remanded L-1A Case: Engineering

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U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 04 109 50256 Office: CALIFORNIA SERVICE CENTER Date: JUL 1 7 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. 
dqj 
.//--"' 
Robert P. V&Giia&, Chief 
Administrative Appeals Office 
WAC 04 109 50256 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will 
be withdrawn and the case will be remanded for further consideration and action. 
The petitioner filed this nonimrnigrant petition seeking to extend the employment of its president 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. 1 101(a)(15)(L). The petitioner is a corporation organized in the State of California 
the petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that (1) the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity, or (2) the beneficiary's 
services are to be used for a temporary period and the beneficiary will be transferred to an assignment abroad 
upon completion of the temporary assignment in the United States. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director's 
conclusions are in error. Counsel asserts that the beneficiary's duties in the United States are executive in 
scope and that the beneficiary's services in the United States are of a temporary nature. 
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. 9 214.2(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. 
WAC 04 109 50256 
Page 3 
(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 hirnher 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. 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 management or executive 
capacity; and 
(E) 
 Evidence of the financial status of the United States operation. 
The first 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 101 (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 
WAC 04 109 50256 
Page 4 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 9 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated March 5,2004 accompanying the initial petition, the petitioner described the beneficiary's job 
duties in the United States as follows: 
As President, [the beneficiary] will direct the US business operations, including the 
expansion and establishment of business policies for the corporate entity and exercise full 
decision-malung power for the company. [The beneficiary] will direct and coordinate 
corporate operations, including the establishment of budgetary and financial goals; the 
determination of marketing objectives; human resources policy; and the negotiation, 
conclusion and oversight of contracts. 
Specifically [the beneficiary's] duties will include: retain and oversee legal representatives for 
corporate structuring, tax issues, corporate accounting and labor advice; direct a base 
engineering, business development and support staff; identify clients; define strategic 
operating and engineering design relationships between Alpine and its clients; negotiate and 
define deal structures with USICanadian clients; manage all staff; retain responsibility for 
execution of all decisions, capital expenditure and personnel resources within Alpine 
companies; and, identify ongoing strategic direction for Alpine given the roster of identified 
business opportunities within the USfCanada. Alpine is in the process of moving the 
Research and Development Department from the South Afhcan location to the U.S., a 
corporate strategic decision made by [the beneficiary]. 
The petitioner also submitted a copy of its organizational chart showing the beneficiary as president. A 
deputy vice president, a vice president, and a technical director report directly to the beneficiary. An accounts 
manager, a saleslmarketing manager, and a warehouse manager report to the vice president, and a technical 
WAC 04 109 50256 
Page 5 
manager reports to the technical director, with all positions filled except for the warehouse manager. Below 
that level, the chart identifies a sales staff yet to be hired reporting to the saleslmarketing manager; a 
warehouse worker and eight sub-contracted distributors reporting to the warehouse manager position; and a 
components design specialist and two yet-to-be-hired technicians reporting to the technical manager. 
On March 17, 2004, the director requested additional evidence, including: (1) a copy of the U.S. entity's 
organizational chart describing its managerial hierarchy and staffing levels, with the current names of all 
executives, managers, supervisors, and number of employees within each department or subdivision; the chart 
should clearly identify the beneficiary's position and list all employees under the beneficiary's supervision by 
name and job title; (2) a brief description of job duties, educational levels, annual salaries/wages for all 
employees under the beneficiary's supervision; (3) copies of the U.S. company's payroll summary and Forms 
W-2 and W-3 evidencing wages paid to employees; and (4) copies of the U.S. company's Form DE-6, 
California Quarterly Wage Reports, for all employees for the last four quarters. 
In a response dated June 4, 2004, the petitioner submitted a new organizational chart, which appears to have 
been updated since the initial petition was filed. The new chart shows that the technical director position has 
been eliminated, the warehouse manager position has been filled, the warehouse worker position is now 
vacant, and there are different individuals in the positions of accounts manager and sales manager. The 
petitioner also provided a description of job duties, educational levels, annual salariedwages for each 
employee under the beneficiary's supervision listed on the organizational chart. The petitioner restates the 
original job description for the beneficiary, with the following addition: 
A recent example of an executive business operations decision made by [the beneficiary] was 
to move the research, design and development department from South Ahca to Orange 
County, CA. This decision was based on the fact that S.A. Alpine's clients . . . are also 
located in Orange County and the design team will profit from closer contact with the client's 
designers and engineers. 
The petitioner submitted the U.S. company's Forms W-2 and W-3 for the years 2002 and 2003; California 
Form DE-6 for the quarters that ended June 30, September 30 and December 31, 2003 and March 31, 2004; 
California Form DE-7 for the year 2003; and the company's payroll for the two-week periods ending April 
30,2004 and May 15,2004. 
On June 17, 2004, the director denied the petition. 
 The director determined that the record contains 
insufficient evidence to demonstrate that the beneficiary will be employed in a managerial or executive 
capacity. The director observed that the record indicates that a preponderance of the beneficiary's duties will 
be directly providing the services of the business. The director further found that the record does not show 
that the U.S. entity has the organizational complexity to support an executive or managerial position, and 
there is insufficient evidence on record of a subordinate staff of professional, managerial, or supervisory 
personnel who would relieve the beneficiary from performing non-qualifying duties. The director noted in 
particular that at the time of filing, the petitioner's Form DE-6 for the first quarter of 2004 lists only two 
employees. 
WAC 04 109 50256 
Page 6 
On appeal, counsel for the petitioner asserts that the beneficiary's duties in the United States are executive in 
scope. Citing examples from the descriptions of the beneficiary's job duties, counsel contends that the 
beneficiary's job duties meet all four prongs of the definition of executive capacity set forth under 8 C.F.R. 
5 214.2(1)(l)(ii)(C). Counsel further asserts that the petition should not be denied based on the small number 
of employees on payroll in the U.S. office. Counsel points out that although there were only two employees 
on payroll at the time the petition was filed, the record indicates that there are three other employees, 
including the beneficiary, who as shareholders opted to reinvest profits in the company rather than draw a 
salary.' Citing to a number of unpublished decisions, counsel seeks to distinguish this petition, where the 
beneficiary is the highest ranking executive, from other petitions filed by small companies that were denied 
on appeal because the beneficiaries were not found to be performing at a sufficiently high level in the 
organizational hierarchy. 
Upon review, the AAO finds that the record is sufficient to establish that the beneficiary would perform in a 
primarily executive capacity in his position in the U.S. entity. 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. § 214.2(1)(3)(ii). Although the description of the beneficiary's duties contains some generalities, the 
overall description coupled with the petitioner's organizational structure is sufficient to establish that the 
beneficiary's role is primarily executive. The record is sufficient to establish that as the highest ranking 
executive in the company, the beneficiary directs the management of the organization, establishes the goals 
and policies of the organization, and is in a position to exercise wide latitude in discretionary decision 
making. Moreover, contrary to the director's decision, the AAO finds that the totality of evidence in the 
record relating to the other employees of the U.S. entity supports the conclusion that with the company's 
organizational structure and staffing level at the time the petition was filed, the beneficiary would not have to 
engage directly in non-qualifying day-to-day operations of the company, but instead would be performing 
primarily the high level responsibilities specified in the definition of executive capacity. 
Based on the foregoing, the AAO finds that the petitioner has established that the beneficiary would be 
employed in the United States in a primarily executive capacity, as required by 8 C.F.R. § 214.2(1)(3). The 
director's decision on this issue will be withdrawn. 
The second issue in this proceeding is whether the beneficiary's services in the United States are to be used 
for a temporary period and whether the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 
In the March 5, 2004 letter accompanying the initial petition, the petitioner indicated that the beneficiary 
holds 5 1% of the foreign entity and continues to be the president of that company as well as the U.S. entity. 
The letter further stated that the beneficiary would be transferred to the United States for a temporary period 
of three years. 
' 
 The AAO notes that the petitioner submitted Forms W-2 for eight employees for 2003, and the payroll 
records for two pay periods in April and May 2004 show that there were eight or nine employee on payroll. 
Not all of these employees were listed on the organizational chart. 
WAC 04 109 50256 
Page 7 
In denying the petition, the director found that the petitioner has not shown that the beneficiary's services in 
the United States are to be used for a temporary period and the beneficiary will be transferred to an 
assignment abroad upon completion of the assignment in the United States. The director noted that the 
petitioner for an L-1 nonimmigrant classification generally needs to submit only a simple statement of facts 
and a listing of dates to demonstrate the intent to employ the beneficiary in the United States temporarily. 
However, the director observed, where the beneficiary is claimed to be the owner or a major stockholder of 
the petitioning company, a greater degree of proof is required. Matter of lsovic, 18 I&N Dec. 36 1 (Cornrn. 
1982); see also 8 C.F.R. $ 214.2(1)(3)(vii). The director concluded that since the record indicates that the 
beneficiary is the majority owner of this petitioning organization, the single statement in the March 5, 2004 
letter that the beneficiary intends to stay in the U.S. for a three-year period is not sufficient to satisfy the 
requirement for a "greater degree of proof" of the beneficiary's temporary stay in the United States. 
On appeal, counsel contends that the director's decision is in error. Counsel asserts that foreign nationals 
under consideration for L-1 classification are not subject to the requirement of having "a residence in a 
foreign country, which [the nonimmigrant] has no intention of abandoning" applicable to other nonimmigrant 
classifications under section 101(a)(15) of the Act. Counsel further contends that both the Citizenship and 
Immigration Service (CIS) and the State Department recognize that a foreign national in L-l status may have 
the dual intent of immigrating to the United States if allowed to do so - while still intending to comply with 
his or her temporary nonimmigrant status. Finally, counsel states that the beneficiary understands that his 
services are of a temporary nature and intends to return to his home country where he and his spouse have 
significant business interests and assets. In support of this last assertion, counsel refers to evidence in the 
record documenting the beneficiary's majority interest in the foreign entity and evidence submitted on appeal 
relating to the travel business of the beneficiary's spouse. 
At the outset, the AAO finds that counsel's arguments regarding dual intent and the lack of a residency 
requirement for L-1 status are inapposite to the issue at hand. However, with respect to the sufficiency of the 
evidence of record to establish that the beneficiary's services in the United States are to be used for a 
temporary period, the AAO notes that while the director did issue a request for further evidence prior to 
adjudicating the petition, there was no request for further evidence relating to that issue. The director's 
decision to deny the petition on that ground thus appears to be based solely on the evidence submitted with 
the initial petition. The regulation at 8 C.F.R. 8 103.2(b)(8) provides: 
Except as otherwise provided in this chapter, in other instances where there is no evidence of 
ineligibility, and initial evidence or eligibility information is missing or the Service finds that 
the evidence submitted either does not fully establish eligibility for the requested benefits or 
raises underlying questions regarding eligibility, the Service shall request the missing initial 
evidence, and may request additional evidence, including blood tests. 
In this instance, since the missing initial evidence was not requested prior to adjudication as the regulations 
require, the director's determination that the record is insufficient to establish that the beneficiary's services in 
the United States are to be used for a temporary period will be withdrawn. This matter will be remanded, and 
the director is instructed to request the evidence required under the regulations at 8 C.F.R. $ 214.2(1)(3)(vii) 
WAC 04 109 50256 
Page 8 
and such additional evidence as the director may deem necessary to determine the petitioner's eligibility for 
the benefit sought in this matter. 
On a related issue, the AAO notes that counsel points to the beneficiary's majority ownership in the foreign 
entity as evidence of his intent to stay in the United States temporarily. However, the AAO finds that there is 
insufficient evidence in the record to support the claim of the beneficiary's majority ownership in the foreign 
entity. In fact, although the director's decision is silent on this issue, the AAO finds that the record as it now 
stands is insufficient to demonstrate that a qualifying relationship exists between the U.S. and foreign entities 
as required under the regulation at 8 C.F.R. 
 214.2(1)(3)(i). 
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 (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 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. 
The petitioner claims that the two entities are affiliated by virtue of common majority ownership by the 
beneficiary. Specifically, the petitioner indicates on Form 1-129 that the beneficiary holds 51% of the foreign 
entity and 63% of the U.S. entity. The petitioner submitted with the initial petition copies of three stock 
certificates of the U.S. entity: certificate number 3, dated March 21, 2002, indicating that 
holds 1,800 of the company's 10,000 authorized shares; certificate number 6, 
that the beneficiary 
indicating th 
the petitioner 
100 of the company's 10,000 authorized shares; and certificate number 7, undated, 
olds 1,900 of the company's 10,000 authorized shares. In addition, 
Internal Revenue Service Forms 1120, U.S. Corporate Income Tax 
Return, for the years 2002 and 2003, which report that the beneficiary holds 64% of the company. There is 
no other documentation in the record relating to the ownership and control of the U.S. entity.2 The only 
evidence of record relating to the ownership and control of the foreign entity is a copy of a letter dated 
February 22,2004 from the foreign entity's chartered accountants, stating that the beneficiary "currently holds 
the majority of the Company's issued share capital." 
The AAO notes that the Form 1-129 and the stock certificate indicate that the beneficiary holds 63% of the 
U.S. entity, whereas the IRS Forms 1120 states the beneficiary's holdings as 64%. There is no clarification of 
this discrepancy on the record. 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). 
WAC 04 109 50256 
Page 9 
The petitioner did not submit copies of the U.S. entity's stock certificates number 1, 2, 4, and 5, or any 
evidence that the certificates it did submit, number 3, 6, and 7, indeed represent all of the issued and 
outstanding shares of the company as of the date the petition was filed. Furthermore, 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 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 ofsiemens Medical Systems, Inc., 19 I&N Dec. 362. The petitioner has not provided any of these 
additional documents in connection with the U.S. entity. Furthermore, it is noted that the only document 
submitted to support the claim of the beneficiary's majority ownership in the foreign entity fails to confirm 
even the exact percentage of the beneficiary's holding in that company. Without full disclosure of all relevant 
documents, CIS cannot determine the elements of ownership and control with respect to the U.S. and foreign 
entities, or draw any conclusion as to whether a qualifying relationship exists between the two entities. 
Thus, the record as presently constituted is insufficient to establish that there exists a qualifying relationship 
between the U.S. and foreign entities. However, the AAO notes that the director's request for further 
evidence prior to adjudication did not include a request for further evidence of the qualifying relationship 
between the U.S. and foreign entities. Again, to the extent initial evidence is missing, or the director finds 
that the evidence submitted with the initial petition either does not fully establish eligibility for the requested 
benefits or raises underlying questions regarding eligibility, the director is required under the regulations to 
request the missing initial evidence. See 8 C.F.R. 8 103.2(b)(8). 
In light of the foregoing, the director's decision in this matter is withdrawn. This matter will be remanded for 
further action. The AAO finds that the record is sufficient to establish that the beneficiary would be 
employed in the United States in a primarily executive capacity, as required by 8 C.F.R. 4 214.2(1)(3)(ii). 
With respect to the issues of whether the petitioner has established that (1) the beneficiary's services in the 
United States are to be used for a temporary period and the beneficiary will be transferred to an assignment 
abroad upon completion of the temporary assignment in the United States, and (2) there is a qualifying 
relationship between the U.S. and foreign entities, as required by the regulations at 8 C.F.R. &j$ 214.2(1)(3)(i) 
and (vii), the director is instructed to request further evidence as described above and such additional evidence 
as the director may deem necessary to determine the petitioner's eligibility for the benefit sought in this 
matter, and to enter a new decision. 
ORDER: 
 The decision of the director is withdrawn. The petition is remanded to the director for further 
action in accordance with the foregoing and entry of a new decision, which if adverse to the 
petitioner, shall be certified to the AAO for review.