dismissed L-1B Case: Software Development

-tiMngdata deleted to 
)ma ckarly unwarranted 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
File: WAC 02 262 52969 Office: CALIFORNIA SERVICE CENTER Date: JUL 0 7 2006 
IN RE: 
Petition: 
 Petition for a Nonimrnigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. $ 110 l(a)(15)(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. 
bert P. Wiemann, Chief 
dministrative Appeals Office 
WAC 02 262 52969 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonirnrnigrant visa. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner is described as a software developer for electronic business solutions. 
 It seeks 
authorization to employ the beneficiary temporarily in the United States as a software engineer- 
application integration. The director determined that the petitioner had not established that a qualifying 
relationship exists between the U.S. company and the foreign company because the petitioner did not 
submit evidence that established the petitioner is the affiliate of the foreign company. 
On appeal, counsel states that the petitioner is the affiliate of the foreign company and they have a 
qualifying relationship because the parent company, located in the U.K., wholly owns the Indian affiliate 
and is the majority owner of the petitioner. 
To establish L-1 eligibility under section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. $ 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years 
preceding the beneficiary's application for admission into the United States, has been employed abroad in 
a qualifying managerial or executive capacity, or in a capacity involving specialized knowledge, for one 
continuous year by a qualifying organization and seeks to enter the United States temporarily in order to 
continue to render his or her services to the same employer or a subsidiary or affiliate thereof in a 
capacity that is managerial, executive, or involves specialized knowledge. 
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 (I)(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. 
(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 himher 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. 
At issue in this proceeding is whether a qualifying relationship exists between the petitioning company 
and the claimed affiliate company. 
. WAC 02 262 52969 
Page 3 
The regulations at 8 C.F.R. 5 214.2(l)(ii)(G) define the term "qualifying organization" as follows: 
Qualifying organization means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (l)(l)(ii) of this 
section; 
(2) 
 Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through 
a parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the 
United States as an intracompany transferee; and 
(3) 
 Otherwise meets the requirements of section 10 l(a)(15)(L) of the Act. 
8 C.F.R. fj 214.2(l)(ii)(I) states: 
Parent means a firm, corporation, or other legal entity which has subsidiaries. 
8 C.F.R. 5 214.2(l)(ii)(J) states: 
Branch means an operating division or office of the same organization housed in a 
different location. 
8 C.F.R. 214.2(l)(ii)(K) states: 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50 50 joint venture and has equal control and veto power over 
the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls 
the entity. 
8 C.F.R. $214.2(l)(ii)(L) states, in pertinent part: 
AfJiliate means (1) One of two subsidiaries both of which are owned and controlled by 
the same parent or individual, or 
(2) One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity. 
. WAC 02 262 52969 
Page 4 
claims the parent company is, located in the United 
Kingdom. In support of these claims, the petitioner submitted the following: a copy of the Limited 
Liability Company Operating Agreement; Minutes of a Meeting of Directors of yffshore 
Services Limited dated January 8, 2002; and a Certificate of Incorporation and Memorandum of 
Association for India. Additional1 , the etitioner submitted a 
auditing and accounting firm which states that YIndia is wholly-owned b 
On September 14,2002, the director issued a notice of intent to deny. In this notice, the director stated: 
the evidence of record contains an operating agreemp w-k 
ntity) is owned byl 
. (40%); on the other hand it md on the 
On September 16,2002, the petitioner responded to the U.S. Citizenship and Immigration Services' (CIS) 
notice of intent to deny. The petitioner stated "[tlhe Notice incorrectly states that [the petitioner] is 
owned 60% by and 40% by [the U.K. entity]. In fact, [the petitioner] is owned 55% by the 
[U.K. entity] and 45% by The petitioner attached selected pages of the petitioner's operating 
agreement. The operating agreement was submitted in its entirety with the initial petition. Counsel 
asserted thatms the majority owner of the petitioner. Counsel also stated "[the petitioner] 
and the [Indian entity] are affiliates since they are owned and controlled by the same parent . . . ." 
On September 19, 2002, the director issued his decision denying the petition. The director summed up 
the petitioner's argument which is based on Article 2, Section 2.5 of the Operating Agreement which 
states as follows: 
(b) 
 The total number of Membership Units that the company shall have the authority 
to issue is One Hundred Thousand (100,000). On the date of this A, Fifty Five Thousand 
(55,000) Membership Units are issued and outstanding and held of record by 
and Forty Five Thousand (45,000) Membership Units are issued and 
outstanding and held of record b- 
The director notes additionally that the Operating Agreement at Article 3, Section 3.1. Initial Capital 
Contribution, states as follows: 
Contribution in the amount of Forty Thousand US Dollars ($40,000). 
(b) 
 On the date hereohas made an initial cash Capital Contribution in the 
amount of One Hundred Thousand U.S. Dollars ($100,000). 
The director notes that Section 3.2 of the Operating Agreement states in part: 
(a) 
 Each Member shall contribute to the Company . . . based on its Percentage 
Interest. 
WAC 02 262 52969 
Paae 5 
- 
The director stated "it's not clear wh and 
 did not make cash contributions 
proportionate to their interest." In conclusion, the director determined there was insufficient evidence to 
demonstrate that the U.S. entity and yldla are affiliates pursuant to 8 C.F.R. 214.2(1)(l)(ii)(L). 
On appeal, counsel for the petitioner asserts that the director simply misread the Operating Agreement. 
Counsel for the petitioner restat5 
counsel resubmits a letter fror 
wholly-owned subsidiary o 
took Section 3.2 (Additional Capital Contributions) out of context as referring to initial 
capital contributions where there was indeed a 60140 investment. In fact, this out of 
context interpretation is evident fi-om [the director's] selective reference of the text of this 
section without applying the words of the paragraph of this section in their entirety. The 
dollar investment for initial capital contributions has nothing to do with ownership. 
Upon review of the record, the MO is in agreement with the petitioner that the director misread the 
Operating Agreement of the petitioner. Based on the evidence provided, the U.K. company owns 55 
percent of the petitioner, the United States entity. 
However. won review of all of the documents ~rovided. the MO finds that there is insufficient evidence 
*. 
to demonstrate tha . wholly owns the claimed Indian affiliate as stated by the petitioner. 
The petitioner provided the Memorandum of Association for the Indian entity, India. The 
claimed parent company, , is not named as an owner in this document. Instead, this 
Memorandum of Association lists two equity shareholders. The first equity share holder is = 
to one equity share. The name of the second equity shareholder is 
to one equity share. The petitioner did submit a letter from 
Auditors that states that the Indian entity is a wholly-owned 
. However, the petitioner has not explained the discrepancy in ownership 
betweenIndia's Memorandum of Agreement and the assertion by the accountants. 
 It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence 
pointing to where the truth, in fact, lies, will not suffice. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). 
Based on the record of proceeding there is insufficient evidence to determine that there is a qualifying 
affiliate relationship between the U.S. entity and the Indian entity. The documents provided do not 
Beyond the decision of the director, it is noted that the petitioner is requesting an L-1B specialized 
knowledge classification for a Software Engineer - Application Integration in order to open a new office. 
The regulations state in pertinent part: 
WAC 02 262 52969 
Page 6 
8 C.F.R. 9 214.2(1)(3)(ii) states that an individual petition filed on Form 1-129 shall be accompanied by: 
(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. 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 9 1184(c)(2)(B), provides: 
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. 
The regulation at 8 C.F.R. fj 214.2(1)(l)(ii)(D) states: 
Specialized Knowledge means special 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. 
The petitioner has not furnished evidence sufficient to demonstrate that the beneficiary's duties involve 
knowledge or expertise beyond what is commonly held in his field or by other software engineers in the 
Indian entity. Contrary to counsel's argument, mere familiarity with an organization's product or service, 
such as knowledge of its process connectors and the SeeBeyond integration software platform, does not 
constitute specialized knowledge under section 2 14(c)(2)(B) of the Act. For this additional reason, this 
petition may not be approved. 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has 
been employed in a specialized knowledge position or that the beneficiary is to perform a job requiring 
specialized knowledge in the proffered position. Although the petitioner asserts that the beneficiary's 
position requires specialized knowledge, the petitioner has not articulated any basis to the claim that the 
beneficiary is employed in a capacity requiring specialized knowledge. Other than submitting a general 
description of the beneficiary's job duties, the beneficiary has not identified any aspect of the beneficiary's 
position which involves special knowledge of the petitioning organization's product, service, research, 
equipment, techniques, management, or other interests. The petitioner has not submitted sufficient 
evidence of the knowledge and expertise required for the beneficiary's position that would differentiate 
that employment from the position of "software engineer - application integration" at other employers 
within the industry. 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 Sofici, 22 I&N Dec. 158, 
165 (Comm. 1998). 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 
regulations. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), agd, 905 F.2d 41 
(2d. Cir. 1990). 
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 
WAC 02 262 52969 
Page 7 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
afd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. liVS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting 
that the AAO reviews appeals on a de novo basis). 
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. 3 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.