dismissed L-1A Case: Stained Glass

U.S. Department of Ftomeland Security 
20 Mass. Ave. N.W. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1101 (a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any firther inquiry must be made to that office. 
2" -?' -- --- - -7--- 
ROMP. Wiemann, Director 
Administrat~ve Appeals Office 
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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 seeks to employ the beneficiary temporarily in the United States as an L-1A nonimmigrant 
inbacompany transferee pursuant to section lOl(a)(lS)(L) of the Imrmgration and Nationality Act (the Act), 8 
U.S.C. 4 1101(a)(15)(L). The U.S. petitioner, a limited liability company organized in the State of Florida 
that is described as a stained glass and glass frosting business, seeks to employ the beneficiary as its 
roduction manager. The petitioner claims that it is the affiliate of 
P 
located in Lincolnshire, United Kingdom. 
The director denied the petition, determining that the petitioner had failed to establish that (I) the petitioner 
and the organization which employed the beneficiary in the United Kingdom were qualifying organizations; 
or (2) the beneficiary had been employed in a managerial or executive capacity while abroad. 
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 submits a brief which 
seeks to clarify the petitioner's relationship with the foreign entiv' and the beneficiary's position while 
employed abroad. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section lOl(a)(lSXL) 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 ~nited(~tates 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. lj 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. 
(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 
SRC 04 109 50069 
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services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
(v) 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 oflice 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, within one year of the approval of the 
petition, wiIl support an executive or managerial position as defined in 
paragraphs (lXl)(ii)(B) or (C) of ths section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its fmancial 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 primary issue in the present matter is whether the petitioner and the foreign organization are qualified 
organizations as defined by 8 C.F.R. 5 214.2(1)(l)(ii)(G). The regulation defines the term "qualifying 
organization" as a United States or foreign firm, corporation, or other legal entity whch: 
(I) 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; 
(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 subsidary for the duration of the alien's stay in the United 
States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 10 1 (a)(lS)(L) of the Act. 
Additionally, the regulation at 8 C.F.R. 5 214.2(1)(l)(ii) provides: 
SRC 04 109 50069 
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(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 &e 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, less than half of the entity, but in fact controls 
the entity. 
(L) ''Affiliate" means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity, or 
(3) In the case of a partnership that is organized in the United States to provide 
accounting services along with managerial and/or consulting services and that 
markets its accounting services under an internationally recognized name under 
an agreement with a worldwide coordinating organization that is owned and 
controlled by the member accounting firms, a partnership (or similar 
organization) that is organized outside the United States to provide accounting 
services shall be considered to be an affiliate of the United States partnership if 
it markets its accounting services under the same internationally recognized 
name under the agreement with the worldwide coordinating organization of 
which the United States partnership is also a member. 
In this case, the petitioner claims that the Britis tity are affiliates. Specifically, the 
petitioner asserts that a common owner, namely, wns a fifty percent interest in each 
company and that these interests thereby satisfy 
The director found that the initial evidence submitted with the petition to be insufficient to qualify the 
petitioner for the benefit sought and issued a request for evidence on March 12, 2004. In the request, the 
director specifically required the petitioner to submit evidence that definitively established its qualifying 
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relationship with the British company.' On March 22, 2004, the petitioner submitted a detailed response to 
the director's request which was accompanied by numerous corporate documents for the U.S. and Bntish 
companies, as well as additional documentary evidence in support of the claimed affiliation. Additionally, 
counsel for the petitioner submitted a copy of the petitioner's franchise agreement with stained Glass Overlay 
as further evidence of the qualifying relationship between the parties. 
Upon review of the evidence submitted, the director concluded that the owners of record of both the U.S. and 
British entities did not own the same share or proportion of both entities as required by the regulations. 
Additionally, the director concluded that the petitioner's claim of affiliation with the foreign entity was 
invalid due to its misplaced reliance on the franchise agreement with Stained Glass Overlay. As a result, the 
petition was denied on April 3, 2004. 
The petitioner appealed the decision, asserting that the director's decision erroneously focused on the 
franchise agreement and ownership of the franchisor and disregarded the 
and the foreign entity. Specifically, counsel asserts that by way of the 4 ownership of fifty percent of both the petitioner and the foreign entity, the 
foreign entity meets the definition of affiliate. In support of this contention, counsel for the petitioner 
provides a detailed discussion of the ownership interests of both the U.S. and foreign entities. 
Upon review, the petitioner has established that the U.S. and foreign entities are qualifying organizations as 
defined by 8 C.F.R. 9 214.2(1)(l)(ii)(G). 
Specifically, the statute requires that the beneficiary come to the United States to "render services to the same 
employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive." Section 
203(b)(l)(C) of the Act. Critical to its claimed eligibility, the petitioner asserts that the U.S. corporation is an 
affiliate of, based on the similar ownership interests of one individual out of the two 
distinct groups of owners. 
The regulation and case law confinn 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 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. Maller 
of Church Scientology, 19 I&N Dec. at 595. 
Furthermore, the critical regulation at 8 C.F.R. fj 2 14.2(1)(l)(ii)(L) states in pertinent part: 
1 
The request for evidence also required the petitioner to submit additional evidence with regard to the current 
financial status of the U.S. entity as well as evidence that the Bntish entity was doing business as required by 
the regulations. Since the director did not base his denial on these issues, there is no need for the MO to 
address them in its review of this matter. 
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Asliafe 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 owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
According to the evidence submitted, the U.S. and foreign entities were not owned in the majority by any one 
person and were not owned in their entirety by the exact same persons. Specifically, the ownership interests 
set forth by counsel are as follows: 
It is evident based on the evidence provided to corroborate'the ownership interests that 
owns fifty percent of both the U.S. petitioner and the foreigo entity. He does not own 
either entity, nor does he share ownership with the same group of individuals. However, his ownership 
interest in each of the companies is clearly established in the record. 
Consequently, the crucial element to examine in this rnafter is his control of each entity. The evidence clearly 
establishes that the beneficiary is a 50% owner of the U.S. entity and a 50% owner of the foreign entity. 
Control may be "de jure" by reason of ownership of 51 percent of outstanding stocks of the other entity or it 
may be "de facto" by reason of control of voting shares through partial ownership and possession of proxy 
votes. Matter of Hughes, 18 I&N Dec. 289 (Cornm. 1982). In this matter, it is evident that the beneficiary has 
de facto control over both entities. Fifty percent ownership is sufficient to prevent action by the petitioner 
through the exercise of the beneficiary's veto power. See Matter of Siemens Medical Systems, Inc., 19 I & N 
Dec. 362 (BJA 1986). Therefore, absent any indication that the beneficiary's 50% control of either company 
is undermined in any way, he would have per se control. Id. In this case, the AAO finds that the evidence in 
the record is sufficient to establish that the entities are affiliates and thus are qualifying organizations per the 
definition at 8 C.F.R. 8 214.2(1)(1)(ii)(L)(I). Thus, the director's decision with regard to this issue is hereby 
withdrawn. 
The AAO notes that the director bases part of the decision on the ownership status of the franchisor in the 
United States. The issue in this matter, however, is the ownership of the foreign entity for whom the 
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beneficiary has been employed as well as the ownership of the U.S. p$titioner. The fact that the petitioner and 
the foreign entity both choose to enter into franchise agreements is ieelevant for purposes of this analysis, as 
counsel correctly asserts on appeal. The key c$lestion is whether thke is common ownership and control of 
the petitioner and the foreign entity, which as discussed above has been established in this matter. 
Accordingly, the director's misapplied analysis of the role of franchises will be withdrawn and will not be 
considered further. 
The second issue in this matter is whether the beneficiary was employed abroad in a capacity that was 
primarily managerial or executive as required by 8 C.F.R. 4 214.2(1)(3)(iv). 
In this case, the director found that the petitioner had not established that the beneficiary had been employed 
in a primarily managerial or executive capacity. In a letter dated February 27,2004, the petitioner alleges that 
the beneficiary has been employed by the foreign entity as a deliveries manager since August 1999. 
According to the petitioner, his duties included unloading incoming trailers, sorting and tracking parcels, and 
overall responsibility for the night operations, computer operations, and the organization of delivery loads to 
ensure accurate and timely deliveries. The petitioner also submitted a resume for the beneficiary, which 
broke down his employment with the foreign entity as follows: 
Aug 99 to February 2000. Night Loader. [Rlesponsible for unloading incoming trailers, 
sorting and tracking parcels to their correct location. 
Feb 2000 to October 2001. Night Manager. Responsible for entire night operation with team 
of three loaders. Also responsible for computer operation and [organization] of loads. 
Qualifies NVQ Supervisor level 2 including First Aid, Health and Safety, Business 
Management. 
Oct 2001 to Present. Area Driver Manager. Responsible for delivery and collections to 
Peterborough City Centre. Sorti,ng up to 120 deliveries including computer tracking and 
route sheet preparation. Carrying out the deliveries to strict time schedules in busy city 
centre of Peterborough followed by radio requested collection and collections tiom reguiar 
customers. This is the most active and difficult delivery area in the depots area and requires 
very careful planning and concentration to achieve the company's 99% delivery standard. 
The director found this initial evidence to be insufficient to establish that the beneficiary had been employed 
abroad in a primarily managerial or executive capacity. Consequently, in a request for evidence issued on 
March 12, 2004, further information regarding the beneficiary's employment abroad was requested. In a 
response dated March 22, 2004, the petitioner submitted additional evidence in support of the claimed 
managerial andlor executive employment, including a personnel chart. The personnel chart identified the 
beneficiary as one of two "Operations and Warehouse Managers," who oversaw a Computer Systems 
Manager and a Night Supervisor. In addition, a payroll summary for March 2004 indicated that the 
beneficiary received weekly wages in the amount of £227.97. 
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The director denied the petition on April 3, 2004, finding that the petitioner had failed to demonstrate that the 
beneficiary had been employed abroad for a least one of the previous three years in a capacity that was 
primarily managerial or executive. Upon review of the record, the AAO concurs with the director's decision. 
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. Here, the petitioner fails to document what proportion of the beneficiary's duties would be 
managerial functions and what proportion would be non-managerial. The petitioner lists the beneficiary's 
duties as including both managerial and administrative or operational tasks, but fails to quantify the time the 
beneficiary spends on them. This failure of documentation is important because several of the beneficiary's 
daily tasks, such as "sorting deliveries" and "unloading trailers" do not fall directly under traditional 
managerial duties as defined in the statute. For this reason, the AAO cannot determine whether the 
beneficiary is primarily performing the duties of a function manager. See lKEA US, lnc. v. US. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
The actual duties themselves reveal the true nature of the employment. Fedin Bras. Co.. Ltd. v. Suva, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In this case, the majority of the 
beneficiary's tasks involve first-hand participation in warehouse operations and route deliveries. These duties 
are essential to the ongoing success of the foreign entity's business and incorporate the crucial daily services 
provided by the foreign entity to its customers. An employee who primarily performs the tasks necessary to 
produce a product or to provide services is not considered to be employed in a managerial or executive 
capacity. Matter ofchurch Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Furthermore, the petitioner seems to rely on the beneficiary's managerial title as the basis for claiming that he 
has been employed abroad in such a capacity. However, the evidence contained in the record does not 
support this contention. A managerial or executive employee must have authority over day-to-day operations 
beyond the level normally vested in a first-line supervisor, unless the supemsed employees are professionals. 
See Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). In this case, although 
the petitioner claims that the beneficiary's is a warehouse and operations supervisor, he is not overseeing 
professional employees and furthermore is not refraining from engaging in the standard warehouse 
operations. 
Finally, the AAO notes that, although an excerpt of a payroll record has been submitted for March 2004, no 
additional evidence verifying the beneficiary's employment with the foreign entity has been submitted. The 
regulations require the petitioner to show that the beneficiary has been employed for one continuous year out 
of the previous three years in a capacity that was primarily managerial or executive. No documentation 
verifying his employment or establishing the capacity in which it claims he was employed has been 
submitted. 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 (Comm. 1998) 
(citing Matter of Treasure Craji of California, 14 I&N Dec. 1 90 (Reg. Comm. 1972)). 
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In conclusion, the AAO finds that the beneficiary was not employed in a primarily managerial or executive 
capacity with the foreign entity as required by 8 C.F.R. 4 214.2(1)(3)(iv). For this reason, the petition may not 
be approved. 
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. tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.