dismissed L-1A Case: Recycling And Export

identifying data deleted to 
prevent ;! -"TI :: unwarranted 
invasion ot personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
File: SRC 04 016 52095 Office: TEXAS SERVICE CENTER Date: WR 2 8 P~~ 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, 
Administrative Appe 
h 
SRC 04 0 16 52095 
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 appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its manager as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 4 1101(a)(15)(L). The petitioner is a Georgia corporation and claims to be engaged in 
the recycling and export of automobile tires. The petitioner claims that it is the subsidiary of 
located in Mumbai, India. The beneficiary has been employed by the petitioner in L-1 
November 2000 and the petitioner now seeks to extend his stay for an additional two years. 
The director denied the petition concluding that the petitioner did not establish a qualifying relationship 
between the United States entity and the foreign entity. Specifically, the director noted that the petitioner had 
submitted inconsistent evidence regarding the ownership of the United States company. 
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's 
response to the director's request for evidence was sufficient to establish the existence of an affiliate 
relationship between the United States and foreign entities. Counsel submits a brief and additional 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 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. 4 214.2(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 
SRC 04 0 16 52095 
Page 3 
education, training, and employment qualifies himher 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 issue in the present proceeding is whether the beneficiary's foreign employer and the U.S. entity are 
qualifying organizations as required by 8 C.F.R. 9 214.2(1)(3)(i). 
The pertinent regulations at 8 C.F.R. 9 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
(G) 
 Qualzfiing 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; 
(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 October 20, 2003. On the L classification supplement to Form 1-129, 
the petitioner indicated that the U.S. company is a subsidiary of the foreign entity and described each 
company's ownership as follows: 
SRC 04 0 16 52095 
Page 4 
Parent company with five partners, each has 20% share. 20% o 
is owned by [the beneficiary]. [The petitioning company] is 100% owned by [the 
beneficiary]. 
In a letter dated July 25,2003, the petitioner referred to the U.S. company as a subsidiary of the foreign entity, 
but did not discuss the ownership of either company. The petitioner provided a deed of partnership for the 
foreign entity, dated June 29, 1994, naming five individuals, including the beneficiary, as partners in the 
company. The petitioner submitted its articles of incorporation, which indicate that the company is authorized 
to issue "1,000,OO shares of $1 .OO par common stock." 
The petitioner also provided a copy of its 2002 IRS Form 1120, U.S. Corporation Income Tax Return. The 
Form 1120 indicates at Schedule E, Line 1 and at Schedule K, Line 5 that the beneficiary owns 100 percent of 
the petitioner's common stock. The Form 1120 indicates at Schedule L, Line 22b that the petitioner's 
common stock is valued at $1,000. 
The director issued a request for evidence on November 20, 2003, instructing the petitioner, in part, to submit 
evidence to show a qualifying relationship between the foreign and United States companies as defined in the 
regulations. 
In a response dated December 22,2003, counsel for the petitioner stated the following: 
Enclosed for your review is a copy of the amended federal tax return, Form 11 20, for the year 
2002. The U.S. comnanv shares the same stock structure as the foreim comnanv. Each 
1, u 1, 
shareholder holds 20% of the stock in the foreign company [The petitioner] is 
100% owned by the five shareholders ofwith , Manager of the 
U.S. company . . . holding 20% of [the petitioner] and 20% of 
The petitioner submitted a December 19, 2003 letter addressed to the Internal Revenue Service, in which it 
stated: "The percentage of ownership on the 2002 Form 1120 needs to be revised. The compensation of 
officers did not change; only the percentage of stock owned has changed. Attached is a copy of page two of 
Form 1120 the way it should have been filed." The petitioner's letter was accompanied by an amended 2002 
Form 1120, Page 2, which indicates at Schedule E, Line 1 that five individuals own the company's stock in 
equal proportions. The same five individuals are identified as the partners of the foreign entity in the 
previously submitted deed of partnership. 
The director denied the petition on January 20, 2004, concluding that the petitioner did not establish that the 
foreign and U.S. entities had a qualifying relationship at the time the petition was filed. Specifically, the 
director determined: 
This office requested additional information to show a qualifying relationship exists between 
the foreign and United States companies. The response states a different ownership for the 
United States company that was originally submitted with the petition. The new information 
is that the percentage of stock owned has changed. The information submitted at the time the 
SRC 04 01 6 52095 
Page 5 
petition was filed shows different ownership of the foreign and United States companies. The 
foreign company is owned by 5 partners, each with 20% [of] the company. The United States 
company at the time the petition was filed had only one owner, the beneficiary. 
On appeal, counsel for the petitioner asserts that the petitioner's response to the director's request for 
evidence, namely the amended IRS Form 1120, showed the correct ownership of the petitioning entity. 
Counsel submits the petitioner's stock transfer ledger and copies of the petitioner's stock certificates numbers 
one through five, each for 100 shares, issued to the five partners of the foreign entity. All of the stock 
certificates are dated April 20, 2000. The stock transfer ledger does not indicate the amount paid by each 
claimed shareholder for his or her shares in the petitioning company. 
Upon review of the petition and evidence, the petitioner has not established that the foreign and United States 
entities enjoy a qualifying relationship. 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 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 (Cornrn. 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. Matter of Church Scientology International 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 shareholders, 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. 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 regulations specifically allow the director to request additional evidence in appropriate cases. See 
8 C.F.R. tj 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. In this case, the petitioner's statements on the Form 1-129 and in its 2002 Form 1120 indicated 
that the petitioner and the foreign entity shared only 20 percent common ownership and control. The 
petitioner claimed to be a subsidiary of the foreign entity, while simultaneously asserting that the beneficiary 
was its sole owner. Given this conflicting information and apparent lack of a qualifying relationship, the 
director reasonably requested additional documentation to establish that a qualifying relationship exists. 
The petitioner chose to submit one amendment to its 2002 Form 1120, U.S. Corporation Income Tax Return, 
in response to the director's request. There is no evidence that the petitioner completed a Form 1120X, 
SRC 04 016 52095 
Page 6 
Amended U.S. Corporation Income Tax Return, or actually submitted the amended form to the IRS, nor did 
the petitioner amend Schedule K of its 2002 Form 1120, which also identified the beneficiary as the sole 
owner of the company. The petitioner did not submit an amended 1-129 Petition or otherwise indicate that its 
Form 1-129 had been completed inaccurately, in spite of its initial indication that the beneficiary owns 100 
percent of the petitioning company. The Form 1-129 and Form 1120 were both signed by the beneficiary in 
his capacity as "manager" of the U.S. company, and it is reasonable to assume that he had an opportunity to 
review both documents for accuracy. Most importantly, the petitioner chose not to submit the documents 
generally accepted to establish ownership and control in the context of the visa classification, namely, the 
petitioner's stock certificates, stock transfer ledger, corporate bylaws, the meetings of relevant shareholder 
meetings, and documentation to establish that the claimed shareholders actually paid for their interest in the 
company. 
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. 582, 591- 
92 (BIA 1988). The petitioner's self-prepared partially amended tax return, which may or may not have been 
submitted to the Internal Revenue Service, is not independent objective evidence and could not aid the 
director in determining the actual ownership and control of the United States company. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
9 103.2(b)(14). For this reason, the director properly denied the petition. 
The petitioner now submits the petitioner's stock certificates and stock transfer ledger for consideration on 
appeal. 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 need 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. 
Nevertheless, in light of the unresolved inconsistencies catalogued above, the petitioner's stock certificates 
and stock transfer ledger are insufficient to establish the actual ownership and control of the U.S. company. 
Based on the stock certificates submitted, it appears that the U.S. company has issued a total of 500 shares 
with a par value of $1 .OO per share. The petitioner's stock transfer ledger does not identify how much money 
was paid by each shareholder in exchange for his or her shares, but it is reasonable to assume that they each 
paid the par value of $1.00 per share, or $100 each. However, the petitioner's IRS Form 1120 indicates at 
Schedule L that the petitioner's common stock is valued at $1,000, which suggests that additional shares were 
issued subsequent to the incorporation of the company in April 2000. Again, 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 at 591-2. 
Collectively, the discrepancies and omissions in the petitioner's evidence undermine the probative value of 
the evidence submitted on appeal and counsel's claim that the petitioner and foreign entity enjoy an affiliate 
relationship based on common ownership by the same group of individuals. The petitioner has not submitted 
SRC 04 016 52095 
Page 7 
probative evidence to overcome the deficiencies noted in the director's decision with respect to its qualifying 
relationship with the foreign entity. The evidence of record, considered in the aggregate, does not meet the 
petitioner's burden of showing that it has a qualifying relationship with the foreign entity as required by 8 
C.F.R. § 214.2(1)(3)(i). For this reason, the petition may not be approved. 
Beyond the decision of the director, the record is not persuasive in demonstrating that the petitioner would 
employ the beneficiary in a managerial or executive capacity as defined in section 101(a)(44) of the Act. 
Based on the brief job description provided by the petitioner, it appears that the beneficiary is primarily 
engaged in non-qualifying operational duties associated with purchasing and exporting used tires, rather than 
performing the high-level responsibilities contemplated by the statutory definitions of managerial and 
executive capacity. The petitioner indicated that the beneficiary will manage and direct day-to-day 
operations relating to reviewing contracts, purchasing of used tires, researching quality of tires and prices of 
tires, authorizing purchases of tires, and shipping tires to India, as well as personally signing distribution 
contracts with suppliers, tracking inventory and providing customer service. The majority of these duties 
appear to be operational or first-line supervisory in nature. 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 
Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
In addition, all of the supporting evidence submitted with the petition, particularly the petitioner's tax 
documents, indicates that the petitioner operates a gas station and convenience store, rather than an export 
business as claimed by the petitioner. While it is possible that the company operates two separate lines of 
business, the petitioner's failure to mention its retail operations raises questions regarding the credibility of 
the stated job duties for the beneficiary. 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 of Ho, 19 I&N Dec. at 591. 
Finally, the AAO notes that, although requested by the director, the petitioner has not submitted sufficient 
evidence to substantiate its claim that it employed five workers at the time the petition was filed. The 
petitioner has submitted Forms W-2, Wage and Tax Statement, issued to five workers in 2002, but there is no 
evidence that these employees remained on the petitioner's payroll as of October 2003 when the petition was 
filed. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Sofflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Upon review of the totality of the record, there is insufficient evidence to establish that the beneficiary would 
be employed by the petitioner in a primarily managerial or executive capacity. The record is ambiguous 
regarding the nature of the beneficiary's duties, the nature of the petitioner's business, and the actual number 
of subordinate employees who would relieve the beneficiary from performing the operational and 
administrative functions of the business. For this additional reason, the petition cannot be approved. 
SRC 04 016 52095 
Page 8 
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), afyd. 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). 
Finally, the AAO acknowledges that CIS previously approved two L-1A nonimrnigrant petitions filed on the 
beneficiary's behalf. However, each nonimmigrant petition has a separate record of proceeding with a 
separate burden of proof; each individual petition must stand on its own merits. See 8 C.F.R. $ 103.8(d). The 
prior approvals do not preclude CIS from denying an extension of the original visa based on a reassessment of 
the petitioner's and beneficiary's qualifications. Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 
1240482 (5th Cir. 2004). Moreover, if the previous nonimmigrant petitions were approved based on the same 
unsupported assertions that are contained in the current record, the prior approval would constitute material 
and gross error on the part of the director. Due to the lack of required evidence of eligibility in the present 
record, the AAO finds that the director was justified in departing from the previous approvals by denying the 
present extension petition. 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Cornrn. 1988). It would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomely, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. 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. 
ORDER: The appeal is dismissed.