dismissed L-1A Case: Electronics Trading

U.S. Department of Homeland ~ECUT~~~ 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigrat~on 
Services 
FILE: WAC 02 189 50444 Office: CALIFORNIA SERVICE CENTER Date: JUN 3 u 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)( 15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(a)(15)(L) 
ON 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. 
.4~y-t 
(1Robert P. Wiernann, Diredtor 
V 
dministrative Appeals Office 
WAC 02 189 50444 
Page 2 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was established in 1999 and 
claims to be in the business of international trading and wholesaling of electronic products. The petitioner 
claims to have a subsidiary relationship with located in 
Shanghai, China. The petitioner seeks to extend ~ts author~zation to employ the benet~ciary temporarily in 
the United States as its president for a period of three years, at a monthly salary of $5,500.00. The 
beneficiary was initially granted a one-year period of its stay to open a new office in the United States and the 
petitioner now seeks to extend the beneficiary's stay. 
The director determined that the evidence of record was insufficient to establish that a qualifying relationship 
existed between the U.S. entity and a foreign entity. 
On appeal, counsel disagrees with the director's decision and states that the evidence is sufficient to 
demonstrate that that a parent-subsidiary relationship exists between the U.S. and foreign entities. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 lOl(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization, and seeks to enter the United States temporarily in order to continue to render 
his or her services to the same employer or a subsidiary or affiliate thereof, in a capacity that is managerial, 
executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii) states, in part: 
lntrucompan~ trunsferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8C.F.R. !j 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. 
(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. 
WAC 02 189 50444 
Page 3 
(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 himlher 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 issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that a 
qualifying relationship exists between the U.S. entity and a foreign entity. 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(I)(ii) define a "qualifying organization" and related terms as: 
(G) Qualifying organization means 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 (I)(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 10l(a)(15)(L) of the Act. 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Brnnch means an operation division or office 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. 
WAC 02 189 50444 
Page 4 
(L) Afiliate 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. 
The petitioner initially stated in the petition that the foreign entity owned 100 percent of the U.S. entity. In a 
letter of support, dated April 8, 2002, counsel for the petitioner stated that the U.S. entity was a "wholly- 
owned subsidiary o f China." Counsel also stated that the 
U.S. entity was in the business of international trade and distribution of the foreign entity's products 
throughout North America. The petitioner submitted as evidence copies of the U.S. entity's Articles of 
Incorporation (CA); Certificate of Authority (NJ); by-laws; minutes of organizational meeting; share 
certificate and stock ledger; Form 1120, U.S. Corporate Income Tax Return for 1999, 2000, and 2001; and 
bank statements. The petitioner also submitted copies of the foreign entity's list of owners, financial 
statements, company brochure, and other business documents. 
The director subsequently submitted a request for evidence in which he noted the many inconsistencies in the 
record regarding the ownership of the petitioning entity. The director stated that although the corporate 
documents indicated that the petitioning entity was wholly owned by the foreign entity, the company's tax 
records indicated that it was owned by the foreign entity an. As evidence of a qualifying 
relationship, the director requested the petitioner to submit proof of stock purchase, minutes of the meeting- 
stock ownership, date-stamped Articles of Incorporation, all stock certificates issued to the present (both front 
and back), and the corporate stock ledger showing all stock certificates issued to the present date. 
In response to the director's request for evidence, counsel stated that althoughhas business 
relations with the petitioning entit it is not a shareholder of the same. Counsel stated that the petitioning 
company had hired an independen to explain the inconsistencies in the record. The petitioner submitted 
copies o-esume and letter of explanation. The petitioner also submitted copies of the 
petitioning entity's share certificate issued to the foreign entity, stock ledger, and a copy of- 
share certificate issued to the foreign entity. 
The petitioner submitted as evidence a summary o education and experience as an 
attorney in the state of California, and a letter from I stating that the issuance of the petitioner's 
shares to the foreign entity was valid and in compliance with California Corporate Law. The petitioner 
submitted a copy of Unanimous Written Consent by the Board of ~irectors dated 
January 10, 1999, allowing the foreign entity time to submit the agreed upon share consideration. The 
petitioner also submitted a translated copy of a certification, signed and dated July 11, 2002, from the foreign 
entity authorizing the wire transfers to the petitioning entity. The petitioner submitted copies of the two wire 
transfers from the foreign entity to the petitioning entity, dated August 24 and August 25 of 1999, in the 
amounts of US$60,000 and US$200,000 respectively. In the wire transfers, the foreign entity's authorized 
financial representative indicated in the "details of payment" section "payment for technical coperation." 
The director subsequently denied the petition, determining that evidence in the record was insufficient to 
establish that a qualifying relationship existed between the petitioning entity and the foreign entity. The 
WAC 02 189 50444 
Page 5 
director noted the inconsistencies found in the petitioning entity's tax records and the explanation given b 
The director stated: "If, as thm .says,owns no shares o d 
then there is a rather large discrepancy in the petitioner's Federal corporate tax return for the 
year 2000, because the Form 5472 clearly states that owns 25% of the petitioning entity." 
The director further stated: 
Although the CPA states tha was listed on the Form 5472 because it was 
considered as a foreign related party under the definition of the Internal Revenue Code 
Section 267(b) even though it did not own any shares of the petitioning entity-the petitioner 
did not provide a copy of Section 267(b) of the Internal Revenue Code to support its claim 
that the petitioner was required to lis as a related party. 
The director continued by pointing out the multiple discrepancies and inconsistencies contained in the record 
with regard to the ownership of the petitioning entity. The director noted the discrepancies and 
inconsistencies contained in the petitioning entity's tax records (Form 1120 and Form 5472), wire transfers, 
bank statements, number of stock certificates issued, and company brochure. The director concluded that the 
evidence was inconsistent, contradictory, and insufficient to establish that there exists a subsidiary or affiliate 
relationship between the petitioning entity and the foreign entity. 
On appeal, counsel disagrees with the director's decision and asserts tha does not own any 
shares of stock in the petitioning entity, that the foreign entity owns 1 entity's 
stock, that the mishap in the tax records were due to accounting errors, and that the wire transfers were 
partially to pay for the U.S. entity's stock. As evidence the petitioner submitted an amended IRS Form 5472 
for 2000 and 2001, in which the space designated "Part II-25% Foreign Shareholder" had been left blank. 
The petitioner also submitted an amended Form 1120X for the years 2000 and 2001; a copy of Internal - - 
Revenue Code Section 267(b); copies ol IRS Form 1 I20 for the years 1999 and 2000; a U.S. 
entity bank statement for August of 1999; copies of company brochures; a declaration, dated September 3, 
2002; and a letter from the petitioning entity's accountant, dated August 30,2002. 
The petitioner's evidence is not persuasive. In the instant case, the petitioner is obligated to clarify the 
inconsistent and conflicting evidence by independent and objective evidence. The statements submitted on 
appeal do not persuasively establish the truth of the facts asserted. Cf. Matter of Bueno, 21 I&N Dec. 1029. 
1033 (BIA 1997); Mutter of Ma, 20 1&N Dec. 394 (BIA 1991) (discussing the evidentiary weight accorded to 
delayed birth certificates in immigrant visa proceedings). Merely asserting that the reported corporate income 
tax return contained inaccurate information does not qualify as independent and objective evidence. Simply 
going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Mutter qf Treasure Crajl of California, 14 I&N Dee. 190 (Reg. Comm. 
1972). 
There is nothing in the record to demonstrate that the petitioner was required to list as a 
"related party" on the Form 5472. The AAO notes that the explanations given for the multiple mistakes 
made in the petitioning entity's tax records are insufficient to account for the unaccounted for 677,239 shares 
of stock. 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. Mntrer of Ho. 19 I&N Dec. 
582, 591-92 (BIA 1988). 
WAC 02 189 50444 
Page 6 
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency 
of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). If C1S fails to believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) 
of the Act, 8 U.S.C. 3 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5'Cir.1989); Lu-Ann 
Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 
(D.D.C. 2001). 
On review, the record does not reflect that a qualifying affiliate or subsidiary relationship exists between the 
U.S. and foreign entities. 
Further, if the AAO were to accept the petitioner's evidence and explanations as consistent, then it would 
bring into question the validity of the initial "new office" petition filed by the petitioner. In this matter the 
initial "new office" petition was received by Citizenship and Immigration Services (CIS) March 25, 1999, and 
approved from June 1, 1999 to June 1, 2000 (See 1797B, dated April 15, 1999). The petitioner submitted 
evidence that demonstrated 162,545 shares of U.S. entity stock were recorded as being issued to the foreign 
entity on January 5, 1999. The evidence also demonstrates that in the petitioning entity's Unanimous Written 
Consent of the Board of Directors, dated January 10, 1999, it was stated in part: 
WHEREAS. has had difficulty wiring the funds for the Shares and the 
Board believes it is in the best interest of the Corporation to provide- 
additional time to transfer the funds. 
RE, BE IT RESOLVED, that the Corporation shall issue the Shares to 
for the consideration previously approved by the Board and that until such 
consideration is received the Cornoration shall hold the certificate. Uuon receiut of the funds 
The petitioner claims that the foreign entity did not pay for or receive its 162,545 shares of stock in the 
petitioning entity until after August 25, 1999, thus bringing into question the existence of a qualifying 
relationship between the U.S. and foreign entities at the time the initial "new office" petition was filed on 
behalf of the beneficiary. Again, 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 of 
Ho, supm. at 591-92. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has not established that it is eligible for an extension of the 
initial one-year "new office" validity period. As previously noted, the regulation at 8 C.F.R. 5 214.2(1)(14)(ii) 
provides strict evidentiary requirements that the petitioner must satisfy prior to the approval of this extension 
petition. Upon review, the petitioner has not satisfied all of the enumerated evidentiary requirements. The 
petitioner has not submitted evidence to demonstrate that the beneficiary is employed by the U.S. entity in a 
primarily managerial or executive capacity as required by section lOl(a)(44)(A) and (B) of the Act, 
8 U.S.C. 5 $IIOl(a)(44)(A) and (B). The evidence submitted demonstrates that the petitioning entity 
employs five employees. The petitioner stated in part that the beneficiary's duties consisted of overseeing the 
company's business, exercising authority over personnel decisions, implementation of company policies, 
establishing the company's expansion and development plans. exercising discretion over the day-to-day 
operations of the business, and negotiating and signing contracts. The petitioner also stated that the 
beneficiary is a functional manager, and that the majority of his duties relate to operational and policy 
WAC 02 189 50444 
Page 7 
management. Contrary to the petitioner's contentions, rather than providing a specific description of the 
beneficiary's duties, the petitioner generally paraphrased the statutory definition of executive capacity. See 
section 10 1(a)(44)(A) of the Act, 8 U.S.C. 6 1 10 l(a)(44)(A). 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. 
1103, 1108 (E.D.N.Y. 1989), afd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates inc. v. Meissner, 1997 WL 
188942 at "5 (S.D.N.Y.). There is insufficient evidence to establish that the beneficiary manages a function 
of the organization, or that he supervises managerial, professional, or supervisory staff who relieve the 
beneficiary from performing non-qualifying duties. Neither has there been sufficient evidence submitted to 
show that the beneficiary directs the management of the organization, establishes the goaIs and policies of the 
organization, or exercises wide latitude in discretionary decision-making. For this additional reason, the 
petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F.SU~~.~"~ 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9~ Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews 
appeals on a de novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought rests solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.