dismissed L-1A Case: Beverage Import

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: WAC-04- 103-543 05 Office: CALIFORNIA SERVICE CENTER Date: kUf$ 7 ~~~~ 
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(] 5)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
+obert P. Wiemann, Director 
y Administrative Appeals Office 
WAC-04-1 03-54305 
Page 2 
DISCUSSION: The Director, California 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 dismissed. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its Vice President and 
Chief Financial Officer as an L- 1A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) 
of the Immigratien and Nationality Act (the Act), 8 U.S.C. $ 1101(a)(15)(L). The petitioner is a corporation 
organized in the State of California that imports traditional Japanese alcoholic beverages. The petitioner 
claims that it is the subsidiary of located in Miyazaki-ken, Japan. The beneficiary 
was initially approved for L-1 status in the United States to open a new office, and the petitioner now seeks to 
extend the beneficiary's stay. 
The director denied the petition concluding that the beneficiary is not eligible for an extension of his status in 
order to open a new office, as he has already been afforded the maximum length of time permitted by the 
regulation at 8 C.F.R. $ 214.2(1)(7)(i)(A)(3). 
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 the beneficiary 
is eligible for an extension of his L-1A status. Counsel states that an inspector made an error on the 
beneficiary's Form 1-94 Departure Record upon his entry to the United States, granting the beneficiary a 
period of stay in L-1A status that incorrectly extends beyond the ending date of the prior petition. Counsel 
asserts that this error has placed the beneficiary in the anomalous position of being in lawful L-1A status 
according to his Form 1-94, yet without having a current L-1A approval notice with which to travel abroad 
and apply for a new visa, then re-enter the United States. In support of these assertions, counsel submits a 
brief and additional evidence. 
On November 26, 2002, the Immigration and Naturalization Service (now Citizenship and Immigration 
Services (CIS)) approved the petitioner's L-1A petition (WAC-03-046-54898) on behalf of the beneficiary to 
open a new office in the United States, valid from March 5, 2003 to March 5, 2004. On May 13, 2003 the 
United States Embassy in Tokyo, Japan issued an L-1A visa to the beneficiary, valid until March 5, 2004. 
The beneficiary was admitted to the United States at Los Angeles, California on February 2, 2004. Upon 
inspection, an immigration officer issued a Form 1-940 the beneficiary that reflects that he is 
authorized to remain in the United States in lawful L-1A status until February 1, 2005, or one year from the 
date of his entry. 
On March 3, 2004, the petitioner filed the present petition requesting an extension of the beneficiary's L-1A 
status. In an attached letter, counsel noted that the petition was filed within the validity period of the initial 
L-1A approval, and that the petitioner chose not to rely on the February 1, 2005 L-1A expiration date that 
appears on the beneficiary's Form 1-94. On Form 1-129 Supplement EL, in Section 1 the petitioner checked 
the box that indicates that the bene'ficiary is coming to the United States to open a new office. In counsel's 
letter, he stated that "we would like to request for an additional one (1) year extension as a start-up company." 
Counsel further noted that the beneficiary did not enter the United States until February 2, 2004 "due to 
lengthy processing times in [the petitioner's] liquor license applications, which have now been approved . . . ." 
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On March 12, 2004, the director denied the petition. The director found that the beneficiary is not eligible for 
an extension of his status in order to open a new office, as he has already been afforded the maximum amount 
of time allowed by the regulations. See 8 C.F.R. 3 214.2(1)(7)(i)(A)(3). The director referenced the 
beneficiary's Form 1-94, and noted that the expiration date shows that the beneficiary was permitted a one- 
year period in order to open a new office. The director stated that the beneficiary may remain in the United 
States for the duration permitted under his Form 1-94, but that an extension of his status in order to open a 
new office is "prohibited per regulation." 
On appeal, counsel explains the history of the present matter as discussed above. Counsel requests that CIS 
either approve the petition to extend the beneficiary's status until March 5, 2005, or approve the petition 
without an extension for a period congruent with the expiration of the beneficiary's Form 1-94. 
Upon review, it is apparent that errors have been made by both CIS and the petitioner. As noted above, the 
beneficiary was previously approved for L-1A status to open a new office from March 5, 2003 to March 5, 
2004. The United States Embassy in Tokyo correctly issued a visa to the beneficiary valid until the expiration 
of the beneficiary's approved L-1A status, or March 5, 2004. Yet, upon entry, the beneficiary was 
erroneously issued a Form 1-94 that authorizes a stay in L-1A status beyond the expiration of the L-1A 
approval notice. The regulation at 8 C.F.R. 5 214.2(1)(11) provides that "[tlhe beneficiary of an individual 
petition shall not be admitted for a date past the validity period of the petition." Thus, the beneficiary's Form 
1-94 was issued in error, and should not have authorized his stay in L-1A status beyond March 5,2004. 
The petitioner correctly chose not to rely on the expiration date of the Form 1-94, and filed the present petition 
for an extension of the beneficiary's status within the period approved under the prior new office petition. 
Thus, the petition was filed in a timely manner. Yet, as noted above, the petitioner indicated on Form 1-129 
Supplement EL, in Section 1 that the beneficiary will remain in the United States to open a new office. In 
counsel's letter, he noted that the petitioner seeks additional time "as a start-up company." Yet, as correctly 
stated by the director, the regulations allow a beneficiary a maximum of one year in L-1 status in order to 
open a new office. 8 C.F.R. tj 214.2(1)(7)(i)(A)(3). There is no provision in CIS regulations that allows for an 
extension of this one-year period. The beneficiary has already been approved for a one-year period in L-1A 
status in order to open a new office under the prior petition, valid from March 5,2003 to March 5,2004. 
The director stated that the beneficiary was granted L-1A status to open a new office from February 2, 2004 
to February 1, 2005, the dates presented on the beneficiary's Form 1-94. The director provided that the 
beneficiary's L-1A status "remains effective" until the expiration on the Form 1-94. Yet, as the Form 1-94 was 
issued contrary to the regulations, it is not a valid document for determining the beneficiary's status. The one- 
year period of time that the beneficiary was granted L-1A status as contemplated by 8 C.F.R. 
3 214.2(1)(7)(i)(A)(3) is from March 5,2003 to March 5,2004, the dates presented on the prior L-1A approval 
notice. The director's comments in this regard will be withdrawn. 
Counsel stated that the beneficiary did not enter the United States until February 2, 2004 "due to lengthy 
processing times in [the petitioner's] liquor license applications . . . ." However, this circumstance does not 
negate the fact that the beneficiary was approved for a one-year period. The regulations clearly state that a 
new office petition "may be approved for a period not to exceed one year," irrespective of the length of time 
WAC-04-1 03-54305 
Page 4 
the beneficiary actually spends in the United States. 8 C.F.R. rj 214.2(1)(7)(i)(A)(3). The fact that the 
beneficiary did not enter the United States until 11 months after he was approved for L-1A status does not 
render him eligible for additional time in order to open a new office. The director correctly found that the 
present petition may not be approved as an extension of the beneficiary's L-1A status in order to open a new 
office. See 8 C.F.R. fj 214.2(1)(7)(i)(A)(3); 8 C.F.R. fj 214.2(1)(3)(~). 
Yet, when a petition for an extension of a beneficiary's L-1A status is requested after the beneficiary has been 
afforded a period of stay in L-1A status to open a new office, that petition is treated as a new office extension 
under the requirements of 8 C.F.R. 5 214.2(1)(14)(ii). 
Generally, to establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the 
criteria outlined in section 10 1 (a)(15)(L) of the Act. Specifically, a quali@ing 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. rj 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 involved specialized knowledge and that the alien's prior 
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. fj 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
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(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a management or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
Thus, the director should have adjudicated the present petition as a request for an extension of stay after 
opening a new office. The director's decision does not reflect that he analyzed the petitioner's eligibility in 
light of each of the requirements of section 101(a)(15)(L) of the Act and 8 C.F.R. 5 214.2(1). However, 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. Unitedstates, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 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 AAO will herein discuss the petitioner's eligibility for L-1A classification. 
The petitioner has failed to establish that it has been doing business for the previous year, as required by 
8 C.F.R. tj 214,2(1)(14)(ii). If the business is not sufficiently operational after one year, the petitioner is 
ineligible by regulation for an extension. The regulation at 8 C.F.R. 5 214.2(l)(ii)(H) defines the term "doing 
business" as: 
[Tlhe regular, systematic, and continuous provision of goods and/or services by a qualifying 
organization and does not include the mere p.resence of an agent or office of the qualifying 
organization in the United States and abroad. 
As noted above, the petitioner's prior petition in order to open a new office was approved for the period from 
March 5, 2003 to March 5, 2004. Yet, the beneficiary, as the petitioner's sole employee, did not enter the 
United States until February 2, 2004. Thus, it appears that the petitioner had no employees for the first 11 
months of the one-year period prior to filing the present petition. Further, the petitioner submitted no 
evidence that it had begun to sell its products as of the filing date. 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 of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). While the petitioner provided that it was delayed in receiving a liquor 
license, it failed to explain the reasons for the delay or to submit relevant documentation. In the petitioner's 
letter of February 24, 2004, it stated that its "active operations will commence when the company's . . . 
products arrive in the U.S. [The petitioner] estimate[d] that to happen in the month of May 2004." Thus, the 
evidence of record reflects that the petitioner was not engaged in "the regular, systematic, and continuous 
WAC-04- 103-54305 
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provision of goods and/or services" at any time during the one-year period prior to filing the present petition. 
For this reason, the petition may not be approved. 
Further, the petitioner has failed to show that the beneficiary would be employed in a primarily managerial or 
executive capacity. See 8 C.F.R. 5 214.2(1)(3)(ii). The beneficiary was the sole employee at the time the 
petition was filed. The petitioner has not established that, at the time the petition was filed, it employed 
sufficient subordinate staff members in order to free the beneficiary from performing primarily non- 
qualifying duties. In a letter submitted with the initial petition, the petitioner indicated that it intends to hire 
additional staff including five new sales representatives, one manager, and three support staff. However, the 
petitioner must establish eligibility at the time of filing the nonimmigrant 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 Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The petitioner has not shown that, at 
the time of filing the petition, the beneficiary would be relieved from performing primarily non-managerial or 
non-executive duties. See section 101(a)(44)(A) and (B) of the Act, 8 U.S.C. $5 1 10 I(a)(44)(A) and (B). For 
this additional reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 29 1 of the Act, 8 U.S.C. 5 136 1. The petitioner has not met this burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.