dismissed L-1A Case: Retail

U.S. Department of Homeland Security 
Pmmt wy un- 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 01 077 55303 Office: TEXAS SERVICE CENTER Date: Q 1 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the immigration 
and Nationality Act, 8 U.S.C. $ 1 lOl(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. 
i 
obert P. Wiemann, Director 
Administrative Appeals Office 
SRC 01 077 55303 
Page 2 
DISCUSSION: The Director, Texas Service Center, revoked the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the evidence contained in the record, the petitioner claims to have been established in 1999 as a 
sole proprietorship. The petitioner claims that it is engaged in retail sales and operates a gas station business. 
In 1999 the petitioner sought to employ the beneficiary temporarily in the United States as an executive 
director of the entity. The intracompany transferee L-IA visa was initially granted from January 13, 2000 to 
January 13, 2001. An extension of the beneficiary's L-IA visa status was granted from January 14, 2001 to 
January 13, 2003. The director issued a Notice of Intent to Revoke on September 10, 2003, based upon a 
memorandum received from the American Consulate General in Mumbai where it was determined, 
subsequent to interviewing the beneficiary in person, that the beneficiary did not have experience or education 
sufficient to perform the duties of the position being offered by the petitioner in the United States. 
In the memorandum, dated August 1, 2001, the American Consulate General stated in part: 
The [beneficiary] is to be employed as an Executive Director at the convenience store with an 
annual salary of $25,000.00 
[The beneficiary's] 1-129 states that his job responsibilities would be to "direct, manage and 
oversee the day to day activities of the company." 
However, interviews with Consular Officers indicated that [the beneficiary] is sadly under 
qualified to fulfill these responsibilities. The following is an exact transcript of the first two 
questions of the interview: 
Officer: What do you do at your current job? 
[Beneficiary]: I do whatever my daddy tells me. 
Officer: What are your responsibilities? 
[Beneficiary]: Basically my dad handles the business. 
Interviews with [the beneficiary] revealed the following information: 
[The beneficiary] does not have a college degree and has completed no academic 
coursework in business administration. 
[The beneficiary] has no work experience. 
[The beneficiary] has no international business experience. He has no knowledge of 
the US market or the retail industry in the United States. 
In response to the director's notice of intent to revoke, the petitioner submitted copies of the beneficiary's 
resume, secondary school education certificate received from the Maharashtra State Board of Secondary and 
Higher Secondary Education in March of 1994, transcript containing seven courses taken from the Mithibai 
College of Arts in March of 1997, and an organizational chart depicting the foreign entity's organizational 
structure. The petitioner also submitted affidavits of employment from employees of the foreign entity. 
The director subsequently issued her decision to revoke the petition on October 27, 2003. The director stated 
that she revoked the petition based upon the information received from the consulate in Mumbai. The 
director noted that as a result of the beneficiary's interview with the consulate in Mumbai, where his 
SRC 01 077 55303 
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statements were taken under oath, the interviewer determined that the beneficiary had no experience or 
education sufficient to perform the duties of the position being offered by the petitioner in the United States. 
On appeal, counseI disagrees with the director's decision and asserts that the evidence submitted by the 
petitioner is sufficient to establish that the beneficiary has been and will be employed by the U.S. entity in a 
managerial or executive capacity. Counsel asserts that the consulate's decision was vague, and that the 
director wrongfully relied upon hislher decision in revoking the petition in the instant matter. 
Counsel's assertions are not persuasive. Under CIS regulations, the approval of an L-1A petition may be 
revoked on notice under six specific circumstances. 8 C.F.R. § 214.2(1)(9)(iii)(A). To property revoke the 
approval of a petition, the director must issue a notice of intent to revoke that contains a detailed statement of 
the grounds for the revocation and the time period allowed for rebuttal. 8 C.F.R. 9 214.2(1)(9)(iii)(B). The 
director noted that based upon a review of the,memorandum received from the American Consulate General 
in Mumbai, the beneficiary made statements under oath that contradicted statements and documentation 
contained in the petition, which brought into question the legitimacy of the beneficiary's status. The director 
questioned whether the beneficiary possessed experience and education sufficient to perform the job duties of 
the position being offered by the U.S. entity. Counsel contends the consular officer failed to provide details 
as to how helshe arrived at the conclusion that the beneficiary lacked the experience and education sufficient 
to fill the position in the United States. Counsel also contends that the director wrongfutly relied upon the 
consulate's decision in revoking the petition in violation of the regulation. Contrary to counsel's contentions, 
the consulate's reasons for initiating the memorandum were sound, and the director's grounds for initiating 
the Notice of Intent to Revoke were clearly described and rightfully invoked. Upon review, the present 
petition was properly revoked as the statements of fact contained in the prior petition directly contradicted 
subsequent statements made by the beneficiary to the American Consulate in Mumbai, contrary to the 
eligibility requirements provided in the regulations. Accordingly, the appeal will be dismissed and the 
director's decision to revoke the petition will be sustained. 
To establish L-1 eligibility under section 10i(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 6 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 Staates 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. 4 214.2(1)(1)(ii) states, in part: 
lntracompuny transft.ree means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
Counsel contends the beneficiary possesses the required education and experience necessary to fill a 
managerial or executive position in the United States. The petitioner submitted copies of the beneficiary's 
resume, secondary school education certificate, transcripts from the Mithibai College of Arts, the foreign 
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entity's organizational chart, and letters of employment from employees abroad as evidence of his education 
and experience. The evidence demonstrates that the beneficiary was born in 1978, received a secondary 
school certificate in 1994, and received a certificate from Mithibai College of Arts showing that the 
beneficiary took seven courses in March of 1997. The evidence also shows that beginning in 1997, the 
beneficiary was employed by the foreign entity. Counsel and the petitioner assert that the beneficiary was 
employed in a managerial or executive capacity abroad, and would be responsible for directing, managing, 
and overseeing the day-to-day operations of the U.S. entity. Contrary to their contentions, the record 
demonstrates that when the beneficiary was asked by the American Consulate's Office what his job 
responsibilities were, he responded by stating: "Basically my dad handles the business." 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). If 
CIS fails to believe that a fact stated in the petition is true, CIS may reject that fact. Section 204(b) of the Act, 
8 U.S.C. 9 1154(b); see also Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir. 1989); Lu-Ann Bakery Shop, 
Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C. 1988); Sysaronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 
2001). 
The petitioner submitted a copy of the foreign entity's organizational chart that read: 
The petitioner also submitted affidavits of employment sworn to by the foreign company employees, in which 
it is stated in part: 
I. ~r .hereby declare.. .that I have been appointed as a Manager in 
the firm known as 'Meher Enterprises'. . .. 
I, the undersigned Mr. declare. ..that I am associated with a company 
known as Meher Enterprises.. .. as a Site Manager.. .. 
I, the undersigned Mr . . . declare.. .that I have been working as 'Accountanti 
in.. . Meher Enterprises.. .. 
I. M .hereby declare on oath.. .that I am working as a Site-Supervisor in a 
company known as 'Meher Enterprises'. . .. 
I. ~r.. .do hereby declare on oath.. .that I have been appointed as a Clerk in the 
company known as 'Meher Enterprises'. . .. 
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. Master of Ho, supra. Clearly, the 
SRC 01 077 55303 
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record demonstrates that a contradiction exists between the statement of facts contained in the petition and the 
statements made by the beneficiary at the American Consulate's Office in Mumbai sufficient to revoke the 
petition. Accordingly, the appeal will be dismissed and the director's decision to revoke the petition will be 
affirmed. 
Although not directly addressed by the director, another issue in this proceeding is whether a qualifying 
relationship exists between the U.S. and foreign entities. 
The regulations at 8 C.F.R. 9 214.2(1)(1)(ii)(G) state: 
Quulifying 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 (I)( l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) 
as an employer in the United States and in at least one other country directly 
or through a parent, branch, affiliate, or subsidiary for the duration of the 
alien's stay in the United States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section IOl(a)(lS)(L) of the 
Act. 
The regulations at 8 C.F.R. $3 214.2(1)(1)(1i) define, in pertinent part, "parent," "branch," "subsidiary," and 
"affiliatet' as: 
(I) Purent 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) Slibsidinry 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 
SRC 01 077 55303 
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(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. 
There is insufficient evidence to demonstrate the existence of a qualifying relationship between the U.S. entity 
and the beneficiary's foreign employer. The U.S. entity is known as "Merito International, Inc.," and the 
foreign entity that employed the beneficiary is known as "Meher Earthmovers." The petitioner claims to be a 
branch office of Meher Earthmovers. In describing the business relationship, the petitioner stated in the 
petition, "100% of U.S. company and 60% of Indian company owned by beneficiary." The petitioner, 
therefore, concludes that a qualifying relationship exists between the U.S. entity and the beneficiary's foreign 
employer. However, there is insufficient detail contained in the record to demonstrate the relationship 
between the U.S. and foreign entities. In a letter dated January 10. 2001, the beneficiary stated: 
The company abroad is a sole proprietorship operating under the name of Meher 
Earthmovers. The company was established in 1997 by [the beneficiary] and is currently 
operated by [the beneficiary's] father and business partner .... Since its 
inception, [the beneficiary] has acted as sole proprietor of Meher Earthmovers, exercising 
complete control and discretion 
The beneficiary further stated in the letter that the foreign entity is an excavation and construction company. 
The beneficiary also stated, "It is large [sic] part because of [the beneficiary's] shrewd investment activities 
that the foreign entity is now in a position to establish a branch office in the United States." Evidence 
contained in the record, such as the U.S. entity's IRS Form SS-4, Application for Employer Identification 
Number, demonstrates that the U.S. entity was established as a corporation, not as a branch office of the 
foreign entity. Furthermore, information contained in Form SS-4 indicates that the beneficiary purchased a 
"going business." that is described as a convenience store and gas station operating under the name of 
"Southforks Amoco." Although the petitioner contends the beneficiary purchased all 500 shares of stock in 
the U.S. entity, there is nothing in the record to substantiate this claim. If it were established that the 
beneficiary owned and controlled a majority interest in both companies as claimed, then the companies would 
be affiliates. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Treasitre Crcfl c?f'Ccl~fnrtiia, 14 I&N Dec. I90 
(Reg. Comm. 1972). 
Although not addressed by the director, a remaining issue to be examined is whether the petitioner has 
established that the beneficiary's services are for a temporary period. The regulation at 8 C.F.R. 5 
214.2(1)(3)(vii) states that if the beneficiary is an owner or major stockholder of the company, the petition 
must be accompanied by evidence that the beneficiary's services are to be used for a temporary period and 
that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services 
in the United States. On the petition the petitioner stated "100% of U.S. company and 60% of Indian 
company owned by beneficiary." 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. 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. $ 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.