dismissed L-1A Case: Travel Services

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W , Rm. ,43042 
Washngton, DC 20529 
mt clearly on- 
innaloe of ~rs~nal p- U.S. Citizenship 
-- and Immigratmn 
FILE: EAC 02 075 52554 Office: VERMONT SERVICE CENTER Date: C,UG 1 5 m)5 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
, /' Robert - P. Wiernann, Dir tor 
T! 
drninistrative Appeals Office 
EAC 02 075 52554 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 1991 and is 
described as a travel and tour agency. The petitioner claims to be a subsidiary of - - located in Beijing, China. It seeks to extend its authorization to employ the beneficiary temporarily 
in the United States as its general manager and chief of operations for two years, at an estimated annual salary 
of $30,000.00. The director determined that the petitioner had not submitted sufficient evidence to establish: 
(1) that a qualifying relationship exists between the U.S. and foreign entities; or (2) that the beneficiary would 
be employed by the U.S. entity primarily in a managerial or executive capacity. 
On appeal, counsel disagrees with the director's decision. Counsel states that the petitioner has submitted 
sufficient evidence to establish that a subsidiary relationship exists between the U.S. and foreign entities, and 
that the beneficiary will be employed by the U.S. entity primarily in a managerial capacity. 
To establish L-1 eligibility under section lOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in part: 
Intracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(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 arc: 
qualifying organizations as defined in paragraph (I)(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, 
EAC 02 075 52554 
Page 3 
training, and employment qualifies himiher 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. 
The regulation at 8 C.F.R. 214.2(1)(14)(ii) states that a visa petition under section lOl(a)(15)(L) 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 
( 1 1 )(ii)(H); 
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 first issue in this proceeding is whether the petitioner has established that a qualifying relationship exists 
between the U.S. and foreign entity. 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define a "qualifying organization" and reIated tc:m as: 
(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 definitionis 
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 tht: 
alien's stay in the United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
(I) Parent means a fik corporation, or other legal entity which has subsidiaries. 
EAC 02 075 52554 
Page 4 
(I) Branch means an operation 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 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) Afiliate 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. 
The petitioner initially stated in the petition that the U.S. entity was "wholly owned" by the foreign entity. 
In response to the director's request for additional evidence, the petitioner submitted a copy of the U.S. 
entity's IRS Form 1120, Corporate Income Tax Return for 2001. 
The director denied the petition after determining that the evidence failed to establish the existence of a 
qualifying relationship between the U.S. and foreign entities. The director noted that the petitioner submitted 
a copy of the organization's IRS Form 1120, Corporate Income Tax Return for 2001, which indicated that two 
individuals owned 25 percent of the shares of stock in the U.S. entity. The director also noted that the entity 
indicated on the tax form that it had three shareholders at the end of the tax year. The director further noted 
that the U.S. entity's tax records indicated that the organization was not a subsidiary, and that no foreign 
person or entity owned any shares of stock in the company. Based on the discrepancies the director 
determined that the petitioner had failed to establish that the foreign entity wholly owned the U.S. entity. 
On appeal, counsel disagrees with the director's decision and submits a brief and evidence in support of the 
petition. Counsel asserts that the same qualifying relationship which existed at the time the initial petition and 
the first petition for extension was filed is the same qualifying relationship that existed when filing the instant 
petition. Counsel states that two individuals each own 25 percent of the U.S. entity's stock, and that the 
foreign entity owned the other 50 percent of the stock. Counsel also argues that the director should have 
addressed this issue in the request for evidence, and that denying the petition based upon the discrepancy 
denies the petitioner an opportunity to explain and submit evidence in support thereof. Counsel further 
contends that despite the director's conclusions, a parent-subsidiary relationship exists where the foreign 
entity owns 50% of the shares of stock in the U.S. entity and the entity is controlled by the foreign entity. 
Based upon the evidence of record, it cannot be established that a qualifying relationship exists between the 
U.S. and foreign entities. Counsel has failed to submit independent documentation on appeal to support his 
explanations for the discrepancies found in the petition and the U.S. entity's federal tax returns. The 
petitioner stated in the petition "petitioner is a wholly-owned subsidiary of 
- 
EAC 02 075 52554 
Page 5 
- Beijing, China." On the other hand, the company tax records indicated that two individuals each 
own 25 percent of the U.S. entity's stock, and there has been no evidence submitted to demonstrate who owns 
the other 50 percent. In addition, the corporate tax records, Schedule K indicates that there is no subsidiary 
relationship, and that no foreign person or entity own any shares of stock in the U.S. 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). 
Counsel contends that the same qualifying relationship that existed at the time of filing the initial petition 
continues to exist in reference to the instant petition. Each petition filing is a separate proceeding with a 
separate record. See 8 C.F.R. !j 103.8(d). In making a determination of statutory eligibility, CIS is limited to the 
information contained in the record of proceeding. See 8 C.F.R. 8 103.2(b)(16)(ii). Although the AAO may 
attempt to hypothesize as to whether the prior approval was granted in error, no such determination may be made 
without review of the original record in its entirety. If, however, the prior petition was approved based on 
evidence that was substantially similar to the evidence contained in the record of proceeding that is now before 
the AAO, the approval of the initial petition would have been erroneous. CIS is not required to approve petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been elroneous. 
See, e.g.. Matter of Church Scientology Intemtional. 19 I&N Dec. 593 (Comm 1988). 
The petitioner must establish that the beneficiary qualifies for an extension of his L-1 status regardless of any 
prior petition that CIS approved on the beneficiary's behalf. The petitioner's statements do not warrant a reversal 
of the director's decision to deny the petition. 
Counsel contends that the director incorrectly denied the petition without allowing the petitioner an 
opportunity to address the qualifying relationship issue. Counsel contends that the director should have 
included in its request for evidence, a request for evidence pertaining to the existence of a qualifying 
relationship between the U.S. and foreign entities. Contrary to counsel's contentions, if there is evidence of 
ineligibility in the record, an application or petition shall be denied on that basis notwithstanding any lack of 
required initial evidence. 8 C.F.R. !j 103.2 (b)(8). In such an instance the petitioner is granted the right to 
appeal the decision of the service center. See 8 C.F.R. 9 103.3. Therefore, the petitioner is given an 
opportunity to establish eligibility in the appropriate forum, that being the AAO. The fact that the dirtxtor did 
not indicate in the request for additional evidence that he would later address the issue of a qualifying 
relationship in the denial in no way precludes the petitioner from establishing eligibility for the desired 
immigration benefit. There is no requirement that the only issues in a potential denial will be those that were 
previously addressed in the request for additional evidence. In the instant case, tax records subnitted in 
response to the director's request for evidence revealed a grave discrepancy in the information submitted 
sufficient to question the existence of a qualifying relationship. Counsel was made aware: of the 
discrepancy from the director's decision, but elected not to submit evidence to substantiate the petitioner's 
claim on appeal. Therefore, the director's decision with respect to this issue will be affirmed. 
The second issue in this proceeding is whether the evidence establishes that the beneficiary will be ernployed 
primarily in a managerial or executive capacity. 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
EAC 02 075 52554 
Page 6 
(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 hie 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-today 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. Q 1 lOl(a)(44)(B), provides: 
The term "executive capacity" means 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 describing the beneficiary's duties, the petitioner initially stated that he would: 
Supervise all departments of New York branch office of company. Manage and direct 
department handling financial, sales and marketing of tours, personnel and investments anti 
develop strategies, planning and analyses of these operations. Coordinate activities of New 
York office with U.S. headquarters in Los Angeles and head office in Beijing. 
EAC 02 075 52554 
Page 7 
In response to the director's request for additional evidence, the petitioner described the bent:ficiary9s 
responsibilities to include: financial operations 30 percent, marketing operations 30 percent, nnvesting 
operations 25 percent, and personnel review 15 percent. 
The director determined that the evidence submitted was insufficient to establish that the beneficiary had been 
or would be primarily employed in a managerial or executive capacity. The director noted that the petition 
was a "new office extension" in that it was the frrst extension petition filed on behalf of the beneficiary from 
the New York office. The director concluded that the record was not persuasive in demonstrating that the 
beneficiary would be employed in a primarily executive or managerial capacity, or that the organization was 
able to support such a position. 
On appeal, counsel disagrees with the director's decision and asserts that the beneficiary will be employed 
primarily as a function manager in that he will be responsible for managing the New York branch of the 
company. Counsel infers that due to the economic effects of the September 11 attacks in New York, the 
petitioner has had to downsize leaving the beneficiary to manage the New York office. Counsel contends that 
the instant matter should not be categorized as a new office extension where this is the third petition filed on 
behalf of the beneficiary. As evidence on appeal, the petitioner submits an article from the Los Angeles 
Times, which addresses business economic woes post September 11,2001. 
Counsel's assertions are not persuasive. Although the instant petition may be the petitioner's third request to 
extend the beneficiary's stay in the United States, AAO will consider it as a "new office extension" in that it is 
only a second request for extension of stay in the New York office (the frrst being a new office petition). 
Furthermore, the evidence does not establish that the beneficiary will be employed by the U.S. entity 
primarily in a managerial or executive or function manager capacity. Counsel contends that the beneficiary 
will be performing a function of the organization, namely operating the entire business in an effort to keep it 
operational. Counsel infers that managing the entire operation classifies the beneficiary as a function 
manager. Contrary to counsel's belief, the beneficiary's duties described as handling sales and marketing of 
tours are not duties performed by a function manager. The petitioner's compliance with the director's request 
for additional evidence is marginal, at best. 
The petitioner has provided no comprehensive description of the beneficiary's duties that would demonstrate that 
he would be establishing goals and policies, that he will be exercising a wide latitude in discretionary decision- 
making, or that he would receive only general supervision or direction from higher-level individuals. There has 
been no independent documentary evidence presented to demonstrate what goals and policies have been and will 
be established by the beneficiary. 
The record does not demonstrate that the beneficiary primarily manages an essential function of the 
organization. The beneficiary's proposed job description depicts an individual who performs the day-today 
services of the organization, not an individual meeting the definition of a function manager. Although the 
petitioner stated that the beneficiary would be primarily responsible for managing the sales and marketing 
functions, the record reflects that the beneficiary is currently the company's only employee and therefore, will 
continue to perform the day-today functions of the business. When managing or directing a function, the 
petitioner is required to establish that the function is essential and that the manager is in a high-level position 
within the organizational hierarchy, or with respect to the function performed. The petitioner must also 
demonstrate that the executive or manager does not directly perform the function. Although counsel argues 
that the beneficiary will be managing an essential function of the U.S. entity by directing all aspects of the 
business, the record does not demonstrate that the beneficiary will be primarily managing or directing, rather 
EAC 02 075 52554 
Page 8 
than performing, the function. The petitioner has failed to provide a detailed position description specifying 
exactly what the management of the travel and tour business will entail. 
Based upon evidence submitted on the record, it appears that the beneficiary will be performing the services 
of the U.S. entity rather than performing as a function manager. An employee who primarily perfbrms the 
tasks necessary to produce a product or to provide services is not considered to be employed in a managerial 
or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornm. 1988). 
The record indicates that a preponderance of the beneficiary's duties have been and will be directly providing 
the services of the organization. The petitioner has not demonstrated that the beneficiary will be functioning 
at a senior level within an organizational hierarchy other than in position title. The record does not 
demonstrate that the U.S. entity contains the organizational complexity to support the proposed managerial or 
executive position. Although the petitioner stated that the U.S. entity employed an operations manager who 
spends 85 percent of his time managing office operations and 15 percent of his time as tour coordinator, there 
has been no evidence submitted to substantiate this claim. The petitioner has failed to demonstrate that the 
beneficiary will be employed primarily in a qualifying managerial or executive capacity. Accordingly, the 
appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 8 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.