dismissed L-1A Case: Retail

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Avc.. N.W.. Rm. A3042 
Washington. I3C 213529 
US. Citizenship 
and Immigration 
File: LlN-03-239-50701 Office: NEBRASKA SERVICE CENTER Date: JUN ;! 7 2@5 
Petition: Pet it ion for a Nonimrnigrant Worker Pursuant to Section I0 I (a)( 1 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. (j I 101(a)(15)(L) 
IN BEtIALF 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 oftice. 
I 
obert P. Wiemann, Director 
Adtninistrative Appeals Ofice 
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DISCUSSION: The Director, Nebraska 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 President as an L-IA nonimrnigrant 
intracompany transferee pursuant to section IOl(a)(l5)(1,) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1 lOI(a)(lS)(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 Fray's Internalional, located in 
Tashkent, Uzbekistan. The beneficiary entered the United States as a B-2 visitor for pleasure, and the 
petitioner now seeks to change his status to L-1 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. 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 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 establishes that the petitioner and the beneficiary's foreign employer 
possess a qualifying relationship. In support of these assertions, counsel submits a brief and previously 
submitted documents. 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's applicatio~~ 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. ij 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 (I)(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. 
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(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 himlher 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. 
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 evidentiary requirements of 8 C.F.R. ij 2 14.2(1)(3)(v) apply. The 
regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(F) defines a "new office" as "an organization which has been doing 
business in the United States through a parent, branch, affiliate, or subsidiary for less than one year." As correctly 
noted by the director, the petitioner had been doing business for over 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 the petition was filed on August 7, 2003, the 
petitioner had been operating for two or more years at the time of filing. Therefore, the law governing a 
petition involving a new ofice 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 lOl(a)(44)(A) of the Act, 8 U .S.C. $ 1 101 (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 IOI(a)(44)(B) of the Act, 8 U.S.C. Ej 1 IOl(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
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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 Auaust 7, 2003. the ~etitioner 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 beneficiary will have authority over both stores, each of which have 
three e~nployees including a manager, a cashier, and a cashierlstockcr. 
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 pcrceritage of weekly hours he 
will devote to each of his respective tasks. 
In a response dated November 7, 2003, in part the petitioner submitted: (I) its Forms 941, Employer's 
Quarterly Tax 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°A of weekty hours) 
1. Supervision of store managers 
2. Day-to-day shift management 
3. Overseeing vendor dealings 
4. Reviewing ordering of n~erchandise 
5. Overseeing contracts with merchandisers 
6. Prices and terms negotiation 
7. Negotiation of merchandising area, order amount and location of displays 
Financial Management (20% of weekly hours) 
1. 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) 
I. Overseeing the general store set-up and environment 
2. Overseeing the placement of merchandise in an orderly manner 
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3. Managing placement of advertisements in newspapers and mail-in coupons 
4. Overseeing the placement of signage within and outside the store 
5. Managing employee presentation 
Strategic Decision Making (20% of weekly hours) 
I. Assessment of external environment for threats and opportunities 
2. Assessment of internal environment for strengths and weaknesses in management, 
finances, marketing and HR 
3. Establishing long term and short term objectives for company 
4. Defining management, financial, marketing and HR strategies to accomplish 
corporate objectives 
Human Resource Management (10% of weekly hours) 
1. Hiring managers, cashiers and stockers 
2. Evaluating employee performance 
3. Negotiation of compensation 
4. Keeping employees motivated 
New Business Development (for new stores) (10% of weekly hours) 
I. Searching of profitable locations for new stores 
2. Negotiation of leases 
3. Overseeing of the remodeling of locations to make all branches homogeneous 
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: (1) 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 his tasks, and showing the number of employees he 
will supervise. 
In a response dated February 5, 2004. in part the petitioner submitted: (1) eight charts showing the 
petitioner's organizational structure and subdividing the beneficiary's duties; and (2) a letter from counsel 
providing more detail regarding the beneficiary's duties. In 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 cashiericlerks - in order to effectuate the high-level goals of the organization. 
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It should be noted that the Beneficiary has 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 determined 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 business 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 provided by the petitioner as a response to a request for 
additional evidence, it is determined there 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 e~nployee who primarily performs the tasks necessary 
to produce a product or provide services is not considered to be employed in a managerial or 
executive capacity. 
On appeal, counset 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 cites the regulatory requirements for managerial 
capacity, and asserts that the beneficiary is not required to supervise subordillate e~nployees in order to 
qualify as a manager. Cour~sel 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 two layers of personnel below him. Counsel further claims that the 
director erroneously required the beneficiary to perform exclusively qualifying duties, and disregarded the 
regulatory provision that the beneficiary can perform non-qualifying tasks so long as he is employed in a 
primarily managerial or executive capacity. 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 mallagerial capacity 
of the beneficiary, the AAO will look first to the petitioner's description of the job duties. Set. 8 C.F.R. 
2l4.(l)3)(ii). The petitioner's description of the job duties must clearly describe the duties to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
capacity. Id. The petitioner must specifically state whether the beneficiary is primarily employed in a 
manageriat or executive capacity. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. 
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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 101(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 statutory definition for managerial duties under section 
101(a)(44)(A) of the Act. At a minimum, the petitioner must demonstrate that the beneficiary's 
responsibilities will meet the requirements of one or the other capacity. 
The petitioner initialty represented that the beneficiar 's duties would involve managing two convenience 
stores, the petitioner'nbYThe petitioner described the beneficiary's proposed 
duties based on an organizational chart that illustrates the beneficiary's supervisory authority over two stores 
with three individuals employed in each. Yet, in second request for evidence, 
counsel stated that the beneficiary sold the petitioner' The organizational chart 
submitted with the response reflects that the n August 22,2003, two weeks after 
the petition was filed, though the petitioner failed to reveal this fact in responding 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. $ 103.2(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 organizational 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. Mutter of Michelin Tire Cbrp., 17 I&N Dec. 248, 249 (Reg. Cotnm. 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 the facts in the record. 
The fact 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 wo~ild 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 
beneficiary's proposed duties. 
Further, the petitioner submitted an organizational chart in the same letter in res onse to the director's second 
request for evidence. The chart shows that the beneficiary will oversee th L) store, and supervise its 
manager and other two staff members. This remesentation is in direct contradiction to counsel's statement 
that tie petitioner sold thtore In co;nsel5s attached letter, counsel stated that the beneficiary will 
"directly supervise the mcmugers below him," yet without thethe petitioner employs only one 
individual below the beneficiary with the title "manager." (Etnphasis added). It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attetnpt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Mutter 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 
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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 established that the 
beneficiary's duties will be pri~narily managerial or executive in nature. 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The petitioner indicates that it plans to open additional stores and hire 
additional managers and employees in the future. However, the petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelir~ Tire C70rp., 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 executive capacity, as required by 8 C.F.R. tj 214.2(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 employer as required by 8 C.F.R. 5 214.2(1)(3)(i). 
The regulation at 8 C.F.R. 5 2 14.2(1)(1 Hii) provides: 
(G) Quu/&ing orgunizution means a United States or foreign firm, corporation, or other 
legal entity which: 
(I) 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 
(3) Otherwise meets the requirements of section 101(a)(I 5)(L) of the Act. 
(H) Doing business means the regular, systematic, and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent 
or office of the qualifying organization in the United States and abroad. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
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(J) Branch means an operating division or office of the same organization housed in a 
different location. 
(K) Subsidimy means a firm, corporation, or other legal entity of which a parent owt~s, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
(L) Affiliute 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 entities owned and controlled by the same group of 
individuals, each individual owning and controtling 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 with managerial and/or consulting services and that 
markets its accounting services under an internationally recognized name under 
an agreement with a worldwide coordinating organization that is owned and 
controlled by the member accounting firms. a partnership (or similar 
organization) that is organized outside the United States to provide accounting 
services shall be considered to be an aftiliate of the United States partnership if 
it markets its accounting services under the same internationally recognized 
name under the agreement with 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 the 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: (1) its articles of incorporation; (2) a corporate resolution, dated March 
18, 2002, reflected that the foreign entity entered into a subscription agreement for 51 percent of the 
petitioner's stock; and (3) copies of two stock certificates, showing that on March 18, 2002 the foreign entity 
acquired 5 10 shares of the petitioner's stock, and 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 purchases; and (3) the petitioner's 2001 and 2002 IRS Forms 
1120, U.S. Corporation Income Tax Return. 
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In response, in part the petitioner submitted: (1) the requested stock subscription agreements, dated March 
18, 2002; (2) evidence of a wire transfer for $10,000, dated August 6, 2001; (3) a copy of the petitioner's IRS 
Form 1120X, Amended U.S. Corporation Income Tax Return, showing that the petitioner inadvertently filed 
as an S corporation for 2001; and (4) a copy of the petitioner's 2002 IRS Form 11205, U.S. Income Tax 
Return for at1 S Corporation. 
The director's second request for evidence did not request documentation regarding the petitioner's 
relationship to the beneficiary'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 is 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 5 10 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 relationship 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 US entity is not one of 
two legal entities entirely 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 5 1% 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 be relevant only if attempting to establish an affiliate 
relationship, which the Petitioner never raised. 
Upon review, counsel's assertions and the submitted documentation do not establish that the petitioner and the 
foreign entity possess a qualifying relationship. 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. Mutter of Church Scienlolo~y 
/nternationul, 19 I&N Dec. 593 (BIA 1988); see also Mutter uf Siemens MedicuI Systtern,~ hc., 19 I&N Dec. 
362 (RIA 1986); Matter c?f Hughes, 18 I&N Dec. 289 (Comm. 1982). In 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 
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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 S'cienlokogv Internutionul, 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, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined 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 protit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Mutter ($Siemens Medical SvJ.iems, Inc., sujlrcr. Without full disclosure of all 
relevant documents, Citizenship and Immigration Service (CIS) is unable to deternline the 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 eletnent 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 documents governing the acquisition of the 
ownersliip 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 cotitrol of the petitioner. 8 C.F.R. 
4 2 14.2(1)( I)(ii)(K). 
The petitioner claims that the foreign entity owns 51 percent of its outstanding 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 were 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 stock purchase. Thus, the petitioner has not sufficiently 
documented that the foreign 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. 
Mutter of Sofjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Mcrtrer of Trrctszrrr Oufr of Culiforniu, 14 
t&N Dec. 190 (Reg. Comm. 1972)). 
Further, the petitioner submitted a copy of its IRS Form 1120X, Amended U.S. Corporation Income Tax 
Return, showing that the petitioner inadvertently filed as an S corporation for 2001. Yet, the petitioner 
LlN-03-239-5070 1 
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submitted a copy of its 2002 IRS Form 1 120s. 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 documentation 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 may not have any non-resident alien shareholders. 
See Internal Revenue Code, $ 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 States rather than by a foreign entity. This conflicting information has 
not been resolved. 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 qf Ho, 19 
I&N Dec. at 591-92. 
Thus, the petitioner has failed to show that it 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. $ 214,2(l)(l)(ii)(L). Based on the foregoing, the petitioner has failed to establish 
that it has a qualifying relationship with the foreign entity. See 8 C.F.R. 4 2 14.2(1)(3)(i). For this additional 
reason, the appeal will be dismissed. 
Beyond the decision of the director, it is noted 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 nonimmigrant status expired. 
The regulation at 8 C.F.R. 5 214.l(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 where such status expired before the application or petition was 
tiled, except that failure to tile before the period of previously authorized status expired may 
be excused in the discretion of [CIS] and without separate application, with any extension 
granted from the date the previously authorized stay expired, where it is demonstrated at the 
time of filing that: 
(i) The delay was due to extraordinary circumstances beyond the control of the applicant 
or petitioner, and [CIS] finds the delay comtnensurate 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) The alien is not the subject of deportation proceedings under section 242 of the Act 
(prior to April 1, 1997) or re~novat proceedings under section 240 of the Act. 
Further, the regulation at 8 C.F.R. 5 248.1(b) states the following: 
LLN-03-239-5070 1 
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 previously authorized status expired may be excused in 
the discretion of [CIS] and without separate application, where 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 nonimmigrant status; 
(3) The alien remains a bona fide nonimmigrant; and 
(41 The alien is not the subject of deportation proceedings under 8 CFR part 240. 
The record shows that the beneficiary entered the United States on March 23, 2001 as a B-2 visitor for 
pleasure. His status was valid until September 22, 2001 (Form 1-94 ) The beneficiary 
subsequently was approved for an extension of his B-2 status, valid until March 22, 2003 (LIN-01-274- 
50919.) On March 21, 2002, the petitioner filed a Form 1-129 petition (LIN-02-14 1-5 13 14) seeking to 
classify the beneficiary as an L-1 A intracompany transferee. 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 director's decision. After reviewing 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 motion to reopen or a motion to reconsider. On March 18, 2003, the petitioner filed a 
second appeal, seeking review of the director's decision to reject the first appeal as untimely filed. The 
second appeal was pending with the AAO at the time the present petition was filed. 
The petitioner filed the present petition 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.l(c)(4)(i); 8 C.F.R. 5 248. I (b)(l). The petitioner indicated on Form 1-129 
that the beneficiary's status is "L-IA Appeal Pending," yet this is 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. 
Based on the foregoing, the beneficiary's prior nonimmigrant 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. See 8 C.F.R. 6 214.l(c)(4)or8 C.F.R. $ 248.1(b). 
LIN-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 recitation of the procedural history of this matter, the 
beneficiary's previous L-1 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. tj 214.2(1)(2)(i) state that "[flailure to make a full disclosure of 
previous petitions filed may result in a denial of the petition." As the petitioner indicated on the form that the 
beneficiary had never been denied the requested classification, and the petitioner failed 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 the beneficiary "has at least one 
contilluous year of full time employment abroad with a qualifying organization within the three years 
preceding the filing of the petition," as required by 8 C.F.R. $ 214.2(1)(3)(iii). The beneficiary has been 
present continuously in the United States since March 23, 2001, in B-2 status and out-of-status. The present 
petition was filed on August 7, 2003, approximately two years and four months 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 for L-I A classification. 
8 C.F.R. fj 214.2(1)(3)(iii). For this additional reason, the petition may not be approved. 
An application or petition that fails to cornply 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 Enrrrprise.~, lnc. v, United S~LI~L'S, 229 F. Supp 2d 1025, 1043 (E.D. Gal. 2001), ugd. 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). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 ofthe Act, 8 U.S.C. $ 1361. The petitioner has not met this burden. 
ORDER: The appeal is dismissed.