dismissed L-1A Case: Scuba Equipment

., .- 
% 
 U.S. Deparlment of Homeland Security 
,c J :.a 
 20 Massachusetts Ave , N W , Rm. A3042 
, .\ Wash~ngton, DC 20529 
1 
identifying data deleted to 
pievent cleayiy ~mwarranted 
I ihasion of personal privacy 
U.S. Citizenship 
and Immigration 
File: SRC 04 104 50477 Office: TEXAS SERVICE CENTER Date: WAR 3 1 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 101(a)(15)(L) 
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 
ministrative Appeals Office 
SRC 04 104 50477 
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 appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary 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. 8 1101(a)(15)(L). The petitioner is a limited liability company organized in the State of Florida that 
intends to engage in scuba equipment purchase, export and consulting. The petitioner claims that it is the 
affiliate of located in Sao Paulo, Brazil. The petitioner seeks to employ the 
beneficiary as the president of its new office in the United States for a one-year period. 
The director denied the petition concluding that the petitioner had not established: (1) that the U.S. company 
and the foreign entity have a qualifying relationship; or (2) that the beneficiary had been employed by a 
qualifying foreign entity for at least one continuous year in the three years preceding the filing of the petition. 
The director also observed that the petitioner did not provide evidence that the foreign company had provided 
funds for the new U.S. entity. 
The petitioner subsequently filed an appeal. The director declinedto treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner submits additional 
documentation in support of the claimed qualifying relationship between the petitioner and the foreign entity, 
and asserts that the petitioner's articles of organization have been amended to reflect ownership by the 
claimed foreign parent company. With respect to the beneficiary's employment abroad, counsel asserts that 
the company that employed the beneficiary and the petitioner's claimed parent company are "in essence the 
same company" based on common ownership by an individual and thus the petitioner has established that the- 
beneficiary was employed by a qualifying organization. Counsel submits a brief, previously submitted 
evidence, and new 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)(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. 9 214:2(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 specialized 
knowledge capacity, including a detailed description of the services to be performed. 
SRC 04 104 50477 
Page 3 
(iii) 
 Evidence that the alien has at least one. continuous year of full time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher 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. 8 214.2(1)(3)(~) further provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or to be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive of managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the foreign 
entity to remunerate the beneficiary and to commence doing business in he 
United States; and 
(3) The organizatidnal structure of the foreign entity. 
The first issue in the present matter is whether the petitioner has established a qualifying relationship between 
the U.S. entity and the beneficiary's foreign employer. 
The regulation at 8 C.F.R. 8 214.2(1)(l)(ii) states, in relevant part: 
(G) 
 Qualzfiing organization means a United States or foreign firm, corporation, or other 
legal entity which: ' 
SRC 04 104 50477 
Page 4 
(1) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, subsidiary or affiliate specified in paragraphs (l)(l)(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; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
* * * 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(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, les than half of the entity, but in fact 
controls the entity. 
I 
(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 entirely owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity[.] 
The nonirnrnigrant petition was filed on February 
 ification Supplement to Form I- 
129, the petitioner indicated that it is the affiliate of' 
 located in Sao Paulo, Brazil and 
stated that the beneficiary is the "owner [and] president" of the petitioning company. In a February 24, 2004 
letter appended to the petltlon, th 
the Brazilian arent company 
later acquired 
from January 1999 through May 2002. 
The petitioner submitted supporting documentation, including: (1) the U.S. entity's Florida articles of 
organization, filed on February 20, 2004, identifying the beneficiary as the company's manager; (2) a 
SRC 04 104 50477 
Page 5 
February 2004 affidavit executed by the beneficiary, who attests to being the "Sole Member and Manager" of 
the U.S. entity; (3) an untranslated document in the Portuguese language, dated February 5, 2003, bearing the 
handwritten notation '~rticle of Incorporation"; (4) an untranslated document in the Portuguese 
language, dated April 1, 1999, bearing the handwritten notation 'icles of Incorporation"; (5) an 
untranslated document in the Portuguese language. dated August 1, 2003, bearing the handwritten notation 
- - .,, ./ . - 
"Amendment of Article of Incorporation - the acquisition of 
 (6) a January 28, 2004 letter, with 
1 
 manager on January 30, 1999. 
I 
 On May 12, 2004, the director requested additional evidence, in part instructing the petitioner to submit: a 
copy of the operating agreement for the U.S. company and evidence thatthe foreign company has invested in 
the U.S. company, including evidence of wire transfers to the U.S. company or other documentation that will 
show the money invested and how it was sent to the United States. 
The petitioner submitted a response dated August 10, 2004, which included a February 23, 2004 operating 
agreement for the U.S. limited liability company, identifying the beneficiary as the sole manager, and the 
company's membership as follows: 
Initial Members Percentage Interest in LLC Capital Contribution 
I 
\ 
[The beneficiary] 49% $1,500 
51% $1,500 
also submitted copies of fifteen "incoming wire transfer noti~es'~ fromb- 
addressed to the beneficiary, identified by counsel as "copies of Brazilian parent corporation[']s wire 
transfers into [the beneficiary's] bank account, proving ongoing investment." The wire transfer notices, 
which total payments in t 
 November 18, 2003 and July 30, 2004, all identifjr 
the "originating party" as ' 
 and the beneficiary as the recipient of the funds. 
The director denied the petition on August 23, 2004, concluding that the petitioner had not established a 
qualifying relationship between the petitioner and the beneficiary's foreign employer. The director observed 
inconsistencies in the submitted evidence, noting that the petitioner submitted a notarized statement from the 
beneficiary identifying him as the sole member of the company, as well as an operating agreement identifying 
the foreign entity as a member with a 5 1 percent interest. Due to the conflicting evidence, the director found 
that it was impossible to determine whether any relationship existed between the two companies. 
The director further noted that the petitioner failed to establish that the claimed parent company had funded 
the U.S. entity. Specifically, the director remarked that the foreign entity's name did not appear as the 
originator of the submitted wire transfers, nor was the money deposited to the U.S. company's bank account. 
SRC 04 104 50477 
Page 6 
On appeal, counsel for the petitioner asserts that the petitioner is a majority-owned subsidiary o 
and submits the petitioner's amended articles of organization filed with the Florida n epartmeht 
of State on August 30, 2004. The amended articles of organization state:,"The Brazilian company, 
. is added as a managing member to the "member managed LLC" in accordance with the LLC 
operating agreement, which indicates that said Brazilian company . . . retains 5 1% of the interest in the LLC." 
Counsel further explains the petitioner's late filing of the amended articles of organization as follows: 
We had not added the foreign parent company 
 as a Member (at time of 
formation of the Florida LLC) due to our wrong 
 companies no longer 
could be shareholders or own stock of U.S. entities, after the institution of the Patriot Act. 
Upon further research, however, we found: out that 
 be members of 
Limited Liability Companies (LLCs), thus, we have added 
 accordingly. 
With respect to the funding of the U.S. company by the claimed parent company, counsel states. that the 
monies sent by the foreign entity to.date have been "modest" due to the lack of an L-1A visa approval for the 
 ,: 
beneficiary, and notes that the payments were initially made to the beneficiary's account so that he could pay 
for start up expenses. Counsel asserts that the most recent wire transfers have gone to the U.S. entity's 
business checking account and submits an account transaction history showing that the petitioning company 
received wire transfer deposits in the amounts of $1,000 and $1,250 on ,August 30, 2004 and September 15, 
2004, respectively. The petitioner does not provide copies of the wire transfer deposit slips or receipts 
identifying the originator of these funds. 
declare . . .that [the beneficiary] receives, through [the 'petitioning company]; money wire transfers 
corresponding to s 
 ce, a business in which I keep investing 
into, as part of the 
 further states that the wire transfers "are 
effectuated throug 
Finally, the petltloner submlts addit 
company that employed the bene 
group and are "in essence, the same company, havlng always had Mr. 
 as Owner and President 
with full control . . ." 
 Counsel comments on the complexity of Brazil's corporate laws, notlng that 
"farfetched requisites, hindrances and llmitatlons lead pe 
 restrictions by findmg 
other ways to form companies." Counsel reiterates that 
 "has always been the 
President and Owner of both entities, which m essence, have been the same company, m the same line of 
business, from its onglnal formation date to the present." In support of these assertions, counsel submits 
"several amendments" made to the Artlcles of Incorporation ohich counsel states will establish 
that the company is owned by Counsel attaches corporate documents for - 
dated Apnl 1, 1999, August 16, 1999, October 28, 2002 and December 1, 2003, along wlth a summary 
SRC 04 104 50477 
Page 7 
, . 
translation stating that these documents evidence that 
and- the company's shareholders. 
Upon reviewing the petition and the evidence, the petitioner has not established that it has a qualifying 
relationship with the beneficiary's last foreign employer as required by 8 C.F.R. tj 214.2(1)(3)(i). The AAO 
reaches this conclusion by noting a number of inconsistencies in the record regarding the actual ownership 
and control of the U.S. entity. The petitioner has also submitted conflicting evidence regarding the ownership, 
control and continued existence of the beneficiary's foreign employer. 
.. . 
. . 
As a preliminary matter, however, the AAO notes that the majority of the evidence submitted to establish the 
ownership and control of the-beneficiary's foreign employer, the petitioner's claimed parent company, and the 
ongoing business operations of both companies was submitted in the original Portuguese without 
accompanying certified English translations. Because the petitioner failed to submit the required certified 
translations of the documents, the AAO cannot determine whether the evidence supports the petitioner's 
claims. See 8 C.F.R. tj 103.2(b)(3). Accordingly, the evidence is not probative and need not be accorded any 
weight in this proceeding. 
The regulation and case .law confirm that ownership and control are thi factors that must be examined in 
determining whether a quali&ing 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 of Siemens Medical Systems, Inc., 19 I&N ~ec.'362.(~IA 1986); ~attir of Hughes, 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 
of Church Scientology Internatiocal, 19 I&N Dec. at 595. 
' . 
. . 
As noted by the director, the petitioner submitted inconsistent evidence regarding its ownership and control 
by initially referring to the beneficiary as the "owner" and submitting a Swoin statement from him indicating 
that he was the sole member and manager of the limited liability company at the time of filing. Although the 
petitioner subsequently submitted an operating agreement identifying the claimed parent company as a 
member with a majority interest in the U.S. company, the AAO notes that this document alone is insufficient 
to establish that the petitioner is a subsidiary of the claimed parentcompany. Furthermore, the petitioner did 
not file its amended articles of organization identifying the foreign entity as a member until one week after the 
director denied the petition. 
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 (BIA 1988). Counsel's assertion that the petitioner 
previously believed it was prohibited by law from naming a foreign shareholder on its corporate 
documentation does not qualify as independent and objective evidence. 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 of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Furthermore, evidence that the petitioner creates after CIS points out the deficiencies and inconsistencies in 
the petition will not be considered independent and objective evidence. Necessarily, independent and 
SRC 04 104 50477 
Page 8 I 
1 
objective evidence would be evidence that is contemporaneous with the event to be proven and existent at the 
time of the director's notice. 
The record is devoid of any secondary evidence to establish that the foreign entity actually 'has an ownership 
interest in the petitioning company. The record does not contain the petitioner's membership certificates, or 
any evidence that funds have been transferred to the U.S. entie in exchange for the foreign entity's 
membership interest. The foreign entity's director's unsupported statement that he invests in the U.S. 
company by transferring money directly to the beneficiary through an unrelated third company is simply 
insufficient to establish that the claimed parent company has provided any funds to the petitioner. At a 
minimum, the petitioner would need to show monies transferred to thk third company from its corporate 
account, copies of the actual, wire transfers, and evidence that the beneficiary subsequently transferred the 
money to the petitioner's corporate account prior to the filing of the petition. Going on record without 
supporting documentary evidence 'is not sufficient for purposes of meeting the burden :of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Cornrn. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg, Comm. 1972)). The petitioner has not established that it is a subsidiary of 
Ocean Pro Esportes Ltda. 
 I. .. . . 
Regardless, even if the petltioner had established that it is a subs~d~ary of the 
beneficiary's last forelgn employer was a separate  company^^^ 
nd the petitioner must therefore submit evidence that it has a qualifying relationship w~th this 
' company. 
As noted above, the petitioner initially stated that the company that employed the beneficiary from January 
. . , ..- ,~. . 
1999 through May 2002 was later acquired by 
 The petitioner submitted 
untranslated documents that were purportedly intended to establish that the beneficia 's employer had been 
acquired by as a declaration from the holder and officer 
perational activities and employees had been "incorporated into the 
new company." 
On appeal, counsel asserts that both companies continue to exist and are essentially the same company, 
owned by the same individual. Neither counsel nor the 
 etitioner rovides an explanation for, or even 
acknowledges, the petitioner's previous statements that mlquired the beneficiary's 
foreign employer prior to the filing of the petition. Furthermore, the'untranslated supporting evidence 
submitted on appeal contradicts counsel's claims that the two foreign entities share common ownership and 
control. The most recent corporate document provlded for m- 
, dated December 1, 2003, indicates the ownership of the company as follows: 
- 47,500 quotas; 
1 quota. The articles of 
the ownership of the company as follows 
 - 9,900 quotas; and 
- 100 quotas. Based on the documentation submitted, the majonty owner of the bene lcla 
last foreign employer has no ownership Interest in 
f 
Althoughd 
s a shareholder of both companieshrent ownership interest in the 
beneficiary's last foreign employer. The petltioner has not submitted evidence to substantlate its new claim 
SRC 04 104 50477 
Page 9 
that the foreign entities are, in fact, affiliates, nor has it provided an explanation for its previous claim that the 
petitioner's claimed parent company was a successor-in-interest to the beneficiaj's foreign employer. 
A few errors or minor discrepancies are not reason to question the credibility of an alien or an employer 
seeking immigration benefits. see, e.g., Spencer Enterprises Inc. v. US., ,345 F.3d 683, 694 (9th Cir., 2003). 
However, anytime a petition includes numerous errors and discrepancies, and the petitioner fails to resolve 
those errors and discrepancies after CIS provides an opportunity to do so, those inconsistencies will raise 
serious concerns about the veracity of the.petitionerls assertions. Doubt cast on any aspect of the petitioner's 
proof may undermine 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). In this case, the discrepancies and errors 
catalogued above lead the AAO to conclude that the evidence of the petitioner and beneficiary's eligibility is 
not credible. 
 . . 
Pursuant to the foregoing discussion, the petitioner has not established that the U.S. entity and the 
beneficiary's foreign employer have a qualifying relationship. For this reason, the appeal will be dismissed. 
The second issue in this matter is whether the petitioner established that the beneficiary had at least one 
continuous year of full time employment abroad with a qualifying organization within the three years 
preceding the filing of the petition, as required by 8 C.F.R. 5 214.2(1)(3)(iii). 
The petitioner has submitted evidence that the beneficiary was employed b 
for one year within the three years preceding the.5 
is no evidence that this foreign company is a qualifying organization as defined at 8 
C.F.R. $ 214.2(1)(l)(ii)(G). For this additional reason the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not established that the beneficiary was employed in a 
primarily managerial or executive capacity abroad. See 8 C.F.R. !j 214.2(1)(3)(iv). Although the beneficiary is 
described as an "international market consultant manager," the petitioner did not describe duties performed by 
the beneficiary in a managerial. or executive capacity.   he job description provided includes many 
operational duties such as as "satisfying the requisites of Brazilian customsheath department agencies," 
"marketing the product," "international market consulting and administrative matters," and "locating : . . 
international manufacturers and distributors." Furthermore, the organizational chart submitted for the foreign 
entity shows the beneficiary's title as "new business development/buyer" with no subordinates, and no other 
marketing or purchasing staff employed within the organization. The evidence in the record suggests that the 
beneficiary primarily performed marketing, consulting and purchasing duties while employed by the foreign 
entity. An employee who "primarily" performs the tasks necessary to produce a product or to provide services 
is not considered to be "primarily" employed in a managerial or executive capacity. See sections 
101(a)(44)(A) and (B) of the ~ct (requiring that one "primarily" perform the enumerated managerial or 
executive duties); see also Matter of Church Scientology Int'l., 19 I&N'D~C. 593, 604 (Comm. 1988). For 
this additional reason, the petition will be denied. 
Another issue not addressed by the director is whether the intended United States operation, within one year 
of the approval of the petition, will support an executive or managerial position as required by 8 C.F.R. 
5 214.2(1)(3)(v)(C). The petitioner indicated that the U.S. company intends to hire only one employee, a 
SRC 04 104 50477 
Page 10 
"clerical person" during the first year of operations, while the beneficiary will supervise the document 
preparation activities' performed by the clerical employee, draft freight forwardiig documents, address 
customer service issues, and "conduct all .research, U.S. purchasing, exportation to Brazil, contract 
negotiation, contract formation." Based on the limited description by the petitioner, the beneficiary, 
despite his responsibility for overseeing the U.S. office, will perform primarily non-qualifying duties 
associated with the petitioner's purchasing, sales, marketing and customer service functions at the end of the 
first year of operations. The actual' duties themselves reveal the true nature of the employment. Fedin Bros. 
Co., Ltd. v. Sava, 724 F; Supp.'l 103, 1108 (E.D.N.Y. 1989), ayd, 905 F.2d 41 (2d. Cir. 1990). In addition, 
the petitioner did not fully describe the proposed nature of the office, the scope of the entity or its financial 
goals, or disclose the size of the United States investment and the financial ability of the .foreign entity, to 
remunerate the beneficiary and commence doing business in the united States. See 8 C.F.R. 5 
214.2(1)(3)(v)(B) and (C). This evidence submitted does not demonstrate a realistic expectation that the 
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, 
where there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
For this additional reason, the petition will be denied. 
Finally, the record does not establish that the petitioner has secured sufficient physical premises to house. the 
new office, as required by 8 C.F:R. 8 214.2(1)(3)(v)(A). At the time of filing, the petitioner indicated the 
beneficiary's residential apartment as its "temporary address." The petitioner did not sign a commercial lease 
until March 15, 2004, several weeks after the.petition was filed: The petitioner must establish eligibility at 
the time of filing the nonimmigrant visa petition. A visa petition may not be approved at a future,date after 
the petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 
I&N Dec. 248 .(Reg. Comm. 1978). Furthermore, the petitioner has not described its 'anticipated space 
requirements for its export and consulting business. and the lease in question does not specify the amount or 
type of space secured. Based on the insufficiency of the information furnished, it cannot be concluded that 
the petitioner had secured sufficient space to house the new office at the time the petition was filed. For this 
additional reason, the petition will be denied. . . 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer ~nter~rises, 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). 
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. 5 1361. 
ORDER: The appeal is dismissed.