dismissed L-1A Case: Semiconductor Research

i-fying data deleted to 
pwetit clearly unwarran(ed 
hayion ofpersonal pnvacj 
U.S. Department af Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PUBLIC COPY fi 
identifying data deleted to 
prevent clearly unwamntec 
kiv'iuion of persad pnvaq 
File: EAC 05 215 52544 Office: VERMONT SERVICE CENTER Date: 
IN RE: Petitioner: 
Beneficiary: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. tj 1 101(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. 
Qobert P. Wiemann, Chief 
/ Administrative Appeals Office 
EAC 05 215 52544 
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 ths nonimmigrant petition seelung to employ the beneficiary in the position of researcher 
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. 9 1101(a)(15)(L). The petitioner, a Virgnia corporation, states that it is 
engaged in research and development. The petitioner claims to be an affiliate of 
located in Korea. The petitioner seeks to employ the beneficiary for a period of one 
in the United States. 
The director denied the petition, concluding that the petitioner did not establish the following three 
requirements: (1) that the beneficiary has been employed in a managerial or executive capacity by the 
foreign entity; (2) that the petitioner failed to demonstrate that the intended United States operation, within 
one year of the approval of the petition, will support an executive or managerial position; and, (3) that a 
qualifying relationship exists between the foreign company and the United States entity. 
On appeal, counsel for the petitioner asserts that the foreign company and the United States company are 
affiliates since the same three individuals have "an almost equal share of ownership of the [U.S. company] 
who also have equal interest in [the foreign company]." Counsel for the petitioner further states that the 
beneficiary served as a chief executive with the foreign company and "chief executives do indeed provide 
leadership, having a support staff, and having a role in establishing the company's goals in collaboration with 
other executives." Finally, counsel for the petitioner asserts that the beneficiary will hold a managerial 
position since he will supervise other employees and will manage an essential function of the U.S. 
organization. Counsel for the petitioner submits a brief and documentation in support of the appeal. 
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria. 
Specifically, within three years preceding the beneficiary's application for admission into the United 
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary for one continuous year. Furthermore, 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. fj 214.2(1)(3) further 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. 
EAC 05 215 52544 
- 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. 
In addition, the regulation at 8 C.F.R. tj 214.2(1)(3)(~) states 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 or managerial authority over the new operation; 
and 
(C) The intended United States operation, withn one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) or (C) 
of this section, supported by information regarding: 
(1) 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 the United 
States; and 
(3) The organizational structure of the foreign entity. 
The first issue to be addressed in this proceeding is whether the petitioner has established that the 
beneficiary has been employed in a primarily managerial or executive capacity by the foreign entity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment withn an organization in which the employee 
primarily- 
(i) 
 manages the organization, or a department, subdivision, function, or component of the 
organization; 
EAC 05 215 52544 
Page 4 
(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 withn 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. 9 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment with 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 hnction; 
(iii) 
 exercises wide latitude in discretionary decision-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, the 
board of directors, or stockholders of the organization. 
The instant petition was filed on July 29. 2005. In s'upport of the petition, the petitioner submitted a 
"Certificate of Employment" dated May 30, 2005, from the foreign company stating that the beneficiary 
commenced his employment with the foreign company on March 2, 2004 and is presently employed. In 
addition, the certificate stated that the beneficiary is employed in the position of chief executive officer in the 
technology research and development department. On Form 1-129, the petitioner indicated that the 
beneficiary has been responsible for the following duties: "Develop semiconductor; PR Stripper; Thinner, 
Rework Solution as a director of technology." 
In addition, the petitioner submitted the beneficiary's resume. On the resume, the beneficiary stated that he 
held the position of Director of Technology, Research and Development. The beneficiary described on his 
resume his duties for the foreign entity to include the following: 
Developing semiconductor & LCD materials: PR-Stripper, Thinner, Rework 
solution. 
EAC 05 215 52544 
Page 5 
Developing bump materials: Negative & Positive Bump PR, Negative & Positive 
Bump PR-Stripper, Positive bump developer, Electro plating solution. 
Consulting Electro-chemical division of Korea POLYOL Co.: Customer Audit, 
Quality system, Process control, Facility Design, Semiconductor Process, etc. 
Developing monitoring system: PR, Metallic contaminants. 
Developing new CMP parts. 
On August 8, 2005, the director determined that the petitioner did not submit sufficient evidence to process 
the petition. The director requested that the petitioner submit additional evidence in support of its petition. 
Specifically, the director requested: 1) a description of the typical managerial responsibilities that are 
performed by the beneficiary abroad; 2) documentary evidence of the managerial decisions made by the 
beneficiary on behalf of the foreign organization; 3) a list of the foreign employees that are supervised by the 
beneficiary, including their positions, a description of their job duties, educational level and experience 
requirements for the position; and, 4) an organizational chart for the overseas office, including the 
beneficiary's current position. 
In a response to the director's request, dated August 30, 2005, the petitioner submitted a tax clearance 
certificate for the beneficiary; a certificate of income for the beneficiary indicating that he was employed by 
the president of the foreign company; and a letter fiom the senior 
., the beneficiary's employer fiom December 1995 until February 
2004. The petitioner did not submit any of the documentation requested by the director. 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). 
The petitioner submitted a letter from the president of the foreign company dated August 15, 2005, that 
stated the following: 
[The beneficiary] has provided leadership in several projects including; the development 
of semiconductor and LCD materials, developing bump material and CMP parts, 
consultation with the Electro-chemical division of Korea POLYOL Co. 
The director denied the petition on September 8, 2005 on the ground that the petitioner did not establish 
that the beneficiary has been employed in a primarily managerial or executive capacity with the foreign 
company. The director referenced the foreign entity's statement that the beneficiary had provided 
leadership in several projects, but found insufficient evidence that he actually supervised others in 
producing the company's products. The director determined that the petitioner had failed to establish that 
the beneficiary supervised managerial, professional or supervisory employees, or that he managed a 
function of the foreign entity. 
The petitioner filed the instant appeal on September 22, 2005 and submitted the supporting brief on 
October 17, 2005. On appeal, counsel for the petitioner asserts that the beneficiary held the position of 
chief executive officer for the foreign company and thus was a top executive. Counsel then cites the U.S. 
Department of Labor's Occupational Outlook Handbook for top executives and states that "chief 
executives do indeed provide leadership, having a support staff, and having a role in establishing the 
EAC 05 21 5 52544 
- Page 6 
company's goals in collaboration with other executives." Counsel for the petitioner further states that the 
petitioner submitted a business profile of the foreign company with the original petition that addresses the 
business structure of the foreign company. 
Counsel's assertions are not persuasive. 
 Upon review, the petitioner has not established that the 
beneficiary has been employed by the foreign entity 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. 5 214.2(1)(3)(iii). 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states 
vague duties such as the beneficiary "has provided leadership in several projects including; the 
development of semiconductor and LCD materials, developing bump material and CMP parts, 
consultation with the Electro-chemical division of Korea POLYOL Co." The petitioner did not, however, 
define the petitioner's goals and policies, or clarify the role of the operational and personnel functions that 
the beneficiary will supervise. 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 has failed to provide any detail or explanation of the beneficiary's 
activities in the course of her daily routine. The actual duties themselves will reveal the true nature of the 
employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 
(2d. Cir. 1990). The petitioner's descriptions of the beneficiary's position do not identify the actual duties 
to be performed, such that they could be classified as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary is responsible for 
"developing semiconductor & LCD materials: PR-Stripper, Thinner, Rework solution," "developing bump 
materials: Negative & Positive Bump PR, Negative & Positive Bump PR-Stripper, Positive bump developer, 
Electro plating solution," "developing monitoring system: PR, Metallic contaminants," and "developing new 
CMP parts." It appears that the beneficiary will be providing the services of the business rather then 
directing such activities through subordinate employees. An employee who "primarily" performs the 
tasks necessary to produce a product or provide a service is not considered to be "primarily" employed in 
a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology International, 19 I & N Dec. 593,604 (Comm. 1988). 
As noted above, in the request for evidence the director requested that the petitioner submit a definitive 
statement describing the foreign employment of the beneficiary. The petitioner failed to submit this 
document in its response. This evidence is critical as it would have established if the beneficiary held a 
position of managerial or executive capacity by the foreign company. The purpose of the request for 
evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been 
established. 8 C.F.R. 9 103.2(b)(8). The 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). In the instant matter, 
the petitioner did not submit a detailed job description of the duties performed by the beneficiary at the 
foreign company and thus AAO cannot determine if the beneficiary was employed by the foreign entity in 
a managerial or executive capacity. Going on record without supporting documentary evidence is not 
EAC 05 215 52544 
Page 7 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. 
Comm. 1972)). 
On appeal, counsel for the petitioner asserts that the petitioner submitted a business profile of the foreign 
company which included an organizational chart. Upon review of the organizational chart, the top two 
positions are illegible and do not appear to identify the employees by name. It appears that the foreign 
company is divided into two departments: the research and development group and consulting group. The 
chart does not indicate job titles and does not specifically indicate the beneficiary's position with the 
foreign company. Although the petitioner claims that the beneficiary supervised managers or supervisors, 
the petitioner did not submit any documentation as to what positions the beneficiary supervised and 
whether these employees are actually hired by the company. Although the petitioner submitted an 
organizational chart, the petitioner did not identify these employees by name and job titles. 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 (Cornm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In addition, in the "Certificate of Employment" the foreign company indicated that the beneficiary was 
the chief executive officer in the technology research and development department. However, on the 
beneficiary's resume and in the letter submitted by the president of the foreign company in response to 
the director's request for evidence, the beneficiary's position is stated as director of technology research 
and development. 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). Furthermore, in reviewing the brief job description of the 
beneficiary, it does not appear that the scope of his duties expand to that of a chief executive officer of a 
company. 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 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Furthermore, in reviewing the "Certificate of Employment" submitted by the foreign company, the AAO 
questions the authenticity of this document. It appears that the date of appointment and the date in which 
the certificate was issued were placed on the form with transparent tape. It is possible that the tape with 
the dates was placed on the form after signature. 
 In addition, the certificate was created by the 
beneficiary himself. 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 of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
Based upon the petitioner's failure to submit the requested comprehensive job description, and the lack of 
evidence of the foreign company's staffing levels, it cannot be concluded that the beneficiary has been 
employed by the foreign entity in a managerial or executive capacity. For this reason, the appeal will be 
dismissed. 
EAC 05 21 5 52544 
Page 8 
The second issue in this proceeding is whether the petitioner has demonstrated that the intended U.S. 
operation, within one year of the approval of the petition, will support an executive or managerial 
position. 
When a new business is established and commences operations, the regulations recognize that a 
designated manager or executive responsible for setting up operations will be engaged in a variety of 
activities not normally performed by employees at the executive or managerial level and that often the full 
range of managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant 
classification during the first year of operations, the regulations require the petitioner to disclose the 
business plans and the size of the United States investment, and thereby establish that the proposed 
enterprise will support an executive or managerial position within one year of the approval of the petition. 
See 8 C.F.R. 9 214.2(1)(3)(v)(C). This evidence should 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 
qualifling duties. 
In addition, if a petition indicates that a beneficiary is coming to the United States to open a "new office," 
it must show that it is ready to commence doing business immediately upon approval. At the time of 
filing the petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired 
sufficient physical premises to commence business, that it has the financial ability to commence doing 
business in the United States, and that it will support the beneficiary in a managerial or executive position 
within one year of approval. See generally, 8 C.F.R. 8 214.2(1)(3)(~). If approved, the beneficiary is 
granted a one-year period of stay to open the "new office." 8 C.F.R. $ 214.2(1)(7)(i)(A)(3). At the end of 
the one-year period, when the petitioner seeks an extension of the "new office" petition, the regulation at 
8 C.F.R. 3 214.2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business "for 
the previous year" through the regular, systematic, and continuous provision of goods or services. See 8 
C.F.R. 5 2 14.2(1)(l)(ii)(H) (defining the term "doing business"). The mere presence of an agent or office 
of the qualifying organization will not suffice. Id. 
The petitioner indicated on Form 1-129 that the beneficiary will be employed in the position of researcher and 
his proposed duties will be "research, marketing, development of semiconductors." 
On August 8, 2005, the director determined that the petitioner did not submit sufficient evidence to process 
the petition. The director requested that the petitioner submit additional evidence in support of its petition. 
Specifically, the director requested: 1) a complete position description for all of the proposed employees in 
the United States, including the beneficiary's position; 2) evidence demonstrating that the beneficiary, within 
one year, will be relieved from performing the non-managerial, day-to-day operations involved in producing 
a product of providing a service; and 3) an organizational chart for the proposed office in the United States. 
In response, the petitioner submitted a letter dated August 16, 2005 from the chief executive officer of the 
United States company. The petitioner indicated that the beneficiary's proposed duties in the U.S. entity 
would be the following: 
EAC 05 215 52544 
Page 9 
[The beneficiary] currently serves at [sic] the Director of Technology R & D at [the foreign 
company]. We wish for [the beneficiary] to serve in a similar capacity with regard to a joint 
venture between [the foreign company] and [the U.S. company]. [The beneficiary's] 
specific duties will include: 
Overseeing the Research Department 
Research and development of semiconductor materials 
Research and development of electronic materials 
Consultation with prospective investors. 
This is a managerial position requiring that [the beneficiary] oversee the department, 
supervising three (prospective) employees participating in the creation of the 
semiconductors. 
The director denied the petition on September 8, 2005 on the ground that insufficient evidence was 
submitted to demonstrate that the beneficiary would be employed in a primarily executive or managerial 
capacity by the U.S. company. The director noted that it appeared that the beneficiary "would be 
involved in the daily duties of research and development" and it is not evident that he will hold a position 
of managerial or executive capacity. 
On appeal, counsel for the petitioner cites from the Occupational Outlook Handbook for the position of 
"Engineering and Natural Science Managers" and states "simply because [the beneficiary] is participating 
in the research does not preclude him from being in a managerial and executive position." In addition, 
counsel states that the beneficiary will be supervising employees and will manage an essential function of 
the organization since he will manage the essential research department. Counsel states, "overseeing the 
Research Department is indeed overseeing 'a major component of the organization'." 
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not 
established that the beneficiary would be employed in a 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 duties to be performed by the beneficiary and indicate whether such 
duties are either in an executive or managerial capacity. Id. 
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). 
Based on the current record, the AAO is unable to determine whether the claimed managerial duties 
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non- 
managerial, administrative, or operational duties. An employee who "primarily" performs the tasks 
necessary to produce a product or provide a service is not considered to be "primarily" employed in a 
EAC 05 215 52544 
Page 10 
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one 
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church 
Scientology International, 19 I & N Dec. at 604. 
On review, the petitioner provided a vague and nonspecific description of the beneficiary's duties that 
fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the petitioner states 
vague duties such as the beneficiary will be responsible for "overseeing the research department." The 
petitioner did not, however, define the petitioner's goals and policies, or clarify the role of the research 
department and the subordinates in the department that the beneficiary will supervise. 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 has failed to 
provide any detail or explanation of the beneficiary's activities in the course of her daily routine. The 
actual duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 
F. Supp. at 1108. The petitioner's descriptions of the beneficiary's position do not identify the actual 
duties to be performed, such that they could be classified as managerial or executive in nature. 
The job description also includes several non-qualifying duties such as the beneficiary will be responsible 
for the "research and development of semiconductor materials," the "research and development of electronic 
materials," and "consultation with prospective investors." It appears that the beneficiary will be developing 
and marketing the services of the business rather then directing such activities through subordinate 
employees. 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 Act (requiring that one "primarily" perform the enumerated 
managerial or executive duties); see also Matter of Church Scientology Intn 1, 19 I&N Dec. at 604. 
As noted above, in the request for evidence, the director requested that the petitioner submit a complete 
description of the duties the beneficiary will perform and a job description for all the proposed position in 
the United States company, and an organizational chart of the U.S. entity. The petitioner failed to submit 
this documentation in its response. This evidence is critical as it would have established if the beneficiary 
will hold a position of managerial or executive capacity by the United States company. The purpose of 
the request for evidence is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established. 8 C.F.R. tj 103.2(b)(8). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. tj 103.2(b)(14). In 
the instant matter, the petitioner did not submit a detailed job description of the duties to be performed by 
the beneficiary at the U.S. company and thus AAO cannot determine if the beneficiary will be employed 
in a managerial or executive capacity. 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. at 165. 
In addition, although the petitioner claims that the U.S. entity will hire three employees, the petitioner did 
not submit the job titles or job descriptions for the prospective employees, or a timeline for hiring the 
additional personnel. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. at 165. 
EAC 05 215 52544 
Page 11 
Based on the vague job description submitted with the petition, and considering the petitioner's failure to 
document the employment of employees the beneficiary will supervise, the director reasonably concluded 
that the petitioner has failed to demonstrate that the beneficiary would be primarily performing 
managerial or executive duties in his proposed position. 
On appeal, counsel for the petitioner asserts that the beneficiary will manage an essential function of the 
U.S. 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 an "essential 
function" within the organization. See section 101(a)(44)(A)(ii) of the Act, 8 U.S.C. 5 1 101 (a)(44)(A)(ii). 
The term "essential function" is not defined by statute or regulation. If a petitioner claims that the 
beneficiary is managing an essential function, the petitioner must furnish a written job offer that clearly 
describes the duties to be performed in managing the essential function, i.e. identify the function with 
specificity, articulate the essential nature of the function, and establish the proportion of the beneficiary's 
daily duties attributed to managing the essential function. See 8 C.F.R. 214.2(1)(3)(ii). In addition, the 
petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary manages the 
function rather than performs the duties related 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. Boyang, Ltd. v. I.N.S., 67 F.3d 305 (Table), 1995 WL 576839 (9th Cir, 
1995)(citing Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988)). In this 
matter, the petitioner has not provided evidence that the beneficiary manages an essential function. 
Beyond the required description of the job duties, CIS reviews the totality of the record when examining 
the claimed managerial or executive capacity of a beneficiary, including the petitioner's organizational 
structure, the duties of the beneficiary's subordinate employees, the presence of other employees to 
relieve the beneficiary from performing operations duties, the nature of the petitioner's business, and any 
other factors that will contribute to a complete understanding of a beneficiary's actual duties and role in a 
business. In the case of a function manager, where no subordinates are directly supervised, these other 
factors may include the beneficiary's position with in the organizational hierarchy, the depth of the 
petitioner's operations, the indirect supervising of employees within the scope of the function managed, 
and the value of the budgets, products, or services that the beneficiary manages. 
As discussed above, the beneficiary's job description is too vague to establish that he would perform 
primarily managerial or executive duties, and appears to include non-qualifying duties associated with the 
petitioner's day-to-day functions. The petitioner has not provided evidence that it will employ any other 
employees, subordinate to the beneficiary, who would relieve the beneficiary from performing routine 
duties inherent to operating the business. The fact that the beneficiary has been given a managerial job 
title and general oversight authority over the business is insufficient to elevate his position to that of a 
"function manager" as contemplated by the governing statute and regulations. Based on the foregoing 
discussion, the petitioner has not established the beneficiary will be employed in the U.S. in a managerial 
or executive capacity. 
Furthermore, as contemplated by the regulations, a comprehensive business plan should contain, at a 
minimum, a description of the business, its products and/or services, and its objectives. See Matter of Ho, 
22 I&N Dec. 206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory 
EAC 05 215 52544 
Page 12 
requirements for the alien entrepreneur immigrant visa classification, Matter of Ho is instructive as to the 
contents of an acceptable business plan: 
The plan should contain a market analysis, including the names of competing businesses 
and their relative strengths and weaknesses, a comparison of the competition's products 
and pricing structures, and a description of the target marketlprospective customers of the 
new commercial enterprise. The plan should list the required permits and licenses 
obtained. If applicable, it should describe the manufacturing or production process, the 
materials required, and the supply sources. The plan should detail any contracts executed 
for the supply of materials and/or the distribution of products. It should discuss the 
marketing strategy of the business, including pricing, advertising, and servicing. The plan 
should set forth the business's organizational structure and its personnel's experience. It 
should explain the business's staffing requirements and contain a timetable for hiring, as 
well as job descriptions for all positions. It should contain sales, cost, and income 
projections and detail the bases therefore. Most importantly, the business plan must be 
credible. 
Id. 
The petitioner submitted a two-page "investment brief' fo 
 f Korea, but no business plan 
for the new U.S. company. Without a business plan, it is 
 that the U.S. company 
will support a managerial or executive position within one year. 
 Again, 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. at 165. 
Upon review, the petitioner has not submitted sufficient evidence to establish that the intended United 
States operations, within one year of approval, will support an executive or managerial position. For this 
additional reason, the appeal will be dismissed. 
The third issue in this proceeding is whether a qualifying relationship exists between the foreign company 
and the United States entity. 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 is 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)(15)(L) of the Act; 8 C.F.R. tj 2 14.2(1). 
The regulations at 8 C.F.R. $ 214.2(1)(l)(ii)(G) state: 
QualzJLing 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 (l)(l)(ii) of this section; 
EAC 05 21 5 52544 
Page 13 
(2) 
 Is or will be doing business (engagng 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. 
The regulations at 8 C.F.R. 9 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods and/or 
services by a qualifying organization and does not include the mere presence of an agent 
or office of the qualifying organization in the United States and abroad. 
The petitioner claims to be an affiliate of the beneficiary's foreign employer, 
 In 
support of this claim, the petitioner submitted: (1) a Certificate of Registration Corporation 
located in Korea; (2) a Certificate of Registration Corporation for 
claimed foreign employer; (3) the petitioner's certificate of incorporation 
that the company is authorized to issue 1,000 common shares; (4) 
articles of amendment changin 
 the petitioning corporation in March 29, 2005; and, (5) a 
joint venture agreement betwee 
 of Korea an 
None of the submitted documents identified the 
 foreign 
employer or the petitioning U.S. company. 
On August 8, 2005, the director requested that the petitioner submit additional evidence to establish a 
qualifying relationship between the foreign organization and the United States company. Specifically, the 
director requested: 1) evidence of ownership of the stocks for the United States company; 2) a copy of the 
stock ledger for the United States entity, which shows all of the stock transactions since its incorporation; 
3) copies of all stock certificates issued for the U.S. company; 4) documentary evidence establishing all 
stocks/shares ownership and control of the foreign entity, including the number of shares of stock issued 
by the foreign entity and the individuals to whom they have been issued; and 5) copies of all stock 
certificates issued for the foreign company. 
In response, the petitioner re-submitted the Articles of Incorporation for the United States company 
indicating that the U.S. entity had 1,000 shares of common stock. In addition, the petitioner re-submitted 
the certificate of Registration Corporation for of Korea" indicating that the total number of 
outstanding shares of the foreign company is 6,300,000, however, the document does not name the 
owners of the shares of the foreign company. The petitioner failed to submit the requested stock 
certificates and stock ledger for the U.S. entity, nor did it submit any documentation to establish the 
The director denied the petition on September 8, 2005 on the ground that the petitioner submitted 
insufficient evidence to establish an existing qualifying relationship between the foreign company and the 
EAC 05 215 52544 
Page 14 
United States company. The director noted that the petitioner did not submit the evidence requested by 
the director and thus the director was unable to determine the ownership or control of either the foreign 
company or the United States company. 
On appeal, counsel for the petitioner asserts that the foreign company and the United States company are 
affiliates since "three individuals have an almost equal share of the ownership of the company who also 
have equal interest in [the foreign company]." On appeal, the petitioner submits stock certificates number 
one through three for the U.S. company, a copy of the transfer ledger for the U.S. company and a copy of 
the minutes of the organization meeting for the U.S. company. The regulation states that the petitioner 
shall submit additional evidence as the director, in his or her discretion, may deem necessary. The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the time the petition is filed. See 8 C.F.R. $9 103.2(b)(8) and 
(12). The 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). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have 
submitted the documents in response to the director's request for evidence. Id. Under the circumstances, 
the AAO need not and does not consider the sufficiency of the evidence submitted on appeal. 
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 of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter 
of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Furthermore, the petitioner indicated that the United States 
 affiliate of Polaris-Five Korea, 
however, the petitioner submitted documentation related to 
 a different company located in 
Korea, rather than It is incumbent to resolve any inconsistencies 
in the record by in 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 59 1-92. 
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 of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter 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 International, 19 I&N Dec. at 
595. 
EAC 05 215 52544 
Page 15 
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., supra. 
Without full disclosure of all relevant documents, CIS is unable to determine the elements of ownership 
and control. 
On appeal, the petitioner acknowledges the specific deficiency noted by the director, yet still fails to 
provide evidence that the foreign entity and the United States company are owned by the same group of 
individuals. The petitioner has failed to submit any documentation to establish the owners of the foreign 
company. 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. at 165. The non- 
existence or other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 
6 103.2(b)(2)(i). 
Finally, counsel asserts that the previously submitted "joint venture agreement establishes tha 
and 
 are contractually obligated to work together to develop, manufacture, and market 
semiconductor equipment." 
 Counsel's assertion is not persuasive, as the petitioning company is not 
named as a party to the joint venture. The evidence of record does not demonstrate any common 
ownership and control between the Korean company known as WinPac, Inc. and the petitioner, which has 
the same name. The petitioner has not submitted evidence on appeal to overcome the director's 
determination on this issue. Accordingly, the appeal will be dismissed. 
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. fj 1361. Here, that 
burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.