dismissed L-1A Case: Business Education

identieing data deleted to 
prevent c1ea1-1: ! mwamnted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Abe.. N.W.. Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
File: SRC 05 068 50500 Office: TEXAS SERVICE CENTER Date: SEp 2 CJ 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)( 15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1(a)(15)(L) 
IN 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. 
Administrative Appeals Office 
SRC 05 068 50500 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. 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 in the position of president 
to open a new office in the United States as an L-LA nonimmigrant intracompany transferee pursuant to 
section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 10 1 (a)(15)(L). The 
petitioner, a corporation organized under the laws of the State of Florida, claims to be en a ed in the business 
education, consulting, and exporting, and alleges that it is the affiliate of 
, both business entities located in Colombia. 
and 
The director denied the petition concluding that the petitioner failed to demonstrate that the intended United 
States operation, within one year of the approval of the petition, will support an executive or managerial 
position for failing to establish that an investment had been made in the United States operation. 
The Ijetitioner subsequently filed an appeal. 
 The director declined to treat the appeal as a moiion and 
forwarded the appeal to the AAO for review. On appeal, counsel to the petitioner asserts that the petitioner 
had submitted adequate evidence that a substantial United States investment had been made even though 
counsel's initial explanation of the documents establishing this fact may have been lacking. In support of the 
appeal, counsel submitted a brief and additional evidence. 
To establish eligibility for the L-l 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. 3 214.2(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 employnlent abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
SRC 05 068 50500 
Page 3 
education, training, and employment qualifies hirnlher 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. 
In addition, the regulation at 8 C.F.R. 5 214.2(1)(3)(~) 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, 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: 
(1) 
 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. 
The first issue in this proceeding is whether the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position. 
In the initial petition, the petitioner states that it intends to establish a business in the United States which will 
(1) export United States products to Colombia; (2) utilize United States professionals and experts to provide 
computer training seminars via video-conferencing to the foreign entity's facility in Colombia; and (3) 
establish a computer training facility in the United States. Other than a copy of a lease, articles of 
incorporation for the petitioner, occupational license, and a copy of a bank statement showing a balance of 
$3,363.13, the petitioner submitted no evidence relevant to the organizational structure, scope, or goals of the 
United States entity. Moreover, the petitioner failed to submit any evidence regarding the size of the United 
States investment or the organizational structure of the foreign entity. 
On February 7. 2005, the director requested substantial additional evidence regarding both the foreign entity 
and the United States entity including, ii7te1- aliu, evidence of the size of the United States investment, an 
SRC 05 068 50500 
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organizational chart, evidence of ownership and control of the United States operation, and information 
regarding proposed staffing levels for the United States entity. 
In response to the request for evidence, counsel to the petitioner explained the petitioner's business and 
staffing plan as follows: 
[The petitioner] intends to hire one additional employee in the 1" Quarter 2005 for 
administrative help in finalizing contracts with vendors and enroll students into the 
proposed instructional courses. Additionally, [the petitioner] is considering sponsoring 
one of the parent's [sic] corporation's instructors in Colombia to design a curriculum and 
course in the Miami office. Given the success of their student enrollment, [the petitioner] 
will contract teachers to conduct the courses and as the market demands, expects to hire 
full-time teachers. This business plan worked in Colombia and is expected to work [in 
the United States]. Lastly, [the petitioner] is in a position to offer computer network and 
software support to both its international clie'nts and local clients. 
The petitioner also supplied an organizational chart for one of the foreign entities, Matriz, S.A., identifying 
the beneficiary as the president and placing him at the top of the organization. 
Finally, in response to the director's request for evidence regarding capitalization of the United States entity, 
counsel to the petitioner explained that the beneficiary withdraws cash from the foreign entity's bank account 
via automatic teller machines (ATMs) in the United States, and provided evidence that the beneficiary 
withdrew $300.00 via an ATM on February 1, 2005. Counsel further explained that the beneficiary 
withdraws money from his personal foreign account (into which the foreign entity deposits money), and that 
the petitioner borrowed approximately $3,522.45 from a lender on January 12,2005 to pay business expenses. 
On February 17, 2005, the director denied the petition. The director determined that the petitioner failed to 
demonstrate that the intended United States operation, within one year of the approval of the petition, will 
support an executive or managerial position because the petitioner failed to establish that an investment had 
been made in the United States operation. 
On appeal, counsel to the petitioner asserts that the petitioner had submitted adequate evidence that a 
substantial United States investment had been made even though counsel's initial explanation of the 
documents establishing this fact may have been lacking. In support of the appeal, counsel submitted a brief 
and additional evidence, including bank statements purporting to establish that the beneficiary actually has 
withdrawn approximately $1 1,000.00 via ATMs from foreign bank accounts to capitalize the United States 
operation. These withdrawals occurred both before and after the filing of the current petition. 
Upon review, the petitioner's assertions are not persuasive. 
As a threshold matter. it must be noted that the bank statements and other evidence submitted on appeal by 
the petitioner to prove an investment in the United States operation will not be considered by the AAO in 
adjudicating this appeal. The petitioner was put on notice of the required evidence and given a reasonable 
SRC 05 068 50500 
Page 5 
opportunity to provide it for the record before the visa petition was adjudicated. On February 7, 2005, the 
director specifically requested that the petitioner: 
[slubmit evidence of the funding or capitalization of the United States company, such as 
copies of wire transfers showing transfers of funds from foreign organization, evidence of 
financial resources committed by the foreign company, copies of bank statements for 
checking/ [sic] and saving accounts, profit and loss statements o[r] other accountant's 
reports. 
The petitioner failed to submit the requested evidence (other than the previously submitted bank statements 
and evidence of ATM withdrawals) and now attempts to supplement this response on appeal. However, the 
AAO will not consider this evidence for any purpose. See Matter of'Soriano, 19 I&N Dec. 764 (BIA 1988); 
Mutter qf Obuigbenr~, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. 
Moreover, because much of the evidence submitted on appeal concerns ATM withdrawals made after the 
filing of the petition on January 10, 2005, it would be of no evidentiary value in this matter even if 
considered. This is also the case for the receipts submitted in response to the director's request for evidence 
establishing that the beneficiary withdrew $300.00 on February I, 2005, and signed a promissory note for a 
business loan on January 12, 2005.' 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 ef Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). 
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. 5 214.2(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 full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products andlor 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 
I 
It should also be noted that, because the promissory note was not translated, the AAO cannot determine 
whether the evidence supports the petitioner's claims. ,%c 8 C.F.R. 4 103.2(b)(3). 
 Accordingly, for this 
additional reason, the evidence is not probative and will not be accorded any weight in this proceeding. 
SRC 05 068 50500 
Page 6 
entrepreneur immigrant visa classification, Mutter- qff'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 
- 
 therefor. Most importantly, ihe business plan must be credible. 
The petitioner has failed to present evidence sufficient to prove that the intended United States operation, 
within one year of the approval of the petition, will support an executive or managerial position. The petitioner 
provided no information regarding an inkestment in the United States entity other than evidence that a bank 
account had been opened, and that it had a balance of $3,363.13 on or about the day the petition was executed. 
Therefore, as of the date of the petition, the petitioner has failed to establish a sufficient investment in the United 
States operation which would permit the foreign entity to commence doing business in the United States. 
Likewise, the petitioner failed to submit a business plan establishing that the enterprise will likely succeed and 
rapidly expand as it moves away from the developmental stage to full operations, where there would be an 
actual need for a manager or executive who will primarily perform qualifying duties. While the petitioner 
outlined the basic strategy of establishing a computer training facility in Florida and exporting materials to 
Colombia, the vague summaries provided by the petitioner and its counsel do not outline a credible plan, 
especially when coupled with the lack of evidence of any United States investment, for expansion beyond the 
initial start-up phase. Also, the petitioner failed to corroborate its plan, including financial goals and the 
scope of the entity, with any documentation, studies, or independent analyses. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of' Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter- of Treasul*e Craji qf' 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Finally, the petitioner failed to provide sufficient evidence describing the organizational structure of the 
foreign entity. While the petitioner did provide an organizational chart, the information on this chart is 
inconsistent with the 2004 payrolJrecordsoreign entity- 
 The chart shows the beneficiary 
-1 
$ miBger, 
 who, in turn, superv~ses an operations manager,m 
is not listed. Likewise. while the chart 
not appear in the payroll records. 
 The 
SRC 05 068 50500 
Page 7 
petitioner makes no attempt to explain why the chart shows seven employees but the payroll records only 
account for five. 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 of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). Therefore, the petitioner's description of the organizational structure of 
the foreign entity is insufficient. 
Accordingly, the petitioner has not established that the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position as required by 8 C.F.R. $ 
2 14.2(1)(3)(v)(C), and for this reason the petition may not be approved. 
Beyond the decision of the director, the petitioner did not establish that sufficient physical premises to house 
the new office have been secured as required by 8 C.F.R. g 214.2(1)(3)(v)(A). 
- 
 In the initial petition, the petitioner provided a copy of a "Warehouse Lease" for 1,150 square feet of space 
dated November 16, 2004 as evidence that the petitioner had secured sufficient physical premises to house the 
proposed United States operation. However, paragraph 8(P) states that the petitioner "shall occupy the 
premises for computer parts and for no other purpose." Also, paragraph 5(J) indicates that the petitioner 
shall use the parking spaces directly in front of the leased premises. According to the photographs submitted 
on appeal, the number of parking spaces in front of the premises appears limited. Therefore, since the 
petitioner's business plan includes the operation of a computer training facility, the physical premises secured 
will not be sufficient. Not only does the lease fail to permit this use, but the physical surroundings are not 
compatible with the operation of a training facility. For this additional reason, the petition may not be 
approved. 
Beyond the decision of the director, the petitioner also failed to establish that the petitioner and the 
organization which employed the alien overseas are qualifying organizations as required by 8 C.F.R. $ 
2 14(1)(3)(i). 
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States employer are the same employer (i.e., one 
entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See generally section 
101(a)(15)(L) of the Act; 8 C.F.R. 3 214.2(1). If one individual owns a majority interest in a petitioner and a 
foreign entity, and controls those companies, then the companies will be deemed to be affiliates under the 
definition even if there are multiple owners. In the current case, the petitioner alleges that the beneficiary 
owns a majority interest in, and controls, both the foreign employer and the petitioner. However, because the 
petitioner failed to establish the ownership and control of the petitioner, the petition may not be approved. 
In the initial petition, the petitioner provided no evidence establishing ownership or control of the United 
States entity other than a copy of the articles of incorporation. On February 7, 2005, the director requested 
additional evidence establishing ownership and control of the petitioner. In response to the director's request 
for evidence, the petitioner provided a copy of the United States entity's bylaws, which identify the 
beneficiary in paragraph 1.2 as the owner of 54.5% of the petitioner's stock. However, the petitioner did not 
SRC 05 068 50500 
Page 8 
provide a copy of any stock certificates or a stock register even though paragraphs 1.1 and 1.2 of the bylaws 
mandate their existence. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter ofchurch Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Merlical Systems, Iizc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Mutter 
qf-Church Scientology Internutiorzal, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, a copy of the corporation's bylaws alone 
is not sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate 
entity. The corporate stock certificate ledger, stock certificates, and the minutes of relevant shareholder 
meetings must also be examined to determine the total number of shares issued, the exact number issued to 
the shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Mattel* of Siemens Medical Systems, Inc., sz~pra. Without full disclosure of all relevant documents, 
Citizenship and Immigration Services (CIS) is unable to determine the elements of ownership and control. 
Accordingly, the petitioner did not establish that the petitioner and the organization which employed the alien 
overseas are qualifying organizations as required by 8 C.F.R. 5 214(1)(3)(i), and for this reason the petition 
may not be approved. 
Beyond the decision of the director, according to Florida state corporate records, the petitioner's corporate 
status in Florida was "administratively dissolved" on September 16, 2005. Therefore, since the corporation 
may not cany on any business except that necessary to wind up and liquidate its affairs, and the petitioner has 
not taken steps under Florida law to seek reinstatement, the company can no longer be considered a legal 
entity in the United States. See Fla. Stat. 607.1421 (2006). Therefore, as this clearly and unequivocally 
renders the petitioner ineligible for the classification sought, the petition may not be approved for this 
additional reason. 
Beyond the decision of the director, the petitioner failed to establish that the beneficiary had been employed 
in a primarily managerial or executive capacity with the foreign entity for one year within the preceding three 
years. 
Title 8 C.F.R. 5 214.2(1)(3)(v)(B) requires that the petitioner prove that 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." 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
SRC 05 068 50500 
Page 9 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organiz:ation, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisbr is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The petitioner does not clarify whether the beneficiary is claiming to have been primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under section 
101(a)(44)(B) of the Act. A beneficiary may not claim to have been employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. If the petitioner is indeed 
representing the beneficiary as both an executive and a manager, it must establish that the beneficiary meets 
each of the four criteria set forth in the statutory definition for executive and the statutory definition for 
manager. 
In the initial I- 129 petition, the petitioner provided virtually no information regarding the beneficiary's duties 
with the foreign employer. While the petitioner repeatedly characterized the beneficiary as a manager of the 
foreign employer, his exact duties or job description were never disclosed. The enlployment attestation letters 
appended to the initial petition simply describe the beneficiary as "academic director" and "teacher" 
SRC 05 068 50500 
Page 10 
S.A.) and as a "manager1 Finally, the organizational chart, which is already of questionable 
evidentiary value given that it is inconsistent with the payroll records, fails to describe the duties of the 
subordinate employees. Specifics are clearly an important indication of whether a beneficiary's duties are 
primarily executive or managerial in nature; otherwise meeting the definitions would simply be a matter of 
reiterating the regulations. Fedin Bros. Co., Ltd v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989), ufd, 905 F.2d 
41 (2d. Cir. 1990). Since the AAO will look first to the petitioner's description of the job duties when 
examining the executive or managerial capacity of the beneficiary, it is essential that the petitioner provide 
very specific information regarding the beneficiary's duties abroad. See gener.ully 8 C.F.R. 4 214.2(1)(3)(~). 
Therefore, given the lack of evidence, it is impossible for CIS to determine whether the beneficiary had been 
employed in an executive or managerial capacity overseas. 
Accordingly, the petitioner did not establish that 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 as required 
by 8 C.F.R. 5 2 14.2(1)(3)(v)(B), and for this reason the petition may not 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. Unitell Stutes, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afcl, 345 F.3d 683 
(9th Cir. 2003); see ulso Dol- 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 for the above stated reasons, with each considered as an independent and 
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO1s 
enumerated grounds. See Spencer Enterpt<ises, Inc., 229 F. Supp. 2d at 1043. 
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. 
Section 291 of the Act, 8 U.S.C. 4 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.