot determine what proportion of her duties would be managerial, nor can it deduce whether the
beneficiary is primarily performing the duties of a function manager. See lKEA US, Inc. v. Us. Dept. of
Justice, 48 F. Supp. 2d 22, 24 (D.D.C. 1999).
Similarly, the petitioner has failed to prove that the beneficiary will act in an "executive" capacity. The
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex
organizational hierarchy, including major components or functions of the organization, and that person's
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must
have the ability to "direct the management" and "establish the goals and policies" of that organization.
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to
lIn 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. § 1101(a)(32), states that "[t]he termprofession 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
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968);
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
SRC 05 06251912
Page 7
direct and the beneficiary must primarily focus on the broad goals and policies of the organization rather than
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute
simply because they have an executive title or because they "direct" the enterprise as the owner or sole
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making"
and receive only "general supervision or direction from higher level executives, the board of directors, or
stockholders of the organization." Id. As indicated above, the petitioner has failed to prove that the
beneficiary, who is allegedly managing employees who are apparently engaged in providing services to
customers, will be acting primarily in an executive capacity.
It is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the petitioning
company in conjunction with other relevant factors, such as a company's small personnel size, the absence of
employees who would perform the non-managerial or non-executive operations of the company, or a "shell
company" that does not conduct business in a regular and continuous manner. See, e.g. Systronics Corp. v.
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may be especially relevant when CIS notes
discrepancies in the record and fails to believe that the facts asserted are true. Id. In this matter, the record is
so rife with discrepancies that it is difficult to discern who is employed by the petitioner and what those
employees do on a day-to-day basis. 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).
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial
or executive capacity as required by 8 C.F.R. § 214.2(1)(3).
The second issue in the present matter is whether the beneficiary has been employed by the overseas entity in
a primarily managerial or executive capacity.
In the letter dated April 12, 2005, the petitioner described the beneficiary's duties with the overseas employer
as follows:
a) Direction and coordination of the sales department. (From 9:00 a.m. to 5:00 p.m.)
b) Coordination and distribution of customer services of the sales department (From
9:15 a.m. to 10:00 a.m.)
c) Investment consultant and analyst of profits of the department (From 4:00 p.m. to
5:00 p.m.)
d) Planning the marketing strategy (From 11:00 a.m. to 12:00 p.m.)
e) Putting into effect the sales and marketing strategies (From 1:00 p.m. to 2:00 p.m.)
f) Appraisals (From 2:00 p.m. to 2:30 p.m.)
g) Planning the evaluation of the market (From 10:00 a.m. to 11:00 a.m.)
h) Programs and evaluation of actions (From 2:30 p.m. to 3:00 p.m.)
i) Global Control of the marketing plans and sales (From 3:00 p.m. to 4:00 p.m.)
(Emphasis omitted).
SRC 0506251912
Page 8
The petitioner also states that five real estate agents and one secretary reported to the beneficiary overseas.
Finally, while the petitioner included an organizational chart for the foreign employer, this chart does not
identify the beneficiary.
On May 11, 2005, the director denied the petition concluding that the petitioner failed to establish that the
beneficiary has been employed overseas primarily in a managerial or executive capacity.
On appeal, the petitioner asserts that the director erred in denying the petition because the record establishes
that the beneficiary has been employed primarily as an executive or a manager. The petitioner specifically
states that the beneficiary has been a "functional manager."
Upon review, the petitioner's assertions are not persuasive.
As explained above, 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) and (iv). 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 has failed to establish that the beneficiary has been acting in a "managerial" capacity for the
foreign employer. In support of its petition, the petitioner has provided a vague and nonspecific description
of the beneficiary's duties that fails to demonstrate what the beneficiary did on a day-to-day basis. The
petitioner lists duties such as directing the sales department, distribution of customer services, programs,
evaluation of actions, and planning the evaluation of the market. However, the petitioner fails to specifically
define what was being directed, what services were being distributed, what programs and actions were being
evaluated, and how she planned market evaluations. Without a more specific description, it cannot be
determined that the beneficiary had been primarily engaged in performing managerial duties and was not
primarily performing non-qualifying administrative or operational tasks. An employee who "primarily"
performs the tasks necessary to produce a product or to provide services is not considered to be "primarily"
employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church
Scientology International, 19 I&N Dec. at 604. Going on record without supporting documentary evidence is
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of
California, 14 I&N Dec. 190. Specifics are clearly an important indication of whether a beneficiary's duties
are primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter
of reiterating the regulations. Fedin Bros. Co., Ltd., 724 F. Supp. 1103, aff'd, 905 F.2d 41.
The petitioner also failed to prove that the beneficiary was supervising and controlling the work of other
supervisory, professional, or managerial employees, or that she was managing an essential function within the
organization. The record generally indicates that the beneficiary was supervising a secretary and
approximately five real estate agents. However, the petitioner fails to provide detailed job descriptions for the
subordinate employees, and the position titles alone indicate that these subordinate employees had no
supervisory functions and were performing the tasks necessary to produce a product or provide a service. In
SRC 05 062 51912
Page 9
view of the above, the beneficiary would appear to have been a first-line supervisor, the provider of actual
services, or a combination of both. A managerial or executive employee must have authority over day-to-day
operations beyond the level normally vested in a first-line supervisor, unless the supervised employees are
professionals. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N
Dec. at 604. Moreover, the job descriptions provided for the subordinate employees do not establish that they
were professionals. Therefore, the record does not prove that the beneficiary has been acting in a managerial
capacity.
Also, the petitioner has not established that the beneficiary managed an essential function of the organization
overseas. The petitioner's vague job description, which indicates that she was likely a first-line supervisor,
fails to document what proportion of the beneficiary's duties were managerial functions and what proportion
were non-managerial. Absent a clear and credible breakdown of the time spent by the beneficiary performing
her duties, the AAO cannot determine what proportion of her duties would have been managerial, nor can it
deduce whether the beneficiary was primarily performing the duties of a function manager. See IKEA US,
Inc., 48 F. Supp. 2d at 24.
Similarly, the petitioner has failed to prove that the beneficiary has been acting in an "executive" capacity. As
indicated above, the petitioner has failed to prove that the beneficiary, who allegedly managed employees
who were apparently engaged in providing services to customers, was acting primarily in an executive
capacity.
Accordingly, the petitioner has not established that the beneficiary was employed in a primarily managerial or
executive capacity overseas as required by 8 C.F.R. § 214.2(1)(3).
The third issue in the present matter is whether the beneficiary was employed abroad for one continuous year
within the three years preceding the filing of the petition as required by 8 C.F.R. § 214.2(l)(3)(iii).
The current petition was filed on January 3, 2005. Therefore, the petitioner must establish that the beneficiary
had been employed by the foreign entity for one continuous year between January 3, 2002 and January 3,
2005. In support of its petition, the petitioner provided copies of pay stubs indicating that the beneficiary had
been continuously employed abroad until approximately January 3,2002. The petitioner also provided a copy
of a single pay stub for the beneficiary dated February 2, 2004 and a translated statement from an accountant
in Argentina stating that the beneficiary averaged a monthly income of $9,500 during the calendar year of
2002. However, no pay stubs for 2002 were provided, and the petitioner failed to offer any explanation
accounting for the omission of the 2002 pay stubs.
On January 27, 2005, the director requested additional evidence. The director specifically requested copies of
all pay stubs for the beneficiary dated after January 1, 2002. In response, the petitioner failed to provide these
pay stubs and offered no explanation regarding their omission. In fact, the petitioner indicates in its letter
dated April 12,2005, that these pay stubs were enclosed even though they were again omitted.
On May 11, 2005, the director denied the petition concluding that the petitioner failed to establish that the
beneficiary had been employed abroad for one continuous year within the three years preceding the filing of
SRC 0506251912
Page 10
the petition. The director concluded that the record indicates that the beneficiary has been employed in the
United States for the previous three years and that the petitioner may not "reach over" the beneficiary's stay in
the United States in E-2 nonimmigrant status to meet the requirements of8 C.F.R. § 214.2(l)(3)(iii).2
On appeal, the petitioner asserts that the beneficiary had been employed abroad in 2002 and that the
beneficiary has not been employed in the United States for the last three years. In support of this assertion,
the petitioner resubmits the accountant's statement regarding the beneficiary's 2002 foreign employment and a
copy of the Form 1-797 approving the beneficiary's change to E-2 status on December 1,2003.
Upon review, the petitioner's assertions are not persuasive.
As a threshold issue, the AAO must first address whether the petitioner has even established that the
beneficiary was employed abroad by a qualifying organization. The petitioner identifies the qualifying
organization in the initial Form 1-129 petition and letter dated December 29, 2004 as
However, the i April 12, 2005 and the pay stubs indicate that the foreign
employer was As discussed in ra, since the record is devoid of sufficient
evidence connecting wit and the petitioner, the
petitioner has failed to establish that the beneficiary was employed abroad by a qualifying organization.
Therefore, the petition may not be approved for this reason alone.
Regardless, the petitioner has not established that the beneficiary was employed abroad for one continuous
year within the three years preceding the filing of the petition. As explained above, the petitioner was
specifically asked by the director in the Request for Evidence to provide copies of 2002 pay stubs. The
petitioner not only failed to provide the requested evidence, it failed to provide any explanation for the
omission. 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 non-existence or other unavailability of required evidence
creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i).
Accordingly, the petitioner has not established that the beneficiary was employed abroad for one continuous
year within the three years preceding the filing of the petition, and the petition may not be approved for this
2In his decision, the director noted that the record reveals that the beneficiary has been employed in the United
States for the last three years in E-2 status. In reviewing the record, the AAO disagrees with this
determination and hereby withdraws these comments as well as the director's determination that the petitioner
may not "reach over" the beneficiary's stay in the United States in E-2 status. The record indicates that the
beneficiary changed status to E-2 classification on December 1,2003. However, there is no other evidence in
the record regarding the beneficiary's employment history in the United States with the petitioner or any other
employer. Moreover, the wage report for the petitioner's staff for the quarter preceding the filing of the
instant petition does not list the beneficiary. Therefore, the record does not support the director's conclusion
that the beneficiary has been employed in the United States since 2003. That being said, as explained below,
the AAO nevertheless supports the director's conclusion that the petitioner has not established that the
beneficiary was employed abroad for one continuous year within the three years preceding the filing of the
petition.
SRC 0506251912
Page 11
reason.
Beyond the decision of the director, a related matter is whether the petitioner established that it has a
qualifying relationship with the foreign entity, of Argentina.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (l)(1)(ii)(G) of this
section.
8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal entity
which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate
or subsidiary specified in paragraph (1)(I)(ii) of this section." A "subsidiary" is defined, in part, as a corporation
"of which a parent owns, directly or indirectly, more than half of the entity and controls the entity."
In the initial Form 1-129 petition, the petitioner purports that the foreign entity owns
100% of the petitioner, thus establishing, if true, a parent/subsidiary relationship. In support of this
contention, the petitioner provided in response to the Request for Evidence a copy of its articles of
incorporation, as amended, and a letter from a public accountant stating tha
owns 1000/0 of the petitioner. The petitioner did not provide a copy of a stock
ce 1 tea e, even ough the director specifically requested this evidence, any other organizational documents
for the petitioner, or any evidence establishing ownership and control of the foreign entity. The petitioner
also did not offer any explanation as to why a copy of a stock certificate for the petitioner could not be
provided.
The regulations 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 Scientology International, 19 I&N Dec. 593; 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 the 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. Matter of Church
Scientology International, 19 I&N Dec. at 595.
As general evidence of a petitioner's claimed qualifying relationship, articles of incorporation and accountant
statements alone are not sufficient evidence to determine whether a stockholder maintains ownership and
control of a corporate entity. The issued stock certificates, corporate stock certificate ledger, and/or stock
certificate registry 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
SRC 0506251912
Page 12
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.
In this case, the petitioner has failed to supply sufficient evidence of ownership and control of both the
foreign entity and the petitioner. The petitioner did not even provide a copy of a stock certificate evidencing
ownership of the petitioner's issued stock. Without full disclosure, CIS is unable to determine the current
ownership and control of the petitioner and the foreign entity.
Accordingly, the petitioner has not established that the petitioner and the foreign entity are qualifying
organizations as required by 8 C.F.R. § 214.2(1)(3), and the petition may also not be approved for this reason.
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), aff'd, 345 F.3d 683
(9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.