dismissed L-1A Case: Travel And Tourism

data Meted to 
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inv- of pc"0"aL pnv~cy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Wash~ngton, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: LIN 05 009 52999 Office: NEBRASKA SERVICE CENTER Date: 2 3 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 101(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 further inquiry must be made to that office. 
- 
/<c? 
Rob€rH+Wiemann, Chief 
Administrative Appeals Office 
LIN 05 009 52999 
Page 2 
DISCUSSION: The Director, Nebraksa Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of the president of its 
United States operation as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner is a Canadian 
company incorporated under the laws of the Province of British Columbia. The petitioner claims a qualifying 
relationship as the parent of a limited liability company organized under the laws of the State of Washington, 
which is allegedly a travel and tour operator. The beneficiary was initially granted a one-year period of stay 
to open a new office in the United States, and the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
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, the petitioner asserts that the director erred and that 
the beneficiary's duties are primarily those of an executive or manager. In support of this assertion, the 
petitioner submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. tj 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 himlher to perform the intended 
services in the United States; however, the work in the United States need not be the 
LIN 05 009 52999 
Page 3 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) 
 Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) 
 Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) 
 A statement of the duties performed by the beneficiary for the previous year 
and the duties the beneficiary will perform under the extended petition; 
(D) 
 A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence 
of wages paid to employees when the beneficiary will be employed in a 
managerial or executive capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The primary issue in the present matter is whether the beneficiary will be employed by the United States 
entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101 (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, 
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. 
LIN 05 009 52999 
Page 4 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 101 (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. 
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial 
duties under section 10 1 (a)(44)(A) of the Act, or primarily executive duties under section 101 (a)(44)(B) of 
the Act. While the petitioner indicates in its response to the request for evidence that the beneficiary is 
employed as an executive, the petitioner indicates on appeal that the beneficiary is acting as both an executive 
and a manager. A beneficiary may not claim to be employed as a hybrid "executive/manager" and rely on 
partial sections of the two statutory definitions. If the petitioner is indeed representing the beneficiary as both 
an executive and a manager, it must establish that the beneficiary meets each of the four criteria set forth in 
the statutory definition for executive and the statutory definition for manager. Given the lack of clarity, the 
AAO will assume that the petitioner is asserting that the beneficiary is acting either as a manager or as an 
executive and will consider both classifications. 
In the initial Form 1-129, the petitioner describes the beneficiary's duties as follows: "[The beneficiary] will 
be responsible for the overall operations of the Seattle office for the petitioner. [The beneficiary] will design 
and formulate [a] business plan and goals, hire and train new employees and development [sic] marketing 
plan." 
In the letter dated October 6, 2004 appended to the initial petition, the petitioner further describes the 
beneficiary's duties: 
Duties and Responsibilities 
 % of Time Spent 
Determine and formulate corporate policies and business 
 35% 
objectives, determine annual operation performance targets 
and financial requirements 
Communicate and report periodically to [the petitioner] 
 10% 
on the of [sic] operation of Apollo International Express LLC 
Attend to business development and meet with contacts in the 
 25% 
travel service industry to discuss and negotiate joint service 
agreements for travel services to China, Southeast Asia and 
LIN 05 009 52999 
Page 5 
Central and South America 
Recruit, interview and hire qualified employees from local 
 20% 
labor market to fulfill needs in the organization 
Co-ordinate operation of various functions within the company, 
 10% 
such as among business development, marketing and sales, 
operations, accounting and personnel. 
The petitioner also supplied an organizational chart showing the beneficiary at the top of the organization 
directly managing two people: a senior vice presidentlchief financial officer and a tour operations manager. 
The senior vice presidenuchief financial officer, in turn, allegedly supervises two sales representatives. The 
duties of the two subordinate employees directly supervised by the beneficiary are described in the October 6, 
2004 letter. The senior vice presidentlchief financial officer is described as "managing the ticketing services 
and supervising all other employees," even though the organizational chart does not show this employee 
managing the tour operations manager. The tour operations manager is described as "attending to the 
operations of ground tours for EVA Airways Corp. and other travel service providers; recruit and interview 
other qualified tour guides and tour operators." 
The petitioner also provided copies of three "Employee Agreements" between the United States entity, Apollo 
International Express, and the senior vice presidenuchief financial officer, the tour operations manager, and 
one of the sales managers. While these agreements, all dated September 1, 2004, provide few details 
regarding the subordinates' duties, the agreements do identify each employee as an independent contractor in 
paragraph 8. 
On October 28,2004, the director requested additional evidence. Specifically, the director requested evidence 
establishing that the beneficiary will be employed in a managerial or executive capacity. 
On January 20, 2005, the petitioner responded to the request for evidence. In a letter dated, January 17,2005, 
the petitioner asserts that the beneficiary is acting in an executive capacity for Apollo International Express 
LLC and summarizes the beneficiary's duties and accomplishments in terms of the regulations. The petitioner 
included copies of reports allegedly prepared for the beneficiary's review and a business plan prepared by the 
beneficiary. Finally, as examples of the beneficiary's wide latitude in discretionary decision-mahng, the 
petitioner cited the beneficiary's management of an Asian golf tour program and his exploration of importing 
fabric from China. 
Also, counsel to the petitioner states in his letter dated January 18, 2005, and the business plan attached to the 
response to the request for evidence corroborates, that the number of employees and their duties actually 
differs from what was provided with the initial petition filed on October 8, 2004. According to the business 
plan, this change was effective September 1, 2004. The petitioner offers no explanation as to why the correct 
employee information was not provided with the initial petition, which was filed over five weeks after the 
supposed change in structure. Regardless, according to counsel's letter as corroborated by the business plan, 
the United States operation employs three, and not four, people. The tour operation manager position 
remained unchanged, but the senior vice presidentlchief executive officer was eliminated (presumably both 
LIN 05 009 52999 
Page 6 
the position and the individual employee). One of the employees formerly described as a sales representative 
is now described as attending to "various accounting and administrative" tasks, and a new employee described 
as "salestmarketing director" was added. However, the petitioner did not provide an updated organizational 
chart or specific job descriptions for the restructured United States operation. Moreover, the petitioner did not 
clarify whether the new employee, the saleslmarketing director, would be an independent contractor like the 
other two employees. 
On March 12, 2005, the director denied the petition. The director concluded that the petitioner failed to 
establish that the beneficiary will be employed primarily in a managerial or executive capacity. 
On appeal, the petitioner asserts that the beneficiary's duties are primarily those of an executive or a manager. 
In support of this appeal, the petitioner submits a brief and additional evidence.' 
Upon review, petitioner's assertions are not persuasive. 
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. 5 1 10l(a)(44)(C), if staffing levels are used as a factor 
in determining whether an individual is acting in a managerial or executive capacity, Citizenship and 
Immigration Services (CIS) must take into account the reasonable needs of the organization, in light of the 
overall purpose and stage of development of the organization. In the present matter, however, the regulations 
provide strict evidentiary requirements for the extension of a "new office" petition and require CIS to examine 
the organizational structure and staffing levels of the United States operation. See 8 C.F.R. tj 
214.2(1)(14)(ii)(D). Title 8 C.F.R. 3 214.2(1)(3)(v)(C) allows the "new office" operation one year within the 
date of approval of the petition to support an executive or managerial position. There is no provision in CIS 
regulations that allows for an extension of this one-year period. If the business does not have sufficient 
staffing after one year to relieve the beneficiary from primarily performing operational and administrative 
tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the United States 
operation has not reached the point that it can employ the beneficiary in a predominantly 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. 5 214.2(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 
1 
It must be noted that, in his appellate brief, counsel described the beneficiary's duties with the United States 
operation and provided a breakdown of how much time the beneficiary devotes to each duty in the United 
States. However, this description is entirely different from the breakdown provided with the initial petition. 
On appeal, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title, 
its level of authority within the organizational hierarchy, or the associated job responsibilities. The petitioner 
must establish that the position offered to the beneficiary when the petition was filed merits classification as a 
managerial or executive position. Matter of Michelin Tire Corp., 17 I&N Dec. 248, 249 (Reg. Comm. 1978). 
A petitioner may not make material changes to a petition in an effort to make a deficient petition conform to 
CIS requirements. See Matter oflzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
LIN 05 009 52999 
Page 7 
either in an executive or managerial capacity. Id. 
 The petitioner must specifically state whether the 
beneficiary is primarily employed in a managerial or executive capacity. As explained above, a petitioner 
cannot claim that some of the duties of the position entail executive responsibilities, while other duties are 
managerial. A beneficiary may not claim to be employed as a hybrid "executive/manager~' and rely on partial 
sections of the two statutory definitions. 
The petitioner's description of the beneficiary's job duties has failed to prove that the beneficiary will act in a 
"managerial" capacity. In support of its petition, the petitioner has 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 that the beneficiary spends over a third of this time formulating 
policies and objectives, setting financial requirements, and establishing performance targets. The petitioner 
did not, however, specifically define what the beneficiary does on a day-to-day basis other than prepare the 
attached business plan. Also, while the petitioner asserts that the beneficiary spends 10% of his time 
coordinating the operation of the various functions of the company, the petitioner again failed to define what, 
exactly, the beneficiary will be doing for the United States operation. Further, the petitioner's elaboration on 
what percentage of time the beneficiary devotes to each duty is not helpful given the vague, non-descriptive 
duties listed, i.e., "formulate corporate policies" and "attend to business development" taking up to 60% of 
the beneficiary's time. Given the small scope of the business and the petitioner's own admission that it has 
struggled during its first year, it is simply not credible that the beneficiary would spend significant amounts of 
time formulating policies and coordinating the operation of various functions of the company. Finally, since 
many of the duties vaguely described by the petitioner include non-managerial duties, i.e., meeting with travel 
industry clients, financial forecasting, and recruiting new employees to perform the tasks necessary to provide 
a service, it is essential that the petitioner specifically define these duties. Otherwise, it cannot be concluded 
that the beneficiary is "primarily" employed in a managerial capacity. 
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 International, 19 I&N Dec. 593, 604 (Comm. 1988). Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). 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. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other 
supervisory, managerial, or professional employees. While the petitioner supplied job descriptions and an 
organizational chart for the United States operation, these materials were apparently outdated as of the date of 
the petition. However, the petitioner has not provided detailed job descriptions or an organizational chart for 
the reorganized United States operation as described in the response to the request for evidence. Therefore, it 
cannot be concluded that the newly hired or reassigned employees are supervisory, managerial, or 
professional employees. Failure to submit requested evidence that precludes a material line of inquiry shall 
be grounds for denying the petition. 8 C.F.R. 9 103.2(b)(14). 
LIN 05 009 52999 
Page 8 
Regardless, the job descriptions and organizational chart provided with the initial petition do not establish that 
the beneficiary supervises and controls the work of supervisory, managerial, or professional employees. First, 
as a threshold issue, the employment contracts describe the employees as "independent contractors." Since 
the record indicates that all of the people working for the United States entity (other than the beneficiary) are 
independent contractors, the beneficiary's supervision of them is not qualifying under the clear language of 
the Act, which requires the supervision or control of employees. Second, the job descriptions and 
organizational chart show the contractors attending to the operation of ground tours, providing clerical duties, 
managing ticketing, and working as sales representatives. While these employees are assigned lofty titles and 
described as managers, the job descriptions establish that they are primarily performing the tasks necessary to 
provide a service. 
In view of the above, the beneficiary would appear to be a first-line supervisor, the provider of actual 
services, or a combination of both. 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); see also Matter of Church Scientology International, 19 I&N 
Dec. at 604. 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 supervised employees are professionals. 
10l(a)(44)(A)(iv) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. at 604. Also, 
since the record fails to reveal the educational or skill levels necessary for entry into the positions held by the 
subordinate employees/contractors, it cannot be determined if they rise to the level of professional 
employees.2 Therefore, the record does not prove that the beneficiary is acting in a managerial capacity.3 
2 
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the 
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor. 
Section 101(a)(32) of the Act, 8 U.S.C. 9 1101(a)(32), states that "[tlhe termprofession shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary 
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not 
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and 
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of 
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.C. 1968); 
Matter of Shin, 11 I&N Dec. 686 (D.D. 1966). Therefore, the AAO must focus on the level of education 
required by the position, rather than the degree held by subordinate employee. The possession of a bachelor's 
degree, or even a master's degree, by a subordinate employee does not automatically lead to the conclusion 
that an employee is employed in a professional capacity as that term is defined above. 
3 
While the petitioner has not specifically argued that the beneficiary manages an essential function of the 
organization, the record nevertheless would not support this position. 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. 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. 5 214.2(1)(3)(ii). In 
LIN 05 009 52999 
Page 9 
Similarly, the petitioner has failed to prove that the beneficiary will act in an "executive" capacity. The 
statutory definition of the term "executive capacity" focuses on a person's elevated position within a complex 
organizational hierarchy, including major components or functions of the organization, and that person's 
authority to direct the organization. Section 101(a)(44)(B) of the Act. Under the statute, a beneficiary must 
have the ability to "direct the management" and "establish the goals and policies" of that organization. 
Inherent to the definition, the organization must have a subordinate level of employees for the beneficiary to 
direct, and the beneficiary must primarily focus on the broad goals and policies of the organization rather than 
the day-to-day operations of the enterprise. An individual will not be deemed an executive under the statute 
simply because they have an executive title or because they "direct" the enterprise as the owner or sole 
managerial employee. The beneficiary must also exercise "wide latitude in discretionary decision making" 
and receive only "general supervision or direction fiom higher level executives, the board of directors, or 
stockholders of the organization." Id. As indicated above, while the petitioner may have provided a vague 
job description which reiterates the regulations, the petitioner has failed to prove that the beneficiary, who is 
managing no more than three employees/contractors who apparently provide services directly to customers, 
will be acting primarily in an executive capacity. Therefore, it must be concluded that the reasonable needs of 
this struggling tour operator, in light of the overall purpose and stage of development of the organization, do 
not require the services of an executive employee. 
It is appropriate for CIS to consider the size of the petitioning company in conjunction with other relevant 
factors, such as a company's small personnel size, the absence of employees who would perform the non- 
managerial or non-executive operations of the company, or a "shell company" that does not conduct business 
in a regular and continuous manner. See, e.g. Systronics Corp. v. INS, 153 F. Supp. 2d 7, 1 5 (D.D.C. 200 1). 
Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily managerial 
or executive capacity as required by 8 C.F.R. 5 214.2(1)(3). 
Beyond the decision of the director, a related issue in this proceeding is whether the petitioner has provided 
evidence sufficient to establish that the petitioner and the United States entity, Apollo International Express, 
LLC, are qualifying organizations as defined by 8 C.F.R. 5 214,2(1)(l)(ii)(G). 
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 
--- 
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. In this matter, the petitioner has 
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job 
description fails to document what proportion of the beneficiary's duties would be managerial functions and 
what proportion would be non-managerial. This failure of documentation is important because several of the 
beneficiary's duties, as explained above, do not fall directly under traditional managerial duties as defined in 
the statute. Absent a clear and credible breakdown of the time spent by the beneficiary performing his duties, 
the AAO cannot determine what proportion of his duties would be managerial, nor can it deduce whether the 
beneficiary is primarily performing the duties of a function manager. See IKEA US, Inc. v. U.S. Dept. of 
Justice, 48 F. Supp. 2d 22,24 (D.D.C. 1999). 
LIN 05 009 52999 
Page 10 
"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. 5 214.2(1). A subsidiary is a firm, corporation, or other legal entity 
(including a limited liability company) of which a parent owns more than half of the entity and controls the 
entity. See 8 C.F.R. 9 214.2(1)(l)(ii)(K). In this case, the petitioner, the foreign employer, asserts that it is the 
parent of the United States employer because it owns a 60% interest in the limited liability company. 
The regulations 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; 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. 
In support of its petition, the petitioner provided a State of Washington "Amendment to Certificate of 
Formation" for the United States entity, confirming that All Apollo International Express, LLC changed its 
name to Apollo International Express, LLC ("Apollo") on September 18, 2001. While this document 
establishes that the United States entity is a Washington limited liability company, it does not provide any 
insight into its ownership and control. In addition to this document, the petitioner provided a copy of a letter 
from a certified public accountant dated September 11, 2003 stating that the petitioner owns 60% of Apollo. 
Averments made in the Form 1120 for the United States operation are consistent with the ownership 
percentages described by the accountant in her letter. However, the petitioner did not supply any other 
organizational documents for Apollo. 
As such, the petitioner has failed to provide sufficient evidence demonstrating the ownership and control of 
the United States entity. Washington limited liability companies are regulated by the Washington Limited 
Liability Company Act. Wash. Rev. Code $5 25.15.005 to 25.15.902. This law provides guidance on how a 
Washington limited liability company can evidence ownership interests by members. Section 25.15.1 15 
permits a person to become a member of a limited liability company upon formation, upon compliance with 
the limited liability company agreement, or when admission is reflected in the records of the company. Wash. 
Rev. Code 9 25.1 5.1 15. Furthermore, section 25.15.135 requires Washington limited liability companies to 
maintain records including, but not limited to, a list identifying each member by name and last known 
address. 
 Wash. Rev. Code 5 25.15.135. Finally, section 25.15.245 specifically permits limited liability 
companies to evidence a member's interest in the company by issuing a certificate of limited liability interest. 
In the current case, the petitioner did not provide a copy of the original certificate of formation, the limited 
liability company agreement, or a certificate of limited liability interest. The only evidence submitted was a 
letter from an accountant asserting that the petitioner owns a 60% interest in Apollo. This is entirely 
insufficient. Not only has the petitioner not provided those documents which Apollo is compelled to maintain 
by the State of Washington, but the petitioner has not provided sufficient evidence that the foreign petitioner 
owns and controls the United States employer. 
Therefore, given the lack of evidence, the petitioner has not established that the petitioner and the United 
LIN 05 009 52999 
Page 11 
States employer are qualieing organizations as defined by 8 C.F.R. $ 214,2(1)(l)(ii)(G). For this additional 
reason, the petition may not be approved. 
The director's decision does not indicate whether he reviewed the approval of the initial new office petition. 
However, if the previous nonimmigrant petition was approved based on the same evidence of a qualifying 
relationship that is contained in the current record, the approval would constitute material and gross error on 
the part of the director. The AAO is not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church of Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that Citizenship and 
Immigration Services (CIS) or any agency must treat acknowledged errors as binding precedent. Sussex 
Engr. Ltd. v. Montgomely, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
The initial approval of an L-1A new office petition does not preclude CIS from denying an extension of the 
original visa based on a reassessment of petitioner's qualifications. Texas AM Univ., 99 Fed. Appx. 556, 
2004 WL 1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have 
any authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a 
subsequent petition. See section 29 1 of the Act, 8 U.S.C. 5 136 1. 
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), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's 
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.