dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
20 Massachusrtts Ate . N W . Rnl A3042 
Wash~ng~bn. IIC 20529 
identifying dab UbrclrQ 
preverit dearly unw~~ 
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U. S. Citizenship 
and Immigration 
r-. i/ t 
PUBLIC COPY -1.- 
File: LlN-03-239-50701 Office: NEBRASKA SERVICE CENTER Date: JUN 7 2005 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursilant to Section I0 I (a)( IS)(L) of the Immigration 
and Nationality Act, 8 1J.S.C. tj 1 101(a)(15)(L) 
INSTRUCTIONS: 
'I-his 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. 
+obert P. Wieniann. Director 
" Administrative Appeals Office 
LIN-03-239-50701 
Page 2 
DISCUSSION: l'he Director. Nebraska Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Ofice (AAO) on appeal. 'The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ its President as an L-IA nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L,) of the l~tl~nigration and Nationality Act (the Act), 
8 U.S.C. 3 1101(a)(15)(L). The petitioner is a corporation organized in the State of Missouri that operates 
two convenience stores. The petitioner claims that it is the subsidiary of located in 
Tashkent, Uzbekistan. 'The beneficiary entered the United States as a 8-2 visitor for pleasure, and the 
petitioner now seeks to change his status to L-I A and extend his stay for a three year period. 
The director denied the petition concluding that the petitioner did not establish that: (I) the beneficiary will 
be employed in the United States in a primarily managerial or executive capacity; and (2) the petitioner has a 
qualifying relationship with the beneficiary's foreign employer. 
The petitioner subsequently filed an appeal. l'he 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 beneficiary 
will be employed in a primarily executive capacity, and that the petitioner has submitted sufficient evidence 
to show that the beneficiary's subordinates will relieve him from performing day-to-day tasks. Counsel 
further asserts that the evidence of record establ~shes that the petitioner and the beneficiary's foreign employer 
possess a qualifying relat~onship. In support of these assertions, counsel submits a brief and previously 
submitted documents. 
To establish eligibility for the L-l noni~nrnigrant visa classitication, the petitioner must meet the criteria 
outlined in section 1 Ol(a)(l5)(1,) 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. (j 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) bvidence that the petitloner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(I)(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 eniployment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
LIN-03-239-5070 1 
Page 3 
(iv) Evldence 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 himlher to perform the intended 
services in the United States; however, the work in tlie'linited States need not be the 
same work which the alien performed abroad. 
As a preliminary matter, the petitioner indicated on Form 1-129 that it is a new office. If a petitioner 
establishes that a beneficiary is coming to the United States as a manager or executive to open or to be employed 
in a new office in the United States, the ev~dentiary requirements of 8 C.F.R. 4 214.2(1)(3)(v) apply. The 
regulation at 8 C.F.R. tj 214.2(l)(l)(ii)(F) defines a "new ofice" as "an organ~zation which has been doing 
business in the United States through a parent, branch, affiliate. or subsidiary fir less than one year." As correctly 
noted by the director, the petitioner had been doing business for ovcr one year at the time the present petition was 
filed, thus the petitioner cannot be considered a new office. Specifically, the petitioner purchased and began 
operating its first convenience store in September 2001. As tlie petition was filed on August 7. 2003, the 
petitioner had been operating for two or niore years at the time of filing. Therefore, the law governing a 
petition ~r~volving a new ot'f7ce does not apply in the instant case. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity: 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 IOl(a)(44)(A). detines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages' the organization. or a department, subdivision. firnction, or component of 
the organization; 
(ii) supcrviscs and controls the work of other supervisory, professional, or managerial 
eniployecs. or manages an essential function within the organiration, or a department 
or subdivision of the organization; 
if another employee or other employees are directly supervised, has the authority to 
hire and tire or recommend those as well as other personnel actions (such as 
promotion and leave authorization). or if no other employee is directly supervised, 
fi~nctions at a senior level within the organizatic~nal hierarchy or with respect to the 
function managed; and 
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 c'onsidered to be 
acting in a managerla1 capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Sectioli IOI(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines tlie term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
LlN-03-239-5070 1 
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(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. 
With the initial petition filed on August 7. 2003, the petitioner submitted documents that describe the 
beneficiary's job duties The petitioner indicated that it operates two convenience stores, namely a 
acquired in September 2001. and acquired in December 2002. The 
an organizational chart reflecting that the benefic~ary w~ll have authority over both stores, each of which have 
three employees including a manager, a cashier, and a cashier/stockcr. 
On August 20, 2003. the director requested additional evidence. In part. the director requested: (I) the 
petitioner's Forms 941. Employer's Quarterly Tax Return, for the previous two quarters; and (2) a detailed job 
description for the beneficiary, including his routine. day-to-day duties and the percentage of weekly hours he 
will devote to each of his respective tasks. 
In a response dated November 7, 2003. in part the petitioner submitted: (1) its' Forms 941. Employer's 
Quarterly lax Return, for the first, second, and third quarters of 2003, and (2) a job description for the 
beneficiary as follows: 
Supervision of the management branches (20% of weekly hours) 
1. Supervision of store managers 
2. Day-to-day shift management 
3. Overseeing vendor dealings 
4. Reviewing ordering of merchandise 
5. Overseeing contracts with merchandisers 
6. Prices and terms negotiation 
7. Negotiation of merchandising area. order amount and location of displays 
Financial Management (20% ofweekly hours) 
I. Oversee accountant's work in determining current and future cash flow 
2. Review future financial requirements and take steps to meet those requirements 
3. Oversee the preparation of annual financial documents and tax returns 
Marketing Management (20% of weekly hours) 
1. Overseeing the general store set-up and environment 
7 -. Overseeing the placement of merchandise in an orderly manner 
3. Managing placement of advertisements in newspapers and mail-in coupons 
4. Overseeing the placen~ent of signage witt~i~l and outside the store 
5. Managing employee presentation 
Strategic Decision Making (20% of weekly hours) 
I. Assessnimt of external environment for threats and opportunities 
2. Assessment of internal environment for strengths and weaknesses in management, 
Iinances, marketing and HR 
3. Establishing long term and short tern1 objectives for company 
4. Defining management, financial, marl\eting and HR strategies to accomplish 
corporate ~b~jectives 
Human Resource Management (10% of weekly hours) 
1. Hiring managers, cashiers and stockers 
2. Evaluating enlployee perfortilance 
3. Negotiation of compensatior~ 
4. Keeping employees motivated 
New Business Development (for new stores) (10% of weekly hours) 
1. Searching of profitable locations for new stores 
2. Negotiation of leases 
3. Overseeing of the remodeling of locations to make all branches homogerieous 
4. Execution of contracts with gasoline suppliers, wholesale grocers and other vendors 
5. Hiring of potential employees and managers 
6. Undertaking of strategic steps In management. marketing and finance to make branch 
successful 
On November 21, 2003, the director issued a second request for additional evidence. In part. the director 
requested: (I) a description of the beneficiary's proposed duties in the United States; and (2) an 
organizational chart showing in detail the routine, day-to-day tasks to be performed by the beneficiary, 
identifying the percentage of weekly hours devoted to ti~s tasks, and showing the number of employees hc 
will supervise. 
In a response dated February 5. 1,004, in part thc petitioner submitted: (I) eight charts showing the 
petitioner's organizational structure arid subdividing the beneficiary's duties; and (2) a letter from counsel 
providing more detail regarding the beneficiary's duties. Ln the letter, counsel stated the following: 
From [the petitioner's organizational] chart it is clear the Beneficiary . . . will function as 
President and directly supervise the managers below him and. through those tnanagers direct 
the castiier/clerhs - in order to effectuate the high-level goals of the organization. 
LIN-03-239-5070 1 
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It should be noted that the Beneficiary lias exercised keen business sense, having judiciously 
store for a net profit of over $50,000. The Beneficiary is now in the 
the prospective purchase of two other stores[.] 
On February 20, 2004, the director denied the petition. In part. the director detennined that the petitioner did 
not establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. Specifically, the director stated the following: 
The evidence of record reflects the petitioner's husiness standing during 2001 and 2002. 
However, the circumstances appear to have changed since the filing of the petition in August 
2003. Based on the information provtded by the petitioner as a response to a request' for 
additional evidence, it is deterniined rhcre have been material changes in the petition due to 
the sale of the Zip Trip store. 
There is no evidence to establish that the U.S. entity employs a subordinate staff of 
professional, managerial, or supervisory personnel who will relieve the beneficiary from 
performing non-qualifying duties. An employee who primarily performs the tasks necessary 
to produce a product or provide services is not considered to he employed in a managerial or 
executive capacity. 
On appeal, cou~isel for the petitioner asserts that the beneficiary will be employed in a primarily executive 
capacity, and that the petitloner has submitted sufficient evidence to show that the beneficiary's subordinates 
will relieve h~m from performing day-to-day tasks. Counsel cites the regulatory requirements for managerial 
capacity, and asserts that the bdneticiary is not required to superv~se subordinate e~nployees in order to 
qual~fy as a manager. Counsel provides that the beneficiary will act as a functional manager Counsel asserts 
that the petitioner's organizational chart shows that the beneficiary will manage the petitioner's entire 
organization, and he will have at least hvo layers of personnel below him. Counsel further claims that the 
director erroneously required the beneficiary to perforrn e~clusively qualifying duties, and disregarded the 
regulatory prov~siori that the beneficiary can perform non-qualifying tasks so long as he is employed in a 
primarily managerial or executivt: capaclty Counsel states that the beneficiary's duties also meet the 
regulatory requirements for executive capacity. 
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. 
214.(l)()(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either In an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneliciary is primarily employed in a 
managerial or executi\/e capacity. A beneficiary may not claim to be en~ployed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
LIN-03-239-5070 1 
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In the instant matter, the petitioner does not clarify whether it claims the beneficiary will be primarily 
engaged in managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under 
section 10 l(a)(44)(B) of the Act. Counsel refers to the statutory definitions of both managerial capacity and 
executive capacity, thus, it appears that counsel intends to represent that the beneficiary will be primarily 
engaged in both managerial duties and executive duties. To sustain such .an assertion, the petitioner must 
establish that the beneficiary meets each of the four criteria set forth in the statutory definition for executive 
duties under section 101(a)(44)(B) of the Act, and the stati~tory definition for managerial duties under section 
101(a)(44)(A) of the Act. At a minirnum. the petitioner must de~nonstrate that the beneficiary's 
responsibilities will meet the requirements of one or the other capacity. 
The petitioner duties would involve managing two convenience 
stores, the petitioner' The petitioner described the beneficiary's proposed 
beneficiary's supervisory authority over two stores 
with three individuals employed in each. Yet, in r e director's second request for evidence. 
counsel stated that the beneficiary sold the petitioner' ce store. The organizational chart 
submitted with the response reflects that the petitione August 22,2003, two weeks after 
the petition was filed, though the petitioner failed to reveal this nding to the director's first request 
for evidence. The purpose of the request for evidence is to elicit further information that clarifies whether 
eligibility for the benefit sought has been established. 8 C.F.R. 5 103.3(b)(8). When responding to a request 
for evidence, a petitioner cannot offer a new position to the beneficiary. or materially change a position's title, 
its level of authority within the organiz-ational hierarchy, or its associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classitication as a 
managerial or executive position. hfufltter of .klicheli)~ T~re C'orp., 17 I&N Dec. 248, 249 (Reg. Cornm. 1978). 
If significant changes are made to the initial request for approval, the petitioner must file a new petition rather 
than seek approval of a petition that is not supported by tlie facts in the record. 
The fdct that the petitioner sold one of its two convenience stores would undoubtedly have a substantial 
impact on the beneficiary's duties in the United States. For example, the beneficiary's subordinate staff 
would be reduced to half that described in the initial petition. It is assumed that the percentage of time the 
beneficiary would devote to his various tasks would necessarily change. However, the petitioner has 
provided no explanation regarding the resulting effect the sale of one of its stores will have on the 
beneticiary's proposed duties. 
Further, the petitioner submitted an organizational chart 111 the same letter in res onse to the director's second 
request for evidence. The chart shows that the beneficiary hill oversee th ah store. and supervise its manager and other bvo staff members. This representation i\ in direct contradiction to counsel's statement 
that the petitioner sold th store. In counhel's attached letter, counsel stated that the beneficiary will 
"directly supervise the ,tIcnargers below him..' let uithout the-he petitioner employs only one 
individual below the benetlc~ary with tlie title "manager." (Emphasis added). It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objcctive evidence. Any attelript to 
explain or reconcile such inconsiste~icies will not suffice unless thc petitioner subn~its competent objective 
evidence pointing to where the truth lies hf~rtrer ofHo, 19 J&N Dec. 582, 591-92 (BIA 1988). Doubt cast on 
any aspect of the petitioner's proof may, nt course. lead to a reevaluation of the reliability and sufficiency of 
LIN-03-239-5070 I 
Page 8 
the remaining evidence offered in support of the visa petition. Id. at 591. The petitioner has failed to address. 
or resolve these material inconsistencies. 
As the petitioner has provided inconsistent information and made material changes to the beneficiary's job 
duties since filing the petition. the petitioner has not provided an accurate and reliable account of what the 
beneficiary's true duties in the United States would be. Thus, the petitioner has not eslablished that the 
beneficiary's duties will be primarily managerial or executive in nature. 
The record is not persuasive in delnonstratirig that the berleficiary has been or will be employed in a primarily 
managerial or esecutive capacity. The petitioner indicates that it plans to open additional stores and hire 
additional managers and e~nployees in the future. Itowever. the petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition A visa petition may not be approved at a fi~ture date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Muifcr q[i\fichcliri Tire ('orp., 17 I&N 
Dec. 248 (Reg. Comm. 1978). 
Based on the foregoing, the petitioner has not established that the beneficiary will be employed in a primarily 
managerial or exec~~tive capacity, as required by 8 C.F.R. 5; 21 J.2(1)(3)(ii). For this reason, the appeal will be 
dismissed. 
The second issue in this proceeding is whether the petitioner has established the it has a qualifying 
relationship with the beneficiary's foreign employcr as required by 8 C F.R. 6 214.2(1)(3)(i). 
The regulation at 8 C.F.R. tj 2 I4.3(1)( 1 Mii) provides: 
(G) I)utrl@it~g orgunizritinn means a Unitcd States or foreign firnm. corporation, or other 
legal entity which: 
(I Meets exactly one of the qualifying relationships specified in the definitions ofa 
parent. branch, affiliate or subsidiary specified in paragraph (I#l#ii) of this 
section; 
(2) Is or will be doing busirless (engaging in international trade is not required) as 
an ernployer in the United States and in at least one other country directly or 
through a parent, branch, affiliate. or subsidiaiy for the duration of the alien's 
stay in the United States a\ an intracornpany transferee; and 
(3) Otherwise meets the requirements of section 101 (a)(] 5)(L) of the Act. 
I 
(H) Doing hu~inrss means the regular, systematic, and continuous provision of goods andfor 
services by a qualifying organization and does not include the mere presence of an agent 
or office of the qualifying organi7~tion in the United States and abroad. 
(I) Purenr means a firm, corporation, or other legal entity which has subsidiaries. 
1,IN-03-239-5070 1 
Page 9 
(J) Rrctnch means an operating division'or office of the same organization housed in a 
different location. 
(K) Subsrcimy means a fimi, corporation, or other legal entity of which a parent owns, 
directly or indirectly. Inore than half of the entity and collaols the entity; or owns. 
d~rectly or indirectly. half of the entity and ctlntrols the entity; or owns, directly or 
indircctly, 50 percent of a 50-50 joint venture and has equal co~>trol and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact co~~trols 
the entity 
(L) .4ff;liure means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual. or 
(2) One of two legal entitics owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity. or 
(3) In the case of a partnership that is organized in the United States to provide 
accounting services along wlth managerial and/or consulting services and that 
~narhets its accounting services under an internationally recognized name under ' 
an agreement with a world\.cide coordinating organizatio~~ that is owned and 
controlled by the member accourit~ng firms. a partnership (or similar 
organization) that is organized outside the United States to provide accounting 
services shall be considered to be an affiliate of tile lin~ted States partnership if 
it rnarkets its accounting services under the same internationally recognized 
name under the agreement uith the worldwide coordinating organization of * 
which the United States partnership is also a member. 
In the initial petition, on Form 1-129 the petitioner indicated that it is tile subsidiary of the beneficiary's 
foreign employer, as the foreign entity owns 51 percent of the petitioner's stock. As evidence of this 
relationship, the petitioner submitted: (I) its articles of incorporation: (2) a corporate resolution, dated March 
18. 2009, retlected that the foreign ent~ty entered into a st~bscriptiori agreement for 5 1 percent of the 
petitioner's stock; and (3) copies of two stock certificates, showing that on March 18, 2002 the foreign entity 
acquired 510 shares of the petitloner's stock, ant1 an individual acquired 490 shares of the petitioner's stock. 
In the director's initial request for additional evidence, in part he requested: (1) copies of the subscription 
agreements for the petitioner's stock; (2) evidence that the foreign entity and the petitioner's other stock holder 
paid for the ownership of the petitioner, such as copies of wire transfers. cancelled checks, or deposit receipts 
detailing the monetary amounts for the stock purcllases; and (3) the petitioner's 2001 and 2002 IRS Forms 
1 120, U.S. Corporation Income Tax Return 
LM-03-239-5070 1 
Page 10 
In response, in part the petitioner submitted: (I) the requested stock subscription agreements, dated March 
18, 2002; (2) evidence of a wire transfer for $1 0,000, dated Ailgust 6, 2001; (3) a copy of the petitioner's IRS 
Form 1120X, Amended U.S. Corporation Income Tax Re~uni. \\lowing that the petitioner inadvertently filed 
as an S corporation for 200 1 ; and (4) a copy of the petitioner's 2002 IRS Fortn 1 120s. CJ.S. lncorne Tax 
Return for an S Corporation. 
The director's second request for evidence did not request docu~nentation regarding the petitioner's 
relationship to the benefic~ary's foreign employer. 
In the director's denial, he found that the petitioner did not establish that it has a qualifying relationship with 
the beneficiary's foreign employer. The director stated that the petitioner's documentation shows that the 
foreign entity ib owned by two individuals, each owning 50 percent of the business. The director discussed 
the two subscription agreements for the petitioner's stock, and noted that 510 shares were to be transferred to 
the foreign entity, and 490 shares were to be transferred to a separate individual. The director stated the 
following: 
The reIationship between the foreign and US entities is not that of a parent and subsidiary, as 
it has not been established who controls the foreign company. The relationship between the 
foreign and US entities does not appear to be that of affiliates, as the LIS entity is not one of 
two legal entities ent~rely owned and controlled by the same parent or individual. Further, the 
US entity is not one of two legal entities entirely owned and controlled by the same group of 
individuals, each owning and controlling approximately the same share or proportion of each 
entity. 
On appeal, counsel asserts that the evidence of record establishes that the petitioner and the beneficiary's 
foreign employer possess a qualifying relationship. Counsel states that the petitioner has established that the 
foreign entity is owned by two individuals in equal shares. Counsel further states that: 
In any event, the foreign entity controls the U.S. entity (via 51% ownership and control). 
Who controls the foreign entity is not an issue in a parent-subsidiary qualifying relationship 
.... 
The issue of who owns the parent would he relevant only if attempting to establish an affiliate 
relationship, which the Petitioner never raised. 
Upon review, counsel's assertions attd the submitted documentation do not establish that the petitioner and the 
foreign enttty possess a qual~fying relat~onship. The regulation and case law confirm that ownership and 
control are the factors that nwt be examlned in deterniining whether a qualifying relationship exists between 
United States and foreign entitles for purposes of this vi\a classification. hi(~!/rr of Ch'hurch Sciet?rolo~ 
/nlern~~tionul, 19 1&N Dec. 593 (BIA 1988); see nlsv .tfc~/ter uf Sjenten~ M~diccri Sj~tems, Inc , 19 I&N Dec. 
362 (RIA 19861, itflrrter of Hzrghe~, 18 I&N Dec. 289 (Cornm. 1982). In context of this visa petition, 
ownership refers to the direct or indirect legal right of possession of the ashets ofan entity with full power and 
LIN-03-239-5070 1 
Page I I 
authority to control: control means the direct or indirect legal right and authority to direct the establishment. 
management, and operations of an entity. hjutler of C'Iiltrci~ Scientology Irrternationul, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship. stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, lcorporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be ekatnined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit. the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Mutter of S~cmen~ h!e~/icnl Slatena, /?lcb., sltpnr. Without full disclosure of all 
relevant documents, Citizenship and lmlnigration Service (CIS) is unable to determine tlie elements of 
ownership and control. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 
8 C.F.R. 5 214.2(1)(3)(viii). As ownership is a critical element of this visa classification, the director may 
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership 
was acquired. As requested by the director, evidence of this nature should include documentation of monies. 
property, or other consideration furnished to the entity in exchange for stock ownership. Additional 
supporting evidence would include stock purchase agreements, subscription agreements, corporate by-laws, 
minutes of relevant shareholder meetings, or other legal docurnrnts governing the acquisition of the 
ownership interest. 
Counsel correctly notes that the ownership and control of the foreign entity is not material to whether the 
petitioner is a subsidiary of the foreign entity. The pivotal question in this regard is whether the petitioner has 
established that the foreign entity has sufficient ownership and control of the petitioner. 8 C.F.R. 
3 2 l4.2(1)( I )(ii)(U). 
The petitioner claims that the foreign entity owns 51 pcrecnt of its orltstanding stock. pursuant to a stock 
subscription agreement dated March 18, 2002. The agreement states that the foreign entity will purchase 510 
shares of the petitioner's stock for $5 10 In response to the director's request for evidence of consideration that 
the foreign entity provided for such shares, the petitioner submitted documentation of a wire transfer, dated, 
August 6, 2001, in the amount of $10,000. As the wire transfer predates the stock subscription agreement by 
seven months. it is illogical that these funds \Yere in satisfaction of the agreement. Further. the agreement 
indicates that the foreign entity is to pay $510. while the wire transfer is for $10,000. calling into question 
whether the wire transfer was part of the alleged stoch purchase. Thus. the petitioner has not sufticiently 
documented that the fore~gn entity paid funds for the petitioner's stock. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
hlcrrter of Sc,flici, 22 f&N Dec. 1 58. 165 (Comm. 1998) (cit~ng Illcrrter of Tre~~.\zirt> CruJ of C~lifOrni~~. 14 
l&N Dec. 190 (Reg. Comm. 1972)). 
Further, the pctitioncr submitted a copy of its IRS Form 1120X, Amended U.S. Corporation.lncome Tax 
Return, showing that the petitioner inadvertently filed as an S corporation for 2001. Yet, the petitioner 
LlN-03-239-5070 1 
Page I? 
submitted a copy of its 2002 IRS Form 11205. U.S. Income Tax Return for an S Corporation. showing that it 
again filed as an S corporation in 2002. The petitioner has provided no explanation or doculnentation to show 
that its 2002 filing was in error. Thus, the record shows that the petitioner operates as an S corporation. To 
qualify as a subchapter S corporation, a corporation's shareholders must be individuals. estates. certain trusts, 
or certain tax-exempt organizations, and the corporation nlay not have any non-resident alien shareholders. 
See Internal Revenue Code, 5 1361(b)(1999). A corporation is not eligible to elect S corporation status if a 
foreign corporation owns it in any part. Accordingly, it appears that the U.S. entity is owned by one or more 
individuals residing within the United Statcs rather than by a foreign entity. This conflicting information has 
not been resolved. It is incumbent upon the petitioner to resolve any inconsiste~~cies in the record by 
independent objective evidence. Any attclnpt to explain or reconcile such inconsistencies will not suffice 
i~nless the petitioner submits competent objective evidence pointing to where the truth lies. A4atft.r of Ho, 19 
I&N Dec. at 591-92. 
Thus, the petitioner has failed to show that ~t is,a subsidiary of the foreign entity. As the foreign entity and 
the petitioner are allegedly owned by different individuals or organizations, the petitioner has not shown that 
they are affiliates. See 8 C.F.R. 5 214.2(l)(l )(ii)(L). Based on the foregoing, the pet~tioner has failed to establish 
that it has a qualifying relat~onsh~p \vlth the fbreign entity. See 8 C.F.R $ 214.2(1)(3)(i). For this additional 
reason, the appeal will be dismissed. 
Beyond the decision of the director. it is rioted for the record that the beneficiary is not eligible for a change of 
status and extension of stay, as the present petition was filed after his B-2 nonirnmigrant status expired. 
The regulation at 8 C.F.R. $ 214.1 (c)(4) states the following: 
An extension of stay may not be approved for an applicant who failed to maintain the 
previously accorded status or hhere such status expired before the applicatiorl or petition was 
filed, except that failure to tile before the period of previously authorized status expired rnay 
be excused In the discretion of [CIS] and wrthout separate appl~cation. with any extension 
granted from the date the pre\~ously authoriled stay e~pired, where it is den~onstrated at the 
time of tiling that: 
(i) The delay was due to extraordinary circun~stances beyond the control of the applicant 
or petitioner. and [CIS] finds the delay commensurate with the circumstances: 
(ii) The alien has not otherwise violated his or her nonimmigrant status; 
(iii) The alien remains a bona fide nonimmigrant; and 
(iv) Thc alien is not the subject of deportation proceedings under section 242 of the Act 
(prior to April 1, 1997) or removal proceedings under section 240 of the Act. 
Further, the regulation at 8 C.F.R. 5 248. I(h) states the following: 
LIN-03-239-50701 
Page 13 
[A] change of status may not be approved an alien who failed to maintain the previously 
accorded status or whose status expired before the application or petition was filed, except 
that failure to file before the period of previotisly authorized status expired may be excused in 
the discretion of'[CIS] and without separate application,  here it is demonstrated at the time 
of filing that: 
(1) The failure to file a timely application was due to extraordinary circumstances 
beyond the control of the applicant or petitioner, and [CIS] finds the delay 
commensurate with the circumstances: 
(2) The alien has not otherwise violated his or her rlonimmigrant status: 
(3) The alien remains a bona fidc nonimniigrant; and 
(4) The alien is not the subject of deportation proceedings under 8 CFR part 240. 
The record shows that the beneficiary entered the LJn~ted States on March 23, 2001 as a B-2 visitor for 
pleasure. His status was valid until September 22. 2001 (Form 1-94 1) The beneficlay 
subsequently was approved for an extensloll of his B-'7 status, valid unt~l March 22, 2003 (LIN-01-274- 
50919.) On March 21. 11002, the petitioner filed a Form 1-129 petition (LIN-02-141-51314) seeking to 
classrfy the beneficiary as an L-I A intracon~pany tranifcree The Citizenship and Immigration Services (CIS) 
Nebraska Service Center denied the petition on October 3. 2002 On November 29, 2002, counsel for the 
petitioner filed an appeal seeking review of the d~rector's dec~s~on. After reviewrng the record, the director 
rejected the appeal as the appeal had not been filed In a timely manner, and that the appeal failed to meet the 
requirements of a mot~on to reopen or a motion to reconsider. On March 18, 2003. the petitioner filed a 
second appeal. seehing review of the director's deci\ion to reject the tht appeal as irntimely tiled. The 
second appeal was pending with the AAO at the ti~ne the present petition was filed. 
The petitioner filed the present petitton on August 7, 2003, 10 months after the director denied the first 
petition and the request for a corresponding change of status The record reflects that the beneficiary has not 
left the United States. 
The petitioner has not shown that "[tlhe delay was due to extraordinary circumstances beyond the control of 
the . . . petitioner." 8 C.F.R. 2 14. I(c)(.l)(i); 8 C.F.R. $ 248.1(h)(l). The petitioner indicated on Form 1-129 
that the beneficiary's status is "1,-IA Appeal Pending," jret this 1s not a legal immigration status recognized 
under the Act or regulations. There is no appeal for the denial of a change of status. See 8 C.F.R. 5 248.3(g). 
A pending appeal on behalf of a beneficiary does not create a new status or suspend the expiration of the 
beneficiary's prior status. 
Rased on the foregoing, the beneficiary's prior nonimlnlgrant status had expired as of the date of filing the 
present petition, and therefore it is noted that the beneficiary is ineligible to change his status or extend his 
stay. Strr 8 C.F.R. 5 214.l(cH4) or 8 C.F.K. $ 248.I(b). 
LlN-03-239-50701 
Page 14 
Beyond the decision of the director, it is noted that the petitioner indicated under penalty of perjury in Part 4 
of the Form 1-129 petition that the beneficiary had never been denied the requested classification. This 
petition was filed on August 7, 2003. As noted in the recitatiou of the procedural history of this matter, the 
beneficiary's previous I,-) petition (LIN-02- 14 1-5 13 14) was previously denied by the director on or about 
October 3, 2002. The regulations at 8 C.F.R. 3 213.3(1)(3)(i) state that "[flailure to make a full disclosure of 
previous petitions filed may result In a denial of the pdition." As the petitioner indicated on the form that the 
beneficiary had never been denied the requested classification. and the petitioner f'ailed to fully disclose the 
previously filed petition. this petition will be denied as a matter of discretion. 
Also beyond the decision of the director, the petitioner has not shown that tlie beneficiary "has at least one 
continuous year of full time employment abroad with a qualifying organization within the three years 
preceding the tiling of the petition," as required by 8 C.F.R. 5 214.2(1)(3)(iii). The beneficiary has been 
present continuously in the United States since March 23, 2001, in 8-7 status and out-of-status. The present 
petition was filed on August 7, 2003, approxi~nately tivo years and four tnonths after the beneficiary's entry. As 
the beneficiary was present in the United States for over two years prior to filing the petition, he has not been 
employed abroad for one continuous year out of the last three years Thus, he is ineligible far L- I A classification. 
8 C.F.R. 4 214.2(1)(3)(iii). For this additional reason. the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even lf the Service Center does not identify all of the grounds for denial in the initial decision. ,Tee 
Spencer Enrerprl.\e.s, Inc. v Ch~itrd S~~ites, 229 F. S1.1pp 2d 1035, 1043 (E.D. Cal. 2001), tfjd. 345 F.3d 683 
(9th Cir. 2003); .we ul.~ nor v INS, 891 F.2d 997. 1002 n. 9 (2d Clr. 1989)(noting that the AAO reviews 
appeals on a de trovo bas~s). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Sectiotl291 of the Act, 8 U.S.C. 1361. Thc petitioner has not met this burden. 
ORDER: The appeal is dismissed.