dismissed L-1A Case: Automotive Export

".J
IdentitYlnadatadeletedto
JX!Y8fttclearl)'unwarranted,
lnWsionofperso~privacy
PUBLICCOpy
li;S,Departinent ofHomelllnd Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: WAC 0610652800 Office: CALIFORNIA SERVICE CENTER Date: APRIS 2007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
IN BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~-
Rob~ma;{n,- Chief
Administrative Appeals Office
w-WW.uscis;gov
WAC 06 106 52800
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 dismiss the appeal.
The petitioner filed this nonimmigrant visa petition seeking to extend the employment of its general manager
as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The petitioner is a corporation organized under the laws
of the State of California and is allegedly an automobile and parts exporter. The beneficiary was previously
granted a two-year period of stay, and the petitioner now seeks to extend the beneficiary's stay.
The director denied the petition concluding that the petitioner did not establi_sh(1) that the beneficiary will be
employed in the United States in a primarily managerial or executive capacity; or (2) that the petitioner has a
qualifying relationship with the foreign entity.
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 asserts that the director erred and that
the beneficiary's duties are primarily those of a manager. The petitioner also asserts that it has established
that it and the foreign entity are qualifying organizations because it has established that the foreign entity
owns and controls the petitioner. In support of this assertion, the petitioner submits a brief and additional
evidence.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in sectio~ 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 organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (l)(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.
(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
WAC 06 106 52800
Page 3
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The first issue in the present matter is whether the beneficiary will be employed by the United States entity in
a primarily managerial or executive capacity.
,
Section 101(a)(44)(A)of the Act, 8 U.S.C. § 1l01(a)(44)(A), defines the term "managerial capacity" as an
assignment within an organization in which the employee primarily:
(i) manages the organization, or a department, subdivision, function, or component of
the organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department
or subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as
promotion and leave authorization), or if no other employee is directly supervised,
functions at a s"enior 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. § 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 ofthe
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.
The petitioner does not clarify in the initial petition whether the beneficiary will be primarily engaged in
managerial duties under section 101(a)(44)(A) of'the Act, or primarily executive duties under section
101(a)(44)(B) of the Act, and only on appeal does counsel clearly assert for the first time that the beneficiary
will be employed in a managerial capacity. Given the lack of clarity, the AAO will consider the petition as if
WAC 0610652800
Page 4
the petitioner is asserting that the beneficiary will be employed as a manager or, alternatively, as an executive
and will consider both classifications ..
The foreign entity described the beneficiary's job duties in the United States in a letter dated February 10,
2006 as follows:
[The beneficiary] plans and develops [the petitioner's] business strategy, and formulates
policies for achieving the company's objectives. [The beneficiary] directs, manages and
coordinates interdepartmental activities through subordinate managerial personnel in the
Purchasing Department, Logistics Department, Business Development Department and
Administration Department. He supervises and controls the work of each department's
manager, delegates assignments, coordinates their activities, and review[s] their performance.
[The beneficiary] further evaluates daily and monthly operational reports presented by our
department managers. He also communicates with our head office and [the president of the
foreign entity] in China in order to coordinate and synchronize the activities of the two
entities, Additionally, [the beneficiary] has complete authority to hire, dismiss and promote
employees, Moreover, he oversees contract negotiations with, major U.S. suppliers for
purchases and acquisitions of products, andexecutes contracts on behalf of [the petitioner].
[The beneficiary] also oversees the purchases of U.S. products and goods ensuring that
procurement is conducted in compliance with the procedures, guidelines' and policies
established by [the foreign entity] in China so that the finest quality products and most
competitively priced goods are acquired and exported. Given [the beneficiary's] experience
and knowledge, he plays a key role in the selection of reliable suppliers and overseeing the
acquisition of quality goods based on market conditions and availability.
Supervising the preparation of annual and quarterly budgets is another responsibility
performed by [the beneficiary]. He allocates funds each quarter and determines spending
limits for acquisitions of each type ofpro duct requisitioned by [the foreign entity] in China.
He further ensures that bank credit lines with various financial institutions are sufficient in
order to facilitate timely trade transactions.
The petitioner also describes the beneficiary as supervIsmg a deputy general manager, a business
development and marketing manager, an administration and finance manager, and a logistics and distribution
\ .
manager who, in tum, are each described as supervising additional subordinate staff members. However, the
petitioner only vaguely describes the job duties ascribed to each of these claimed'subordinate supervisors.
The petitioner also provided an organizational chart which is consistent with the supervisory hierarchy
described in the letter dated February 10, 2006. The chart also indicates that each of the subordinate
"managers" possesses a university degree.
On March 28, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary will be employed primarily in a managerial or executive capacity.
WAC 06 106 52800
Page 5
On appeal, counsel to the petitioner asserts that the beneficiary's duties are primarily those of a manager.
Counsel specifically notes that the director did not re'quest further evidence regarding the beneficiary's duties,
or the duties of the subordinate employees, and asserts that the petitioner would have' provided further
evidence if it had been requested to do so by the director. The petitioner, however, did not provide any
additional evidence on appeal concerning the beneficiary's purported managerial duties.
Upon review, the petitioner's assertions are not persuasive.
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. § 2l4.2(l)(3)(ii). The petitioner's description of the job
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are
either in an executive or managerial capacity. !d.
As a threshold issue, the AAO notes that the director did not request additional evidence regarding the
beneficiary's claimed managerial or exe?utive duties, or the duties or educational backgrounds of the
petitioner's subordinate employees, before denying the petition. The regulation at 8 C.F.R. § 103.2(b)(8)
requires the director to request additional evidence in instances "where there is no evidence of ineligibility, '
and initial evidence or eligibility information is missing." Id. In this matter, as the director deniedthe petition
because the record was insufficient to establish that the beneficiary will be employed primarily as an
execl;ltiveor manager, the director should have requested additional evidence on this issue. However, even if
the director had committed a procedural error by failing to solicit further evidence, it is not clear what remedy
would be appropriate beyond the appeal process itself. In this matter, the petitioner had an opportunity to
supplement the record on appeal with additional evidence for consideration by the AAO since this evidence
was not requested by the director. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). The petitioner,
however, has chosen not to supplement the record on appeal. It would serve no useful purpose to remand the
case to the director simply to afford the petitioner the opportunity to supplement the record with new evidence
when, in fact, the petitioner has already been afforded this opportunity in the appeal process. See Dar v. INS,
891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals on a de novo basis).
As correctly noted by the director, the petitioner's description of the beneficiary's job duties has failed to
establish that the beneficiary will act in a "managerial" capacity. In support of its petition; the petitioner has
provided a vague and nonspecific description of the beneficiary's duties that fails to demonstrate what the
beneficiary will do on a day-to-day basis. For example, the petitioner states that the beneficiary plans and
develops business strategies, formulates policies, evaluates daily and monthly operational reports, and
oversees contract negotiations and the purchasing of products. The petitioner did not, however, specifically
define what policies will be formulated; what business strategies will be planned and developed; ~r what,
exactly, the beneficiary does in evaluating operational reports or in overseeing contract negotiations. The fact
that the petitioner has given the beneficiary a managerial title and has prepared a vague job description which
includes lofty duties does not establish that the beneficiary will actually be performing managerial or
executive duties. 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. 1103 (E.D.N.Y. 1989), ajf'd, 905 F.2d 41 (2d.
Cir. 1990). Going on record without supporting documentary evidence is not sufficient for purposes of
WAC 06 106 52800
Page 6
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190
(Reg. Comm. 1972).
Likewise, the petitioner did not provide a breakdown of how much time the beneficiary devotes to the many
duties ascribed to him. This is particularly important in this matter because some of the duties listed by the
petitioner appear to be non-qualifying administrative or operational' tasks which do not rise to the level of
being managerial or executive in nature. For example, the petitioner states that the beneficiary will engage in
budgeting and the direct supervision of a variety ofsubordinate employees who have not been established to
be supervisory, managerial, or professional in nature. However, budgeting and first-line supervisory duties
constitute administrative or operational tasks when the tasks inherent to these duties are performed by the
beneficiary. As the record fails to sufficiently describe any of the subordinate employees in a manner which
would establish that the petitioner employs a staff which relieves the beneficiary of the need to perform the
non-qualifying tasks inherent to his' duties, it must be concluded that he is performing these tasks. As the .
petitioner has not established how much time the beneficiary devotes to non-qualifying tasks, it cannot be
·confirmed that he is "primarIly" employed as a manager. An employee who "primarily" performs the' tasks
necessary to produce a product or to provide services is not considered to be "primarily" employed in a
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church Scientology
International, 19 I&N Dec. 593, 604 (Comm. 1988).
The petitioner has also failed to establish that the beneficiary will supervise and control the work of other
supervisory or' managerial employees. As explained in the organizational chart and wage reports, the
beneficiary appears to supervise a staff of approximately fifteen full-time and part-time employees. The
organizational chart and the letter dated February 10,2006 describe a multilayered organization in which the
beneficiary reports to the president and directly supervises four managers who, in tum, supervise other
subordinate supervisors who, in tum, supervise other employees. According to the record, the petitioner is a
sixteen-person organization with five tiers of employees and eight "supervisory" or "managerial" employees.
It is simply not credible for such an organization to have half of its workforce primarily supervising other
employees. While the petitioner has given some of the subordinate employees lofty titles and has described
them as having supervisory or managerial functions, the petitioner has not established that these employees
are primarily engaged in performing supervisory or managerial duties. In fact, the record is devoid of any job
descriptions for the subordinate staff members. Inflated job titles and artificial tiers of subordinate employees
are not probative and will not establish that an organization is sufficiently complex to support a managerial
position as defined by the Act. In view of the above, the beneficiary would appear to be primarily a first-line
supervisor of non-professional employees, the provider of actual services, or a combination of both. A
managerial employee must have authority over day-to-day operations beyond the level normally vested in a
first-line supervisor, unless the supervised employees are professionals. 101(a)(44)(A)(iv) of the Act;. see
also Matter of Church Scientology International, 19 I&N Dec. at 604.
Moreover, the petitioner has not established' that the beneficiary will manage professional employees. In
evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether the
subordinate positions require a baccalaureate degree as a minimum for entry into the field of endeavor.
Section 101(a)(32) of the Act, 8 U.S.c. § 1101(a)(32), states that "[t]he term profession shall include but not
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary .
WAC 06 10652800
Page 7
schools, colleges, academies, or seminaries." The term "profession" contemplates knowledge or learning, not
merely skill, of an advanced type in a given field gained by a prolonged course of specialized instruction and
study of at least baccalaureate level, which is a realistic prerequisite to entry into the particular field of
endeavor. Matter of Sea, 19 I&N Dec. 817 (Comm. 1988); Matter of Ling, 13 I&N Dec. 35 (R.e. 1968); (
Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree held
by subordinate employees. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term is
defined above. In the instant case, the petitioner has not, in fact, established that a bachelor's degree is
actually necessary to perform the duties of any of the beneficiary's subordinate employees. Therefore, the
petitioner has not established that the beneficiary will be employed primarily in a managerial capacity.l
Similarly, the petitioner has failed to establish that the beneficiary will act in an "executive" capacity. 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. 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 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-day 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. For the same reasons indicated above, the petitioner has failed to
IWhile the petitioner has not specifically argued that the beneficiary manages an essential function of the
organization, the record nevertheless would not support this position even if taken. The term "function
manager" applies generally when a beneficiary does not supervise or control the work of a subordinate staff
but instead is primarily responsible for managing an "essential function" within the organization. See section
101(a)(44)(A)(ii) of the Act. The term "essential function" is not defined by statute or regulation. If a
petitioner claims that the beneficiary is managing ane~sential function, the petitioner must furnish a written
job offer that clearly describes the duties to be performed in managing the essential function, i.e., identify the
function with specificity, articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F.R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the duties related to the function. In this matter, the petitioner has
not provided evidence that the beneficiary manages an essential function. The petitioner's vague job
description fails to document what proportion of the beneficiary's duties would be managerial functions, if
any, and what proportion would be non-managerial. Absent a clear and credible breakdown ofthe time spent
by the beneficiary performing his duties, the AAO cannot determine what proportion of his duties would be
managerial, nor can it deduce whether the beneficiary is primarily performing the duties of a function
manager. See IKEA US, Inc. v. u.s. Dept. ofJustice, 48 F. Supp. 2d 22,24 (D.D.C. 1999).
WAC 06 10652800
Page 8
establish that the beneficiary will be acting primarily in an executive capacity. The job description provided
. for the beneficiary isso vague that the AAO cannot deduce what the beneficiary does on a day-to":day basis.
Moreover, as explained above, the beneficiary appears to be primarily employed as a first-line supervisor or is
performing administrative or. operational tasks. Therefore, the petitioner has not established that the
beneficiary is employed primarily in an executive capacity.
It is appropriate for Citizenship and Immigration Services (CIS) to consider the size of the petitioning
company in conjunction with other relevant factors, such as a company's small personnel size, the absence of
employees who would perform the non-managerial or non-executive operations of the company, or a "shell
company" that does not conduct business in a regular and continuous manner. See, e.g., Systronics Corp. v.
INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001).
Accordingly, in this matter, the petitioner has failed to establish that the' beneficiary will be primarily
performing managerial or executive duties, and the petition may not be approved for that reason,
The second issue in the present matter is whether the petitioner has established that it has a qua)ifying
relationship with the foreign entity.
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 (1)(1)(ii)(G)of this
section.
8 C.F.R. § 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal entity
which "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." A "subsidiary" is defined, in part, as a corporation
"of which aparent owns, directly or indirectly, more than half of the entity and controls the entity."
In this matter, the petitioner asserts that it is 100% owned and controlled by the foreign entity thus establishing, if
true, that the petitioner is a subsidiary of the foreign entity. In support of this assertion, the petitioner provided
corporate organizational documents; a copy of a stock certificate dated October 24, 1994 issuing 400,000 shares
to the foreign entity; a stock certificate dated January 23, 2003 issuing 400,000 shares to an allegedly wholly
owned subsidiary of the foreign entity; a stock ledger confirming the issuance of these stock certificates and
indicating the cancellation of an initial stock issuance 0[800,000 shares to the foreign entity; and, a document
titled "Written Action of the Sole Shareholder of [the petitioner]" .dated October 24, 1994 which confirms the
cancellation of the issuance of 800,000 shares of stock to the foreign entity as authorized on September 23, 1994
and authorizing instead the issuance of 400,000 shares of stock to the foreign entity in exchange for $50,000.00.
On March 14, 2006, the director requested additional evidence. The director requested, inter alia, evidence that
the foreign entity provided consideration for the stock it was issued.
WAC 06 106 52800
Page 9
In response, the petitioner provided, inter alia, a copy of a 1994 bank statement showing the deposit of funds
and a letter dated March 7, 2006 from the petitioner's bank confirming its receipt of a wire transfer from the
foreign entity on October 25, 1994 for $49,985.00. The petitioner's bank further indicated that, due to the age
of the transaction, it no longer has copies of the original wire documents. However, while the bank does
claim to have an "internal" record confirming the receipt ofthe wire, it did not provide a copy of this record.
On March 28, 2006, the director denied the petition concluding that the petitioner failed to establish that it and
the foreign entity are qualifying organizations. The director explained that the petitioner's description of its
ownership and control differs from what was asserted in a Form 1-140 filed on May 23,2000 (WAC 00 175
50006), approval of which was subsequently revoked. In that petition, the petitioner asserted that the foreign
entity owned 100% of the petitioner's stock. In support of this assertion, the petitioner submitted a copy of
the stock certificate representing the issuance of 800,000 shares ·of stock to the foreign entity and a stock
ledger confirming this issuance. Importantly, the petitioner apparently made no mention in the 1-140, which
was filed six years after the formation of the petitioner, of the purported cancellation of the stock certificate·
issuing 800,000 shares in 1994 or the issuance of the 400,000 replacement shares. The petitioner also
provided a stock ledger in 2000 which, given its curreNtrepresentations regarding its ownership and control,
could not possibly have been correct when submitted in support of the Form 1-140. The director attached
copies of the revocation decision, the stock certificate issuing 800,000 shares of stock, and the stock ledger
submitted in 2000 reflecting only the issuance of 800,000 shares of stock to the foreign entity. The director
concluded that, due to these inconsistencies in the record,. the petitioner failed to establish that it has a
qualifying relationship with the foreign entity.
The director further concluded that the petitioner's failure to explain how its bank could verify the receipt of a
wire transfer without having retained copies of the original wire documentation constitutes another
inconsistency in the record and, thus, the petitioner has failed to establish that it has a qualifying relationship
with the foreign entity for this reason as well.
On appeal, counsel asserts that the evidence submitted in support of the instant petition establishes that the
petitioner and the foreign entity have a qualifying relationship. Counsel further asserts that the petitioner
established that the foreign entity wired approximately $50,000 to it in 1994. Counsel argues that the October
1994 bank statement establishes that the wire transfer was made and that the letter from the petitioner's bank
dated March 7, 2006 satisfactorily explains the bank's limited ability to confirm the receipt of the wired funds.
Upon review, the petitioner's assertions are not persuasive.
It is well settled that 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 ofHo, 19
I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to
a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa
petition. Id. at 591.
In this matter, the inconsistency in question concerns two separate petitions filed by the same petitioner. As
correctly noted by the director, the petitioner's description of its stock ownership in the instant petition differs
WAC 06 106 52800
Page 10
osubstantially from the description contained in the 1-140 petition filed in2000 (WAC 00 17550006). While
counsel supported her assertions in the instant petition with documentary evidence, she does not attempt on
appeal to resolve the earlier inconsistencies from 2000 with the instant 0 petition. Counsel offers no
explanation as to how or why the petitioner apparently mischaracterized its ownership -and control in 2000 by
failing to reveal that the issuance of 800,000 shares of stock had been cancelled or by submitting an
inaccurate stock ledger which could not possibly have been correct given the petitioner's assertions in the
instant petition. Counsel's failure to explain the inconsistencies between the petitions renders it impossible for 0
CIS to ascertain which ownership structure is correct, if either, and undermines the credibility of the instant
petition. Therefore, for this reason, the petitioner has failed to establish that it has a -qualifying relationship
with the foreign entity, and the petition must be denied. 2 '
Moreover, the petitioner also failed to establish that the foreign entity actUally paid for the stock issued to it in
1994 even though the director specifically requested this evidence. - As indicated above, the petitioner
submitted a 1994 bank statement showing the deposit of funds and a letter dated March 7, 2006 from the
petitioner's bank confirming its receipt of a wire transfer from the foreign entity on October 25, 1994 for 0
$49,985.00. However, the petitioner's bank further indicated that, due to the age of the transaction, jt 'no
longer has copies of the original wire documents. While this is understandable given the age of the record,
the bank claims to have an "internal" record confirming the receipt of the wire. However, a copy of this
crucial "internal" record was not submitted. Going on record without supporting documentary evidence is not­
sufficient for purposes of meeting the burden of proofin these proceedings. Matter of Soffici, 22 I&N Dec.
15~, 165 (Comm. 1998) (citing Matter of Treasu~e Craft of California, 14 I&N Dec. 190 (Reg. Comm.
1972)). Without the submission of this internal record, which was appareptly used by the bank to confirm the
o _
petitioner's receipt of the wire transfer; the petitioner has failed to establish that it ever received these funds 0
from the foreign entity.
Accordingly, as the petitioner has failed to establish that the foreign 0 entity actually paid for the stock
purportedly issued to it, the petitioner has failed to establish that the foreign entity truly owns and controls the
petitioner. For this additional reason, the petition may not be approved?
21t is noted that the director denied the petition due to the above described inconsistency without first givi~g
the petitioner an opportunity to explain the inconsistency Of to present further evidence. As the petitioner has
been given that opportunity on appeal and has chosen not to explain the prior inconsistency in view of the
instant petition, the director's denial-of the petition on these grounds will remain undisturbed. However; it is
further noted that the most appropriate action would have been for the director to have first confronted the
petitioner with this inconsistency, which is outside of the record, by employing the procedures found in 8
C.F.R. § 103.2(b)(8), 8 C.F.R. § 103.2(b)(l6), or 8 C.F.R. § 214.2(l)(8)(i). Since the inconsistent evidence
was both known to arid submitted by the petitioner; the latter two regulations technically do not apply.
However, as the instant matter concerned evidence of ineligibility outside of the record, the director was at
the very least obligated to request additional evidence on these grounds. That being said, and as indicated
above, even if the director had committed a procedural error by failing tOo'solicitfurther evidence, it is not
clear what remedy would be appropriate beyond the appeal process itseif. 00
31t is noted that the director justified his denial of the instant petition on these grounds by 'considering the
bank's letter to contain an inconsistency. Specifically, the director concluded that the bank's assertion, that it
WAC 06 106 52800
Page 11
Finally, the initial approvai of an L-IA petition does not preclude CIS from denying an extension of the visa
based on a reassessment of petitioner's qualifications. See Texas A&M Univ., 99 Fed. Appx. 556, 2004 WL
1240482 (5th Cir. 2004). Despite any number of previously approved petitions, CIS does not have any
authority to confer an immigration benefit when the petitioner fails to meet its burden of proof in a subsequent .
petition. See section 291 of the Act, 8 U.S.c. § 1361..
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act. Here, that burden has not been met. Accordingly, the appeal will be
dismissed.
ORDER: The appeal is dismissed.
no longer has the original wire documentation while being in possession of an "internal" record constitutes an
unresolved inconsistency in the record which undermines the credibility of the petition. Upon review, the
AAOdisagrees with the director's determination that the letter contains an inconsistency, and this reasoning
will be withdrawn, Nevertheless, the petitioner's failure to produce a copy of the bank's "internal" record,
which is the factual basis for the bank's letter, constitutes a failure to produce sufficient corroborating
evidence, qnd the petition may not be approved for this reason. .