dismissed L-1B Case: Educational Toys

U.S. Department of Homeland Security 
20 Mass Ave, N.W., Rm A3042 
Washington, DC 20529 
8~nwdtmc~~~ U.S. Citizenship 
and Immigration 
File: SRC 03 045 5 1579 Office: TEXAS SERVICE CENTER Date: 
HAY 1 1 Mf15 
Petition: Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 lOl(a)(lS)(L) 
IN 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. 
"2- P. Wiemann, Director 
Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimrnigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner seeks to change the beneficiary's status from manager or executive (L-1A) to specialized 
knowledge worker (L-1B) and extend his period of stay as a nonirnrnigrant intracompany transferee pursuant 
to section lOl(a)(15)(L) of the Immigration and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L). The United 
States entity is a corporation organized in the State of Florida that is engaged in the sale and export of 
educational toys for pre-school children. The petitioner claims that the U.S. entity is the subsidiary of 
C.A., located in Estado de Carabobo, Venezuela. The beneficiary was initially granted a 
one-year period of stay as an L-1A nonimrnigrant manager or executive to open a new office in the United 
States. 
The director denied the petition, determining that the petitioner had not established that the beneficiary 
possessed specialized knowledge. Additionally, the director noted that Citizenship and Immigration Services 
(CIS) cannot grant the petitioner's request for simultaneous consideration of the beneficiary's qualifications as 
a manager or executive was erroneous. 
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 submits a brief and asserts that: (1) the 
petitioner fully explained why the beneficiary possesses specialized knowledge of the company's products, 
market, customers and internal procedures; and (2) the denial misconstrued the requirements for specialized 
knowledge as outlined in.a 1998 and a 2002 Immigration and Naturalization Service (now Citizenship and 
Immigration Services (CIS)) memorandum. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section lOl(a)(15)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1101(a)(15)(L). ~~ecificall~, 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. In addition, 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. 
The regulation at 8 C.F.R. 5 214.2(1)(3) further states that 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. 
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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 hidher 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. 
The primary issue in this matter is whether the beneficiary possesses specialized knowledge. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), provides the following: 
For purposes of section 101(a)(15)(L), an alien is considered to be serving in a capacity 
involving specialized knowledge with respect to a company if the alien has a special 
knowledge of the company product and its application in international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 3 214.2(1)(l)(ii)(D) defines "specialized knowledge" as: 
[Slpecial knowledge possessed by an individual of the petitioning organization's product, 
service, research, equipment, techniques, management, or other interests and its application in 
international markets, or an advanced level of knowledge or expertise in the organization's 
processes and procedures. 
In support of the petition, counsel for the petitioner submitted an undated statement from the general manager 
of the foreign entity confirming that the beneficiary had served in an executive capacity as its general 
manager from 1998 to 2001. The petitioner claimed that while in this position, the beneficiary "developed his 
professional skills along with the commercial success of [the foreign entity]." This statement further provided 
that the U.S. entity has employed the beneficiary since December 2001 as its president and as purchasing and 
sales manager. The petitioner claims that the beneficiary's employment in the United States has demonstrated 
the beneficiary's ability to direct the company's purchasing and sales policies "while successfully seizing 
business opportunities and implementing innovative ideas." Finally, the petitioner provided a copy of the 
beneficiary's resume, which indicated that the beneficiary obtained an unspecified degree in psychology in 
1978 from Ricardo Palma University in Peru, and further completed a course of study at the Marketing 
Institute of Venezuela in 1984. 
In addressing the beneficiary's qualifications as a nonimmigrant intracompany transferee with specialized 
knowledge, the petitioner provided the following statements: 
[The beneficiary] not only has special knowledge of the company's products but of all the 
Venezuelan children toys market[.] He is quite knowledgeable of the kinds of products the 
Venezuelan Market requires and the prices that Venezuelan Families can afford. 
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[The beneficiary] studied psychology and has become an expert in [child] education through 
his vast experience with small children. Our company deems him the right person to choose 
' the toys that can enhance [child] psychological development, avoiding the harmful toys of 
violence. 
[The beneficiary] is also a Marketing Specialist, as he studied in the marketing institute of 
Venezuela. Thus, the beneficiary [has] a comprehensive knowledge of our business field, he 
combines perfectly the psychologist expertise with marketing techniques, so he can select the 
most appealing products for children and [their] parents and the more healthy and beneficial 
products for children. For these reasons, our company has decided to appoint him as the 
Purchasing and Sales Manager of our U.S. subsidiary. 
The petitioner went on to list the reasons why the beneficiary is an employee with specialized knowledge. 
These reasons included:, 
He possesses knowledge that is valuable to the employer's competitiveness in the .Market , , 
place. He is the most knowledgeable about the specific toys which can be bought and then 
about the export process. 
[The beneficiary] is uniquely qualified to contribute to the US employer's knowledge of 
foreign operating conditions. Despite the fact he was born in Peru, he has lived many years in 
Venezuela, he has a Venezuelan son and is familiarized with the Venezuelan Market. Thus, 
he can contribute to our operating conditions because of his knowledge of the market. 
[The beneficiary] has been utilized as a key employee abroad and has been given significant 
assignment[sl which have enhanced our productivity, competitiveness, image, and financial 
position. As General Manager of our parent . . . company in Venezuela, he was able to help us 
grow to the point to the extend [sic] of reachring] an important participation in the Venezuelan 
Toy's Market. 
He possesses knowledge which can only be gained through extensive prior experience with 
us. [The beneficiary] has worked for the Venezuelan Company since 1998, [the] year in 
which it was incorporated. He knows about our processes and procedures. Moreover, [the 
beneficiary] has developed his professional skills along with the commercial success of our 
company. Neither psychologist[s] nor marketing professionals can have the great experience 
which [the beneficiary] possesses because of the foregoing reasons. 
Finally, the petitioner provided a breakdown of the beneficiary's proposed duties and the percentage of 
time he would devote to each of these duties. Specifically, the petitioner stated that the beneficiary 
would be: 
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Managing and directing the company purchasing, selling and exporting and formulating 
policies to be allowed (25%) 
Selecting and purchasing the right products for the Venezuelan children (25%) 
Get and provide quotations on products (5%) 
Supervising the job performance of staff, and attend employee meetings (10%) 
Perform negotiation with providers and customers, negotiate contract term[s], etc. (25%) 
Prepare reports to the parent company, prepare budget report in conjunction with accountant, 
develop company plans and strategies, prepare other reports as requested by parent company, 
forecast performance, etc. (10%) 
A request for additional evidence was issued on January 22, 2003. Specifically, the director requested the 
names and job titles of the other three employees of the U.S. entity. Additionally, the director requested 
evidence establishing that these employees were paid wages. 
The petitioner submitted a response dated February 24, 2005 which advised the director that this petition 
requests classification of the beneficiary as an L-1B nonimmigrant intracompany transferee with specialized 
knowledge, and not as an L-1A manager or executive. In response to the director's subsequent request for 
additional information, counsel for the petitioner submitted a detailed overview of the reasons for electing to 
classify the beneficiary as a specialized knowledge employee, along with a more detailed statement of the 
beneficiary's credentials on June 25,2003. As the response is part of the record, it will not be repeated in its 
entirety herein. Counsel for the petitioner explained that the beneficiary's special knowledge of the 
company's products, processes, and methods of child psychology, coupled with the claim that he is a 
marketing specialist, should satisfy the definition of specialized knowledge. The beneficiary's background, 
combined with his most recent experience as president and manager of the U.S. entity, was, according to the 
petitioner, sufficient proof that the beneficiary qualified as an employee who possessed specialized 
knowledge. 
4 
The director determined that the record did not establish that the beneficiary's knowledge was specialized or 
advanced. The director stated that while CIS "does not doubt the beneficiary has a certain amount of 
knowledge of the petitioner's internal functioning," the petitioner had failed to clarify the precise nature of the 
beneficiary's knowledge of the petitioner. Furthermore, the director advised that merely completing a course 
of study in marketing does not automatically bestow specialized knowledge upon the beneficiary. Finally, 
the director advised that the petitioner's request for de facto consideration of the beneficiary's eligibility for L- 
1A classification as a manager or executive in the event that he was not deemed to be qualified for L-1B 
classification was misplaced and would not be considered. The director consequently denied the petition. 
Counsel submits a lengthy brief on appeal in support of the petitioner's assertions that the beneficiary 
possesses specialized knowledge. Counsel restates the description of the beneficiary's duties, and the 
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subsequent knowledge he gained as a result of these duties, and argues that the director's failure to find that 
the beneficiary in fact possessed specialized knowledge was contrary to an INS policy memorandum dated 
October 271 1998. This memorandum, counsel alleges, "liberalized the previous restrictive [CIS] policy on 
specialized knowledge." Finally, counsel asserts that the director erred by equating "specialized" knowledge 
with "unique" knowledge, and claims that the director narrowly denied the petition based on a shallow review 
of the evidence submitted. 
When examining the specialized knowledge capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). As required in the regulations, the 
petitioner must submit a detailed description of the services to be performed sufficient to establish specialized 
knowledge. Id. 
In the present matter, the petitioner provided a thorough description of the beneficiary's intended employment 
with the U.S. entity, and of his responsibilities as president and as purchasing and sales manager. However, the 
petitioner has not sufficiently documented how the beneficiary's performance of the proposed job duties 
distinguishes his knowledge as specialized. The petitioner repeatedly states throughout the record that the 
beneficiary is a marketing specialist and is uniquely qualified for the position due to his familiarity with the 
Venezuelan culture. In addition, the petitioner alleges that the beneficiary's background in psychology dually 
qualifies him for the benefit sought, since this credential, accompanied with his marketing expertise and 
fami1i;lyity with the United States and foreign entities, allows for him to easily make marketing and purchasing 
decisions within the toy industry. The petitioner, however, offers no explanation as to the work qualifications 
necessary for a president or purchasing and sales manager, or the responsibilities of each position. Although 
the petitioner provided a breakdown of the percentage of time the beneficiary would devote to each of his 
stated duties, the record does not contain sufficient evidence that demonstrates that another employee of the 
company is incapable of performing the same or similar duties. Nor does the petitioner provide 
documentation that the beneficiary received training or work assignments focused specifically on the 
petitioner's processes or products. While the petitioner and counsel assert that the beneficiary is a marketing 
"expert" with specialized knowledge, the lack of specificity pertaining to the beneficiary's work experience and 
training, particularly in comparison to others employed by the petitioner and in this industry, fails to distinguish 
the beneficiary's knowledge as specialized. As noted by the director, there is nothing in the record to suggest that 
the beneficiary's knowledge is more specialized and unique than that of his fellow classmates at the Marketing 
Institute. Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
It is also appropriate for the AAO to look beyond the stated job duties and consider the importance of the 
beneficiary's knowledge of the business's product or service, management operations, or decision-making 
process. Matter of Colley, 18 I&N Dec. 117, 120 (Cornm. 1981) (citing Matter of Raulin, 13 I&N Dec. 618 
(R.C. 1970) and Matter of LeBlanc, 13 I&N Dec. 816 (R.C. 1971)).' As stated by the Commissioner in 
1 
Although the cited precedents predate the current statutory definition of "specialized knowledge," the AAO 
finds them instructive. Other than deleting the former requirement that specialized knowledge had to be 
"proprietary," the 1990 Act did not significantly alter the definition of "specialized knowledge" from the prior 
SRC 03 045 5 1579 
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Matter of Penner, 18 I&N Dec. 49, 52 (Comm. 1982), when considering whether the beneficiaries possessed 
specialized knowledge, "the LeBlanc and Raulin decisions did not find that the occupations inherently 
qualified the beneficiaries for the classifications sought," Rather, the beneficiaries were considered to have 
unusual duties, skills, or knowledge beyond that of a skilled worker. Id. The Commissioner also provided the 
following clarification: - 
A distinction can be made between a person whose skills and knowledge enable him or her to 
produce a product through physical or skilled labor and the person who is employed primarily 
for his ability to carry out a key process or function which is important or essential to the 
business' operation. 
Id. at 53. In the present matter, the evidence of record demonstrates that the beneficiary is more akin to an 
employee whose skills and experience enable him to produce or create a specialized product or service, rather 
than an employee who has unusual duties, skills, or knowledge beyond that of a skilled,worker. Specifically, 
the record indicates that the beneficiary possesses degrees or certificates in both marketing and psychology. 
Consequently, the petitioner alleges, this combination enables him to apply this experience in a practical 
manner when performing the marketing and purchasing functions of the petitioner. However, there is no 
indication that the beneficiary's background is specialized, in that it would enable him to perform a key 
process or function of the company. His background is psychology, for example, merely serves as an 
advantage to the petitioner in that he can logically assess the toy market in relation to the needs of children 
better than another person who lacks a similar degree. While this is certainly a benefit in dealing with the 
outside market, there is no evidence that the beneficiary possesses similar knowledge of the petitioner's inner 
processes or procedures. 
It should be noted that the statutory definition of specialized knowledge requires the AAO to make 
comparisons in order to determine what constitutes specialized knowledge. The tenn "specialized 
knowledge" is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney 
General, "[slimply put, specialized knowledge is a relative . . . idea which cannot have a plain meaning." 745 
F. Supp. 9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-1 category was intended 
for "key personnel." See generally, H.R. REP. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key 
personnel" denotes a position within the petitioning company that is "of crucial importance." Webster's II New 
College Dictionaly 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be 
considered "important" to a petitioner's enterprise. If an employee did not contribute to the overall economic 
success of an enterprise, there would be no rational economic reason to employ that person. An employee of 
INS interpretation of the term. The 1990 Committee Report does not reject, criticize, or even refer to any 
specific INS regulation or precedent decision interpreting the term. The Committee Report simply states that 
the Committee was recommending a statutory definition because of "[vlarying [i.e., not specifically incorrect] 
interpretations by INS," H.R. Rep. No. 101-723(I), at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the 
Committee Report simply restates the tautology that became section 214(c)(2)(B) of the Act. Id. The AAO 
concludes, therefore, the cited cases, as well as Matter of Penner, remain useful guidance concerning the 
intended scope of the "specialized knowledge" L-1B classification. 
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"crucial importancev or "key personnel" must rise above the level of the petitioner's average employee. 
Accordingly, based on the definition of "specialized knowledge" and the congressional record related to that 
term, the AAO must make comparisons not only between the claimed specialized knowledge employee and 
the general labor market, but also between that employee and the remainder of the petitioner's workforce. 
Here, the petitioner makes no claim that the beneficiary's knowledge is more advanced than other employees, 
,nor did the petitioner distinguish the beneficiary's knowledge, work experience, or training from the other 
employees. ,The lack of evidence in the record makes it impossible to classify the beneficiary's knowledge of 
the petitioner's products or procedures as advanced, and precludes a finding that the beneficiary's role is "of 
crucial importance" to the organization. Simply going on record without supporting documentary evidence is 
not sufficient for the purpose of meeting the burden of proof in these proceedings. Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972). While it may be correct to say that the beneficiary is a 
highly skilled and productive employee, this fact alone is not enough to bring the beneficiary to the level of 
"key personnel." 
Moreover, in Matter of Penner, the Commissioner discussed the legislative intent behind the creation of the 
specialized knowledge category. 18 I&N Dec. 49 (Cornrn. 1982). The decision noted that the 1970 House 
Report, H.R. No. 91-851, stated that the number of admissions under the L-1 classification "will not be large" 
and that "[tlhe class of persons eligible for such nonirnmigrant visas is narrowly drawn and will be carefully 
regulated by the Immigration and Naturalization Service." Id. at 5 1. The decision further noted that the House 
Report was silent on the Subject of specialized knowledge, but that during the course of the sub-committee 
hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessary to qualify 
under the proposed "L" category. In response to the Chairman's questions, various witnesses responded that 
they understood the legislation would allow "high-level people," "experts," individuals with "unique" skills, 
and that it would not include "lower categories" of workers or "skilled craft workers." Matter of Penner, id. at 
50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearings on H.R. 445, 91st 
Cong. 210,218,223,240,248 (November 12, 1969)). 
Reviewing the Congressional record, the Comrnissioner concluded in Matter of Penner that an expansive 
reading of the'specialized knowledge provision, such that it would include skilled workers and technicians, is 
not warranted. The Commissioner emphasized that that the specialized knowledge worker classification was 
not intended for "all employees with any level of specialized knowledge." Matter of Penner, 18 I&N Dec. at 
53. Or, as noted in Matter of Colley, "[mlost employees today are specialists and have been trained and given 
specialized knowledge. However, in view of the House Report, it can not be concluded that all employees 
with specialized knowledge or performing highly technical duties are eligible for classification as 
intracompany transferees." 18 I&N Dec. at 119. According to Matter of Penner, "[sluch a conclusion would 
permit extremely large numbers of persons to qualify for the 'L-1' visa" rather than the "key personnel" that 
Congress specifically intended. 18 I&N Dec. at 53; see also 1756, Inc., 745 F. Supp. at 15 (concluding that 
Congress did not intend for the specialized knowledge capacity to extend all employees with specialized 
knowledge, but rather to "key personnel" and "executives.") 
Counsel also alleges that CIS is not following its own policy guidelines as to the nature of specialized 
knowledge. Specifically, counsel asserts that the director erred in equating specialized knowledge with 
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"unique" knowledge of the company's products. In support of this assertion, counsel refers to three CIS 
policy memoranda, dated December 2002, October 1998, and March 1994, which reflect CIS'S current 
interpretation of specialized knowledge. Counsel is correct that "[tlhere is no requirement in current 
legislation that the alien's knowledge be unique, proprietary, or not commonly found in the United States 
labor market. See Memorandum of James A. Puelo, Acting Executive Associate Commissioner, Office of 
Operations, Internretation of Special Knowledge, CO 214L-P (March 9, 1994). However, since the petitioner 
specifically claimed that the beneficiary's knowledge "is unique in international markets," the director did not 
err in using the term, nor was this the director's only basis for denying the petition. In addition, while the 
petitioner need not establish that the beneficiary's knowledge is proprietary or unique, the knowledge must be 
different or uncommon. Id. As discussed above, the petitioner has not established that the beneficiary's 
knowledge meets this lesser, but still strict, standard. On appeal, counsel simply restates the previously 
submitted description of the beneficiary's duties and the knowledge they require, and asserts that the 
beneficiary has consequently satisfied the definition of specialized knowledge. Additionally, prior to 
adjudication and again on appeal, the petitioner alleges that the beneficiary's knowledge is valuable to the 
petitioner's productivity, competitiveness, and financial position, most especially because the beneficiary is a 
trusted individual. While the beneficiary's skills and knowledge may contribute to the success of the petitioning 
organization, this factor, by itself, does not constitute the possession of specialized knowledge. While the 
beneficiary's contribution to the economic success of the corporation may be considered, the regulations 
specifically require that the beneficiary possess an "advanced level of knowledge" of the organization's process 
and procedures, or a "special knowledge" of the petitioner's product, service, research, equipment, techniques, or 
management. 8 C.F.R. 5 214.2(1)(l)(ii)(D). As determined above, the beneficiary does not satisfy the 
requirements for possessing specialized knowledge. 
In the present matter, the petitioner has failed to demonstrate that the beneficiary's training, work experience, or 
knowledge of the company products and their application in international markets is more advanced than the 
knowledge possessed by others employed by the petitioner, or in the industry. It is clear that the petitioner 
considers the beneficiary to be an important employee of the organization. The AAO, likewise, does not dispute 
the fact that the beneficiary's knowledge has allowed him to competently perform his job for both the foreign 
entity and the U.S. petitioner. However, the successful completion of one's job duties does not distinguish the 
beneficiary as "key personnel," nor does it establish employment in a specialized knowledge capacity. 
The legislative history for the term "specialized knowledge" provides ample support for a restrictive 
interpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiary 
should be considered a member of the "narrowly drawn" class of individuals possessing specialized 
knowledge. See 1756, Inc., 745 F. Supp. at 16. Based on the evidence presented, it is concluded that the 
beneficiary does not possess specialized knowledge; nor would the beneficiary be employed in a capacity 
requiring specialized knowledge. For this reason, the appeal will be dismissed. 
Beyond the findings in the previous decision, the remaining issue in this proceeding is whether the petitioner 
has established that a qualifying relationship exists between the petitioning entity and the foreign entity 
pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). The petitioner has not demonstrated that a qualifying relationship 
still exists with the foreign entity. Although the petitioner c!aims that the U.S. entity is the subsidiary of the 
foreign entity, insufficient documentation evidencing the foreign entity's ownership interests has been 
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submitted to corroborate this claim. The record contains a copy of the U.S entity's Articles of Incorporation, 
dated July 11, 2000. The articles list the beneficiary and his wife as the two shareholders of the company, 
with each owning a 50% interest. A share certificate contained in the record, however, indicates that the 
foreign entity owns 1,000 shares in the U.S. entity. The evidence of record does not establish the ownership 
of the U.S. entity. 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). For this additional reason, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section'291 of thejAct, 8 U.S.C. 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.