dismissed L-1A Case: Retail Merchandise

Mesditglngdsta-to 
prevent clearly unwarranted 
invsrcinn ~f personal privacy 
U.S. Department of Homeland Security 
20 Mass. Rm. A3042,425 1 Street. N.W. 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
pqJBLIC COPY 
File: WAC-04-006-50769 Office: CALIFORNIA SERVICE CENTER Date: 0 4 2005 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 l (a)( 1 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
w \ Robert P. Wiemann, Director 
i~dministrative Appeals Office 
WAC-04-006-50769 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Ofice (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its General Manager as 
an L-1 A nonimmigrant intracompany transferee pursuant to section 10 1(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized under the laws 
of the State of California and is engaged in the manufacture and distribution of retail merchandise. The 
petitioner claims that it is the branch o- located in Seoul, Republic of Korea. 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. 
On December 7, 2003, the director issued a Notice of Intent to Deny. After considering the petitioner's 
response, the director denied the petition concluding that (I) the petitioner did not establish that the 
beneficiary will be employed in the United States in a primarily managerial or executive capacity, and (2) that 
there was no qualifying relationship with the foreign entity. In support of these conclusions the director noted 
inconsistencies and omissions in the record that undermined the credibility of petitioner's claims. 
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 Citizenship 
and Immigration Services (CIS) erred in determining that the beneficiary's duties not were executive in 
nature; that a qualifying relationship did not exist; and that no evidence was submitted to show amended tax 
returns were filed. In support of this assertion, the petitioner submits additional evidence. 
'To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 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 (I)(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. 
WAC-04-006-50769 
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(iv) Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. tj 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 (I)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (I)(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 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. 5 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 supervisbry, 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, 
WAC-04-006-50769 
Page 4 
functions at a senior level within the organizational hierarchy or with respek 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 10 1 (a)(44)(B) of the Act, 8 U.S.C. fj 1 101 (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. 
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. fj 214,2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. 
In the initial petition, petitioner's counsel described the beneficiary's job duties as follows: 
[The beneficiary] is president and chief executive officer of bot4- 
(USA) . . . . [The beneficiary] is the president and CEO; he will direct the manager and the 
administrative assistant. [The beneficiary] develops and expand[s] the current U.S. base. In 
his capacity as president, he will analyze the current U.S. m rket and direct all marketing 
efforts. He is the sole contact to the parent company, [.] As president and CEO, 
[the beneficiary] directs marketing efforts, project management and sales. [The beneficiary] 
continues to analyze the sales statistics and monitor the "best sells" and customer preferences 
for the parent company's products. [The beneficiary] analyzes the potential territories 
researched by Steven Rhee, and direct[s] whether the preliminary contacts should be made, 
introduction to the products, etc.. 
On December 7, 2003, the director issued a notice of intent to deny. Specifically, the director noted that there 
was insufficient evidence to demonstrate that the beneficiary will supervise and control the work of other 
supervisory, professional, or managerial employees who will relieve the beneficiary from performing non- 
WAC-04-006-50769 
Page 5 
qualifying duties. In addition, the director found that the beneficiary appeared to have been performing the 
routine non-qualifying duties of the day-to-day operations of the business, rather than directing activities 
through executives or managers, or other professionals. 
In response, counsel responded with vague assertions that the beneficiary's duties were executive in nature 
and "would in North America require either an MBA or equivalent experience." Counsel did not detail any of 
benefic,iary9s actual duties, instead relying on explanations of retail economics to qualify the assertion that 
beneficiary was and would be employed in an executive capacity. 
On January 16, 2004, the director denied the petition concluding that (1) the petitioner did not establish that 
the beneficiary will be employed in the United States in a primarily managerial or executive capacity, and (2) 
that 'there was no qualifying relationship with the foreign entity. In support of these conclusions the director 
noted inconsistencies and omissions in the record that undermined the credibility of petitioner's claims. 
1 
On appeal, counsel for petitioner stated that beneficiary's duties were as follows: 
[The beneficiaryl's specific executive and managerial authority here includes (in order of the 
sales cycle): 
a) approving approaches to potential clients targeted by the Manager; 
b) oversight of sales presentations; oversight of sales training for wholesalers' and 
distributors' reps[;] 
c) communicating with Korea (and in the future, China) on 
i) production capacity 
ii) cost 
iii) scheduling 
d) based on the above, [the beneficiary] would then approve the terms and conditions of each 
sale. His considerations in approving prices must include allowances for forecasting currency 
fluctuations, review of clients' credit worthiness (i.e[.] international letters of credit and 
banking arrangements) and importantly his own experience and knowledge of the production 
status and capabilities of the factory[ies]. His discretion in such matters is critical given the 
tight margins and competitive environment. 
Upon review, counsel's assertions are not persuasive. The vague job description provided by counsel is not 
adequate to illustrate that beneficiary would be performing primarily executive duties. Assertions such as 
"[hlis discretion in such matter is critical given the tight margins and competitive environment" atld 
"Communicating with Korea (and in the future, China) on i) production capacity ii) cost iii) scheduling" are 
not specific enough to prove that the beneficiary's duties are executive in nature. Specifics arc 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., 
WAC-04-006-50769 
Page 6 
Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), am, 905 F.2d 41 (2d. Cir. 1990). The actual duties 
themselves reveal the true nature of the employment. Id. 
Even though the petitioner claims that the beneficiary directs and manages sales and marketing activities, it 
does not credibly claim to have anyone on its staff to actually perform the marketing and sales functions in 
order to relieve beneficiary of performing such day-to-day activities. Petitioner claims three employees, 
including the beneficiary, however the fact that no labor costs are reported on the IRS Form 1120 and that no 
state taxes were withheld calls into question whether or not these individuals are employees or subcontractors. 
On appeal counsel asserts that they qualify as employees under California law but submits no documentary 
evidence to support these assertions. Assertions of counsel do not constitute evidence, thus the director's 
reasoning has not been effectively rebutted. Counsel does not explain the discrepancy with regard to having 
no labor costs. No further documentary evidence on the alleged employees and their duties was submitted, 
thus, either the beneficiary himself is performing the sales and marketing functions or he does not actually 
manage the sales and marketing functions as claimed by the petitioner. In either case, the AAO is left to 
question the validity of the petitioner's claim and the remainder of beneficiary's claimed duties. Doubt cast on 
any aspect of petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of a visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
If the beneficiary is performing sales and marketing functions, the AAO notes that 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 ScientoIogy International. 19 I&N Dec. 
593,604 (Comm. 1988). 
Counsel states that the beneficiary would allegedly act in an executive capacity, but makes several assertions 
concerning the duties of beneficiary that indicate reliance on the criteria for employment in a managerial 
capacity. For instance counsel claims that "[tlhe functionality of selecting (and de-selecting) sub-distributors 
and wholesalers is arguably no different from hiring and firing sales people" This is presumably a reference 
to section I0 1 (a)(44)(A)(iii) of the Act, which defines an element of managerial capacity in part as "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) . . . ." Counsel should note that a 
petitioner may not analogously comply with the statutory requirements, but must actually comply w~th statute. 
In order to comply with the statute, the beneficiary must be primarily employed in a managerial or executive 
capacity as they are defined by the Act. The petitioner's counsel repeatedly stated that beneficiary would be 
employed as an executive, and yet has failed to illustrate how beneficiary's actual day-to-day duties would 
satisfy the elements of executive capacity as defined by regulation. The petitioner must specifically state 
whether the beneficiary is primarily employed in a managerial or executive capacity, and may not claim to be 
employed as a hybrid "executive/manager" and rely on partial sections of the two statutory definitions. In the 
instant case, as petitioner is claiming that beneficiary will be the chief executive, thus the petitioner must 
establish that a beneficiary meets each of the four criteria set forth in the statutory definition for executive 
capacity. However, the petitioner also refers to beneficiary'? as General Manager makes numerous claims 
that beneficiary acts in a managerial capacity. Therefore, the petitioner must additionally establish that 
beneficiary's employment will meet the four criteria for the definition of managerial capacity as well. 
Petitioner has not satisfied the burden for either, much less both. 
WAC-04-006-50769 
Page 7 
The record is not persuasive in demonstrating that the beneficiary has been or will be employed in a primarily 
managerial or executive capacity. The regulation 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. . 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily or 
managerial capacity, as required by 8 C.F.R. section 214.2(1)(3). 
The second issue in this proceeding is whether a qualifying relationship exists with a qualifying foreign 
organization as defined by 8 C.F.R. 214.2(1)(1)(ii)(G). Upon review, the petitioner has failed to establish a 
qualifying relationship on three grounds: first, the petitioner failed to clarify whether it was seeking to qualify 
as a branch or subsidiary of the overseas entity; second, the petitioner failed to provide adequate independent 
and objective evidence of its ownership and control; and third, the petitioner failed to establish that it is a 
qualifying organization. 
In the denial the director pointed out that there were discrepancies in who actually owned and controlled 
petitioner because IRS Form 1120, U.S. Corporation Income Tax Return, submitted by the petitioner showcd 
beneficiary, not !as 100% owner. See petitioner's exhibit 10. For this reason the director based 
his denial in part on the lack of a qualifying relationship and noted that no corrective action had heen taken 
with regard to IRS Form 1120. On appeal, counsel claimed that the tax forms that list the beneficiary as 
having ownership have been corrected by a filing with the IRS and rely on stock issued to I1 Yoo Co. as 
evidence of control and ownership by the foreign parent. Counsel notes that the amended tax returns were 
filed on January 2,2004, after the director denied the petition. 
Upon review counsel's assertions are not persuasive. Filing amended tax returns a year after the claimed 
transaction raise serious questions regarding the truth of the facts asserted. C' Matter of Bueno, 21 I&N Dec. 
1029, 1033 (BIA 1997). The petitioner is obligated to clarify the inconsistent and conflicting testimony by 
independent and objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (RIA 1988). Simply asserting 
that the reported ownership was a clerical error does not qualify as independent and objective evidence. 
Evidence that the petitioner creates after CIS points out the deficiencies and inconsistencies in the petition 
will not be considered independent and objective evidence. Independent and objective evidence would be 
evidence that is contemporaneous with the event to be proven and existent at the time of the director's notice. 
While the AAO acknowledges that an amended tax return have been fiIed, it has still not been proven that 
such designation was a clerical error, merely that it has been changed. Coupled with little additional evidence 
of ownership and control or evidence that either company is doing business, an amended tax return carries 
little weight. In the instant case petitioner should have adequately responded to director's Notice of Intent to 
Deny by providing additional evidence of ownership and control and clarifying whether petitioner was 
attempting to qualify as a branch office or a subsidiary of Instead, the petitioner relies solely on 
the issuance of a stock certificate to as evidence of control and ownership and thus a qualifying 
relationship. 
WAC-04-006-50769 
Page 8 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BlA 1988). Without 
full disclosure of all relevant documents, CIS is unable to determine the elements of ownership and control. 
The petitioner's sole piece of evidence on ownership and control - a stock certificate - was called in to 
serious doubt by the fact that IRS Form 1 120 showed beneficiary as owner. Petitioner had the opportunity to 
provide additional evidence of ownership and control and failed to do so. 
Petitioner was made aware of the discrepancies concerning the qualifying relationship and their impact on the 
petition in the director's Notice of Intent to Deny. The director stated in the Notice of Intent to Deny that 
"[olwnership and control are the determinative factors for establishing a qualifying relationship between the 
United States and foreign entities for purposes of establishing a qualifying relationship." Further, the 
director's line of analysis was in lieu of the petitioner's claim that petitioner was a subsidiary of the foreign 
entity and not a branch office, as originally claimed by petitioner. See letter, II Woo (USA) corporation. 
October 3, 2003. Petitioner's counsel did not clarify on appeal whether petitioner was seeking to qualify as a 
branch office or subsidiary of the foreign parent company. 
A branch means an operating division or office of the same organization housed in a different location. 8 
C.F.R. 5 214.2(l)(ii)(J). If the petitioner submits evidence to show that it is incorporated in the United States, 
then that entity will not qualify as "an . . . office of the same organization housed in a different location," 
since that corporation is a distinct legal entity separate and apart from the foreign organization. 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 T&N Dec. 63 1 (Act. Assoc. Comm. 1980). If the claimed branch is 
incorporated in the United States, CIS must examine the ownership and control of that corporation to 
determine whether it qualifies as a subsidiary or affiliate of the overseas employer. 
The regulation at 8 C.F.R. section 214.2(1)(l)(ii)(L) defines an affiliate, in part, as "[olne of two legal entities 
owned and controlled by the same group of individuals, each individual owning and controlling 
approximatel the same share or ro ortion of each entity." In the instant case the petitioner is allegedly 
owned b& and I- 1s owned by an entity other than itself, thus it does not qualif). as one of 
two legal entities owned and controlled by the same group of individuals. The regulation at 8 C.F.R. section 
214.2(1)(1)(K) defines a subsidiary, in part, as "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 . . . ." Petitioner's only 
evidence of control is called in to question by the fact that it filed an IRS Form 1 120 showing beneficiary as 
100% owner. Thus, petitioner might qualify as a subsidiary had it submitted additional proof of actual control 
and ownership as requested by the director. In visa petition proceedings, the burden is on the petitioner to 
establish eligibility for the benefit sought. See Malter of Brantigun, 1 1 I&N Dec. 493 (BIA 1966). 
WAC-04-006-50769 
Page 9 
Counsel either did not understand or chose not to respond to the issue of qualifying relationship except to 
assert that an amended tax return had been filed. If the petitioner elected - as presumed by director - to 
qualify the relationship with the foreign company as that of a subsidiary then evidence should have been 
submitted which would have conclusively established such relationship existed. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). The non- 
existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 5 
103.2(b)(2)(i). 
Accordingly, the petitioner has not established that there is a qualifying relationship with a qualified 
organization asdefined by 8 C.F.R. section 2 14.2(1)(l)(ii). 
For the foregoing reasons, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has failed to prove that it has been continuously and 
systematically doing business. While not directly addressed by the director, the minimal documentation of 
the petitioner's business operations raises the issue of whether the petitioner is a qualifying organization doing 
business in the United States. Specifically, under the regulation at 8 C.F.R. 214.2(1)(l)(ii)(G)(2), a petitioner 
must demonstrate that it is engaged in the regular, systematic, and continuous provision of goods or services 
and does not represent the mere presence of an agent or office in the United States. The regulation at 8 C.F.R. 
section 2 14.2(1)(3)(v)(C) allows the intended United States operation one year within the date of approval of 
the petition to establish the new office. Furthermore, at the time the petitioner seeks an extension of the new 
office petition, the regulations at 8 C.F.R. 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has 
been doing business for the previous year. 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. While the petitioner did submit some bills of lading for items such 
as blankets and cups, the evidence covers a three to four month period and not the "previous year" prior to 
filing the petition. The AAO finds that the burden for proving regular, systematic and continuous business is 
far from met. For this additional reason, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here that burden has not been met. Accordingly, the 
director's decision will be affirmed and the appeal will be dismissed. 
ORDER: The appeal is dismissed