remanded L-1B Case: Packaging Machinery

U.S. Department of Homeland Security 
20 Massachusetts Abe . N W . Rm A;O42 
Wdsh~tigton, DC 20529 
I 
,den- dab to 
p*a -1y onw- 
U.S. Citizenship 
and Immigration 
i~edMOrhrsP 
2 
FILE: LIN 04 163 5 1195 Office: NEBRASKA SERVICE CENTER Date: HOV 2 8 2005 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Sect~on 101(a)(15)(L) of the Immigation 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Th~s IS the declsion of the Admlnlstrative Appeals Office m your case. All documents have been returned to 
the office that originally decided your case. Any further lnqulry must be made to that office. 
qfib$ Ro ert P. Wiemann, Dir tor 
IAN 04 163 51 195 i 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the petlt~on for a non~mmigrant visa. The 
matter 1s now before ,the Admlnistratlve Appeals Office (AAO) on appeal. I he d~rector's decis~on w~ll be 
withdrawn and the matter remanded for further consideration and a new decision. 
The petlt~oner filed thls nonlmmtgrant pet~t~on seeklng to employ the beneficlary as an L-1B nonlmmigrant 
~ntracompany transferee wlth speclal~zed knowledge pursuant to sectlon 101(a)(15)(L) of the Immigration and 
Nat~onality Act (the Act), 8 U.S.C. EJ 1101(a)(15)(L). The petitloner claims that ~t 1s an affiliate of- 
located in Enkoplng, Sweden. Thc petlt~oner, a Nevada corporation, provldes sales, customer service and 
technical support of packaging machlnes manufactured by the fore~gn entity The petltloner seeks to employ 
the beneficiary as a customer care representatwe for a three-year perlod. ?,\ 
The director denied the petition concluding that the petitioner failed to establish: (I) that,the beneficiary was 
empldycd in a specialized knowledge capacity with the foreign entity for one year within the three years 
preceding the filing of the instant petition; or (2) that the United.States and foreign entities have a qualifyjng 
relationsh~p. 
On appeal, the petltloner asserts that the dlrector mlslnterpreted the petitloner's statements regarding the 
requlred training per,lod for the posit~on offered. The petlt~oner clalms that the benefic~ary asslsted In the 
development of new machlne software that will be transferred to the U S. company, and therefore, was not "In 
training" during h~s ,overbeas employment. The petltioner also concedes that ~t poorly documented the 
qual~fying relatlonshlp between the U.S. and fore~gn entlties In ~ts orlglnal subrnlss~on. and claims that the 
two companies are affil~ates based on common ownersh~p and control by the same group of ind~v~duals. The 
petltioner submits a letter and addit~onal supporting documentation In support of these assertions. 
To establish el~g~blhty for the non~mmigrant L-1 visa classificat~on, the petitloner must meet the criter~a 
outllned In sectlon 101(a)(15)(L) of the Act. Specifically, w~thin three years precedlng the beneficmy's 
appllcatlon for admlsslon Into the Unlted States, a qual~fy~ng organ~zat~on must have employed the 
beneficiary In a qualifyrng managerial or executlve capacity, or In a spec~al~zed knowledge capac~ty, for one 
contlnuous year. In addition, the benefic~ary must seek to enter the United States temporarily to contlnue 
rendering his or her services to the same employer or a subs~dtary or affiliate thereof In a managerial, 
executlve. or speclahzed knowledge capacity. 
The regulation at 8 C.F.R. S; 214.2(1)(3) states that an individual petltion filed on Form 1-129 shall be 
accompan~ed by. 
(1) Evldence that the petltloner and the organizatlon whlch employed or will employ the 
alien are qual~fying organlzatlons as defined m paragraph (l)(l)(n)(G) of this sectlon 
(11) Evidence that the alien w~ll be employed In an executlve, rnanager~al, or spec~al~zed 
knowledge capacity, Including a detalled descnpt~on of the servlces to be performed 
(111) Ev~dence that the allen has at least one contlnuous year of full-tlme employment abroad 
wlth a quallfylng organizatlon wlthln the three years precedlng the fillng of the pet~tion 
LIN 04 163 51195 
Page 3 
(iv) Evidence that the allen's prlor year of employment abroad was In a position that was 
managerial, executive or involved spec~alized knowledge and that the alien's prior 
educat~on, trainmg, and employment quahfies hindher to perform the Intended services in 
the United States; however, the work In the United States need not be the same work 
wh~ch the allen performed abroad. 
The Issue In the present matter 1s whether the petitloner has establ~shed that the benefic~ary has been 
employed by the foreign entity In a positlon that Involved specialized knowledge as required by 8 C.F.R. 
2 14.2(1)(3)(1~). 
Section 214(c)(2)(B) of the Act, 8 U.S.C. 5 1184(c)(2)(B), provides the following: 
For purposes of section 101(a)(15)(L), an alien IS cons~dered to be servlng In a capacity 
involving speclal~zed knowledge wlth respect to a company ~f the alien has a special 
knowledge of the company product and ~ts application m international markets or has an 
advanced level of knowledge of processes and procedures of the company. 
Furthermore, the regulation at 8 C.F.R. 8 214.2(1)(1)(ii)(D) defines "specialized knowledge" as: 
[Slpeclal knowledge possessed by an indiv~dual of the petitioning organization's product, 
serv~ce, research, equipment, techmques, 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 subm~tted the nonimmigrant petit~on on May 14, 2004. On the Form 1-129 petition, the 
petitloner Indicated that the beneficiary has been employed w~th the foreign entity since October 2002, and 
that he currently serves as a machine software programmer for Siemens PLC-systems, and performs 
packaging design programming for Emsrzc machines. The petltloner ~ndicated that the benefic~ary would 
perform the same duties in the United States and stated that he has "extraordmary abihty in S~emens PLC- 
programming." and "knows how to program complex packaging designs into Ems~ze CNC-mach~nes " In a 
May 5. 2004 letter submitted with thc petition, the pet~tioner described the benefic~ary's proposed job duties 
as 
Reprogram currently installed Emslze packaging machines In the United States. 
Provide technlcal assistance to our Northern Amerlcan customers. 
Install updated software to all currently Installed machines. 
Wr~te and provide new packaging programs to all customers. 
Resolve software problems and technlcal problems when mach~nes are "down." 
Perform remote-diagnos~s of machlne systems using the modem-connection: 
Train add~t~onal local programmers to perform the same job dut~es. 
With respect to the benefic~ary's qualifications, the petitioner provided the following explanat~on: 
I,IN 04 163 51 195 
Page 4 
There are only three service technlc~ans 1 software engineers worldwide who are capable and 
exper~enced to program our packaging machine systems according to the changlng needs of 
our customers. All three are employed at [the fore~gn entlty ] One of the three IS [the 
beneficiary]. Today, [the pet~tioner] IS not able to meet the needs of our customers (such as 
Emerson Electric, Kimball International, etc.) because [the petltloner] doesn't have access to 
a qualified programmer. The tlme to train an engineer for our software language 1s about 18 
months. 
The petitioner also described the "programming spec~alty" appl~cable to its packaging machlne systems: 
Emslze packaging machines are controlled by a standard PC which controls a Slemens S7 
PCL system. The propr~etary Ems~ze-software (Emware 2.0) runs on the Siemens PLC and 
controls the servo-dnves and pneumatic manifolds which power all CNC-tools lns~de the 
machlne. It IS very d~fficult to find qualified programmers who are fam~llar w~th Siemens 
PLC programmlng. There are only three people who know all requlred languages requlred for 
1) PC programmlng, 2) Slemens PCL programming and 3) the propnetary Ems~ze machine 
control software "Emware 2.0" 
Finally, the pet~tioner submitted an "employment certificate" issued by the fore~gn entity, which Indicates that 
the beneficiary's job title 1s "Service Engineer" and that his job dut~es conslst of "assembly and servlce of 
packaging machinery " 
The &rector denled the pet~tion on July 9, 2004, concluding that the beneficiary had not been employed in a 
speciahzed knowledge capac~ty with the foreign entity for one year in the three years preceding the filing of 
the petition The director noted the petitloner's statement that tt would take 18 months to train an engineer tn 
the company's software language. Slnce the benefic~ary jolned the foreign entity m October 2002, the dlrector 
concluded that he would not have completed hts tralnlng period untll approx~mately June 2004, one month 
after the pet~tton was filed. The director found that the training penod could not be apphed to the 
beneficiary's period of employment In a spec~al~zed knowledge capacity. 
On appeal. the pet~t~oner asserts that the dtrector misinterpreted ~ts statement regarding the requlred tralnlng 
per~od for an englneer to learn the petitioner's new software language, and claims that the benefic~ary's entlre 
per~od of employment abroad was In a specialized knowledge capaclty. The petlt~oner submlts an undated 
letter from the vicc president of the forelgn entlty which provldes the following explanat~on. 
1) After [the beneficiary] began working for [the foreign entity], his superlor programmlng 
sk~lls were qulckly employed to develop new software packages such as ~rt~lceware~~, 
~mware'~, sortwareTM, Ems~ze serverTM and Emsize sulteTM. 
2) Th~s software didn't exlst when [the benefic~ary] began his employment He helped 
develop the current software. He 1s the only capaclty [sic] available to train new local 
personnel In the Un~ted States. 
3) We est~mated the tralning time for a new programmer to be around +/- 16 months, to take 
over the US development. We have no hlstortcal data on the tralnlng time because no 
LINU4 163 51195 
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person had been trained to work on this software before because the current software did 
not exist 1 !4 years ago. The tralnlng time for a new employee is an estimate and should 
also take Into cons~deration the fact that we contlnue the development process thereby 
extendingthe training tlme for someone new. The training tlme 1s an est~mate as there 1s 
no historical data available 
4) Slnce [the pet~t~oner] has no other alternative but to usc a trained Emsize Software 
developer, [the petitloner] will not be able to develop the new US-adaptlons [SIC] and 
train new US-personnel to grow the local US bus~ness, making US-manufacturing more 
competltlve, unless [the benefic~ary] is granted the status of a speclal knowledge 
capacity. 
Upon revlew, the dlrector's decision will be withdrawn and the matter remanded for further cons~deration and 
a new dec~s~on. 
The regulat~on at 8 C.F.R. 5 103.2(b)(8) states. 
If there is evidence of ineligibility in the record, an application or petition shall be denied on that 
basis notwithstanding any lack of required initial evidence . . . . [I]n other instances where'there is no 
evidence of ineligibility. and initial evidence or eligibility informaiion is missing or the Service finds 
.' that the evidence submitted either does not fully establish eligibility for the requested benefit or ralses 
. - underlying questions regarding eligibility, the Service shall request the missing initial evidence. and 
may request additional evidence . . . . 
The dlrector exam~ned the pet~tioner's ev~dence and determined that the petltioner failed to establish 
ellg~blhty. The dlrector spec~fically referred to the petitloner's statement that ~t would requlre approximately 
elghteen months to tram an engineer In the United States to program ~ts packaging machines. The director 
concluded that smce the beneficlay had only been employed by the fore~gn ent~ty for approximately 17 
months at the tlme the petition was filed, he could not have completed the requlred training. Hohever, the 
petltioner d~d not ~nd~cate that the benefic~ary was In train~ng at the time the petltlon was filed, or that the 
same tra~ning requirements applled to engineers employed by the foreign ent~ty. The petitlon was submitted 
wlthout sufficient evidence to establish whether the beneficiary was employed abroad m a posltion whlch 
~nvolved specralized knowledge, or to establish that the posltlon offered In the Un~ted States requlres a person 
w~th spec~alized knowledge specific to the pet~tioner's products or processes. 
The record as presently constrtuted does not contaln any ev~dence of clear lnellgib~lity that would justify the 
dlrector's decis~on to deny the petltion w~thout first requesting addit~onal evldence or lssulng a notice of 
Intent to deny the pet~tion. See 8 C.F.R. fj 103.2(b)(8); see also Memo. of - Associate 
Director, Operat~ons, USCIS, to Regional D~rectors, et al, Requests for Evidence (RFE) and Notrces of ltrrent 
to Derzy (NOID), HQOPRD 7012 (February 16, 2005). 
Accordingly, as the evidence of record does not directly reflect that the petitioner or beneficiary is ineligible, 
the director should not have denied the petition based on a lack of evidence without first requesting additional 
explanation.and'documentation. See 8 C.F.R. fj 103,2(b)(8); 8 C.F.R. tj 214.2(lj(14)(i). The AAO agrees that 
LIN 04 163 51195 
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the evidence of record ralses underlying questions regarding elig~bility. In such an instance, the d~rector 
"shall request the mlsslng in~tlal ev~dence. and may request add~t~onal ev~dence . . . ." 8 C F R. 5 103 2(b)(8). 
In examining the specialized knowledge capaclty of the beneficiary, the AAO will look to the petitioner's 
description of the job duties. See 8 C.F.R. Ej 214.2(1)(3)(11). The pet~tioner must subniit a detailed dcscriptlon 
of the services to be performed suffic~ent to establish spec~alized knowledge. Id 
' 
When analyzing whether a beneficiary's knowledge rises to the level of specialized, it is also approprlate for 
the AAO to look beyond the stared 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 Ml~trer qf 
LeBlanc, 13 I&N Dec. 816 (R.C. 1971))' As stated by' the Commissioner in Matter of Pmner, when 
considering whether the beneficiaries .possessed specialized knowledge, "the LeBlanc and Ruulin decisions 
did not find that the occupations inherently qualified the beneficiaries for the classifications sought." 18 I&N 
Dec. at 52. Rather, the beneficiaries were considered to have unusual duties, skills, or knowledge beyond that 
of a skilled worker. Id. The Commissi6ner also provided the following clarification: . , 
A distinction can be made between a person whose skllls and knowledge enable h~m or her to 
produce a product through physical or skilled labor and the person who IS employed pnmarily 
for his abllity to cany out a key process or function which IS important or essential to the 
business' operat~on. 
It should also be noted that the statutory definition of speciahzed knowledge requlres the AAO to make 
comparisons In order to determine what constitutes specialized knowledge. The term "spec~ahzed knowledge" 
is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney General, 
"[sl~mply put, spec~al~zed knowledge is a relat~ve . . . idea whlch cannot have a plaln meaning." 745 F. Supp 
9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-1 category was Intended for "key 
personnel." See generall)~, H.R. Rep. No. 91-851, 1970 U S.C.C.A.N. 2750. The term "key personnel denotes 
a pos~tlon within the pet~t;onmg company that is "of cruc~al ~mportance." Webster's II New College 
Dlctlonary 605 (Houghton Mlfflin Co. 2001). In general. all employees can reasonably be considered 
"important" to a petitioner's enterpnse. If an employee did not contribute to the overall economic success of 
I Although the c~ted precedents pre-date the current statutory definition of "specialized knowledge," the AAO 
finds them instructive. As will be discussed, other than deleting the former requirement that special~zed 
knowledge had to be "propnetary," IMMACT 1990 d~d not significantly alter the defin~t~on of "speciahzed 
knowledge" from the prior INS interpretat~on of the term. The Committee Report simply states that the 
Comm~ttee was recommending a statutory definition because of "[vlarying [i.e., not specifically incorrect] 
interpretations by INS," H.R. Rep. No. 101-723(I) at 69, 1990 U.S.C.C.A.N. at 6749. Beyond that, the 
Comm~ttee Report slmply restates the tautology that became sectlon 214(c)(2)(B) of the Act Id. The AAO 
concludes, therefore, that the cited cases, as well as Matter of Penner, remain useful guldance concerning the 
intended scope of the "special~zed knowledge" L-1B classificat~on. 
LIN0416351195 , 
Page 7 
an enterprrse, there would be no ratlonal economic reason to employ that person. An employee of "cruc~al 
~mportance" or "key personnel" must nse above the level of the petitioner's average employee. Accordingly. 
based on the defin~tion of "specialized knowledge" and the congressional record related to that term, the AAO 
must make comparisons not only between the clalmed specialized knowledge employee and the general labor 
market, but also between that employee and the remainder of the pet~tioner's workforce. 
Rev~ewing the Congressional record, the Commiss~oner concluded In Matter of Pennet* that an expansive 
reading of the specialized knowledge provision, such that it would include skilled workers and technicians, IS 
not warranted. The Commissioner emphas~zed that that the specialized knowledge worker classification was 
not intended for "a11 employees with any level of spec~alized knowledge." Matter ofPenner, 18 I&N Dec. at 
53. Or, as noted in Mauer of Colley, "[mlost employees today are specialists and have been trained and given 
speciahzed knowledge. However, m vlew of the House Report, it can not be concluded that all employees 
with specialized knowledge or performing h~ghly technical duties are eliglble for classificat~on as 
Inmacompany transferees." 18 I&N Dec. 1 17, 1 19 (Comm. 198 1). According to Matter of Penner, "[sluch a 
conclus~on would permit extremely large numbers of persons to qualify for the 'L-1' vlsa" rather than the 
"key personnel" that Congress specifically intended. 18 I&N Dec at 53; see also, 1756, I~c, 745 F Supp at 
15 (concluding that Congress d~d not intend for the specialized knowledge capacity to extend all employees 
with speclallzed knowledge, but rather to "key personnel" and "execut~ves.") 
In this matter, the petitloner has not documented the beneficiary's claimed spec~al~zed knowledge. The record 
contains conflictmg informat~on regarding the beneficiary's actual role withln the forelgn entity The 
petitioner ldent~fied him as a "mach~ne software programmer" on the 1-129 Pet~tion, however, the foreign 
entity issued an employment certificate identifying the beneficiary as a "serv~ce engineer" respons~ble for 
assembly and service of machinery. On appeal, the petitioner asserts that the beneficiary has been engaged in 
the development of proprietary software. The petltioner should provide a comprehensive description of all 
positions held by the beneficiary since joinlng the foreign entlty, includ~ng all job duties performed, the 
specific knowledge and skllls applied In each pos~tion, and the fore~gn entity's requ~rements for each pos~tion. 
The petitioner should also descrlbe all projects to which he has been assigned and any special or advanced 
assignments that would help to establ~sh that the benefic~ary should be considered "key personnel," as 
discussed above. 
The record contams no lnformat~on regarding the benefic~ary's educational or professional background prlor 
to jolning the foreign entity. The petitloner should prov~de evldence of any post-secondary education 
completed by the beneficiary and a resume or employment history, emphasizing any prevlous experience In 
the petitioner's industry. If the beneficiary has undertaken speclahzed training with the forelgn entity, the 
petitloner should identify the type and length of training. the purpose of such training, and evidence, such as 
course completion certificates or other records, to establish that the beneficiary actually cbmpleted the 
training. The petltioner should also descnbe the tra~ning program typically completed by similarly employed 
workers in the fore~gn organization If all employees recelve exactly the same training, mere completion of 
the training program IS insufficient to establish that the benefic~ary's knowledge is advanced. 
The record contains no ~nformation regarding other similarly employed workers employed by the foreign 
entlty which would allow Clttzenshlp and Immigration Services (CIS) to make comparisons between the 
LIN04 163 51195 
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benefic~ary and the remainder of the fore~gn ent~ty's workforce. The pet~tloner should identlfy the total 
number of workers employed at the locat~on where the benefic~ary works. the number of workers employed In 
the same or simllar roles, and prov~de an organ~zat~onal chart for the foreign entity. The petltloner has stated 
that the benefic~ary is one of only three employees of the foreign ent~ty capable of performing the dut~es of 
the position offered in the United States, but d~d not provlde documentary evldence to support th~s statement 
The record also lacks a descr~pt~on of the staffing of the Un~ted States entity, whlch appeared to employ only 
three people at the tlme the petit~on was filed. If the pet~t~oner employs other workers In the pos~tion to be 
filled by the benefic~ary or s~m~lar posltlons, ~t should describe how the benefic~ary's dut~es will d~ffer from 
those of the other employees, and descnbe the educat~onal and profess~onal background of any s~m~larly 
employed worker. 
Flnally, the pet~tioner has not provided suffic~ent lnformatlon or documentat~on regardlng the spec~allzed 
software developed by the fore~gn ent~ty that would d~fferent~ate it from other software utilized by other 
companles who manufacture packaging machmery. The pet~tioner states that ~t requlres ~ts programmers to 
be profic~ent m general PC programmlng and Stemens PCL programmlng. The knowledge required to 
program In languages developed by other companles does not const~tute "spec~al~zed knowledge" of the 
pet~t~oner's products or processes The petltloner should subm~t a detalled descr~pt~on of ~ts "Emware 2 0" 
mach~ne control software and related appllcatlons, Identify the technical env~ronment In whlch ~t was 
developed, and submlt any available brochures or manuals whlch would contribute to an understanding of the 
product and ~ts relatlve complexity. The petitioner should also explaln how ~ts machine control software 
d~ffers from that used by other companles in ~ts industry, and why knowledge needed to program its machlnes 
could not be eas~ly transferred to an experienced machlne programmer worklng In the pet~tioner's industry 
In add~tion, the petlt~oner should subm~t add~t~onal explanatton and documentatlon regardlng the beneficlary's 
contnbut~on to the development of "Emware 2.0" to establ~sh that h~s knowledge of the software should be 
considered "advanced" compared to other programmers employed by the fore~gn entlty. 
The lack of ev~dence m the record as presently constituted makes ~t lmposslble to class~fy the benefic~ary's 
knowledge of the pet~t~oner's machlne control software as advanced, and precludes a findlng that the 
beneficlary's role 1s "of cruc~al importance" to the organlzat~on. Although the knowledge need not be 
narrowly held withm an organ~zat~on In order to be spec~ahzed knowledge, the L-1B vlsa category was not 
created in order to allow the transfer of employees w~th any degree of knowledge of a company's products 
As the petltloner d~d not have sufficient not~ce of the deficiencres In ~ts evidence, the petlt~on will be 
remanded, and the pet~t~oner shall be glven the opportunity to submit add~tional ev~dence in order to estabhsh 
the benefic~ary's speclallzed knowledge qualificat~ons. 
The second Issue In th~s matter IS whether the petitloner established that the U.S. ent~ty has a quahfylng 
relatlonsh~p with the foreign entity. 
The pertinent regulations at 8 C.F.R. Ej 214.2(1)(l)(ii) define the tenn "qualifying organization" and related 
terms as folIows: 
(G) Qualzfiing organization means a United States or foreign firm, corporat~on, or other 
legal entlty which: 
LIN04 163 51195 , 
Page 9 
(1) ' Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affil~ate or subsidiary specified In 
paragraph (1)(1)(1i) of thls section, 
(2) Is or will be doing business (engaging in international trade is not 
requ~red) as an employer In the United States and In at least one other 
country dlrectly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
(I) Parent means a firm, corporatlon, or other legal entity whlch has subsidiaries. 
(J) Branch means an operating division or office of the same organization housed In a 
d~fferent location. 
(K) S~tbs~dinty means a finn, corporatlon, or other legal ent~ty of which a parent owns, 
directly or ind~rectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the ent~ty and controls the entity; or owns, dlrectly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, dlrectly or indirectly, less than half of the entlty, but in fact 
controls the entity. 
(I.) Affiliute 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 entlties owned and controlled by the same group of 
~nd~vlduals, each mdividual ownlng and controlling approximately the 
same share or proportion of each enhty. 
On the L Classification Supplement to Form 1-129, the petitioner ~ndlcated that the U.S. entity is a subsidiary 
of the foreign entity and stated: 'owns 2500 shares of 9500 total shares at [the foreign entity]. 
-owns 100% of all shares of [the petitioner]." The petitioner submitted a letter from ~ts 
president,, stattng that the foreign entity is owned and controlled b-30%), 
30%) and- (30%). and that the U.S. company is controlled by the same 
three indlvlduals. stated: ''The ownershlp of [the pet~t~oner] currently belongs 100% tom 
An agreement was made in 2002 that 213'~ of all shares in [the petitioner] will be transferred to 
o that both companies have ident~cal ownershlp percentages." 
LIN04 163 51 195 
Page 10 
The petlt~oner submitted an excerpt from the forergn entity's "reg~stratlon book whlch shows that as of May 
27, 2002, the company had issued a' total of 9,500 shares In the following proportions: - 
(2.500); (2,500 shares); (2500 shares): and Invest AB (2.000 
shares) The petitioner submitted a shareholders' agreement confirming thls dlstnbutlon of ownership that 
slgned by all four parties on May 31, 2002. The petltloner subm~tted its articles of tncorporatlon and mlnutes 
of its organizat~onal meet~ng dated August 2, 2002. The articles of incorporat~on lndlcate that the company IS 
authorized to issue a total of 50,000,000 shares. 
The director denied the petltlon concluding that the petltloner had not established that ~t has a qual~fylng 
relationship with the forelgn entlty. The director noted inconsistent statements made by the petitloner's 
president with respect to the ownership of the forelgn ent1ty:The dlrector also obscrved that the petltloner 
falled to provlde: (1) ev~dence to support its clalm tha owns 100 percent of the Issued shares; 
(2) evidence to substantiate the purported agreement made by in 2002 for the transfer of two- 
thirds of his shares t- and, or (3) evidence of votlng proxles or other 
agreements to esta llsh that any degree of control had been fonilally relinquished by the other shareholders in 
favor of b 
On appeal, the petitloner claims that the petltioner and the foreign entity "are affiliates wlth the same goup of 
lndlvlduals ownlng and controlling approximately the same share of both companles." The petitioner 
concedes that the relationship between the companles was "poorly documented" in the origlnal petltlon The 
r submits a stock ledger for the petitioner and states that it "shows that the agreement between - 
had been ratified and documented " The stock transfer 
ledger shows that each indiv~dual was issued 10,000 shares of common stock at a value of $.001 per share on 
August 12, 2002 and that no addltlonal stock had been Issued. The petitloner also explains that ~t has obtalned 
a more recent co~v of the forelm entitv's reelstration book. The uudated registration book shows that, as of n, ., " - 
October 1, 2003, the fore~gn company 1s owned equally by 
 he further explalns that it was unfamlllar wlth the definltlons of affil~ate and subsidlab 
utihzed by CIS, and was not aware of how to document the relat~onship between the two companies. 
Upon revlew. the petltioner has not submrtted sufficrent evldence on appeal to overcome the d~rector's 
determinat~on Elowever, as the dlrector did not Issue a request for evidence to clar~fy the ~nconwstencies In 
the petitioner's statements or to request addlt~onal corroborating documentat~on, the pet~tlon will be remanded 
and the petitloner will be given an opportunity to subm~t addit~onal ev~dence to establish that the U.S and 
forelgn companles had common ownership and control at the tlme the petrt~on was filed. 
The regulation and case law confirm that ownersh~p and control are the factors that must be examlned In 
determlnlng whether a qualifying relat~onship exlsts between United States and forelgn entltles for purposes 
of this vlsa class~ficat~on. Matter ofchurch Scientology Irifernatronal, 19 I&N Dec. 593 (BIA 19883; see also 
Matter of Siernetzs Medzcal Systems, It~c., 19 I&N Dec. 362 (BIA 1986); Matter of Hugf~es, 18 I&N Dec. 289 
(Comm 1982) In the context of thls vlsa petition, ownersh~p refers to the dlrect or ind~rect legal nght of 
possession of the assets of an ent~ty wlth full power and authority to control; control means the dlrect or 
indlrect legal right and author~ty to direct the estabhshment, management, and operations of an entlty. Malrer 
of Clzurch Screntofogr, Internatzonal, 19 I&N Dec. at 595. 
LIN 04 163 51195 I 
Page 1 1 
As general ev~dence of a pet~tioner's claimed qual~fylng relatlonsh~p, stock cert~ficates alone are not suffic~ent 
ev~dence to determ~ne whether a stockholder ma~ntalns ownersh~p and control of a corporate entity. The 
corporate stock cert~ficate ledger, stock cert~ficate registry, corporate bylaws, and the mlnutes of relevant 
annual shareholder mcetlngs must also be examlned to determine the total number of shares Issued, the exact 
number Issued to the shareholder, and the subsequent percentage ownersh~p and ~ts effect on corporate 
control Add~t~onally, a petitlonlng company must dlsclose all agreements relatlng to the votlng of shares, the 
d~stnbut~on of profit, the management and direction of the subadlary, and any other factor affecting actual 
control of the entlty. See Matter of Sremens Med~cal Systems, Inc. 19 I&N Dec at 362 W~thout full 
disclosure of all relevant documents, CIS IS unable to determine the elements of ownership and control. 
The evldence submltted by the petitioner on appeal, namely the updated reg~stratlon book for the forelgn 
entlty and the pet~t~oner's stock transfer ledger, 1s ~nsuffic~ent to establish the cla~med affiliate relat~onsh~p 
between the two companles. The AAO notes that - a shareholder of both companies wlth 
personal knowledge of the~r ownersh~p and control, slgned the documents subm~tted w~th the ln~tial pet~t~on 
stated on the L Class~ficat~on Supplement to Form 1-129 and In a May 5, 2004 letter that he was 
the sole owner the petitlonlng company at the tlme the petltion was filed, but that he had agreed to transfer 
two third of hts shares to t some date ~n the future The documents 
submltted on appeal show that the ownership of theg company was shared equally among Mr. 
and slnce the date of incorporation. lso lnd~cated that he 
owned 2500 shares of the foreign entity as of the date of filing. The documents submitted on appeal show 
that owned 3,167 shares of the foreign entity at the tlme the pet~tlon was filed. 
The petitloner has not adequately explained the ~ncons~stent statements made by egardlng h~s 
ownersh~p in the two companles. It is incumbent upon the pet~tloner to resolve any ~ncons~stencles In the 
record by Independent objectlve ev~dence. Any attempt to explain or reconcile such lnconsistenc~es w111 not 
suffice unless the pet~tloner subm~ts competent objectlve evldence polntlng to where the truth I~es. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Furthermore, a petltloner may not make mater~al changes to a 
petltlon In an effort to make a defic~ent petltlon conform to CIS requirements. See Matter of Izzlrntnl. 22 I&N 
Dec. 169, 1 76 (Assoc Comm 1998). 
The'd~rector should request ~ndependent and objectlve evidence to substantlate the pet~t~oner's claim that both 
companles were owned and controlled by the same indlvlduals w~th each lndlv~dual ownlng and controlling 
approx~mately the same share or proportion of each entlty at the t~me the pet~t~on was filed Necessarily, 
Independent and objectlve ev~dence would be ev~dence that IS contemporaneous w~th the event to be proven 
and ex~stent at the tlme of the director's notlce. Such ev~dence should Include coples of all stock cert~ficates, 
lncludlng vo~d or canceled cert~ficates for both companies, corporate by-laws, ev~dence of monles pa~d In 
exchange for stock, coples of stock purchase or subscnpt~on agreements, the minutes of relevant shareholder 
meetings, the stock transfer agreement referenced by the pet~tloner, and any other documents that the d~rector 
deems necessary to determine the total number of shares Issued and the actual d~stnbutron of ownersh~p and 
control among the shareholders of both companies as of the date this petit~on was filed. 
In thls matter, the ev~dence of record ralses underlying questions regarding el~g~b~lity Further ev~dence is 
requlred In order to establish that the petltloner and beneficiary meet the requirements for L-1B class~ficat~on. 
Page 12 
The director's dccis~on will be withdrawn and the matter remanded for iirrther conslderat~on and a new 
dec~sion. The director is instructed to issue a request for evldence addressing the issues dlscusxd above, and any 
other evldence he deems necessary. 
ORDER: The declslon of the dlrector dated July 9, 2004 is withdrawn. The matter 1s remanded for further 
act~on and consideratlon consistent wlth the above discussion and enhy of a new dec~sion.