dismissed L-1A Case: Biotechnology

PUBUCCOPY
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File: WAC 04 084 51827 Office: CALIFORNIA SERVICE CENTER Date: OCT 02 2DOl
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(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.
Ro~nn~
Administrative Appeals Office
www.uscis.gov
WAC 04 084 51827
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 petition seeking to employ the beneficiary in the position of president
to open a new office in the United States as an L-1A nonimmigrant intracompany transferee pursuant to
section IOI(a)(l5XL) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(aX15XL). The
petitioner, a corporation organized under the laws of the State of California, claims to be engaged in
biotechnology research and development and alleges that it is the subsidiary of Hedy Guangzhou Qixi
Computer Co., Ltd. of China.
The director denied the petition concluding that the petitioner failed to establish that it has a qualifYing
relationship with the foreign entity. Specifically, the director determined that the petitioner did not establish
that the foreign entity furnished consideration in exchange for stock ownership and that the record instead
indicates that an unrelated Hong Kong company, Bipolar Company Limited, furnished the consideration.
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 to the petitioner asserts that, while the Hong
Kong company did transfer money to the petitioner, this money was transferred on behalf of the foreign entity
after the foreign entity first provided the funds to the Hong Kong company. Counsel further argues that the
Hong Kong company is affiliated with the foreign entity because the Hong Kong company is owned and
controned by the spouse of the principal owner of the foreign entity. In support of the appeal, counsel
submits a brief and additional evidence.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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)(l)(ii)(G) of this section.
(ii) Evidence that the alien win be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services to be perfonned.
(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.
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WAC 04 084 51827
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(iv) Evidence that the alien's prior year of employment abroad was in a position that was
managerial, executive or involved specialized knowledge and that the alien's prior
education, training, and employment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
ill addition, the regulation at 8 C.F.R. § 214.2(l)(3Xv) states that 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, 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)(1)(ii)(B) or (C) of this section, supported by
information regarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizational structure, and its fmancial 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 ofthe foreign entity.
The primary issue in this proceeding is whether the petitioner has established that it and the organization
which employed the beneficiary abroad are qualifying organizations as defined in 8 C.F.R. §
214.2(1)(1)(ii)(G).
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the
beneficiary's foreign employer and the proposed United States employer are the same employer. See
generally section lOl(aX15)(L) of the Act; 8 C.F.R. § 214.2(1). Title 8 C.F.R. § 214.2(iXl)(iiXG) 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 (1XI)(ii)of this section." A "subsidiary" is defined, in part, as a corporation "of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity."
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WAC 04 084 51827
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In this matter, the petitioner asserts that the foreign entity, Hedy Guangzhou Qixi Computer Co., Ltd., owns
51.8% of its stock, thereby establishing a parent/subsidiary relationship. In support of this assertion, the
petitioner submits its organizational documents and a stock certificate issuing one million shares to the
foreign entity. The petitioner also submitted a letter dated January 30, 2004 in which the foreign entity's
claimed acquisition of the shares is described as follows:
By acquiring [the petitioner's] majority shares, [the foreign entity] has made its initial investment
of $300,000 by wiring the said fund through its Hong Kong affiliate, Bipolar Co., Ltd. As such,
the U.S. petitioner is 51.8% owned by [the foreign entity].
The petitioner also submitted (1) a wire transfer receipt from Bank of America dated August 20, 2003 indicating
the petitioner's receipt of $299,982.00 from Bipolar Company Limited; and (2) a credit statement from Bank of
China dated September 1, 2003 indicating Bipolar Company Limited's receipt of $442,440.00 from Hedy
Computer Corporation Ltd. with the notation "goods" at the bottom of the document
On March 22, 2004, the director requested additional evidence. The director requested, inter alia, an explanation
regarding why the foreign entity did not pay directly for the petitioner's shares and evidence establishing that
Bipolar Company Limited is an affiliate of the foreign entity.
In response, counsel to the petitioner submitted a letter dated June 1, 2004 in which he explains the claimed
relationship between the foreign entity and Bipolar Company Limited. According to counsel, the beneficiary
owns a majority interest in the foreign entity and the beneficiary's spouse owns a majority interest in Bipolar
Company Limited. Because of this "intimate relationship," the two companies frequently transact business with
each other. While counsel repeated the claim that the foreign entity initially transferred funds to Bipolar
Company Limited which, in tum, wired funds to the petitioner, counsel offers no explanation regarding why this
roundabout method of acquiring the petitioner's stock was used even though the director specifically requested
this explanation.
On September 10, 2004, the director denied the petition. The director concluded that the petitioner failed to
establish that it has a qualifying relationship with the foreign entity. The director explained that, because the
record establishes that an unaffiliated company paid for the petitioner's stock and the petitioner offered no
explanation for this roundabout method of stock acquisition, it appears that the unaffiliated company actually
controls the petitioner.
On appeal, counsel repeats his assertion that, while the Hong Kong company did transfer money to the
petitioner, this money was transferred on behalf of the foreign entity after the foreign entity first provided the
funds to Bipolar Company Limited. Furthermore, counsel again argues that Bipolar Company Limited is
"affiliated" with the foreign entity because Bipolar Company Limited is owned and controlled by the spouse
of the principal owner of the foreign entity. Finally, counsel, for the first time, asserts that the foreign entity
purchased the petitioner's stock through Bipolar Company Limited to avoid the Chinese government's "time­
consuming and bureaucratic" approval process for foreign currency transactions to foreign accounts.
Upon review, the petitioner's assertions are not persuasive.
WAC 04 084 51827
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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 ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 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 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 ownership is a critical element of this visa
classification, the director may reasonably inquire beyond the issuance of paper stock certificates into the
means by which stock ownership was acquired. As requested by the director, evidence of this nature should
include documentation of monies, property, or other consideration furnished to the entity in exchange for
stock ownership. Additional supporting evidence could include stock purchase agreements, subscription
agreements, corporate bylaws, proxies, minutes of relevant shareholder meetings, or other legal documents
governing the acquisition of the ownership interest and ultimate control of the petitioner.
In this matter, the petitioner has not established that its stock was acquired by the foreign entity and, thus, has
not established that the petitioner has a qualifying relationship with the foreign entity. The record establishes
that an unaffiliated entity, Bipolar Company Limited, provided the consideration for the stock issued by the
petitioner. Therefore, it appears that Bipolar Company Limited owns and controls the petitioner. Although
the petitioner claims that Bipolar Company Limited is an "affiliate" of the foreign entity, the evidence in the
record does not support this claim. "Affiliate" is defined in pertinent part as "[o]ne 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." 8 C.F.R. § 214.2(l)(lXiiXLX2). In this matter,
the foreign entity and Bipolar Company Limited are not owned and controlled by the same individual or
group of individuals. The fact that the individual who allegedly owns and controls the foreign entity is
married to the individual who allegedly owns and controls Bipolar Company Limited are married does not
establish that these companies share ownership and control as affiliates.
Furthermore, the fact that the foreign entity supposedly provided the funds to Bipolar Company Limited for
purposes of investing in the petitioner on its behalf is not persuasive. The record is devoid of evidence that
Bipolar Company Limited was legally obligated to use these funds as alleged. The petitioner did not submit
any promissory notes, contracts, trust agreements, or other documents establishing that Bipolar Company
Limited had any duty to use this money as described. Absent evidence of some legal obligation on Bipolar
Company Limited to wire these funds on behalf of the foreign entity, the petitioner's assertion is not
persuasive. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998)
(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Moreover, the record contains two inconsistencies that undermine the petitioner's claim that Bipolar Company
Limited received funds from the foreign entity for purposes of investing in the petitioner. First, the credit
statement from Bank of China, which supposedly establishes that the foreign entity transferred $442,440.00 to
Bipolar Company Limited, is dated September 1, 2003, 12 days after Bipolar Company Limited transferred
$299,982.00 to the petitioner. The petitioner, however, alleges that the foreign entity provided these funds to
WAC 04 08451827
Page 6
Bipolar Company Limited before it wired fimds on its behalf to the United States. The petitioner offers no
explanation for this fundamental inconsistency in its petition. 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). Second, the credit statement from Bank of
China carries the notation "goods" at the bottom of the document. Therefore, it appears that this transfer of funds
from the foreign entity to Bipolar Company Limited was related to some unrelated business transaction and did
not concern an investment in the United States.
Finally, counsel's assertion on appeal that the foreign entity used this roundabout method of purchasing the
petitioner's stock to avoid the Chinese government's "time-consuming and bureaucratic" approval process for
foreign currency transactions to foreign accounts is not persuasive. As a threshold matter, counsel may not
for the first time on appeal offer this explanation. Where, as here, a petitioner has been put on notice of a
deficiency in the evidence and has been given an opportunity to respond to that deficiency, the AAO will not
accept evidence offered for the first time on appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); see
also Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted to address this issue, it
should have addressed it in its response to the director's specific query in the Request for Evidence. Id. Under
the circumstances, the AAO need not and does not consider the sufficiency of this explanation.
Regardless, even if the AAO did consider this explanation, it is entirely unsupported by the evidence.
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena, 19
I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez-Sanchez,
17 I&N Dec. 503, 506 (BIA 1980). In immigration proceedings, the law of a foreign country is a question of
fact which must be proven if the petitioner relies on it to establish eligibility for an immigration benefit.
Matter of Annang, 14 I&N Dec. 502 (BlA 1973). Once again, going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190.
Accordingly, the petitioner has not established that it and the organization which employed the beneficiary
abroad are qualifying organizations, and the petition may not be approved for that reason.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.