dismissed L-1A Case: Restaurant Management

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: ' SRC 03 126 50040 Office: TEXAS SERVICE CENTER Date: MAY 0 4 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section I0 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U. S .C. fj 1 1 0 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. 
rt P. Wiemann,  kct tor 
lnistrative Appeals Office 
SRC 03 126 50040 
Page 2 
DISCUSSION: The director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ its general manager as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(l S)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 
 1101(a)(15)(L). The petitioner is a corporation organized under the laws of the 
usiness. The petitioner claims that it is the subsidiary of 
ocated in Bogota, Colombia. The beneficiary appears to 
in L-1A status to open a new office in the United States, 
was subsequently denied an extension of stay, and then left and re-entered the United Status in B-2 visitor 
status, and now the petitioner seeks once again to change the beneficiary's classification to L-IA status. 
Upon initial review of the matter, the director sent the petitioner a request for additional evidence on June 16, 
2003. Specifically, the director requested the following: (1) evidence of the current ownership and control of 
the franchised restaurant; (2) a detailed description of the foreign employment of the beneficiary, including 
his title, job duties, percentage breakdown of the time spent on each duty, the qualifications required for the 
position, level of authority, including the beneficiary's position within the foreign entity's organizational 
hierarchy, dates of employment, the individual(s) responsible for product sales/services or production of the 
entity's product, and subordinate managers/supervisors, including their titles, job duties, and educational 
background; and (3) evidence that the [petitioner] and the foreign entity are currently "doing business," 
including financial records, e.g., tax returns, annual reports, profit and loss statements, banking records, etc., 
employee rosters, invoices, bills of sale, and product brochures of goods sold or produced by the United 
States and foreign entities. 
In response, the petitioner submitted the following: 
 (1) the U.S. entity's Articles of Incorporation; (2) 
shareholder certificates of the U.S. entity; (3) minutes of one of the U.S. entity's shareholder meetings; (4) the 
franchise agreement for the U.S. entity's restaurant; (5) information on the beneficiary's employment with the 
foreign entity, including his job duties; (6) information on the beneficiary's subordinate employees while 
employed by the foreign entity; (7) a second, amended organizational chart for the foreign entity; (8) payroll 
records for the foreign entity; (9) 2002 tax returns for the foreign entity; (10) the foreign entity's bank records; 
(1 1) correspondence and invoices for the foreign entity; (12) a brochure on the foreign entity's nursing school; 
and (13) lists of the foreign entity's nursing students. 
The director denied the petition concluding that the petitioner failed to establish that it had a qualifying 
relationship with the foreign entity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the law was 
not applied properly with regard to (1) the ownership and control of the franchised restaurant and (2) the 
qualifying relationship between the petitioner and the foreign entity. In support of this assertion, the 
petitioner submits additional evidence. 
SRC 03 126 50040 
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Upon review and for the reasons discussed herein, counsel's assertions are not persuasive and, thus, the AAO 
will dismiss the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(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 himfher 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 primary issue in the present matter is whether the petitioner and the foreign entity are qualifying 
organizations. 
Title 8 C.F.R. 5 214.2(1)(l)(ii)(G) defines the term "qualifying organization" as 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 (I)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United 
States as an intracompany transferee; and 
SRC 03 126 50040 
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(3) 
 Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
In addition, 8 C.F.R. 8 214.2(1)(l)(ii)(K) defines the term "subsidiary" as: 
[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. 
The petitioner in this case maintains that the foreign entity owns half of the U.S. entity as part of a 50-50 
ownership arrangement with another Colombian company. In support of this assertion, the petitioner 
submitted its Articles of Incorporation, shareholder certificates, as well as the minutes of one meeting of the 
company related to stock issuance and ownership of the U.S. entity. 
Upon review of all of the documents submitted, however, it appears that there is a serious discrepancy in the 
record with regard to the ownership of the petitioner. Specifically, on Attachment B to the franchise 
agreement signed by the petitioner, the listed owners of the petitioner in "equal shares" are neither the foreign 
entity nor the other Colombian company. In the franchise agreement, the listed owners/stockholders of the 
petitioner are six individuals, one of whom is the beneficiary. Based on this document, it would appear that 
the foreign entity does not own any part of the U.S. entity and, thus, the petitioner would not qualify as a 
subsidiary of the foreign entity. 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). 
Given the information provided in the franchise agreement, the petitioner and counsel's assertion that the 
foreign entity owns 50% of the U.S. entity is not credible. If CIS fails to believe that a fact stated in the 
petition is true, as is the case in this matter, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. $ 
1154(b); see also Anetekhai v. LN.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
In addition, it should also be noted that in its letter dated March 28, 2003, counsel for the petitioner claims 
that, one of the listed owners of the petitioner in the franchise agreement, 
owns 100% of the foreign entity. Thus, while the assertions of counsel do not constitute evidence and will 
not satisfy the petitioner's burden of proof, absent any evidence to the contrary, the petitioner has also failed 
to establish that it qualifies as an affiliate under 8 C.F.R. fj 214.2(1)(l)(ii)(L) due to the apparent difference in 
the ownership of the petitioner (owned by six individuals) and the foreign entity (owned by one individual). 
See Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 
1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
SRC 03 126 50040 
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Moreover, with regard to another discrepancy in the record, the petitioner submitted two disparate 
organizational charts for the foreign entity, the differences in which have not been explained. Specifically, 
the first organizational chart indicates that the general manager is the most senior-level employee of the 
company and clearly shows that the beneficiary's position of administrative manager only has four 
subordinate employees: one general secretary, two secretaries, and one general services employee. The 
organizational chart submitted in response to the director's request for evidence, however, indicates that the 
beneficiary's position of administrative manager, and not the general manager, is the most senior-level 
employee of the company. In fact, the general manager position does not even appear on the second 
organizational chart. In addition, the second organizational chart indicates that the beneficiary's position of 
administrative manager has thirty subordinate employees, and not four as previously indicated: one general 
secretary, one academic director, six directive advisers, three secretaries, two coordinators, two general 
services employees, eleven educational employees [teachers], and four practice instructors. To make matters 
more confusing, counsel in his letter dated September 3, 2003 states that the beneficiary's position of 
administrative manager has twenty-five subordinate employees: four supervisors, three secretaries, eleven 
teachers, four instructors, and three general services employees. Given the dissimilar and conflicting 
information provided, the petitioner faces another serious credibility issue. Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582,591 (BIA 1988). 
Accordingly, upon review of the petition and the conflicting evidence presented, the petitioner has not 
established that it meets the definition of a qualifying organization as the "same employer or a subsidiary or 
affiliate thereof' as required by section 101(a)(15)(L) of the Act, 8 U.S.C. $ 1101(a)(15)(L). Thus, the 
decision of the director will be affirmed, and the petition will be denied. 
It should be noted for the record that simply owning a franchise, in itself, does not mean a petitioner cannot 
meet the requirements for a qualifying organization. However, in such cases, the ownership and control of 
the franchise is an issue that would normally need to be examined. As the petitioner failed to prove a 
qualifying relationship between itself and the foreign entity and as the appeal will be dismissed on this basis, 
this additional issue need not be examined further. 
Beyond the decision of the director, it is noted that the petitioner indicated under penalty of perjury in Part 4 
of the Petition for a Nonimmigrant Worker (Form 1-129) that the beneficiary had been denied the requested 
classification within the past seven years. Besides indicating that the beneficiary had previously been denied 
L- I A classification, however, no other additional information was provided regarding the denial. Form 1- 129 
specifically requests that the petitioner explain on a separate piece of paper the circumstances surrounding the 
previous denial. More importantly, the regulation at 8 C.F.R. 5 214.2(1)(2)(i) states that "[flailure to make a 
full disclosure of previous petitions filed may result in a denial of the petition." Simply checking a box on 
Form 1-129 does not meet the requirements of full disclosure under 8 C.F.R. fj 214.2(1)(2)(i); the plain 
meaning of full disclosure in this case entails the complete revelation of all material facts regarding the 
previous denial of the beneficiary's L-1A classification, e.g., the previous petition's receipt number and the 
reason(s) for its denial. See Black's Law Dictionary 177 Thus, as 
the petitioner failed to fully disclose the facts surrounding the previously filed petition and its subsequent 
denial, this petition will further be denied as a matter of discretion. 
SRC 03 126 50040 
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Moreover, while not explicitly addressed in the decision, the record contains no documentation to persuade 
the AAO that the beneficiary will be employed in a managerial or executive capacity as defined at section 
10 1 (a)(44) of the Act, 8 U.S.C. 5 1 10 1(a)(44), or that the petitioner would support such a position within one 
year of approval of the petition. As the appeal will be dismissed on the grounds discussed above, this issue 
need not be examined further. 
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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.