dismissed L-1B Case: Information Technology Consulting

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Pu'BLICCOPY
RS. DepartmentofHomeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S. Citizenship
and Immigratlon
Services .
File: LIN 0523251450 Office: NEBRASKA SERVICE CENTER Date: MAR 0 ~ 2001
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, su.s.c. § 1101(a)(15)(L)
INBEHALF OF BENEFICIARY:
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 .
.~-e-_~
~.-.
Robert P. WIemann, Chief
Administrative Appeals Office
wWw.uscis~gov
LIN 05 232 51450
Page 2
DISCUSSION: The Director, Nebraska Service Center, den ied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of principal
consultant to be emplo yed at a new office in th e United States as an L-1B nonimmigrant intracompany
transferee with specialized knowledge pursuant to section 101(a)(15)(L) of the Immigration and Nationality
Act (the Act) , 8 U.S .c. § llOl(a)(l5 )(L). The petitioner is a Delaware corporation and is engaged in the
business of information technology consulting. The petitioner claims a qualifying relationship with the
foreign entity, Solidsoft , Ltd., of the United Kingdom , as a subsidiary.
The director denied the petition, concluding that the petitioner failed to establish that the position offered
requires an employee with specialized knowledge or that the beneficiary has such knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge . Specifically, counsel asserts that the beneficiary has specialized
knowledge of the petitioner's processes relating to Microsoft BizTalk and the petitioner's consulting
methodologies as these relate to developing and delivering integration solutions on the Microsoft platform. In
support of the appeal, counsel provided a brief and offered additional evidence .
To establish eligibility for the L-I nonimmigrant visa classification , the petitioner must meet the criteria
outlined in section 101(a )(15)(L) of the Act. Specifically , a qualifying organization mu st have emplo yed the
beneficiary in a qualifying managerial or executi ve capacity, or in a specialized knowledge capacity, for one
continuous year within three years preceding the beneficiary 's application for admission into the United
States. In addition, the benefic iary must seek to enter the United States tempor arily 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 at8 C.F.R. § 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 (1)(1)(ii)(G) of this section .
(ii) Evidence that the alien will be employ ed 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. '
s:
(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, tra ining, and emplo yment qualifies him/her to perform the intended
services in the United States; however, the work in the United States need not be the
LIN 0523251450
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same work which the alien performed abroad.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(vi) states that if the petition indicates that the beneficiary
is coming to the United States in a specialized knowledge capacity to open or to be employed in a new office,
the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The business entity in the United States is or will be a qualifying
organization as defined in paragraph (l)(l)(ii)(G) of this section; and
(C) The petitioner has the financial ability to remunerate the beneficiary
and to commence doing business in the United States.
At issue in this proceeding is whether the petitioner has established that the beneficiary will be employed in a
capacity which involves specialized knowledge or that he possesses specialized knowledge.
Section 2l4(c)(2)(B) of the Act, 8 U.S.C. § 11 84(c)(2)(B), provides:
For purposes of section 101 (a)(l5)(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 ofthe company .
. Furthermore, the regulation at 8 C.F.R. § 2l4.2(l)(l)(ii)(D) defines "specialized knowledge" as:
[S]pecial 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 a letter dated July 28, 2005 attached to the initial petition, the petitioner describes its proposed business
operation in the United States as follows:
[The petitioner] will offer the U.S. marketplace the same Information Technology consulting
services that it currently offers clients throughout Europe, i.e., assisting customers in creating
business processes and integration solutions based upon the Microsoft technology platform.
The brand equity of [the foreign entity] will be leveraged to maximum effort in order to build
upon [the foreign entity's] worldwide reputation.
As the Company already has seen in Europe, there are no other companies currently operating'
in the Mid-West that has the same focus on Microsoft BizTalk as [the petitioner).
Discussions with senior Microsoft personnel in the region confirm that while Microsoft has
partners that can do c, they have no "go to" partners that have the in-depth knowledge
LIN 05 232 51450
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and experience possessed by [the petitioner] and our team of highly skilled Consultants.
The petitioner also provided job descriptions for the beneficiary for both the position abroad and for the
proffered position in the United States. As these descriptions are clearly delineated in the petitioner's letter
dated July 28 , 2005, they will not be repeated here.
On August 4 , 2005, the director requested addit ional evidence establishing that the beneficiary's knowledge is
indeed specialized. The director requested , inter alia, a description and evidence distinguishing the
beneficiary's knowledge from the knowledge possessed by other similarly employed persons and evidence
regarding any training provided to the beneficiary through which he acquired the purported specialized
knowledge.
In response, counsel to the petitioner provided a letter dated September 9 , 2005 in which the beneficiary's
specialized knowledge was described as follows:
The Company chose [the beneficiary] for temporary transfer to the United States to as sist
with the development of the new office as a direct result of his employment with the sending
entity since April 2004 , during which time he has developed uncommon knowledge of
BizTalk, specifically BPI, BPM and workflow training that is not otherwise available in the
general labor market nor within the remainder of the Petitioner's own workforce.
Counsel further described the beneficiary as the foreign entity's only "subject-matter expert charged with
architecting, designing and delivering BPM , BPI and workflow solutions" and explained that the beneficiary
"received extensive training and education with respect to B izTalk." Counsel, however, failed to provide any
details regard ing this purported training or to explain how the beneficiary could have been employed in a
specialized knowledge capacity for more than one year when at least a portion of the approximately 16
months separating the commencement of his employment and the filing of the instant petition was spent
.receiving this "extensive training and education ." Counsel also admitted that an "individual can obtain
BizTalk certification outside of employment with [the foreign entity]," but that the foreign entity's application
of this training in deploying BizTalk is "unique."
Finally, counsel provided a combined job description for the beneficiary's pos ition abroad as well as for the
proffered United States position . This description , which is part of the record and which will not be repeated
here, prominently includes the application of the ben eficiary's purported specialized knowledge , · I.e.,
providing con sulting services around BizTalk and its uses covering BPI, BPM, and workflow.
On September 19 , 2005, the director denied the petition concluding that the petitioner failed to establish that
the position offered requires an employee with specialized knowledge or that the beneficiary has such
knowledge.
On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge. Specifically, counsel asserts that the beneficiary has specialized
knowledge of the petitioner's processes relating to Microsoft BizTalk and the petitioner's consulting
methodologies as these relate to developing and delivering integration solutions on the Microsoft platform. In
LIN 05 23251450
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support of the appeal , counsel provided a brief and offered additional evidence regarding the beneficiary's
training and his purported specialized knowledge .
Upon review , the petitioner's assertions are not persuasi ve in demonstrating that the beneficiary will be
employed in a specialized knowledge capacity as defined at 8 C .F.R. ·§ 214.2(l)(1)(ii)(D) or that he has
specialized knowledge .
In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner 's
description of the job duties. See 8.C.F.R. § 2l4.2(1)(3)(ii). The petitioner must submit a detailed job
description of the services to be performed sufficient to establish specialized knowledge. In this case, while
the beneficiary's job description adequately describes his duties as a principal consultant, the petitioner fails to
establish that the position in the United States requires an employee with specialized knowledge or that he has
specialized knowledge .
Although the petitioner repeatedly asserts that th e beneficiary 's proposed positron in the United States
requires "specialized knowledge" and that the beneficiary possesses such "specialized knowledge ," the
petitioner has not adequately articulated any ba~is to support this claim. The petitioner has failed to identify
any specialized or advanced body of knowledge which would distinguish the beneficiary 's role from that of
other BizTalk proficient professionals employed by the petitioner, the for eign entity , or in the industry at
large. Going on record without documentary evidence is not sufficient for purposes of meeting the burden of
proof in these proceedings. Matter ofSojJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter ofTreasure
.Craft of California, 14 I&N Dec. 190 (Reg. Comm . 1972». Specifics are clearly an important indication of
whether a beneficiary 's duties involve specialized knowledge ; otherwise meeting the definitions would
simply be a matter of reiterating the regulation s. See Fedin Bros . Co., Ltd. v.Sava , 724, F . Supp . 1103
(E.D.N.Y. 1989), aff'd, 905, F.2d 41 (2d. Cir. 1990) .
The petitioner asserts that the beneficiary possesses uncommon and unique specialized knowledge of
architecting, designing and delivering BPM, BPI and workflow solutions as these relate to BizTalk. In
support of this assertion , the petitioner relies heavily on the uniqueness of the petitioner's service to its
customers and the benefic iary's extensive training and experience. The petit ioner also alleges that the
beneficiary is the only person employed by the foreign entity in possession of such substantial experience in
architect ing, designing and delivering BPM , BPI and workflow solutions as these relate to BizTalk.
. However , despite these assertions , the record does not re veal the material differenc e between the beneficiary's
knowledge and the knowledge possessed by other experienced and/or certifi ed software employees profici ent
in BizTalk solutions employed by the foreign entity , the petitioner, or in the industry at large. As admitted by
counsel, BizTalk certification and experience is available to, and possessed by, people who are not employed
by the foreign entity. The petitioner also admits that Microsoft works with other partners in the United States
"that can do BizTalk." while the petitioner purports that its employees , and the beneficiary , are more highl y
skilled than these other providers, the petitioner never distinguishes the beneficiary's knowledge from that
possessed by the foreign entity's other emplo yees or in the industry at large. Absent evidence to the contrary ,
the beneficiary's knowledge does not appear to be advanced , noteworthy , or uncommon.
Also, while the p etitioner repeatedly points to the beneficiary's "extensive training and education with respect
to BizTalk" in assert ing that his knowledge is specialized, the petitioner provided virtually no information
LIN 0523251450
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regarding this purported training. Moreover , since the beneficiary had only been employed by the foreign
entity for 16 months prior to the filing of the instant petition , it is unclear how the beneficiary could have
undergone an "extensi ve" training program imparting specialized lrnowledge in time for him to have been
employed in a specialized lrnowledge capacity for a twel ve-month period prior to the filing of the instant
petition. Again, going on record without documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter ofSoffi ci, 22 I&N Dec. at 165. .
If, in fact, the training program were an introductory sess ion of four months or less, this would be insufficient
to establish that the beneficiary possesses specialized lrnowledge. .The petitioner must establish that the
beneficiary's lrnowledge is specialized because he gained the knowledge through extensive training or
experience which could not easily be transferred to another employee . If ·the petitioner is capable of
transferring this knowledge to similarly experienced software professionals in four months or less , the
lrnowledge is not specialized. However, if the training program was more than four months in length, then
the beneficiary would.not have been employed in a specialized lrnowledge capacity for the requisite one-year
period before the filing of the instant petition and would likewise riot be elig ible for the L-IB classification.
Either way, the petitioner has not established that the beneficiary is eligible for the classification sought.'
The AAO does not dispute the likelihood that the beneficiary is a skilled and experienced software
professional who has been , and would likely be, a valuable asset to the petitioner . However, it is 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 (Comm . 1981)(citing Matt er 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 Matter of Penner, when
considering whether the beneficiaries possessed spe cialized knowledge , " the LeBlanc and Raulin decisions
did not find that the occupations inherently qualified the beneficiaries for the classifications sought." 18 I&N
Dec. 49, 52 (Comm. 1982). Rather, the beneficiaries were considered to have unusual duties, skills , or
lrnowledge beyond that of a skilled worker. Id. The Commissioner also provided the following clarificat ion:
A distinction can be made between a person whose skills and lrnowledge enable him or her to
produce a product through physical or skilled labor and the person who is employed primarily
lit is noted that , on appeal , counsel to the pet itioner offered an affidavit prov iding further information
regarding the benefic iary's purported specialized lrnowledge and materials describing his tra ining and
experience. However , the petitioner was put on notice of required evidence and given a reasonable
opportunity to provide it for the record before the visa petition was adjudicated . The director specifically
requested information de scribing and distinguishing the beneficiary's specialized lrnowledge and evidence
concemingthe beneficiary's training and experience. The petitioner failed to submit the requested evidence
and now submits it on appeal. The AAO will not consider this evidence for any purpose. See Matt er of
Soriano , 19 I&N Dec . 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec . 533 (BIA 1988). Moreo ver, a
petitioner may not make material changes to a petition , or the beneficiary's job description , in an effort to
make a deficient pet ition conform to Citizenship and Immigration Services (CIS) requirements. See Matter of
Izummi, 22 I&N Dec . 169, 176 (Assoc. Comm. 1998) . Therefore, the appeal will be adjudicated based on the
record of proceeding before the director.
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for his ability to carry out a key process or function which is important or essential to the
business firm's operation .
Id. at 53.
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 term "specialized knowledge "
is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney Gen eral,
"[s]imply 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-l 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 Colleg e
. Dictionary 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 "crucial
importance" 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 the employee and the remainder of the petitioner 's workforce. While it may be
correct to say that the beneficiary in the instant case 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 legislati ve intent behind the creation of the
specialized knowledge category. 18 I&N Dec . 49 (Comm . 1982). The decision noted that the 1970 House
Report, H.R. REp. No. 91-851, stated that the number of admissions under the L-l classification "will not be
large" and that "[t]he class of persons eligible for such nonimmigrant visas is narrowly drawn and will be
carefully regulated by the Immigration and Naturalization Service." Id. at 51. 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
ofPenner, id. at 50 (citing H .R. Subcomm. No. 1 ofthe Jud . Comm., Immigration Act of 1970: Hearings on
H.R. 445, 91
51
Congo 210, 218, 223, 240, 248 (No vember 12, 1969)).
Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansive
reading of the specialized knowledge provision, such that it would include sk illed workers and technicians , is
not warranted. The Commissioner emphasized that the ' specialized knowledge worker classification was not
intended for "all employees with any level of specialized knowledge. " Matter ofPenner, 18 I&N Dec. at 53 .
Or, as noted in Matter of Colley, "[m]ost 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 ofPenner, "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the 'L-l' visa" rather than the "key personnel " that
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Congress specifically intended. 18 I&N Dec. at 53 ; see also, 1756, Inc. v. Attorney General, 745 F. Supp . at
15 (concluding that Congress did not intend for the specialized knowledge capacity to extend to all employees
with specialized knowledge, but rather to "key personnel " and "executives.")
. A 1994 Immigration and Naturalization Service (now CIS) memorandum written by the then Acting
Associate Commissioner also directs CIS to compare the beneficiary 's knowledge to the general United States
labor market and the petitioner's workforce in order to distinguish between specialized and general
knowledge. The Associate Commissioner notes in the memorandum that "officers adjudicating petitions
involving specialized knowledge must ensure that the knowledge possessed by the beneficiary is not general
knowledge held commonly throughout the industry but that it is truly specialized." Memorandum from James
A. Puleo, Acting Associate Commissioner, Immigration and Naturalization Service, Interpretation of
Specialized Knowledge , CO 214L-P (March 9, 1994). A comparison of the beneficiary's knowledge to the
knowledge possessed by others in the field is therefore necessary in order to determine the level of the
.beneficiary's skills and knowledge and to ascertain whether the beneficiary's knowledge is advanced. In other .
words , absent an outside group to which to compare the beneficiary's knowledge , CIS would not be able to
"ensure that the knowledge possessed by the beneficiary is truly specialized." Id. The analysis for specialized
knowledge therefore requires a test of the knowledge possessed by the United States labor market, but does
not consider whether workers are available in the United States to perform the beneficiary's job duties.
As explained above , the record does not distinguish the beneficiary 's knowledge as more advanced than the
knowledge possessed by other experienced software professionals with a background in BizTalk solutions .
As the petitioner has failed to document any advanced or uncommon qualities to the beneficiary's knowledge
of BizTalk or the processes surrounding its application , the petitioner's claims are not persuasi ve in
establishing that the beneficiary, while highly skilled, would be a "key" employee . There is no indication that
the beneficiary has knowledge that exceeds that of any experienced and/or certified BizTalk proficient
professional, or that he has received special training in the company's methodologies or processes which
would separate him from any other software professional employed with the petitioner or with the foreign
entity .
.The legislative history of the term "specialized knowledge" provides ample support for a restnctive
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. v. Attorney General, supra at 16 .
Accord ingly, it is concluded that the beneficiary would not be employed in the United States in a capacity
involving specialized knowledge and that he does not possess specialized knowledge. For this reason , the
appeal will be dismissed .
Beyond the decision of the director , a related matter is whether the petitioner has established that the
beneficiary's prior .year of employment abroad involved specialized knowledge as required by 8 C .F.R. §
214.2(l)(3)(iv) .
As explained above , the petitioner has failed to establ ish that the beneficiary's knowledge is specialized as
defined by the statute and regulations or that the beneficiary will be employed in the United States in a
LIN 0523251450
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specialized knowledge capacity. Likewise, the petitioner has failed to establish that the beneficiary has been
employed abroad in a specialized knowledge capacity. The petitioner has failed to identify any specialized or
advanced body of knowledge which would distinguish the beneficiary 's role from that of other BizTalk
proficient professionals employed by the foreign entity or in the industry at large. Going on record without
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. at 165 (Cornm. 1998) . The petitioner has not established that the beneficiary's
knowledge as applied abroad was noteworthy , uncommon, or advanced.
Moreover, as explained above, the record indicates that the beneficiary had only been employed by the
foreign entity for approximately 16 months prior to the filing of the instant petition. The petitioner alleges
both that the beneficiary has undergone "extensive" training and that he has been employed in a specialized
knowledge capacity for at least one year in the United Kingdom. However, it is unclear how the beneficiary
could have undergone an "extensive" training program imparting specialized knowledge in time for him to
have been employed in aspecialized knowledge 'capacity for a twelve-month period prior to the filing of the
instant petition . Given that the petitioner has failed to explain the length of this training program or to aver
exactly when, in view of this training and his relatively short period of employment abroad , the beneficiary
acquired the "specialized knowledge ," the petitioner has failed to establish that the beneficiary had been
employed abroad in a position involving specialized knowledge for at least one year prior to the filing of the
instant petition . Going on record without documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Id. For this additional reason, the petition ma~ not be approved.
Beyond the decision of the director, the petitioner did not establish that sufficient physical premises to house
the new office have been secured as required by 8 C .F.R. § 214.2(l)(3)(vi)(A). ·
Along with the initial petition , the petitioner attached a copy of a "REGUS Business Centre Service
Agreement" as evidence that .it has secured sufficient physical premises to house the new office . This
Agreement appears to give the petitioner the use of one "workstation" in the business center. This Agreement
does not appear to be a lease for physical premises , does not include a description of the "workstation," does
not reveal its duration, and omits most of the attached Terms of Business which have been incorporated into
the Agreement. Importantly , Term #18 does appear at the bottom of the Agreement in very fine print and
. states in pertinent part the following:
Your Agreement is the commercial equivalent of an Agreement for accommodat ion in a
hotel. Th e whole o f the business center rema ins our property and in our possession and
control. You acknowledge that your Agreement creates no tenancy interest , leasehold estate
or other real property intere st in your favor with respect to the accommodation. We are
giving you just the right to sharewith us the use of the business center so that we can provide
the services to you .
.In view of the above, the record establishes that the pet itioner has not secured sufficient physical premises to
house the new office. First, the ·petitioner has not secured "physical" premises. Although the record
establishes that the petitioner has acquired some right to use a workstation in a business center, it is clear that
this right does not include the right to possession of any physical space. Therefore, the petitioner is ineligible
for the benefit sought for this reason.
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Second, even assuming that the petitioner has acquired physical premises , the record establishes .that these
prem ises will not be sufficient for the new office. As explained in the letter dated October 20, 2005 , the
petitioner intends to staff its "Chicago office" with six ind ividuals . However , as the Agreement only covers
one "workstation ," it is unclear how this single workstation could serve six software professionals. Therefore ,
the petitioner is also ineligible for the benefit sought for this reason.
Accordingly, the petitioner has not established that it has secured sufficient physical premises to house the
new office, and the petition may not be approved for this add itional reason.
Beyond the decision of the director, the petitioner did not establish that it has a qualifying relationship with
the foreign entity , Solidsoft, Ltd.
The regulation at8 C.F.R. § 2l4.2(1)(3)(i) states that a 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 (1)(1)(ii)(G) of this
section.
8 C.F.R . § 214.2(i)(J)(ii)(G) defines a "qualifying organization" as a firm , corporation , or other legal entity
which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate
or subs idiary specified in paragraph (1)(1)(ii) of this section ." A"subsidiary" is defined , in part , as a legal entity
which "a parent owns, directly or indirectly, more than half ofthe entity and controls the entity."
The regulation and case law confirm that ownership and control are the factors that must be exam ined in
determining whether a qualify ing 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 of Siemens 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 im entity with full power and authority to control ; control means the d irect or
indirect legal r ight and authority to direct the establishment , management , and operat ions of an entity . Matter
ofChurch Scientology International , 19 I&N Dec. at 595 .
In the initial petition, the petitioner asserts that it is 100 % owned by the foreign entity . In support of this
assertion, the petitioner provides a copy of its articles of incorporation and registration to do business in
Illinois . However, the petitioner provided no evidence of ownership or control ofthe United States operation.
The petitioner did not provide copies of stock certificates, stock ledgers , shareholder agreements, or any other
evidence of the ownership or control of the petitioner. Therefore, as the petitioner has not prov ided any
evidence of its ownership and control , the petitioner has not established that it has a qualifying relationship
with the foreign entity , and the petition may not be approved for this additional reason.
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 Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, '1043 (E.D. Cal. 2001),affd, 345 F .3d 683
LIN 05 232 51450
Page 11
(9th Cir. 2003) ; see also Dor v. INS, 891 F.2d 997 , 1002 n. 9 (2d Cir. 19 89) (noting that the AAO re views
appeals on a de novo'basis).
The petition will be d enied for th e above s tated rea sons, with each con sidered as an independent and
alternative basis for den ial. When theAAO denies a petition on multiple alternat ive grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp . 2d at 1043.
In visa petition proceedings , the burden of proving elig ibility for the benefit sought remains entirely with th e,
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden ha s not been met. Accordingly , the
appeal will be dismissed .
ORDER: The appeal is dismissed.