dismissed L-1B Case: Software Solutions

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PUBLJC ·~OPt
U.S. Department of Homeland Security
20 Massachus etts Ave., N.W., Rm. 3000
. Washington ; DC 2 0529
u.s.Citizenship
and Immigration
Services .
FILE: EAC 07 10852640 Office: VERMONT SERVICE CENTER Date: . DEC () 4 2001
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuantto Section roi(a)(l 5)(L) of the Immigration
and Nationality Act; 8 U.S.c. § 1101(a)(l5) (L}
FOREIGN ATTORNEY ON 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.
~~~~
Administrative Appeals Office
•www.uscis.gov
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EAC 07 10852640
Page 2
DISCUSS~ON: The Director , Vermont Service Center, denied the petition for a'nonimmigrant visa, The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be rejected as
. .. . .
improperly filed,
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as ari L-lB nonimmigrant
intracompany transferee with specialized knowledge pursuant to section lOl(a)(15)(L) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § llO'1(a)(l5)(L). The petitioner claims that it is the parent company of
the beneficiary's foreign employer, Corsidian Caribbean Dominicana, located in the Dominican Republic.
The petitioner, a Puerto Rico corporation, is.a software solutions provider. The petitioner seeks to employ the
beneficiary as a telecommunication specialist for athree-year period.
, ,
The director denied',the petition concluding that the petitioner failed to establish that the United States and
foreign entities have a qualifying relationship.
On appeal, counsel for the petitioner asserts that the beneficiary's foreign employer is a subsidiary of the O.S .
entity, and explains ' that certain "necessary changes in stock ownership" in the foreign entity "were not
processed on time to comply with the petition." Counsel submits a brief lind additional evidence in support
of the appeal. ' '
U.S. Citizenship and Immigration 'Services (USCIS) regulations specifically limit the filing of ali appeal to an
'a ffected party (the person 'or entity with legal standing) and/or to the party 's attorney or representative
authorized pursuant to 8'C.F.R: § 292. See 8 C.F.R. § 1033(a)(I)(iii)(B). In this matter. ralthoughthe petition
is ac~ompanied by a Form G-28, Notice of Entry of Appearance by an Attorney or Representative, the
claimed attorney/representative has not established that he or she is a licensed attorney or an 'accredited
representative authorized to undertake representations on the petitioner's behalf. See 8 C.F.R. § 292.1. 1
Accordingly, the foreign attorney's appearance , will not be recognized, and the appeal filed by the
unauthorized counsel, in this matter ,must ,be considered as improperly filed. 8 C.F.R. §
103.3(a)(2)(v)(A)(2)(i).
As the appeal was notproperly filed, it will be rejected . 8 C.F.R. § 103.3(a)(2)(v)(A)(1).
The AAO ,notes for the record that even if the appeal had been properly filed, it would be dismissed.
To establish eligibility, for the nonimmigrant L-l visa classification, the petitioner must meet the criteria
'outlined in section IOl(a)(15)(L) of the Act. 'SpeCifically, within three years preceding the beneficiary 's '
"application for ad~issio~ into 'the United States , a qualifying organization must 'have employed the
I ' Counsel did not indi~ate onForm G-28 that heis an attorney in good standing of the bar of the United
States or the'highest court of any State , territory, insular possession or the District of Columbia. Counsel also
did' not indicate that he is an accredited representative of a religious , charitable, social service or similar
• , I •
organization recognized by the Board. Counsel marked "Other" and indicated that he is an "AILA member."
When asked to verify whether he is a U.S. attorney or ari accredited representative, counsel indicated that he
is licensed by the Supreme Court 'in the Dominican Republic , . '
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EAC 07 10852640 ,
Page 3
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 saine employer or a subsidiary or affiliate thereof in ' a managerial ,
executive , or specialized knowledge capacity. "
..
The sole issue addressed by the director is whether the U .S. company established that the U.S. company has a
qualifying relationship with 'the beneficiary's claimed ' foreign employer. To establish a "qualifying
relationship" under 'the Act and the regulations , the petitioner 'must show that the beneficiary's foreign
employer and the proposed U.S. employer are the same :employer (i.e. one entity with "branch" offices) , or
related asa "parent and subsidiary" or as "affiliates." See generally section 101(a)(15)(L) of the Act; 8 C.F.R.
§ 214.2(1).
On the L Classification Supplement to Form 1-129, the petitioner indicated that the U.S . company owns 100%
of the foreign entity, Corsidian Caribbean Dominicana.
In a letter dated January 29, 2~07, the petitioner referenced an affiliate -relationship between "Corsidian
Caribbean Dominicana , Inc." and the U.S. company , but did not specifically describe the ownership and
control of either company. With respect to the ownership of the United States company, the petitioner
attached as exhibit K a doc~ment identified as its "state certification." -The document is a "checklist" for the
formation of a D~law~re corporation, which indicates that "at the moment" the company intended to distribute
its shares as follows: ' " ,
2.86% '
11.87%
11,87% ,
.39%
'; ..,
The document is not dated and it is unclear by whom it was prepared. There is no evidence in the record that' .' . . .
the petitioner was ever incorporated in Delaware.
The petitioner's exhibit K also included an uri-translated "Certificado de Registro" which indicates that the ,
Y.S. company was registered under the laws of the Commonwealth "of Puerto Rico on Ju1y '28, 2004 . This
document is ,consistent with other evidence in the record, including the petitioner's tax returns and audited
. ,financial statements , indicating that the petitioner is a,Puerto Rico corporation .established on that date.
The petitioner attached as exhibit M a documentidentified as "Corsidian Affiliate ,T~x Certification." The
'document , which is not translated, appears to ~e a receipt for a payment made 'to the Oficina Nacional de fa
.Propriedad Industrial on behalf of Corsidian Caribbean Dominicana on January 14,2005. ' ,
On March 21, 2007; the director issued a request for evidence instructing the petitioner to submit additional
evidenceto establish 'that there is aqualifying relationship between the U.S . company and the Dominican
Republic entity, Specifically, the directorrequested: (I) copies of the foreign entity's articles of incorporation
" " and by-laws; (2) a: copy of the foreign company~scertificate of incorporation; (~) additional documentary
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EAC 07 108 52640
Page 4
. evidence showing all stock/shares ownership and control of the foreign entity; and (4) evidence that the
-foreign entity is doing business , including copies of contracts , purchase orders , invoices, bank statements , tax'
returns, and/or audited or reviewed financial statements. " ,
In a response dated March 30 ~ 2007, the petitioner 'explained the relationship between the U.S. entity and the
Dominican Republic company as follows: ,
. [P]lease note that the relationship between .[the petitioner] and [the foreign entity] is very
tight, because both corporations are managed and operated by Mr. Nelson Aviles, President
and principal stockholder of both corporations.
[The petitioner] has been in operations in the Dominican Republic prior to be, incorporated in
2005 as demonstrated in their previous application for L-IB status (EAC0580014473). They
have always maintained engineers providing technical support to the ir main clients [in the
Dominican Republ ic] and as it is customary 'in the industry , all engineers always work from
their homes and visit the clients to provide the necessary support, moreover, [the foreign
entity] does not have other operating expenses than the salaries paid to their engineers arid all '
taxes related tothe ir operations in the Dominican Republic are paid through their corporate
taxes in Puerto Rico , as most of their contracts are made at the headquarters of the .parent
companies of their clients : .
The petitioner submitted a document identified as "Evidence of Stock Ownership and Control of the'Foreign ,
Entity" which shows that Nel ~on Avila owned 800 of 1,000 issued shares as of June 2005. The petitjoner also
submitted 'articles of incorporation for the foreign entity , but provided ,only very brief summary English
translations for all Span ish-language documents subm itted. The petitioner provided 'a copy of its Puerto R ico
Corporate Income Tax Return for 2005, including an attachment indicating that the company received a credit
for taxes paid in the Dominican Republic. ' " , ,
The director denied the petit ,ion on March 12, 2007 , concluding that the petitioner failed to establish that .the
.U.S. company has a qualifying relationship with the foreign entity. The director obs erved that, based on the
evidence submitted, the foreignentity is majority-owned by Nelson Aviles, while the U.S. entity is majority- ,
owned by, The director acknowledged the petitioner's claim that Nelson Aviles is the
'president- of both companies, but noted that"such a position does not constitute legal ownership and control of
.acompany."
On appeal, counsel for the petitioner asserts that the Dominican Republic company meets the crite ria .of a
"subsidiary" because the U .S. company "has been from the beginning in control, directly and indirectly, even
, when they did not change the stocks on time." Counsel emphasizes ,that the U.S. company's tax return
, included revenues from the Dominican Republic company , and that the petitioner provided evidence that all ,
'contracts with clients in the Dominican Republic were executed by the U .S. company as the parent company.
Counsel further states onForm I-290B that "the stockholders in [the petitioning company] agreed to make the
necessary changes in the stock ownership in Corsidian Dominican, however, they were not processed on time,
to company with the petition." Counsel indicated that as of the date the appeal was filed, Nelson Aviles was,
\v..
EAC 07 l08 52640
Page 5
in the process of transferring the majority of st06ks 'in, the Dominican Republic company to Andrew
;Salisbury.
Subsequently, the petitioner submitted evidence that a majority of the shares or' Corsidian Caribbean ,
' Dominicana C. por A . were, transferred to Andrew Salisbury on May '25, 2007., Other changes in stock
ownership occurred such that the owners of the foreign entity and the purported owners of the U.S. company
are now identical .'
Upon review, the record does not contain evidence that a qualifying relationship existed between the U.S . and
foreign entities as of the date the petition was filed. There are several deficiencies in the petitioner's evidence.
First, there is no evidence in the record to support the petitioner's initial claim that the U.S. company owns
100 percent of the foreign entity. The relationship the petitioner is attempting to establish on appeal is an
affiliate relationship , not a parent-subsidiary relationship. 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 ~vidence pointing to where
the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92,(BlA 1988). '
Contrary to counsel's assertions, the foreign entity cannot be considered a subsidiary of the U.S. company ,
simply because the U.S. company has paid taxes ~m money earned in the Dominican R~public and has signed
contracts with customers who are located there. 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 foreignentities for purposes of this visa classification. Matter. of Church Scientology
International , 19 I&N be~. 593 (BrA 1988) ; see also Matter oj Siemens M edical Systems, Inc., 19 I&N Dec. '
362 (BrA 1986) ; Matter ,of Hughes, 18 I&N Dec. 289 (Comm. 1982) . In the context of this' visa petition,
ownership refers to the dir~ct or indirect legal right Ofpossession of the assets of an entity with full power a~d
authority to control; control means the direct or indirect legal right and authority to direct the establishment,
management, and operations of an entity. Matter ofChurch Scientology International, 19 I&N Dec. at 595.
Second, ,on appeal, counsel ,concedes that the V:S. company and the foreign entity 'did not possess the
requisite common stock OWnership, but dismisses this de'ficiency as a "mere formality," because the
, companies had intended to adjust the stock ownership ofthe foreign entity . However, the petitioner must
establish eligibility at the,time of filing the nonimmigrant visa petition. A visa petition may not be approved
based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new
set offacts. ' See Matt er ofMichelin Tire Corp. , 17 I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak , 14
, I&N Dec. 45, 49 '(Comm '1971); , A petitioner may not make material changes to a petition in .an effort to
~ake a deficient petition conform .to CIS requirements : see Matter ofIzummi , 22I&N Dec. 169 , l76 (Assoc.
Comm. 1998). ' ,
Finally, the record does not contain credible evidence of the ownership of the U.S. company. 'As noted above ,
the only do~ument that references the company's ownership is a"checklist" for formation ofa Delaware
company. There is no evidence in the record to show that the petitioner is actually incorporated in Delaware,
and this document is not -valid evidence of the company's ownership, Going -on record without support ing '
, documentary evidence' is not sufficient for purposes of meeting the burden of proof in these proceedings.
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EAC 07 10852640
Page 6 ,'
." . . ,
Matter of SojJici, 22 I&N Dec. 158, 165 (Comm . 1998) (citing Matter. of Treasure Craft of California, 14
I&N Dec. 190 (Reg . Comm, 1972)). Based on these deficiencies the AAO concurs .with the director's
determination that the petitioner failed to establish the existence of a qualifying relationship between the U.S.
, '
and foreign entities, '
" Although not addressed by th ,e director, the AAO notes for the record that the petitioner has not established
that the beneficiary has been employed by the foreign entity on a full-time basis for one continuous year
within the three years preceding the filing of the petition. As evidence of the beneficiary's employment , the
petitioner has submitted copies ofthree invoices for "professional services" issued to the U.S. company by the
beneficiary, one for the months of March 2005 to December 2005, one for all of 2006, and one.for the month
of January 2007. The beneficiary's resume indicates that he was concurrently employed with an unrelated
employer from 1999 through 2006, a period which overlaps with his claimed period of qualifying
, '
employment with the foreign entity. Based on this evidence, it appears that the beneficiary was a part-time
independent contractor of the U .S. company who happenedto be based in the Dominican Republic , rather
than a full-time employee :of the foreign entity , as claimed by the petitioner.
, ,
Finally, 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 benefi~iary's position requires
specialized knowledge-the petitioner has not articulated any basis to the claim that the beneficiary is or will
be employed in a capacity requiring specialized knowledge. Other than submitting a general description of
the beneficiary's job -duties, the petitioner 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 any evidence of the knowledge
and expertise required for the beneficiary's position that would differentiate that employment from the
position of "telecommunication specialist" at other employers within the industry. .Sirri plygoing on record
without supporting documentary evidence is not sufficient ,for the purpose of meeting the burden of proof in
these proceedings. Matter of Soffici, 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), affd, 905 F.2d 41 (2d. Cir. 1990).
As the ,appeal will be rejected , these issues need not be ,addressed further. Even if the appeal ' had been
properly filed, the appeal would be dismissed for the above stated reasons . In visa petition proceedings ; the
burden of proving' eligibility for the benefitsought remains entirely with the petitioner. Section 291. of the
Act, 8' U.S.c. '§ 1361. Here, that burden has not been met:'
ORDER: The appeal is rejected.