remanded L-1A Case: Food Manufacturing

PUBLICcorr'
U.S. Department of Homeland Security
20 Massachusetts Ave. N.W., Rill. 3000
Washington, DC 20529
u.s.Citizenship
and Immigratlon
Services .
hot
File:
INRE:
WAC05 15054274
Petitioner:
Beneficiary:
Office: CALIFORNIA SERVICE CENTER Date:
DEC 0 5 21J~6
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(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 ca~e. Any further inquiry must be made to that office.
rt0bert P. Wiemann;' hief
( Usdministrative Appeals Office
www.uscis.gov
WAC 05 15054274
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the
director 's decision and remand the matter to the director for further action and entry Ofa new decision.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.c. § 1101(a)(15)(L). The petitioner, a California corporation, states that it is engaged in food products
manufacturing. It claims to be an affiliate of the beneficiary's current foreign employer,
_ located in Seoul, Korea. ,the petitioner seeks to employ the beneficiary as its chairman for a three­
year period.
The director denied the petition concluding that the .petitioner did not establish the existence of a qualifying
relationship between the United States entity and the beneficiary's foreign employer. The director observed
that the petitioner failed to submit sufficient evidence of common ownership and control between the U .S.
entity and its claimed Korean affiliate , noting that the claimed common parent company owns only 30 .82% of
the petitioner and 4032 % of the foreign entity . The director found insufficient evidence to establish that the
parent company exercises de facto control over the claimed affiliate companies.
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
relied upon an overly restrictive standard in applying the regulatory definitions of "subsidiary" arid "affiliate."
Counsel emphasizes that the ' regulations permit two legal entities to qualify as affiliates if their common
parent company owns less than 50 percent of each entity, so long as the parent company has control over both
entities. Counsel asserts that the petitioner submitted sufficient evidence to establish that the two entities are
.in fact controlled by the same parent company and therefore qualify as affiliates pursuant to 8 C.F.R . §
214.2(1)(1)(ii)(L)(2). Counsel submits a: brief and evidence in support of the appeal.
To establish eligibility for the L-I 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. § 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 organ ization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(1)(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.
WAC 05 15054274
Page 3
(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 him/her 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 sole issue discussed by the director is whether the petitioner has established that a qualifying relationship
exists with the beneficiary's overseas employer. 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.ione entity with "branch" offices), or related as a "parent and subsidiary"
or as "affiliates." See generally section 101(a)(l5)(L) of the Act; 8 C.P.R. § 214.2(1).
The pertinent regulations at 8 c.P.R. § 2l4.2(1)(l)(ii) define the term "qualifying organization" and related
terms as follows:
(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
definitions of a parent, branch, affiliate or subsidiary specified in'
paragraph (1)(1)(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 [.]
* * *
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries.
(J) Branch means an operating division or office of the same organization housed in a
different location.
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns,
directly or indirectly, more than half of 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
WAC 05 15054274
Page 4
over the entity; or owns, directly or indirectly, less than half ofthe entity, but in fact
controls the entity.
(L) Affiliate means
(1) One of two subsidiaries both of which are owned and controlled by the
same parent or individual, or
(2) One of two legal entities owned and controlled by the same group of
individuals, each individual owning and controlling approximately the
same share or proportion of each entity.
The nonimmigrant petition was filed on May 3, 2005. The petitioner stated on Form 1-129 that the petitioner
is an affiliate the beneficiary's foreign employer, , noting that both companies
are effectively owned and controlled by a common parent company, of Korea.
The petitioner submitted evidence in the form of its articles of incorporation, stock certificates, California
Notices of Transaction Pursuant to Corporations Code Section 25102, and Certificates of Overseas Direct
Investment issued by the Korean government, to establish that the u.S. company is a direct, wholly-owned
subsidiary of f Korea.
As evidence of the ownership of the petitioner provided a list of shareholders as of
December 31, 2004, issued by the Korea Securities Depository. The document indicates that the company has
issued 5,771,358 s,hares and names the following individuals and entities as the largest stockholders:
1.
2.
3.
4.
5.
574,740 shares
32,897 shares
293,955 shares
89,389 shares
1,778,941 shares
9.96%
0.57%
5.09%
1.50%
30.82%
The stockholder list identifies eight additional shareholders who hold a total of 16.29% of the company's
stock, with individual interests ranging between 1.06% and 4.79%. Finally, the stockholder list indicates that
an additional 2,064,335 stocks, accounting for a total of 35.77% of the total number issued, are dispersed
among 3,694 shareholders.
The petitioner provided a similar document as evidence of the ownership of the petitioner's claimed affiliate,
., as of December 31,2004, which indicates that the company has issued a total
of 24,800,000 shares. The stockholder list identifies the following individuals and entities as the largest
stockholders:
1
2
10,000,000 shares
3,347,890 shares
40.32%
13.5%
WAC 05 15054274
Page 5
3
4
5
6
1,508,560 shares
1,140,150 shares
59,100 shares
10,000 shares
6.08%
4.60%
0.24%
0.04%
The stockholder list identifies seven additional shareholders who hold a total of 11.20% of the company's
issued stock, and indicates that "small stockholders" hold the remaining 5,956 ,290 shares, or 24.02% of the
total shares issued. '
In a letter dated April 26, 2005, the petitioner stated that both
_, Ltd. are publicly traded companies and emphasized that
, largest shareholder of both companies and in fact controls both compames. e pe I loner further stated: "As
both [the petitioner's] present employer, and [the petitioner] are effectively owned and controlled
by the same corporate parent , of Korea, they qualify as affiliates for the purposes of the
"L'" visa regulations ."
The petitioner submitted an annual report for the which identifies
_Ltd . as an affiliate company and group member. The petitioner noted in its April 26, 2005 that its parent '
company is the largest manufacturer of instant noodles in the world and operates five food-manufacturing
plants in Korea . The petitioner further indicated that perates five factories in Korea
that are engaged in manufacturing packaging for Nong Shim products.
On May 11 , 2005, the director issued a notice of intent to deny the petition, advising the petitioner that the
evidence submitted was insufficient "to establish the claimed affiliate relationship between the petitioner and
the beneficiary's foreign employer. Specifically, citing the regulatory definitions related to qualifying
organizations at 8 c.P.R. § 214.2(1)(1)(ii), Matt er ofHughes, 18 I&N Dec. 289 (Comm. 1982), and Matter of
Siemens Medical Systems, Inc. 19 I&N Dec. 362 (Comm. 1986), the director stated :
The u.S. entity.. . is 100% ,owned by
tum, is 30.820/0 owned by
of Korea ("NS-K"), "NS~K", in
of Korea.
ompany of Korea also owns 40 .32% of the foreign entity, which also
is the beneficiary's current employer, Youlchon Chemical Company.
Being a major stockholder of both the U .S. company and the foreign entity, _ ,
•••••••• of Korea holds less than 51 % of both companies and thus does not have a
controlling factor of either company. No voting proxies or other agreements have been
included in the record showing that any degree of control of both entities has been formally
relinquished by other shareholders in favor [of] of Korea.
The evidence fails ,to show that of Korea has effective de jure
or de facto of both organizations .
WAC 05 15054274
Page 6
J
.In a response to the director 's notice of intent to deny the petition, dated May 25 ; 2005, counsel for the
petitioner emphasized that the statutory definition of subsidiary at 8 C.F.R. § 214 .2(l)(ii)(K) includes a legal
entity of which a parent company owns , directly or indirectly, less than half of the entity , but in fact controls
the entity . Counsel further asserted:
Therefore, the express language of the applicable regulations allows for two legal entities to
qualify as affiliates within the meaning of the regulations if their common parent company
owns less than 50 percent of each entity , so long as the parent has control over both entities.
Such is the case 'here, as the common parent, company of Korea,
controls both entities, [the] petitioner. . . and [the beneficiary's] current employer Youlchon,
despite having less than an 50 percent ownership percentage in each entity.
Contrary to the language of the NOlD ... , there is no legal requirement that the parent
company manifest its ownership of the . affiliated subsidiary companies in one of two
exclusive ways, as the Service Center dictates: (1) through the parent company's ownership
of a greater than 50 percent of the subsidiary's voting shares ; or (2) through the parent
company's ownership of less than a majority of the subsidiary's voting shares, but possession
of proxy votes in sufficient quality to bring the parent company's de facto voting interest in
the subsidiary over the 50 percent threshold . In creating this overly restrictive standard , the
Service Center apparently has applied an incomplete interpretation of the principal authority
on the subject, Matter ofHughes, 18 I&N De? 362 (Comm'r 1982).
* * *
Matter of Hughes, supra, -says also that an "ownership and control" relationship is
established, in some corporate structures , with "a relatively small concentration of ownership,
perhaps 10% , in conjunction with dispersal of other stock among many minority investors" ..
. Matter of Hughes suggests that the Service Center may look beyond mere ownership
possession at other factors which would indicate ownership and control.
In support of these assertions , the petitioner re-submitted the shareholder lists for and
••••• 11IIII11IIII11IIII11IIII11IIII11IIIICounsel noted the dispersal of the majority of the stock among hundreds , or in
the case of thousands of shareholders , and emphasized, that " i ~as
effective ownership and control by virtue of the less than fifty percent ownership percentage, but dispersal of
stock among numerous minority investors."
Counsel further asserted that six of members of eight-member board of directors "were
appointed by and represent the interests of " and two directors are actually members
of both company's boards of directors. Similarl y, counsel stated that two of ~hree directors were
appointed by and represent the interests of . Counsel stated that the membership of the
Board of Directors of both companies demonstrates the control of the claimed parent company . Finally ,
counsel noted that "federal law has applied a common sense approach to ownership and control issues in other
contexts, finding that neither a majority ownership of shares, nor an aggregated so-called 'majority', created
WAC 05 150 54274
Page 7
by adding a minority ownership of sharesplus proxy votes, is required." Counsel cited to the
Company Act, 12 U.S .c. § 1841(a)(2), noting the application of "a more realistic and flexible standard."
Counsel also cited to the Securities Act of 1933, as amended , noting that the regulation at 17 C.F.R. §230.405
does not include a percentage of ownership i~its definition of "control" of a company . Counsel requested
that the director "apply the proper standard of determination" and take into account that each affiliate is a
publicly traded company with several thousand shareholders, each with share ownership exceeding 30 percent
by a common holding company, and each with a majority membership of its board of director representing the
interests of the holding company.
In support of its rebuttal to the director's notice of intent to deny, the petitioner provided letters from corporate
officers confirming the membership of the boards of directors of and _
_ , and the appointment of directors to each board by
The director denied the petition on June 8, 2005, concluding that the petitioner had not established that the
U.S. company and the beneficiary's foreign employer have a qualifying relationship. Specifically , the director
stated:
(
Being a major stockholder of both the U.S . company and the foreign entity,
of Korea holds less than 51 % of both companies and thus does not have a
controlling factor of either company. No voting proxies or other agreements have been
included in the record showing that any degree of control of both entities has been formally
relinquished by other shareholders in favor of of Korea . The
evidence fails to show that 0 Korea has effective de jure or
de facto control of both organizations .
The director acknowledged counsel's assertion that the claimed parent company is the largest shareholder of
both companies and that the majority of the stock in each company is dispersed among many mostly
individual investors. The director observed:
The investors are independent individuals, and they are not bound together as a single unit by
an agreement to vote in concert. In the absence of voting agreements establishing control of
both companies by a s ingle individual shareholder or a combination of shareholders , the
petitioner has'not demonstrated that an affiliate or subsidiary relationship exists between the
U.S. and foreign entities .
On appeal, counsel for the petitioner asserts that the director misapplied the governing regulations for
intracompany transferees in finding that the petitioner and the beneficiary's foreign employer are not
affiliates . Counsel again asserts that the director applied an overly restrictive standard in requiring evidence
of proxy votes so as to give . a 51 % voting interest in the foreign and U.S.
entities. Counsel contends that the director interpreted Matter ofHughes too narrowly and did not apply the
decision in its entirety , noting that "minority 'stock ownership -with control of proxy votes which amount to a
majority of voting power" is not the exclusive means by which to establish control of a company in a case in
which a company has no majority owner.
WAC 05 150 54274
Page 8
Counsel requests that the AAO look beyond mere ownership possession and con sider other factors , which
show that appointed the majority ofdirectors on both the U.S. and foreign entity's
. I
boards of directors. Counsel further asserts:
[T]he is in the bus iness of creating plastics and packing for the
Non Shim group's ' food products. The owners and executives of ontrol
[the petitioner] and exists only to service the food
product manufacturing efforts of the_group. It is not a loose "business association
between companies" as the Notice of Denial asserts. In reviewing this decision, the totality of
the circumstances should be reviewed, circumstances such as the structural and functional
connection between the entities in question .
Upon review, counsel's assertions are persuasive . The petmoner has submitted sufficient evidence to
establish that both the U.S . entity ~ent foreign employer are subsidiaries of_
•••• in that ~.holds less than a majority interest in both
companies, but, as 'the largest shareholder among several thousand small shareholders , in fact controls both
companies. See 8 C.F .R. § 214.2(l)(l)(ii)(K.) (defining "subsidiary ," in part , as "a firm , corporation or other
legal entity of which a parent owns , directly or indirectly , less than half of the entity , but in fact controls the
entity.") Accordingly, the petitioner and the beneficiary's foreign employer, as subsidiaries ultimately owned
and controlled by the same parent company, are affiliates as defined at 8 C.F .R. § 214.2(l)(l)(ii)(L)(1).
The AAO concurs with counsel's assertion that the director applied an overly restrictive interpretation of how
a petitioner may establish control through minority ownership. Although Matter of Hughes preceded the
regulatory definitions of "subsidiary" and "affiliate ," the decision remains a useful precedent and is instructive
in interpreting the definitions that were eventually incorporated into the regulations in 1987. Matter ofHughes
explored in some detail the meaning of subsidiary and affiliate in various contexts, as follows:
In order to be deemed affiliates, companies should be bound to one another by substantial,
but not necessarily majority, ownership of shares. The affiliation may be indirect as in the
1 Counsel subsequently supplemented the appeal on May 3 , 2006, citing a recent USCIS adopted decision ,
Matter ofChawath e, A74 254 994 (AAO, January 11,2006) as instructive in determining corporate control of
publicly traded corporations . Counsel requests that theAAO adopt "an analogous, fle xible" approach to
determining corporate control in the instant matter. The cited matter involved an application to preserve
residence for naturalization purposes in which the AAO considered the issue .of whether a publicly traded
corporation may be considered an "American firm or corporation ," pursuant to section 316(b) of the
Immigration and Nationality Act, 8 U.S.c. § 1427(b), when its stock ownership is w idely dispersed and there
is no readily available means to determine the nat ionality of its owners. As specifically stated in the AAO's
decision, Matter ofChawathe applies ~)llly to the preservation of residence for purposes of naturalization . The
analysis of a publicly traded corporation 's nationality and the term "American firm or corporation" does not
apply to the determination of corporate ownership and control in the context of a nonimmigrant intracompany
transferee petition under section 101(a)(l5)(L) of the Act. ·
WAC 0515054274
/' Page 9
case of two' subordinate organizations related to each other by reason of a parent corporation
owning a significant portion of the subordinates' stocks. It may also be applied directly to the
relationship between two legal entities one of which owns a significant percentage (but not
necessarily a majority) of the stock of the other. More importantly , affiliation requires that the
financial link between two entities involve control by one o ver the management of another. In
the case of entities related to each other as siblings,the parent entity must have both control
and a financial interest in the subordinate companies . Control may be de jure by reason of
ownership of 51% ofoutstanding stocks of the other entity or it may be de facto by reason of
control of voting shares through partial ownership and by possession of proxy votes. In some
corporate structures, a relatively small concentration of ownership , perhaps 10%, in
conjunction with dispersal of other stock among many minority investors may convey the
right to appoint the board of directors. In examining control, the Service may take into
consideration one company's ownership of patents , processes, copyrights, or other elements
which are used by a related company .'Because a structural "or economic link is viewed as a
characteristic of affiliation by authorities, the foregoing elements of control unaccompanied
by significant ownersh ip would not alone be considered as establishing affiliation.
From the foregoing discussion, the terms "affiliate" or "affiliation" may be broadly used to
describe business entities which have relationships with one another based upon ownership
and control. Ownership need not be majority if control exists. The term "subsidiary" is a more
specific form of affiliation in which the company so described is subordinate to the control of
another. A company which exercises control of another through ownersh ip is usually referred
to as a "parent company ." The term "affiliate ," is also sometimes more specifically used to
describe the relationship between two ,companies which have no direct linkage but are '
directed, controlled, and at least partially owned by the same parent corporation.
18 I&N Dec. at 292-3.
Thus, while the director properly recognized that majority control by a shareholder that owns less than 51
. percent of an entity may be demonstrated through the submission of proxy votes giving that shareholder a
majority voting interest in a subsidiary company, counsel correctly asserts that proxy votes are not an
exclusive means by which to establish control over an entity of which the claimed parent owns less than a 51
percent interest.
Matter ofHughes differentiates between situati?ns in which proxy votes may reasonably be utilized in order
to establish control, and situations involving large corporations with widely dispersed ownership structures.
The latter situation, as discussed in Matter ofHughes , clearly allows for and may require the consideration of
other types of evidence to establish the requisite control. The petitioner and the foreign entity in this matter
have a common, singlelarge shareholder , which enjoys a "concentration of ownership" in each company
more significant than the 10 ' percent contemplated by the Commissioner in Matter of Hughes. This large
concentration of ownership among the extremely diverse holdings of minor shareholders has in fact conveyed
the right of the single large shareholder, Nong Shim Holdings Co. Ltd., to appoint the majority of the
WAC 05 15054274
Page 10
members of each company's boards of directors', thus vesting
both subsidiary companies.
with effective control of
Further, a review of the totality record , including the Nong Shim Group's annual report , supports a conclusion
that the petitioner, the beneficiary's foreign employer, and are bound together
functionally and structurally , as well as through significant common ownership interests, in a single corporate
group with common management and control. The petitioner has submitted sufficient evidence to establish a
qualifying affiliate relationship between the U.S . entity and the beneficiary's foreign employer , consistent
with the regulation at 8 C.F.R. § 214.2(1)(1)(ii)(L). Accordingly, the director's decision dated June 8, 2005,
will be withdrawn.
Although the director's decision will be withdrawn , the AAO finds that the record as presently constituted
does not contain sufficient evidence to establish : (1) that the petitioner is doing business in the United States ,
as defined by 8 C .F.R. § 2i4.2(1)(1)(ii)(H); or (2) that the beneficiary will be employed in a primarily
managerial or executive capacity in the United States. Accordingly, the petition will be remanded to the
director for further action and entry of a new decision , consistent with the discussion below .
In order for the petitioner to be considered a "qualifying organization" as required by 8 C.F.R. §
214.2(1)(3)(i), the petitioner must establish that the it "is or will be doing business ... as an employer in 'the
United States." 8 C.F.R. § 214.2(1)(1)(ii)(G)(2). Pursuant to the regulation at 8 C.F.R. § 214.2(1)(1)(ii)(H)
"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.
As noted above, the nonimmigrant petition was filed on May 3 ,2005. The petitioner indicated on Form 1-129
that the compariy was established in 2003 and projected annual gross income of $17,000,000. The petitioner
did not indicate that the beneficiary would be coming to the United States to open or be employed in a new
office.
In support of the petition, the petitioner submitted its 2003 IRS Form 1120 , U.S. Corporation Income Tax
Return, which indicated that the company earn ed "interest income" only in 2003 . The petitioner also
submitted audited financial statements for the U.S. company , which was described by its independent auditors
as "a development stage enterprise ," for the years ended December 31 , 2003 and December 31, 2004 . The
statements and accompanying notes confirm that , as of December 31, 2004, the company had not commenced
its intended manufacturing and distribution operations in the United States , and had not yet earned any
income from the sales of goods or services. The notes to the financial statements indicated "since inception,
the Company has devoted substantially all of its efforts towards acquiring property and construction of a new
manufacturing facility which is to be completed during 2005."
Thus, while the record includes evidence of a large investment in the U .S. company by its foreign parent and
substantial preparations undertaken in antic ipation of commencing operations in the United States , it is not
possible to conclude based on the current record that the company was engaged in the provision of goods. .
and/or services as of the date this petition was filed. Accordingly , the director is instructed to request
documentary evidence as he deems appropriate to establish that the petitioner was in fact doing business in a
WAC 05 15054274
Page; 11
regular, systematic, and continuous manner as of May 2005. The petitioner must establish eligibility at the
time of filing the nonimmigrant visa petition . A visa pet ition may not be approved at a future date after the
petitioner or beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N. . .
Dec. 248 (Reg : Comm. 1978) .
Another issue not addressed by the director is whether the petitioner established that the beneficiary will be
employed by the United States entity in a primarily managerial or executive capacity . The petitioner seeks to
employ the beneficiary as its chairman and 'has :submitted a job description that indicates his proposed
.executive level authority over the company's managerial and execut ive employees, policies , objectives,
.departments and functions.
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, 8 U .S.c. § 1101(a)(44)(B).
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
managerial 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-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 from higher level
executives, the board of directors, or stockholders of the organization ." Id.
While the position description submitted includes duties which could be considered executive in nature , the
. petitioner's description of the beneficiary 's duties cannot be read or considered in the abstract , rather the
AAO must determine based on a totality of the record whether the description of the beneficiary 's duties
represents a credible perspective of the beneficiary's role within the organizational hierarchy. The petitioner
has .not submitted sufficient evidence to establish the size and organizational structure of the U.S. entity and
therefore it cannot be concluded that the company has a reasonable need for the beneficiary's services in a
primarily executive capacity.
The nonimmigrant petition was filed on May 3 ,'2005. The petitioner indicated on Form 1-129 that it had 170
employees as of the date of filing. However, in support of the petition, the petitioner submitted its payroll
records for the pay period ended on March 20 , 2005, which reflected a total of only 22 employees. 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)., As noted above, the record does not contain evidence that the petitioner had actually commenced
manufacturing operations as of May 2005, which ,raises questions as to whether the stated figure of 170
employees represented the company's projected hiring , as opposed to the petitioner's actual staffing levels as
of the date of filing. The petitioner did not submit an organizational chart in support of the petition , and thus
it is unclear what "executives and managers" and "department heads" the beneficiary will direct in his position
as chairman. Going on re cord without supporting documentary evidence is not sufficient for purposes of
/
WAC 05 15054274
. Page 12
meeting the burden of proof in these proceedings . Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft of California, 14 I&NDec : 190 (Reg. Comm. 1972)).
In order to address these deficiencies , the petition will be remanded to the director who shall , at a minimum,
request that the petitioner submit payroll records and state quarterly wage reports reflecting the petitioner's
staffing levels as of May 2005 , a detailed organizational chart depicting the company's structure as of the date
of filing which clearly ident ifies all of the beneficiary's direct and indirect subordinates by name and position
title, and any other evidence the director finds necessary in order to establish that the beneficiary will be
employed by the petitioning company in a qualifying managerial or executive capacity.
Although the petitioner has overcome the director's sole ground for denial of the petition, the evidence of
record raises underlying questions regarding eligibility . Further evidence is required in order to establish that
the petitioner and beneficiary meet the requirements of the requested classification. The director is instructed
to issue a request for evidenceaddressing the issues discussed above, and any other evidence he deems necessary.
ORDER: The decision of the director dated June 8 , 2005 is withdrawn. The matter is remanded for
further action and consideration consistent with the above discussion and entry of a new decision .