dismissed L-1A Case: Bakery And Confectionary

U.S. Department of IIomeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington. DC 20529 
U.S. Citizenship 
and Immigration 
File: EAC 08 019 5 1629 Office: VERMONT SERVICE CENTER Date: OCT 2 9 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 1Ol(a)(l5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 101 (a)(15)(L) 
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. 
4 ~g6et-t P. Wiemann, Chief 
c^s 
ministrative Appeals Office 
' EAC0801951629 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. 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 as an L-IA nonimmigrant 
intracompany transferee pursuant to section lOl(a)(lS)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, a Texas limited liability company, states that it intends to operate a 
bakery and confectionary. It claims to have a joint venture relationship with the beneficiary's foreign 
employer, My Bakers, located in Hyderabad, India. The petitioner seeks to employ the beneficiary as the 
president of its new office in the United States for a one-year period. 
The director denied the petition concluding that the petitioner did not establish: (1) that it had secured 
sufficient physical premises to house the new office; or (2) the size of the United States investment and the 
financial ability of the foreign entity to commence doing business in the United States. The director 
concluded that the evidence of record was sufficient to demonstrate that the United States operation, within 
one year of approval of the petition, will support an executive or managerial position. 
The petitioner subsequently filed an appeal. 
 The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that, contrary to the 
director's findings, the photographs the petitioner submitted as evidence of its physical premises were clear 
and identifiable. The petitioner submits additional photographs of its physical premises on appeal. In addition, 
counsel asserts that the director overlooked the petitioner's evidence of the financial status of the foreign 
entity, and improperly disregarded the submitted documents as "self-serving." 
To establish eligibility for the L-1 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.R. 5 214.2(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 (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. 
EAC 08 019 51629 
Page 3 
(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. 
The regulation at 8 C.F.R. fj 214.2(1)(3)(v) also provides 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 involves 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 office 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 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. fj 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to fi11l operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
Therefore, if a petition indicates that a beneficiary is coming to the United States to open a "new office," it 
must show that it is ready to commence doing business immediately upon approval. At the time of filing the 
' EAC0801951629 
Page 4 
petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient 
physical premises to commence business, that it has the financial ability to commence doing business in the 
United States, and that it will support the beneficiary in a managerial or executive position within one year of 
approval. See generally, 8 C.F.R. fj 214.2(1)(3)(~). 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target marketlprospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefore. Most importantly, the business plan must be credible. 
Id. 
The first issue addressed by the director is whether the petitioner established that it has secured sufficient 
physical premises to house the new office. 
The petitioner filed the nonimmigrant petition on October 25, 2007. The petitioner indicated on Form 1-129 
that its address is at, in Houston, Texas. The petitioner stated that it intends to 
operate a bakery and confectionary. 
The petitioner submitted a lease agreement for the premises located at , which 
indicates that the size of the secured premises is approximately 1,600 square feet, to be used "only for the 
retail sale of food items." 
In a request for additional evidence dated November 1,2007, the director instructed the petitioner to submit 
photographs of the interior and exterior of the premises located at The petitioner was 
advised that, as a premium processing customer, it had the option of mailing its response or submitting it by 
' EAC0801951629 
Page 5 
On January 27, 2007, the petitioner submitted by fax a total of eight photographs depicting retail space 
located at the street number "1 5207." The photographs appear to depict a storefront, one or two empty rooms, 
and another smaller room with one desk and chair. Because the photographs were sent by fax, the quality was 
poor. 
The director denied the petition on February 8, 2008, concluding that the petitioner had failed to establish that 
it had secured sufficient physical premises to house the new office. The director acknowledged the evidence 
submitted, but determined that the photographs provided were "dark and non identifiable and therefore cannot 
be taken into consideration." 
On appeal, counsel for the petitioner asserts that the petitioner states that the petitioner acquired the premises 
at , Houston, Texas "to establish and initiate its operations." Counsel states that "this 
location was acquired with the intention to establish a business and head office," and that after establishing 
the registered address at this location, "the Petitioner planned to engage in the establishment of a Bakery." 
With respect to the director's specific findings, counsel contends that the petitioner submitted the required 
photographs and lease agreement for the premises secured, and that the photographs sent in response to the 
request for evidence were "clear and identifiable." Counsel asserts that the petitioner "cannot be blamed for 
the lack of resolution on the fax machine." 
In support of the appeal, the petitioner submits clearer copies of the previously submitted photographs. The 
photographs depict a storefront with street address '1 One of the front windows has a sign 
advertising "KFC Catering," although it is noted that there is a KFC restaurant neighboring the premises. 
One of the interior photographs depicts a desk, chair and computer. The desk and wall contain various 
papers, and there is what appears to be a KFC "Biscuit Bowl Combo" sign on the desk, which raises questions 
as to whether this photograph was actually taken inside the petitioner's premises. The photographs depict one 
or two empty rooms with no equipment, furniture or fixtures of any type. 
Upon review, and for the reasons discussed herein, the petitioner has not established that it has secured 
sufficient physical premises to house its new office. 
First, the AAO concurs with the director that the photographs submitted in response to the request for 
evidence did not clearly depict the petitioner's premises. While it is correct that the petitioner had the option 
of sending its response to the request for evidence by fax, it was foreseeable that black and white photocopies 
of photographs would not translate well over a fax machine. Regardless, the AAO notes other deficiencies in 
the petitioner's evidence which further support a finding that the petitioner failed to meet its burden of proof 
with respect to the physical premises requirement at 8 C.F.R. 5 2 14.2(1)(3)(v)(C). 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 557(b) ("On appeal 
from or review of the initial decision, the agency has all the powers which it would have in making the initial 
decision except as it may limit the issues on notice or by rule."); see also, Janka v. US. Dept. of Transp., 
NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
EAC0801951629 
Page 6 
The petitioner stated on the Form 1-129, Petition for a Nonimmigrant Worker, that it intends to operate a 
bakery and confectionary in the United States. Therefore, it is reasonable to expect the petitioner to secure 
premises that are suitable for the operation of a bakery. The petitioner submitted a lease agreement for 
physical premises that are authorized by the landlord to be used and occupied "only for retail sales of food 
items." There is nothing in the lease agreement indicating that the premises could be used as a bakery, and the 
photographs submitted further confirm that space does not contain facilities for baking, nor would it appear to 
accommodate such facilities. 
On appeal, counsel for the petitioner indicates that the premises acquired were for a "head office" or 
"registered office," while the petitioner intends to engage in the establishment of a bakery after establishing 
its registered office. However, as noted above, the premises acquired, according to the lease agreement, are 
not intended for use as offices. Rather, the premises are to be used as a retail food store. 
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 ofHo, 19 I&N Dec. 582, 591- 
92 (BIA 1988). The AA07s analysis of this issue is hindered by the petitioner's failure to submit a business 
plan clearly describing the nature of the business it intends to operate, and a description of its anticipated 
space requirements for such business. Therefore, the AAO must assume that the petitioner intends to operate 
a bakery as stated on the Form 1-129. The petitioner has not established that the premises secured are 
sufficient for the operation of a bakery, and therefore, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner has established the size of the investment 
in the United States entity, and the financial ability of the foreign entity to commence doing business in the 
United States. See 8 C.F.R. 3 2 14.2(1)(3)(v)(C)(2). 
At the time of filing, the petitioner submitted copies of the foreign entity's tax returns and accompanying 
accountant-prepared financial statements filed with the Government of India for the years 2005-2006, 2004- 
2005, and 2003-2004. The petitioner also submitted "evidence of money transfer to the USA" in the form of 
two wire transfer receipts. One wire transfer receipt shows that transferred $1 1,250 to an 
account held by the beneficiary on October 4, 2007. The second receipt shows a transfer in the same amount 
on the same date, from to the beneficiary's account. The "remittance information" for both 
transactions was "Investment." 
Finally, the petitioner submitted a document titled "Business Investment Plan for 2007-2012" which indicates 
the foreign entity's intent to start a bakery product business in the United States, with an initial contribution of 
"an extra $25,000.00" with further capital contributed as needed. 
In the request for evidence issued on November 1, 2007, the director advised that the record did not contain 
sufficient information regarding the size of the United States investment or the financial ability to commence 
doing business in the United States. The director requested copies of the foreign entity's audited or reviewed 
financial statements and tax returns for 2005 and 2006, and noted that "internally generated financial 
statements will not be acceptable as such documentation is considered self-serving." The director advised that 
EAC 08 019 51629 
Page 7 
if the petitioner submits documentation that includes foreign currency denominations, that it must calculate 
the value in United States dollars, and provide evidence of the source for currency conversion exchange rates. 
Finally, the director requested copies of any bank wire transfers or Customs Forms 4790 that were executed to 
document the transfer of any funds between the foreign business and the United States entity. 
In a response received on January 27, 2008, the petitioner submitted the same documents previously 
submitted, along with a copy of the foreign entity's 2006-2007 Income Tax Return filed with the Indian 
Ministry of Finance on July 2 1, 2006, with accompanying computation of income, balance sheet, and trading 
and profit & loss account, which were filed as attachments to the tax return. All figures on the submitted 
documents were provided in Indian rupees, and the petitioner did not provide the requested currency 
conversions. The petitioner also re-submitted the wire transfer receipts submitted in support of the initial 
filing. 
The director denied the petition concluding that the petitioner failed to submit sufficient evidence of the size 
of the investment in the U.S. company and the financial ability of the foreign entity to commence doing 
business in the United States. The director therefore concluded that the record does not support a finding that 
the petitioner will support an executive or managerial position within one year. The director stated that, 
although requested, "no audited or reviewed financial statements for the years 2005 and 2006 were received 
with your response." The director acknowledged receipt of balance sheets and computation of income for tax 
purposes, but found the petitioner's response to the request for evidence to be insufficient. 
On appeal, counsel for the petitioner asserts that the petitioner submitted copies of its actual tax returns that 
were filed with the government of India. Counsel contends that the documents were not internally generated, 
as suggested by the director, but are government documents prepared by the foreign entity's accountant for 
filing with India's taxation authorities. Counsel asserts that such evidence "clearly suffices the financial 
ability concerns." 
Preliminarily, the AAO concurs with counsel that it does appear that the director overlooked or otherwise 
failed to consider the foreign entity's tax returns, which were among the documents specifically requested by 
the director as evidence of the financial status of the foreign entity. As noted above, the AAO's review is 
conducted on a de novo basis; therefore, the AAO will herein address the petitioner's evidence and eligibility 
here. 
Upon review of all of the evidence submitted, the AAO cannot find that the evidence of receord "clearly 
suffices the financial ability concerns" as contended by counsel. The petitioner has not established the size of 
the United States investment or the financial ability to commence doing business in the United States, as there 
are several deficiencies in the evidence of record. 
First, the petitioner did not, in fact, submit a complete response to the director's request for evidence, as it 
submitted all financial documents for the foreign entity with currency provided in Indian rupees. The director 
specifically instructed the petitioner to submit all financial information in United States dollars and to provide 
the source of the currency conversion rates used. Failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. $ 103.2(b)(14). 
EAC 08 019 51629 
Page 8 
Second, the petitioner has not provided any explanation of its anticipated capital requirements or start-up 
costs for the commencement of business in the United States. Therefore, although the record contains a half- 
page "business investment plan" indicating that $25,000 will be invested in the U.S. company, there is no way 
to discern whether this investment would be adequate for the petitioner to commence its intended operations. 
Absent some explanation of the amount of cash required to pay for the company's start-up costs, which are 
typically itemized in a company's business and financial plan, the AAO cannot conclude that an investment of 
this size would be sufficient. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft ofCa2ifornia7 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, the record as presently constituted contains no evidence of any funds already provided to the U.S. 
entity for the purpose of establishing the new company, nor any evidence that the company even had a bank 
account as of the date of filing. The evidence of record shows that two individuals, who have not been 
specifically linked to the foreign entity or its partners, transferred funds totaling $22,500 from unidentified 
accounts in India to the beneficiary's personal account in the United States. Therefore, the wire transfer 
receipts are of little evidentiary value in establishing an investment in the U.S. company. 
Overall, the evidence submitted does not clearly establish the size of the foreign entity's investment in the 
United States entity, nor does it demonstrate that the company had or would have sufficient funds to meet its 
anticipated start-up costs at the time the petition was filed. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, the petitioner has not submitted sufficient evidence to establish that the 
beneficiary would be employed in a managerial or executive capacity within one year of the petition approval, 
as required by 8 C.F.R. 5 214.2(1)(3)(v)(C). The petitioner has not submitted a business plan for the U.S. 
office, or otherwise provided evidence regarding the proposed nature of the office or describing the scope of 
the entity, its organizational structure, and its financial goals. 8 C.F.R. 214.2(1)(3)(v)(C)(I). The petitioner 
simply states that the U.S. company will engage in the same business as the foreign entity, estimates that it 
will have four employees, and indicates that it anticipates annual income of $240,000. The record contains no 
hiring plan, no explanation as to what types of employees will be hired or when they will be hired, and no 
financial projections supporting the petitioner's assertions. The limited information provided regarding the 
nature and scope of the business falls significantly short of meeting the evidentiary standard in the 
regulations. The AAO has no basis to determine how many employees the company intends to hire by the end 
of the first year of operations, or whether the proposed staff would reasonably relieve the beneficiary from 
performing non-managerial and non-executive tasks associated with operating the petitioner's business. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. at 165. The AAO cannot speculate as to 
when the proposed employees might be hired or otherwise determine how many employees the company 
would support at the end of the first year of operations, or who would be performing the day-to-day, non- 
managerial functions of the petitioner's business. 
Furthermore, the petitioner has provided an excessively vague description of the beneficiary's proposed duties 
that merely paraphrases the statutory definitions of managerial and executive capacity. See sections 
101(a)(44)(A) and (B) of the Act. For example, the petitioner indicated that the beneficiary will develop long 
EAC0801951629 
Page 9 
range goals and objectives, direct and coordinate activities, formulate and administer company policies, 
review and analyze activities, costs, operations, and discuss required changes in goals or objectives. 
Conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely repeating 
the language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Overall, the vague job description provided for the beneficiary, the lack of a detailed business plan, hiring 
plan or financial projections, considered with the lack of evidence of the size of the U.S. investment as 
discussed supra, prohibits a determination that the petitioner could realistically support a managerial or 
executive position within one year. For this additional reason, the petition cannot be approved. 
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 decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th 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). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if she shows that the AAO abused it discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d at 1043. 
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. Here, that burden has not been met. 
ORDER: The appeal is dismissed.