dismissed L-1A Case: Residential Construction

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u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: EAC 06 188 52975 Office: VERMONT SERVICE CENTER Date: IDEC 2 6 lOOi
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:
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.
RO~f
Administrative Appeals Office
www.usds.gov
EAC 06 18852975
Page 2
DISCUSSION: The Director, Vermont 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 visa petition seeking to extend the employment of its general manager
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)(15)(L). The petitioner is a limited partnership organized under
the laws of the State of Texas and is allegedly in the residential construction business. The beneficiary was
initially granted a one-year period of stay to open a new office in the United States, and the petitioner now
seeks to continue the beneficiary's employment.
The director denied the petition concluding that"the petitioner did not establish that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity.
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 to the petitioner asserts that the director
erred and that the beneficiary's duties are primarily those of a manager or an executive.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one
continuous year within three years' preceding the beneficiary's application for admission into the United
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(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
same work which the alien performed abroad.
EAC 06 188 52975
Page 3
The regulation at 8 C.F.R. § 2l4.2(l)(l4)(ii) also provides that a visa petition, which involved the opening of a
new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (l)(l)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(l)(ii)(H) of this section for the previous year;
(C) A statement of the duties performed by the beneficiary for the previous year
and the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation, including the
number of employees and types of positions held accompanied by evidence
of wages paid to employees when the beneficiary will be employed in a
managerial or executive capacity; and
(E) . Evidence of the financial status of the United States operation.
The primary 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 isnot 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. § IIOI(a)(44)(B), defines the term "executive capacity" as an
EAC 06 188 52975
Page 4
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 in the initial petition whether the beneficiary will be primarily engaged in
performing managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under
section 101(a)(44)(B) of the Act. A petitioner may not claim that a beneficiary will be employed as a hybrid
"executive/manager" and rely on partial sections of the two statutory definitions.
.The foreign ,entity described the beneficiary's job duties in a letter dated June 6, 2006 as follows:
[The beneficiary] will continue to be responsible for the creation and implementation of daily
operations for [the petitioner] from importation, sales and marketing operations, to business
investment plans. He will plan, develop, implement and execute business strategies for the
distribution of our services and the expansion of [the] business. [The beneficiary] continues
to formulate company policies and execute expansion strategies for [the petitioner]. He
handles all facets of sales and distribution, as well as the financial arrangements, and oversees
[the] overall financial administration. Furthermore, [the beneficiary] is responsible for
cultivating and sustaining strategic business relations with associates, potential clients and
providers. [The beneficiary] continues to exercise a wide latitude in discretionary decision­
making. [The beneficiary] accomplishes these goals by exercising his decision-making over
the daily operations of [the petitioner]. Finally, [the beneficiary] has the authority to
negotiate and enter into contracts on behalf of the company, as well as the recruitment,
retention and supervision of indirect/contractual employees, such as residential designers,
realtors, project managers and construction workers.
The petitioner claims in the Form 1-129 to be engaging the services of six "indirect - contract" workers.
Also, the petitioner submitted an organizational chart for the United States operation. The chart portrays the
beneficiary as supervising an accounting firm, a provider of house plans, a construction company, an
engineering company, and two real estate companies in their alleged provision ofservices to the petitioner.
On June 22, 2006, the director requested additional evidence. The director requested, inter alia, complete
position descriptions for the beneficiary and for all 'of the petitioner's employees; a breakdown of the amount
of time the beneficiary and the other employees will devote to each of the ascribed duties; copies of 2005
Forms W-2 for all employees; a copy of the petitioner's payroll records for May 2006; the petitioner's
EAC 0618852975
Page 5
quarterly tax return for the first quarter of 2006; and evidence establishing the number of contractors
employed and a description of the duties performed.
In response, the petitioner submitted a materially identical job description for the beneficiary along with a
breakdown by percentages of the beneficiary's duties as follows:
Supervise construction work performed 32 hrs. 26%
Supervise the sale of homes 2 hrs. 2%
Supervise the closing of homes 5 hrs. 4%
Obtain lots for construction of homes 8 hrs. 6%
Obtain bank credit for new construction projects 3 hrs. 2%
Negotiate prices of materials and construction 2 hrs. 2%
workers
Search for new construction projects 10 hrs. 8%
Meet with contractors to review contracts and 4 hrs. 3%
payment .'
Review paperwork and contracts 3 hrs. 2%
Compile reports of income and debt 10 hrs. 8%
Compile and complete invoices and/or contracts 6 hrs. 5%
Administrative duties on behalf of business 35 hrs. 28%
Administrative procedures with the San Antonio 5 hrs. 4%
water system
TOTALS 125 hrs. 100%
The petitioner also submitted a letter from its accountant dated August 8, 2006 indicating that the beneficiary
has not received any salary payments from the petitioner "due to the fact that the company has shown net
losses for book and tax purposes for 2005 and for 2006 through June 30 th. " The petitioner did not submit any
Forms W-2, payroll records for subordinate employees or contractors, quarterly tax returns, or descriptions of
its six "indirect- contract" workers. While the petitioner provided documentation indicating that it has
consulted and utilized the services of third party vendors in conjunction with its purported business activities,
the petitioner did not describe the nature or frequency of the petitioner's utilization of these services.
On September 5, 2006, the director denied the petition .. The director coricluded that the petitioner failed to
establish that the beneficiary will be employed in the United States in a primarily managerial or executive
capacity.
/
On appeal, counsel to the petitioner asserts that the director erred and that the beneficiary's duties are
primarily those of a manager or an executive.
Upon review, the petitioner's assertions are not persuasive.
Title 8 C.F.R. § 2l4.2(l)(3)(v)(C) allows the "new office" operation one year within the date of approval of
the petition to support an executive or managerial position. There is no provision in Citizenship and
Immigration Services (CIS) regulations that allows for an extension of the one-year "new office" period. If
EAC 06 188 52975
Page 6
the business does not have sufficient staffing after one year to relieve the beneficiary ' from primarily
performing operational and administrative tasks, the petitioner is ineligible by regulation for an extension. In
the instant matter , the United States operation has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position.
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's description of the beneficiary's job duties has failed to establish that the beneficiary will act
in a "managerial" or "executive" capacity. In support of its petition, the petitioner has provided a vague and
I
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 will devote,a majority of his time to
supervising "construction work" and performing "administrative duties on behalf of business." However, the
petitioner does not explain what, exactly, the beneficiary will be "supervising" given that the petitioner
, allegedly contracts w ith construction and engineering businesses to perform these services. The record does
not establish that the petitioner has employees or even engages specific subcontractors to perform
construction related tasks. Furthermore , the petitioner fails to specifically define any of the "administrative
duties" to be performed by the beneficiary. The fact that the petitioner has given the beneficiary a managerial
or executive title and has prepared a vague job description which includes inflat ,ed duties does not establish
that the beneficiary will actually perform managerial or executive duties . 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 B ros. Co., Ltd. v. Sava, 724 F.
Supp. 1103 (E.D.N.Y . 1989), aff'd, 905 F.2d 41 (2d . Cir. 1990). 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 ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972).
Likewise, the petitioner's description and breakdown of the beneficiary's duties indicate that the beneficiary
will be primarily performing non-qualifying administrative or operational tasks which will not rise to the level
of being managerial or executive in nature. For example , the petitioner states that the beneficiary will spend
68% of his time obta ining lots and bank cred it; negotiating prices; searching for new construction projects;
meeting with contractors and reviewing contracts ; compiling reports , invoices, and contracts ; and performing
administrative duties. However, all of these duties are non-qualifying administrative or operational tasks
necessary to the provision of a service or the production of a product. As 'the record fails to identify any
employees or contractors who will relieve .the beneficiary of the need to perform the non-qualifying tasks
inherent to both these duties and the management of the business in general , it must be concluded that he will
perform these 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 executi ve 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 S cientology International , 19 I&N Dec . 593, 604 (Comm .
1988). · While the out sourcing of construction related tasks may relieve the beneficiary of the need to perform
the labor necessary to construct homes, the petit ioner' nevertheless does not employ a subordinate staff
capable of relieving the beneficiary of performing the other non-qualifying tasks inherent to the operation of
EAC 0618852975
Page 7
the business.
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory, managerial, or professional employees, or will manage an essential function of the organization.
As explained above, it appears that the beneficiary will not supervise any subordinate employees because the
petitioner does not have any employees. While the petitioner asserts that it employs independent contractors,
the supervision or management of independent contractors will not permit a beneficiary to be classified as a
managerial employee as a matter of law. See section 101(a)(44)(A)(ii) of the Act; 8 C.F.R §
214.2(l)(1)(ii)(B)(2). The Act is quite clear that a managerial employee must manage employees in order to
be classified as a manager for purposes of this visa classification. Regardless, it has not been established that
the beneficiary will supervise and control the work of these independent contractors even assuming that the
supervision and control of such persons could be qualifying under the Act. As indicated above, the petitioner
. purports to utilize an accounting firm, a provider of house plans, a construction company, an engineering
company, and two real estate companies in the provision of services. However, the petitioner ,has not
established that the beneficiary truly "supervises and controls" these third party fee-for-service vendors. To
the contrary, the petitioner is simply paying these third parties to perform services on an intermittent basis,
and it has not been established that the manner in which these services are performed is being supervised or
controlled by the beneficiary. Finally, as the petitioner has failed to describe the skills necessary to perform
any of the duties of the contractors, or even to describe their specific duties, the petitioner has not established
that the beneficiary will manage professional employees.
1
Therefore, the petitioner has not established that
the beneficiary will be employed primarily in a managerial capacity?
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 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" 'Contemplatesknowledge 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 (RC. 1968);
Matter of Shin, 11 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 the subordinate employee. The possession of a
bachelor's degree or a professional certification by a subordinate' worker does not automatically lead to the
conclusion that an employee will be employed in a professional capacity as thatterm is defined above. In the
instant case, in addition to failing to show that any of the beneficiary's claimed subordinates were actual
employees of the petitioner, the petitioner has not, in fact, established that a bachelor's degree or professional
certification is actually necessary to perform services for the petitioner. This is primarily due to the
petitioner's failure to describe the contractors' duties even though this evidence was requested by the director.
Failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the
petition. 8 e.F.R § 103.2(b)(14).
2The petitioner also 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
EAC 06 18852975
Page 8
Similarly, the petitioner has failed to establish 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
authorityto 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
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. For the same reasons indicated above, the petitioner has failed to
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided
for the beneficiary is so vague that the AAO cannot deduce what the beneficiary will do on a day-to-day
basis. Moreover, as explained above, it appears that the beneficiary will be primarily performing tasks
necessary to produce a product or to provide a service. Therefore, the petitioner has not established that the
beneficiary will be employed primarily in an executive capacity.
It is noted that a company's size alone, without taking into account the reasonable needs of the organization,
may not be the determining factor in approving a visa for a multinational manager or executive .. See §
101(a)(44)(C) of the Act. However, in reviewing the relevance of the number of employees a petitioner has,
federal courts have generally agreed that CIS "may properly consider an organization's small size as one
factor in assessing whether its operations are substantial enough to support a manager." Family, Inc. v. Us.
Citizenship and Immigration Services, 469 F.3d 1313, 1316 (9 th Cir. 2006) (citing with approval Republic of
Transkei v. INS, 923 F.2d 175, 178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41,42 (2d Cir. 1990)
(per curiam); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003). Furthermore, the
reasonable needs of the petitioner will not supersede the requirement that the beneficiary be "primarily"
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 is managing 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. § 2l4.2(l)(3)(ii). In addition, the petitioner's description of the beneficiary's daily
duties must demonstrate that the beneficiary manages the function rather than performs the tasks 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. Also, as explained
above, the record establishes that the beneficiary will primarily perform the non-qualifying operational or
administrative tasks related to the "function." Absent a clear and credible breakdown of the time spent by the
beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager.
See IKEA US, Inc. v. Us. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
EAC 06 188 52975
Page 9
employed in a managerial or executive capacity as required by the statute. See sections 101(a)(44)(A) and (B)
of the Act, 8 U.S.c. § 1101(a)(44). Accordingly, in this matter, the petitioner has failed to establish that the
beneficiary will primarily perform managerial or executive duties, and the petition may not be approved for
that reason.
Beyond the decision of the director, the petitioner failed to establish that the beneficiary had been employed
abroad for at least one continuous year in a position that was managerial, executive, or involved specialized
knowledge. SC.F.R. §§ 214.2(l)(3)(iii) and (iv).
In support of the petition, the foreign entity submitted a letter dated June 6, 2006 describing the beneficiary's
duties abroad as follows:
Since July 2001, [the beneficiary] has held the executive position of General Director. In this
executive capacity, [the beneficiary] is responsible for planning, directing,and coordinating
activities concerned with the construction of homes through subordinate supervisory
personnel. [The beneficiary]. participates in the conceptual development of [the] company's
construction projects and oversee its organization and implementation. [The beneficiary]
directs and monitors the progress of construction activities and ensures compliance with plans
and schedules. As a liaison, he meets regularly with owners, other constructors, trade
contractors, vendors, architects, engineers, and others to identify and coordinate new
construction projects for the company. In addition, [the beneficiary] participates in the
establishment of the company's policies and procedures. He plans and formulates the
company's business and financial goals and strategies. He is credited with creating the
various channels for our services and completing new contracts with our clients. [The
beneficiary] has made great contributions to the growth and expansion of our parent company
to its present level.
The petitioner also submitted a Spanish language organizational chart for the foreign employer. However, the
chart has not been translated into. English, and the petitioner does not describe the duties of any of the
beneficiary's purported subordinates.
Upon review, the petitioner has not described the beneficiary as having performed primarily qualifying duties
abroad. 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 aday-to-day basis. For example, the
. petitioner asserted that the beneficiary planned and formulated goals, strategies, policies, and procedures.
However, the petitioner did not specifically define any of these goals, strategies, policies, and procedures.
Once again, going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190). Furthermore, the petitioner did not
describe the duties or skill levels of the beneficiary's purported subordinates and failed to provide a translation
of the foreign organizational chart. Absent a certified translation of the organizational chart, CIS cannot
determine whether the evidence supports the petitioner's claims, and it will not be accorded any weight in this /
proceeding. See 8 C.F.R. § 103.2(b)(3).
EAC 0618852975
Page 10
In view of the above, the beneficiary would appear to have been primarily a first-line supervisor of non­
professional employees, 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. Section. 101(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19
1&N Dec. at 604. As indicated above, an employee who "primarily" performs the tasks necessary ~o 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; see also Matter of Church Scientology International,
19 1&N Dec. at 604.
Accordingly, the petitioner failed to establish that the beneficiary was employed abroad performing qualifying
duties for at least one continuous year, and the petition may not be approved for this additional reason.
Beyond the decision of the director, the petition must also be denied as untimely pursuant to 8 C.F.R. §
214.2(l)(14)(i). Title 8 C.F.R. § 214.2(l)(14)(i) clearly states that an extension petition may only be filed if the
validity of the original petition has not expired. The previous petition was approved until June 7, 2006. The
instant extension petition was filed on June 12, 2006, and the petitioner clearly indicates that its basis for the
classification sought is the "continuation of previously approved employment without change with the same
employer." However, since the validity of the original petition expired on June 7, 2006, the instant extension
petition filed on June 12,2006 must be denied as untimely. Accordingly, the petition will be denied for this
additional reason.
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with
the foreign employer. The petitioner failed to establish the ownership and control of both the United States
operation and the foreign employer. The petitioner also failed to establish that the foreign employer is
currently "doing business" or that the petitioner is doing business "as an employer in the United States."
The regulation at 8 C.F.R. § 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by
"[e]vidence that the petitioner and the organization which employed or will employ the alien are qualifying
organizations." See also 8 C.F.R. § 214.2(l)(14)(ii)(A). Title 8 C.F.R. § 214.2(l)(1)(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 (l)(l)(ii) of this section" and "is or will be doing business ... as an employer in the United States."
"Doing business" is defined in pertinent part as "the regular, systematic, and continuous provision of goods and/or
services." 8 C.F.R. § 214.2(l)(1)(ii)(H). A "subsidiary" is defined in part as a legal entity "of which a parent
owns, directly or indirectly, more than half of the entity and controls the entity."
In this matter, the petitioner claims to be a limited partnership organized under the laws of the State of Texas.
The petitioner submitted a certificate of limited partnership and a limited partnership agreement in which the
general partner is identified as EI Quijote Management Group. L.L.C. 3 According to the limited partnership
3It should be noted that, according to Texas state corporate records, the general partner's corporate status in
Texas is not in good standing. Therefore, as the State of Texas has forfeited the corporate privileges of the
petitioner's general partner, this calls into question the viability of the petitioner, a limited partnership, arid, in
4
EAC 06 188 52975
Page 11
agreement, "exclusive control" over the partnership is vested in the general partner. Furthermore, the limited
partner, identified as the foreign employer, shall not have the right to participate in the controlof the partnership's
business. The petitioner also submitted articles of organization for the general partner, a Texas limited liability
company. The articles, dated October 19,2004, indicate that the initial member of the limited liability company
is the foreign employer. However, the petitioner did not submit any evidence addressing the current ownership
and control of the general partner of the petitioner even though this evidence was specifically requested by the
director. 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)(14).
Upon review, the petitioner has failed to establish that the foreign employer owns and controls the petitioner, a
limited partnership, because it failed to establish that the foreign employer owns and controls the petitioner's
general partner, the entity that has been vested with control over partnership business. While limited liability
companies do not issue share certificates like corporations, the petitioner has failed to provide sufficient
evidence demonstrating the ownership of the general partner. Texas limited liability companies formed in
2004 are regulated by the Texas Limited Liability Company Act. Tex. Rev. Civ. Stat. Ann. Art. 1528n.4 This
law provides guidance on how to interpret the articles of organization of a Texas limited liability company as
these relate to ownership interests, and how a Texas limited liability company can evidence ownership
interests by members.
Sections 3.02 and 4.01 permit a person to become a member of a limited liability company upon formation
and .to be identified as an "initial member" in the articles of organization. Tex. Rev. Civ. Stat. Ann. Art.
1528n, §§ 3.02 and4.01. Section 4.01 also permits new members to be added after formation of the limited
liability company. Id. Furthermore, section 2.22 requires Texas limited liability companies to maintain
records including, but not limited to, a list identifying each member by name, address, and percentage of
ownership; a written statement of the contributions made by each member, the times at which additional
contributions are to be made, events requiring the dissolution of the limited liability company, and the date on
which each member became a member; and copies of the regulations of the limited liability company, if any.
Tex. Rev. Civ. Stat. Ann. Art. 1528n, § 2.22.
In this matter, the only evidence provided by the petitioner to establish that the foreign entity "owns" the
general partner was a copy of the 2004 articles of organization. The petitioner did not provide a copy of the
list, which it is compelled to maintain by Texas law, identifying the members of the limited liability company
or any other company records which could have proven who, as of the date of the petition, are the members of
the limited liability company. Therefore, the petitioner has not established that it is owned and controlled by
the foreign employer, and the .petition may not be approved for that reason.
tum, would call into question the continued eligibility of the petitioner for the benefit sought if the appeal
were not being dismissed for the reasons set forth herein. ~
Act was substantially amended in 2005, and was made effective
in 2006, these revisions do not generally affect limited liability companies formed in 2004,· such as the
petitioner. The petitioner, therefore, is still regulated by the Act as it appeared in 2004. Tex. Bus. Org. Code
'. Ann. Chapter 101.
EAC 06 188 52975
Page 12
Moreover, the petitioner has failed to establish the ownership and control of the foreign employer even
though this evidence was requested by the director. Once again, 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
only evidence in the record that appears to address the ownership and control of the foreign employer has not
been translated into English. Accordingly, the evidence is not probative and will not be accorded any weight
in this proceeding. See 8 C.F.R. § 103.2(b)(3). Likewise, the petitioner has failed to establish that the foreign
employer is currently "doing business," and is thus a qualifying organization, because all evidence in the
record addressing foreign business activity has also not been translated into English. Therefore, the petition
may not be approved for these additional reasons.
Finally, the petitioner has not established that it is a qualifying organization because it has failed to establish
that it "is or will be doing business ... as an employer in the United States." 8 C.F.R. § 214.2(l)(l)(ii)(G). As
indicated above, the petitioner does not have any employees. Even the beneficiary has not been established to be
an employee of the petitioner. Not only does the defmition of "qualifying organization" require the petitioner to
establish that it is or will be "doing business" as defined in 8 C.F.R. § 214.2(l)(l)(ii)(H), it must also establish that
it is or will be doing business as an employer. As the record is devoid of evidence that the petitioner will employ
.anyone, the petitioner has failed to establish that it meets the definition of a qualifying organization.
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign
employer, and the petition may not be approved for this additional reason.
The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the
original visa based on a reassessment of the petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99
Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions,
CIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden
of proof in a subsequent petition. See section 291 of the Act, 8 U.S.C. § 1361.
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), afJ'd, 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. 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. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.