dismissed L-1A Case: Transportation

prevent clearly vnwa 
in~d~a~ of wrsonal fiwp 
U.S. Department of Homeland Secttrity 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 03 106 5 1658 Office: TEXAS SERVICE CENTER Date: JUL 2 7 2006 
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. 3 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
/L~obert P. Wiemann, Chief 
I 
 Administrative Appeals Office 
SRC 03 106 51658 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petition- claims to be a subsidiary of Truck Port Services, C.A. located 
in Venezuela. The 'United States entity was incorporated in the State of Florida on April 26, 1999 and is 
engaged in the business ot transportation of general freight. Accordingly, the United States entity 
petitioned CIS to classify the beneficiary as a nonimmigrant intracompany transferee (L-1A) pursuant to 
section lOI(a)(lS)(E) of the Act as an executive or manager for three years. The petitioner seeks to 
continue to employ the beneficiary as the U.S. entity's president and general manager. 
The director denied the petition based on the conclusion that that the petitioner had not submitted 
sufficient evidence to demonstrate that: (1) the beneficiary is acting primarily in a managerial or 
executive capacity; or (2) the United States entity is doing business on a continuous and systematic basis. 
On appeal, the petitioner states that the beneficiary is employed in a senior-level position for the United 
States company and will supervise independent contractors. In addition, petitioner states that the United 
States company generated a gross income of $94,118.00 per year and thus has the capacity to support the 
beneficiary in a managerial or executive position. 
To establish elngibility 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 subsid~ary 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, includng 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 himlher to perform the 
SRC 03 106 51658 
Page 3 
intended services in the United States; however, the work in the United States 
need not be the same work which the alien performed abroad. 
The first issue to be addressed in this proceeding is whether the petitioner has established that the 
beneficiary's employment with the United States entity has been and will continue to be primarily 
managerial or executive in nature. 
Section 101 (a)(44)(A) of the Act, 8 U.S.C. $ 1 101 (a)(44)(A), provides: 
The term "managerial capacity" means 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 
subQvision 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 with the organizational hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or funchon 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. 
In addition, section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1 101 (a)(44)(B), provides: 
The term "executive capacity" means an assignment withn an organization in which the employee 
primarily- 
(i) 
 directs the management of the organization or a major component or hction 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. 
I 
YRC 03 106 5 1658 
Page 4 
On the Form 1-129, the petitioner stated that the company had one employee and described the 
beneficiary's United States duties as: "run the business." On March 12, 2003, the director requested 
additional evidence pertaining to the beneficiary's position and the duties performed. The director 
specifically requested: 
Please establish the beneficiary is acting primarily in an executive/managerial capacity. 
You indicate he is the only employee. Who performs the daily functions of the business? 
Submit copies of Form 1099 if applicable. 
In response to the director's request for additional evidence, the petitioner submitted the beneficiary's IRS 
Form 1099, Miscellaneous Income statement for 2002, and two 1099 pay statements issued to the 
petitioner by "STD Enterprises, Inc." 
The director denied the petition on March 27,2003 on the ground that the petitioner did not establish that 
the beneficiary will be employed in a primarily managerial or executive capacity. The director also 
suggested that the beneficiary is called upon to perform many duties associated with running a business 
that are not managerial or executive since the company has only employed the beneficiary. 
On appeal, the petitioner asserts: 
The fact that [the beneficiary] will not directly manage subordinates is not a reason to say he 
is not in managerial or executive capacity position, he is in a senior level position (President 
and General Manager) in the U.S. organization responsible for expanding, organizing, 
directing, developing the capabilities of the company. 
The petitioner's assertions are not persuasive. On review, the record as presently constituted is not 
persuasive in demonstrating that the beneficiary has been or will be employed in a primarily managerial 
or executive position. 
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. 3 214.2(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 in either 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). 
The petitioner has not provided a comprehensive description of the beneficiary's job duties. 
 The 
beneficiary's position description is too general and broad to establish that the preponderance of his duties 
is managerial or executive in nature. The beneficiary's job description is limited to the petitioner's 
statements that the beneficiary will "run the business" and be responsible for "expandmg, organizing, 
directing, and developing the capabilities of the company." Reciting the beneficiary's vague job 
responsibilitres or broadly-cast business objectives is not sufficient; the regulations require a detailed 
SRC 03 106 51658 
Page 5 
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 his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), afjd, 905 F.2d 41 (2d. Cir. 1990). 
In addition, on appeal, the petitioner states that most of the drivers are independent contractors and for 
that reason the petitioner did not indicate more employees on the 1-129 petition. Although counsel states 
on appeal that the petitioner has contractual employees as drivers, the petitioner has neither presented 
evidence to document the existence of these employees nor identified the services these individuals 
provide. Additionally, the petitioner failed to explain how the services of the contracted employees 
obviate the need for the beneficiary to primarily conduct the petitioner's business. Without documentary 
evidence to support its statements, the petitioner does not meet its burden of proof in these proceedings. 
Matter of SofJici, 22 I&N Dec. 158, 165 (Cornm. 1998)(citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm. 1932)). 
Furthermore, as noted above, the director specifically requested that the petitioner explain who was 
performing the daily functions of the business and submit evidence of payments to independent 
contractors, if applicable. In response, the petitioner submitted a single Form 1099 issued to the 
beneficiary, and declined to identify who performs the day-to-day operational tasks of the business. Now, 
on appeal, the petitioner requests that the AAO consider the petitioner's employment of independent 
contractors. The petitioner was put on notice of required evldence and given a reasonable opportunity to 
provide it for the record. Again, 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). 
Finally, even if the petitioner does utilize the services of independently contracted truck drivers, the 
record does not reflect that the employees are professional, maintain supervisory positions, work on a 
full-time basis, or that they take direction from the beneficiary in performing their duties. There is no 
evidence of formal agreements or contracts entered into by the petitioner that explains the usage of 
outside sources. The petitioner has failed to submit job descriptions or duties performed by the 
independent contractors. There is no evidence on record to show that the claimed independent contractors 
would engage in the day-to-day operations of the business or that they would relieve the beneficiary from 
performing other routine, non-qualifying tasks associated with the business' daily marketing, sales, 
administrative, clerical and financial functions. 
Furthermore, the petitioner did not submit the evidence requested by the director to establish that the 
beneficiary will be employed in a managerial or executive capacity. 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). 
On appeal, the petitioner asserts that although the beneficiary does not directly supervise any employees, 
his position as president and general manager is a senior-level position and is of managerial or executive 
capacity. 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. $ llOl(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 
SRCO3 10651658 
Page 6 
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)(iii). 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 (Comrn. 1988)). In this matter, the 
petitioner has not provided evidence that the beneficiary manages an essential function. 
Based upon evidence submitted, it appears that the beneficiary has been and will be performing the 
services of the U.S. entity rather than performing primarily managerial or executive duties as its president 
and general manager. 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 Int 'l., 19 I&N Dec. 593, 604 
(Comm. 1988). The petitioner has not demonstrated that the beneficiary will be functioning at a senior 
level within an organizational hierarchy other than in position title. Accordingly, the petitioner has failed 
to demonstrate that the beneficiary has been or will be employed primarily in a qualifying managerial or 
executive capacity. For this reason, the appeal will be dismissed. 
The second issue in this proceeding is whether the United States entity is doing business as defined in the 
regulations. 
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; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one 
other country directly or through a parent, branch, affiliate, or 
subsidiary for the duration of the alien's stay in the United States as 
an intracompany transferee; and 
(3) 
 Otherwise meets the requirements of section 10 1(a)(15)(L) of the 
Act. 
The regulations at 8 C.F.R. 3 214.2(1)(l)(ii)(H) state: 
SRC 03 106 51658 
Page 7 
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. 
In support of its initial claim that the United States entity has been doing business, the petitioner 
submitted: copies of the company's JRS Form 1120, U.S. Corporate Income Tax Return for 2001 and 
2002; certificate of registration, articles of incorporation, occupational license; lease agreement; company 
stock certificate; bank statements; and financial statements. In response to the director's request for 
additional evidence, the petitioner submitted copies of three invoices, dated January 3,2003, February 9, 
2003, and February 26,2003, respectively. 
The director denied the petition determining that the petitioner had not submitted sufficient evidence to 
establish that the US. entity was doing business, in that it continuously and systematically engaged in the 
provision of goods and services. 
On appeal, the petitioner asserts that the United States entity engages in the transportation of general 
freight, the rent purchase and sale of vehicles for the transportation of freight, and other activities related 
to the transportation of freight business. 
On review, the evidence submitted is insufficient to establish that the US. entity has been or is engaged in 
the regular, systematic, and continuous provision of goods and/or servlces as a qualifying organ~zation. 
The petitioner's compliance wlth inquires made by the director in the request for additional evidence is 
marginal, at best. The petitioner was given ample opportunity to produce the required initial evidence and 
other business records to substantiate ~ts claim of doing business as a viable entity in the Unlted States. 
The three invoices submitted by the petitioner did not demonstrate that the U.S. entity was doing 
business; rather this evidence demonstrated that the business purchased supplies in January and February 
of 2003 for a total of less than $600.00. The non-existence or unavailability of required evidence creates 
a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(1). Furthermore, the Form 1120 gross receipts and 
sales figure in the amount of $94,118.00 for 2002, is not substantiated by any independent documentary 
evidence in the record. The record as presently constituted is not persuasive in demonstrating that the 
U.S. entity, at the time of filing the petition, was doing business. For this reason, the appeal will be 
dismissed. 
In addition, the petitioner submitted several bank statements from a bank account under the name of the 
beneficiary. The bank statements are not under the petitioner's name, and the financial transactions 
appears to be of personal nature rather then financial transactions of the business. 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 of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Beyond the decision of the director, the petitioner has not submitted sufficient evidence to establish the 
existence of a qualifying relationship between the United States and foreign entities pursuant to 8 C.F.R. 
242(l)()(ii)(G). 
 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 
' SRC03 10651658 
Page 8 
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the 
total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage 
ownership and its effect on corporate control. Additionally, a petitioning company must disclose all 
agreements relating to the voting of shares, the distribution of profit, the management and direction of the 
subsidiary, and any other factor affecting actual control of the entity. See Matter of Siemens Medical 
Systems, Inc., 19 I&N Dec. 362 (BIA 1986). Without full disclosure of all relevant documents, CIS is 
unable to determine the elements of ownership and control. 
The petitioner claims to be a who1 
 and submitted a stock 
certificate, number one, stating th 
 shares. However, the 
petitioner's IRS Forms 1120, U.S. C&poration Income Tax Return, for 2001 and 2002 indicate at 
Schedule E that the beneficiary owns 100 percent of the company's common stock. 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 of Ho, 19 I&N Dec. 582 at 591-92. For this 
additiona1 reason, the petition cannot be approved. 
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, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afyd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting 
that the AAO reviews appeals on a de novo basis). 
The visa 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. 9 1361. Here, that 
burden has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.