dismissed L-1A Case: Retail Jewelry

U.S. Department of Homeland Security 
. * ,~;LPB ti0 
20 Massachusetts. Ave , N U'., Rm A3042 
z,vm Wash~ngton, DC 20529 e" *?:;t9" "'@a% 4-- , 
U.S. Citizenship 
and Immigration 
FEE 2 3 2005 
File: SRC 03 219 52421 Office: TEXAS SERVICE 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. 8 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 03 219 52421 
Page 2 
DISCUSSION: 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 appeiil. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president/owner as an 
L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigr,ation and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of 
Texas that is engaged in the retail sale of jewelry. The petitioner claims that it is the subsidiary of MIS 
Victory Bearings, located in Karachi, Pakistan. The beneficiary was initially granted a one-year period of 
stay to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay for 
three years. 
The director denied the petition concluding that (1) the petitioner did not establish that the beneficiary would 
be employed in a qualifying managerial or executive capacity under the extended petition, and (2) the 
petitioner did not establish that the United States entity had 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 petition disputes the director's 
findings and asserts that the director placed undue emphasis on the petitioner's staffing levels, rather than 
considering the beneficiary's actual job duties which counsel claims are primarily executive in nature. The 
petitioner also submits that the beneficiary is the sole owner of the foreign entity and majority owner of the 
United States entity, and that the petitioner has established a qualifying relationship. In support of the appeal, 
counsel submits a lengthy brief and additional supporting evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 5 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) Evidence that the alien will be employed in an executive, managerial, or specializetl 
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 o-f 
the petition. 
SRC 03 219 52421 
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(iv) Evidence that the alien's prior year of employment abroad was in a position that wiis 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
The first issue in the present matter is whether the beneficiary would be employed by the United States entity 
in a primarily managerial or executive capacity under the extended petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. S; 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 a:; 
promotion and leave authorization), or if no other employee is directly supervised, 
SRC 03 219 52421 
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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 fix 
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 lOl(a)(44)(B) of the Act, 8 U.S.C. 1101(a)(44)(B), defines the term "executive capac~ty" 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 b0ar.d 
of directors, or stockholders of the organization. 
In the initial petition filed on August 6, 2003, the petitioner described the beneficiary's job duties as follows: 
Manage all aspects of the business operations for the parent and the subsidiary. Direct and 
coordinate activities of the organization; formulate and administer company policies; develop 
long-range goals and objectives of the parent company and the subsidiary operations. Direct 
and coordinate activities of managers and employees. Review and analyze activities, cost:;, 
and operations and forecast data to determine progress towards stated goals and objectives. 
Discuss with the management and employees to review achievements and discuss required 
changes in goals or objectives of the company. 
The petitioner indicated on Form 1-129 that it had two employees at the time of filing, but provided no further 
description of the beneficiary's duties or the company's staffing levels. 
On September 27,2003, the director requested additional evidence, including an organizational chart showing 
all employees and their positions, and copies of the petitioner's last two Texas Employer's Quarterly Reports. 
In a response received on December 19, 2003, the petitioner submitted its organizational chart, the requested 
quarterly reports, and an additional description of the beneficiary's duties. The organizational chart depicts 
the beneficiary as president, a contract accountant, a store manager, a purchase manager listed as "contract to 
hire," and part-time sales associates. The petitioner's quarterly reports confirm payments to the beneficiary 
and to the employee identified as the store manager. The petitioner also submitted copies of checks paid to its 
contract accountant in June, July and August 2003. 
SRC 03 219 52421 
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In a letter dated December 17, 2003, counsel for the petitioner provided the following description of the 
beneficiary's duties: 
[The beneficiary] is acting as an executive for the [petitioner]. In other words, the 
Beneficiary: (1) manages essential activities or functions of the organization; (2) functions at 
a senior level within the organization; and (3) exercises direction over the day-to-day activi1:y 
of the functions for which the Beneficiary has authority. The specific functions, which the 
Beneficiary manages and has executive capacity over, are illustrated in the functional flow 
chart found under Exhibit E. 
The above-referenced "functional flow chart" delineates the following responsibilities for the beneficiary: 
(1) Marketing and business development for the U.S. entity and foreign entity; 
(2) Investment in retail trade and services (exploring service businesses and viable 
investment opportunities); 
(3) Oversees finance and accounting functions (budgeting, directing finance activities, 
tax and regulatory matters) for the U.S. entity and foreign entity. 
(4) Directs overall management, establishes goals and policies, exercises wide latitude in 
discretionary decision-making. 
(5) Directs overall management of foreign parent company, establishes goals and 
policies related to automotive parts business. 
On January 5, 2004, the director denied the petition concluding that the beneficiary would not be performing 
primarily managerial or executive duties under the extended petition. The director noted that since the 
petitioner employs only two employees, it appears the beneficiary must be involved in the day-to-da,y running 
of the business. The director concluded that the beneficiary, while responsible for running the company, is 
also responsible for all operational aspects of the company, including non-qualifying duties. 
On appeal, counsel for the petitioner asserts that the beneficiary performs primarily managerial and executive 
duties and that the director failed to take into consideration the reasonable needs of the organization when 
reviewing the company's staffing levels. Counsel also asserts the director failed to consider the petitioner's 
employment of contract employees, and asserts that the store manager performs all of the non-managerial 
duties, thereby relieving the beneficiary from direct involvement in the routine store operations. Finally, 
counsel states that even if the beneficiary does perform some non-qualifying duties, he is only required to 
perform primarily managerial or executive level duties and is therefore not precluded from performing other 
duties as necessary. Counsel submits copies of previous federal district court and AAO decisions in support of 
these arguments. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary will be 
employed in a primarily managerial or executive capacity. 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(1)(3)(ii). The petitioner's description of the job duties must clearly describe the dulies to be 
performed by the beneficiary and indicate whether such duties are either in an executive or managerial 
SRC 03 219 52421 
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capacity. Id. In addition, the definitions of executive and managerial capacity have two parts. 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). 
In this case the petitioner identifies the beneficiary's position as owner and president of the U.S. company as 
executive in nature. However, rather than providing a specific description of the beneficiary's dluties, the 
petitioner generally paraphrased the statutory definition of executive capacity. See section lOl(a)(44)(A) of 
the Act, 8 U.S.C. 9 1101(a)(44)(A). For instance, the petitioner depicted the beneficiary as "directing the 
overall management of the organization, establishing goals and policies of the organization and exercising 
wide latitude in discretionary decision-making." However, conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient to meet the petitioner's burden of proof. Merely repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. ICO. Ltd v. 
Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d Cir. 1990); Avyr Associates, hzc. v. 
Meissizer, 1997 WL 1988942 at *5 (S.D.N.Y.). 
Since the job description primarily paraphrases the regulatory definition of executive capacity, the petitioner's 
description fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner 
states that the beneficiary's duties include "directing marketing and business development," and "developing 
long-term goals and objectives," but the petitioner does not clarify who actually performs mark'zting and 
business development duties or define the beneficiary's goals and objectives. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof' in these 
proceedings. Matter of Treasure Craji of California, 14 I&N Dec. 190 (Reg. Comm. 1972). Specifics are 
clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co. Ltd v. Suva, 724 F. Supp. at 1103. 
On appeal, counsel for the petitioner grants that the beneficiary may occasionally perform non-managerial 
duties related to operating the petitioner's retail store, but claims that the beneficiary only needs to primarily 
perform executive or managerial duties in order to establish eligibility for the benefit sought. This claim is 
correct; the beneficiary of an L-1A petition need not perform only executive and managerial duties. I-Iowever, 
counsel's claim is not supported by actual evidence that the beneficiary in this case is primarily performing 
the executive functions outlined in the petitioner's job descriptions. Without documentary evidence to support 
the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The assertions of counsel 
do not constitute evidence. Matter of Obaigberau, 19 I&N Dec. 533, 534 (BIA 1988); Matter of hul-eano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Saizchez, 17 I&N Dec. 503, 506 (BIA 1980). Based on the current 
record, the AAO is unable to determine whether the claimed executive and managerial duties constitute the 
majority of the beneficiary's duties, or whether the beneficiary primarily performs non-managerial 
administrative or operational duties. The petitioner's description of the beneficiary's job duties does not 
establish what proportion of the beneficiary's duties is executive or managerial in nature, and what proportion 
is actually non-managerial. See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). As 
discussed above, the petitioner's description of the beneficiary's job duties conveys very little understanding 
SRC 03 21 9 5242 1 
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of the actual he performs on a daily basis. Without a meaningful job description to evaluate, the director 
reasonably evaluated other factors, such as the petitioner's staffing levels, to determine whether the vaguely 
defined executive responsibilities were credible within the context of the petitioner's business. 
On appeal, counsel asserts that the Service erred in "continually emphasizing the number of subordinate 
employees as dispositive on managerial and executive capacity," citing Mars Jewelers, Inc. vs. INS, 702, F. 
Supp. 1570 (N.D. Georgia 1988). Specifically, counsels states that the U.S. District Court found that "to limit 
the term 'manager' to those persons who supervise a large number of employees (or limit the term 'executive' 
to those persons who supervise large enterprises) would exclude small foreign corporations from expanding in 
the United States through subsidiary operations." However, in contrast to the broad precedential authority of 
the case law of a United States circuit court, the AAO is not bound to follow the published dec~sion of a 
United States district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 
(BIA 1993). Although the reasoning underlying a district judge's decision will be given due consideration 
when it is properly before the AAO, the analysis does not have to be followed as a matter of law. Id at 719. 
In this matter, it is not evident that the director denied the petition on the basis that the beneficiary did not 
supervise a large number of employees or because the beneficiary did not supervise a large enterprise. 
Although the director clearly considered the petitioner's staffing levels, it was entirely appropriate for her to 
do so. Counsel is correct that, pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1101(a)(44)(C), if 
staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive 
capacity, CIS must take into account the reasonable needs of the organization, in light of the overall purpose 
and stage of development of the organization. In the present matter, however, the regulations provide strict 
evidentiary requirements for the extension of a "new office" petition and require CIS to examine the 
organizational structure and staffing levels of the petitioner. See 8 C.F.R. 3 214.2(1)(14)(ii)(D). The 
regulation at 8 C.F.R. 5 214.2(1)(3)(v)(C) allows the "new office" operation one year within the date of 
approval of the petition to support an executive or managerial position. There is no provisioil in CIS 
regulations that allows for an extension of this one-year period. If the business does not have sufficient 
staffing after one year to relieve the beneficiary from performing operational and administrative tasks, the 
petitioner is ineligible by regulation for an extension. 
At the time of filing, the petitioner was a one-year-old company operating a retail jewelry store. The evidence 
shows that the firm employed the beneficiary as president and a store manager, and utilized the services of an 
accountant on a contract basis. In response to the director's request for evidence, the petitioner stated that its 
staff also included a purchase manager on "contract to hire" and part-time sales associates, but the record is 
devoid of any evidence that the petitioner ever employed these additional staff on a contract or other basis. 
Going on record without supporting evidence without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Treasure Crafr of California 14 I&N 
Dec. at 190. In addition, on appeal, counsel mentions only the store manager as being among the petitioner's 
staff, which raises questions as to the validity of the petitioner's previous assertion that it utilized the services 
of a purchase manager and sales associates. Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to reevaluation of the reliability and sufficiency of the remaining evidence offered in support of'the visa 
petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
SRC 03 219 52421 
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Counsel asserts that the store manager, who receives monthly wages of $1,500, "is paid sufficient wages to 
cover over sixty (60) hours of work per week" and performs all of the "ministerial duties of waiting on 
customers, ordering inventory, receiving shipments, etc." Counsel further claims that the store requires no 
more than one person to wait on customers, and that the store manager is able to perform all other non- 
qualifying duties when there are no customers present. Again, since the petitioner previously stated that its 
organization supported part-time sales representatives and a purchasing manager in addition to the store 
manager, counsels assertions on appeal that the store manager, as the beneficiary's sole subordinale, works 
during most or all of the petitioner's operating hours and single-handedly performs essentially all of the 
routine tasks associated with operating a retail jewelry store are not credible. 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. Further, if CIS fails to believe 
that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 8 U.S.C. $ 
1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Arzn Bakery Shop, Inc. v. 
Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
The petitioner has not provided sufficient evidence that it employs a subordinate staff that can relieve the 
beneficiary from performing non-qualifying duties. Based on the petitioner's and counsel's representations, it 
does not appear plausible that a retail store which employs only two people could support an employee who 
works in the store, but who spends the preponderance of his time performing bona fide executive duiies rather 
than participating in the daily operations of the store. 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 Uni~.ed 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. 
On appeal, counsel asserts that the director overlooked the petitioner's representations that the beneficiary 
oversees essential functions of the organization. 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 or directing an essential function within the organization. See sections 101(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 natulre 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. 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 Internntional, 19 I&N Dec. 593, 604 (Comm. 1988). In this matter, the petitioner stated 
that the beneficiary oversees the "marketing and business development function" and the "finance and 
accounting function." However, other than a contract accountant whose duties have not been described, the 
petitioner does not employ any staff who are claimed to perform any marketing, business development or 
finance-related duties. Therefore, it is reasonable to conclude that the beneficiary himself actually performs 
the duties related to these functions. Further, as noted above, the petitioner has not provided a comprehensive 
SRC 03 219 52421 
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and detailed description of the beneficiary's duties, nor has it established the proportion of the beneficiary's 
daily duties dedicated to managing these functions. Thus, the petitioner has not establishecl that the 
beneficiary will primarily manage or direct an essential function of the organization. 
Counsel further refers to an unpublished decision involving an employee of the Irish Dairy Board. In the 
unpublished 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. 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. at 
190. Furthermore, while 8 C.F.R. $ 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. 
In sum, the lack of a detailed description of the beneficiary's actual duties, considered in conjunction with the 
inconsistent information provided by counsel and the petitioner with respect to the beneficiary's subordinates, 
precludes a finding that the beneficiary would be performing primarily managerial or executive du~:ies under 
the extended petition. The fact that an individual manages a small business and is assigned a managerial or 
executive job title does not necessarily establish eligibility as an intracompany transferee. While the 
beneficiary may exercise discretionary authority over the U.S. company, the record is not persuasive in 
demonstrating that the beneficiary has been or will be employed in a printnril~ managerial or executive 
capacity. 
The petitioner indicates that it plans to hire additional managers and employees in the future. However, the 
petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may 
not be approved at a future date after the petitioner or beneficiary becomes eligible under a new sel. of facts. 
Matter of Michelitz Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Furthermore, as noted above, the 
regulation at 8 C.F.R. $ 214.2(1)(3)(v)(C) allows the intended United States operation one year within the date 
of approval of the petition to support an executive or managerial position. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business is not sufficiently operational 
after one year, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner 
has not reached the point that it can employ the beneficiary in a predominantly managerial or executive 
position. For this reason the petition may not be approved. 
The second issue in the present matter is whether the petitioner has established that it has a qualifying 
relationship with the foreign entity. 
The regulation at 8 C.F.R. $ 214.2(1)(l)(ii) states. in pertinent part: 
(G) Qualzbing organization means a United States or foreign firm, corporation or other legal entity 
which meets exactly one of the qualifying relationships in the definitions of a parent, branch, 
affiliate or subsidiary specified paragraph (I)(l)(ii) of this section. 
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(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, director or 
indirectly, more than half of the entity and controls the entity; or owns, director 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) Afllinte means 
(I) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
On the supplement to the 1-129 petition, the petitioner indicated that it is the subsidiary of the foreign entity. 
Specifically, the petitioner stated that the beneficiary owns the majority of the shares of the petitioner and is 
the sole owner of the foreign entity. In support of this statement, the petitioner submitted an excerpt from the 
minutes of a shareholders meeting indicating that the U.S. company's shares would be distributed a:; follows: - - 
- 5002 shares; 
I: 
2499 shares; and 499 shares. The 
petitioner also submitted three stoc certificates, numbered three through five, which indicate distribution of 
shares in the above-described proportions. The stock certificates indicate on their face that the company is 
authorized to issue a total of 10,000 shares. The petitioner also submitted its 2002 Form 1120, U.S. 
Corporation Income Tax Return, which indicates that the beneficiary owns 50.02 percent of the company's 
voting stock. There record establishes that the beneficiary is the sole owner of the foreign entity. 
In the request for evidence dated September 27, 2003, the director requested that the petitioner subniit copies 
of the U.S. company's stock register and all of its stock certificates. The petitioner submitted a copy of its 
stock ledger showing issuance of stock certificates numbered three through five, and copies of the same three 
stock certificates submitted with the initial petition. Counsel for the petitioner explained that the prior share 
certificates numbered one and two were not recorded in the ledger because they were voided due to clerical 
errors. 
The director denied the petition concluding that the ownership of the United States company could not be 
verified. On appeal, counsel for the petitioner again explains that the first two stock certificates were voided 
and therefore never recorded on the company's stock ledger. The petitioner submits copies of the two voided 
share certificates in the amounts of 200 shares and 302 shares, both of which were issued to the beneficiary. 
The second certificate was not fully completed, but both voided certificates appear to have been issued on the 
same date as the three valid certificates. 
The AAO finds sufficient evidence in the record to establish an affiliate relationship between the foreign 
entity and the U.S. entity pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(K), based on common ownership by the 
beneficiary. Therefore, the AAO withdraws the director's decision with respect to this issue. Although the 
SRC 03 219 52421 
Page 11 
petitioner failed to provide the voided certificates previously, the petitioner has not made inconsistent 
statements regarding its ownership, nor is there any evidence to suggest that anyone other than the beneficiary 
owns a majority of the shares in the U.S. company. 
Although not addressed by the director, a remaining issue to be examined is whether the petitioner has 
established that the beneficiary's services are for a temporary period. The regulation at 8 C.F.R. 5 
214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of the company, the petition 
must be accompanied by evidence that the beneficiary's services are to be used for a temporary period and 
that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services 
in the United States. In this matter, the record shows that the beneficiary is the major stockholder of the U.S. 
company. On the petition, the petitioner indicated that the beneficiary's services would be required for three 
years. No evidence of the claim was provided. In the absence of persuasive evidence, it cannot be concluded 
that the beneficiary's services are to be used temporarily or that he will be transferred to an assignment abroad 
upon completion of the position in the United States. Therefore, the petition may not be approved on this 
basis as well. 
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 
Sperlcer 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. Accord:~ngly, the 
director's decision to deny the petition will be affirmed. 
ORDER: The appeal is dismissed.