dismissed L-1A Case: Property Management

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 02 220 50981 Office: TEXAS SERVICE CENTER Date: J~~ 4 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101 (a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. fj 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. 
Robert P. Wiemann, Director 
?Administrative AppeaIs Office 
SRC 02 220 50981 
Page 2 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, Texas Service 
Center. The petitioner subsequently filed a motion to reopen and reconsider. The Director 
dismissed the motion and affirmed his decision to deny the petition. The matter is now before the 
Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner, Tidwell Apartments, Inc., endeavors to classify the beneficiary as a manager or 
executive pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 3 1101(a)(15)(L). The petitioner claims to be an affiliate of Shaan Feeds Limited, 
located in Pakistan. It is engaged in the property management, leasing, and hotel business. The 
beneficiary was initially granted a one-year period of stay to open a new office in the United 
States. The petitioner now seeks to extend the petition's validity and the beneficiary's stay for 
two years as the U.S. entity's director and president. 
On January 15, 2003, the director denied the petition, determining that the petitioner failed to 
establish that a qualifying relationship existed between the U.S. and foreign entities. 
The petitioner subsequently filed a motion to reopen and reconsider the director's denial. On 
February 22, 2003, the director dismissed the motion and affirmed her denial. This timely appeal 
followed. On appeal, counsel for the petitioner asserts that the petitioner "meets the qualifications 
of a qualifying organization." Counsel submits a brief and additional evidence in support of the 
appeal. 
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 meet certain criteria. Specifically, within three 
years preceding the beneficiary's application for admission into the United States, 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. Furthermore, 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. 
Pursuant to 8 C.F.R. 3 214.2(1)(3), 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. 
SRC 02 220 50981 
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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 hirnher 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. 
Pursuant to 8 C.F.R. tj 214.2(1)(14)(ii), if the petitioner is filing a petition to extend the 
beneficiary's stay for L-1 classification, the regulation requires: 
A visa petition under section 101(a)(15)(L) which involved the opening of a new office 
may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying 
organizations as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined 
in paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous 
year and the duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the 
number of employees and types of positions held accompanied by evidence of 
wages paid to employees when the beneficiary will be employed in a managerial 
or executive capacity; and 
(E) Evidence of the financial status of the United States operation. 
The issue in this proceeding is whether the petitioner has established that a qualifying relationship 
exists between the U.S. and foreign entities. 
The regulation at 8 C.F.R. tj 214.2(l)(ii) defines the term "qualifying organization" and related 
terms as follows: 
(G) Qualzfiing organization means a United States or foreign firm, corporation, or other 
legal entity whlch: 
(I) 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 hs 
section; 
(2) Is or will be doing business (engagng 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 
SRC 02 220 50981 
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(3) Otherwise meets the requirements of section 101 (a)(15)(L) of the Act. 
(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) 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. 
(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 indicated on Form 1-129 that it has an affiliate relationship with the foreign entity. On 
an attachment to Form 1-129, the petitioner stated, "The Petitioner is now one hundred percent 
(1 00%) owned and controlled by [the beneficiary]." The petitioner also stated that the foreign entity 
is majority-owned and controlled by the beneficiary. In support of the petition, the petitioner also 
submitted (1) the U.S. entity's articles of incorporation, which indicate that it is authorized to issue 
10,000 shares of stock; (2) stock certificate number 1001 for 6,000 shares issued to Shah, Inc. on 
January 31, 2001; (3) stock certificate number 1002 for 4,000 shares issued to the beneficiary on 
January 31, 2001; (4) a partially illegible stock certificate for Shah, Inc. indicating that 100 shares 
were issued to Akhtar Shah on March 5, 1993; (5) a statement from the petitioner's corporate 
secretary dated May 31, 2001, confirming that Shah, Inc. and the beneficiary own its stock in the 
above-stated proportions; (6) a certificate of shareholding from the foreign entity's secretary dated 
August 23, 2000, stating that beneficiary owns 12 shares of the Pakistan company, comprising 78 
percent of its issued shares; and (7) the foreign company's memorandum and articles of association 
dated February 8, 1992, which lists the beneficiary has the owner of 78 shares out of 100 issued 
shares. 
On July 24, 2002, the director requested additional evidence. In part, the director requested that the 
petitioner submit its 2001 Federal Income Tax Return with all attachments. In a response dated 
September 13,2002, the petitioner included a copy of its 2001 Form 1120S, U.S. Income Tax Return 
SRC 02 220 50981 
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for an S Corporation for 2001. An attached Schedule K-1 indicated that the beneficiary owns 100 
percent of the company's stock. 
On October 1, 2002, the director issued a second request for evidence seeking to clarify the 
ownership of both companies. The director noted that the submitted stock certificates show that 
Shah, Inc. is the majority shareholder, while the petitioner claimed that the beneficiary owns 100 
percent of the petitioner's stock. Accordingly, the director requested: (1) clear evidence that the 
foreign and U.S. entities have a qualifying relationship; (2) a copy of all stock certificates (front 
and back) for the United States entity; (3) a copy of the petitioner's stock registry; (4) an 
explanation regarding the petitioner's status as an S corporation, and evidence to establish that it 
is no longer an S corporation, if applicable; (5) a copy of all stock certificates (front and back) for 
the foreign entity; and (6) a copy of the stock registry for the foreign entity. 
In a response dated January 2, 2003, the petitioner submitted the following explanation regarding 
its ownership: 
0%). This stock was formerly owned 
beneficiary] (78%) . . . . Shah, Inc. 
other owner of [the petitioner] is [the beneficiary] 
exist any longer . . . . 
Since [the beneficiary] d 40% of [the petitioner] - 
which is owned 60% b he controls both the foreign entity and the 
U.S. subsidiary. Thus the statement that the petitioner is under the control of [the 
beneficiary], although it is not quite 100% in terms of stock ownership - only to 
indicate that it is under his complete control since he controls 
which, in turn, controls [the petitioner]. - 
-ely stepped into the he control remained 
the same sinc-as owned ere was no change 
in the relationshp of the companies and control remained the same -wit- 
stock certificates 
were transferred to while the shares to [the 
beneficiary] .remained the same, 
The parent compan erely decided to eliminate a "go-between" 
corporation and [the petitioner]. This minor change went 
into effect on October 1,2002 - the beginning of the fourth quarter. 
[The petitioner] is not an "S" corporation. We now realize that our corporate tax 
return for 2001 was filed on the wrong form and are talung steps to correct this. 
SRC 02 220 50981 
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In support of this statement, the petitioner submitted: (1) its stock certificate number one issued to 
Shaan Feeds for 6,000 shares on October 1, 2002; (2) its stock certificate number two issued to 
the beneficiary for 4,000 shares on October 1, 2002; (3) evidence that the formerly issued stock 
certificates, numbers 1001 
illegible stock certificate fo hares issued t arch 5, 
1993; (6) a partially illegible stock certificate for Shah, Inc. showing 100 shares issued to Akhtar 
Shah on March 5, 1993; and (7) previously submitted documentation to show the ownership of 
the foreign entity. The petitioner explained that the foreign entity does not issue stock or share 
certificates. 
On January 15, 2003, the director concluded that the petitioner failed to establish a qualifying 
relationship between the U.S. and the foreign entities. The director found that the petitioner failed 
to establish the ownership of the U.S. entity and noted that the record contained unresolved 
conflicting information as to how the two entities are related. Consequently, the director denied 
the petition. 
The petitioner subsequently filed a motion to reopen and reconsider the director's denial. The 
petitioner submitted its amended 2001 Form 1120, U.S. Corporation Income Tax Return, filed on 
January 23,2003. 
On February 22, 2003, the director dismissed the motion and affirmed her denial. The director 
found that at the time of filing, the petitioner failed to establish that the U.S. and foreign entities 
had a qualifying relationship. 
On appeal, counsel for the petitioner asserts that the petitioner "meets the qualifications of a 
qualifying organization." Counsel asserts the following: 1) the beneficiary has always been in 
control of the foreign and U.S. entities; 2) three precedent decisions support the assertion that the 
petitioner has a qualifying relationship with the foreign entity; 3) the U.S. company's tax return 
was filed with the Internal Revenue Service which establishes that the petitioner made an error; 
and, 4) typographical or "procedural" errors that result in a denial may be corrected. 
Counsel's assertions are not persuasive. Upon review, there is insufficient evidence on record to 
establish that a qualifying relationship exists between the petitioner and the foreign entity 
pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). 
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 of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988); see also Matter of Siemens Medical Systems, Inc., 
19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Comrn. 1982). In 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. 
SRC 02 220 50981 
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As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are 
not sufficient evidence to determine whether a stockholder maintains ownership and control of a 
corporate entity. The corporate stock certificate ledger, stock certificate registry, corporate 
bylaws, and the minutes of relevant annual shareholder meetings must also be examined to 
determine the total number of shares issued, the exact number issued to the shareholder, and the 
subsequent percentage ownership and its effect on corporate control. Additionally, a petitioning 
company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of 
the entity. See Matter of Siemens Medical Systems, Inc., supra. 
In the present matter, the petitioner has submitted only minimal evidence to establish the 
ownership and control of the U.S. entity, and what little evidence submitted has been conflicting. 
Initially, the petitioner stated on the attachment to Form I- 129 that it "is now one hundred percent 
(100%) owned and controlled by" the beneficiary, which would seem to suggest a change in 
ownership since the previous L-1 petition filing. the petitioner submitted stock 
certificates indicating that another U.S. compan as the majority owner of the 
petitioner's shares. The petitioner's 2001 Form 1 In response to the first request 
for evidence also stated that the beneficiary was the sole shareholder of the company. In response 
to the director's second request for evidence, the petitioner indicated that the company was never 
wholly owned by the beneficiary and claimed that the Form 1120s indicating him as the sole 
shareholder was in error. The petitioner then claimed th subsidiary om 
no longer exists, and that its shares were transferred to Shaan Feeds on October 1, 2002. On 
appeal, the petitioner submits its amended Form 1120, U.S. Corporate Income Tax Return, which 
states that Shaan Feeds owns 60 percent of the U.S. company. However, this document does not 
cure the many deficiencies in the record with respect to the U.S. company's ownership. A visa 
petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Cornm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Cornm. 1971). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 
1998). 
The petitioner has not adequately explained why it initially indicated on the attachment to Form I- 
129 that the company "is now one hundred percent (100%) owned and controlled" by the 
beneficiary, nor has it adequately explained the claimed "error" in its initial self-prepared income 
tax return. 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). 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, 19 I&N Dec. 582, 591 
(BIA 1988). 
later representations, the U.S. company was owned by another U.S. 
company the date of filing. Although the petitioner claims that this company was a 
majority ary of the foreign entity, thus making the petitioner an indirect subsidiary, 
SRC 02 220 50981 
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it has not submitted sufficient evidence to substantiate this claim. The petitioner submitted a 
partially illegible share certificate showing that the foreign entity owned 900 shares of Shah, Inc. 
as of March 1993. The share certificate contains no legible certificate number, nor does it indicate 
how manv shares the comDanv was authorized to issue. This document is inadequate to establish 
4, 
that the foreign entity held a majority of shares : 
petition was filed. In addition, the petitioner repeatedly state1 
has failed to indicate when the company was dissolved. with; 
' Julv 2002, when the instant 
1 longer exists, but 
Zion, it is impossible 
to determine whether the company even existed at the date of filing. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Based on the conflicting 
claims regarding the petitioner's ownership at the time of filing, and the petitioner's failure to 
document the ownership of Shah, Inc., the petitioner has not established that the U.S. entity was a 
subsidiary of the foreign entity pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(K). 
The AAO recognizes the petitioner's attempts to show that the foreign entity now directly owns 
the majority (60 percent) of the petitioner's shares. 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). 
Nor has the petitioner established that the U.S. company is an affiliate of the foreign entity 
pursuant to 8 C.F.R. tj 214.2(1)(l)(ii)(L). The petitioner claims that the beneficiary is the majority 
owner of the foreign entity, and that he has direct and indirect majority ownership and control 
over the U.S. entity. As already discussed above, the petitioner has not provided clear and 
consistent evidence to establish the ownership of the United States entity, thus it is impossible to 
find an affiliate relationship based on common ownership and control. However, it is noted for 
the record that the petitioner has not established that the beneficiary is the majority shareholder of 
the foreign entity. Based on the documents submitted, it appears that he owned 78 out of 100 
issued shares as of Februaty 8, 2002, as reported on page 38 of the foreign entity's memorandum 
and articles of association. However, the "certificate of shareholding" issued by the foreign 
entity's secretary in August 2000 indicates that the beneficiary "is the owner of 12 shares of 
Shaan Feeds Ltd. Which Comprises of 78% of outstanding shares." Clearly, the beneficiary could 
not reduce his shareholding by 66 shares and still hold 78 percent of the outstanding shares of the 
foreign entity. Rather, if the beneficiary owned 12 shares, his percentage of ownership would be 
12 percent, assuming the total number of shares did not increase. This conflicting evidence has 
not been resolved. The petitioner has not established that the beneficiary was the majority 
shareholder of the foreign entity at the time the petition was filed. 
The AAO recognizes counsel's submission of three precedent AAO decisions on appeal to stand 
for the proposition that a high degree of ownership and control between organizations is sufficient 
to establish a qualifying relationship for L-1 visa purposes. Specifically, counsel cites Matter of 
Tessel, 17 I&N Dec. 63 1 (Act. Assoc. Cornrn. 1981); Matter of Hughes, 18 I&N Dec 289 
(Cornrn. 1982); and Matter of Church Scientology International, 19 I&N Dec. 593 (Comm. 
1988). Counsel's reliance on these decisions is not persuasive in the instant matter. As discussed 
SRC 02 220 50981 
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above, the petitioner has failed to submit sufficient evidence to document its claims regarding the 
key elements of ownership and control of the U.S. and foreign entities. 
Counsel further refers to an unpublished decision in which the AAO determined that the 
petitioner satisfied the qualifying relationship requirement for L-1 classification even though 
there was a typographical error in the company's corporate documentation that initially resulted 
in a denial on this issue. Counsel has provided a copy of the decision, but has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the unpublished 
decision, other than stating that the petitioner's initial filing of a Form 1120s rather than a Form 
1120 was a similar type of error. As already stated above, the many deficiencies in the 
petitioner's evidence are not cured by its submission of the amended tax return. Further, while 
8 C.F.R. $ 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in 
the administration of the Act, unpublished decisions are not similarly binding. 
After careful consideration of the evidence, the AAO concludes that the petitioner has not 
established that a qualifying relationship exists between the United States and foreign entities. For 
this reason, the petition may not be approved. 
Beyond the decision of the director, the AAO is not persuaded that the beneficiary has been or will 
be employed in a managerial or executive capacity as defined at sections 101(a)(44)(a) or (B) of the 
Act, 8 U.S.C. $$ 1101(a)(44)(A) or (B). The petitioner has provided a broad description of the 
beneficiary's U.S. duties. For example, the petitioner described the beneficiary's duties as "setting 
and establishing the company's goals and objectives," "overseeing all operations," and "reviewing 
and analyzing market conditions." The petitioner did not, however, describe the goals or objectives 
that the beneficiary will perform for the U.S. entity, or describe any specific duties involved in 
"overseeing" the petitioner's operation. Reciting the beneficiary's vague job responsibilities or 
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the 
beneficiary's daily job duties. The petitioner has failed to answer a critical question in this case: 
What does the beneficiary primarily do on a daily basis? The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afd, 905 F.2d 4 1 (2d. Cir. 1990). Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 
22 I&N Dec. at 165. In addition, although requested by the director, the petitioner failed to provide 
job descriptions for the beneficiary's subordinates. Thus, although four of the subordinates have 
managerial, supervisory, or professional personnel, without job descriptions, the AAO cannot 
conclude that the beneficiary actually supervises managerial, supervisory, or professional personnel 
or, that the subordinate staff is sufficient to relieve the beneficiary from performing non-qualifjmg 
duties. Any failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. $ 103,2(b)(14). For this additional reason, the petition may 
not be approved. 
Another issue in this proceeding, also not raised by the director, is whether the employment 
offered to the beneficiary is temporary. Generally, the petitioner for an L-1 nonirnmigrant 
classification need submit only a simple statement of facts and a listing of dates to demonstrate 
the intent to employ the beneficiary in the United States temporarily. However, where the 
beneficiary is claimed to be the owner or a major stockholder of the petitioning company, a 
SRC 02 220 50981 
Page 10 
greater degree of proof is required. Matter of Isovic, 18 I&N Dec. 361 (Comm. 1982); see also 
8 C.F.R. 5 214.2(1)(3)(vii). The record indicates that the beneficiary is the owner of the 
petitioning organization, and the majority owner of the foreign entity. The petitioner claimed, 
"the control of both the foreign entity and the U.S. entity is firmly in the hands of one person - 
[the beneficiary]." On the petition, the petitioner also indicated that the beneficiary's services 
would be required for two years. No evidence of the claim was provided. In the absence of 
persuasive evidence, it cannot be concluded that the beneficiary's services are to be used 
temporarily or that he will be transferred to an assignment abroad upon completion of the position 
in the United States. Therefore, the petition may not be approved on this basis as well. 
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 Entevprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aj'd. 345 F.3d 683 (9th 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 remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. 8 1361. Here, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.