dismissed L-1A Case: Retail

iaentifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
File: WAC 08 039 51679 Office: CALIFORNIA SERVICE CENTER Date: MAR 0 4 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 101 (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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 9 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
John F. Grissom, Acting Chief 
Administrative Appeals Office 
WAC 08 039 51679 
Page 2 
DISCUSSION: The Director, California 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 visa petition seeking to employ the beneficiary in the position of 
manager-operations as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner is a corporation 
organized under the laws of the State of California and allegedly operates a liquor and convenience store. 
The director denied the petition concluding that the petitioner did not establish (1) that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or (2) that the petitioner and 
the beneficiary's foreign employer are qualifying organizations. 
The petitioner subsequently filed an appeal. The &rector declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred, that the 
beneficiary will perform primarily qualifying duties in the United States, and that both the foreign employer 
and the petitioner are owned and controlled by the same individual, In support, counsel 
tions for the beneficiary's claimed subordinate workers, and additional evidence 
pertaining to 
 purported acquisition of the petitioner's stock. 
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. § 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 himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
WAC 08 039 51679 
Page 3 
same work which the alien performed abroad. 
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in 
a primarily managerial or executive capacity. 
Section 101 (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 101(a)(44)(B) of the Act, 8 U.S.C. $ 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in whch the employee primarily: 
(i) 
 directs the management of the organization or a major component or fbnction of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner does not clarifl in the initial petition whether the beneficiary will primarily perform managerial 
duties under section 101 (a)(44)(A) of the Act, or primarily executive duties under section 101 (a)(44)(B) of 
the Act. A petitioner may not claim that a beneficiary will be employed as a hybrid "executive/manager" and 
rely on partial sections of the two statutory definitions. Given the lack of clarity, the AAO will assume that 
the petitioner is claiming that the beneficiary will be employed in either a managerial or an executive capacity 
WAC 08 039 51679 
Page 4 
and will consider both classifications. 
The petitioner claims in the Form 1-129 to employ 3 workers in its operation of a liquor and convenience 
store. The petitioner describes the beneficiary's proposed duties in a letter dated November 19, 2007 as 
follows: 
[The beneficiary] will hold the position of Manager in the California office of [the petitioner]. 
This position is a key position of our company because it is the Manager who prepares a plan 
for achieving the companies' vision for the future. He will also contribute to the member's 
individual performance and overall growth of the company. [The petitioner] plans on 
opening other convenience stores which will carry the items being grown and fanned by [the 
foreign employer] in Syria. 
On December 7, 2007 and March 6, 2008, the director requested additional evidence. The director requested, 
inter alia, a more detailed description of the beneficiary's proposed duties, including a breakdown of the 
percentage of time devoted to each ascribed duty; an organizational chart; a list of all employees under the 
beneficiary's supervision, including brief job descriptions and education levels for the subordinates; and 
copies of the petitioner's quarterly wage reports. 
In response, the petitioner submitted an organizational chart for the United States operation. The chart shows 
the beneficiary reporting to the "president" and directly supervising two cashiers and a stocker, who are 
claimed to be employees. The chart also shows the beneficiary supervising a driver, who is described as an 
"independent contractor." The petitioner did not describe the duties of the subordinate workers. 
The petitioner also further described the beneficiary's proposed duties in a letter dated April 20, 2008 as 
follows: 
1. EXECUTION OF PLANS: Estimated Time: 35% 
a) 
 Establishing of Company for purchasing merchandise. 
b) 
 Meeting with various sales persons and vendors and looking for the most 
reasonable price for our goods and merchandise. 
c) 
 Prepare a plan for achieving the companies' vision for the future. 
d) 
 Hiring workers as needed to help run the day[-]to[-]day operations of the 
business. 
PLANNING: Estimated Time: 15% 
a) 
 Devising various marketing materials and opportunities. 
b) 
 Reviewing and advising of monthly sales targets in comparison with actual 
sale results. 
c) 
 Planning of various business strategies to achieve desired results. 
d) 
 Designing of various marketing and business strategies based on market 
demand, business environments, seasonal requirements, cultures and 
customs. 
WAC 08 039 51679 
Page 5 
3. CONTROL: Estimated Time: 15% 
a) 
 Implementation of Control environment and to segregate various functions in 
the organization. 
b) Delegation of Authority at various organizational levels to streamline 
operations. 
c) Analyze and control expenses as per budgetary targets. 
d) Review Cash Control and maintenance of healthy case flow. 
4. AUTHORITY: Estimated Time: 10% 
a) 
 Authority to inspect grounds, facilities and equipment routinely to determine 
necessity of repairs and maintenance. 
b) 
 Investigate complaints, disturbances and violations, and resolve problems, 
following management rules and regulations. 
c) 
 Maintain records of sales, special permits issues, maintenance and operating 
costs. 
5. RELATIONSHIP[:] Estimated Time: 15% 
External 
a) Maintain personal contact with supplies [sic], manufacturers, primary 
distributors, wholesalers, legal counsels, and retailers. 
Internal 
a) 
 Coordinate closely with management and other personnel and primary 
distributors in connection with the execution of the Business Plan of the 
Company. 
b) 
 Coordinate with CPA in matters relating to taxes and payroll. 
6. OTHER FUNCTIONS [:I Estimated Time: 10% 
a) 
 Compliance of all corporate laws related to business operations as required as 
per law of the land. 
b) 
 Review of day[-]to[-]day operations including seeking the addition of more 
permanent employees to expand and grow the business. 
The petitioner provided an additional description of the beneficiary's proposed employment in another letter 
dated April 20,2008 as follows: 
[The beneficiary's] main duties will include but will not be limited to: overseeing the 
employees and independent contractors to make sure their work is being done effectively and 
without delay. He will make sure the stores are kept tidy and hlly stocked at all times. He 
will make the appropriate trips to the bank to refill the cash registers as needed. The 
[beneficiary] will also hire people on an as needed basis and fire employees if needed. He 
will make sure that no employee is absent, and if they are, he will have to fill in for them or 
find another employee to take their place for that day. He will also take care of making all 
WAC 08 039 51679 
Page 6 
the orders for items to be sold. This will also include doing research to see if any new 
products might be available to sell at the stores or to check on the popularity of items already 
being sold. 
On June 9,2008, the director denied the petition. The director concluded that the petitioner failed to establish 
that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, counsel asserts that the beneficiary will primarily perform qualifying duties in the United States. 
In support, counsel mher describes the duties of the beneficiary's claimed subordinate workers in his brief. 
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. 3 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. A petitioner cannot claim that some of the duties of the 
position entail executive responsibilities, while other duties are managerial. Again, a petitioner may not claim 
that a beneficiary will be employed as a hybrid "executive/manager" and rely on partial sections of the two 
statutory definitions. 
As a threshold issue, it is noted that employees hired, and locations opened, after the filing of the initial 
petition may not be considered in determining whether the petitioner has established that the beneficiary will 
be employed in a primarily managerial or executive capacity in the United States. A visa petition may not be 
approved based on speculation of future eligibility or aRer the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Cornm. 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to U.S. Citizenship and Immigration Services (USCIS) 
requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). At the time the instant 
petition was filed, the petitioner claimed to employ three workers in the operation of a single location. 
Accordingly, the petitioner's claim in its response to the director's Requests for Evidence that the beneficiary 
will supervise employees in two locations will not be considered by the AAO. 
Furthermore, counsel's attempt on appeal to describe the duties of the beneficiary's claimed subordinates was 
inappropriate and will not be considered by the AAO. The petitioner was put on notice of required evidence 
and given a reasonable opportunity to provide it for the record before the visa petition was adjudicated. The 
petitioner failed to submit the requested evidence, e.g., job descriptions for the beneficiary's claimed 
subordinates, and counsel attempts to submit it for the first time on appeal. The AAO will not consider this 
evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 
I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of proceeding before the 
director. Moreover, without documentary evidence to support his claim, counsel's uncorroborated descriptions 
of the subordinate workers' job duties will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
WAC 08 039 51679 
Page 7 
In view of the above, the petitioner's description of the beneficiary's job duties fails to establish that the 
beneficiary will act in a "managerial" or "executive" capacity. In support of the petition, the petitioner has 
submitted a vague and non-specific job description which fails to sufficiently describe what the beneficiary 
will do on a day-to-day basis. For example, the petitioner states that the beneficiary will review day-to-day 
operations, prepare plans and strategies, devise marketing opportunities, and implement "control 
environment." The petitioner also states that the beneficiary's "main duties" will include overseeing the 
employees and independent contractors and llmak[ing] sure their work is being done effectively and without 
delay." However, the petitioner does not specifically define these plans, strategies, or opportunities, or 
explain what, exactly, the beneficiary will do to review the day-to-day operations other than to act as a first- 
line supervisor of three subordinate convenience store workers. Furthermore, the petitioner has not 
established that the beneficiary's duties pertaining to meeting with sales persons, reviewing sales targets, 
analyzing expenses, reviewing cash control, inspecting grounds, investigating complaints, maintaining 
records, and contacting suppliers are qualifying duties, especially given that the petitioner does not appear to 
employ subordinate staff members dedicated to relieving the beneficiary of performing the non-qualifying 
tasks inherent to these duties. The fact that the petitioner has given the beneficiary a managerial or executive 
title and has prepared a vague job description which includes inflated job duties does not establish that the 
beneficiary will actually perform managerial or executive duties. Specifics are clearly an important indication 
of whether a beneficiary's duties are primarily executive or managerial in nature; otherwise meeting the 
definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 1 90 (Reg. Comm. 1972). 
Consequently, the record is not persuasive in establishing that the beneficiary will primarily perform 
qualifying duties in his administration of the liquor and convenience store. As noted above, the petitioner 
asserts that the beneficiary will oversee the petitioner's business operation as the first-line supervisor of three 
subordinate convenience store workers. The petitioner also asserts that the beneficiary will perform a variety 
of operational and administrative tasks associated with marketing, sales, banking, record keeping, and 
facilities maintenance. However, the record does not establish that the beneficiary will be relieved of the 
need to perform these non-qualifying administrative, operational, and first-line supervisory tasks by a 
subordinate staff. Accordingly, it appears more likely than not that the beneficiary will primarily perform 
non-qualifying first-line supervisory, administrative, or operational tasks in his administration of the business. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see 
also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comrn. 1988). A managerial 
employee must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor, unless the supervised employees are professionals. 101 (a)(44)(A)(iv) of the Act; see also Matter 
of Church Scientology International, 19 I&N Dec. at 604. 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees, or will manage an essential function of the organization. 
As asserted in the record, the beneficiary will directly supervise three subordinate convenience store 
employees, i.e., two "cashiers" and a "stocker," and one "driver" employed as an independent contractor. 
WAC 08 039 5 1679 
Page 8 
However, it has not been established that any of these workers is truly a supervisory or managerial worker. 
To the contrary, it appears that these workers will perform the tasks necessary to the operation of a liquor and 
convenience store. Furthermore, the petitioner failed to describe the duties of these subordinate workers, even 
though this evidence was specifically requested by the director. Therefore, it cannot be concluded that any of 
these subordinate workers is truly a managerial, supervisory, or professional employee. Failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
9 103.2(b)(l4). Finally, as the petitioner failed to establish the skills and education required to perform the 
duties of the subordinate positions, even though this evidence was also requested by the director, the 
petitioner has not established that the beneficiary will manage professional employees.' Accordingly, the 
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.2 
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
1 
In evaluating whether the beneficiary will manage professional employees, the AAO must evaluate whether 
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101 (a)(32) of the Act, 8 U.S.C. 9 1 101 (a)(32), states that "[tlhe term profession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comrn. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). 
2 
While the petitioner has not argued that the beneficiary will manage an essential function of the organization, 
the record nevertheless would not support this position even if taken. The term "function manager" applies 
generally when a beneficiary does not supervise or control the work of a subordinate staff but instead is 
primarily responsible for managing an "essential function" within the organization. See section 
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a 
petitioner claims that the beneficiary is managing an essential function, the petitioner must furnish a written 
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the 
function with specificity, articulate the essential nature of the function, and establish the proportion of the 
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. 5 214.2(1)(3)(ii). In 
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary 
manages the function rather than performs the tasks related to the function. In this matter, the petitioner has 
not provided evidence that the beneficiary will manage an essential function. The petitioner's vague job 
description fails to document that the beneficiary's duties will be primarily managerial. Also, as explained 
above, the record indicates that the beneficiary will primarily be a first-line supervisor of non-professional 
employees and will perform non-qualifying tasks. Absent a clear and credible breakdown of the time spent 
by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties will be 
managerial, nor can it deduce whether the beneficiary will primarily perform the duties of a function manager. 
See IKEA US, Inc. v. US. Dept. of Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
WAC 08 039 51679 
Page 9 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction from higher level executives, the board of directors, or 
stockholders of the organization." Id. For the same reasons indicated above, the petitioner has failed to 
establish that the beneficiary will act primarily in an executive capacity. As explained above, it appears 
instead that the beneficiary will be primarily employed as a first-line supervisor and will perform the tasks 
necessary to produce a product or to provide a service. Therefore, the petitioner has not established that the 
beneficiary will be employed primarily in an executive capacity. 
In reviewing the relevance of the number of employees a petitioner has, federal courts have generally agreed 
that USCIS "may properly consider an organization's small size as one factor in assessing whether its 
operations are substantial enough to support a manager." Family, Inc. v. US. Citizenship and Immigration 
Services, 469 F.3d 131 3, 13 16 (9th Cir. 2006) (citing with approval Republic of Transkei v. INS, 923 F.2d 175, 
178 (D.C. Cir. 1991); Fedin Bros. Co. v. Sava, 905 F.2d 41, 42 (2d Cir. 1990) (per curiam); Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). Furthermore, it is appropriate for USCIS to 
consider the size of the petitioning company in conjunction with other relevant factors, such as a company's 
small personnel size, the absence of employees who would perform the non-managerial or non-executive 
.operations of the company, or a "shell company" that does not conduct business in a regular and continuous 
' 
manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 200 1). 
. 
 Accordingly, the petitioner has failed to establish that the beneficiary will primarily perform managerial or 
executive duties, and the petition may not be approved for that reason. 
The second issue in the present matter is whether the petitioner has established that it and the foreign 
employer are qualifying organizations. 
The regulation at 8 C.F.R. fj 214.2(1)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by 
"[elvidence that the petitioner and the organization which employed or will employ the alien are qualifying 
organizations." Title 8 C.F.R. fj 214.2(i)(l)(ii)(G) defines a "qualifymg organization" as a fm, corporation, 
or other legal entity which "meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section'' and "is or will be doing 
business." "Affiliate" is defined in pertinent part as "[olne of two subsidiaries both of which are owned and 
controlled by the same parent or individual." 8 C.F.R. fj 2 14.2(1)(l)(ii)(L)(I). 
In this matter, the petitioner claims that it is owned and controlled by. In support, the petitioner 
submits organizational documents, including articles of incorporation, bylaws, minutes, and a stock 
certificate. The minutes indicate that invested $242,300.00 into the corporation as consideration 
for stock. 
WAC 08 039 51679 
Page 10 
The petitioner also claims that the foreign employer in Syria, 
 is owned and controlled by 
In support, the petitioner submits a variety of translated organizational documents related to 
the foreign enterprise. The petitioner submits a "Certificate of Com an Re istration" listing the partners as 
- and banking documents listing as the account holder. 
"title deeds" listing the "proprietort' and "owner" as and a "statement" identifying - 
the "owner of the company." 
The petitioner also submits a "Contract of Joined Company" between and. This 
document indicates that 
 owns a farm and that 
 wants to invest money in the 
operation. The contract, however, does not indicate that 
 has acquired an ownership stake in the 
operation. 
On March 6, 2008, the director requested additional evidence. The director requested, inter alia, evidence 
establishing that the owner of the petitioner has in fact paid for his interest in the United States operation, e.g., 
wire transfers, cancelled checks, or deposit receipts. 
In response, the petitioner resubmitted a copy of its minutes, stock certificate, and stock ledger. 
 The 
petitioner did not submit any evidence responsive to the Request for Evidence. 
On June 9, 2008, the director denied the petition. The director concluded that the record does not establish 
had actually acquired his claimed interest in the petitioning corporation. 
On appeal, counsel submits additional evidence pertaining toclaimed acquisition of an interest 
in the petitioning corporation. Counsel submits a COPY of an escrow statement and cashier's check related to 
apparent acquisition of assets at 
 in July 2006. 
However, this evidence does not appear to relate to the petitioner or the beneficiary's acquisition of stock in 
that corporation. 
Upon review, counsel's assertions are not persuasive. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593; see also Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm. 
1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of possession of 
the assets of an entity with full power and authority to control; control means the direct or indirect legal right 
and authority to direct the establishment, management, and operations of an entity. Matter of Church 
Scientology International, 19 I&N Dec. at 595. 
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8 
C.F.R. 8 214.2(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. 
WAC 08 039 51679 
Page 11 
In this matter, counsel's attempt to submit additional evidence on appeal pertaining to 
 claimed 
acquisition of the petitioner's stock was inappropriate and will not be considered by the AAO. The petitioner 
was put on notice of required evidence and given a reasonable opportunity to provide it for the record before 
the visa petition was adjudicated. The petitioner failed to submit the requested evidence, and now counsel 
attempts to submit it for the first time on appeal. Once again, the AAO will not consider this evidence for any 
purpose. See Matter of Soriano, 19 I&N Dec. 764; Matter of Obaigbena, 19 I&N Dec. 533. The appeal will 
be adjudicated based on the record of roceeding before the director. Accordingly, as the record is devoid of 
evidence establishing that has purchased his interest in the petitioner, it has not been established 
that the petitioner is owned and controlled by and, thus, the record is not persuasive in 
establishing that the petitioner and the foreign employer are qualifying organizations. Once again, failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(14).~ 
Furthermore, the record is not persuasive in establishing that 
 owns and controls the foreign 
employer, Although is identified in several of the translated documents 
pertaining to the foreign employer, these documents do not identify as an owner of a business. 
Rather, it appears more likely than not that the foreign enterprise is principally owned and controlled by 
This individual is the only person listed on the operation's bank account and on the title 
deeds to the farm. Moreover, this individual is identified as both the "proprietor" and "owner" of the 
business. While 
 is listed as a partner and an investor in two documents, the size of his 
ownership share, if any, is not described, and the record is not persuasive in establishing that he has any legal 
right or authority to direct the establishment, management, and operations of the enterprise. 
Accordingly, as the petitioner has failed to establish that it and the foreign employer are qualifying 
organizations, the petition may not be approved for this additional reason. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary was employed 
abroad in a primarily managerial or executive capacity. 
The petitioner describes the beneficiary's duties abroad as "manager" in a letter dated November 19, 2007 as 
being "responsible for managing the company, buying seeds, fertilizing, irrigation, and harvesting of hits." 
The petitioner also claims that the beneficiary is responsible "for distributing and selling the fruits." 
Counsel further described the beneficiary's duties abroad in a letter dated February 20,2008 as follows: 
[The beneficiary] was responsible for managing the company which took up about 25% of his 
time, buying seeds which took approximately 10% of his time, fertilizing which could take up 
3~egardless, even if the AAO considered the evidence submitted on appeal, this evidence does not establish 
that Bpurchased his stock from the petitioner. As noted above, this evidence appears to pertain to 
personal acquisition of assets in 2006 fromand . The petitioner is not a party 
to the escrow statement submitted on appeal. Accordingly, this evidence appears irrelevant and is not 
responsive to the director's Request for Evidence. 
WAC 08 039 51 679 
Page 12 
to 20% of his time, irrigation which took approximately 10% of his time, and the harvesting 
of fruits which took up most of his time at approximately 35%. 
Counsel also notes that, while the beneficiary supervised six farmers, he "ran the equipment himself most of 
the time." 
Upon review, it has not been established that the beneficiary primarily performed managerial or executive 
duties abroad. To the contrary, it appears that the beneficiary primarily performed administrative, 
operational, and first-line supervisory tasks abroad. As noted above, the beneficiary devoted a majority of his 
time to buying seeds, fertilizing, irrigating, and harvesting fruit. Absent evidence to the contrary, these are 
not qualifying managerial or executive duties. An employee who "primarily" performs the tasks necessary to 
produce a product or to provide services is not considered to be "primarily" employed in a managerial or 
executive capacity. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of Church Scientology 
International, 19 I&N Dec. at 604. Also, to the extent the beneficiary supervised subordinate farm laborers, 
this first-line supervisory task would also be non-qualifying. Once again, a managerial or executive employee 
generally must have authority over day-to-day operations beyond the level normally vested in a first-line 
supervisor. 10 1 (a)(44) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, as the petitioner failed to establish that the beneficiary was employed abroad in a primarily 
managerial or executive capacity, the petition may not be approved for this additional reason. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1 043 (E.D. Cal. 200 I), afd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, the 
appeal will be di~rnissed.~ 
ORDER: The appeal is dismissed. 
4 
It is noted that the director stated in his decision that it appears from the petitioner's quarterly wage reports 
that the beneficiary has been employed inappropriately by the petitioner in B-2 visa status. On appeal, 
counsel submits evidence that the individual listed in the quarterly wage reports is not the beneficiary. Upon 
review, the AAO agrees that the individual listed in the wage reports, while having a similar name, does not 
appear to be the same person as the beneficiary. Accordingly, this statement by the director is withdrawn.