dismissed L-1A Case: Retail / Investment

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
SRC 03 084 50689 Office: TE CE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(a)(15)(L) 
ON BEHALF' OF PETITIONER: 
4 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. 
ii G 
Administrative Appeals Office 
6 
SRC 03 084 50689 
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DISCUSSIOiN: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimrnigrant petition seeking to employ the beneficiary as an L-1A nonirnrnigrant 
intracompany transferee pursuant to § 101(a)(15)(L) of the Immigration and NationaIity Act (the Act), 8 
U.S.C. § 1101(a)(15)(L). The petitioner is a corporation organized in the State of Texas that operates both a 
combination convenience and pizza store and an investment company. The petitioner claims that it is the 
subkidiary of the beneficiary's foreign employer, located in Kathmandu, Nepal. The petitioner now seeks to 
employ the beneficiary as its executive director for three years. 
The director denied the petition concluding that the petitioner had failed to demonstrate that the beneficiary 
would be employed by the United States entity in a primarily managerial or executive capacity. The director 
specifically qoted that the beneficiary would not be supervising managerial or professional employees, and 
wodld likely be engaged in the daily activities of the business due to the petitioner's limited number of 
per$onnel. 
On appeal, counsel claims that the beneficiary would be employed in the United States in both a managerial 
and an executive capacity. Counsel notes that the applicable statute restricts Citizenship and Immigration 
Services (CIS) from relying solely on a petitioner's staffing levels when determining employment in a 
maqagerial ot executive capacity. Counsel submits a brief and additional documentation in support of the 
appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section 101(a)(15)(L) of the Act, 8 
U.S.C. § 1101(a)(15)(L). Specifically, within three years preceding the beneficiary's application for 
admission into the United States, a qualifying organization must have employed the beneficiary in a 
qualifying mdnagerial or executive capacity, or in a specialized knowledge capacity, for one continuous year. 
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 regulatiqn at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
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(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 
bowledge capacity, including a detailed description of the services to be performed. 
that the alien has at least one continuous year of full-time employment abroad with a 
within the three years preceding the filing of the petition. 
(iv) E idence that the alien's prior year of employment abroad was in a position that was 
manageri 1, executive or involved specialized knowledge and that the alien's prior education, 
training, nd employment qualifies hirnlher to perform the intended services in the United States; 1 however, the work in the United States need not be the same work which the alien performed abroad. 
SRC 03 084 50689 
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The issue is whether the beneficiary would 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. 3 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee 
prirnarily- 
(i) Manages the organization, or a department, subdivision, function, or component of 
the otganization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
emplbyees, or manages an essential function within the organization, or a department or 
subdikision of the organization; 
(iii) ' Has the authority to hire and fire or recommend those as well as other personnel actions 
(such1 as promotion and leave authorization) if another employee or other employees are directly 
superpised; if no other employee is directly supervised, functions at a senior level within the 
orgaqizational 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 pJofessional. 
Section 101(9(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means 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; 
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(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 
direct' rs, or stockholders of the organization. P 
The petitione filed the nonimrnigrant petition on January 29, 2003, noting that as executive director of the 
United States ntity, the beneficiary would: I 
~onfe/r with the Nepal Company and develop long range goals and objectives of the US 
CompJany. Direct and coordinate activities of the organization and formulate and administer 
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comIjany policies: Direct and coordinate activities relating to purchasing, production, 
operations and sales for which responsibility is delegated and targeted to further attainment of 
goals and objectives. Review and analyze activities, costs, operations, and forecast data to 
deterinine progress toward stated goals and objectives. Discuss with employees to review 
achievements and discuss required changes in goals or objectives of the company. 
Included in the accompanying documentation was a business resolution by the foreign corporation appointing 
the beneficiary as executive director and outlining the following tasks of the beneficiary's proposed position: 
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Make investment decisions related to the proposed diversification. 
qake decisions relating to the establishment of a subsidiary and business presence for the 
sbbsidiary . 
30 act as the DirectorLExecutive Officer of the new business in the USA. 
10 execute all documents on behalf of [the foreign organization] in Nepal and the new 
subsidiary in the USA. 
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The director $sued a request for additional information on February 7, 2003 asking that the petitioner provide 
a statement gplaining the beneficiary's employment in the United States, including: (I) the number of 
subordinate *ployees supervised by the beneficiary; (2) a description of each subordinate's job duties and 
educational b&ckground; (3) the dates of employment for each employee; and (4) the qualifications necessary 
for each positjon. 
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Counsel resp&nded in a letter dated April 28, 2003, explaining that the beneficiary presently supervised two 
employees, a store manager and a cashier. The store manager, who counsel stated was employed since 
October 2002 is responsible for purchasing, maintaining and stocking the store's inventory, fixing prices, 
performing dsiness transactions related to funds received and disbursements, and ensuring employees' 
compliance +ith security, sales and record keeping procedures. Counsel stated that the cashier was 
responsible f4r the petitioner's cash and bank transactions. Counsel submitted the petitioner's organizational 
chm identifying the beneficiary as a direct subordinate of the president of the company. The organizational 
chah also idbntified the store manager and cashier as lower-level employees and further identified the 
preadent of the company as an additional subordinate employee of the beneficiary in the position of acting 
international bade specialist. Counsel did not indicate the educational backgrounds of the store manager or 
casyier, but stated that these positions require a high school diploma. I 
On May 9, $003, the director issued a notice of intent to deny requesting information related to the 
beneficiary's amployment abroad. The director issued an additional notice of intent to deny on June 21,2003. 
The director +ted that the record did not demonstrate that the beneficiary would be employed in the United 
states in a qublifying capacity, as he would likely participate in daily functions of the business. The director 
petitioner describe how the beneficiary meets the requirements of an executive, and explain 
would not be engaged in the petitioner's day-to-day operations. The director also asked 
the duties and educational background of any other workers employed by the 
petitioner. 
dated July 18,2003, and provided the following with respect to the beneficiary's 
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i) Dikects the management of the organization or a major component or function of the 
organization; 
The Beneficiary has been assigned the position of an Executive Director to assist with the 
establishment of the second subsidiary operation. . . . Among others, he will be responsible 
prim&rily for the management of [the petitioning organization] such as business promotion 
and 4xpansion, legal and institutional development of the company, reviewing contractual 
issues, reviewing agreements and contracts done by outside agencies, overseeing duties 
performed by the store manager and Finance ManagerICashier. He will direct and coordinate 
activjties of the organization and formulate and administer company policies. In addition he 
will also provide the main company, Global Crafts Inc, advice on the import of goods from 
Nepal and oversee International Trade and business legal issues. He will also consult with 
the management of the parent company to develop long-range goals and objectives of the 
comflany. These are essential managerial and executive functions. 
* * * 
ii) ~sbablishes the goals and policies of the organization, component or&nction; 
We submit that in the current scenario, the stage of development of the organization should 
be taken into account. [The petitioning organization] is a new organization. It is part of a 
divertification effort of Global Crafts Inc. The number of employees the corporation 
emplhys should not be an issue at this early stage of development of this corporation. It is 
imp0 ant to note that the beneficiary is responsible for establishing the overall goals and k polici(es of the organization. He is also responsible for overseeing the legal and contractual 
issued required to set up a new operation and to make it into a successful operation. We I subqt that the petitioning company is currently performing well and is therefore poised to 
se its profit further and requires the supervision of the beneficiary to make it an even 
operation. 
iii) E ercises wide latitude in discretionary decision-making; and 
iv) R a ceives only general supervision or direction from higher-level executives, the board of 
direc ors, or stockholders of the organization. 
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The eneficiary functions at a senior level within the organizational hierarchy. . . . He will 
repO1 only to the President and receive general supewision and direction from only the 
Presi ent and higher-level executives. Accordingly, he exercises wide latitude in 
discrdtionary decision making for the corporation. 
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(Emphasis in original). 
the following with regard to the beneficiary's employment in a managerial capacity: 
a managerial capacity as defined by the regulations stated above, the 
to primarily manage the organization or department. We have already 
the beneficiary will be primarily responsible for managing the work done 
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by tde petitioning company. In addition, we have also indicated that he will supervise and 
control the work of three other persons. He also has the authority to hire and fire and 
recodmend personnel actions and if the number of employees is an issue, (though it should 
not He), the beneficiary will function at a senior level within the organizational hierarchy. 
The beneficiary also exercises discretion over the day-to-day operations of the company. He 
does not perform the day-to-day operations as he has the store manager and cashierlfinance 
mandger to perform those duties. We also wish to point out that the key term to define 
managerial or executive capacity is that the person should be "primarily" performing the 
above stated duties. We have indicated above that he will primarily function in an executive 
and +anagerial capacity as defined under Title 8, Code of Federal Regulations; Section 214.2 
(l)(l)tii). 
(Emphasis in joriginal). 
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Counsel agaih outlined the job responsibilities of the beneficiary's two subordinate employees. As the job 
descriptions here previously outlined above, they will not be repeated. Counsel stated that the store manager 
holds a mastbr's degree in business management, while the cashierlfinance manager possesses a master's 
degree in ecFmics and culture. Counsel stated that in addition to supervising these two employees, the 
beneficiary ould review the work of the petitioner's president, who would be acting as the company's 
international rade specialist. Counsel noted that the company president has a bachelor's degree in business 1 administratiop. 
In a decisio dated July 29, 2003, the director determined that the petitioner failed to establish that the 
beneficiary d ould be employed by the United States entity in a primarily managerial or executive capacity. 
The director oted that the petitioning organization, which has been doing business for more than one year, 
employed tw i workers. The director concluded that the beneficiary would not be employed in a qualifying 
capacity as t$e beneficiary would not be managing professional or managerial employees. The director 
further notedl that the beneficiary would participate in the daily operations of the company "since two 
employees cabnot perform all the day to day activities of the company." Accordingly, the director denied the 
petition. 
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In an appeal filed on September 2, 2003, counsel stated that the petitioner "extensively outlined the 
beneficiary's roposed employment in an executive and managerial capacity and the petitioner's need for the 
beneficiary's ! , ervices. Counsel challenges the director's finding that the beneficiary would perform non- 
executive and non-managerial duties as a result of the petitioner's limited personnel. Counsel claims that 
- instead this rdpresents the petitioner's "need for more qualified employees," and states that the beneficiary's 
services are deeded to hire additional employees and to aid in the company's expansion. Counsel further 
states that wifpl regard to the beneficiary's employment as an executive, the beneficiary would be responsible 
for establishiqg the overall goals and policies of the organization and for overseeing the legal and contractual 
issues of sett' g up the organization. With regard to the beneficiary's employment in a managerial capacity, 
counsel provi es the following: 
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Per onning at a senior level in the organization, the beneficiary will manage the 
org nization and supervise and control the work of three other professional and educated 
em loyees. These three employees are a Store Manager who has a Masters degree in 
Business Administration, a Finance Manager who has a Masters degree in Economics and 
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Culture and an International Trade Specialist who has a Bachelor's degree in Business 
Administration. The duties performed by these individuals have been outlined in our last 
response attached as Exhibit A. 
The beneficiary will manage the "legal functions" of the organization. The beneficiary has 
a Masters of Laws degree from the University of Kent, U.K. and many years of legal 
experience. Accordingly, he will oversee all the legal and contractual issues faced by the 
fd as well as the investment and exportlimport related work performed by the main 
subsidiary operation, Global Craft Imports, Inc. and the duties performed by the 
International Trade Specialist. 
Tht? beneficiary has the authority to hire and fue the employees and exercise discretion over 
thelday-to-day operations of the organization. He not only has professional employees 
the day-to-day operations but is also going to hire more employees to expand 
the 'business. 
(Emphasis in1 original). Counsel references an unpublished AAO decision in support of his claim that a 
beneficiary day be considered an executive if his primary function is to plan, organize, direct and control the 
corporation's major functions through other employees. Counsel states that the number of workers employed 
by the petiti&er should not be an issue. Counsel also states that section 101(a)(44)(C) of the Act prohibits 
CIS from relbing solely on staffing levels when determining the employment capacity of the beneficiary. 
Counsel claiins that the petitioner's stage of development as "a new organization" should instead be 
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considered. 
Counsel alsd references a 2002 memorandum from CIS Associate Commissioner of Service Center 
Operations, irp which the Associate Commissioner notes that CIS should consider all elements of managerial 
capacity whek determining whether a beneficiary is a manager. 
On review, the petitioner has not established that the beneficiary would be employed by the United States 
entity in a managerial or executive capacity. As correctly noted by the director in her decision, the 
petitioner is dot considered to be a new office as it has been doing business in the United States for more than 
one year. Sed 8 C.F.R. 5 214.2(1)(l)(ii)(F). Therefore, despite counsel's claims on appeal that the petitioner is 
a new organization, the petitioner is required to demonstrate that it is capable of supporting the beneficiary in 
a primarily danagerial or executive capacity. See 8 C.F.R. 5 214.2(1)(3)(ii). When examining the executive 
or manageria! capacity of the beneficiary, the he0 will look fust to the petitioner's description of the job 
duties. Id. 4s required in the regulations, the petitioner must submit a detailed description of the executive or 
managerial seeices to be performed by the beneficiary. Id. 
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While the pe itioner provided a sufficient description of the beneficiary's job responsibilities as executive 
director, it d es not establish that the beneficiary's employment would satisfy the requirements of both 
managerial a d executive capacity, as claimed by counsel. If the petitioner is representing the beneficiary is 
both an exec tive and a manager, the petitioner must establish that a beneficiary meets each of the four 
criteria set f h in the statutory definition for executive and the, statutory definition for manager. Here, 
counsel states that the beneficiary would be employed as a manage; because: (1) he will be responsible for the 
managing th I work of the petitioning organization; (2) he will supervise and control three professional 
employees; (31) he will manage the petitioner's legal functions, including all legal and contractual issues; and 
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(4) he has the authority to hire and fire employees and exercises discretion over the daily operations of the 
business. Counsel's claims, however, fail to satisfy employment in a managerial capacity. 
The record does not demonstrate that the beneficiary is supervising professional or managerial employees as 
claimed by Counsel. At the time of filing the petition, the petitioner employed the president and store 
manager. Therefore, the claim that the beneficiary supervises the petitioner's international trade specialist, 
which is a poisition filled by the petitioner's president, and cashier will not be considered. 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 
Michelin Tire Colp., 17 I&N Dec. 248 (Reg. Cornrn. 1978). 
Counsel stated in his April 28, 2003 response to the director's request for evidence that the position of store 
manager requires a high school diploma, yet subsequently claims on appeal that the store manager holds a 
masters degree in business administration. Counsel does not submit copies of the store manager's diploma 
evidencing his completion of a master's program. Absent this relevant documentation, it is questionable 
whether coudsel's subsequent claim regarding the store manager's advanced degree is genuine or whether 
counsel is attkmpting to match the credentials of the petitioner's personnel to the regulatory requirements. A 
petitioner mat not make material changes to a petition in an effort to make a deficient petition conform to CIS 
requirements! See Matter of Zzummi, 22 I&N Dec. 169, 176 (Assoc. Cornrn. 1998). Nevertheless, in 
evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate's1 position requires a baccalaureate degree as a minimum entry into the filed of endeavor. Section 
lOl(a)(32) d the Act, 8 U.S.C. $ 1101(a)(32), states that "[tlhe term profession shall include but not be 
limited to arlhitects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, collejges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, Qf an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at lhast baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shih, 11 I&N Dec. 686 (D.D. 1966). 
Therefore, th6 AAO must focus on the level of education required by the position, rather than the degree held 
by subordinade employee. In a letter dated April 28, 2003, counsel for the petitioner indicated that the store 
manager position requires a high school diploma and one to four years of management experience. 
Accordingly, the petitioner has established that this is not a professional position. 
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Moreover, the record does not demonstrate that the store manager is actually performing in a managerial 
position as he is not managing any lower-level employees. As noted in the regulation at 8 C.F.R. 
$ 214.2(l)(l)(ii)(B)(4), a first-line supervisor is not considered to be acting in a managerial capacity merely 
becquse of thy supervisor's supervisory duties, unless the employees supervised are professionals. The AAO 
acknowledged counsel's claim that the petitioner anticipates hiring an additional two employees in response to 
the expansion of the United States business. However, as noted above, the beneficiary's employment capacity 
is analyzed a cording to the petitioner's staff at the time of filing the petition. Accordingly, the petitioner's 
proposed per onnel will not be considered. The petitioner must establish eligibility at the time of filing the 
nonimrnigran visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary b comes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. at 249. 
Accordingly, 1 he petitioner has failed to satisfy the crucial element that the beneficiary supervise professional, 
managerial or supervisory employees. 
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Despite counsel's claims, the petitioner has also failed to demonstrate that the beneficiary is managing the 
legal function of the business. 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 lOl(a)(44)(A)(ii) of the Act, 8 U.S.C. 
5 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must 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. In 
addition, the petitioner must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating to the 
function. Here, counsel states merely that the beneficiary would "oversee all the legal and contractual issues 
faced by the firm," and fails to provide a detailed explanation as to how the beneficiary would actually 
manage the function. Without documentary evidence to support the claim, the assertions of counsel will not 
satisfy the petitioner's burden of proof. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Additionally, counsel's reference to an unpublished AAO decision involving an employee of the Irish Dairy 
Board does n9t establish that the beneficiary manages the petitioner's legal functions. In the unpublished Irish 
Dairy Board decision, the AAO determined that the beneficiary met the requirements of serving in a 
managerial and executive capacity for L-1 classification even though he was the sole employee. Counsel has 
furnished no evidence to establish that the facts of the instant petition are analogous to those in the Irish Dairy 
Board matter. Again, going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. See Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg. Cornm. 1972). Furthermore, while 8 C.F.R. 5 103.3(c) provides that AAO precedent 
decisions are binding on all CIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. 
The record also fails to support counsel's claim that the beneficiary would be employed as an executive by the 
United States entity. Counsel stated in both his July 18, 2003 response to the director's intent to deny and his 
brief on appeal that the beneficiary "directs the management of the organization or a major component or 
function of the organization" as he is responsible for promoting and expanding the United States business, 
reviewing legal and contractual issues of the company, and overseeing the duties performed by the store 
manager and the finance manager/cashier. As noted previously, the store manager was the beneficiary's sole 
subordinate employee at the time of filing the petition, and, regardless of his title, is not considered to be 
"management." Moreover, it appears from counsel's description that the beneficiary would actually be 
performing the legal functions of the business, as he would be responsible for reviewing legal and contractual 
issues. As counsel has not documented what portion of the beneficiary's time would be spent performing 
these non-qualifying duties, the beneficiary cannot be considered to be primarily employed as an executive. 
An employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology International, 
19 I&N Dec. $93,604 (Cornm. 1988). 
Also, counsel merely paraphrases the remaining elements of executive capacity in an attempt to establish the 
beneficiary's roposed employment as an executive. Specifically, counsel states in his July 2003 response 
that the bene ,. ciary "functions at a senior level within the organizational hierarchy," "will report only to the 
President and keceive general supervision and direction from only the President and higher-level executives," 
and "exercises wide latitude in discretionary decision making for the corporation." Counsel references the 
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petitioner's organizational chart as evidence of these claims. 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. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D.N.Y.). 
Counsel correctly observes that a company's size alone, without taking into account the reasonable needs of 
the organization, may not be the determining factor in denying a visa to a multinational manager or executive. 
See section 101(a)(44)(C), 8 U.S.C. 5 1101(a)(44)(C). However, it is appropriate for CIS 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). The size of a company may be especially 
relevant when CIS notes discrepancies in the record and fails to believe that the facts asserted are true. Id. 
At the time of filing, the petitioner was a two-year-old retail and investment company that employed a 
president and a store manager. Based on the petitioner's representations, it does not appear that the reasonable 
needs of the petitioning entity, which is operating as both a convenience store and investment company, might 
plausibly be met by the services of the petitioner's president, the store manager, and the beneficiary as 
executive director. Regardless, the reasonable needs of the petitioner serve only as a factor in evaluating the 
lack of staff in the context of reviewing the claimed managerial or executive duties. The petitioner must still 
establish that the beneficiary is to be employed in the United States in a primarily managerial or executive 
capacity, pursuant to sections 101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not 
established this essential element of eligibility. 
Based on the foregoing discussion, the AAO cannot conclude that the beneficiary would be employed by the 
United States entity in a primarily managerial or executive capacity. For this reason, the appeal will be 
dismissed. 
Beyond the decision of the director, an additional issue is whether the petitioner demonstrated the existence of 
a qualifying relationship between the beneficiary's foreign employer and the petitioning organization as 
required in section 101(a)(15)(L) of the Act, 8 U.S.C. § 1101(a)(15)(L). The regulations and case law further 
confirm that the key factors for establishing a qualifying relationship between the U.S. and foreign entities are 
ownership and control. Matter of Siemens Medical Systems, Inc. 19 I&N Dec. 362 (BIA 1986); Matter of 
Hughes, 18 I&N Dec. 289 (Cornm. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 
593 (BIA 1988) (in immigrant visa proceedings). In the context of this visa petition, ownership refers to the 
direct and 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. 
Here, the petitioner stated on the nonirnmigrant petition that it is the subsidiary of the beneficiary's foreign 
employer, and submitted only two stock certificates, numbered 12 and 13, identifying the petitioner's two 
shareholders as the beneficiary's foreign employer and the beneficiary, holding 550 shares and 150 shares, 
respectively. ficcording to the petitioner's Form SS-4, Application for Employer Identification Number, the 
petitioner is ah 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 
SRC 03 084 50689 
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non-resident alien shareholders. See Internal Revenue Code, 5 1361(b)(1999). A corporation is not eligible to 
elect S corporation status if a foreign corporation owns it in any part. The record represents that a majority of 
the petitioning organization's stock is owned by the foreign entity. It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). Accordingly, the 
petitioner has not established the requisite qualifying relationship between the two organizations. For this 
additional reason, the appeal will be dismissed. 
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, 1043 (E.D. Cal. 2001), 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). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.