dismissed L-1B Case: Asset Recovery And Recycling

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
ideatifying data deleted to 
pent clearly unwanrrnred 
baMn of- me, 
U. S. Citizenship 
and Immigration 
FILE: WAC 05 126 53867 Office: CALIFORNIA SERVICE CENTER Date: Hm 2 7 2m 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101(a)(15)(L) 
ON BEHALF~F 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. ~iemann,~~hief 
d 
Administrative Appeals Office 
WAC 05 126 53867 
Page 2 
DISCUSSION: The Director, California Servicd Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Administrative Appeals Office (MO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1B nonimrnigrant 
intracompany transferee with specialized knowledge pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. fj 1 101(a)(15)(L). The petitioner, a Nevada limited liability company, 
claims to be engaged in the recovery of redundant assets for local and offshore recycling. 
 The petitioner 
states that it is an affiliate o 
 ocated in Australia. The petitioner 
seeks to employ the beneficiary as its regional operations manager for a one-year period. 
The director denied the petition on April 12, 2005, concluding that the petitioner failed to establish that a 
qualifying relationship exists between the U.S. entity and the foreign entity. The director observed that while 
some common ownership exists between the two comp,anies, they did not meet the regulatory definition of 
"affiliates," as they are not owned by the same group of individuals, with each individual o&ing and 
controlling approximately the same share or proportion of each entity. 
( 
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 does ,not dispute the 
director's findings or assert that the decision was based on an erroneous conclusion of fact or law. On the 
Form I-290B, Notice of Appeal, counsel for the petitioner states the following: 
Petitioner has completed the restructuring of their organization and has forwarded faxed 
copies of the signed resignation, redemption agreement, -assignment of interest and 
amendment to the operating agreement. . . . .The new organization will exclude one foreign 
minority owner from ownership in the U.S. Company. . . . The new structure which is the 
basis of the qualifying relationship is as follows: 
Counsel submits a brief and additional evidence in support of the appeal, including documentation to establish 
that, as of May 2005, the U.S. entity and the foreign entity are majority-owned and controlled by Barrier 
Trust. 
To establish L-1 eligibility under section lOl(a)(l!)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. tj 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. 
WAC 05 126 53867 
Page 3 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. The 
evidence submitted on appeal regarding the petitioner's current ownership and control has no bearing on a 
determination as to the petitioner's and beneficiary's eligibility as of the date this petition was filed. The 
petitioner must establish eligibility at the time of filing the nonimmigrant 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. Comm. 1978). 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. Cornm. 1998). 
0 ' 
To establish eligibility in this case, it must be shown that the foreign employer and the petitioning entity share 
common ownership and control. Control may be "de jure" by reason of ownership of 51 percent of 
outstanding stocks of the other entity or it may be "de facto" by reason of control of voting shares through 
partial ownership and possession of proxy votes. Matter of Hughes, 18 I&N Dec. 289 (Comm. 1982). 
In this case, at the time of filing, the U.S. entity wai owned by four members with no majority owner, and the 
foreign entity was owned by three of the same members, one of whom owns a 60 percent majority interest in 
the company. 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 owned and controlled both entities, and thus has not established the claimed affiliate 
relationship. See 8 C.F.R. 5 214.2(1)(l)(ii)(L). Based oli the evidence submitted, the director correctly 
concluded that the petitioner did not establish that a qualifying relationship existed between the U.S. and 
foreign entities, and counsel does not dispute this finding on appeal. 
Regulations at 8 C.F.R. 5 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall su&arily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of 
fact for the appeal. 
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. 4 1361. Inasmuch as the petitioner has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not 
sustained that burden. Therefore, the appeal will be summarily dismissed. 
ORDER: 
 The appeal is summarily dismissed.