dismissed L-1B Case: Software Development

PUBLIC COPY
identifyingdatadeletedto
preventclearlyunwarranted
inVasionof personalprivacy
u.s. Departmentof Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington; DC 20529
U.S. Citizenship
and Immigration
Services .
File: LIN 05 042 53297 Office: NEBRASKA SERVICE CENTER Date: ~IAY 17 :mOl
IN RE: Petitioner:
Beneficiary :
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C . § 1101(a)(l5)(L)
IN BEHALF 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.
~
Robert . iemann , Chief
Administrative Appeals Office
wWw.uscis.gov
LIN 05 042 53297
Page 2
DISCUSSION: The Director , Nebraska Service Center , denied 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 senior
programmer as an L-IB nonimmigrant intracompany transferee with specialized knowledge pursuant to
section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act) , 8 U.S.C. § 1101(a)(15)(L). The
petitioner is engaged in software development and claims a qualifying relationship as the parent of UAB
Blatijos Programine Iranga of Lithuania. The petitioner seeks to employ the beneficiary for a period of two
years.
The director denied the petition, concluding that the petitioner failed to establish that (1) the position offered
requires an employee with specialized knowledge or that the beneficiary has such knowledge; or (2) the
petitioner has a qualifying relationship with the foreign employer in Lithuania.
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 a proprietary software product , MagicDraw, including the program's technical features and
source code which permits its integration with other software applications. Counsel also asserts that .the
petitioner lias established that it has a qualifying relationship with the foreign employer and claims that its
failure to produce stock certificates evidencing ownership of the foreign entity is excusable because the
foreign entity, as a Lithuanian business entity, does not issue such certificates as permitted by local law and
the company's bylaws .
To establish eligibility for the L-l nonimmigrant visa ' classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) of the Act. Specifically , 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 within three years preceding the beneficiary's application for admission into the United .
States. 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 .~. § 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 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 organizat ion within the three year s preceding the filing of
the petition.
LIN 05 042 53297
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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 him/her 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 first issue in this matter is whether the petitioner has established that the position offered requires an . .
employee with specialized knowledge or that the beneficiary has such knowledge.
Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides:
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. § 214.2(1)(I)(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 statement attached to the initial petition, the petitioner described the beneficiary's job duties with the
foreign entity as follows:
[With the foreign entity], [the beneficiaryjis a "Senior Progra1111?er"on the
development team. [The beneficiary's] duties consist [of] implementing functionality in
_ and _ Teamwork server, unit testing, and bug fixing. [The
beneficiary] visits customer sites to gather requirements and to provide onsite technical
support to Magicfrraw customers . 1 .
In the same statement, the petitioner asserts that the beneficiary has specialized knowledge of its _ .
product and breaks this knowledge down into five types and situations in which specialized knowledge of the
product is necessary: (1) knowledge of (data definition language), which is
necessary to support the design of relationaldatabases usin (~) knowledge of requirements
modeling; (3) knowledge of_ application for business process modeling; (4) knowledge of the
performance tuning of Teamwork Server edition; . and (5) knowledge of how to break
_ down into modules or "shared packages" for customers. The petitioner specifically states that the
lin the statement attached to the initial petition, described as follows: I is a
Unified Modeling Language (UML) software design tool with forward and reverse engineering capabilities in
J as teamwork capabilities."
LIN 05 042 53297
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beneficiary has specialized knowledge of the fourth area, performance tuning of 111•••••1eamwork
Server edition. The petitioner also provides a breakdown of the beneficiary's job duties. As these duties
appear in the director's decision, they will not be repeated here.
On January 20, 2005, the director requested additional evidence establishing that the beneficiary's knowledge
is indeed specialized. Specifically, the director requested evidence demonstrating that the beneficiary's
knowledge is advanced, uncommon, noteworthy, or distinguished by some unusual quality that is not
generally known by practitioners in the beneficiary's field of endeavor. The director also instructed the
petitioner to provide evidence describing and distinguishing the beneficiary's knowledge from the elementary
or basic knowledge possessed by others who are similarly employed within the same occupation and who
regularly utilize similar systems, programs, products, processes, and/or procedures.
I
In response, the petitioner provided a letter dated April 13, 2005 providing more information regarding the
beneficiary's purported specialized knowledge. In the letter, the petitioner asserts that part of its business
includes the provision of _ to other software companies for integration into other applications.
Because these integrations will require the writing and developing of interfaces between two applications,
only an employee with intimate knowledge of the source code and technical features of can
perform these functions. The petitioner further asserts that this "specialized knowledge" can only be gained
from creating and writing the various editions of the program over the years, particularly because
the source code is a closely guarded, proprietary secret.
The petitioner also asserts in the April 13, 2005 letter that, because 3 has such a small market share
when compared with other unified modeling language product offerings, those employees with extensive
knowledge of the source code and technical features of MagicDraw possess "specialized knowledge." The
petitioner claims that such knowledge is therefore quite uncommon in the industry, and a typical systems
integration company cannot provide integration services for ~As explained by the petitioner, this
is primarily because the integration occurs before delivery to an end-user by creating a combined product, and
it contends that the beneficiary will be one of the employees using "specialized knowledge" of secret,
proprietary information to accomplish these integrations. The petitioner further explained the technical
features of , e.g., application program interface, proprietary file formats, templates, and diagrams,
and why knowledge of these features is allegedly essential to integrating _ with other applications
and providing the necessary support to end-users. According to the petitioner, if a software professional does­
not have knowledge of_ technical features and source code by accumulating years of experience
working with the various editions of the program, the software professional would not be able to perform
integrationsor work with end-uses of combined applications.
Finally, the petitioner provides in its letter dated April 13, 2005 a summary of the beneficiary's duties both in
the United States and abroad. The beneficiary's duties in Lithuania consist primarily of coding, debugging,
and working on changes and additions to _ while the beneficiary's proposed duties in the United
States will focus on product integration with the petitioner's customers.
On April 30, 2005, the director denied the petition concluding that the petitioner failed to establish that
beneficiary has been or would be employed in a specialized knowledge capacity.
LIN 05 042 53297
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On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing that
the beneficiary has specialized knowledge. Counsel asserts that the beneficiary has specialized knowledge of
the proprietary software product, muglSEiUk , including the program's technical features and source code ·
which permits its integration with other software applications.
Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary has been, or
will be, employed in a specialized knowledge capacity as defined at 8 C.F.R . § 214.2(1)(1)(ii)(D).
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 software professional, the petitioner fails
to establish that .these positions , both in the United States and abroad, require an employee with specialized
knowledge.
Although the petitioner repeatedly asserts that the beneficiary 's proposed position in the United States
requires "specialized knowledge," the petitioner has not adequately articulated any basis 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 experienced software professionals employed by the petitioner 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 of Soffici, 22 I&NDec . 158, 165 (Comm. 1998) (citing
Matter of Treasure 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 bea matter of reiterating the regulations. See Fedin Bros. Co., Ltd. v. Sava, 724, F.
Supp. 1103 (E.D.N.Y. 1989), aff'd, 905, F.2d 41 (2d. C ir. 1990).
The petitioner asserts that the beneficiary possesses . specialized knowledge of the petitioner's product,
service, research and techniques, as well as of the petitioner's processes and procedures, which are unique and
proprietary to the company. The petitioner also asserts that the beneficiary's knowledge is advanced ,
uncommon, noteworthy and d istinguished. In support of these arguments, the pet itioner relies heavily on its .
position that the beneficiary's knowledge of the source code and technical features of its MagicDraw software
is sufficiently specialized to support the L-lB classificat ion. The petitioner further asserts that the position in
the United States , which focuses on the integration of MagicDraw with other software for its customers ,
requires the beneficiary to possess this specialized knowledge of MagicDraw's technical features and source r
code.
However , despite these assertions, the record does not reveal the material difference between the technical
features and source code of the petitioner's Magicfrraw product, a unified modeling language (U¥L) product
offering , and the technical features and source codes of similar products on the market. While the petitioner
asserts repeatedly that the beneficiary gained hi s knowledge of MagicDraw's technical aspects from years of
working with and creating the product , the record does not establish that the beneficiary's kriowledge is
different from the knowledge of the technical features of UML software products possessed by software
professionals generally throughout the industry , in the petitioner's workforce, or in the foreign entity's
LIN 05 042 53297
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workforce.
While the petitioner argues that the secret,proprietary 'nature of the technical features renders it either
impractical or impossible for software integrations companies to integrate ] I g -, with other
applications, thereby making it specialized, this does not establish that the beneficiary's knowledge is
specialized for purposes of this visa classification. The petitioner cannot artificially manufacture specialized
knowledge by refusing to share information. Rather , the petitioner must establish that the beneficiary's
knowledge is specialized, because he gained the knowledge through extensive training or experience which
could not easily be transferred to another employee. In this matter, the petitioner has not proven that the
beneficiary's knowledge of the technical features and source code is materially different from that possessed
by similarly employed software professionals with experience integrating UML products. The fact that these
other software professionals may not have very specific, proprietary knowledge regarding ~hich
would hinder their integration of the product is not relevant to these proceedings if this knowledge gap could
be closed by the petitioner by simply revealing the information to newly hired professionals with UML
product integration experience.
Moreover, even assuming that the beneficiary's knowledge of the technical features and source code of
_ constitutes specialized knowledge, the petitioner has not proven that the beneficiary has been
employed ina specialized knowledge capacity in Lithuania. As explained in the record, the petitioner's
argument that the beneficiary's knowledge is specialized is based entirely on the beneficiary's proposed use of
this specialized knowledge to integrate rilE with other applications . However, as explained in the job
descriptions provided in the April 13,2005 letter, the beneficiary has not be working on product integration in
Lithuania. To the contrary, the beneficiary's ,duties are almost exclusively related to coding, debugging, and
working on changes and additions to MagicDraw. Since the record is devoid of any evidence that these duties
require specialized knowledge of MagicDraw's technical features or source code, 'the petitioner has not proven
that the beneficiary has been employed abroad in a specialized knowledge capacity.
The AAO does not dispute the likelihood that the beneficiary is a skilled and experienced software
professional who has been, and would 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 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 Matter of Penner, 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." 18 I&N Dec. 49, 52
(Comm, 1982). 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 p~ocess or function which is important or essential to the business
firm's operation.
\.
LIN 05 042 53297
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Id. at 53.
It should be noted that the statutory definition of specialized lrnowledge 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 General,
"[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 College
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 thedefinition of "specialized knowledge" and the congressional record related to that term , the AAO
must make comparisons not only between the claimed specialized lrnowledge employee and the general labor
market, but also betwe~n the employee and the remainder of the petit ioner'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 thebeneficiary to the level of "key personnel. " .
Moreover, in Matter ofPenner , the Comm issioner discussed the legislative intent behind the creation of the
specialized lrnowledge category . 18 I&N Dec. 49 (Comm . 1982). The decision noted that the _
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
ofP~nner, id. at 50 (citing H .R. Subcomm, No .1 of the Jud . Comm., Immigration Act of 1970: Hearings on
H.R. 445, 91
51
Congo210, 218, 223, 240, 248 (November 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 skilled workers and technic ians, 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 of Penner, "[s]uch a conclusion would
permit extremely large numbers of persons to qualify for the 'L-l ' visa" rather than the "key personnel " that
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
! ' LIN 05 042 53297
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with specialized knowledg e, but rather to "key personnel " and "executives. ")
A 1994 Immigration and Naturalization Service (now Citizenship and Immigration Services (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 Commi ssioner 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 ofthe 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 ." !d. 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'sjob 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 UML product
integration. As the petitioner has failed to document any materially unique qualities to the technical features
and source code of MagicDraw , the petitioner's claims are not persuasive in establish ing 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 software professional 'with UML product integration experience, or that he has
received special training in the company 's methodolog ies 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 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. v. Attorney General, supra at 16. Based on the evidence presented, it is concluded
that the beneficiary has not been employed abroad , and would not be employed in the United States, in a
capacity involving specialized knowledge. For this reason , the appeal will be dismiss ed. 2
The second issue in this matter is whether the pet itioner has established that it has a qualifying relationship
2Finally , counsel's reliance on the interpretation of "specialized knowledge" prov ided by the Department of
State's Visa Office (VO) is misplaced. First, there is no evidence provided by counsel that the interpretation
is still valid in view of recent amendments to the Foreign Affairs Manual (FAM). Second , even if such
evidence was provided , the FAM is not binding upon CIS. See Avena v . INS, 989 F .Supp . 1 (D.D.C. 1997);
Matter ofBosuego , 17 I&N 125 (BIA 1979). The FAM provides guidance to employees of the Department of .'
State in carrying out their official duties, such as the adjudication of visa applications abroad. The FAM is
not relevant to this proceeding.
LIN 05 042 53297 ·
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with the foreign employer, UAB Blatijos Programine Iranga of Lithuania .
The regulation at 8 C.F.R. § 214 .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 (l)(I)(ii)(G) of this
section.
8 C.F.R. § 214.2(i)(1 )(ii)(G) defines a "qualifying organization" as a firm, corporation , or other legal entity
which "meets exactly one of the qualifying relat ionships specified in the definitions of a parent, branch , affiliate
or subsidiary specified in paragraph (l)(l)(ii) ofthissection." A "subsidiary" is defmed, in part, as a legal entity,
. including a liniited liability company, which "a parent owns, directly or indirectly, more than half of the entity
and controls the entity."
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
of Church Scientology International, 19 I&N Dec. at 595.
In.the initial petition , the petitioner asserts that it is the 100% owner ofa Lithuanian subsidiary, UAB Blatijos
Programine Iranga. In support of this assertion, the petitioner provided a variety of corporate and
organizational documents including a translation of a document titled Incorporation Act of Joint Stock
Company "'No Magic' Pastatai." However, the petitioner did not provide a copy of any stock certificates or
other documents specifically evidencing the petitioner's ownership of a majority of the shares of the foreign
entity. .
On January 20 , 2005, the director requested additional evidence. The director specifically requested copies of
the foreign entity's stock certificates and stock ledger evidencing the petitioner's ownership interest.
In its April 13 ,2005 response letter, the petitioner alleges that its ownership interest in the Lithuanian entity is '
"uncertified" and that the subsidiary does not issue stock certificates. The petitioner explains that its
ownership interest is evidenced instead by its stock ledger and filings with the Lithuanian government. In
support of this assertion, the petitioner provided a letter from a Lithuanian lawyer indicating that the
. , subsidiary's bylaws compel, and Lithuania law permits, the issuance of immaterial or virtual shares. The .
petitioner , however, did not provide a copy of the subsidiary's bylaws allegedly restricting the subsidiary to
thy issuance of im~aterial or virtual shares or a translated copy of the cited Lithuanian law.
' . On April 30 , 2005, the director denied the petition concluding that the petitioner had not sufficiently
established the existence of the virtual or immaterial shares and had not properly explained incon sistencies in
\
LIN 05 042 53297
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the record.
On appeal, the petitioner again asserts that it has adequately established through the Lithuanian attorney's
letter, the stock ledger, and the government filing that the petitioner is the 100 % owner of the foreign entity .
The petitioner further argues that CIS should be estopped ·from questioning the petitioner's qualifying
relationship with the foreign entity because of its approval of prior petitions. .
Upon review , the petitioner's assertions are not persuasive .
The petitioner has not established 'that it has a ' qualifying relationship with the foreign entity. While the
petitioner has provided evidence that the Lithuanian subsidiary has not issued, may not issue, and .does not
need to issue stock certificates , there are fundamental evidentiary gaps and inconsistencies which undermine
the credibility of this evidence.
First, while a Lithuanian attorney has stated in a letter that the subsidiary's bylaws restrict it to issuing
immaterial or virtual shares , the petitioner did not provide a copy of the subsidiary's ' bylaws for review.
. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
. burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165 .
Second, while the Lithuanian lawyer indicated that Lithuanian law permits companies to issue immaterial or
virtual shares, the petitioner did not provide a translated copy of this law. In immigration proceedings , the
law of a foreign country is a question of fact which must be proven if the petitioner relies on it to establish
eligibility for an immigration benefit. Matter ofAnnang, 14 I&N Dec, 502 (BIA 1973). Since the petit ioner
did not sufficiently prove the state of Lithuanian law on this matter, the petitioner has failed to establish that
Lithuanian law supports the subsidiary's failure to issue stock certificates.
Third, the materials submitted by the petitioner are inconsistent with its assertion that the foreign entity is
restricted to issuing immaterial shares. According to section 6 of the translation of a document titled
Incorporation Act of ' (exhibit 13 attached to the initial petition),
the shares of the foreign subsidiary will be "material" equity shares . The petitioner makes no attempt to
explain this serious inconsistency . 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). Doubt cast on any aspect of the petitioner's proof may, of course, .
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa
petition. !d. at 591.
Accordingly, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity,
and the petition may not be approved for this reason."
. 3It must be noted that the petitioner's claim that CIS should be estopped from questioning the petitioner's
qualifying relationship with the foreign entity is without merit. First, prior petition approvals do not preclude
CIS from denying a petition based on a reassessment of the petitioner's qualifications. See Texas A&M Univ.
v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004). The AAO is not required to approve
LIN 05 042 53297
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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. Here , that burden has not been met. Accordingly, the
appeal will be dismissed.
ORDER: The appeal is dismissed.
applications or petitions where eligibility has not been demonstrated , merely because of prior approvals that
may have been erroneous, See, e.g. Matter of Church Scientology International , "19 I&N Dec. 593, 597
(Comm. 1988). It would be absurd to suggest that CIS or any agency must treat acknowledged errors as
binding precedent. Sussex Engr. Ltd. v. Montgomery , 825 F.2d 1084, 1090 (6th Cir. 1987) , cert. denied,485
U.S . 1008 (1988). Second, the AAO, like the Board ofImmigration Appeals, is without authority to apply the
doctrine of equitable estoppel so as to preclude a component part of CIS from undertaking a lawful course of
action that it is empowered to pursue by statute or regulation. See Matter ofHernandez-Puente, 20 I&N Dec.
335,338 (BIA 1991). Estoppel is an equitable form of relief that is "available only through the courts. The
jurisdiction of the AAO is limited to that authority specifically granted to it by the Secretary of the United
States Department of Homeland Security. See DHS Delegation Number 0150.1 (effect ive March 1 , 2003);
see also 8 C.F.R. § 2.1 (2004). The jurisdiction of the AAO is limited to those matters described at 8 C.F.R. §
103.1(f)(3)(E)(iii) (as in effect on February 28 , 2003). Accordingly, the AAO has no authority to.address the
petitioner's equitable estoppel claim.