dismissed L-1A Case: Retail

MATTER OF ZW-, INC. 
APPEAL OF VERMONT SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 20, 2016 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a cell phone and accessory retailer, seeks to temporarily employ the Beneficiary as its 
CEO under the L-lA nonimmigrant classification for intracompany transferees. See Immigration 
and Nationality Act (the Act) section 101(a)(15)(L), 8 U.S.C § 1101(a)(15)(L). The L-IA 
classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a 
qualifying foreign employee to the United States to work temporarily in an executive or managerial 
capacity. 
The Director, Vermont Service Center, denied the petition, concluding that the Petitioner did not 
establish that the Beneficiary will be employed in a managerial or executive capacity in the United 
States. 
The matter is now before us on appeal. In its appeal, the Petitioner submits additional evidence and 
asserts that the Beneficiary will be employed primarily in an executive capacity in the United States. 
Upon de novo review, we will dismiss the appeal. 
I. LEGAL FRAMEWORK 
To establish eligibility for the L-1 nonimmigrant visa classification, a qualifying organization must 
have employed the Beneficiary in a 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. Section 101(a)(15)(L) of the Act. 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. !d. 
The regulation at 8 C.P.R. § 214.2(1)(3) states that an individual petition filed on Form I-129, 
Petition for a Nonimmigrant Worker, 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) ofthis section. 
Matter ofZW-, Inc. 
(ii) · Evidence that the alien will be employed in an executive, managerial, or 
specialized knowledge capacity, including a detailed description of the 
services to be performed. 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a qualifying organization within the three years 
preceding the filing of the petition. 
(iv) Evidence that the alien's prior year of employment abroad was in a position 
that was managerial, executive or involved specialized knowledge and that 
the alien's prior education, training, and employment qualifies him/her to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
II. U.S. EMPLOYMENT IN A MANAGERIAL OR EXECUTIVE CAPACITY 
The Director denied the petition based on a finding that the Petitioner did not establish that the 
Beneficiary will be employed in a managerial or executive capacity in the United States. 
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 which the employee primarily": -~ 
(i) directs the management of the organization or a major component or 
function of the organization; 
(ii) establishes the goals and policies of the organization, cqmponent, 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. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(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; 
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Matter of ZW-, Inc. 
(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. 
Further, "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." !d. 
If staffing levels are used as a factor in determining whether an individual is acting in a managerial 
or executive capacity, U.S. Citizenship and Immigration Services (USCIS) must take into account 
the reasonable needs of the organization, in light of the overall purpose and stage of development of 
the organization. See section 101(a)(44)(C) ofthe Act. 
A. Evidence of Record 
The Petitioner filed the Form I-129 on July 9, 2015. On the Form I-129, the Petitioner indicated that 
it has "7+" employees in the United States and a gross annual income of$799,149.00. 
In its letter of support, the Petitioner explained that it operates two cell phone stores that offer a 
selection of cell phones, cell phone accessories, and repair services. The Petitioner stated that the 
Beneficiary will be employed in a primarily executive capacity in the United States and described 
his position and duties as follows: 
Executive Capacity- 60% 
1. Directs the management of the organization or maJor function of the 
organization: (20%) 
• Responsible for all financial, operational, administrative and legal aspects of 
the daily organization management of the company, including finance, sales, 
marketing, inventory, purchasing and sound management of all fiscal 
resources, supervision of established staff member and operations in 
accordance with standard business practice; 
• Leverage enterprise knowledge of significant development and trends in the 
industry to direct managers in purchasing of inventory, sourcing of vendors 
and negotiate with vendors; 
• Ensure program compliance and program and fiscal accountability; 
2. Establishes the goals and policies of the organization, component, or function: 
(20%) 
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Matter of ZW-, Inc. 
• Develop the strategy of the company using performance measurement to 
guide strategic and operational decision-making; 
• Implement board-approved strategic plan, and implement other board and 
agency plans in a timely way as they relate to the capital campaign, 
programs, annual fund development, communications and business 
development; 
• Determine business expansion possibilities and ensure efficient and cost 
effective management of company based on quarterly financial audit and 
reviews; 
• Develop and administer board-approved personnel policies; 
3. Exercises wide latitude in discretionary decision-making: (15%) 
• Give direction and leadership towards the achievement of the organization's 
proprietary philosophy, mission, strategy, and annual goals, and objectives; 
• Provide leadership in developing organizational and financial plan, and 
carry out plans and policies as authorized by the board; 
• Assist the shareholder by maintaining and promoting the vision and mission 
ofthe company and in achieving goals and objectives ofthe strategic plan; 
4. Receives only general supervision ... (5%) 
• Work with the stakeholders to set investment and management policies 
consistent with the goal to expand global investment portfolio; 
• Liaison with business brokers and investigate prospective investment deals 
for the company; 
• Identify and cultivate partner organization in arranging new business 
venture, investment, sales, loans and vendor agreements, etc; 
• Keep the shareholder informed on the conditions of the company and other 
important factors affecting the health of the company's investment portfolio 
and market development & public relations strategies; 
Managerial Capacity: ( 40%) 
5. Manages the organization, or a department, subdivision, function or component 
of the organization: ( 15%) 
• Maintain fiscal responsibility for the annual budget and report to the board 
regularly; 
• Directing public relations functions by establishing and strengthening 
working relationship with industry partners and vendors at the local, 
regional, national and international levels; 
• Identify and develop new partnership with business community leaders; 
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Matter ofZW- , Inc. 
6. Supervises and controls the work of other supervisory/professional/managerial 
employees or manage an essential function within the 
organization/department/subdivision: ( 15%) 
• Ensure and enhance corporate operations by implementing inventory control 
and administrative operating systems through managers; 
• Implement policies for adequate supervision and evaluation of all staff; 
• Direct supervision of managers and oversee all disciplinary actions; 
7. Has the authority to hire, fire or recommend those as well as other personnel 
actions: (5%) 
• Oversee and 
support current program staff and develop short and long term 
staff development plan; 
• Communicate routinely with parent company president and other key 
committee leaders; 
• Ensure proper hiring, disciplinary and termination procedure as required by 
law; 
8. Exercises discretion over the day-to-day operations ... (5%) 
• Oversee the current programs of the company and working with staff, 
develop programs to achieve the objectives of the company's strategic plan; 
• Implement marketing timeline and communications strategic plan approved 
by the shareholders[.] 
The Petitioner submitted its organizational chart depicting the Beneficiary as the CEO, reporting to 
the president, According to the chart, the Beneficiary will directly supervise a "Vice 
President, Sales" and a "Vice President, Operations." The chart shows that the vice president of 
sales supervises one marketing specialist and one store manager, while the store manager supervises 
one sales staff at store # 1, two sales staff at store #2, and a contracted store maintenance employee. 
The chart further shows that the vice president of operations supervises an HR specialist and an 
outsourced accountant. In total, the chart names 10 employees (including the Beneficiary) and two 
contractors. The Petitioner also provided job, descriptions for the two vice president positions. 
On the Form 1-129, the Petitioner indicated that the Beneficiary's physical work location will be 
Texas. The Petitioner submitted a lease agreement between 
(landlord) and (tenant), dated September 19, 2013, for a 742 
square foot store at The Petitioner also submitted a renewal agreement 
for a lease agreement originally dated June 24, 2010, between (landlord) and 
(tenant), for a 1,721 square foot store at 
The Director issued a request for evidence (RFE) advising the Petitioner that the description of the 
Beneficiary's proposed duties does not appear to be consistent with the current scope and structure 
of the U.S. company. ·The Director also noted that the Petitioner did not submit documentary 
evidence of its current staffing level. The Director instructed the Petitioner to submit evidence 
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Matter ofZW-, Inc. 
demonstrating that the Beneficiary will be employed in a managerial or executive capacity in the 
United States. The Director also advised that the submitted lease agreement appears to be between 
. two entities or individuals not related to the petitioning company, and instructed the Petitioner to 
submit clarification regarding its physical premises. 
In response to the RFE, the Petitioner resubmitted its initial letter and reiterated that the Beneficiary 
"is expected to perform 60% executive duties and 40% managerial duties." 
The Petitioner stated that it had 10 employees as of the date of the RFE response and submitted an 
updated organizational chart outlining the same structure described at the time of filing, with 
different employees in some of the positions. The Petitioner submitted its IRS Forms 941, 
Employer's Quarterly Federal Tax Return, along with its Texas Employer's Quarterly Reports, for 
the first, second, and third quarters of 2015. According to the Employer's Quarterly Report for the 
third quarter of 2015, the Petitioner had six employees in July 2015 when the petition was filed, 
eight employees in August 2015, and six employees in September 2015. The wage report confirms 
that the Petitioner paid wages to the employees identified in the; initial organizational chart as vice 
president operations, HR specialist, marketing specialist, and three sales staff. 
With respect to the lease agreements, 
the Petitioner explained that is the vice president 
of which entered into sublease agreements with the Petitioner for 
the two Texas store locations at and 
The Petitioner submitted copies of both agreements, which indicate that the Petitioner 
licenses/subleases only designated portions of the stores. This evidence also suggests that 
ope_rates its own business at the same locations. 
The Petitioner also submitted its 2014 IRS Form 1120S, U.S. Income Tax Return for an S 
Corporation, which listed its business activity as "gasoline statio[ n]" and its product or service as 
"conv[ enience] store." 
The Director denied the petition on April 22, 2016, concluding that the Petitioner did not establish 
that the Beneficiary would be employed in a managerial or executive capacity in the United States. 
In denying the petition, the Director discussed the Beneficiary's subordinates' duties and found that 
they would not relieve him from performing non-qualifying duties. The Director found that the 
Petitioner did not demonstrate that the U.S. company has a level of management sufficient to sustain 
the executive position of CEO or that the Beneficiary will be primarily engaged in executive duties. 
The Director further determined that the Petitioner did not establish that the Beneficiary would be 
primarily engaged in' supervising and controlling the work of supervisory, professional, or 
managerial employees. 
On appeal, the Petitioner contends that the Beneficiary is not required to primarily supervise and 
control the work of other supervisory, professional , or managerial employees in order to be 
considered an executive and that his subordinate supervisory employees need not hold 
professional-leyel 'positions in order for him to qualify as a CEO. The Petitioner states that it now 
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Matter of ZW-. Inc. 
has five store locations and seven employees, plus contracted third parties for services such as 
accounting and maintenance. The Petitioner submits evidence related to three additional stores and 
an updated organizational chart in support of the appeal. 
B. Analysis 
Upon review of the petition and the evidence of record, including materials submitted in support of 
the appeal, we conclude that the Petitioner has not established that the Beneficiary will be employed 
in a managerial or executive capacity in the United States. 
The Petitioner claims that the Beneficiary will perform primarily executive duties. The statutory 
definition of the term "executive capacity" focuses on a person's elevated position within an 
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, 8 U.S.C. 
§ 1101 (a)( 44 )(B). Under the statute, a beneficiary must have the ability to "direct the management" 
and "establish the goals and policies" of that organization. Inherent to the definition, the 
organization must have a subordinate level of managerial 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." !d. 
When examining the executive or managerial capacity of the beneficiary, we will look first to the 
petitioner's description of tl1e job duties. See 8 C.F .R. § 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 in either an executive or a managerial capacity. !d. 
The definitions of managerial and executive capacity each have two parts. First, the Petitioner must 
show that the Beneficiary will perform certain high-level responsibilities. Champion World, Inc. v. 
INS, 940 F.2d 1533 (9th Cir. 1991) (unpublished table decision). Second, the Petitioner must prove 
that the Beneficiary will be primarily engaged in managerial ·or executive duties, as opposed to 
ordinary operational activities alongside the Petitioner's other employees. See Family Inc. v. USCIS, 
469 F.3d 1313, 1316 (9th Cir. 2006); Champion World, 940 F.2d 1533. It is the Petitioner's burden 
to establish that someone other than the Beneficiary carries out the day-to-day, non-executive 
functions of the organization. 
Here, the Petitioner characterized the Beneficiary's proposed role as primarily executive and 
provided a lengthy, but general, job description that does not clearly identify the specific executive 
duties the Beneficiary would perform in the context of the Petitioner's business operations. Rather, 
many of the executive responsibilities that would require 60% of the Beneficiary's time merely 
paraphrase the statutory definition of "executive capacity." For example, the Petitioner stated that 
Matter of ZW-, Inc. 
the Beneficiary will devote 20% of his time to directing the management of the organization, which 
includes responsibility for all daily financial, operational, administrative, and legal aspects of the 
company, directing managers in inventory purchases, and ensuring program compliance, but has not 
provided any insight as to what he will actually do on a day-to-day basis or explained who will be 
performing the financial or administrative operations that the Beneficiary will supervise. The 
Petitioner also stated that the Beneficiary will devote another 20% of his time to establishing the 
goals and policies of the organization and 15% of his time to exercising wide latitude in decision 
making, but again has not articulated the specific tasks associated with these duties, or explained 
how the Beneficiary will carry out these duties on a day-to-day basis within the context of its actual 
business. Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of 
proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 
41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
The Petitioner further claims that the Beneficiary will allocate 40% of his time to managerial duties 
and included percentages of time he will devote to those duties. Again, while some of those duties 
generally paraphrase the statutory definition of "managerial capacity," the Petitioner has not 
provided the specific tasks that the Beneficiary will perform in carrying out the listed duties within 
the context of its business operations. For example, the Petitioner stated that the Beneficiary will 
devote 15% of his time, to managing the organization and 5% of his time to exercising discretion 
over the day-to-day operations, but again has not articulated the specific tasks associated with these 
responsibilities, or explained how the Beneficiary will carry out these duties on a day-to-day basis. 
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. Sava, 724 F. Supp. at 1108; aff'd, 905 F. 2d 41 
(2d. Cir. 1990). 
The Petitioner did not submit any additional information or clarification of the Beneficiary's 
proposed duties in response to the request for evidence or in support of its appeal. Here, while the 
Beneficiary may hold authority consistent with an executive or managerial position, without a 
specific and detailed breakdown of how the Beneficiary will spend his time, the Petitioner has not 
established that he would primarily perform executive or managerial duties. 
Beyond the required description of the job duties, USCIS reviews the totality of the record when 
examining the claimed executive capacity of a Beneficiary, including the Petitioner's organizational 
structure, the duties of the Beneficiary's subordinate employees, the presence of other employees to 
relieve the Beneficiary from performing operational duties, the nature of the Petitioner's business, 
and any other factors that will contribute to understanding a Beneficiary's actual. duties and role in a 
business. 
The Petitioner claimed to have "7+" employees at the time of filing and submitted an organizational 
depicting nine employees and two contractors. However, it later provided evidence that it paid 
wages to only six employees in July 2015 when the petition was filed. The Petitioner claimed that 
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Matter ofZW-, Inc. 
the Beneficiary will directly supervise two subordinate vice presidents who will relieve him from 
performing non-qualifying duties, and did not provide position descriptions for any other employees~ 
However, the Petitioner did not submit evidence that it actually employs the vice president of sales 
and did not identify who will perform the job duties listed for that position while it is vacant. 
Therefore, there are inconsistencies in the record with respect to the Petitioner's staffing levels and 
structure at the time of filing. The Petitioner has not resolved these inconsistencies with 
independent, objective evidence pointing to where the truth lies. See Matter of Ho, 19 l&N Dec. 
582, 591-92 (BIA 1988). 
While the Petitioner documented its employment of the vice president of operations, the job duties 
provided for this position include general managerial duties that do not directly correlate to the 
Petitioner's actual business operations. For example, the Petitioner stated that the vice president of 
operations will provide overall direction of the company's operations infrastructure, establish a 
human capital acquisition plan, monitor legal affairs and internal operations with support and 
advisory support from outside legal counsel, and be responsible for all program planning, 
organizing, operating, and staffing. On appeal, the Petitioner correctly states that the Beneficiary is 
not required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees in order to be considered an executive and that his subordinate supervisory 
employees need not hold professional-level positions in order for him to qualify as a CEO. 
However, while the Petitioner is not required to demonstrate that the Beneficiary has subordinate 
employees who will assist him, it is necessary to demonstrate that someone other than the 
Beneficiary will carry out the day-to-day routine duties required to continue operations. Here, the 
Petitioner has submitted inconsistent information regarding its staffing levels and minimal 
information regarding the duties actually performed by the Beneficiary and his subordinate 
employees in carry out the day-to-day operations of the business. 
While the Beneficiary may be the Petitioner's senior employee, this alone is not sufficient to 
establish that he will be primarily employed as an executive. The designation hinges on whether or 
not the Petitioner demonstrates that it has the requisite level of subordinate staff capable of carrying 
out the duties associated with the day to day operation of the business. In this case, incorporating 
our earlier discussion of the deficiencies of the job description provided and the inconsistency in 
how the Petitioner has presented its business, we find that the Petitioner has not established that it 
has an organizational structure sufficient to support the Beneficiary in a position that is primarily 
executive in nature. 
The record does not establish, in the alternative, that the Beneficiary would be acting in a managerial 
capacity. The statutory definition of "managerial capacity" allows for both "personnel managers" 
and "function managers." See sections 101(a)(44)(A)(i) and (ii) of the Act. Personnel managers are 
required to primarily supervise and control the work of other supervisory, professional, or 
managerial employees. Contrary to the common understanding of the word "manager," the statute 
plainly states that 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)(A)(iv) of the Act; 8 C.F.R. § 214.2(l)(l)(ii)(B)(4). If a 
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Matter of ZW-, Inc. 
beneficiary directly supervises other employees, the beneficiary must also have the authority to hire 
and fire those employees, or recommend those actions, and take other personnel actions. 8 C.F .R. § 
214.2(1)(1 )(ii)(B)(J). 
In this case, the Petitioner claims that the Beneficiary will directly supervise two subordinate 
employees, a vice president of sales and a vice president of operations, to relieve him from 
performing non-qualifying duties, and did not provide position descriptions for any other employees. 
The brief job descriptions for the two subordinate vice president positions do not indicate that the 
positions are supervisory, managerial, or professional, and, as noted, the Petitioner has documented 
its employment of only one of these employees. The Petitioner has not demonstrated that the 
Beneficiary's duties will primarily focus on the management of the organization and the supervision 
of managerial, professional, or supervisory employees, nor has the Petitioner claimed that the 
Beneficiary would primarily manage an essential function of the company. As noted above, the 
Petitioner did not submit a detailed description of the Beneficiary's proposed position or those of his 
subordinates sufficient to establish that the Beneficiary's daily routine will consist of primarily 
managerial duties. The Petitioner has not submitted evidence that the Beneficiary's subordinate 
employees will relieve him from performing non-qualifying operational and administrative duties at 
the U.S. company. 
We note that a company's size 
alone, without taking into account the reasonable needs of the 
organization, may not be the determiping factor in denying a visa to a multinational manager or 
executive. See section 10l(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C). 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 supporta manager." Family Inc. v. USCIS 469 F.3d at 1316 
(citing with approval Republic ofTranskei v. INS, 923 F 2d. 175, 178 (D.C. Cir. 1991); Fedin Bros . 
. ~ Co. v. Sava, 905 F.2d at 42; Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25, 29 (D.D.C. 2003)). 
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. 2001). 
Here, the record contains some discrepancies regarding the actual size, scope and nature of the 
Petitioner's operations. The Petitioner claimed at the time of filing that it is operating two retail 
stores selling cell phones and accessories as July 2015. It submitted copies of its tax returns for 
2013 and 2014 showing that it operates a gas station and convenience store. On appeal, the 
Petitioner claims that it is now operating five cell phone and accessories stores in Texas. However, 
the evidence submitted to show that the Petitioner is now operating three "new" stores pre-dates the 
filing of the petition,1 and raises questions regarding the actual scope of the company's operations as 
1 The Petitioner submitted evidence that it filed two assumed name certificates with the County Clerk on March 
26, 2015, to do business as at Texas, and at 
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of July 2015. Regardless of whether the Petitioner was operating two or as many as five stores at the 
time of filing, it is unclear how the six employees documented in the record would relieve the 
Beneficiary from performing non-qualifying duties associated with operating multiple retail 
locations. Here, it is not the size of the company that is determinative, but rather that the unresolved 
discrepancies in the record and the lack of sufficient information pertaining to the Beneficiary's 
actual duties and those of his subordinates. 
Further, we ,note that the Petitioner has not filed a petition for a "new office" and therefore is not 
subject to the physical premises evidentiary requirement at 8 C.F.R. § 214.2(1)(3)(v)(A). However, a 
petitioner is not absolved of the requirement to maintain sufficient physical premises simply because 
it has been in existence for more than one year. In order to be considered a qualifying organization, 
a petitioner must be doing business in a regular, systematic, and continuous manner. See 8 C.F.R. §§ 
214.2(l)(l)(ii)(G) and (H). Inherent to that requirement, the Petitioner must possess sufficient 
physical premises to conduct business. 
The original lease agreement between the property owner and clearly states that he 
cannot sublease the premises or any portion thereof without the prior written consent of the lessor, 
The Petitioner has submitted copies of three sublease/license agreements in 
which company serves as the sublessor, but it has not provided evidence of the property 
owner's consent for any of these sublease/license arrangements. In addition, the terms of the 
sublease for the location indicate that the Petitioner has subleased 
square feet within the store; however, as noted above, the lease between and 
states that the size of the leased store is only 742 square feet. This lack of evidence, 
coupled with other discrepancies outlined ·above, further raises concerns as to the Petitioner's 
claimed bvsiness operations . Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici , 22 
I&N Dec. 15 8, 165 ( Comm' r 1998) (quoting Matter of Treasure Craft of Cal., 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Matter of Ho, 19 I&N Dec. at 591. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the Beneficiary will be employed in a managerial or executive capacity in the United States. 
III. QUALIFYING RELATIONSHIP 
Beyond the decision of the Director, the Petitioner has not established that the United States and 
foreign entities are qualifying organizations. To establish a "qualifying relationship" under the Act 
and the regulations, the petitioner must show that the beneficiary's foreign employer and the 
proposed U.S. employer are the same employer (i.e. one entity with "branch" offices), or related as a 
in Texas . The Petitioner also submitted a license/sublease agreement for the 
address which is dated January I, 2015. 
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Matter of ZW-, Inc. 
"parent and subsidiary" or as "affiliates ." See generally section 101(a)(15)(L) of the Act; 
8 C.F.R. § 214.2(1). 
As noted, the Petitioner indicated on the Form I-129, that it is an affiliate of the Beneficiary's 
foreign employer, Where asked to explain the company stock ownership and 
managerial control of each company, the P"etitioner stated: 
The Foreign Affiliated Company is 2/3rd (approximately 66.67% owned and 
controlled by [the Beneficiary] and 
The U.S. Company is 50% owned and controlled by [the Beneficiary] and 
The Foreign Affiliated Company and the U.S. Company are affiliated through the 
common majority control of [the Beneficiary] and 
In support of the petition, the Petitioner submitted a Stock Purchase Agreement, dated 
December 15, 2014, where the Beneficiary and each agreed to purchase 400, 000 and 
100,
000 common shares, respectively. The Petitioner also submitted copies of three undated Stock 
Certificates, as follows: 
• Stock Certificate No.2: owner of 500,000 common shares. 
• Stock Certificate No.3: [Beneficiary], owner of 400,000 common shares. 
• Stock Certificate No. 4: owner of 100,000 common shares. 
The Petitioner also submitted evidence that the Beneficiary, 
each own one-third of the foreign entity. 
and one other individual, 
At the time of filing, the Petitioner emphasized that and the Beneficiary are father and 
son and that the two ofthem together owned and controlled at least 50 percent of both the U.S. and 
foreign entities, thus establishing an affiliate relationship. The Petitioner did not submit any 
evidence that these two individuals had agreements in place to vote in concert as one in order to 
exercise control over either entity and instead seemed to rely on their familial relationship. The 
evidence submitted at the time of filing reflects that the two entities are not "owned and controlled 
by the same group of individuals, each individual owning controlling approximately the same share 
or proportion of each entity," as the two entities are not owned by the same two groups of three 
individuals, but rather have only two owners in common. See 8 
C.F.R. § 214.2(l)(l)(ii)(L)(2) . We 
note the claimed familial relationship does not constitute a qualifying relationship under the 
regulations. See Ore v
. Clinton, 675 F.Supp.2d 217, 226 (D.C. Mass. 2009) (finding that the 
petitioner and the foreign company did not qualify as "affiliates" within the precise definition set out 
in the regulations at 8 C.F .R. § 214.2(1)(1 )(ii)(L )(1 ), despite petitioner's claims that the two 
companies "are owned and controlled by the same individuals, specifically the Ore family"). 
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Matter of ZW-. Inc. 
In response to the RFE, the Petitioner stated that the Beneficiary alone has de facto control of 
66.67% of the foreign entity and 50% of the petitioning company because agreed that 
he should be his "proxy holder" for his interest in both companies. The Petitioner submitted two 
brief "proxy letters," both dated December 15, 2014, granting the Beneficiary authorization to vote 
as proxy of in all matters pertaining to each company, but did not explain why it did not 
make this claim of de facto control or submit this evidence related to proxy voting at the time of 
filing in July2015. Accordingly, the record contains contradictory and inconsistent evidence as to 
the actual control of both the U.S. and foreign entities. 
In addition, there is an unresolved inconsistency in the record with respect to the Petitioner's actual 
ownership. The Petitioner submitted its 2013 and 2014 IRS Form 1120S, U.S. Income Tax Return 
for an S Corporation. The 2013 Form 1120S includes a Schedule K-1 , Shareholder's Share of 
Income, Deductions, Credits, etc., listing as the owner of 100% of the U.S. 
company's stock for the year 2013. The 2014 Form 1120S does not include the Schedule K-1 
specifically, but does indicate at Line I that the company had only one shareholder in 2014. In 
addition, the 2014 Form 1120S includes a Shareholder's Basis Statement , which is a worksheet used 
to calculate the information contained in the Schedule K -1, indicating that owned 
100% of the U.S. company for the entire tax year. 
This evidence contradicts the Petitioner's claim that the Beneficiary and his father acquired a 
combined 50% interest in the U.S. company in 2014. The Petitioner has not resolved these 
inconsistencies with independent, objective evidence pointing to where the truth lies. See Matt er of 
Ho, 19 I&N Dec. at 591-92. 
Based on the deficiencies and inconsistencies discussed above, the Petitioner has not established that 
the United States and foreign entities are qualifying organizations. For this additional reason, the 
petition cannot be approved. 
IV. CONCLUSION 
The petition will be denied for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains with the petitioner. Section 291 of the Act, 8 U.S. C. § 1361; Matter qf 
Otiende, 26 I&N 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is denied. 
Cite as Matter ofZW- , Inc., ID# 12604 (AAO Oct. 20, 20l6) 
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