dismissed L-1A Case: Ship Management And Marine Services

(b)(6)
DATE: MAY 0 81014 
INRE: Petitioner: 
Beneficiary: 
Office: VERMONT SERVICE CENTER 
U.S. Department ofHomcland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) 
ON BEHALF OF 
PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, .. 
d -Ron Rosenberg 
r Chief, Administrative Appeals Office 
www .uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on. appeal. The AAO will dismiss the appeal. 
The petitioner filed this Form I-129, Petition for a Nonimmigrant Worker, seeking to classify the beneficiary 
as ~n L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(L). The petitioner, a New York corporation established in 
October 2007, states that it engages in "ship management and marine services." The petitioner claims to be 
an affiliate of Ltd., located in Canada.
1 
The petitioner seeks to employ the 
· beneficiary as its vice president for a period of one year. 
The director denied the petition concluding that the petitioner failed to establish that it has a qualifying 
relationship with a foreign entity. 
The petitioner subsequently filed an appeal. The director declined to treat the' appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that it has a 
qualifying relationship with a foreign entity and that it has submitted sufficient evidence to establish an 
affiliate relationship. Counsel for the petitioner submits additional evidence in support of the appeal. 
I. THE LAW 
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 se~k to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form I-129 shall be 
accompanied by: 
(i) Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (1)(1)(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. 
1 On the Form 1-129, Supplement L, the petititoner lists the beneficiary's foreign employer in Canada as 
Ltd." However, all of the evidence in the record in reference to the foreign entitv. including the 
beneficiary's pay stubs, job duties, and organizational chart, refer to the foreign entity in Canada as Ltd. 
The company name of " Ltd." does not appear anywhere else in the record. The record 
also does not include any indication that " Ltd." and Ltd. are the same 
company or are otherwise affiliated. 
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NON-PRECEDENT DECISION 
(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 him/her to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
II. ISSUE ON APPEAL 
The sole issue addressed by the director is whether the petitioner has established that the United States and 
foreign entities are qualifying organizations. To establish a "qualifying relationship" under the Act and the 
regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer 
are the same employer (i.e. one entity with "branch" offices) , or related as a "parent and subsidiary" or as 
"affiliates." See generally section 101(a)(15)(L) of the Act; 8C.F.R. § 214.2(1). 
The pertinent regulations at 8 C .P.R. § 214.2(1)(1)(ii) define the term "qualifyingorganization" and related 
terms as follows: 
(G) Qualifying organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (1)(1)(ii) of this section; 
(2) Is ·. or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country 
directly or through a parent , branch , affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
* * * 
(I) · Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operating division or office of the · same organization housed in a 
different location. 
(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 o~ the entity and controls the entity; or owns, directly or 
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indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity;· or owns, directly or indirectly, less than half of the entity, but in fact · 
· controls the entity. 
(L) Affiliate means 
(/) One .of two subsidiaries both of which are owned and controlled by the 
same parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the 
same share or proportion of each entity. 
The petitioner stated on the Form 1-129 that it is an affiliate of Ltd., located in 
Canada. Where asked to explain the company stock ownership and managerial control of each company, the 
petitioner stated "[the petitioner] (U.S. company) is affiliated with the company in Canada ([the foreign 
entity])." 
In support of the petition, the petitioner submitted a letter describing its qualifying relationship between the 
foreign entity and the U.S. company as follows: "Our US Company is affiliated with the company in Canada. 
Therefore, the Canadian and US Companies clearly 
satisfy the corporation [sic] relationship requirement for 
the purpose of issuance of an L-1A Visa." 
The petitioner submitted its IRS Form 1120, U.S. Corporation Income Tax Return, for 2011. The 2011 Form 
1120 at Schedule K, which includes questions related to the petitioner's ownership and control, is marked "no" at 
Question 7 which asks, "[a]t any time during the tax year, did one foreign person own, directly or indirectly, at 
least 25% of (a) the total voting power of all classes of the corporation's stock entitled to vote or (b) the total value 
of all classes of the corporation's stock?" 
The petitioner also submitted its bank statements from and specifically highlighted three 
transactions labeled as "wire from Ltd": (1) on September 12, 2012, a transfer credit of 
$34,982.00; (2) on August 13, 2012, a transfer credit of $9,982.00; and (3) on August 16, 2012, a transfer 
credit of $19,982.00. 
The director issued a request for additional evidence ("RFE") on February 15, 2013, instructing the petitioner 
to submit additional evidence of a qualifying affiliate relationship with the foreign entity. Specifically, the 
director requested evidence of ownership and control of the foreign and U.S. entities. 
In response to the RFE, the petitioner submitted a letter from President of the foreign 
and U.S. entities. The president's letter d<?scribed the qualifying relationship as follows: 
The relationship of Ltd based in Mississauga, Canada, and [the petitioner] 
based in New York United States is that the owner owns 60% of 
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NON-PRECEDENT DECISION 
shares in the Canadian company and 50% shares of the US company. Therefore , 
has majority ownership of both Companies. 
The owners of Ltd based in Mississauga[ ,] Canada are 
-President who owns sixty percentage [sic] of shares and [the beneficiary]- Vice President 
who owns twenty percentage [sic] of shares and -Secretary Treasurer 
who owns twenty percentage [sic] of shares each. 
The owners of [the petitioner] based in the United States are 
President who owns fifty percentag~ [sic] of shares and fthe beneficiary] - Vice President 
who owns twenty five percentage [sic] of shares and - Secretary 
Treasurer who owns twenty five percentage [sic] of shares each. 
The petitioner submitted a document titled, "Stock Subscription," dated October 26, 2007, and signed by 
and the beneficiary, stating the following about its 
subscription of shares: 
The undersigned hereby subscribed for 
beneficiary] as to 2 1/2 shares, [and] 
as to 5 shares, [the 
as to 2 1/2 shares common shares 
of [the petitioner]. 
par value per share and offers as the aggregate consideration therefor [sic] 
The petitioner also submitted three share certificates indicating that its shares are distributed as follows: 
• Certificate number one, dated October 26, 2007, issued to 
five shares. 
for 
• Certificate number two, dated October 26, 2007, issued to the beneficiary, for two and 
one half shares. 
• Certificate number three, dated October 26, 2007, issued to , for 
two and one half shares. 
The petitioner submitted the foreign entity's articles of incorporation listing 
, and the beneficiary as directors of the foreign entity. The articles of incorporation 
state: "The Corporation is authorized to issue an unlimited number of shares of one class designated as 
common shares and an unlimited number of shares of a second class designated as special shares." The 
articles of incorporation further state that the holder of each Class "A" special share shall have the right to two 
votes and the holder of each common share has the right to one vote. 
The petitioner submitted an undated, unsigned, and otherwise unidentified document that shows "page 4" at 
the top right corner indicating that it is one of at least four pages in some unidentified document referring to 
the foreign entity. The single-page submitted states Ltd." at the top left corner and states the 
following about "issued common shares": 
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NON-PRECEDENT DECISION 
Pursuant to their subscriptions therefor, 100 Common shares of the capital stock of the . 
Corporation were issued to the following persons in the numbers and at the price per share 
shown below: 
Subscription of 
[The Beneficiary] 
No. of Shares . 
60 
20 
20 
Cert. No. 
C-1 
C-2 
C-3 
$Per Share 
$1.00 
$1.00 
$1.00 
If it has not already been done, the shareholders should deposit into the bank account of the 
Corporation the sum of $100.00 representing the purchase price of the said 100 Common 
shares issued by the Corporation. 
The director denied the petition on June 11, 2013, concluding that the petitioner failed to establish that it had 
a qualifying relationship with a foreign entity, noting the inconsistencies contained in the record. In denying 
the petition, the director found that the petitioner submitted insufficient evidence to establish the ownership 
and control of the foreign entity. The director found that, although the petitioner submitted an incomplete 
document listing the owners of the foreign entity, without evidence that the single page submitted is part of a 
binding document on the entity, it has no reliability and weight to establish ownership and control of 
Ltd. Additionally, the director recognized the petitioner's share certificates and found that the 
petitioner's 2011 IRS Form 1120 contradicts the information found on the share certificates as it states "no" in 
response to Question 7 of Schedule K, in reference to foreign ownership of the petitioner. 
On appeal, counsel for the petitioner contends that "[t]he petitioner provided stock certificates and corporate 
documents clearly showing common group of owners of both the foreign entity and the US Petitioner." 
Counsel further contends that the director listed ownership percentiles in her decision proving common 
ownership and the "request for even more corporate documents to prove ownership is unwarranted and 
excessive." Courisel then states that 
that "the Petitioner has submitted additional documents proving 
corporate relationship including Jetter 
from the President and the US Companies, 
Articles of Incorporation for 
the foreign/Canadian company showing in last page (7) majority ownership, as well as share certificates and 
ledger for the US company." 
In support of the appeal, the petitioner submits a new copy of its amended tax return for 2011 complete with 
the preparer's signature, who according to the petitioner's organizational chart, appears to 
be the "certified prof. accountant" for the petitioner (a subordinate to the beneficiary). T~e preparer signed 
the amended returns on July 3, 2013, which is 22 days after the denial of the petition. In Part II of the Form 
1120X, where asked for an explanation of changes, it states: "Response to item #7 of page 4 Form 1120 was 
inadvertently marked 'No' the correct response is 'Yes'; Form 5472 has been filed here with to address the 
correction." The petitioner does not submit a new copy of its amended Schedule K, but does submit a copy of 
the Form 5472, Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation 
Engaged in a U.S. Trade or Business. The Form 5472 lists the beneficiary and " ," but 
does not list 
(b)(6)
NON-PRECEDENTDECISION 
Page 7 
Upon review, the AAO concurs with the director's determination that the petitioner failed to establish that it 
has a qualifying relationship with a foreign entity. 
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 Medic;al 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 ~o direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
While it ap{>ears that the petitioner claims an affiliate relationship between the U.S. and foreign entities based 
on 's ownership of majority stock of the U.S. company and the foreign entity, the 
petitioner has failed to submit probative documentary evidence of the ownership or control of either entity. 
Here, the petitioner attempts to demonstrate the foreign entity's ownership with a single-page of an 
unidentified document showing page four at the top right comer. On appeal, counsel states that this is page 
seven, the last page, of the foreign entity's Articles of Incorporation. However, the last and final page of the 
foreign entity's Articles of Incorporation, which is six pages long, is the signature page. The single-page of 
the unidentified document that counsel is referring to clearly shows "page 4" on the top right corner, and is 
not in the same font or format of the Articles of Incorporation. The validity of this document remains unclear 
without any additional information; the petitioner was afforded an opportunity to provide this additional 
information on appeal and failed to do so. Furthermore, the foreign entity's Articles of Incorporation state 
that it is authorized to issue an unlimited number of common shares granting a single vote and an unlimited 
number of special shares granting two votes per share. Without any clear indication of the shares actually 
issued by the foreign entity, the AAO cannot determine who has clear ownership and control of the foreign 
entity. 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). It is incumbent upon the petitioner to resoive any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not 
suffice unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of 
Ho, 19 I&N Dec. at 591-92. 
As it relates to the U.S. company, the petitioner only submitted copies of three stock certificates and its 2011 
IRS Form 1120. The petitioner f!liled to submit the U.S. company's Articles of Incorporation or other binding 
documents to show the total number of shares it is authorized to i!;)sue or a stock ledger to show the total 
number of shares it has issued. When advised of the inconsistency in the Form 1120, the petitioner attempted 
to overcome it on appeal by submitting a copy of its amended return reflecting a different answer at Question 
7 of Schedule K as well as a new Form 5472. Assuming that the response was a "typo," as claimed by 
counsel on appeal, and the int~ntion was to answer "yes" to question 7 of Schedule K, a Form 5472 would 
have been attached to the Form 1120 and submitted to the IRS at the time of initial filing. Additionally, the 
Form 54.72 submitted on appeal, does not reflect 's ownership of 50% of the U.S. 
company's shares, which is the basis for the affiliate relationship with the foreign entity. Although the 
petitioner provided a copy of amended tax return on appeal; it does not offer any evidence to show that the 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
amended return was actually filed with the IRS or received and accepted by the IRS. Like a delayed birth 
certificate, the amended tax returns submitted multiple years after the claimed transaction raise serious 
questions regarding the truth of the facts asserted. Cf Matter of Bueno, 21 I&N Dec. 1029, 1033 (BIA 1997); 
Matter of Ma, 20 I&N Dec. 394 (BIA 1991) (discussing the evidentiary weight accorded to delayed birth 
certificates in immigrant visa proceedings). 
Furthermore, counsel, the petitioner, and the person who prepared the tax return failed to submit an 
explanation as to how it managed to file a tax return without noticing the claimed error. 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 ofObaigbena, 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). 
The petitioner is obligated to clarify the inconsistent and conflicting testimony by independent and objective 
evidence. Matter of Ho, 19 I&N Dec. at 591-92. Simply asserting that the response to Question 7 of 
Schedule K was a "typo" does not qualify as independent and objective evidence. Furthermore, evidence that 
the petitioner creates after users points out the deficiencies and inconsistencies in the petition will not be 
considered independent and objective evidence. Necessarily, 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. 
Given the deficiencies and inconsistencies detailed above, the evidence on record does not support the 
petitioner's claim that it has an affiliate relationship with a foreign entity. As such, the petitioner has not met 
its burden to establish that the U.S. and foreign entities have a qualifying relationship. Accordingly, the 
appeal will be dismissed. 
III. MANAGERIAL OR EXECUTIVE CAP A CITY 
Beyond the decision of the director, the AAO finds that the record is not persuasive in demonstrating that the 
beneficiary will be employed in the United States in a managerial or executive capacity as defined at section 
101(a)(44) of the Act. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
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NON-PRECEDENT DECISION 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day-to-day operations of the activity or function for 
which the employee has authority. A first-line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) directs the management of the organization or a major component or function of the 
organization; 
(ii) establishes the goals and policies of the organization, component, or function; 
(iii) exercises wide latitude in discretionary decision-making; and 
(iv) receives only general supervision or direction from higher-level executives, the board 
of directors, or stockholders of the organization. 
In support of the petition, the petitioner submitted a letter describing the beneficiary's proposed duties as 
fu~~= . 
We now seek to temporarily transfer [the beneficiary] to the United States m this 
executive/managerial capacity so that he may help expand our US operations. 
In this executive/managerial capacity [the beneficiary] will conduct operational and financial 
planning and management for our US operations. He will be directly responsible for 
implementing our expansion and business plans, as well as for managing and hiring personnel 
. . . . Furthermore, he will establish and maintain contact with our VIP clients and manage 
implementation of our projected sales and business milestones of the US Company. 
This will include review sales targets as well as control of adherence to corporate marketing 
and sales policies and promotional programs. Furthermore, he will review logistical, 
operational and financial reports and performance sheets, as well as project schedules to 
ensure smooth operations of our enterprise. His duties will also encompass review of service 
policies with the US-based clients or vendors and control of the agreed terms of service. 
Additionally, he will also be in charge of budgetary and financial control and planning and 
will be the executive point of contact with the Canada Company to ensure our locations 
adherence to agreed global "smart business sens.e" policies. 
[The beneficiary] will also manage monthly financial statements, operational expenses 
overview and analysis (including budget-allocated and unforeseen) and preparation of 
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financial and budget reports. He will work to identify areas where operational cost and waste 
can be reduced and will ensure that all hired employees meet the set corporate standards. 
Furthermore, he will manage employee evaluation, as well as evaluate, modify, and maintain 
promotion of best in-house employee practices to encourage employee growth and loyalty to 
our organiz~tion, reduce staff turnover, and creation of positive and productive environment. 
The petitioner submitted an organizational chart for the U.S. company depicting the beneficiary as "vice 
president," directly under the president, According to the chart, the beneficiary 
directly supervises the "ship management department" consisting of manager, and 
supervisor, who supervises eight named "boarding officers." The beneficiary also directly 
supervises secretary/treasurer, who supervises human 
resources/admin. supervises "accounts" to include certified prof. accountant and 
herself as general accountant. The petitioner also submitted copies of its employees' degrees and certificates. 
The petitioner submitted a copy of its IRS Form 941, Employer's Quarterly Federal Tax Return, for the third 
quarter of 2012, indicating that it had eight employees the first month, nine employees the second month, and 
11 employees the third month of the quarter, which included the ship management department manager and 
supervisor, all eight named boarding officers, and 
Upon review, the director requested that the petitioner submit a more specific description of the beneficiary's 
duties, identifying the percentage of time required to perform the duties of the managerial or executive 
position. 
In response to the RFE, the petitioner submitted a letter stating that the beneficiary will spend 90% of his time 
on "managerial duties (supervision of subordinates and management of functions) and 10% of the time on 
non-managerial administrative functions" at the U.S. company. The petitioner further stated that the 
beneficiary will have "full executive/managerial authority to make executive/managerial decisions, supervise 
staff, hire/fire/promote staff, and direct operations of the company." The petitioner failed to provide the 
requested breakdown detailing the amount of time the beneficiary allocates to specific duties. 
The petitioner also provided a brief description of the beneficiary's proposed duties at the U.S. company as 
follows: 
In this executive/managerial capacity as Vice President, [the beneficiary] will conduct 
operational and financial planning and management for our US operations. He will be 
directly responsible for implementing our expansion and business plans, as well as for 
managing and hiring personnel[.] Furthermore, he will establish and maintain contact with 
our core clients [sic] base as well as explore new business opportunities in United States and 
manage implementation of our projected sales and business milestones of the US Company. 
* * * 
In addition, Vice President [beneficiary] will review sales 'targets as well as control of 
adherence to corporate marketing and sales polici~s and promotional programs. Furthermore, 
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he will review logistical, operational and financial reports and performance sheets, as well as 
project schedules to ensure smooth operations of our enterprise. His duties will also 
encompass review of service policies with the US-based clients or vendors and control of the 
agreed terms of service. Additionally, he will also be in charge of budgetary and financial 
control and planning and will be the executive point of contact with the Canada Company to 
ensure our locations adherence to agreed global "smart business sense" policies. 
[The beneficiary) will also manage monthly financial statements, operational expenses 
overview and analysis (including budget-allocated and unforeseen) and preparation of 
financial and budget reports. He will work to identify areas where operational cost and waste 
can be reduced a_nd will ensure that all hired employees meet the set corporate standards. 
Furthermore, he will manage employee evaluation, as well as evaluate, modify, and maintain 
promotion of best in-house employee practices to encourage employee growth and loyalty to 
our organization, reduce staff turnover, and creation of positive and productive environment. 
The petitioner further described the beneficiary's staffin the United States as follows: 
In US Office, [the beneficiary] will supervise the entire Ship Management Department, with a 
total of 10 employees. There are two employees that are subordinate supervisors under Vice 
President [beneficiary]. 
Directly under Vice President [beneficiary] is Manager 
of the Ship Management Department, [sic] The second subordinate under Vice President 
[beneficiary) is , Supervisor of the Ship Management Department. The other 
8 employees in the Shipping Management Department who [sic] are under the supervision of 
Vice President [beneficiary). 
The petitioner also submitted very brief job descriptions for manager of the ship management 
department, and a list of job duties for , supervisor of the ship management department. The 
petitioner included a list of identical job duties for each of the eight boarding officers subordinate to the 
supervisor of the ship management department. 
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. The list of job duties provided for the beneficiary's claimed subordinates 
does not illustrate that they will relive him from performing non-managerial administrative duties such that he 
will only devote 10% of his time to such duties, as stated in response to the RFE. Although specifically 
requested by the director, the petitioner's description of the beneficiary's job duties does not establish what 
proportion of the beneficiary's duties is managerial in nature, and what proportion is actually non-managerial. 
See Republic of Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). This failure of documentation is 
important because several ofthe beneficiary's listed duties, such as "establish and maintain contact with core 
client base," "explore new business opportunities in the [U.S.]," and "manage implementation of projected 
sales and business milestones," do not fall directly under traditional managerial duties as defined in the 
statute. 
(b)(6)
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Page 12 
Furthermore, given the vague description of the beneficiary's duties at the U.S. company provided by the 
petitioner, the AAO cannot determine what the beneficiary actually be doing on a daily basis. The petitioner 
did not include any additional details or specific tasks related to each listed duty, nor did the petitioner 
indicate how such duties · qualify as managerial or executive in nature. Specifics are clearly an important 
indication of whether a beneficiary's duties are primarily executive or managerial in nature, otherwise meeting 
the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has sustained 
its burden of proving that his duties are "primarily" managerial or executive. See sections 101(a)(44)(A) and 
(B) of the Act. Any 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). 
While the AAO does not doubt that the beneficiary will exercise discretionary authority over the U.S. 
company as its partial owner, the petitioner has not provided sufficient information detailing the beneficiary's 
proposed duties at the U.S. co~pany to demonstrate that these duties qualify him a~ a manager or executive. 
Absent a detailed breakdown of the amount of time the beneficiary spends on each of the listed job duties, and 
absent a consistent description of the petitioner's organizational structure, the petitioner has not established 
that the beneficiary will be employed in a managerial or executive capacity at the U.S. company. For this 
additional reason, the petition cannot be approved. 
The AAO maintains discretionary authority to review each appeal on a de novo basis. The AAO's de novo 
authority has been long recognized by the federal courts. See, e.g. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). 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 Enterprises v. United States, 229 F. Supp. 2d 1025,1043 (E.D. Cal. 2001), affd 345 F. 
3d 683 (91h Cir. 2003). 
IV. CONCLUSION 
The petition will be denied and the appeal dismissed 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 entirelywith the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.