dismissed L-1A Case: Restaurant

identifying data deleted to 
prevent clearly unwarnWd 
invasion of personal privrcy 
PUBLIC copy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: EAC 07 174 52339 Office: VERMONT SERVICE CENTER Date: AUG 0 1 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 10 1 (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, Chief 
Administrative Appeals Office 
EAC 07 174 52339 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnmigrant 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 employ the beneficiary 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. $ 1 101 (a)(15)(L). The petitioner is a corporation organized under the laws of the 
State of West Virginia and allegedly operates a restaurant. 
The director denied the petition concluding that the petitioner did not establish (1) that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) that the beneficiary was 
employed abroad 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 has been, and will be, primarily performing qualifying duties. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 l(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. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies 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. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
EAC 07 174 52339 
Page 3 
a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 4 1 10 1 (a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 4 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner does not clarify in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 10 1 (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. Given the lack of clarity, the AAO will assume that 
the petitioner is claiming that the beneficiary will be employed as either a manager or an executive and will 
consider both classifications. 
The petitioner describes the beneficiary's proposed duties in operating the petitioner's restaurant in a letter 
EAC 07 174 52339 
Page 4 
dated May 22, 2007 as follows: 
Act as a liaison between the vice-president of our firm, and the 
accounting department and sales department; 
Help deal with the increasing financial situation, including the oversight of various 
efficiency initiatives and streamlining techniques; 
Develop long-range goals of the company, giving insight into how to increase market 
share and gain an upper-hand on regional competitors; 
Head up a major project that will allow for the accommodation of the increased sales 
and expansion, which means the hiring of new employees, the increase of marketing 
strategies, and the decrease in wasted time .& effort, which in the earlier days of the 
business, was acceptable. However, such waste is to be avoided. Considering [the 
beneficiary's] success in streamlining of [the foreign employer] over the years, his 
work here will be invaluable; 
Be responsible for corporate planning, general administration, especially with the 
sales and purchasing departments (as that is where the bulk of his experience lies); 
e 
 Review with the President and employees company's achievements, and discuss the 
required changes in goals or objectives of the company. 
The petitioner also submitted corporate documents related to the beneficiary's purported acquisition of a 
controlling interest in the petitioner. The document titled "Agreement of Understanding Between 
Shareholders of [the petitioner]" indicates in paragraph 3 that will serve as "president" of the 
petitioner and that she will "oversee and manage all day[-]to[-]day operations." The beneficiary shall serve as 
secretaryltreasurer. 
Finally, the petitioner submitted an organizational chart for the United States operation. The chart shows the 
- 
beneficiary at the top of the organization directly supervising a vice president, ho, in turn, is 
portrayed as supervising a "managerlchef," who, in turn, is portrayed as supervising restaurant staff. 
However, the petitioner did not specifically describe the duties of the beneficiary's claimed subordinates. 
On July 20, 2007, the director requested additional evidence. The director requested, inter alia, a description 
of the titles and job duties of the beneficiary's proposed subordinate employees and a more detailed 
description of the beneficiary's proposed duties. 
In response, counsel submitted a letter dated August 30, 2007 in which he further describes the proposed 
organizational structure and staffing of the petitioner's restaurant as follows: 
[The beneficiary] will be at the top, President. 
 will be the other director of the 
business as Vice-President. Then, Harbhajan - will be the main supervisor on the 
floor of the restaurant, who will supervise 3 other waiters and another cook. 
In this structure, [the beneficiary] will be taking care of all executive decision making, now 
that he holds 5 1% ownership of the business. In addition, he will issue all company policies, 
whether dress-code related or financially-related, for example. He will also instruct 
EAC 07 174 52339 
Page 5 
Harbhajan Singh Teja on the type of service to be provided, and on the hiring andlor firing of 
employees based on their overall performance. 
[Gurbax] Kaur will run a lot of the accounting and financial aspects of the business. She will 
also be involved in much of the marketing and advertising for the restaurant. Finally, Ms. 
Kaur will play a major part of the future investing the company does. She is actively 
negotiating and researching possible investment opportunities on a daily basis. Mr. 
Harbhajan Singh Teja is in charge of two things: running the restaurant on a day-to-day 
business [sic], and making sure supplies are refilled. This involves making sure employees 
report to work, and taking inventory on food ingredients, supplies, etc., and placing orders on 
a periodic basis with the approval of [the beneficiary]. 
On December 11, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary's duties will primarily be those of a manager or executive. 
Upon review, counsel's assertions are not persuasive. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 8 214.2(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 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. As explained above, 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. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has submitted a 
vague and non-specific job description which fails to sufficiently describe what the beneficiary will do on a 
day-to-day basis. For example, the petitioner states that the beneficiary will develop "long-range goals," give 
insight into how to "increase market share," lead a project to increase sales and to expand the business, and be 
responsible for corporate planning and general administration. However, the petitioner does not specifically 
define any of these goals or plans and fails to explain what, exactly, the beneficiary will do to increase market 
share and sales, expand the business, or administer the single-location restaurant business. The petitioner also 
failed to provide a more detailed description of the beneficiary's proposed duties 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. 5 103.2(b)(14). The fact that the petitioner has 
given the beneficiary a managerial or executive title and has prepared a vague job description which includes 
inflated job 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 
EAC 07 174 52339 
Page 6 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), affd, 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 Cra9 of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972). Accordingly, given the vague job description and the nature of the petitioner's business, it 
appears more likely than not that the beneficiary will primarily perform non-qualifying administrative or 
operational tasks in his administration of the restaurant and will not primarily perform qualifying duties. 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 10 1 (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 Intn 'l., 19 I&N Dec. 593, 604 (Cornrn. 1988). 
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 asserted in the organizational chart, the beneficiary will directly supervise a vice president who, in turn, 
will supervise a managerlchef who, in turn, will supervise the restaurant staff. However, none of these 
employees is credibly described as having supervisory or managerial responsibilities over other employees. 
First, the petitioner failed to specifically describe the duties of the subordinate "supervisors" even though this 
evidence was specifically 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. 5 103.2(b)(14). 
Second, the vague descriptions provided by counsel describe the claimed subordinate "supervisors" as 
primarily performing accounting and financial tasks, ordering supplies, taking inventory, cooking food, and 
generally performing the tasks necessary to the operation of a single-location, seven-employee restaurant. 
None of the subordinate "supervisors" is described as possessing a significant degree of control or authority 
over the employment of subordinates. Overall, the record is not persuasive in establishing that the petitioner 
has an organizational complexity requiring the employment of an employee who primarily performs 
"managerial" duties through the supervision of a subordinate tier of managers or supervisors. Accordingly, it 
appears that the beneficiary will more likely than not primarily perform non-qualifying administrative, 
operational, or first-line supervisory tasks in his operation of the restaurant along side his subordinate staff. 
See generally Family, Inc. v. US. Citizenship and Immigration Services, 469 F.3d 13 13 (9th Cir. 2006). 
In view of the above, it appears that the beneficiary will be primarily a first-line supervisor of non- 
professional workers, the provider of actual services, or a combination of both. A managerial employee must 
have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless 
the supervised employees are professionals. Section 10 1 (a)(44)(A)(iv) of the Act; see also Matter of Church 
Scientology International, 19 I&N Dec. at 604. Moreover, as the petitioner failed to establish the skills and 
education required to perform the duties of the subordinate positions, the petitioner has not established that 
the beneficiary will manage professional employees.' Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in a managerial capacity.* 
I 
In evaluating whether the beneficiary will manage 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 10 1 (a)(32) of the Act, 8 U.S.C. fj 1 10 1 (a)(32), states that "[tlhe 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" contemplates knowledge or learning, not 
EAC 07 174 52339 
Page 7 
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 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
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 act primarily in an executive capacity. The job description provided for the 
beneficiary is too vague such that the AAO cannot deduce with any certainty what the beneficiary will do on 
a day-to-day basis. Moreover, as explained above, it appears instead that the beneficiary will be primarily 
employed as a first-line supervisor and will perform the 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. 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
lOl(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. 5 214.2(1)(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 duties related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record establishes that the beneficiary will likely be a first-line supervisor of non-professional 
employees and/or will perform non-qualifying operational or administrative tasks. 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. U.S. Dept. of Justice, 48 F. Supp. 2d 22, 24 
(D.D.C. 1999). 
EAC 07 174 52339 
Page 8 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that Citizenship and Immigration Services (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 at 1316 (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, it is appropriate for CIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). The size of a company may 
be especially relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted 
are true. Id. 
In this matter, the petition contains serious inconsistencies regarding the beneficfary's purported role in the 
management of the business. As noted above, the record contains corporate documents related to the 
beneficiary's purported acquisition of a controlling interest in the petitioner. The document titled "Agreement 
of Understanding Between Shareholders of [the petitioner]" indicates in paragraph 3 that , the 
person who allegedly sold the beneficiary his controlling interest in the petition, will serve as "president" of 
the petitioner and that she will "oversee and manage all day to day operations." The beneficiary shall serve as 
secretaryltreasurer. However, the petitioner asserts elsewhere that the beneficiary will serve as "president" 
and will supervise The petitioner offers no explanation for this fundamental inconsistency 
which undermines the credibility of the petition. 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). 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. Id. at 591. 
Accordingly, 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. 
The second issue in the present matter is whether the petitioner has established that the beneficiary was 
employed abroad in a primarily managerial or executive capacity. 
The petitioner described the beneficiary's duties abroad in allegedly operating a poultry farm in a letter dated 
May 22,2007 as follows: 
He is responsible for overseeing the product mixing operations, which is an 
intermediate procedure between the purchase of the raw ingredients and the sale of 
the final product. In a farm, such a procedure is what separates good quality from 
poor quality. The business needs to make sure that the animals are provided for 
property [sic] in order to assure the quality of the product; 
EAC 07 174 52339 
Page 9 
He supervises the acquisition of raw ingredients from vendors, helping to choose 
which products to buy, negotiating the quality, quantity, and price of these items to 
ensure that no item is ever out of stock; 
a 
 He prepares quality reports & pamphlets and represented our firm within various 
trade associations and around the community; 
He is in charge of overseeing financial matters, making sure that the numbers match, 
and guarding against theft, fraudulent activities, and inefficiency; 
He is in charge of hiring and firing personnel within the delivery and production 
departments; 
He provides a supervisory presence to greet customers and respond to any complaints 
they may have with the quality of the goods, or with the service the customers 
receive from staff; 
Maintains contact with leading vendors to ensure smooth operation of not only the 
business, but the timely delivery of supplies for production; 
Studies the local market and provides input to the executives as to how to better serve 
the public and gain market share. 
The petitioner also submitted an organizational chart for the foreign operation. 
 The chart shows the 
beneficiary at the top of the organization supervising a "manager" who, in turn, is shown supervising a 
"hatchery operator," who, in turn, is shown supervising six workers. 
On July 20, 2007, the director requested additional evidence. The director requested, inter alia, a description 
of the titles and job duties of the beneficiary's subordinate employees and a more detailed description of the 
beneficiary's managerial responsibilities abroad. 
In response, counsel submitted a letter dated August 30, 2007 in which counsel further describes the 
beneficiary's duties abroad as follows: 
In addition to making all executive decisions regarding the direction of the business, and 
taking responsibility for all obligations incurred by the business, [the beneficiary] has also 
acted as manager of the business by supervising two intermediate-level workers [who] in turn 
supervised six lower level workers, five laborers and a delivery driver. 
The two intermediate supervisors are as follows: - is a Manager (and he 
will be the one to take over day-to-day operation of the farm if [the beneficiary's] L-1 petition 
is approved). - the Hatchery Operator, who takes care of the physical 
well-being of the actual facilities that house and nurture the chickens and other 
animalslinventory . 
On December 11, 2007, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary was primarily employed abroad in a managerial or executive capacity. 
EAC 07 174 52339 
Page 10 
On appeal, counsel asserts that the beneficiary's duties were primarily those of a manager or executive. 
Upon review, counsel's assertions are not persuasive. 
Once again, 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. 5 214.2(1)(3). The petitioner's description of the 
job duties must clearly describe the duties performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
In this matter, the petitioner's description of the beneficiary's job duties fails to establish that the beneficiary 
acted in a "managerial" or "executive" capacity. In support of the petition, the petitioner submitted a vague 
and non-specific job description which fails to describe the beneficiary as "primarily" performing qualifying 
duties. For example, the petitioner states that the beneficiary oversaw "the product mixing operations," 
supervised "the acquisition of raw ingredients fkom vendors," prepared "quality reports [and] pamphlets," 
represented the employer "within various trade associations and around the community," greeted customers, 
responded to complaints, maintained contacts with vendors, and studied the local market. However, these 
duties are either those of a first-line supervisor engaged in administering a small farming operation or are 
non-qualifying administrative or operational tasks necessary to the provision of a service or the production of 
a product. As the petitioner failed to establish how much time the beneficiary devoted to performing these 
non-qualifying tasks, it cannot be concluded that he "primarily" performed qualifying duties abroad. Once 
again, 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 Intn 'l., 19 I&N Dec. at 604. 
The petitioner has also failed to establish that the beneficiary supervised and controlled the work of other 
supervisory, managerial, or professional employees, or managed an essential function of the organization. As 
asserted in the organizational chart, the beneficiary directly supervised a manager who, in turn, supervised a 
hatchery operator who, in turn, supervised farm laborers. However, none of these employees is credibly 
described as having supervisory or managerial responsibilities over other employees. The petitioner failed to 
specifically describe the duties of these subordinates even though this evidence was specifically 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. tj 103.2(b)(14). Regardless, the record is not persuasive in 
establishing that the foreign employer had an organizational complexity which required the employment of an 
employee who primarily performed "managerial" duties through the supervision of a subordinate tier of 
managers or supervisors. Therefore, it appears that the beneficiary was primarily a first-line supervisor of 
non-professional workers, the provider of actual services, or a combination of both. Once again, a managerial 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees were professionals. Section 10 1 (a)(44)(A)(iv) of the Act; see 
also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Similarly, the petitioner has failed to establish that the beneficiary acted in an "executive" capacity. The job 
description fails to describe the beneficiary as primarily performing executive duties. As explained above, it 
appears instead that the beneficiary was primarily employed as a first-line supervisor and performed the tasks 
EAC 07 174 52339 
Page 11 
necessary to produce a product or to provide a service. Therefore, the petitioner has not established that the 
beneficiary was employed primarily in an executive capacity. 
Accordingly, the petitioner has failed to establish that the beneficiary primarily performed managerial or 
executive duties abroad, and the petition may not be approved for that reason. 
Beyond the decision of the director, the petitioner failed to establish that it has a qualifying relationship with 
the foreign employer. 
The regulation at 8 C.F.R. 9 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. 5 214.2(1)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section" and "is or will be doing 
business." "Affiliate" is defined in pertinent part as "[olne of two subsidiaries both of which are owned and 
controlled by the same parent or individual." 8 C.F.R. § 214.2(1)(l)(ii)(L)(I). 
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 Scientoloe Intny., 19 I&N Dec. 593; see also Matter of Siemens 
Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1 986); Matter of Hughes, 1 8 I&N Dec. 289 (Comm. 1982). In 
the context of this visa petition, ownership refers to the direct or indirect legal right of possession of the assets 
of an entity with full power and authority to control; control means the direct or indirect legal right and 
authority to direct the establishment, management, and operations of an entity. Matter of Church Scientology 
Intn ! 1, 1 9 I&N Dec. at 5 95. 
In this matter, the petitioner claims that the beneficiary owns 100% of the foreign employer and 51% of the 
petitioner's stock, thus establishing, if true, that the two entities are "affiliates." In support of this claim, the 
petitioner submits, inter alia, a "Sale and Purchase of Stock Agreement," a "Bill of Sale for Stock," a "Promissory 
Note," and a copy of the petitioner's 2006 Form 1 120S, U.S. Income Tax Return for an S Corporation. The sales 
agreement, bill of sale, and note collectively indicate that sold 5 10 of her 1000 shares of stock in the 
petitioner to the beneficiary in exchange for a promissory note in which the beneficiary promises to pay Kaur 
$76,500 in two installments. If the beneficiary fails to pay the full amount within one year, i.e., before April 27, 
2008, ownership of the stock shall revert automatically to The instant petition was filed on June 4, 2007. 
The documents also indicate that the two stockholders may not transfer any shares without the permission of the 
other and that hall remain the president of the petitioner and will "oversee and manage all day[-]to[-]day 
operations." Finally, the petitioner's 2006 Form 1120s indicates in Schedule K that the 100% owner of the 
petitioner is Harbhajan Singh Teja. 
t' 
Upon review, the petitioner has not established that it and the foreign employer are "affiliates." First, it does not 
appear as if wned any shares of stock in the petitioner when she purportedly "sold" 5 10 shares to 
the beneficiary on April 28, 2007. Instead, it appears as if the petitioner was 100% owned by - 
Teja as this is what was reported to the Internal Revenue Service on the Form 1120s. Accordingly, the alleged 
EAC 07 174 52339 
Page 12 
transaction in which ansferred 5 10 shares of stock to the beneficiary appears to be a nullity, and the record 
is not persuasive in establishing that the beneficiary truly owns any interest in the petitioner. 
Second, even assuming that: was capable of transferring 5 10 shares of stock to the beneficiary, the record is 
not persuasive in establishing that the beneficiary truly owns and controls the petitioner. As noted above, -~ 
remained the president of the petitioner and continued to oversee and manage all day-to-day operations of the 
business. Furthermore, etained a right of reversion over the beneficiary's stock in the event he failed to pay 
for the stock within one year. The record is devoid of evidence that the beneficiary ever paid any money to 
for the stock. Finally, the beneficiary ceded his right to transfer the shares to a third party without - 
permission. In view of these restrictions, the record is not persuasive in establishing that the beneficiary truly 
owns and controls the petitioner. To the contrary, it appears that, to the extent she had any interest in 
the petitioner in the first place (see supra), has retained both ownership and control over the enterprise. 
Accordingly, the petitioner failed to establish that it has a qualifying relationship with the foreign employer, 
and the petition may not be approved for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: 
 The appeal is dismissed.