dismissed L-1A Case: Restaurant

MATTER OF N-A-B-, INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 12, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant operator, seeks to temporarily employ the Beneficiary as its president 
under the L-1 A nonimmigrant classification for intracompany transferees. See Immigration and 
Nationality Act (the Act)§ 101(a)(15)(L), 8 U.S.C. § 1101(a)(15)(L). TheL-IA classification allows 
a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign 
employee to the United States to work temporarily in a managerial or executive capacity. 
The Director, Vermont Service Center, denied the petition. The Director determined that the 
evidence of record did not establish that: (1) the Beneficiary would be employed in a managerial or 
executive capacity; and (2) the Petitioner has a qualifying relationship with the Beneficiary's foreign 
employer. We summarily dismissed the Petitioner's subsequent appeal because the record showed that 
the Petitioner did not submit a brief or otherwise identify an erroneous conclusion of law or statement of 
fact in the Director's decision. 
The matter is now before us on a motion to reopen. On motion, the Petitioner provides evidence that it 
submitted a timely brief in support of its appeal and asserts that the deficiencies in the record were due 
to the ineffective assistance of counsel. 
We will reopen the matter for the purpose of considering the appellate brief and the merits of the appeal. 
However, as the Petitioner has not overcome the original grounds for denial, we will deny the 
motion. 
I. MOTION REQUIREMENTS 
A. Overarching Requirement for Motions by a Petitioner 
The provision at 8 C.F.R. § 103.5(a)(l)(i) includes the following statement limiting a U.S. 
Citizenship and Immigration Services (USCIS) officer's authority to reopen the proceeding or 
reconsider the decision to instances where "proper cause" has been shown for such action: 
[T]he official having jurisdiction may, for proper cause shown, reopen the proceeding 
or reconsider the prior decision. 
( 
/ 
Matter of N-A-B-, Inc. 
Thus, to merit reopening or reconsideration, the submission must not only meet the formal 
requirements for filing (such as, for instance, submission of a Form I-290B that is properly 
completed and signed, and accompanied by the correct fee), but the petitioner must also show proper 
cause for granting the motion. As stated in the provision at 8 C.F.R. § 103.5(a)(4), "Processing 
motions in proceedings before the Service," "[a] motion that does not meet applicable requirements 
shall be dismissed." 
B. Requirements for Motions to Reopen 
The regulation at 8 C.F.R. § 1 03.5(a)(2), "Requirements for motion to reopen," states: "A motion to 
reopen must [(1)] state the new facts to be provided in the reopened proceeding and [(2)] be 
supported by affidavits or other documentary evidence." 
This provision is supplemented by the related instruction at Part 4 of the Form I-290B, which states: 
"Motion to Reopen: The motion must state new facts and must be supported by affidavits and/or 
documentary evidence that establish eligibility at the time the underlying petition or application was 
filed." 1 
Further, the new facts must possess such significance that, "if proceedings ... were reopened, with 
all the attendant delays, the new evidence offered would likely change the result in the case.'' Matter 
ofCoelho, 20 I&N Dec. 464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-
40 (lOth Cir. 2013). 
II. DISCUSSION 
We summarily dismissed the Petitioner's appeal, because the appeal, as presented to us, did not 
identify any erroneous conclusion oflaw or statement of fact in the Director's denial of the petition. 
See 8 C.F.R. § 103.3(a)(l)(v). 2 
On motion, the Petitioner submits a copy of an appellate brief with supporting exhibits. The 
Petitioner provides evidence that it timely submitted these materials to supplement the appeal but, 
for reasons the record does not reflect, they did not reach the record of proceeding. 
Accordingly, we will grant the motion to reopen in part, because the appellate brief and 
Supplemental evidence were not available to us at the time of our prior decision. While the 
1 The regulation at 8 C.F.R. § 103.2(a)(l) states in pertinent part: "Every benefit request or other document submitted to 
DHS must be executed and filed in accordance with the form instructions, notwithstanding any provision of 8 CFR 
chapter I to the contrary, and such instructions are incorporated into the regulations requiring its submission." 
2 The Petitioner submitted no brief or evidence with its Form 1-2908, Notice of Appeal or Motion, but stated that it 
would submit those materials in support of its appeal within 30 days. When we reviewed the record of proceeding 
several months later, it did not include any supplement to the appeal. 
2 
Matter of N-A-B-, Inc. 
Petitioner has not overcome the grounds for denial, the Petitioner's timely submission of substantive 
appellate materials entitles the Petitioner to a decision on the merits. 
III. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(15)(L) of the Act. 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. !d. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, 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) ofthis 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. 
IV. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition, in part, based on a finding that the Petitioner did not establish that 
the Beneficiary will be employed in the United States in a managerial or executive capacity. 
The Petitioner does not claim that the Beneficiary will be employed in a managerial capacity. 
Therefore, we will restrict our analysis to whether the Beneficiary will be employed in an executive 
capacity. 
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Matter of N-A-B-, Inc. 
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. 
· If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, USCIS must take into account the reasonable needs of the organization, in 
light of the overall purpose and stage of development of the organization. See section 101(a)(44)(C) 
ofthe Act. 
A. Evidence of Record 
The Petitioner filed the Form I -129 on March 13, 2015. The Petitioner stated that it operates a sushi 
restaurant, that it employed 23 individuals as of the date of the petition, and that it earned just over 
$2.2 million in revenue during 2013. The Petitioner indicated that the Beneficiary would act as 
president and "plan and direct all restaurant operations," "maintain high standards of food, service, 
health and safety," and ensure "optimal utilization of staff and resources." 
In addition, the Petitioner provided the following duty description for the Beneficiary: 
• Oversee and manage all aspects of the company's goals. Evaluate projected vs. 
accomplished goals. Evaluate and review the products and services offered by the 
company to ensure client's satisfaction and fulfillment of quality standards. (8 
hours per week). 
• Formulate policies and objectives and carry out periodic evaluations regarding the 
completion of these goals. Establish priorities aimed at strengthening the 
Company's long-term strategies, goals and objectives for expansion. Implement 
changes to policies based on market demands, such as effective pricing, 
quotations and terms of sale policies and procedures, and price conflict resolution 
(1 0 hours per week). 
• Control and coordination of first line managers in charge of administrative and 
operations departments in the company. Continuously monitor the productivity of 
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Matter of N-A-B-, Inc. 
the employees not only to ensure optimal output, but also to create new 
procedures or re-organize existing processes. ( 8 hours per week). 
• Oversee all staff related issues, including the power to hire, promote and fire. 
Also, coordinate and schedule workloads, as well as upper management staff 
retention. (3 hours per week). 
• ·Control budget-operating expenses, profit & loss, marketing and sales strategies. 
(2 hours per week). 
• Develop and implement new systems to make the business overall performance 
better, according to new technologies and market needs. Study and analyze 
market patterns on demand/supply for company's products. (3 hours per week) 
• Establish customers credit policies. (2 hours per week). 
• Define marketing strategies in order to increase sales. (1 hour per week). 
• Perform a general supervision of the consulting services. (Legal and accounting). 
[3 hours per week] 
The Petitioner provided an organizational chart reflecting that the Beneficiary would oversee a vice 
president, who in tum would supervise an operations manager and a financial manager. The chart 
further reflected that the operations manager would oversee six cooks, nine waiters, two 
dishwashers, and two employees listed as "other." 
The Petitioner submitted position descriptions for the Beneficiary's two direct subordinates. The 
Petitioner stated that the company had a financial and administrative manager tasked with analyzing 
"financial information to forecast business," "records of financial transactions," and budgets, as well 
as preparing "balance sheet[ s ], profit and loss statement[ s ], amortization and depreciation schedules 
and other financial reports" and reporting and advising "management about resource utilization, and 
assumptions underlying budget forecasts." The Petitioner indicated that it also employed an 
operations manager who would be responsible for directing and coordinating "activities of the 
department with the pricing, sales, and distribution of products," reviewing "financial statements, 
sales and activity reports," "determin[ing] areas needing cost reduction and program improvement," 
"establish[ing] and implement[ing] departmental policies, goals, objectives, and procedures," and 
overseeing "activities directly related to providing services." Lastly, the Petitioner provided a duty 
description for "servers and waiters" who are responsible for greeting customers and providing 
service. 
The Petitioner provided a copy of a diploma indicating that the operations manager had received a 
degree in electrical engineering from an industrial college in China and that the financial manager 
had earned a bachelor of arts degree in sociology and criminal justice. 
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Matter of N-A-B-, Inc. 
The Petitioner submitted an IRS Form 941 Employer's Quarterly Federal. Tax Return and a Florida 
Department of Revenue Quarterly Report for the fourth quarter of 2014 reflecting that it employed 
20 individuals during that quarter. The aforementioned state wage report indicated that the vice 
president earned $4,500 and the operations manager had been paid $9,750, but it did not reflect any 
wages paid to the asserted financial manager for that quarter. 
The Director later issued a request for evidence (RFE) emphasizing that the evidence did not 
demonstrate that the Beneficiary would be sufficiently relieved from performing non-qualifying 
operational tasks. The Director noted that the Petitioner did not provide a duty description for its 
asserted vice president. As such, the Director requested that the Petitioner submit a letter detailing 
the Beneficiary's expected executive decisions and an explanation of how she would direct the 
management of the organization and establish its goals and policies. Further, the Director asked the 
Petitioner to provide a complete organizational chart listing all of its employees, including their job 
titles, duties, edu~ation levels, ana salaries. 
In response, the Petitioner stated that "the unwritten law that an executive must supervise at least 
two professionals is complied with as to the U.S. company." The Petitioner also submitted a support 
letter dated April 9, 2015, signed by the Beneficiary. The Beneficiary explained that the former sole 
owner of the Petitioning company, who holds the title of vice president, "is not active in the day to 
day operation of the enterprise." The Beneficiary stated that there are "two professional employees 
among the 17 total employees, the financial manager and the operations manager." 
The Beneficiary stated the following with respect to her proposed role in the United States: 
In order for [the financial manager] to carry out his work and for me to be aware 
of all financial information pertaining to the company I have weekly meetings 
with the person in which we discuss the current financial condition of the 
company, compliance with the budget, revision of the budget if necessary, cost 
analysis of purchases made for the restaurant, any new tax issues or regulatory 
requirements of which I need to be aware. The person submits monthly written 
reports concerning all issues as well. 
I also liaise with the Operations Manager. This person is in charge of among 
other things the 6 cooks that work at [the restaurant]. I approve for any new 
cooks after he has first interviewed them. As the restaurant business has high 
employee turnover, this happens frequently. Also, although he has primary 
responsibility for both training and oversight of these cooks, I also make sure that 
their food is properly prepared and on occasion may train a new chef as to how to 
prepare a particular dish. 
I have daily informal meetings with this person and a more formal meeting once a 
week. He is also delegated responsibility for cost control of food purchases and 
insuring that such purchases are of the highest quality. I as the President merge 
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Matter of N-A-B-, Inc. 
the budget information from the Financial Manager and the information from the 
Operations manager about costs, pricing of meals, etc. to determine the final 
budget, which is an ongoing not yearly process. Also as this person has been in 
the country much longer than I have, I coordinate with him about how to do 
marketing in South Florida and base publicity etc on his insights. I oversee him 
as regards to implementation of company policies regarding personnel 
productivity and quality control and receive his full reports but have final 
authority in deciding if these matters are being carried out in the correct manner. 
The Petitioner did not submit the requested detailed organizational chart identifying all employees 
by name, position title, salary, and educational qualifications. 
In denying the petition, the Director found that the Petitioner had made material changes to the 
Beneficiary's duty description in response to the RFE. The Director stated that it was not apparent 
from the evidence submitted who was responsible for the day-to-day non-qualifying operational 
functions of the business, such as marketing, sales, personnel, and- administrative activities. The 
Director concluded that the Petitioner did not establish that the Beneficiary would be primarily 
engaged in performing managerial or executive tasks. 
In its brief, the Petitioner asserts that the Beneficiary qualifies as an executive, noting that it 
currently employs 32 individuals and that it had 22 employees as of the date of the petition. The 
Petitioner states that the Director overemphasized the Beneficiary's focus on sales and marketing 
activities and points to the fact that she would devote only one hour per week to these tasks. The 
Petitioner contends that it did not make material changes to the petition in response to the Director's 
RFE. The Petitioner asserts that the Beneficiary's subordinate managers and other operational 
employees would relieve her from performing non-qualifying duties. 
In support of the motion, the Petitioner provides additional evidence. The Petitioner submits a letter 
from the Beneficiary, and affidavits from the Beneficiary and the asserted vice president of the 
company. The Petitioner provides the same organizational chart previously provided on the record. 
The Petitioner submits an IRS Form 941 from the first quarter of2015 indicating that it employed 33 
employees as of March 12, 2015? A corresponding Florida employer's quarterly report reflects that 
the Petitioner paid its vice president $4500, its operations manager $10,350, and its financial 
manager $3750 during the first quarter of2015. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal and motion, we conclude that the Petitioner has not established that the Beneficiary would 
be employed in an executive capacity in the United States. 
3 
This evidence is inconsistent with the Petitioner's claim that it employed 22 to 23 employees at the time the petition 
was filed. 
7 
Matter of N-A-B-, Inc. 
When examining the managerial or executive capacity of the Beneficiary, we will look first to the 
Petitioner's description of the job. duties. See 8 C.F.R. § 214.2(1)(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 in a managerial or executive capacity. !d. As noted, the Petitioner indicates 
that the Beneficiary will be employed in an executive capacity. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished tabl~ decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. 
In the current matter, the Petitioner has submitted a vague duty description that does not demonstrate 
that the Beneficiary would devote her time primarily to qualifying executive tasks. Although the 
Petitioner submits a lengthy duty description for the Beneficiary, the description is so general that 
the listed tasks and responsibilities could apply to any manager or executive in any company or 
industry. For instance, the description indicates that the Beneficiary would be responsible for 
overseeing and managing "all aspects of the company," "implementing the "company's goals," 
ensuring "client's satisfaction," formulating "policies and objectives," "establish[ing] priorities 
aimed at strengthening the Company's long-term strategies," "control and coordination of first line 
managers," "creat[ing] new procedures or re-organiz[ing] existing processes," overseeing "all staff 
related issues," controlling "budget-operating expenses" and "marketing and sales strategies," 
developing and implementing "new systems[ ... ]according to new technologies and market needs," 
establishing "customers credit policies," and supervising "consulting servi_ces," amongst several 
other vague duties. 
However, the Petitioner has not articulated or provided supporting documentation to substantiate the 
Beneficiary's performance of the above-stated duties. The Petitioner provides no details or 
documentation to clarify and corroborate goals the Beneficiary will set, policies and objectives she 
will formulate, priorities she will establish, new procedures or processes she will create, staff she 
will hire, expenses she will manage or delegate, marketing and sales strategies she will set, new 
systems of teclu;10logy that will be utilized, or consulting services she will supervise. It is reasonable 
to expect that the Petitioner would have provided some detail and documentation regarding the 
specific qualifying duties the Beneficiary will perform. Indeed, without further elaboration, several 
of the vague duties appear incongruent with the Petitioner's restaurant business, including 
overseeing the implementation of new technology, establishing credit policies, and supervising 
consultants who have not otherwise been identified or documented on the record. Reciting a 
beneficiary's vague job responsibilities or broadly cast business objectives is not sufficient; the 
regulations require a detailed description of the beneficiary's daily job duties. The actual duties 
themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990). 
8 
Matter of N-A-B-, Inc. 
In fact, to the extent the Petitioner provides detail regarding the Beneficiary's actual day to day 
tasks, these duties leave question as to whether she will be primarily engaged in qualifying duties. 
In the letter submitted in response to the Director's RFE, the Beneficiary stated that she will be 
substantially engaged in non-qualifying tasks related to the daily operation of the business. For 
instance, the Beneficiary stated that she will be involved in hiring all employees, training cooks, and 
reviewing daily reports from her subordinates on the business. In contrast, the Beneficiary's letter 
does not include any examples of the policies, objectives, priorities, procedures, processes or 
strategies in which she will be engaged. The Beneficiary states that she would delegate 
responsibility for cost control and food purchases to her operational manager and that she will only 
receive feedback from this employee with respect to these non-qualifying operational matters. 
However, the Petitioner provides no supporting evidence to substantiate that the asserted operations 
and financial managers, along with the vice president, will relieve her from performing non­
qualifying duties related to the running of the restaurant. Indeed, the Beneficiary's duty description 
indicates that she will spend only eight hours per week "controlling and coordinating" her first line 
managers. 
The fact that the Beneficiary will manage or direct a business does not necessarily establish 
eligibility for classification as an intracompany transferee in a managerial or executive capacity 
within the meaning of section 101(a)(44) of the Act. By statute, eligibility for this classification 
requires that the duties of a position be "primarily" of an executive or managerial nature. Sections 
101(A)(44)(A) and (B) of the Act. While the Beneficiary may exercise discretion over the 
Petitioner's day-to-day operations and possess the requisite level of authority with respect to 
discretionary decision-making, the position descriptions alone are insufficient to establish that her 
actual duties, as of the date of filing, would be primarily executive in nature. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed managerial or executive capacity of a beneficiary, including the company's 
organizational structure, the duties of a beneficiary's subordinate employees, the presence of other 
employees to relieve a beneficiary from performing operational duties, the nature of the business, 
and any other factors that will contribute to understanding a beneficiary's actual duties and role in a 
business. 
On motion, the Petitioner contends that the Beneficiary qualifies as an executive. 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 
managerial employees for a beneficiary to direct and they 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. A beneficiary 
must also exercise "wide latitude in discretionary decision making" and receive only "general 
9 
Matter of N-A-B-, Inc. 
supervision or direction from higher level executives, the board of directors, or stockholders of the 
organization." Id. 
The Petitioner claims that the Beneficiary will oversee two subordinate managers who will relieve 
her from involvement in the day-to-day operations of the restaurant, as well as from supervision of 
lower-level restaurant personnel. However, the Petitioner has not clearly or consistently identified 
the duties performed by these subordinate employees. At the time of filing, the Petitioner submitted 
a duty description for the operations manager reflecting significant overlap with the Beneficiary's 
own duties. For instance, the operations manager's duty description states that he is also responsible 
for directing and coordinating activities, reviewing financial statements and activity reports, 
measuring productivity and goal achievement, establishing and implementing departmental policies, 
goals, objectives and procedures, and setting pricing and credit policies. In a letter submittecj. in 
response to the RFE, the Beneficiary asserted that the operations manager is responsible for many of 
the normal day-to-day operational tasks inherent to running a restaurant, such as buying supplies and 
food, hiring and training cooks, and supervising its servers. However, none of these tasks were 
included in the operations manager's duty description. Given this vagueness, and the apparent 
discrepancies in the operations manager's duty description, the record does not establish that the 
operations would relieve the Beneficiary from performing non-qualifying tasks associated with the 
restaurant's daily operations. 
Further, as noted, the Beneficiary stated that she would be involved in training employees and 
checking the quality of food preparation, suggesting that she is engaged ·in non-qualifying 
operational duties normal to the running of a restaurant. In contrast, the Petitioner asserts that this is 
exclusively the realm of the operational manager and that this employee oversees all kitchen and 
wait staff during all of the company's operating hours. The Petitioner did not explain how this one 
employee could be solely responsible for supervising all the restaurant's dining room and kitchen 
staff during all of its hours of operation, which likely extend well past a 40 hour work week. In fact, 
given the lack· of other supervisory staff, it seems more likely that the Beneficiary devotes a 
significant portion of her time to supervising the day-to-day operations of the restaurant, as 1s 
reflected in her own affidavit, indicating her involvement in food preparation and training. 
Otherwise, the Petitioner provides little detail and evidence indicating that the financial manager or 
the vice president would relieve the Beneficiary from significant involvement in the operational 
aspects of the business. With respect to the vice president, the Petitioner has not set forth any duties 
and the Beneficiary states on the record that the vice president is "not active in the day to day 
operation of the enterprise." Further, in the case of the financial manager, the Petitioner again 
provides vague duties and responsibilities for this asserted subordinate which are not indicative of an 
employee working for a restaurant. In addition, the financial manager's duties, which include 
analyzing financial information, financial transactions, budget forecasts and financial reports, also 
overlap significantly with the Beneficiary's and operations manager's duties. The Petitioner has not 
established that it would need three employees so significantly focused on financial matters given 
the scope and nature of the business. 
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Matter of N-A-B-, Inc. 
In the Form I-129, the Petitioner indicated that the company had 22 employees. In response to the 
RFE, the Beneficiary stated that the Petitioner has "two professional employees among the 17 total 
employees." Further, the Petitioner's IRS Form 941 and Florida Employer's Quarterly Report for 
the first quarter of 2015 both indicate that the company had 33 employees. However, the Petitioner 
submitted in response to the RFE, and submits on appeal, the same organizational chart, which does 
not reflect the apparent changes in the company's staffing levels indicated in its statements and tax 
documentation. These discrepancies between the number of employees and the organizational chart 
leave question as to whether the Petitioner was employing, and continues to employ, its asserted 
employees, including the claimed managers subordinate to the Beneficiary. The Petitioner has not 
resolved these inconsistencies with independent, objective evidence pointing to where the truth lies. 
Matter ofHo, 19 I&N Dec. 582,591-92 (BIA 1988). 
Therefore, in sum, the Petitioner has not provided sufficient evidence to demonstrate that the 
Beneficiary acts in an executive capacity. The Petitioner has not established that the Beneficiary 
operates within a complex organizational hierarchy or that she oversees major components of the 
organization. Indeed, the Beneficiary's duties and the duties of her subordinates, appear to indicate 
that she would work side by side with her subordinates on all matters involving the day-to-day 
operation of the business. Further, the evidence does not indicate that she will primarily direct the 
management or that she will establish the goals and policies of the organization. In fact, as 
mentioned, the Petitioner did not articulate or document any detailed qualifYing tasks the Beneficiary 
would perform. As noted, 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 Petitioner must demonstrate with clear and objective evidence that the 
Beneficiary will be primarily engaged in the performance of executive level tasks, and here, the 
Petitioner has not submitted sufficient evidence to demonstrate this. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be employed in an executive capacity.· 
V. QUALIFYING RELATIONSHIP 
The Director also denied the petition based on a finding that the Petitioner did not establish that it 
had a qualifying relationship with the Beneficiary's foreign employer. 
To establish a "qualifying relationship" under the Act and the regulations, the Petitioner must show 
that the Beneficiary's foreign employer and the proposed U.S. employer are the same employer (i.e. 
one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 101(a)(15)(L) of the Act; 8 C.P.R. § 214.2(1). 
The pertinent regulations at 8 C.P.R. § 214.2(l)(l)(ii) define the term "qualifying organization" and 
related terms as follows: 
11 
(b)(6)
Matter of N-A-B-, Inc. 
(G) Qualifying 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 (1)(1 )(ii) of this section; 
(I) Parent means a firm, corporation, or other legal entity which has 
subsidiaries. 
(J) Branch means an operating division or office of the same organization 
housed in a different location. 
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent 
owns, directly or indirectly, more than half of the entity and controls the 
entity; or owns, directly or indirectly, half of the entity and controls the 
entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture 
and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
(L) Affiliate 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 ... [.] 
A. Evidence of Record 
On the L Classification Supplement to Form 1-129, the Petitioner identified the Beneficiary's last 
foreign employer as and stated that the u.s. company is an affiliate of the foreign 
entity. The Petitioner further indicated in the Form 1-129 that the foreign entity owned 50% ofthe 
Petitioner. 
In a support letter written provided along with the petition, the Petitioner's former counsel stated that 
"the beneficiary owns 50% of the U.S. company and 60% of the foreign company." However, in 
another support letter from the Petitioner, it stated that it was 50% owned by 
The Petitioner submitted articles of incorporation dated October 15, 2012, indicating in Article VII 
that "the initial board of Directors shall consist of one person" listed as acting as 
12 
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(b)(6)
Matter of N-A-B-, Inc. 
director, president, secretary, and treasurer. The Petitioner provided a share certificate no. 1, dated 
December 8, 2014, reflecting that the Beneficiary holds 50 shares of the company. There was no 
indication that the original shareholder, had transferred the shares. The Petitioner 
submitted share certificate no. 2, also dated December 8, 2014, specifying that owns 
50 company shares. Further, the Petitioner 
provided a 2014 IRS Form 1120S, U.S. Income Tax 
Return for an S Corporation, which indicates at Schedule K -1 that 100% of its stock was owned by 
as ofDecember 31, 2014. 
With respect to the foreign entity, the Petitioner submitted several corporate documents indicating 
changes in ownership in the foreign entity. The most recent document, dated August 5, 2014, 
indicated that 10,000 shares in the company were owned by and 10,000 by the 
Beneficiary. In a separate support letter from the foreign entity written by the Beneficiary, she stated 
"in 2014, a capital increase of the company was approved, where I remained in charge of 60% of the 
shares and thus the majority shareholder of [the foreign entity]." 
In the RFE, the Director noted the apparent discrepancy in the Petitioner's ownership between the 
submitted share certificates and Schedule K-1 in the company's 2014 IRS 1120S. As such, the 
Director requested additional evidence to substantiate the company's ownership, including meeting 
minutes, stock purchase agreements, stock certificates that had been issued to date, a stock ledger, 
and/or proof of consideration paid for any stock. 
In response, the Petitioner stated that "50% of the [Petitioner's] shares were transferred to [the 
Beneficiary] at the very end of2014," pointing to the share certificates dated in December 2014, which 
were previously submitted on the record. Further, the Beneficiary submitted a response letter stating 
"the Vice President [listed as in submitted organizational charts] is the former 100% 
shareholder of the enterprise before I purchased 50% of the stock on behalf of 
In denying the petition, the Director pointed to discrepancies between the Petitioner's share certificates 
and its assertions regarding its stated ownership. Specifically, the Director stated that the Petitioner's 
2014 IRS Form 1120S indicated that the company was wholly owned by one individual, that its 
assertions and stock certificates reflected that it was 50% owned by the Beneficiary, whereas the 
petition and other documentation stated that the company was 50% owned by the foreign employer. 
On motion, the Petitioner submits a brief in which it states that it is a subsidiary of the foreign entity. 
The Petitioner asserts that due to the ineffective assistance of former counsel, it mistakenly 
communicated that the Beneficiary owns 50% of the company's shares and that the two entities are 
affiliates. The Petitioner submits a support letter from the foreign entity stating that it purchased 
50% ofthe common stock of the Petitioner from on December 8, 2014. 
The Petitioner submits an "Agreement for Sale and Purchase of Stock" dated December 8, 2014 
reflecting the foreign entity's purchase of 50 shares, or 50% of the company's outstanding stock at 
13 
(b)(6)
Matter of N-A-B-, Inc. 
that time, from for $33,888.4 The foreign entity states in a letter, and the Beneficiary in an 
affidavit, that it did not submit this document previously due to the error of former counsel. Further, 
both parties state that former counsel asked the Beneficiary to issue stock certificates, and through a 
clerical error on the part of the Beneficiary, she put her own name, rather than the foreign entity's 
name, on the share certificate. The Beneficiary indicates that former counsel did not inform the 
Petitioner of this error and stated she believed that "since [s]he purchased it for [the foreign entity], 
the stock certificate should be fine." In addition, the Petitioner provides an affidavit from 
confirming that the foreign entity purchased 50 shares from her on December 8, 2014 for $33,888. 
Further, the Petitioner, Beneficiary, and all indicate that the foreign entity's 50% ownership 
interest in the Petitioner as of December 8, 2014, was not reflected in its 2014 IRS Form 1120S 
because no distribution of dividends to the foreign entity had taken place during that year. 
The Petitioner also submits additional documentation meant to substantiate the foreign entity's 
purchase of 50 shares in December 2014. For instance, it provides a check for $33,888 made out to 
and remitted by the Beneficiary on December 8, 2014. The Petitioner also submits a stock 
transfer ledger indicating that it has issued five certificates. The first share certificate reflects the 
issuance of 50 shares to the Beneficiary on December 8, 2014, and is identified as cancelled on the 
same date due to a "clerical error." The second share certificate reflects the transfer of 50 shares to 
on December 8, 2014 and notes that she "originally owned 100 shares [but] sold 50 shares 
to [the foreign entity] on 12/8/14." In addition, the third share certificate indicates the issuance of 50 
shares to the foreign entity on December 8, 2014 and the stock ledger states that "[the foreign entity] 
obtained 50 shares on 12/8/14, but due to clerical errors, the certificate was issued to [the 
Beneficiary]." Further, the ledger indicates that "on 8/27/2015 a new certificate was issued to the 
[foreign entity] to reflect the corrections." 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that it has a qualifying relationship 
with the foreign entity. 
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. See Matter of Church Scientology Int 'l, 19 I&N Dec. 
593 (BIA 1988); see also Matter ofSiemens Med. Sys., Inc., 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N· Dec. 289 (Comm'r. 1982). In the context of this visa petition, ownership refers to 
4 
The Petitioner further submits another stock purchase agreement indicating that agreed to sell another five 
shares to the foreign entity on August 7, 2015, for $3388 resulting in the foreign entity's ownership of 55% of the 
company's stock. However, given that this claimed transaction took place after the filing of the petition, it cannot 
establish the Petitioner's eligibility and we will not discuss it further. The Petitioner must establish eligibility at the time 
of filing the nonimmigrant visa petition and must continue to be eligible for the benefit through adjudication. 8 C.F.R. § 
103.2(b)(l). A visa petition may not be approved at a future date after the Petitioner or Beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'! Comm'r 1978). 
14 
(b)(6)
Matter of N-A-B-, Inc. 
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 ofChurch Scientology Int'l, 19 I&N Dec. at 595. 
The Petitioner has not sufficiently explained the discrepancies in the record pertaining to its 
ownership. On motion, the Petitioner provides a stock purchase agreement supporting its assertion 
that the foreign entity purchased 50 shares in the company in December 2014. However, although 
the Petitioner provides a copy of a check made out to in the amount of $33,888 from the 
Beneficiary, there is no supporting evidence that received this payment or that these funds 
originated from the foreign entity. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (quoting Matter of Treasure Craft of Cal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
Further, the provided stock ledger itself includes inconsistencies that leave further question as to 
whether this transaction took place. For instance, the ledger reflects that the first share certificate 
issued 50 shares to the Beneficiary on December 8, 2014. However, the Petitioner also asserts that 
originally owned all of its 100 shares, presumably dating back to its original formation in 
2012. The stock ledger indicates no original issuance of 1 00 shares to and the Petitioner 
provided no stock certificates reflecting this issuance. 
In addition, the Petitioner did not sufficiently explain why the foreign entity's claimed ownership in 
the company is not reflected in its 2014 IRS Form 1120S. On motion, the Petitioner states that the 
foreign entity's ownership was not reflected in its 2014 IRS Form 1120S because no distribution of 
dividends to the foreign entity had taken place during that year. However, the Schedule K -1 requires 
that all shareholders holding an interest in the company at any time during that year be included. 5 
Otherwise, the Petitioner has not offered any explanation as to why would continue to be 
listed as the sole shareholder of the company if there were in fact two shareholders at the end of the ."' fiscal year ended on December 31,2014. 
We acknowledge the Petitioner's claim that former counsel provided poor guidance with respect to 
the issuance of stock certificates and failed to submit the stock purchase agreement which is now 
provided for the first time on motion. However, any appeal or motion based upon a claim of 
ineffective assistance of counsel requires: (1) that the claim be supported by an affidavit of the 
allegedly aggrieved respondent setting forth in detail the agreement that was entered into with 
counsel with respect to the actions to be taken and what representations counsel did or did not make 
to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned 
be informed of the allegations leveled against him and be given an opportunity to respond, and (3) 
that the appeal or motion reflect whether a complaint has been filed with appropriate disciplinary 
5 The IRS form instructions for Form 1120S, Schedule K-1 state: "Generally, the corporation is required to prepare and 
give a Schedule K-1 to each person who was a shareholder in the corporation at any time during the tax year." See 
Shareholder's Instructions for Schedule K-1 (Form 1120S), https://www.irs.gov/pub/irs-pdf/i 1120ssk.pdf. 
15 
Matter of N-A-B-, Inc. 
authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why 
not. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). Here, the 
Petitioner has not taken any of the steps above to substantiate its assertion of ineffective assistance, 
which would in tum, support its assertions that shares were issued in error and that relevant 
documentation, such as the stock purchase agreement, was mistakenly omitted. 
Therefore, in sum, the record before the Director included various discrepancies which undermined 
the Petitioner's assertion that it was 50% owned and controlled by the foreign entity. While· the 
Petitioner has attempted to remedy these discrepancies, the evidence submitted on motion raises 
additional questions regarding the Petitioner's actual ownership at the time the petition was filed. 
The Petitioner has not resolved these inconsistencies with independent, objective evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Based on the 
deficiencies and inconsistencies discussed above, the Petitioner has not established that it has a 
qualifying relationship with the foreign enti~y. 
VI. CONCLUSION 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen is denied. 
Cite as Matter of N-A-B-, Inc., ID# 7892 (AAO Sept. 12, 2016) 
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