dismissed L-1A Case: Mining

U.S. Department of Homeland Security 
20 Mass Ave., N.W., Rm. A 1042 
Wash~ngton, DC 20529 
~denwng data detcCed VI U.S. Citizenship 
and Immigration 
prevent clearly unwmkrtic~ Services 
'nvasion of wrsd prim 
PUBLIC COPY 
1 
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File: WAC 03 23 1 50378 Office: CALIFORNIA SERVICE CENTER Date: NOV 2 8 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the dec~sion of the Administrative Appeals Office in your case. All documents have been returned to 
the office that or~ginally decided your case. Any further inqu~ry must be made to that office. 
Robert P. Wieman 
Administrative Appeals Office 
WAC 03 23 1 50378 
Page 2 
DISCUSSION: The Director; California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative~~~eals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed'this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section lOl(a)(lS)(L),of the Immigration and Nationality Act (the Act), 8 
U.'S.C. 4 110 l(a)(l S)(L). The petitioner is a publicly traded corporation organized in the State of .Delaware 
that 1s engaged in gold, zirconium and rare earth exploration and mining development. The petitioner claims 
that it is the parent company of the beneficiary's current employer, located in Toronto, Canada:The petitioner 
now seeks to employ the beneficiary as its president for a one-year period. 
The director 'denied the petition concluding that the petitioner did not establish that it was a qualifying 
organization doing'business in the'unjted States pursuant to 8 C.F.R. 8 214:2(1)(l)(ii)(H). 
The petitioner subsequently filed an .appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO' for review. On appeal, counsel for the petitioner asserts that the director 
overlooked evidence that demonstrates that the petitioner is in fact doing business. Further, counsel contends 
that the director erroneously based his conclusion solely on two factors which should not have been 
determinative, namely, the petitioner's failure to file U.S. income tax returns for the previous three years and 
a discrepancy with respect to its IRS employer tax identification number. In support of the appeal, counsel 
submits a brief and additional evidence. 
To establish eligibility for the L-1 nonimmigrant visa- classification, the petitioner ,must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a 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 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 e~ployer or a subsidiary or affiliate. thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 9 214.2(1)(3) states that an ~ndivldual petitlon filed on Form 1-129 shall be 
accompanied by: 
(I) Evidence that the petitioner and the organization whlch employed or will employ the 
allen are quallfylng organizations as defined In paragraph (1)(1)(11)(G) of thls sect~on. 
(ii) Evidence that the alien will be employed in an executive, rnanageriai,.of 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 03 231 50378 
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 hider to perform the intended 
services in the United States; however, the work in the United States need not be the 
. 
same work which the alie~ perfon'ned abroad. 
The primary issue in the present matter is whether the petitioner is a qualifying organizstion doing business in 
the United States. 
Pursuant to the regulation at 8 C.F.R. 4 214.2(1)(l)(ii)(G), a qualify~ng organnation means a Unlted 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 wlll be doing business (engagmg in lnternatlonal trade 1s not required) as an 
employer m the Unlted States and ln at least one other country directly or through a 
parent, branch, affil~ate or subs~diary for the durat~on of the allen's stay in the Unlted 
States as an ~ntracompany transferee; and 
I (3) Otherwise meets the requirements of section lOl(a)(lS)(L) of the Act. 
Further, 8 C.F.R. €J 214;2(1)(l)(ii)(H) defines "doing business" as the regular, systematic, and. continuous 
provision of'goods andfor services by a qualifying organization and does not include the mere presence of an 
agent or office of the q~alif~ing'organization in the United States and abroad. 
With the initial petition submitted on August 8, 2003, the .petitioner submitted a business plan describing the 
company's ~urrent'o~erations and prospective activities, and a copy of its Form 10-QSB, Quarterly Report 
Under Section 13 or 15(d) of the Securities Exchange Act of 1934 for the quarter ended March 3 1,2003, filed 
with the U.S. Securities and Exchange Commission (SEC). The company's business plan reveals that the 
petitioner owns nine mining concessions, with full mining rights on an additional ten mining concessions, all 
located in central Peru,'and that the company was formed to develop these interests. The business plan 
reveals that the company has been studying and drilling the property, built a 25-acre base camp, imported 
various pieces of mining and processing equipment, and raised money for these activities. The business plan 
. suggests that commercial production of the mines would not begin prior to the second or third quarter of fiscal 
year 2004, pending successful drilling results and proper funding. Thepetitioner's Form 10-QSB shows total 
assets of $1,985,866, and states "the Company has never had any revenues from any of its mining projects. 
The Company will only be able to generate revenues when the Company begins commercial production of the 
mines. If and when. the Company will begin commercial production is uncertain." The Form 10-QSB also 
states that the company completed its "phase 1" drilling program in Peiu in November 2002, but that 
operations at the Peruvian mine had temporarily ceased, possibly to be re-started in August 2003. 
WAC 03 23 1 50378 
Page 4 
On August 15, 2003, the director requested additional evidence. Specifically, the director asked that the 
petitioner provide signed copies of its Federal Income Taxes for the year 2002; a detailed organizational chart 
for the U.S. business; state quarterly wage reports for the last four quarters; federal Forms 941, Quarterly 
Wage Reports for all employees for the last four quarters; and copies of its payroll summary, W-2s and W-3s 
evidencing wages paid to,employees. The director also noted that the IRS tax identification number indicated 
on the Form 1-129 Petition did not match the number on the submitted Form W-2 and requested that the 
petitioner clarify this issue. " 
In a.response received on ~ovember 12, 2003, the petitioner stated that it typically employs six employees in 
the United States and provided an organizational chart for the U.S. entity showing that the beneficiary would 
. , directly supervise a general counsel, chief engineer, executive vice president of marketing, and an assistant to 
the general counsel, with additional staff in Peru, including two camp managers and twenty workers. The 
petitioner provided copies of its Forms W-2 and W-3 for 2002 and its federal and state quarterly tax returns 
for the requested period. The petitioner also submitted an amended Form 1-129 with a revised IRS .employer 
-. identification number that matches the number reflected on all of the tax documentation, but did not provide 
an ex$lanation 'for the discrepancy. Finally, the petitioner stated that its tax accountant had not filed an 
income tax return for the fiscal years 2000, 2001 and 2002 but that the company anticipated prepiiring and 
filing all three retums by the end of 2003. The petitioner submitted a copy of Form 7004, Application for 
of Time to File Corporation Income Tax Return showing that the petitioner requested an 
extension until September 15,2003 to file its 2002 corporate tax return. 
OnNovember 25, 2003, the director denied the petition concluding thatthe petitioner had not established that 
it was doing business in the United States. The director noted that its failure to provide its federal tax returns' 
for the last three years "raises serious doubt as to the validity of its claim to be a legitimate business entity and 
its employment ,offer as an employer." The director also stated that public' records could validate neither of 
the tmployer tax identification numbers provided by the petitioner.. 
On appeal, counsel for the petttioner dlsputes the d~rector's findlng that the petlt~oner has not been doing 
business and asserts that the director's bases for such findlng were erroneous. counsel further contends that 
the dlrector overlooked evldence that the pet~tioner IS clearly operating as a mining company, and also asserts 
that ~t IS normal In the Industry for a company to requlre three to five years for ~ts mlnlng operations to 
become viable. Counsel asserts that the failure to generate lncome or revenue for the first three years of 
operation has led the petltloner to overlook filing ~ts tax returns, but that thls failure was due to a 
mlsconcept~on of the law. In addition, counsel contends that the record contams sufficient evldence, 
lncludlng SEC fil~ngs, quarterly income tax returns and quarterly reports, demonstrating that the petitloner IS 
a legihmate m~nlng company engaged m actual exploration and dnlllng programs, and that the petitioner's 
shareholders are committed to cont~nued Investments m the company. W~th respect to the discrepancy in the 
company's reported Employer Identifying Numbers (Ems), counsel notes that the confusion was created by 
the 2002 merger of two companies Corporation, a ~orporatlon, wlth- 
wlth a separate Em. Counsel asserts that, as a result of the transaction, 
- assumed and maintained the Corporat~on name, hut both 
company's EINs st111 exlst and are valld. 
WAC 03 231 50378 
Page 5 
Upon review ofthe petitionand the evidence, the AAO concurs with the director's determination that the 
petitioner has not'established that it is doing business as defined at 8 C.F.R. 5 214.2(1)(l)(ii)(H). While the 
director based his decision primarily on the petitioner's failure to file tax returns for the three years prior to 
iubrnitting the instant petition and inconsistencies with respect to the petitioner's IRS employer identification 
number, there is additional evidence in the record which also suggests that the company is not engaged in the 
regular, systematic and continuous provision of goods and services andlor is therefore not "doing business" 
for immigration purposes. 
As noted above, the director specifically requested that the petitioner provide a copy of its 2002 U.S. 
Tax Return. The petitioner replied that its accountant had not filed income tax returns for 
fiscal years 2000, 2001 and 2002, but stated that it would file all tax returns for all three years by the end of 
2003. It also submitted a copy of its request for an extension until September 15,2003 to file its 2002 income 
tax return. The petitioner offered no explanation as to why the company, which claims to have employees and 
to be actively conducting business, failed to file the previous returns in the course of doing business. In 
addition, the petitioner responded to the request for evidence in November 2003, by which date it should have 
filed its 2002 income tax return, assuming it was granted an extension until ~e~tember 15, 2003. The 
petitioner's failure to submit these documents or, alternatively, to provide an adequate explanation regarding 
the non-existence or other unavailability of requested evidence in response to the director's request creates a 
presumption of ineligibility. See 8 C.F.R. fj 103.2(b)(2)(i). 
On appeal, couksel explains that the company simply overlooked filing its tax returns due to a misconception. 
of the law, suggesting the company's .tax accountant believed that it was not necessary to file the returns 
.because the company had no income. However, if counsel had wanted CIS to take its explanation into 
consideration, it should have offered this information in response to the director's request for evidence. 
Counsel is correct that the regulations governing intracompany trdnsferees do not require submission of 
income tax returns to establish eligibility. Counsel does not consider, however, that the regulation at 8 C.F.R. 
,§ 2 14.2(1)(3)(viii) states that the direckor may request additional evidence in appropriate cases. The director's 
request for the company's tax returns was reasonable under the circumstances, and the petitioner's failure to 
submit 'the requested documents or an adequate explanation in response to the request cannot be excused. The 
failure to submit requested evidence that precludes a material line of inquiry shall be grounds for denying the 
petition. See 8 C.F.R. 9 103.2(b)(14). The petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. 'The petitioner 
failed to submit the,requested evidence and now submits an explanation on appeal. However, the AAO will 
not 'consider this information for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988). 
Counsel also asserts that its regular filings with the SEC provide sufficient evidence that the company is 
actively doing business. There are two problems with this argument. First, the SEC filings all show a different 
employer identification number than that reflected on all of the submitted tax documents and on the corrected 
Form 1-129. If the SEC filings are not for the petitioning company, it is not clear how they establish that the 
petitioner is doing business. Second, the documents filed with the SEC suggest that the company placed its 
exploratory mining, activities in Peru on hold in November 2002 and had not restarted them as of January 
2004. The AAO recognizes that a' newly formed mining company may require several years to reach the 
profitable production phase. However, this particular operation seems to have indefinitely stalled in the 
WAC 03 23 1 50378 
Page 6 
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exploratory stage and it is not clear that it has engaged in any regular, contlnuous or systematlc activlty since 
completing its "phase one" drilling in 2002. 
Fmally, the AAO concurs wlth the dlrector that the lnconsistencles in the petitioner's tax ldentlficatlon 
number have not been adequately explalned or resolved. The pet~tioner utihzed the number ' on 
the lnltlal 1-129 Pet~tlon and this number IS reflected on all submltted coples of SEC fillngs. All of the 
Forms W-2 and 941, show "and a d~fferent 
The petlt~oner also submltted a certificate of name change 
16, 1999, showing as prevlous name as '- 
Development Corporation," but dld not explaln why this prevlous company name appears on tax documents 
issued In 2002. In response to t dlrect 's request for clanficat~on regarding the tax number, counsel for the 
petlt~oner merely stated that dm 1s the correct number and submitted a modified Form 1-129 No 
further explanation was provided, and counsel did not Indicate that the number utllized on the SEC fillngs was 
~ncorrect, which leads to' a conclusion that the petitloner IS not the same company whose actlvltles are 
reflected in the SEC documents. 
On appeal, counsel explalns that the confusion was cr ger ofn, a 
corporation assrgned tax ldentlficatlon numb wtth the compan f rmerl own as 
- a Delaware corporation assigned tax ~dent~fication numbe M hich is 
now known as rporatlon. While the AAO acknowledges counsel's argument that the 
petltloner has ut~llzed both numbers m good faith In ~ts filings with the IRS and SEC, the pet~tloner st111 has 
not resolved which v- actually serves as the petitloner m thls case, or explalned 
why ~t appears to use one identification number for RS fillngs and a d~fferent number for SEC fillngs. In 
addition, there IS also a questlon as to whether the merger between the two companies actually occurred. The 
Fonn 10-KSB Annual Report for the year ended on September 30,2003, submltted on appeal, reveals that the 
Reorganization and Stock Purchase Agreement between and - 
Corporatlon for the purpose of acquiring 100% of the Issued and outstanding shares of - 
Corporatlon was never fully consummated. Thls information raises further questions about the company's 
apparent Interchangeable use of tax ldentificatlon numbers. It IS Incumbent upon the petitioner to resolve any 
lnconslstencles In the record by Independent objective evidence. Any attempt to explaln or reconcile such 
inconslstencles will not suffice unless the petltloner submlts competent objective evidence polnt to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Notwlthstand~ng the lssue ralsecl by the 
d~rector as to whether elther or both tax ~dentlficatlon numbers are val~d, the AAO cannot determine which 
company actually serves as the petitioner m thls case 
Based on the many unresolved lnconsistencles in the record, the AAO cannot conclude that the petltloner has 
been engaged m the regular, systematlc and contlnuous provis~on of goods or services. See 8 C.F.R. 
8 214.2(1)(1)(11)(H). As the petltloner has not established that ~t IS a qualifying organlzatlon dolng buslness In 
the Un~ted States, the petltion may not be approved. 
Beyond the decision of the director, the petitioner has not establishdd that the beneficiary had been employed 
by a qualifying organization on a full time basis for at least one continuous year within the thee years prior to 
filing the petition. .See 8 C.F:R. 4 214.2(1)(3)(iii). The petitioner submitted a stock certificate for the 
WAC 03 23 1 50378 
Page 7 
I 
company, which was incorporated in 2001 and is apparently owned by - 
corporation,' the Nevada company. However, if the petitioner, the Delaware company, never completed its 
acquisition of the company, the company's claimedsubsidiary 'would not have a 
qualifying relationship with the petitioner. Moreover, even if there is a relationship between the petitioner and 
the beneficiary's claimed employer, the petitioner submitted no evidence to establish that the 
company was doing business or to establish that the beneficiary actually worked for the company, 
other than a letter from the petitioner's current president which states that the beneficiary serve'd' as president 
of the company for two 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 (Cornm. ,1998) (citing,Matter of Treasure Craft of California, 14 I&N Dec. 190. (Reg. Comm. 
1972)). In addition, the petitioner claims that the beneficiary was working for the U.S. company as a 
consultant since 2000 and submitted copies of a Form 1099 and a Form W-2 issued by the petitioner to the 
beneficiary in.2002, with payments totaling $97,799. The petitioner's 2003 Form 10-KSB also states that the 
beneficiary served as the U.S. company's president from November 2001 to December 2002, and reports that 
he received compensation of $97,7$9. Based on this conflicting evidence, petitioner's claim that the 
beneficiary has completed the requisite one year of full time employment with a qualifying organization in 
Canada is not credible. If CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. 
See. &., Anetekhi v. INS.. 876,F.2d 1218, 1220 (5' Cir. 1989); ~z4-A.n Bakery Shop, Inc. v. Nelson. 705 F. 
~uj>p. 7, 10 (D.D.C. 1988); Systronics &rp. v. INS, 153 F. Supp. 2d 7, 15'(D.D.C. 2001). For this additional 
reason, the petition cannot be approved. 
An appllcatlon or petltion that falls to comply with the technical requ~rements of the law may be denled by the 
AAO even if the Servlce Center does not Identify all of the grounds for denial m the lnltial decision. See 
Spencer Enterprrses, Inc. v United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Clr. 1989)(noting that the AAO revlews 
appeals on a de novo basis). 
'The petltlon wlll be denled for the above stated reasons, wlth each considered as an independent and 
alternative basis for denial. In vtsa petition proceedings, the burden of provlng ellglblllty for the benefit 
sought remains entlrely with the petltloner. Sectlon 291 of the Act, 8 U.S.C. $ 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.