dismissed L-1A Case: Retail Investment

ideatifyingdatadeletedto
preventclearly·unw~
invUioDofpa:IlD'lpnvacy
u.s.Department of 110meland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 06 203 52358 Office: VERMONT SERVICE CENTER Date: SEP 0 5 2001
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
ON 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.
~---~/
Rob~emann:Chief
Administrative Appeals Office
www.uscis.gov
EAC 06 203 52358
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its director as an L-1A
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act (the Act), 8 U.S.C.§ 1101(a)(15)(L). The petitioner, a Texas corporation, states that it is engaged in
retail investment and services. The petitioner claims to be a subsidiary of Savabhai Investments Group (Pvt.)
Ltd., located in Karachi, Pakistan. The beneficiary was initially granted a one-year period of stay to open a
new office in the United States in 2001 and was subsequently granted a two-year extension of status. The
petitioner now seeks to extend the beneficiary's L-l A status for two additional years.
The director denied the petition concluding that the petitioner did not establish: (1) that the beneficiary would
be employed in the United States in a primarily managerial or executive capacity; or (2) that the U.S.
company has a qualifying relationship with the foreign entity.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director
misinterpreted the nature of the petitioner's businesses and incorrectly characterized the beneficiary's duties as
not being executive in nature. Counsel submits a brief and additional evidence in support of the appeal.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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 (1)(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
EAC 06203 52358
Page 3
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.
The first issue to be addressed is whether the petitioner established that 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. § 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;
(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 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, 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 nonimmigrant petition was filed on June 30, 2006. The petitioner indicated on Form 1-129 that the
beneficiary would serve as the director of the U.S. company, which was stated to have 15 to 17 employees. In
support of the petition, the petitioner submitted a letter dated June 27, 2006, in which it explained that the
EAC 06 203 52358
Page 4
u.s. company engages in the retail trade and investment business through several acquired corporations. The
petitioner asserted that the company manages 15 employees and over $2 million in gross receipts. The
petitioner did not submit a description of the beneficiary's duties. The petitioner submitted copies of its IRS
Forms 941, Employer's Quarterly Federal Tax Return, indicating that the petitioner employed only the
beneficiary and his spouse during 2005.
The petitioner indicated that it owns: (1) a 70 percent interest in Excellent, Inc., which operates as Kwik's Top
grocery; (2) a 50 percent interest in Riteways Enterprises, Inc., which operates as Super One Hour Cleaner;
(3) a 75% interest in Waverly Business, Inc., which does business as Waverly Power Fuel; (4) a 25% interest
in Alvin Mart, Inc., which does business as Alvin Power Fuel; and (5) a 27.5% interest in La Porte Business,
Inc., which is described as a "retail trade investment."
The petitioner attached an organizational chart for the petitioning company and its claimed subsidiaries,
which depicts the beneficiary as president/director and his spouse as director, finance. The chart indicates that
the beneficiary ultimately supervises all five of the above-referenced companies. According to the submitted
chart, Excellent Inc. has one manager, three cashier/clerks and one "canteen operator"; Waverly Business, Inc.
has one manager/clerk and one cashier/supervisor; Riteways Enterprises, Inc. has two managers, three
plant/press operators and one cashier/clerk; Alvin Mart, Inc. has one manager/clerk and one cashier/clerk, and
LaPorte Business, Inc. has two "prospective" cashiers.
The petitioner submitted its 2005 IRS Form 1120 for 2005, which indicates that the U.S. company earned
$8,400 in dividends from 20% or more owned domestic corporations and $44,820 in "consulting income," but
had no gross receipts or sales. The petitioner's tax return shows that the company paid $39,000 in salaries and
wages. The petitioner's claimed subsidiaries are identified not as subsidiaries but as "Other Investments" at
Schedule L, line 9 of the tax return, which indicates that the petitioner has invested in Alvin Mart Inc.,
Waverly Business Inc., Riteways Enterprises, Inc. and Excellent Inc., for a total investment of$116,330. The
petitioner indicated at Schedule K that it does not own 50 percent or more of the voting stock of a domestic
corporation.
The petitioner also submitted evidence related to the ownership and business activities of each of its claimed
subsidiary companies. With respect to Excellent, Inc., the petitioner submitted copies of the company's stock
certificate #6, issuing 510 shares to the petitioning company on August 1, 2001; a c~py of stock certificate #8
issuing 190 shares to the petitioning company on April 22, 2004; a copy of its stock certificate #9 issuing 300
shares of stock to on April 22, 2004; and a copy of the company's stock transfer ledger showing
all stock certificates issued since the company was formed in 1993. The petitioner also submitted a corporate
resolution dated April 22, 2004, indicating that_ is president of the corporation and 30 percent
stockholder while the petitioning company owns 70 percent of the stock. The 2005 IRS Form 1120 for
Excellent, Inc. also shows this ownership structure.
With respect to Riteways Enterprises, Inc., the petitioner submitted a copy of its stock certificate #5, issuing
5,000 shares to the petitioning company on June 27, 2005; a stock certificate #4 issuing 5,000 shares to
EAC 06203 52358
Page 5
on October 1, 1998
1
; stock certificate #2 issuing 5 000 shares to on
October 1, 1998; and the reverse side of a stock certificate indicating that transferred his
5,000 shares to the petitioning company on June 27, 2005. The stock transfer ledger indicates that stock
certificates #2 and #4 were issued on October 15, 1998, and stock certificate #3, issuing 5,000 shares, appears
to have been issued, but the information is covered with correction fluid an~ as "void." The
petitioner submitted a copy ofa check for $15,000, issued by the U.S. company t_on June 27,2005,
"for buying 50% of stock shares of Riteways Enterprises, Inc." The record contains several bank statements
for the petitioning company for 2005 and 2006, but does not include the company's June or July 2005
statements which could confirm that this check was indeed cashed. However, the AAO notes that as of May
31,2005, the U.S. company had a checking account balance of $688.78, and none of the submitted statements
reflect a balance above $5,000. Furthermore, the petitioner submitted the 2005 IRS Form 1120S, U.S.
Income Tax Return for an S Corporation, for Riteways Enterprises, Inc., includi~-1.
Shareholder's Share of Income, Deductions, Credits, Etc. The Schedules K-1 indicate that_and
each own 50% of the company as of December 31, 2005.
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 ofHo, 19 I&N Dec. 582, 591­
92 (BIA 1988). Due to the discrepancies noted, the petitioner has not adequately substantiated its claim that it
owns a 50 percent interest in Riteways Enterprises, Inc.
With respect to Waverly Business, Inc., the petitioner submitted a "Unanimous Written Consent of Directors
in Lieu of the First Meeting," dated June 1, 2004, in which is identified as Chairman of the
Board and President of the company, and the owner of 250 shares of common stock, the petitioning company
is identified as the owner of the remaining 750 shares of stock, and the beneficiary is identified as the
company secretary. The company's stock certificates, stock transfer ledger, and 2005 Form 1120 confirm the
ownership of the company's stock in these proportions.'
The petitioner also submitted evidence of the ownershi and business activities of its two claimed minority-
owned subsidiaries, . (25%) and (27.5%).
1 The AAO notes that although stock certificates #2 and #4 are dated October 1, 1998, the stock certificates
were clearly produced at a later date, as the form on which they are printed is copyrighted 2003 and the pre­
printed date to be completed is "20_." Based on the submitted corporate tax return for Riteways Enterprises,
Inc., the company was actually incorporated on July 28, 1995. 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 ofHo, 19 I&N Dec. 582, 591 (BIA 1988).
2 The AAO has reviewed publicly available corporate records held by the Texas Secretary of State for
Excellent, Inc., Waverly Business, Inc., and Riteways Enterprises, Inc. None of these company's records
indicate that either the beneficia or the petitioning company is an officer of~. The sole officer of
Waverly Business, Inc. is , the sole officer of Excellent, Inc. is_, and the sole officer
of Riteways Enterprises, Inc. i
EAC 06 203 52358
Page 6
The director issued a request for additional evidence on July 12, 2006. The director advised the petitioner that
although the U.S. company appears to be a partial owner in other U.S. companies, it was not evident that the
beneficiary was performing in a managerial or executive position within the petitioner's investment office,
which appears to employ only two people. The director requested a position description for each employee
within the petitioning company, and requested evidence of the decisions made by the beneficiary as the
director of the company within the last year.
In a response dated October 2, 2006, counsel re-submitted an organizational chart for the petitioner and its
claimed subsidiaries and asserted that the beneficiary "oversees the global affairs of the company, and acts in
a presidential capacity with regard to marketing, advertising, human resources, legal matters, financial
matters, investing, etc." Counsel emphasized that the organizational chart shows two separate levels of
employees subordinate to the beneficiary, including "section managers" within each company , and lower­
level employees, and stated that the beneficiary "exercises control over both levels of employees."
Counsel stated that the beneficiary, "as owner of [the petitioner]," which in turn "owns and controls four
successful entities," performs both executive and managerial duties. Counsel stated that the beneficiary
personally negotiated and executed fuel controls with Oil Products Distribution Inc. and Valero Energy &
Marketing, undertaking "substantial business risk." Counsel further stated that the beneficiary "personally
authorized electronics funds transfers on behalf of Excellent, Inc., Waverly Business, Inc. and Alvin Mart,
Inc." and negotiated, executed and personally guaranteed a merchant processing agreement. Counsel also
noted that the beneficiary "personally handles accounting and tax-related issues for LaPorte Business, Inc.,
Waverly Business, Inc. and Excellent, Inc."
Counsel concluded:
All of the preceding evidence provides that [the beneficiary] acted as a director in an
executive capacity in all of [the petitioner's] entities. He negotiates price, quantity , and
quality of the items his businesses sell, he personally puts himself at financial risk in order to
move the business forward, he controls the money of the business, he oversees the tax and
accounting matters for all of the businesses, and he decides when and where to do business. It
is almost impossible to be more directorial than [the beneficiary] is in [the petitioning
company].
The petitioner submitted state quarterly wage reports for the second quarter of 2006 for the petitioning
company and each of its claimed subsidiaries. The petitioner reported two employees as of June 2006 ,
Excellent Inc. had no more than four employees during the quarter and paid only $2,000 to its "manager" over
the three-month period, and Waverly Business , Inc. reported only one employee, who is not identified on the
organizational chart.
As evidence of the beneficiary's claimed managerial and executive decisions, the petitioner submitted a letter
dated August 21, 2006 from the president of Oil Product Distribution, Inc. (OPD) , who stated that OPD had
been doing business with the petitioning company and supplying fuel to three of its locations operating as
Alvin Mart, Inc., Waverly Business, Inc. and Excellent Inc. The president of OPD stated that the beneficiary
EAC 06 203 52358
Page 7
executed a contract on behalf of Alvin Mart to convert it to the Valero brand image. The petitioner attached a
copy of a Valero Dealer Franchise Agreement signed by OPD and by Barkat Momin as President of Alvin
Mart, Inc. The beneficiary was one of two guarantors to the agreement, but did not actually execute the
agreement as claimed.
The director denied the petition on October 17, 2006, concluding that the petitioner had failed to establish that
the beneficiary would be employed in a primarily managerial or executive capacity under the extended
petition. The director noted that the petitioner claims to employ 15 to 17 individuals but in fact only has two
employees. The director further found that even accounting for the employees of the entities that are partially
owned by the petitioning company, the record did not establish that the beneficiary would supervise
professional, supervisory or managerial employees. The director noted that it appears that the beneficiary
"would be performing direct duties of the daily operation of his investment company by directly performing
searches for new investments and performing the actual negotiations for the investments, as well as the
operation of his office."
The director acknowledged that the petitioner's alleged subsidiary companies are claimed to employ
managers, but noted that the small size of these companies suggested that the managers would be primarily
involved in the day-to-day operations of the businesses. The director noted that the petitioner only owns a
25% interest in Alvin Mart, Inc., and thus it was not evident that the beneficiary would supervise this
company's employees, as claimed by the petitioner. Finally, the director noted that the beneficiary's offered
salary of $24,000 is not commensurate with a managerial or executive position, and found the evidence
inconsistent with the petitioner's claims that the company can support such a position.
On appeal, counsel for the petitioner asserts that the beneficiary is acting in both an executive and managerial
capacity, and asserts that he "is in an executive position with regard to at least three of the entities [the
petitioner] owns and controls." Counsel asserts that the beneficiary clearly fits the definition of an executive
based on the following:
First, as President of [the petitioner], [the beneficiary] directs the management of three out of
the five entities [the petitioner] owns. As President of the majority stockholder [the
beneficiary] is the final authority on the direction of each of those stores. He is the one who
decides which products the stores sell, the name of the stores, the kinds and numbers of the
employees that work at each store, etc. Furthermore, [the beneficiary] establishes the goals
and policies of the businesses. If he does not wish to sell a product, for example, his stores
will not sell the product. He also sets the profit goals and the extent to which the stores need
to minimize expenses. [The beneficiary] has complete latitude in this decision making as he is
the owner and President of [the foreign entity] which owns 100% of [the petitioning
company]. The fourth element [of the statutory definition of "executive capacity"] is also
satisfied, as [the beneficiary] answers to no one with regard to the management of his
business.
Counsel asserts that even if the petitioner concedes that there are not 15 to 17 employees working for the
petitioner's entities, the definition of the term "executive" does not preclude an executive of a small business
EAC 06 203 52358
Page 8
from qualifying for the requested visa classification. Counsel emphasizes that "the beneficiary is the chief
executive in the operations of Excellent, Inc., Waverly Business, Inc., and Riteways Enterprises, Inc."
Counsel's assertions are not persuasive. Upon review, the petitioner has not established that the beneficiary
would be employed in a primarily managerial or executive capacity under the extended petition.
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the
petitioner's description of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. [d.
Here, the petitioner submitted no description of the beneficiary's proposed duties in support of the initial
petition, and was thus requested by the director to provide detailed position descriptions for each employee of
the petitioning company. The petitioner's response to the director's request for evidence provided little
insight into the nature of the beneficiary's duties. For example, counsel for the petitioner stated that the
beneficiary "oversees the global affairs of the company," and "acts in a presidential capacity with regard to
marketing, advertising, human resources, legal matters, financial matters, investing, etc." These general,
conclusory statements fall significantly short of meeting the petitioner's burden of establishing that the
beneficiary would be performing primarily managerial or executive duties under the extended petition, and
could not be considered clear or detailed by any standard. Reciting the beneficiary's vague job responsibilities
or broadly-cast business objectives is not sufficient; the regulations require a detailed description of the
beneficiary's daily job duties. The petitioner failed to provide any detail or explanation of the beneficiary's
activities in the course of his daily routine. The actual duties themselves will reveal the true nature of the
employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d.
Cir. 1990).
Counsel further stated that the beneficiary "negotiates price, quantity, and quality of the items his businesses
sell," "controls the money of the business," and "oversees the tax and accounting matters for all of the
businesses." These statements, without additional clarification regarding the duties performed by the
beneficiary's claimed subordinates, suggest that the beneficiary is involved in performing non-managerial
duties associating with purchasing and routine financial matters. Counsel's statement that that it would be
"impossible to be more directorial than [the beneficiary] is in [the petitioning company]," can not be accepted
in lieu of the required detailed description of the beneficiary's day-to-day duties. Without documentary
evidence to support the claim, the assertions of counsel 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 ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503,
506 (BIA 1980).
Furthermore, the petitioner neglected to respond to the director's specific inquiry regarding the specific
managerial or executive duties the beneficiary performs for the petitioning company, and instead focused on
the beneficiary's responsibility for overseeing several partially owned businesses. The petitioning company
itself appears to employ only two employees and conducted very limited business operations in its own right,
thus the director's request for additional explanation regarding the duties performed by the beneficiary and his
EAC 06 203 52358
Page 9
spouse for the petitioning company was reasonable. Although the petitioner describes itself as an investment
company, its 2005 tax return shows that the company's primary source of income came from consulting fees.
Since the company does not claim to employ anyone to provide such services, and has not described the types
of services it provides, the petitioner's silence on this issue raises further questions regarding the beneficiary's
actual duties. 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. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). Overall, the petitioner
did not show a good faith effort to respond to the director's request for the required detailed job description.
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).
Accordingly, the record before the director contained no concrete description of what the beneficiary does on
a day-to-day basis as the director of the petitioning company. The definitions of executive and managerial
capacity have two specific requirements. First, the petitioner must show that the beneficiary performs the
high-level responsibilities that are specified in the definitions. Second, the petitioner must prove that the
beneficiary primarily performs these specified responsibilities and does not spend a majority of his or her
time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th
Cir. July 30, 1991). Here, while the AAO does not doubt that the beneficiary exercises decision-making
authority and overall oversight over the petitioning company as its director, the petitioner has not met its
burden to show that the beneficiary primarily performs managerial or executive duties. The AAO cannot
accept a managerial or executive job title and broad, conclusory assertions regarding the beneficiary's
responsibilities in lieu of the required detailed description of the beneficiary's duties. The petitioner has not
described the beneficiary's actual duties, such that they could be classified as managerial or executive in
nature.
The AAO will next consider whether the beneficiary's employment with the petitioner's claimed subsidiaries
can be considered in determining whether the beneficiary qualifies as a nonimmigrant intracompany
transferee under section 101(a)(l5)(L) of the Act. The statutory definitions of executive and managerial
capacity refer to an assignment within an organization in which the employee either manages the organization
or directs the management of the organization. Section 101(a)(28) of the Act defines "organization" as
follows: "The term 'organization' means, but is not limited to, an organization, corporation, company,
partnership, association, trust, foundation or fund; and includes a group of persons, whether or not
incorporated, permanently or temporarily associated together with joint action on any subject or subjects."
The statutory definition of an organization would not ordinarily include a partially owned corporation that is
an entity separate and distinct from the petitioning organization. However, the petitioner may provide
evidence to establish that the petitioner and the petitioner's partially owned entity are either permanently or
temporarily associated through controlling ownership, contract, or other legal means. Accordingly, a
beneficiary's claimed managerial or executive duties that relate to the partially owned entity may be
considered in certain instances for purposes of a nonimmigrant visa petition.
Although the petitioner claims that the beneficiary oversees and supervises the employees of a total of five
other companies, the evidence submitted establishes that the petitioner owns a majority interest in only two of
these companies, Excellent, Inc. and Waverly Business, Inc. As discussed above, the petitioner has submitted
EAC 06 203 52358
Page 10
inconsistent evidence regarding the ownership of Riteways Enterprises, Inc. which precludes the AAO from
finding that the petitioner in fact owns the claimed 50 percent interest in this company. Although the
petitioner appears to have purchased a majority interest in both Excellent, Inc. and Waverly Business, Inc., it
does not automatically follow that the beneficiary became the chief executive of both of these entities by
virtue of holding the position of director of the U.S. holding company. As noted above, there is no evidence
that the beneficiary has been appointed as an officer or director of either of these companies, and the
petitioner has declined to provide a comprehensive description of the beneficiary's duties or explain how he
divides his time among the six different companies he is claimed to manage.
The AAO will nevertheless consider the petitioner's claim that the beneficiary will supervise two tiers of
employees who relieve him from performing the day-to-day operations of the retail businesses operated by
Excellent, Inc. and Waverly Business, Inc. The statutory definition of "managerial capacity" allows for both
"personnel managers" and "function managers." See section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. §
1101(a)(44)(A)(i) and (ii). Personnel managers are required to primarily supervise and control the work of
other supervisory, professional, or managerial employees. If a 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(l)(l)(ii)(B)(3).
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services
(CIS) reviews the totality of the record, including descriptions of a beneficiary's duties and those of his or her
subordinate employees, the nature of the petitioner's business, the employment and remuneration of
employees, and any other facts contributing to a complete understanding of a beneficiary's actual role in a
business. The evidence must substantiate that the duties of the beneficiary and his or her subordinates
correspond to their placement in an organization's structural hierarchy; artificial tiers of subordinate
employees and inflated job titles are not probative and will not establish that an organization is sufficiently
complex to support an executive or manager position. 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)(2).
In the present matter, the totality of the record does not support a conclusion that the beneficiary's
subordinates are supervisors, managers, or professionals. At the time the petition was filed on June 30, 2006,
Waverly Business, Inc. reported that that it employed only one worker. The employee identified as the
"manager" of the company did not receive any wages in the second quarter of 2006. The submitted quarterly
wage reports for Excellent, Inc. show that the company had only three to four employees during the same
quarter, and paid wages of only $2,000 to its claimed "manager." While each company purportedly has a
"manager," the record indicates that the employees perform the actual day-to-day tasks of operating the gas
station/convenience stores operated by these two companies. The petitioner has not provided evidence of an
organizational structure sufficient to elevate the beneficiary to a supervisory position that is higher than a
first-line supervisor of non-professional employees. Pursuant to section 101(a)(44)(A)(iv) of the Act, the
beneficiary's position does not qualify as primarily managerial under the statutory definitions.
EAC 06 203 52358
Page 11
On appeal, counsel for the petitioner asserts that the beneficiary qualifies as an executive because he "directs
the management of three out of the five entities" the petitioner owns, "is the final authority on the direction of
each of those stores," "establishes the goals and policies of the businesses," and "answers to no one with
regard to the management of his business." Again, the AAO must emphasize that 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. Sava, 724 F.
Supp. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.).
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 direction of 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." Id.
Here, while the petitioner has submitted an impressive organizational chart with the beneficiary situated at the
top, the evidence submitted does not corroborate the beneficiary's claimed level of authority over three of the
five subsidiary operations, does not establish the existence of a subordinate level of managerial employees
who work under the beneficiary's direction, and does 'not contain any comprehensive description of the
beneficiary's actual duties, or the duties of any of his subordinates. Simply going on record without supporting
documentary evidence is not sufficient for the purpose of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. at 165. The petitioner has not submitted persuasive evidence to corroborate its
claim that the beneficiary will be employed in an executive capacity.
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 § 101(a)(44)(C) of the Act, 8 U.S.C. § 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 five-year old investment company with two employees and total
income of $53,220, the majority of which was derived not from its investments, but from unexplained
"consulting fees." The duties of the petitioner's two employees have not been described in any detail. The
petitioner claims to control the operations of five separate companies, but can only establish a majority
interest in two of these companies, Excellent, Inc. and Waverly Business, Inc., both of which operate gas
EAC 06 203 52358
Page 12
stations/convenience stores, and one of which appears to also offer food services . Based on the evidence
presented, one store employs only one person, and the other employs three people. It is unclear how these
businesses are able to operate with the staffing structure indicated. Regardless, it is implausible that either the
petitioner or its claimed subsidiaries have a reasonable need for the beneficiary's services in a primarily
managerial or executive capacity . Furthermore, 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) of the Act. As discussed above,
the petitioner has not established this essential element of eligibility.
Based on the foregoing discussion, it is not possible to determine from the limited record that the beneficiary
will be employed in a primarily managerial or executive capacity under the extended petition . Accordingly,
the appeal will be dismissed.
The second issue in this matter is whether the petitioner has established that there is a qualifying relationship
between the U.S. company and the beneficiary's overseas employer. 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 "parent
and subsidiary" or as "affiliates." See generally section 101(a)(l5)(L) of the Act; 8 C.F.R. § 214 .2(1).
The pertinent regulations at 8 C.F .R. § 214.2(1)( 1)(ii) define the term "qualifying organization" and related
terms as follows:
(G) Qualifying organization means a United States or foreign firm, corporation, or other
legal entity which:
(1) Meets exactly one of the qualifying relationships specified in the
definitions of a parent, branch, affiliate or subsidiary specified in
paragraph (1)(1)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not
required) as an employer in the United States and in at least one other
country directly or through a parent, branch, affiliate or subsidiary for the
duration of the alien's stay in the United States as an intracompany
transferee[ .]
* * *
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries.
(J) Branch means an operating division or office of the same organization housed in a
different location.
EAC 06 203 52358
Page 13
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity; or owns,
directly or indirectly, half of the entity and controls the entity; or owns, directly or
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact
controls the entity.
(L) Affiliate means
(1) One of two subsidiaries both of which are owned and controlled by the
same parent or individual, or
(2) One of two legal entities owned and controlled by the same group of
individuals, each individual owning and controlling approximately the
same share or proportion of each entity.
The petitioner indicated on Form 1-129 that it is a wholly owned subsidiary of Savabhai Investment Group
(Pvt.) Ltd., located in Karachi, Pakistan. The petitioner stated that the foreign entity is owned in equal
proportions by the beneficiary, his spouse, and In the petitioner's letter dated June 27,
2006, the foreign entity was described as a registered corporation that owns and operates three business: AI­
Madad Dairy Farms, Dental Clinic and Cosy Water Park.
The petitioner submitted a copy of the U.S. company's Articles of Incorporation dated September 5, 2000,
which indicates that "Savabhai Investment Group" owns 100 percent of the company's stock. The petitioner
also provided a corporate resolution dated April 2, 2004, which states that Savabhai Investment Group is
transferring "all his shares [sic]" to Savabhai Investment Group (Pvt.) Ltd. The petitioner submitted a copy of
its stock certificate number one issuing 1,000 shares to Savabhai Investment Group on September 5, 2000,
and its stock certificate number two issuing 1,000 shares to Savabhai Investment Group (Pvt.) Ltd. on April 2,
2004. Stock certificate number 2 indicates shows that the shares were transferred from "Savabhai Investment
Group." The petitioner's 2005 IRS Form 1120, U.S. Corporation Income Tax Return, at Schedule K, identifies
Savabhai Investment Group as the owner of 100 percent of the company's shares.
The petitioner's initial filing included two versions of the company's stock ledger. One stock ledger is
typewritten and indicates that only stock certificate number one has been issued. The other stock ledger is
handwritten and shows the transfer of shares from Savabhai Investment Group to Savabhai Investment Group
(Pvt.) Ltd. and issuance of stock certificate #2.
With respect to the foreign entity, the petitioner submitted an acknowledgement of filing with the Pakistan
Securities and Exchange commission and certificate of incorporation for Savabhai Investment Group (Pvt.)
Ltd., both dated March 19, 2004. The petitioner also submitted the foreign entity's memorandum of
association, which includes the following articles addressing the company's intended activities:
EAC 06 203 52358
Page 14
(5) To acquire, take over and carry on as a going concern the business now carried on in
Pakistan under the name of AI-Madad Dairy Farm and all or any of the assets and
liabilities relating to such business or used in connection therewith or belonging thereto.
(6) To acquire and take over as a going concern the business now carried on in Pakistan by
the Dental Clinic situated at 13, Karachi Auditorium, Nishter Road, Garden West,
Karachi and all or any of the assets and liabilities relating to such business or used in
connection therewith or belonging thereto.
(7) To acquire and take over as a going concern the business now carried on in Pakistan by
the partnership firm of Cosy Water Park and all or any of the assets and liabilities relating
to such business or used in connection therewith or belonging thereto.
The memorandum of association indicates that the beneficiary, , and
each own one share of stock in the foreign corporation. The petitioner also submitted stock certificates for the
foreign entity confirming this ownership structure.
In addition, the petitioner submitted: (1) a 2004 Pakistani individual income tax return for the beneficiary, Dr.
, which bears the address of the dental clinic referenced above and a ears to reflect
income from that business; (2) a 2004 Pakistani individual income tax return fo the
beneficiary's spouse, reflecting b.', e from Cosy Water Park and from another business in which
she is a partner; (3) a letter from dated June 27, 2005, indicating that Mis Savabhai Investment
Group Pvt. Ltd. has a savings account WIt a balance of Rs. 214,925.26; (4) a letter dated May 25, 2006,
indicating that is partner number nine of Cosy Water Park; (5) a 2005 Pakistani tax return
filed by Mis Cosy Water Park; (6) a letter dated May 25, 2006, indicating that the beneficiary is a partner of
Cosy Water Park; (7) a partnership deed and registration for Cosy Water Park, dated July 1995, indicating
that the beneficiary and his spouse are among the 20 partners of the company; (8) a summary of the capital
account of Cosy Water Park, dated June 30, 2005, indicating that the beneficiary owns a 7.5°;6 share in the
company and his spouse owns a 5% share; (9) a memorandum of mutual understanding, dated March 31,
2001, which identifies the beneficiary as the owner of an 11.11% share and allotted shed number 8 of the Al
Madad Dairy Farm, and identifies the beneficiary's spouse as the owner of an 11.11% share and allotted shed
number 7 of the farm; (10) a letter from AI-Madad Dairy Farm, dated May 15, 2006, indicating that the
beneficiary owns a farm and actively engaged in the dairy farming business at shed number 8 from 1991 until
2000; and (11) evidence related to the ongoing business operations 0
-On July 12, 2006, the director issued a request for additional evidence, which addressed the issue of the
petitioner's claimed qualifying relationship with the foreign entity as follows:
It is not evident that the company, Savabhai Investment Group, Pvt. Ltd., continues to operate
as a business overseas. You have provided evidence of the continuing operation of the
companies Cosy Water Park, Al-Madad Dairy Farm, and a Dental Clinic .... However, you
have not provided any evidence of the actual business operation of an investing company
known as Savabhai Investment Group (Pvt.) Ltd. overseas. Since none of the companies that
you have provided evidence for, Cosy Water Park, Al-Madad Dairy Farm, or the Dental
EAC 06 203 52358
Page 15
Clinic, own any of the United States office the evidence of their existence overseas is not
relevant to this petition. Rather, it must be established that the company that does have 100%
ownership of the United States office does continue to operate a valid business overseas.
Please provide additional evidence of the overseas operations, Savabhai Investment Group
(Pvt.) Ltd., business activities such as payroll, tax returns, and checking account statement.
The director also requested evidence that the foreign entity is engaged in the provision of goods and services.
In a response dated October 2, 2006, counsel for the petitioner asserted that the foreign entity is a holding
company "that controls and unites the three substantive entities at issue here (the dentist office, the dairy farm,
and Cosy Water Park)." Counsel stated that the foreign entity "merely acts as a nominal corporation, or a
holding company, that conveniently allows everybody involved in the entities' affairs to link the three together
conceptually. "
Counsel further stated that the foreign entity "operates like a trust," and "is purely a legal entity of
convenience, not of action." Counsel indicated that the tax returns and payroll functions are "passed down" to
the component companies, but that without the foreign holding company, "the three companies would not
have any legal title." Counsel emphasized that Savabhai Investment Group (Pvt) Ltd. is "the one and only
entity that has the final control in how the entities operate." Counsel asserted that all four entities in Pakistan
are owned by the beneficiary, his spouse, and his sister, and that "all executive and legal control is in the
hands of [the beneficiary]."
In addition, counsel explained that regardless of how the foreign entities are structured, "Savabhai Investment
Group (Pvt.) Ltd. is the owner of all the entities involved in this case." Counsel concluded that the foreign
entity, by virtue of its operation of the U.S. and other Pakistani entities, "is currently running and
operational. "
In support of these assertions, counsel emphasized that the foreign entity's memorandum of association
authorized the company "to take over" Al-Madad Dairy Farm, the dental clinic and Cosy Water Park. The
petitioner submitted an updated bank letter for the foreign entity, and additional evidence to establish that the
farm, dental office and water park continue to do business in Pakistan.
The director denied the petition on October 17, 2006, concluding that the petitioner failed to establish that
there is a qualifying relationship between the U.S. and foreign entities. The director determined that the
foreign entity, Savabhai Investment Group (Pvt.) Ltd. is not doing business and therefore is not a qualifying
organization. The director acknowledged counsel's assertions that the foreign entity is doing business through
the "investment companies," Cosy Water Park, Al-Madad Dairy Farm, and a dental clinic, but found no
evidence that Savabhai Investment Group (Pvt.) Ltd. in fact owns a majority interest in these businesses. The
director noted that Cosy Water Park is not owned by the claimed foreign parent company, but by 20
individuals, including the beneficiary and his spouse, who each own a small percentage of the business.
Similarly, the director noted that the foreign entity does not own any interest in Al-Madad Dairy Farm, but
rather the beneficiary and his spouse each own 11.11% of the farm. The director also noted that the petitioner
had not established that the same group of individuals own Savabhai Investment Group (Pvt.) Ltd., and the
EAC 06 203 52358
Page 16
water park or the farm, and therefore, the petitioner had not established that a parent-subsidiary or affiliate
relationship existed between the entities.
With respect to the dental clinic, the director noted that the business appears to be owned by the beneficiary,
not by Savabhai Investment Group. The director concluded that none of the overseas businesses are owned or
controlled by Savabhai Investment Group (Pvt) Ltd., and noted that there is no evidence that the petitioner's
claimed parent company currently has any staff or functions as a business. Accordingly, the director found
that the overseas entity is not a qualifying organization for the purpose of this visa classification.
On appeal, counsel for the petitioner concedes that the foreign entity owns only a minority interest in Cosy
Water Park, but asserts that Savabhai Investment Group (Pvt.) Ltd. owns 100 percent of Al-Madad Dairy
Farm and "Dr. Sadruddin Dental Clinic." Counsel suggests that the director misinterpreted the evidence
submitted with respect to the ownership of the Al-Madad Dairy Farm, based on "cultural differences"
between the United States and Pakistan. Counsel asserts that the entity is a cooperative farming unit divided
into nine units or sheds, with each shed owned in full by the individuals listed in the partnership agreement.
Counsel states that at the time 'of the agreement, the beneficiary and his spouse owned 100 percent of their
respective sheds . Counsel asserts that the beneficiary and his spouse later created Savabhai Investment Group
(Pvt.) Ltd. "as a way of grouping the distinct businesses into one easily managed entity." Counsel claims that
the ownership of the sheds was transferred to the corporate entity pursuant to its memorandum of association.
Counsel asserts that there is an affiliate relationship between the two dairy farm sheds and the petitioning
company.
With respect to the dental clinic, counsel states that the business is not incorporated, but asserts that there is
sufficient evidence in the record to establish that the beneficiary owns the business and it is operational.
Counsel asserts that the beneficiary transferred the right of ownership and control of the clinic to Savabhai
Investment Group (Pvt.) Ltd. at the time it was incorporated. Counsel alleges that Savabhai Investment
Group (Pvt) Ltd. owns 100% of the dental clinic, thus it is also an affiliate of the petitioning company.
Upon review , the petitioner has not established that the petitioner maintains a qualifying relationship with its
claimed parent company, as the petitioner has not established that the foreign entity is a qualifying
organization doing business overseas.
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 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes , 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
ofChurch Scientology International , 19 I&N Dec. at 595 .
In this case , as the claimed parent company is a holding company with no income, employees or any
documented business activities in its own right, the petitioner must establish that the foreign entity does in
EAC 06 203 52358
Page 17
fact do business abroad through one or more of its claimed investment businesses, Cosy Water Park, Al­
Madad Dairy Farm, or the beneficiary's dental clinic.
The evidence in the record shows that Cosy Water Park is organized as a partnership with 20 individual
partners, none of whom own more than a 7.50/0 interest in the company. Although the beneficiary owns a
7.5% interest in the company and his spouse owns a 5% interest in the company, there is no evidence that any
of the other owners of this business transferred their interest to Savabhai Investment Group (Pvt.) Ltd. The
fact that the foreign entity's memorandum of association references an intent to "take over" the water park is
irrelevant absent evidence that such a change in ownership actually occurred. Counsel's statement in response
to the request for evidence that Savabhai Investment Group (Pvt) Ltd. is "the one and only entity that has the
final control" in how the water park operates is completely unsupported by the evidence in the record.
Without documentary evidence to support the claim, the assertions of counsel 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 ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez,
17 I&N Dec. 503, 506 (BIA 1980). Rather, the summary of Cosy Water Park's capital account as of June 30,
2005 shows that the company continues to be owned by 20 individual partners. It is unclear how the petitioner
intends to demonstrate control of the park by Savabhai Investment Group (Pvt.) Ltd. without providing any
evidence of ownership by the foreign entity. In addition, the petitioner has not established an affiliate
relationship between Savabhai Investment Group (Pvt.) Ltd. and Cosy Water Park, as one entity is owned by
three individuals, and the other is owned by 20 individuals, with neither entity having a majority owner.
On appeal, counsel abandons his previous argument that the foreign entity owns and controls Cosy Water
Park, and concedes that it only owns a minority interest. Counsel offers no further explanation for the
previous statements that the foreign entity in fact operates and controls the water park. 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 ofHo, 19 I&N Dec: 582, 591-92 (BIA 1988). Doubt cast on
any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of
the remaining evidence offered in support of the visa petition. Id. at 591. The AAO notes that counsel's
statement that Savabhai Investment Group (Pvt.) Ltd. only owns a minority interest in Cosy Water Park is
also inaccurate. A corporation is a separate and distinct legal entity from its owners or stockholders. See
Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N
Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980). The evidence
shows that the beneficiary and his spouse, individually, are minority owners of Cosy Water Park. As noted
above, the foreign entity does not have an ownership interest in the park, and it is not an affiliate of Cosy
Water Park.
The AAO will next consider the claim that the foreign entity does business through Al-Madad Dairy Farm.
The record appears to show that the beneficiary and his spouse each own a shed and a portion of the land, but
there is no evidence to establish that ownership and control of the individually owned farms was transferred
to Savabhai Investment Group (Pvt.) Ltd. Again, the fact that the foreign entity noted its intent to "take over"
the entire dairy farm in its memorandum of association does not establish that such a change in ownership in
fact occurred. Rather, the evidence submitted indicates that two of the farm sheds continue to be owned
EAC 06 203 52358
Page 18
separately and individually by the beneficiary and his spouse, while the remaining approximately 88% of the
land and other six farms sheds are owned by other individuals who have no ownership interest in Savabhai
Investment Group (Pvt.) Ltd. The petitioner's claim that Savabhai Investment Group (Pvt.) Ltd. owns and is
doing business through Al-Madad Dairy Farm has not been corroborated with documentary evidence, and
therefore the parent-subsidiary relationship has not been established. The fact that the beneficiary and his
spouse individually own and control farm plots and individually own a minority interest in Savabhai
Investment Group (Pvt.) Ltd. is not sufficient to establish an affiliate relationship between the entities. The
petitioner has not established that the foreign entity is doing business through Al-Madad Dairy Farm.
Finally, the AAO finds no evidence to support counsel's claim that the foreign entity owns and controls the
dental clinic, which, based on the evidence submitted, is owned and operated by the beneficiary as a sole
proprietorship . Again, it must be emphasized that a corporation is a separate and distinct legal entity from its
owners or stockholders. See Matter of M, 8 I&N Dec . 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite
Investments Limited, 17 I&N Dec. 530 (Comm. 1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc.
Comm. 1980). The dental clinic will not be considered to be owned and/or controlled by Savabhai
Investment Group (Pvt.) Ltd. simply because one of its shareholders owns the clinic, or because it states in its
memorandum of association that it intends to acquire and take over such clinic. Counsel's statement that the
beneficiary transferred the right of control and ownership of the clinic to Savabhai Investment Group (Pvt.)
Ltd. is unpersuasive. The unsupported statements of counsel on appeal or in a motion are not evidence and
thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984);
Matter ofRamirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).
Finally, there is no evidence to support counsel's argument that the legal rights and legal title of the water
park, dairy farm and dental clinic are vested with Savabhai Investment Group (Pvt.) Ltd., or counsel's
statement that all four entities in Pakistan are owned by the beneficiary, his spouse, and his sister. Going on
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Based on the above, the petitioner has not established that Savabhai Investment Group (Pty) Ltd., which has
no employees and does not appear to earn income or pay taxes, is engaged in the regular, systematic and
continuous provision of goods and/or services, and thus it is not a qualifying foreign organization for the
purposes of this visa classification . It cannot be considered a holding company with active subsidiaries absent
evidence that it actually owns another company that is doing business in Pakistan. Contrary to counsel's
assertions, the fact that the company is a member of the chamber of commerce and has a savings account is
not sufficient to establish that it is doing business as defined in the regulations.
Another related issue not addressed by the director is the apparent reorganization of the foreign operations
subsequent to the beneficiary's transfer to the United States. The petitioner's claimed parent company was
organized nearly three years after the approval of the beneficiary's initial L-IA petition, and no explanation
has been provided regarding the previous owner of the petitioner's stock, "Savabhai Investment Group."
Clearly, the beneficiary's prior foreign employer was not Savabhai Investment Group (Pvt.) Ltd. if that
company did not exist prior to 2004. There also remains some question as to whether the stock was actually
EAC 06203 52358
Page 19
transferred from one party to the other, as the petitioner has submitted two completely different stock ledgers,
one of which indicates that Savabhai Investment Group is the only shareholder. The petitioner's 2005
corporate tax return also appears to identify Savabhai Investment Group, and not Savabhai Investment Group
(Pvt.) Ltd., as the owner of its stock. 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. at 591-92.
Based on the foregoing discussion, the petitioner has not established that the U.S. company and its claimed
parent company are qualifying organizations. For this additional reason, the appeal will be dismissed.
The AAO acknowledges that USCIS approved other L-l nonimmigrant petitions that had been previously
filed on behalf of the beneficiary. It must be emphasized that each petition filing is a separate proceeding
with a separate record. See 8 C.F.R. § 103.8(d). In making a determination of statutory eligibility, CIS is
limited to the information contained in that individual record of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii).
The prior approvals do not preclude CIS from denying an extension of the original visa based on reassessment
of petitioner's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir.
2004).
If the previous nonimmigrant petition was approved based on the same unsupported assertions that are
contained in the current record, the approval would constitute material and gross error on the part of the
director. The AAO is not required to approve applications or petitions where eligibility has not been
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Based on the lack of required evidence of
eligibility in the current record, the AAO finds that the director was justified in departing from the previous
petition approvals by denying the instant petition.
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court
of appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir.
2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decision. 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.
ORDER: The appeal is dismissed.