remanded L-1A Case: Seafood Import

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY 
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File: WAC-03-231-50538 Office: CALIFORNIASERVICECENTER Date: jLt4 I ~,l~s 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 l(a)(15)(L) 
IN BEHALF OF PETITIONER: 
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. 
fiobert P. Wiemann, Director 
Administrative Appeals Office 
WAC-03-23 1-50538 
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 petition to the director for entry of a new decision. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its President as an L-1A 
nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1 101 (a)(15)(L). The petitioner is a corporation organized in the State of California 
that operates as an importer and marketer of fish. The petitioner claims that it is the subsidiary of Intenybflot, 
LLC, located in Russia. The beneficiary was initially approved for L-1 status in the United States, and the 
petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel notes that the AAO previously sustained an 
appeal from the director's denial of a Form 1-140 immigrant petition filed by the petitioner on behalf of the 
beneficiary. Counsel asserts that the facts and evidence in the present matter are the same, and thus the 
director's denial of the present petition contradicts the AAO's prior decision. In support of this assertion, 
counsel submits a brief and a copy of the AAO's prior decision. 
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 issue in the present matter is whether the beneficiary will be employed by the petitioner in a primarily 
managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 9 1 10 1 (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; 
WAC-03-23 1-50538 
Page 3 
(iii) if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 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 submitted with the initial petition on August 7, 2003, the petitioner indicated that "[the 
beneficiary's] continuing presence is essential to stay competitive in current economic conditions, as well as 
to bring the business effort to completion." 
On October 17, 2003, the director requested additional evidence, in part including evidence regarding the 
beneficiary's employment capacity and subordinates in the United States and abroad. In a response dated 
January 8, 2004, the petitioner provided the requested documentation regarding the beneficiary, including a 
letter that discusses the beneficiary's duties and role with the petitioner and foreign entity. The petitioner 
further submitted a breakdown of the beneficiary's tasks in the United States, including the percentage of time 
he devotes to his respective duties. 
On February 4, 2004, the director denied the petition. The director determined that the petitioner did not 
establish that the beneficiary will be employed in the United States in a primarily managerial or executive 
capacity. The director stated that "it appears that the beneficiary has been andlor will be performing many 
aspects of the day-to-day operations of [the petitioner.]" The director further found that "[tlhere is insufficient 
detail regarding the actual duties to be performed by the beneficiary, and the realistic percentage of time 
devoted to these duties." The director determined that the beneficiary's duties would be largely non- 
qualifying sales and market research tasks. The director finally noted that the evidence of record does not 
WAC-03-23 1-50538 
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support that the beneficiary will manage a subordinate staff of professional, managerial, or supervisory 
personnel who will relieve him from performing non-qualifying duties. 
Upon review, the petitioner has shown that the beneficiary will be employed in a primarily managerial and 
executive capacity. When examining the executive or managerial capacity of the beneficiary, the AAO will 
look first to the petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). In the instant matter, 
the evidence of record reflects that the beneficiary serves as the President of both the foreign entity and the 
petitioner. The petitioner submitted documentation to show that the foreign entity is a large-scale fishing 
company, operating four factory long-liners and one crab boat, with distribution primarily in Korea and the 
United States. The petitioner explained that it is in the process of eliminating intermediary distributors so that 
it can sell its products directly to end clients, and thus the beneficiary frequently travels to the United States 
from Russia to establish and manage these relationships. The petitioner provided an organizational chart that 
reflects that the foreign entity has numerous layers of management, with the beneficiary serving as the 
president with managerial authority over the entire staff. The petitioner provided an organizational chart for 
its operations, reflecting that the beneficiary manages two subordinate employees in the United States, a 
Managing Director and an Assistant Manager, as well as three independent distributors in Washington, 
Oregon, and Florida. The evidence of record supports that the beneficiary's subordinates include managerial 
and supervisory employees. See section 101(a)(44)(A)(ii) of the Act. The petitioner submitted a breakdown 
of the beneficiary's duties, including the percentage of time he devotes to his respective tasks which reflects 
that the majority of his time is devoted to managerial and executive duties. See sections 101(a)(44)(A) and 
(B) ofthe Act. 
Based on the foregoing, the petitioner has shown that the beneficiary will be employed in a primarily 
managerial or executive capacity, as required by 8 C.F.R. 5 214.2(1)(3). The director's decision on this issue 
will be withdrawn. 
Beyond the decision of the director, the record as presently constituted does not establish that the petitioner 
has a qualifying relationship with the beneficiary's foreign employer. On Form 1-129, the petitioner indicates 
that it is the subsidiary of the beneficiary's foreign employer. However, the petitioner's supporting 
documentation provides that the beneficiary owns 100 percent of the stock of both the petitioner and the 
foreign entity. Thus, if this ownership is established, the two entities are affiliates due to being "owned and 
controlled by the same . . . individual." 8 C.F.R. 5 214.2(1)(1)(ii)(L)(I). 
The petitioner failed to submit adequate evidence with the initial petition to show the ownership of it and the 
foreign entity. The director requested further evidence of the claimed qualifying relationship, including: (1) the 
foreign entity's annual report that lists all affiliates, subsidiaries, and branch offices, and the percentage of 
ownership; (2) the foreign entity's articles of incorporation; (3) the foreign entity's sole proprietorship regstration 
documents which clearly indicate the ownership of the company; (4) minutes of the petitioner's meetings that list 
the stock shareholders and the number and percentages of shares owned; (5) the petitioner's articles of 
incorporation; (6) the petitioner's sole proprietorship registration documents which clearly indicate the ownership 
of the company; and (7) evidence that the petitioner has been authorized to operate as a branch office in the State. 
In response, the petitioner provided: (1) the foreign entity's charter; (2) the petitioner's articles of incorporation; 
and (3) the petitioner's 2002 IRS Form 1 120, U.S. Corporate Income Tax Return. 
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The regulation 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 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. 
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 of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, CIS is unable to determine the elements of ownership and control. 
The petitioner provided sufficient evidence to show that the foreign entity is owned by the beneficiary. Yet, the 
petitioner failed to fully respond to the director's request for evidence of its ownership, and the evidence of record 
is not adequate to show that the beneficiary is the sole shareholder. While the petitioner's articles of incorporation 
provide that it is authorized to issue one million shares of stock, it failed to provide documentation of how many 
shares have been issued and who owns the shares. The single document that states who owns the petitioner's 
stock is its 2002 IRS Form 1 120, which provides that the beneficiary owned 100 percent of the petitioner's shares 
during the covered period. Yet, this document fails to account for the petitioner's stock ownership during the 
eight months prior to filing the petition. By itself, it is insufficient to show the ownership of the petitioner as of 
the date of filing. 
As the director did not discuss this issue in his final decision, the petitioner shall be given an opportunity on 
remand to submit definitive evidence that it has a qualifying relationship with the foreign entity. Such 
evidence should include copies of stock certificates, the petitioner's stock ledger, evidence of payment made 
in exchange for the petitioner's stock, and any other documents the director deems necessary to establish 
eligibility for the benefit sought. 
Counsel notes that the AAO previously sustained an appeal from the director's denial of a Form 1-140 
immigrant petition filed by the petitioner on behalf of the beneficiary. Counsel asserts that the facts and 
evidence in the present matter are the same. However, the present proceeding is a separate matter from the 
petitioner's Form 1-140 immigrant petition. Evidence submitted with the petitioner's immigrant petition does 
not serve as evidence in the present proceeding. The petitioner must meet its burden by entering required 
evidence into the current record. The evidence in the current record of proceeding is insufficient to establish 
that the petitioner has a qualifying relationship with the foreign entity. 
WAC-03-23 1-50538 
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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. In this matter, the petitioner has overcome the specific 
objection of the director. However, an additional ground for ineligibility exists, and additional evidence is 
required in order to establish eligibility for the benefit sought. The director is instructed to issue a request for 
evidence addressing the issues discussed above, and any other evidence he deems necessary. 
ORDER: The decision of the director dated February 4, 2004 is withdrawn. The matter is remanded 
for further action and consideration consistent with the above discussion and entry of a new decision.