dismissed L-1A Case: Investment Management And Retail

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
d $* ,$+ 
P 
FILE: EAC 02 268 53099 Office: VERMONT SERVICE CENTER Date: mT@ a rn 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 3 1101(a)(15)(L) 
ON BEIULF 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. 
d &Robert j. P. Wiernann, Director 
I Administrative Appeals Office 
EAC 02 268 53099 
Page 2 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, Vermont 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 1998 and 
claims to be in the investment management and franchise gasoline station business. The petitioner claims to 
be an affiliate of Paramount Printing Press, located in Bombay, India. It seeks to extend its authorization to 
employ the beneficiary temporarily in the United States as a vice-president for an additional three years, at an 
annual salary of $42,000.00. The director determined that the petitioner had not submitted sufficient 
evidence to demonstrate that: (I) the beneficiary would be employed by the U.S. entity in a primarily 
managerial or executive capacity; or that (2) a qualifying relationship exists between the U.S. and foreign 
entities. The beneficiary was initially granted a one-year period of its stay in the United States and the 
petitioner now seeks to extend the beneficiary's stay. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence submitted is sufficient 
to demonstrate that the duties performed by the beneficiary will be managerial or executive in capacity, and 
that a qualifying 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. 3 1101(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: 
Zntracompany transferee 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 fm 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 8 C.F.R. 3 214.2(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 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. 
EAC 02 268 53099 
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 himher 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 first issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the beneficiary will be employed by the U.S. entity in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means 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 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), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily- 
(i) Directs the management of the organization or a major 
component OP 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 
EAC 02 268 53099 
Page 4 
(iv> Receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the 
organization. 
In a letter dated August 15,2002, the petitioner described the beneficiary's proposed duties as: 
[The beneficiary] will assume the position of vice president and secretary in charge of 
business development. financial and inventory oversight, human resources, and general 
administration, for Poojapratima, Inc. . . . As vice president and secretary, [the beneficiary] 
will create and direct business growth initiatives to foster business development and 
expansion as well as work with the India based Partner, Ketan V. Sukhadia to develop 
Poojapratima, Inc.'s strategic goals and market objectives. . . . 
As vice president and secretary of Poojapratima, Inc. . ., [the beneficiary] will manage-at a 
senior level-the supervision of functions critical to the success of our company's business 
development and marketing directives. The specific function [the beneficiary] will manage is 
the business development and general administration, including financial management and 
human resource administration, of Poojapratima, Inc. [The beneficiary] will establish all 
operational policies to ensure smooth administration of our three Exxon franchise retail 
locations. . . .[The beneficiary] will also explore further expansion within and beyond the area 
of motor fuel service and distribution. He will initiate extensive market research and identify 
new concepts and venues for further business expansion. Once these venues have been 
identified, [the beneficiary] will coordinate new site designs, permitting, construction and 
opening activities surrounding the expansion. [The beneficiary] will manage all aspects of 
Poojapratima, Inc.'s retail and wholesale sales for existing and future locations. He will also 
develop and maintain new corporate and institutional accounts and will prepare detailed sales 
and business development plans. 
[The beneficiary] will also act as the key contact with our Indian affiliate, . . . in addition to 
expanding our U.S. market base and business development at [the foreign entity] . . . he will 
provide regular reports on the growth and development of Poojapratima, Inc., as well as 
determine avenues for expansion on the basis of market research. [The beneficiary] will also 
give guidance and direction regarding the international appeal of business development 
concepts established by Poojapratima, Inc. for possible implementation by [the foreign entity] 
in India. 
In addition to overseeing the formation of service concepts and management guidelines, [the 
beneficiary] will be responsible for overseeing a skilled and knowledgeable sales staff. . . . 
[The beneficiary] conducts a high degree of daily autonomy, discretionary decision making 
and responsibility for taking or recommending personnel actions such as hiring, promotion, 
leave authorization, and firing. [The beneficiary] will report to the president, however, he 
will only receive minimal supervision from [the president]. 
In response to the director's request for evidence on this subject. counsel stated in part: "[The beneficiary] 
will also initiate extensive market research and identify new concepts and venues for further business 
expansion." The petitioner also stated: 
EAC 02 268 53099 
Page 5 
As Vice-President and Secretary of Poojapratima, Inc. . . [the beneficiary] will manage-at a 
senior level-the supervision of functions critical to the success of our company's business 
development and marketing directives. The specific function [the beneficiary] will manage is 
the business development and general administration, including financial management and 
human resource administration, of Poojapratima, Inc. Please note that [the beneficiary] is a 
senior level person within the U.S. organization responsible for directing, organizing, 
expanding and developing the capabilities of our motor fuel franchises and ultimately 
increase business activities for Poojapratima, Inc. . . . 
The petitioner also stated in part: 
The specific and essential functions [the beneficiary] manages include evaluating business 
opportunities and formulating corporate strategies for continued business development and 
the marketing of our products to the local community for each of our establishments. . . In the 
morning hours he performs his non-executive functions such as overseeing work completed 
by managers and cashiers and follows up with them for any pending business issues. He 
evaluates the performance according to our company's policies and missions and takes the 
appropriate steps for further improvement. In the afternoon hours, [the beneficiary] normally 
devotes to his executive functions. . . . The degree of discretionary authority in day-to-day 
operations that [the beneficiary] has is the authority to hire and terminated, as well as 
promote and grant leave of absences, to the entire staff. He has wide latitude in making 
decisions about the goals and management of the organization. As a high level manager, he 
has a very high degree of authority within our organization. 
The petitioner stated that the beneficiary's job duties and percentage of time he would spend performing them 
included: general administration 25 percent, finance management 20 percent, human resource management 
10 percent, purchase and inventory management 10 percent, continuous quality improvement 25 percent, and 
exploring new ventures 10 percent. 
The petitioner continued by listing the duties of the entity's managers including preparing daily transaction 
reports, preparing weekly orders, checking delivery of goods, and helping management with training and with 
quality improvements. The cashier's duties included running the cash register and consolidating cash 
balances at the end of each shift, and handing over the shift to the next employee. The petitioner also listed 
their basic skill requirements as "work experience of 1 to 2 years in the retail field, strong communication and 
speaking skills, strong customer interaction skills, and a pleasant personality." The petitioner submitted 
copies of the U.S. entity's Payroll Summary and Payroll Register for the months of June, July, and August of 
2002. and Employer's Quarterly State Report of Wages for June and September of 2002. 
The director determined that the evidence submitted was insufficient to establish that the beneficiary would be 
employed by the U.S. entity in a primarily managerial or executive capacity. The director stated that there 
was nothing in the record that demonstrated that either the manager or cashier positions required the services 
of professional-level employees. The director noted that the nature of the manager's duties, coupled with 
their low rate of pay, brought into question whether they relieve the beneficiary from performing the day-to- 
day business activities of the organization. The director further noted that based upon the description of the 
beneficiary's as well as his subordinates job duties, it appeared that the beneficiary was performing the day- 
to-day tasks associated with the daily operation of a gas station franchise. The director noted that it appeared 
from the U.S. entity's organizational chart that the president of the company would perform managerial or 
EAC 02 268 53099 
Page 6 
executive duties to a greater extent than the beneficiary. The director concluded by noting that it was unlikely 
that the U.S. entity would require the services of two employees in a primarily managerial or executive 
capacity. 
On appeal, the petitioner argues that the beneficiary's position satisfies the managerial and executive 
requirements in that he manages the organization, controls the work of supervisors, has power to hire and fire 
and execute other personnel decisions, exercises discretionary authority over the operation, and is not a first 
line supervisor. The petitioner also argues that although the beneficiary's title is "vice-president" he functions 
as the "general manager" of the business. The petitioner asserts that the president of the U.S. entity only 
holds an office within the company and does not work on a daily basis for the entity. The petitioner also 
asserts that the beneficiary only consults with the president of the company on business policy and long-term 
strategies, and otherwise, has complete discretionary authority over the operation of the gasoline franchise. 
The petitioner contends the station manager's salaries are actually $16,664 per year, and that they are 
responsible for the basic day-to-day supervision of their respective gas stations. The petitioner further 
contends that the managers relieve the beneficiary from performing non-qualifying duties. The petitioner 
submitted copies of the U.S. entity's payroll records for June, September, October, and November of 2002. 
The petitioner also submitted a letter writte hia, dated December 10. 2002, in which he 
states: ". . . [Allthough I am the President , all the day to day [sic] management and 
decision making responsibility rests with [the beneficiary]. I am a minority shareholder in the business, but I 
am not actively working in the business." The petitioner also submitted a letter of reference, dated December 
19,2002, from McGann Associates, a management consultant business. 
The petitioner has not established that the beneficiary has been employed in a managerial or executive 
capacity. In evaluating whether the beneficiary is employed in a primarily managerial capacity, the AAO 
will look first to the petitioner's description of the beneficiary's job duties. See 8 C.F.R. 5 214.2(1)(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. Id. In the 
instant matter, the record demonstrates that the beneficiary will perform various job duties while employed by 
the U.S. entity. Here. the petitioner has failed to distinguish the beneficiary's role in the operation of its 
business. For example, the petitioner describes the beneficiary's duties as managerial in that he manages the 
business development function of the organization, executive in that he exercises a wide latitude in 
discretionary decision-making, and administrative in that he will be marketing the company's services and 
performing human resource, purchase and inventory, and finance management functions. Further, the 
petitioner must show that the beneficiary performs the high-level responsibilities that are specified in the 
definitions, and that he primarily performs these specified responsibilities and does not spend a majority of 
his time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table). 1991 WL 144470 (9th 
Cir. July 30, 1991). Based upon duty descriptions contained in the record. it appears that the beneficiary will 
primarily perform the business development, marketing, general administration. and human resource 
functions of the organization. Consequently, there is insufficient evidence to show that the beneficiary will 
perform the high-level responsibilities as defined, or that he will primarily perform those duties rather than 
spending the majority of his time performing the day-to-day functions of the organization. 
In addition, the petitioner described the beneficiary's duties as marketing the petitioner's product, initiating 
research, and general administration. Since the beneficiary actually performs administrative work, markets the 
petitioner's product, and initiates research, he is performing tasks necessary to provide a service or product 
and these duties will not be considered managerial or executive in nature. An employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
EAC 02 268 53099 
Page 7 
managerial or executive capacity. Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornrn. 
1988). 
The petitioner asserts that the beneficiary's title is "vice-president" although he functions as a "general 
manager." However, the petitioner fails to present a plausible explanation for such a contrast. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972). Further, 
although the petitioner contends the president of the U.S. entity only holds an office within the U.S. entity and 
does not perform in a managerial or executive capacity, payroll records submitted by the petitioner 
demonstrate that the president of the organization has been compensated for 40 hour work weeks during the 
months of January, February, March, and April of 2002. 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, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The petitioner contends the station manager's salaries are greater than that initially cited by the director, and 
that they are responsible for the day-to-day activities of their designated gasoline stations, however, there has 
been insufficient evidence submitted to show that their activities are sufficient to relieve the beneficiary from 
performing non-qualifying duties. 
The petitioner asserts that the beneficiary will be managing three managers of three gasoline stations and six 
cashiers, however, the record does not establish that the subordinate staff is composed of supervisory, 
professional, or managerial employees. See section 101(a)(44)(A)(ii) of the Act. A first-line supervisor will 
not be considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties 
unless the employees supervised are professional. Section 101(a)(44)(A)(iv) of the Act. Because the 
beneficiary will primarily be supervising a staff of non-professional employees, the beneficiary cannot be 
deemed to be serving in a primarily managerial capacity. 
Although the petitioner claims that the beneficiary directs and manages the petitioner's business development 
and general administration activities, it does not claim to have anyone on its staff to actually perform the 
business development and general administrative functions. Thus, either the beneficiary himself is 
performing these functions or he does not actually manage the business development and general 
administration function as claimed by the petitioner. In either case, the AAO is left to question the validity of 
the petitioner's claim and the remainder of the beneficiary's claimed duties. 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. Matter of Ho, supra. If the beneficiary is performing the 
business development and general administrative function, the AAO notes that an employee who primarily 
performs the tasks necessary to produce a product or to provide services is not considered to be employed in a 
managerial or executive capacity. Matter of Chzlrch Scientology International, supra. For this reason, the 
petition may not be approved. 
The second issue in this proceeding is whether a qualifying relationship exists between the U.S. and foreign 
entities. 
The regulations at 8 C.F.R. 5 214.2(1)(l)(ii)(G) state: 
EAC 02 268 53099 
Page 8 
Qualibing organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) 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 101(a)(15)(L) of the Act. 
The regulations at 8 C.F.R. $5 214.2(1)(l)(ii) define, in pertinent part, "parent," "branch," "subsidiary," and 
"affiliate" as: 
(I) Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(J) Branch means an operation division or office of the same organization housed in a 
different location. 
(K) Szlbsidiary 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) Afiliate 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. 
In a letter dated August 15, 2002. the petitioner claimed that nine individuals owned 100 percent of the 
foreign entity and 59.4 percent of the U.S. entity, making the relationship between the two companies that of 
an affiliate. The petitioner further claimed that the nine individuals who owned 100 percent of the foreign 
entity also owned 99 percent of S-Cube International LLC (S-Cube) and that therefore; S-Cube was the 
American affiliate of the foreign entity. The petitioner stated that on August 31, 2001, the owners of the 
foreign entity and S-Cube acquired shares of stock in the U.S, entity, now totaling 60 percent of all shares. 
The petitioner submitted a company business plan, which demonstrated that the foreign entity was owned by 
nine individuals. 99 percent of S-Cube was owned by the foreig ent of the U.S. entity was 
owned by S-Cube, 15 percent b The petitioner submitted 
a copy of the U.S. entity's 1 which stated that sixty (60) shares of stock in the 
EAC 02 268 53099 
Page 9 
corporation had been issued to S-Cube. The petitioner submitted copies of the U.S. entity's IRS Form 1120, 
U.S. Corporation Income Tax Return for the year 2001 Schedule K, Question 5, Statement 3 which 
demonstrated tha-- owned 25 percent. wned 20 percent, owned 
40 percent, and S-Cube owned 15 percent of the shares U.S. corporation. The petitioner also 
submitted co~ies of a Stock Purchase Azreement. dated June 29. 2001. in which it is stated that the former 
signed the agreement as buyers. 
In response to the director's request for additional evidence on this subject, the petitioner stated in part: 
As additional evidence demonstrating the qualifying L-1 relationship between 
Poojapratima, Inc., S-Cube International, LLC, and Paramount Printing Press, please 
accept the following: 
4 A timeline of events showing all relevant transactions involving the formation of 
S-Cube and the purchase of Poojapratima, Inc.: 
June 23, 2001 - Nine partners of Paramount Printing Press form S- 
Cube International, LLC. 
August 31, 2001 - S-Cube International, LLC acquires fifteen shares 
of Poojapratima, Inc. (15% of the company) 
January 1, 2002 - S-Cube International, LLC acquires an additional 
forty five shares of Poojapratima, Inc. for a total of sixty shares (60% 
of the company) 
As evidence of ownership of S Cube and the foreign entity, the petitioner submitted a copy of a Partnership 
Deed in Constitution for Paramount, as of April 1, 2000, and a copy of the Operating Agreement of S Cube, 
dated June 23, 2001. The petitioner also submitted a copy of the U.S. entity's Articles of Incorporation, 
dated June 27, 1998, in which it is stated, "[tlhe aggregate number of shares authorized is 200." The 
petitioner submitted a copy of the U.S. entity's Record of Certificates Issued and Transferred which indicated 
31,2001. The petitioner also submitted copies of the U.S. entity's stock certificate number three (3) made out 
ta for twenty-five (25) shares, stock certificate number four (4) made out for 
twenty (20) shares, stock certificate number five (5) made out t for forty (40) shares. and stock 
certificate number six (6) made out to S. Cube Int'l, LLC for fifteen (15) shares. All stock certificates were 
dated August 31, 2001. The petitioner submitted copies of the U.S. entity's Stock Purchase Agreement 
signed and dated June 28.2001, and an Amendment to Stock Purchase Agreement, signed and dated August 
31, 2001. The petitioner submitted copies of U.S. entity stock certificates dated January 1, 2002, which 
indicated stock certificate number one ( S-Cube International, LLC for sixty (60) shares, stock 
for seven (7) shares. and stock certificate number three 
(3) was issued to petitioner submitted a copy of a First Union cashier's 
check made out t in the amount of $100,000.00. The petitioner also submitted a 
ube International, LLC to Tannenbaum & AACOK in 
the amount of $60,000.00. 
EAC 02 268 53099 
Page 10 
The director determined that the evidence of record showed that the foreign entity and S Cube were affiliated 
in that they were both owned and controlled by the same group of individuals, each individual owning and 
controlling approximately the same share or proportion of each entity. The director stated that although the 
petitioner claims to have an affiliate relationship with the foreign entity through the S Cube company, the 
single stock certificate submitted to show 60 percent ownership of the U.S. entity by S Cube was insufficient, 
without corroborative evidence, to show that S Cube actually owned the shares of stock as claimed. The 
director noted that there was no record of transfer or purchase of additional shares of the U.S. entity's stock by 
S Cube in the stock ledger, stock purchase agreement, amendment to stock purchase agreement, or any other 
business document submitted by the petitioner. The director also noted that there was no evidence submitted 
of the consideration paid by S Cube to purchase additional shares of stock in the U.S. entity. The director 
further noted that the checks submitted as evidence of consideration paid for the purchase of U.S. entity's 
stock by S Cube were dated six and four mouths prior to the alleged January 1, 2002, transaction. The 
director noted that the checks were dated during the same period in which S Cube purchased 15 shares of the 
U.S. entity's stock. The director also questioned the legitimacy of the U.S. entity's stock certificates 
numbered 1,2, and 3 issued January 1,2002. The director noted that it was unusual practice for a corporation 
to reuse stock certificate numbers, and also recognized that the stock certificates had not been recorded in the 
U.S. entity's stock ledger. The director concluded that the evidence of record did not clearly show that S 
Cube owned a majority of the U.S. entity's stock and that since S Cube linked the relationship between the 
foreign entity and the U.S. entity, the petitioner had failed to establish the existence of a qualifying 
relationship. 
On appeal, the petitioner argues that the U.S. entity stock certificate showing 60 shares issued to S Cube was 
sufficient to establish a qualifying relationship between the U.S. entity and the foreign entity. The petitioner 
further argues that the original stock certificate numbers 1, 2, and 3 were lost and replaced on or about April 
2002. and that at that time the numbers were mistakenly reused to number the stock certificates that had been 
2002. The petitioner also argues that it had been agreed among - 
that if and when the beneficiary obtained permission to manage S Cube, S Cube would 
become the majority shareholder in the U.S. entity, in that it had provided the bulk of the money for the initial 
purchase. The petitioner contends that the redistribution of shares of stock in the U.S. entity took place in 
January of 2002, after the beneficiary's L-1 status had been approved and in accordance with the original 
agreement. The petitioner asserts that the loss and replacement of the share certificate book caused confusion 
in the documentation of the January 2002 transactions. The petitioner further asserts that in May 2002, when 
the lost certificates issued in January 2002 were replaced, the original dates were used, however, the first 
certificates from the new share certificate book were used rather than the certificates numbered 7, 8. 9, and 
10, which corresponded to the numbers of the lost certificates. On appeal, the petitioner submits co ies of a 
Shareholder's Agreement, dated August 16, 2001, between and* a 
Shareholder's Agreement, dated September 17, 2001, between the U.S. entlty and its shareholders; an 
Amended Shareholder's Agreement, dated December 20,2001, between the U.S. entity and its shareholders; a 
Shareholder's Resolution Authorizing Amendment of Shareholder Agreement, dated December 4, 2001; four 
Statements as to Loss of Share Certificates; a Shareholder's Resolution Authorizing Issuance of New 
Certificates; and a memo, dated December 19,2002, from Pandya, Kapadia & Associates, an accounting firm. 
On reviewing the evidence and the petition, the petitioner has failed to establish that a qualifying relationship 
existed between the U.S. and a foreign entity at the time the petition was filed. The regulations and case law 
confirm that ownership and control are the factors that must be examined in determining whether a qualifying 
relationship exists between U.S. and foreign entities for purposes of a nonimmigrant visa petition. Matter of 
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (Comrn. 1986); Matter of Hughes, 18 I&N Dec. 289 
EAC 02 268 53099 
Page 11 
(Cornrn. 1982); see also Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Cornm. 1988) 
(in immigrant visa proceedings). There have been no company by-laws, tax records, stock certificate registry, 
purchase of shares agreements, bank statements, canceled checks or any other business documents presented 
to demonstrate the purchase of the U.S. entity's stock by S Cube on January 1, 2002. The two checks 
submitted by the petitioner in the amount of $100,000 and $60,000 respectively, were dated prior to January 
1, 2002, and made no reference to future purchase of U.S. entity stock by S Cube. The evidence as presented 
demonstrates that at the time the petition was filed, S Cube owned only 15 percent of the U.S. entity's stock, 
an insufficient amount to qualify as an affiliate relationship. 
On appeal, counsel relies on evidence that was requested by the director in the request for evidence but not 
produced until after the initial decision to deny the petition had been made. The petitioner submitted copies 
of a Shareholder's Agreement, dated August 16, 2001; a Shareholder's Agreement, dated September 17, 
2001; an Amended Shareholder's Agreement, dated December 20, 2001; a Shareholder's Resolution 
Authorizing Amendment of Shareholder Agreement, dated December 4, 2001; four Statements as to Loss of 
Share Certificates, dated May 2, 2002; a Shareholder's Resolution Authorizing Issuance of New Certificates, 
dated December 4,2001; and a letter from an accounting firm, dated December 19,2002. 
Although the documents submitted on appeal were requested prior to the director's decision, they were only 
submitted after the director noted the numerous inconsistencies in the petitioner's evidence. There has been 
no evidence submitted to demonstrate that the shareholder's agreements, the resolutions, and the amendments 
thereto have been accurately dated or properly recorded with state corporate officials. There has been no 
evidence submitted to substantiate the claim made by the accounting firm in its letter dated December 19, 
2002. The petitioner must establish eligibility at the time of filing the nonirnrnigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Cornm. 1978). Evidence that the 
petitioner creates after CIS points out the deficiencies and inconsistencies in the petition will not be 
considered independent and objective evidence. Necessarily, independent and objective evidence would be 
evidence that is contemporaneous with the event to be proven and existent at the time of the director's notice. 
Further, the record contains a number of inconsistencies regarding the claimed purchase of U.S. entity stock 
by S Cube. As is noted by the director, there was no record of transfer or purchase of additional shares of 
stock by S Cube in the stock ledger, stock purchase agreement, amendment to stock purchase agreement, or 
any other business document submitted by the petitioner. There was no mention of the January 1: 2002, stock 
purchases in the stock ledger that was submitted by the petitioner as evidence. Further, there was no 
evidence submitted of the consideration paid by S Cube to purchase additional shares of stock in 
Poojapratima. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, supra. at 190. 
Further, there has been no plausible explanation given for the loss of the original "share certificate book" and 
"share certificates" sufficient to overcome the director's denial. 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, at 591-92. For this additional reason. the petition may not be 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. 3 1361. The petitioner has not sustained that burden. 
EAC 02 268 53099 
Page 12 
ORDER: The appeal is dismissed.