remanded L-1A Case: Restaurant

U.S. Department of Homeland Security 
20 Mass. Ave, N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC 04 025 525 13 Ofice: CALIFORNIA SERVICE CENTER Date: A~R 1 
480S 
IN RE: Petitioner: 
Beneficiary 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 1 Ol(a)(l5)(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 ofice. 
Wobert P. Wiernann, Director 
'1 Ad inistrative Appeals Ofice 
4 
WAC 04 025 52513 
Page 2 
DISCUSSION; The Director, California Service Center, denied the petition for a nonirnmigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will 
be withdrawn and the matter remanded to the service center for additional action and a new decision. 
The petitioner seeks to employ the beneficiary temporarily in the United States as .an L-1A nonimmigrant 
intracompany transferee pursuant to section 10l(a)(15)(L) of the Immigration and ~ationalit~ Act (the Act), 8 
U.S.C. 5 1 lOl(a)(lS)(L). The U.S. petitioner, a limited liability company organized in the State of Nevada, is 
described as an Italian restaurant, and seeks to employ the beneficiary as its chief executive officer. The 
petitioner claims that it is the affiliate of or ,-I 
, located in Genoa, Italy. 
The director denied the petition, determining that the petitioner had failed to establish that the petitioner and 
the organization which employed the beneficiary in Italy were qualifying organizations. 
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 submits a brief and additional 
evidence which seeks to clarify the petitioner's relationship with the foreign entity. Counsel asserts, in part, 
that the petition should be approved as the service center has approved other petitions based on the same 
claimed qualifying relationship.' 
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section I0 l(a)(lS)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a speciaIized 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 organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (I)(l)(ii)(G) of this section. 
that the California L-IA petitions 
04 029 52233) an 
between itself and the . Although each 
petition is a separate proceeding with a separate record, this matter will be remanded to provide the petitioner 
the opportunity to submit specific evidence and to allow the service center the opportunity to EGisistentIy 
adjudicate these decisions. As discussed herein, if the petitioner does not establish the claimed quali~ing 
relationship, and the approved petitions are in fact based on the same purported relationship, the petitions 
would appear to have been approved in gross error and the director should review the petition approvals for 
revocation. See 8 C.F.R. 5 214.2(1)(9)(iii). 
WAC 04 025 52513 
Page 3 
(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 hirnlher 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 primary issue in the present matter is whether the petitioner and the foreign organization are qualifying 
organizations as defined by 8 C.F.R. 3 214.2(1)(l)(ii)(G). The regulation defines the term "qualifying 
organization" as a United States or foreign firm, corporation, or other legal entity which: 
(I) Meets exactly one of the qualtfying relationships specified in the definitions of a parent, branch, 
affiliate or subsidiary specified in paragraph (1)(1Xii) 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 baSf-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 intrawmpany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)&) of the Act. 
Additionally, the regulation at 8 C.F.R. 4 214.2(1)(1Xii) provides: 
(1) "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 fm, 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) "Affiliate" means 
(I) One of two subsidiaries both of which are owned and controlled by the same parent or 
individual, or 
WAC 04 025 52513 
Page 4 
(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, or 
(3) In the case of a partnership that is organized in the United States to provide accounting 
services along with managerial and/or consulting services and that markets its accounting 
services under an internationally recognized name under an agreement with a worldwide 
coordinating organization that is owned and controlled by the member accounting fms, a 
partnership (or similar organization) that is organized outside the United States to pr~~de 
accounting services shall be considered to be an affiliate of the United States partnership if it 
market. its accounting services under the same internationally recognized name under the 
agreement with the worldwide coordinating organization of which the United States partnership 
is also a member. 
In a letter dated October 3 1.2003. counsel for the ~etitioner explained that the beneficiary had been employed 
. - is the foreign entity with whom the ~jirtitioner claims to have a qualifying 
relationship, In the initial petition, counsel claimed that the U.S. petitioner and ,are affiliates. 
The U.S. petitioner is a limited liability company which operates Italian-style restaurants in the United States. 
The U.S. petitioner currently operates a restaurant known as -1 and 1 
in Las Vegas, Nevada. 
Counsel's October 3 1, 2003 letter attempts to clarify the nature of the quaIi@ing relationship between the U.S. 
petitioner and . Specifically, counsel indicates that indirectly owns a 
minority interest in the U.S. petitioner though its alleged subsidiary, Marketing Overseas Limited 
-1arketing). Marketing, in exchange for providing management services to the U.S. 
petitioner, received restrictive shares of stock equal to a 5% ownership interest in the U.S. petitioner. 
Specifically, a Management Services Agreement between the U.S. petitioner and Marketing 
provides that Marketing will ensure that the restaurant operated by the U.S. petitioner, 
- and ," delivers effective, efficient, and quality food services. 
Counsel submitted a copy of this agreement as well as a Licensing Agreement between the U.S. petitioner and 
Marketing, which permits the U.S. petitioner to make exclusive use of the mark m." 
Counsel concluded by stating that the U.S. petitioner's board of directors have agreed that Marketing 
would have the final authority an all executive decisions involving the U.S. petitioner, although no 
documentation corroborating this statement was submitted. 
The director found the initial evidence submitted with the petition to be insufficient to qualify the petitioner 
for the benefit sought, and consequently issued a request for evidence on November 18,2003. In the request, 
the director required the petitioner to submit evidence that definitively established its claimed qualifying 
relationship with the ltalian company. Specifically, the director requested the "foreign company's" Articles of 
Incorporation, Annual Report, the minutes of the relevant shareholder's meeting which demonstrated the 
company's stockholders and the percentages of stock owned, and a detailed list of the company's owners, their 
WAC 04 025 525 13 
Page 5 
percentage of ownership, and any corporate or government affiliations. The director did not specify which 
"foreign company" the requested evidence should pertain to: the Restaurant, the a-, or 
The director also requested that any documents not written in the English 
language be accompanied by a full English translation that was certified by a translator as complete and 
accurate, in addition to a statement that the translator was competent to translate from the foreign language 
into English. With regard to the U.S. entity, the director requested evidence that the foreign entity has 
actually paid for its ownership in the U.S. petitioner, and requested copies of wire transfers, canceled checks, 
and any other relevant documentation demonstrating the exchange of funds. 
On February 4, 2004, counsel for the petitioner submitted a detailed response to the director's request. With 
regard to the foreign entity, counsel submitted a document that he claimed was similar to its Articles of 
Incorporation. He stated that the foreign entity did not file an annual report, and did not discuss or submit 
evidence to respond to the director's request for a list of shareholders and a copy of the relevant minutes of the 
shareholders meeting which delegated the stock interests of the foreign entity. With regard to the U.S. 
petitioner, counsel stated that the director's request for wire transfers was an "onerous demand," and stated 
that the U.S. petitioner and the foreign entity '3ust don't know where such documents are." Finally, counsel 
resubmitted the list of shareholders in the U.S. entity. 
In the denial, the director did not recognize the claimed indirect ownership interest of the 
petitioner through - ' - - - ' The director concluded that the record owners of both 
. the U.S. and Italian entities did not own the same share or proportion of both entities as required by the 
regulations. The director subsequently concluded that the petitioner's claim of affiliation with the foreign 
entity was invalid. The director additionally examined the claimed relationship for compliance with the 
regulatory definition of subsidiary, but found that this relationship had also not been demonstrated. As a 
result, the petition was denied on February 23, 2004. 
The petitioner appealed the decision, asserting that it has in fact demonstrated that a qualifying relationship 
exists between the parties, and indicates that numerous prior petitions had been granted on the basis of this 
same relationship by the service center. Counsel for the petitioner asserts that the director erroneously 
concluded that a qualifLing relationship did not exist, and submits detailed arguments and additional evidence 
in support of this claim. 
The critical relationship that must be established is that between the U.S. petitioner and the beneficiary's 
overseas employer. The regulation and case law confm 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 hll 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, 19 I&N Dec. at 595. 
WAC 04 025 525 13 
Page 6 
Upon review of the record of proceeding, the petitioner has not established that it has the required qualifying 
relationship with the Italian entity. 
In this case. the ~etitioner must demonstrate a aualifving relations hi^ between the beneficiary's foreim - 
employer in 1taly,staurant, and - in Las Vegas, Nevada. Th; petitioner 
claims that the two entitles are "affiliatest1 under the regulations. Counsel for the petitioner provided 
documentary evidence outlining the shareholder interests in the U.S. and foreign entities, and has 
supplemented this evidence with explanatory statements and supporting documentation that discuss the nature 
of the relationship and agreements between the entities. 
Specifically, with regard to the U.S. petitioner, counsel has submitted the minutes of the Meeting of Members 
for the petitioner dated February 4,2003, and a List of Members and Percentages, identified as "Exhibit A" of 
its Operating Agreement. Both documents list the same nine shareholders and their percentage of ownership. 
No membership certificates, ledgers, or evidence of consideration rendered for these interests have been 
provided. The petitioner did not submit organizational documents or its Operating Agreement. 
submitted a declaration by 
dated February 25, 2005, 
Restaurant in the United States, and a 
' which lists the names and monetary investments 
of seven alleged shareholder interests of the foreign parent company. 
This document is accompanied by an abbreviated and uncertified English translation. 
Finally, counsel submitted a copy of a Management Services Agreement between the U.S. petitioner and 
marketing, executed in November 2000 (no day was specified), as well as a copy of a Licensing 
Agreement between the U.S. petitioner and Marketing dated November 2 1,2000. 
Upon review, the above noted documentation is insufficient to demonstrate that the foreign entity, = 
Restaurant, and the U.S. entity, , are owned by the same parent or the same group of 
individuals, as required to establish an affiliate relationship under the regulations. See 8 C.F.R. 
$ 214.2(1)(l)(ii)(L). Additionally, the submitted evidence does not establish the foreign entity's ownership of 
the petitioner, thereby establishing a parent-subsidiary relationship, despite the management and licensing 
agreements submitted as evidence of its control of the petitioner. Furthermore, the AAO notes that despite 
the director's specific requests, the petitioner failed andlor refused to submit requested documentation, such as 
wire transfers, Articles of Incorporation, and complete, certified translations. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 
103.2(b)(14). Additionally, the non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. 8 C.F.R. $ 103.2(b)(Z)(i). 
Counsel submitted with the initial petition and again in response to the director's request for evidence a 
statement of the ownership interests in the U.S. petitioner, identified as "Exhibit A" of its Operating 
Agreement. Specifically, this document indicates that the U.S. petitioner's members and their percentages of 
ownership are as follows: 
WAC 04 025 52513 
Page 7 
- 
claim 
- 
subs owns a five 
With regard to the ownership of either ~estaurant or the ~rou~, the petitioner submitted a 
document entitled '-," which counsel asserts is similar to articles of incorporation 
in the United States. This document is accompanied by abbreviated, incomplete, and uncertified translations 
which appear to indicate that the foreign entity is owned as follows: 
Amount invested tin Lire1 
2.000.000 
2.000.000 
3.200.000 
3.200.000 
3.200.000 
3.200.000 
3.200.000 
WAC 04 025 525 13 
Page 8 
companies which o& restaurant in Genoa (ITALY) and restaurant in Las Vegas 
(NEVADA) . . . ." The petitioner provided no clarification with regard to the two companies mentioned in the 
statement. 
Based upon the above information, the AAO can easily determine that an affiliate relationship does not exist 
between the petitioner and Group, the named foreign entity. By definition, "affiliate" means one of 
two subsidiaries both of which are owned and controlled by the same parent or individual, or 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. See 8 C.F.R. tj 214.2)(1)(1)(ii)(L)(I)-(2). By virtue of 
the multiple and diverse owners listed above as well as the uncertainty of the documentation provided, it is clear 
that the U.S petitioner and Group are not one of two subsidiaries owned and controlled by the same 
parent or individual. Furthermore, since there are no common individuals with the same ownership percentages 
and control on either of these lists, it cannot be concluded that the petitioner and Group are entities that 
are owned and controlled by the same group of individuals. 
The proper question before the AAO, therefore, is whether the petitioner is the subsidiary of Group, 
the named foreign entity through which the petitioner claims to have a qualifying relationship. The regulation 
at 8 C.F.R. Ej 2 14.2(I)(l)(ii)(K) defines subsidiary as: 
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. 
By virtue of the five percent ownership interest, eligibility hinges on the last hrase .of the definition. The AAO 
must determine whethe Group, though its claimed subsidid Marketing, indirectly owns less 
than half of the petitioner but in fact controls the petitioner so that a subsidiary relationship is established. 
In part due to the imprecise nature of the director's request for evidence and the resulting denial, the petitioner 
has not submitted sufficient evidence to establish the claimed qualifying relationship. The record remains 
confbsed regarding the purportedly related companies and their ownership. 
First, although counsel asserts in his February 4, 2004 letter that the above percentages are in fact the current - 
ownership interests of the foreign entity, the document entitled ' " allegedly the 
equivalent of the foreign entity's Articles of Incorporatioc, is not translated and contains no indicators to 
definitively establish that the document in parent company. Instead, this 
document identifies an organization known as which is not identified as a related 
foreign entity. Without a complete in the record to verify 
the ownership of Group and its alleged subsidiary, Marketing, with whom the petitioner 
WAC 04 025 525 13 
Page 9 
claims to have a qualifying relationship. Furthermore, it is uncertain whether this document is intended to 
show the ownership of Group, the named foreign entity, .Marketing, its alleged subsidiary, 
or Restaurant. The AAO, therefore, cannot determine whether a parent-subsidiary relationship 
exists between Group and the petitioner. Because the petitioner failed to submit a certified 
translation of this document, the AAO cannot determine whether the evidence supports the petitioner's claims. 
See 8 C.F.R. $ 103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any weight in 
this proceeding. 
Second, despite counsel's repeated assertions that the qualifying relationship exists, the assertions of counsel 
will not satisfy the petitioner's burden of proof. Counsel states that the U.S. petitioner is owned by the 
Group, and further declares tha- Marketing has been given authority to make all executive 
decisions regarding the U.S. petitioner. However, no documentation supporting these claims has been 
provided. Without documentary evidence to support the claim, the assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter Of Lauremo, 19 I&N Dec. 1 
(BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BLA 1980). More important is the alleged 
ownership structure of the foreign entity and its eventual relationship with the petitioner. Counsel asserts that 
Restaurants was the foreign employer of the beneficiary. Counsel then asserts that - 
Restaurants is a part of Group. Next, counsel asserts that~arketin~ is a subsidiary of 
Group, and that -arketing in fact controls the petitioner as evidenced by the management 
and licensing agreements submitted. Thus, counsel .concludes that Group indirectly owns and 
controls the U.S. petitioner through ~arketin~, and that Marketing is the final link in the 
chain of ownership and control. 
As discussed above, there is no corporate documentation showing the ownership of Group, the 
entity which the petitioner identifies is the qualifying organization in this matter. In addition, there is no 
documentation showing the relationship between the beneficiary's alleged foreign employer, - 
Restaurant, with ~rou~. Furthermore, there is no documentation with regard to the ownership of 
Marketing. Although the petitioner claims that ~arketin~ is the subsidiary of - 
Group, the petitioner has submitted no documentation evidencing that Group is in fact its parent. 
While indirect ownership is recognized for purposes of determining a qualifying subsidiary relationship under 
8 C.F.R. 9 214.2(1Xl)(ii)(J), such ownership cannot be assumed without documentary evidence supporting 
such a contention. Since the ownership of Marketing it thus crucial for purposes of this 
examination, the omission of any evidence pertaining to this company precludes the AAO fiom determining 
that a qualifying parent-subsidiary relationship exists. 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). 
The decision of the director will be withdrawn and the matter remanded, so that the director may request this 
specific evidence relating to the claimed relationship between the petitioner,- 
~estaurant, Marketing and Group. As noted, the incomplete and inadequate 
translations previously submitted will not suffice. All silbmitted documents must be fully translated and 
certified, in compliance with 8 C.F.R. 5 103.2(b)(3). 
WAC 04 025 525 13 
Page 10 
Finally, it is noted for the record that the Management Services Agreement and the Licensing Agreement do 
not establish a qualifying relationship between the two entities. The record indicates that the beneficiary will 
be employed in the United States as a representative of a foreign entity that has a contractual agreement with 
a company in the United States. However, a qualifying relationship must be based on ownership and control; 
a contractual relationship will not establish a qualifying relationship. Matter of Schick, 13 I&N Dec. 647 
(Reg. Comm. 1970) (finding that no qualifying relationship exists where the association between two 
companies was based on a license and royalty agreement that was subject to termination since the relationship 
was "purely contractual"). The Management Services Agreement between the foreign organization and the 
petitioning U.S. corporation can'be terminated as opposed to one in which the foreign organization and a 
domestic organization are permanently tied together and not limited to a single, specific venture. In addition, 
the Licensing Agreement between the parties can similarly be terminated as provided in Section 7(a) of the 
agreement, which provides that the "Licensee may terminate the agreement at any time by providing the 
Licensor with 30 days notice or without notice upon a breach of this Agreement by Licensor." Consequently, 
it cannot be determined that the foreign parent company obtained ownership and control of the U.S. petitioner 
based on this agreement. As previously discussed, the record contains no evidence such as stock certificates, 
by-laws, or articles of incorporation for both entities that would indicate an existing qualifying relationship 
between the petitioning entity and the U.S. organization. 
Counsel for the petitioner notes that Citizenship and Immigration Services (CIS) approved other petitions that 
had been previously filed by the petitioner. The director's decision does not indicate whether he reviewed the 
prior approvals of the other nonimmigrant petitions. If the previous nonimrnigrant petitions were approved 
based on the same unsupported and contradictory assertions that are contained in the current record, the 
approvals 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 Scientology International, 19 I&N Dec. 
593, 597 (Cornm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged 
errors as binding precedent. Sussex Engg. Ltd v. Montgomely, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. 
denied, 485 U.S. 1008 (1988). 
If the previous petitions were approved based on the same claimed relationship as the current petition, the 
director should review the approved petitions for possible revocation. See 8 C.F.R. tj 214.2(1)(9)(iii). 
Furthermore, the assertion that a service center previously approved a similar case will not establish eligibility 
in a petition that is before the AAO for review. It must be.emphasized that that each petition filing is a 
separate proceeding with a separate record. See 8 C.F.R. 5 103.8(d). In making a determination of statutory 
eligibility, the A40 is limited to the information contained in that individual record of proceeding. See 8 
C.F.R. 103.2(b)(16)(ii). 
The AAO's authority over the service centers is comparable to the relationship between a court of appeals and 
a district court. Even if a service center director had approved the nonimmigrant petitions on behalf of the 
beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. Louisiana 
Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. 
denied, 122 S.Ct 5 1 (2001). The AAO is not required to approve applications or petitions where eligibility 
WAC 04 025 52513 
Page 11 
has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Mar 
of Church Scientology International, 19 I&N Dec. 593,597 (Comm. 1988). 
In addition, the director should request additional evidence regarding the beneficiary's overseas position. 
Beyond the decision of the director, the record contains insufficient evidence to establish that the overseas 
company employed the beneficiary in a primarily managerial capacity. Although counsel and the petitioner 
claim in their letters dated October 31, 2003 that the beneficiary is a senior executive and that he assists with 
the management of the company, documents submitted in support of the foreign entity's business and 
reputation seem to indicate that the beneficiary was a chef. For exam le, in the co y of the - 
Restaurant website and company profile provided as Exhibit 21, -indicates that "the 
cooking is done by my five sons and daughter-in law." Furthermore, the incomplete translation of Exhibit 14, 
which is a statement attesting to the beneficiary's membership in , appears to indicate 
that the beneficiary is a "kitchen chef." The inconsistencies between counsel's assertions and the submitted 
evidence raise serious doubts regarding the claim that the foreign company primarily employed the 
beneficiary in a qualifying managerial or executive capacity. See 8 C.F.R. fj 214.2(1)(3)(iv). 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 suMice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BlA 1988). For 
this additional reason, the petition may not be approved. 
Furthermore, the director should request additional evidence regarding the beneficiary's proffered U.S. 
position. The petitioner has not demonstrated that the beneficiary will be employed in a managerial or 
executive capacity while in the United States. In support of the beneficiary's intended duties, the petitioner 
provided an excerpt from the Department of Labor's position description of "Chief Executive." In addition, 
counsel states in his October 3 1, 2003 letter that the beneficiary will be appointed Executive Manager, and 
will determine and formulate policies and provide overall direction to the U.S. petitioner. Counsel also 
claims that the beneficiary's duties will be both managerial and executive. 
This evidence is insufficient for two reasons. First, the description fails to identify with specificity the exact 
duties of the beneficiary. 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. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 
41 (26. Cir. 1990). Second, counsel merely concludes that the beneficiary will hction as a manager and an 
executive. However, conclusory assertions regarding the beneficiary's employment capacity are not 
sufficient. Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden 
of proof. Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 11 03, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. 
Cir. 1990); Ayv Associates, Inc. v. Meissner, 1997 WL 188942 at "5 (S.D.N.Y.). For this additional reason, 
the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met in part due to the 
director's inadequate request for evidence and the resulting imprecise decision. Accordingly, the director's 
WAC 04 025 525 13 
Page 12 
decision will be withdrawn and the matter remanded to the director to request additional evidence and enter a 
new decision. 
ORDER: The decision of the director is withdrawn. The matter is remanded to the director for an 
additional request for evidence and a new decision, which shall be certified to the AAO for 
review.