dismissed L-1A Case: Chemical And Pharmaceutical Import/Export

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 02 21 9 5 1677 Office: NEBRASKA SERVICE CENTER Date: Ag@ 0 3 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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. 
I 
obert P. Wiemann, Director 
Appeals Office 
LIN 02 219 51677 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Nebraska 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 established in May of 2002 
and claims to be in the business of importing and exporting dyes, chemicals, pharmaceuticals, and bulk drugs. 
The petitioner claims that the U.S. entity is a subsidiary of United Chemical Industries, located in Gujarat, 
India. It seeks to employ the beneficiary temporarily in the United States as the vice president and general 
manager of its new office for one year, at an annual salary of $64,000.00. The director determined that the 
evidence was not sufficient to establish: (1) that the foreign entity has the financial ability to remunerate the 
beneficiary and commence doing business in the United States; or (2) that the U.S. entity will support a 
managerial or executive position within one year of the approval of the petition. 
On appeal, the petitioner disagrees with the director's determination and asserts that there has been sufficient 
evidence submitted to show that the foreign entity will be able to remunerate the beneficiary and commence 
doing business in the United States, and will be able to support a managerial or executive position within one 
year of the approval of the petition. 
To establish L-1 eligibility under section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 10 1 (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. 5 214.2(1)(l)(ii) states, in part: 
Intracornpany tvansfevee 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 finn 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. $ 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 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 
LIN 02 219 51677 
Page 3 
(C) The intended United States operation, withn one year of the approval of the petition, 
will support an executive or managerial position as defmed in paragraphs (l)(l)(ii)(B) 
or (C) of ths 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 petitioner has submitted sufficient evidence to establish that 
the foreign entity has sufficient capital to capitalize the U.S. entity and commence doing business in the 
United States, and remunerate the beneficiary for his services. 
In a letter dated June 4, 2002, the petitioner stated that the foreign entity had been established since May 8, 
1990, and was owned by the same three partners who own the U.S. entity. The petitioner asserted that within 
the first year of operation the U.S. entity anticipates employing four full-time employees, and estimates a net 
income after taxes to be $2.1 million. As evidence, the petitioner submitted copies of the foreign entity's 
income tax returns, auditor's reports, and banker's certificate from Bombay Mercantile Co-operative Bank 
Limited. The petitioner also submitted copies of the U.S. entity's Articles of Incorporation, bank statements 
from the Mutual Bank, company business plan, company organizational chart, stock certificates, and stock 
transfer ledger. 
In response to the director's request for additional evidence to address the financial issues, the petitioner 
stated, in part: 
The U.S. entity has opened a bank account with [sic] and transferred funds to make a total 
deposit of US $25,000 as of the last statement enclosed dated October 9,2002. An provision 
[sic] of a further funds [sic] to the tune of US$50,000 has been made by the Indian parent 
company by way of application filed with the bankers in India on the prescribed A-2 Form 
. . . . A project report had been made prior to deciding the set up of the US subsidiary for 
ongoing business, which highlights the end out comes [sic] with financial projections of the 
US Corporation to become self-sufficient and start to make profits. The U.S. Corporation 
will have sales exceeding gross turn over [sic] of about US$3.3 million. The estimated net of 
the first year before tax is US$1.2 million. 
In reference to the foreign entity's ability to remunerate the beneficiary, the petitioner stated: 
The US entity has opened a bank account with $25,000.00 towards the initial set up and start 
up of business. Once the business is up and running, the money generated would be used by 
the US corporation to expand the business. The beneficiary will be paid the salary from the 
Indian corporation till such time, as the corporation is not making enough money to support 
the beneficiary. Also, once the visa is approved, the Reserve Bank of India officially would 
be able to transfer funds to the US corporation vide [sic] form A 2 under the category of 
"Repatriation of foreign investment in subsidiaries/branches[.]" 
LIN 02 219 51677 
Page 4 
In reference to the foreign entity's ability to commence doing business in the United States, the petitioner 
stated, in part: 
that the Indian corporation is operating at a deficit and that the business is operating at a loss 
is not true. Due to the economical [sic] instability of the State of Gujarat, India due to 
[elarthquake, [dlrought, and riots, the businesses are suffering a great loss. But, the 
corporation has been granted loans to do business and invest in business, hence the 
corporation will be able to support the beneficiary based on the facts that the banks will be 
funding the project. Also, due to the instability in the business, the Indian corporation has 
opted to set up a subsidiary in the United States and do business with the third world 
countries through the United States and make up the losses that the corporation is suffering. 
In a letter of support, dated October 3 1, 2002, the petitioner stated that the foreign entity had submitted a loan 
application with the Reserve Bank of India for the release of funds through Form A2 application and 
anticipates the transfer of such funds to the United States by the first week of December 2002. The petitioner 
also stated that the foreign entity had made a loan application with IDBI Bank. 
The petitioner submitted as evidence copies of its organizational chart, a bank letter from the Mutual Bank of 
Chicago, a proposed business plan, a letter from the foreign entity indicating its intent to financially support 
the U.S. entity, a loan application to Allahabad Bank requesting funding for the U.S. corporation, and 
statements of account from Bombay Mercantile Co-operative Bank Limited in India. 
The director determined that the evidence submitted was not sufficient to establish that the petitioner had 
substantially complied with the requirements of 8 C.F.R § 214.2(1)(3)(~), concerning the capitalization of the 
U.S. entity. 
On appeal, the petitioner argues that sufficient evidence has been submitted to demonstrate that the foreign 
entity has sufficient capital to capitalize the U.S. entity's start-up and to remunerate the beneficiary for his 
services. The petitioner asserts that the U.S. entity was established to import and export various dyes, 
chemicals, pharmaceuticals, and bulk drugs. The petitioner anticipates a first year net profit by the U.S. 
entity, after taxes, of $1.2 million. The entity's bank statements show that at the time of filing the petition, it 
had $25,000 in its' business bank account. On appeal, the petitioner submitted a verification letter from the 
Mutual Bank, which indicated that the U.S. entity's bank balance as of February 25, 2003, was $59,942.75, 
with an average balance of $25,722.45. The petitioner submitted evidence that demonstrates that the foreign 
entity had submitted a business loan application in the amount of $50,000.00, which had not yet been 
approved. The petitioner stated that the beneficiary's salary in the United States would be $64,000.00. The 
petitioner also submitted a business plan containing inventory and profit projections. 
The evidence submitted demonstrates that the foreign entity does not have sufficient start up capital to 
remunerate the beneficiary or to commence doing business in the United States. The beneficiary's proposed 
salary is in excess of the $25,000 deposited in the U.S. entity's business account. The business plan does not 
contain sufficient information to determine the U.S. entity's financial viability. Furthermore, the foreign 
entity's bank records, corporate income tax records, and audited financial statements demonstrate that the 
entity is operating at a deficit and has more than ten secured and unsecured loans outstanding. Although the 
petitioner stated that the foreign entity had made a loan application with IDBI Bank, there is no indication in 
the record that any such application was approved. Contrary to the petitioner's contentions, there is nothing 
LIN 02 219 51677 
Page 5 
in the record that demonstrates that the foreign bank's willingness to approve the A-2 loan application is 
predicated upon the approval of the instant petition. A visa petition may not be approved based on 
speculation of future eligibility or after the beneficiary becomes eligible under a new set of facts. See Matter 
of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971). 
Even if the AAO were to take into consideration the U.S. entity's current bank balance of $59,942.75 there 
still would be insufficient evidence to show that there was sufficient capital to commence doing business and 
to remunerate the beneficiary. There is nothing in the record to substantiate that there are sufficient start up 
funds to cover employee's salaries, cost of doing business, cost of inventory, rent, transportation, and other 
incidental costs of doing business in the United States. 
A second issue in this proceeding is whether the petitioner has submitted sufficient evidence to establish that 
the U.S. entity would be in a position to support a managerial or executive position within one year of 
operation. 
Based upon a review of the record and evidence submitted in this matter, the AAO must conclude that the 
petitioner has failed to establish that the U.S. entity will be able to support a managerial or executive position 
within one year of operation. 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. $ 214.2(1)(3)(v)(C). This evidence should demonstrate a realistic expectation that the enterprise will 
succeed and rapidly expand as it moves 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. In response to the 
director's request for additional evidence, the petitioner noted that it anticipated employing four additional 
employees within the first year of operation. Based upon the financial and staffing projections made, it would 
be unrealistic to conclude that the U.S. entity will be able to support a managerial or executive position within 
one year of the approval of the petition. Furthermore, with the foreign entity's current financial status, it is 
unlikely that the U.S. entity will receive the monetary support needed to sustain its operations, let alone a 
managerial or executive position. The requirements of 8 C.F.R 9 214.2(1)(3)(v)(C) have not been met. 
Accordingly, the appeal will be dismissed. 
Although not directly addressed by the director in his decision, there is insufficient evidence contained in the 
record to show that the petitioner has secured sufficient physical premises to house the new office. The 
petitioner submitted a lease agreement, dated May 1, 2002, which demonstrates that a lease agreement was 
entered into by the U.S. entity as lessor and Bharti Pate1 as the lessee. The record shows that the U.S. entity 
leased premises to an individual. 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 tmth lies. Matter of 
Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Furthermore, the photographs submitted by the petitioner 
depicting the leased premises fail to demonstrate that size and space requirements have been met. Although 
the petitioner claims that the U.S. entity is in the dye, chemical, pharmaceutical, and bulk drugs business, 
there is nothing in the record to show that adequate storage or warehouse facilities have been acquired by the 
LIN 02 219 51677 
Page 6 
organization. In addition, there is insufficient evidence to show that the foreign entity will continue doing 
business, as required by 8 C.F.R. $ 214.2(1)(1)(ii)(G)(2), during the beneficiary's stay in the United States. 
The evidence demonstrates that the foreign entity is operating at a deficit and has not been guaranteed any 
business loans by lending banks. For these additional reasons, this petition may not be approved. 
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.