sustained L-1A Case: Stained Glass

U.S. Department of Homeland Security 
20 Mass. Ave, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 04 109 50065 Office: TEXAS SERVICE CENTER Date: 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1101(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 hrther inquiry must be made to that office. 
/ -, 
/' 
~obert~m, Director 
Administrative Appeals Office 
SRC 04 109 50065 
Page 2 
DISCUSSION: The Director, Texas 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 decision of 
the director and approve the petition. 
The petitioner seeks to employ the beneficiary temporarily in the United States as an L-IA nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. $ 1101(a)(15)(L). The U.S. petitioner, a limited liability company organized in the State of Florida 
The director denied the petition, determining that the petitioner had failed to establish that (1) the petitioner 
and the organization which employed the beneficiary in the United Kingdom were qualifying organizations; 
or (2) the beneficiary had been employed in a managerial or executive capacity while abroad. 
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 submits a brief which 
seeks to clarify the petitioner's relationship with the foreign entitji and the beneficiary's position while 
employed abroad. 
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 qualifyingorganization must have employed the 
beneficiary in a qualifjmg 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. tj 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 wiIl 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, 
(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 
SRC 04 109 50065 
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education, training, and employment qualifies himiher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
(v) If the petition indicates that the beneficiary is coming to the United States as a manager 
or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year 
period preceding the filing of the petition in an executive or managerial capacity 
and that the proposed employment involved executive or managerial authority 
over the new operation; and 
(C) The intended United States operation, within one year of the approval of the 
petition, will support an executive or managerial position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
The primary issue in the present matter is whether the petitioner and the foreign organization are qualified 
organizations as defined by 8 C.F.R. 5 214.2(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 qualifying relationships specified in the definitions of a parent, 
branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United 
States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 10 l(a)(15)(L) of the Act. 
SRC 04 109 50065 
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Additionally, the regulation at 8 C.F.R. 4 214.2(1)(l)(ii) provides: 
(I) "Parent" means a firm, corporation, or other legal entity which has subsidiaries. 
(J) "Branch" means an operating division or ofice of the same organization housed in a 
different location. 
(K) "Subsidiary" means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
(L) "Affiliate" means 
(I) One of two subsidiaries both of which are owned and controlled by the same 
parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of 
individuals, each individual owning and controlling approximately the same 
share or proportion of each entity, or 
(3) In the case of a partnership that is organized in the United States to provide 
accounting services along with managerial andlor 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 firms, a partnersfup (or similar 
organization) that is organized outside the United States to provide accounting 
services shall be considered to be an afiliate of the United States partnership if 
it markets 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 this case, the petitioner claims that the British entity and the U.S. entity are affiliates. Specifically, the 
petitioner asserts that the beneficiary owns a fifty percent interest in each company and that these interests 
thereby satisfy the definition of affiliate. 
The director found that the initial evidence submitted with the petition to be insufficient to qualify the 
petitioner for the benefit sought and issued a request for evidence on March 12, 2004. In the request, the 
director specifically required the petitioner to submit evidence that definitively established its qualifying 
SRC 04 109 50065 
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relationship with the British company.' On March 22, 2004, the petitioner submitted a detailed response to 
the director's request which was accompanied by numerous corporate documents for the U.S. and British 
companies, as well as additional documentary evidence in support of the claimed affiliation. Additionally, 
counsel for the petitioner submitted a copy of the petitioner's franchise agreement with Stained Glass Overlay 
as further evidence of the qualifLing relationship between the parties. 
Upon review of the evidence submitted, the director concluded that the owners of record of both the U.S. and 
British entities did not own the same share or proportion of both entities as required by the regulations. 
Additionally, the director concluded that the petitioner's claim of affiliation with the foreign entity was 
~nvalid due to its misplaced reliance on the franchise agreement with Stained Glass Overlay. As a result, the 
petition was denied on April 3,2004. 
The petitioner appealed the decision, asserting that $he &rector's decision erroneously focused on the 
franchise agreement and ownership of the franchisor ahd disregarded the actual ownership of the pet~tioner 
and the foreign entity. Specifically, counsel asserts that by way of the beneficiary's common ownership of 
fifty percent of both the petitioner and the foreign entity, the petitioner's relat~onship with the foreign entity 
meets the definition of affiliate. In support of this contention, counsel for the petitioner provides a detailed 
discussion of the ownership interests of both the U.S. and foreign entities. 
Upon review, the petitioner has established that the U.S. and foreign entities are qualifying organizations as 
defined by 8 C.F.R. 5 214.2(1)(l)(ii)(G). 
SpecificaIly, the statute requires that the beneficiary come to the United States to "render services to the same 
employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive." Section 
203(b)(l)(C) of the Act. Critical to its claimed eligibility, the petitioner asserts that the U.S. corporation is an 
affiliate of, based on the similar ownership interests of one individual out of the two 
distinct groups of owners. 
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. Mutter 
of Church Scientology, 19 I&N Dec. at 595. 
Furthermore, the critical regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(L) states in pertinent part: 
I The request for evidence also required the petitioner to submit additional evidence with regard to the current 
financial status of the U.S. entity as well as evidence that the British entity was doing business as required by 
the regulations. Since the director did not base his denial on these issues, there is no need for the AAO to 
address them in its review of this matter. 
SRC 04 109 50065 
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Af$liafe 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. 
According to the evidence submitted, the U.S. and foreign entities were not owned in the majority by any one 
person and were not owned in their entirety by the exact same persons. SpecificaIly, the ownership interests 
set forth by counsel are as follows: 
Foreign Entity SharesIUnits 
U.S. Entitv SharesIUnits 
It is evident based on the evidence provided to corroborate the ownership interests that the beneficiary owns 
fifty percent of both the U.S. petitioner and the foreign entity. He does not own a majority interest in either 
entity, nor does he share ownership with the same group of individuals. However, his ownership interest in 
each of the companies is clearly established in the record. 
Consequently, the crucial element to examine in this matter is the beneficiary's control of each entity. The 
evidence clearly establishes that the beneficiary is a 50% owner of the U.S. entity and a 50% owner of the 
foreign entity. Control may be "de jure" by reason of ownership of 51 percent of outstanding stocks of the 
other entity or it may be "de facto" by reason of control of voting shares through partial ownership and 
possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). In this matter, it is evident 
that the beneficiary has de facto control over both entities. Fifty percent ownership is sufficient to prevent 
action by the petitioner through the exercise of the beneficiary's veto power. See Matter of Siemens Medical 
Systems, Inc., 19 I & N Dec. 362 (BLA 1986). Therefore, absent any indication that the beneficiary's 50% 
control of either company is undermined in any way, he would have per se control. Id. In this case, the AAO 
finds that the evidence in the record is sufficient to establish that the entities are affiliates and thus are 
qualifying organizations per the definition at 8 C.F.R. 5 214.2(1)(1)(ii)(L)(l). Thus, the director's decision 
with regard to this issue is hereby withdrawn. 
The AAO notes that the director bases part of the decision on the ownership status of the franchisor in the 
United States. The issue in this matter, however, is the ownership of the foreign entity for whom the 
SRC 04 109 50065 
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beneficiary has been employed as well as the ownership of the U.S. petitioner. The fact that the petitioner and 
the foreign entity both choose to enter into franchise agreements is irrelevant for purposes of this analysis, as 
counsel correctly asserts on appeal. The key question is whether there is common ownership and control of 
the petitioner and the foreign entity, which as discussed above has been established in this matter. 
Accordingly, the director's misapplied analysis of the role of franchises will be withdrawn and will not be 
considered further. 
The second issue in this matter is whether the beneficiary was employed abroad in a capacity that was 
primarily managerial or executive as required by 8 C.F.R. 5 214.2(1)(3)(iv). 
In this case, the director found that the petitioner had not established that the beneficiary had been employed 
in a primarily managerial or executive capacity. However, in this case, the director merely drew this 
conclusion without specifically discussing the reasons upon which the decision was based. When denying a 
petition, a director has an aff~rmative duty to explain the specific reasons for the denial; this duty includes 
lnfonning a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 291 of the 
Act, 8 U.S.C. 5 1361. See 8 C.F.R. 103.3(a)(l)(i). 
In this matter, the petitioner alleges that the beneficiary has been acting as the foreign entity's managing 
director since 1981. With the initial petition and later in response to the director's request for additional 
evidence, the petitioner submitted an organizational chart for the foreign entity, which demonstrated that the 
beneficiary was at the top of the organizational hierarchy. The chart indicated that the beneficiary oversaw all 
of the petitioner's other employees, many of whom performed managerial and supervisory duties. For 
example, the organizational chart submitted in response to the director's request for evidence indicates that 
the beneficiary oversaw depot managers, operations and warehouse managers, day and night shift supervisors, 
a computer systems manager, and a vehicle manager. In addition, a letter submitted by the beneficiary in 
response to the request for evidence listed more specific duties required by his position, and these duties 
included overall responsibility for the company's decisions. According to the petitioner, the day-to-day tasks 
were allotted to Ms. Bharti Amin. 
Absent evidence to the contrary, the AAO concurs with counsel's assertions on appeal and finds that the 
beneficiary was in fact employed in a primarily managerial or executive capacity while employed by the 
foreign entity. Consequently, the director's decision on this issue is hereby withdrawn. 
For the foregoing reasons, the decision of the director will be withdrawn and the petition 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. 4 136 1. The petitioner has sustained that burden. 
ORDER: The decision of the director is withdrawn and the petition is approved.