dismissed L-1A Case: Alternative Medicine

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W ., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 03 206 52256 Office: CALIFORNIA SERVICE CENTER Date: 3UN 1 0 
PETITION: Petition for a Nonimigrant Worker Pursuant to Section lOl(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
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. 
1 w R n P. Wiemann, Dir ctor 
b 
Administrative Appeals Office 
WAC 03 206 52256 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
According to the documentary evidence contained in the record, the petitioner was incorporated April 28, - 
2003, and claims to be an alternative medicine, holistic center. The petitioner claims to be a subsidiary of 
, located in Maradana, Sri Lanka. It seeks to employ the beneficiary temporarily in 
the United States as the president of its new office for twelve months, at a monthly salary of $3,000.00. The 
director determined that the petitioner failed to establish that the financial status of the United States entity 
was adequate to commence doing business and to remunerate the beneficiary for his services as required by 
8 C.F.R. 5 214.2(1)(3)(v)(C)(2). 
On appeal, counsel disagrees with the director's decision and asserts that the evidence submitted is sufficient 
to establish the size of the United States investment and the financial ability of the foreign entity to 
remunerate the beneficiary and to commence doing business in the United States. 
To establish L-1 eligibility under section lOl(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 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. $ 214.2(1)(l)(ii) states, in part: 
lntracompany transferee means an alien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a fm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a 
capacity that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. 9 214.2(1)(3) 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 (l)(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 invoIved specialized knowledge and that the alien's prior 
WAC 03 206 52256 
Page 3 
education, training, and employment qualifies himlher 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 regulation at 8 C.F.R. $ 214.2(1)(3)(v) states that if the petition indicates that the beneficiary is coming to 
the United States as a manager or executive to open or to be employed in a new office in the United States, the 
petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involved executive or managerial authority over the new 
operation; and 
(C) The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (l)(l)(ii)(B) or 
(C) of this section, supported by information regarding: 
(I) The proposed nature of the ofice describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing 
business in the United States; and 
(3) The organizational structure of the foreign entity. 
In a letter of support, dated June 10, 2003, the petitioner stated that the U.S. entity was established in 2003, 
and its purpose is to own and operate an alternative medicine center (holistic center). The petitioner further 
stated that the entity planned to operate its facilities to the exact specifications of the foreign entity. As 
evidence, the petitioner submitted copies of the U.S. entity's Articles of Incorporation, by-laws, meeting 
minutes, stock share certificate number 1, stock ledger, and state notice of stock transaction. The petitioner 
also submitted copies of the foreign entity's Certificate of Registration, balance sheet and income statement as 
of March 31, 2003, monetary conversion table, import and export licenses, invoices, stock valuation report, 
lease agreement, patent medicine lists, and a patient information kit. 
The director submitted a request for evidence, dated July 10, 2003, in which he requested that the petitioner 
submit proof of stock purchase, showing that the foreign entity paid for the recorded 10,000 shares of the U.S. 
entity's stock. 
In response to the request for evidence, the petitioner submitted copies of Bank of America confirmation 
letters confirming two wire transfers sent from the foreign entity's bank account, totaling $10,000.00, and 
notification of wire transaction from located in Sri Lanka. 
The director submitted a second request for evidence, dated August 18, 2003, in which he specifically 
requested, in part: 
WAC 03 206 52256 
Page 4 
What is the projected total investment in the U.S. within 12 months of opening a new office 
in the U.S.? (Emphasis in original.) Submit a timetable to transfer the proposed total 
investment in the U.S. 
What is the cost of the newly created business? (Emphasis in original.) - The cost of a 
newly created business is the actual cost needed to establish such a business to the point of 
being owrational. (Emphasis in original.) The petitioner should have already purchased at 
least some of the necessary assets and be able to provide cost figures for additional assets 
needed to run the business. This is best accomplished by submitting a detailed description of 
all start-up costs to open a new office in the U.S. - The evidence should include: Payments 
for leases or rents; Purchase of equipment and for inventory on hand (as evidence by invoices 
or contracts for substantial purchases of equipment and inventory); The value of goods or 
equipment transferred to the United States; Appraisals of the market value of land, buildings, 
equipment, and machinery; accounting audits; Records required by various governmental 
authorities, etc. 
Projected Income Statement: A minimum of 4 quarters projections should be made for the 
first year of operations. (Emphasis in original.) The projections should include at a 
minimum the following: 
Sales (including costs of sales) 
Purchases (including costs of purchases) 
Gross Profit (Loss) 
Operating Expenses: Amortization, Auto, Bank Charges, Depreciation, Janitor, Legal 
& Professional, Licenses & Fees, Meal & Entertainment, Office Expense, Outside 
Services, Printing, Rent, Supplies, Telephone, Travel, Utilities.. . 
Income From Operations 
Federal Income Tax 
Franchise Tax 
Net Income 
In response to the director's request for evidence, the petitioner submitted the following estimates: 
TOTAL INVESTMENT IN THE FIRST 12 MONTHS OF OPERATIONS 
$10,000 Sent as initial capital, for payment of shares. 
$20.000 Valued Ayurvedic medicine sent 07/15/2003. 
$14,000 Valued equipment and medical furnishings sent on 8/ 12f2003. 
$30,000 Additional capital to be sent upon successful transfer of [the beneficiary]. Date to be 
determined. 
TOTAL INVESTMENT UNTIL FWRTHER BOARD MEETING AND FINANCIAL 
ASSESSMENT $74,000. 
WAC 03 206 52256 
Page 5 
COST OF NEWLY CREATED BUSINESS 
1. First and last months lease $4,000 
(Paid by foreign entity and shipped on 07/15/2003 by Dr. 1 
3. EquiprnenWurnishings 
2. Medicine inventory $20,000 
- $14,000 
(paid by foreign entity and shipped on 0811212003 bm) 
4. Electricity, phone installation/equipment, health permits, misc. $2,000 
Total $4o,ooO 
-copies of proforma invoices from - 
petitioner also submitted it copy of a projected income statement for the first rour 9's business year. 
The director subsequently denied the petition after determining that the evidence was insufficient to establish 
that the size of the United States investment was adequate and that the foreign entity possessed the financial 
ability to remunerate the beneficiary and to commence doing business in the United States. The director 
noted the U.S. entity's initial investment was $10,000.00, office rent was $2,000.00 per month, and the 
beneficiary's salary would be $36,000.00 per year. The director also noted the U.S. entity's total investment 
in the first twelve months as provided by the petitioner in response to the director's request for evidence. 
The director stated that although the petitioner responded to his request for evidence on August 20, 2003, it 
failed to provide evidence of the shipment of the Ayurvedic medicine, equipment, and medical furnishings as 
claimed. The director further stated that the record only contained evidence of the initial $10,000 investment 
and that such an investment did not appear sufficient to cover the cost of starting a new business, inclusive of 
the beneficiary's salary. 
On appeal, counsel disagrees with the director's decision and asserts the total financial investment in the U.S. 
entity totals approximately $74,000.00. Counsel further asserts the initial capitalization includes $10,000 
cash from the sale of 10,000 shares of the U.S. entity's stock and that approximately $34,000 had been paid to 
procure inventory and office furniture. Counsel contends that upon approval of the instant petition, the 
petitioner will arrange for shipment of materials and relevant stock to the United States. Counsel further 
contends that in response to the director's request for evidence the petitioner erroneously stated that the 
materials were to be shipped upon payment, where as in fact, the petitioner will make final shipping 
arrangements upon a favorable adjudication of the petition. Counsel also contends that the materials, office 
furniture, and stock will be considered assets rather than liabilities because they have been paid for in full. 
of an amended profonna invoice number 0001, dated 
ceipt, dated September 2, 2003, acknowledging the cash 
is payment in full for the supplies described in the July 15, 
2003 invoice, and a monetary conversion table showing rupee amounts and their U.S. currency equivalents. 
) submitted copies of a purchase order and an amended proforma invoice number 9876 from 
lated August 12, 2003, a receipt, dated September 2, 2003, acknowledging the cash receipt 
4,o~u. IY US from the U.S. entity as payment in full for the supplies and equipment described in the 
August 12, 2003 invoice, and a monetary conversion table showing rupee amount-s and their U.S. currency 
WAC 03 206 52256 
Page 6 
entity in December of ted copies of three transmittal of funds request made 
by the foreign entity to f Sri Lanka. The requests are dated October 10,2003, 
and are in the amount 5,000 US respectively. The petitioner submitted a 
dated October 16, 2003, confirming the foreign entity's bank 
There has been insufficient evidence submitted by the petitioner to establish that the size of the United States 
investment is adequate and that the foreign entity has the financial ability to remunerate the beneficiary and to 
commence doing business in the United States as required by 8 C.F.R. §214,2(1)(3)(v)(C)(2). After the 
director requested additional documentation on this issue, the petitioner faiIed to submit sufficient evidence. 
On appeal, counsel relies on evidence that was requested but not produced until after the initial decision to 
deny the petition was made by the director. The petitioner submitted amended copies of proforma invoices, a 
purchase order, cash payment receipts, a letter acknowledging cargo space for shipment of inventory and 
supplies, bank transmittal of funds request, and a bank balance statement. It is noted that the petition in the 
instant matter was filed July 7, 2003, the director's request for evidence is dated August 18, 2003, and the 
director's decision was issued September 18, 2003. The petitioner must establish eligibility at the time of 
filing the nonirnrnigrant visa petition. A visa petition may not be approved at a future date after the petitioner 
or beneficiary becomes eligible under a new set of facts. Matter of Micheiin Tire Gorp., 17 I&N Dec. 248 
(Reg. Comm. 1978). Citizenship and Immigration Services (CIS) cannot consider facts that come into being 
only subsequent to the filing of a petition. See Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981). 
Although the petitioner infers that the regulations do not require that the business be fully funded at the time 
of the application, it is necessary for the petitioner to establish from the onset that the new office has been 
adequately funded to commence doing business in the United States, 8 C.F.R. § 2 14.2(1)(3)(v)(C)(2). 
Evidence of a $10,000 wire transfer to the U.S. entity in payment for 10,000 shares of stock in the company is 
not sufficient to establish that the organization was adequately funded or had received sufficient capital to 
commence doing business at the time the petition was filed. Furthermore, based upon information contained 
in the U.S. entity's business plan and projected income statement, and in light of the nature of the proposed 
business, it is highly unlikely that the initial start-up capital in the amount of $10,000 US would suffice to 
cover the entity's operating expenses, inventory purchases, and the beneficiary's salary of $36,000 US. 
Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, another issue in the proceeding is whether the petitioner has submitted 
sufficient evidence to establish that the U.S. entity will be able to support a managerial or executive position 
within one year of operation in compliance with the regulatory requirements for a "new office" pursuant to 
8 C.F.R. $ 214.2(1)(3)(v)(C). Although the regulations do not require proof that the duties performed by the 
beneficiary in the first year were entirely managerial or executive, there must be some evidence of managerial 
or executive activity to substantiate the hierarchical position. The petitioner submitted a copy of the U.S. 
entity's proposed organizational chart that showed the company proposed to hire a president, operations 
manager, specialist, masseuse, and cashierlstockperson. The chart also indicates projected employee salaries. 
The record does not demonstrate that the U.S. entity will contain the organizational complexity to support the 
proposed managerial or executive staff position. In addition, the petitioner failed to submit evidence that 
shows in detail how the new business will be fully operational within one year, with employees in place and 
doing business by providing a product or service. Although the petitioner states that it intends to hire new 
employees it has not provided detailed position descriptions to show that they will be employed in other than 
non-professional positions. 
WAC 03 206 52256 
Page 7 
Although specifically requested by the director, there has been no evidence presented that details the time 
frame in which new employees will be hired, what the new hires' duties will consist of, or how the 
beneficiary's duties will interrelate with that of the new hires. There is no evidence to show that the 
beneficiary will be supervising a subordinate staff of professional, managerial, or supervisory personnel who 
will relieve the beneficiary from performing nonqualifying duties. Furthermore, the petitioner's evidence is 
not sufficient in establishing that the beneficiary will be directing the management of the organization or a 
major component or function of the organization; establishing the goals and policies of the organization; 
exercising wide latitude in discretionary decision-making; and receiving only general supervision or direction 
from higher level executives. 
Rather than the beneficiary functioning at a senior level within the organizational hierarchy within one year of 
operation in the United States, it appears from the record that he will continue to perform the functions of the 
organization and carry out the day-today activities of the business. See Matter of Church Scientology 
Inrernational, 19 I&N Dec. 593 (BIA 1988) 
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 nor identify all of the grounds for denial in the initial decision. See 
Spencer Entelprises, Inc. v. United States, 229 F.SU~~.~* 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9" Cir. 2003); see also Dor v. INS, 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. 5 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.