dismissed L-1A Case: Research And Development

plJBLIC copy
identifying data deleted to .
revent clearlY unwarr~nted
kvasion of personal pnvacy
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: EAC 0521552883 Office: VERMONT SERVICE CENTER Date: SEP 0 62007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.c. § 1101(a)(l5)(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.
~~ef
Administrative Appeals Office
EAC 0521552883
Page 2
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will summarily dismiss
the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act) , 8
U.S.C. § 1l01(a)(15)(L). The petitioner, a Virginia corporation, states that it is engaged in research and
development. The petitioner claims to be an affiliate of Polaris Five Korea , Inc., located in Korea. The petitioner
seeks to employ the beneficiary in the position ofresearcher in its new office for a one-year period.
The director denied the petition on November 14,2005 , concluding that the petitioner did not establish that the
petitioner has a qualifying relationship with the foreign entity.
The petitioner subsequently filed an appeal on December 5, 2005. On the Form 1-290B, Notice of Appeal,
counsel for the petitioner states: "[The beneficiary] was improperly denied L-l visa based upon the evidence
submitted." Counsel indicated that he would forward a brief and/or additional evidence to the AAO within 30
days. As no additional evidence has been incorporated into the record, the AAO contacted counsel by
facsimile on July 31, 2007 to request that he acknowledge whether the brief and/or evidence were timely
submitted, and, if applicable, to afford counsel an opportunity to re-submit the documents within five business
days. The AAO has not received a response to its request. Accordingly , the record will be considered
complete.
To establish eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United States, a
firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed the
beneficiary 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.
Regulations at 8 C.F.R . § 103.3(a)(1)(v) state, in pertinent part:
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned
fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal.
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. Counsel 's
general objections to the denial of the petition , without specifically identifying any errors on the part of the
director, are simply insufficient to overcome the well-founded conclusions the director reached based on the
evidence submitted by the petitioner. The unsupported statements of counsel on appeal or in a motion are not
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6
(1984); Matter of Ramirez -Sanchez, 17 I&N Dec . 503 (BIA 1980). Accordingly, the appeal win be
summarily dismissed.
Contrary to counsel's statements, the evidence submitted with the petition did not establish that beneficiary's
eligibility for this visa classification. To establish a "qualifying relationsh ip" under the Act and the
EAC 05 215 52883
Page 3
regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer
are the same employer (i.e. one entity with "branch" offices) , or related as a "parent and subsidiary" or as
"affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1).
As noted by the director, the evidence submitted indicates that the U.S. company is owned by three individuals as
follows:
334 shares
333 shares
333 shares
The evidence indicated that the beneficiary's claimed foreign employer,
follows:
, is owned as
2,000 shares
2,000 shares
2,000 shares
2,000 shares
2,000 shares
In response to the director's notice
of intent to deny the petition, counsel for the petitioner argued that the
petitioner and the foreign entity have a qualifying relationship due to common ownership. Counsel stated that
the foreign entity is "owned by five stockholders including the same three stockholders of [the petitioner],"
and is "similarly owned in equal shares ." Counsel asserted that the two companies meet the definition of
"affiliate" at 8 C.F .R. § 214.2(1)(I)(ii)(L)(2), because they are owned and controlled by the same group of
individuals, each individual owning and controlling approximately the same share or proportion of each
entity." Counsel also referred to a joint venture agreement between Winpac, Inc., a Korean corporation with
the same name as the petitioner, and the beneficiary's foreign employer, noting that the agreement establishes
that the companies are contractually obligated to work together.
The regulation and case law confirm that ownership and control are the factors that must be examined in
determining whether a qualifying relationship exists between United States and foreign entities for purposes
of this visa classification. Matter ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also
Matter ofSiemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986) ; Matter ofHughes, 18 I&N Dec. 289
(Comm. 1982) . In the context of this visa petition, ownership refers to the direct or indirect legal right of
possession of the assets of an entity with full power and authority to control; control means the direct or
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter
ofChurch Scientology International, 19 I&N Dec. at 595.
Here, based on the petitioner's representations, the U.S. and foreign entities have only two owners in
common, not three as claimed by counsel. Regardless, the companies do not have the degree of common
ownership required to establish an affiliate relationship. In this case the U .S. entity is owned by three
individuals and the foreign ent ity is owned by five individuals. No one shareholder or group of shareholders
in either company has a majority interest or has otherwise been shown to exercise control over the company .
EAC 0521552883..
Page 4
Absent documentary evidence such as voting proxies or agreements to vote in concert so as to establish a
controlling interest, the petitioner has not established that the same legal entity, individual, or group of
individuals control both entities . Based on the evidence submitted, the director properly concluded that no
qualifying affiliate relationship exists.
As the director did not directly address counsel's reference to the joint venture agreement between Winpac,
Inc. (Korea) and the beneficiary's foreign employer, the AAO will address this issue. The submitted joint
agreement references the petitioning company , although the petitioner is not named as a party to the
agreement.
Citizenship and Immigration Services (CIS) accepts the interpretation that a 50-50 joint venture creates a
subsidiary relationship for purposes of section 101(a)(l5)(L) of the Act. See 8 C.F.R. § 214.2(1)(l)(ii)(K).
Neither the Act nor the regulations provides a definition of the term "joint venture." However, the AAO has
applied a broad definition ofjoint venture in prior decisions. Matter ofHughes states that a joint venture is "a
business enterprise in which two or more economic entit ies from different countries participate on a
permanent basis." Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982) (quoting a definition from _
_ International Business Enterprise (Prentice Hall, 1973». Matter of Siemens Medical Systems, Inc.
states: "Where each of two corporations (parents) owns and controls 50 percent of a third corporation (joint
venture), the joint venture is a subsidiary of each of the parents." Matter ofSiemens Medical Systems, Inc. 19
I&N Dec. 362, 364 (BlA 1986) . In order to meet the definition of "qualifying organization," a joint venture
must be formed as a corporation or other legal entity. 8 C.F.R. § 214.2(l)(l)(ii)(G). A business created by a
contract as opposed to one created under corporation law is not be deemed a "legal entity" as used in section
101(a)(l5)(L) of the Immigration and Nationality Act. Matter of Hughes, 18 I&N Dec . 289, 294 (Comrn.
1982); see also Matter ofSchick, 13 I&N Dec. 647 (Reg. Comrn. 1970).
In this case, there is no evidence of a "third corporation" or other legal entity formed by the petitioner and the
beneficiary's foreign employer , and thus no evidence of a valid joint venture relationship for immigration
purposes. The petitioner itself is not a joint venture company formed by Winpac (Korea) and the beneficiary's
. employer, as it is owned by three individuals. At most, the petitioner may have an indirect contractual
relationship with the beneficiary's foreign employer, insufficient to establish a qualifying relationship for the
purpose of this visa classification. However, the evidence of record does not demonstrate any common
ownership and control between the Korean company known as WinPac, Inc . and the petitioner, which has the
same name. Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm, 1998)
(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
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. § 1361. Inasmuch as the petitioner has failed to identify
specifically an erroneous conclusion of law or a statement of fact in support of the appeal, the petitioner has
not sustained that burden.
ORDER: The appeal is summarilydismissed.