dismissed L-1A Case: Cleaning Services

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
MAR 062007
FILE: SRC 0419752557 Office: TEXAS SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
. PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the
i
Immigration and Nationality Act, 8 U.S.c. § 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.
tu/u--
~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 04 19752557
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 appeal will be summarily
dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its operations
manager as an L-IA nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the
Immigration and Nationality Act (the Act) , 8 u.s.c. § 1101 (a)(15)(L). The petitioner is a Tennes see
corporation , and claims to be engaged in cleaning services. The petitioner states that it is the affiliate of
••••••• ., located in Venezuela .. The beneficiary was initially granted a one-year period of stay
to open a new office in the United States and the petitioner now seeks to extend the beneficiary's stay.
The director denied the petition on June 25, 2005, concluding that the petitioner did not establish that the
.beneficiary will be employed in the United States in a primarily managerial or executive capacity . In
addition , the director found that the petitioner 's failure to submit the requested evidence, thereby .
precluding a material line of inquiry , is grounds for denying the petition . The director further stated that
the record does not indicate the number of individuals employed by the United States entity, and the gross
annual income of the U.S. entity. In addition , the director stated that the United States entity does not
appear to have subordinate manager employees , and thus the beneficiary will be carrying out the day-to­
day operations of the U.S. entity rather then supervising subordinate employees who would relieve the
beneficiary from primarily performing non-qualifying duties.
On the Form I-1290B, the petitioner asserts the following:
[The U.S. company] is a Tennessee based corporation established in October , 2002. As a
consequence of the September 11, 2001 changes in our economy, and through a
comprehensive analysis of the actual market needs, [the U.S. company] decided to :
expand its business into the cleaning business and has also recently purchased a gas
station , namely , .
Although we do not show what you consider "qualified employees", we have had and I
currently have, several part-time emplo yees which [the beneficiary] manages, one of i
them being a subordinate manager. Projections for the next twelve months for our .:
company are very promising. The company has invested a lot of time and effort in [the
beneficiary] and if we lose him at this time, it would be highly detrimental to our future
efforts.
I therefore respectfully request that his L-l visa extension be granted even if for only one
year. We are sure that if our company is given an additional twelve (12) months , we will
be able to provide you with all the evidence previously requested.
The petitioner did not submit a brief or documentation in support of the appeal.
To establish eligibility under section 101(a)Cl.5)(L) of the Act , the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States , a firm, corporation , or other legal ent ity, or an affiliate or subsidiary thereof , must have employed
SRC 04 197 52557
Page 3
the beneficiary for one cont inuous year. Furthermore , 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.
Upon review, theAAO concurs with the director's decision and will affirm the denial of the petition. The
petitioner's general objections to the denial of the pet ition, without specifically identifying any errors on
the part of the director, are simply insufficient to overcome the well founded and logical conclusions the
director reached based on the evidence submitted by the petitioner.
Despite the petitioner's brief statement on appeal , based on the minimal documentation in the record , it
cannot be determined that the petitioner has established that the beneficiary will be ·employed in a
. managerial or executive capacity. 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 (Comrn, 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg.
Comm. 1972). \
The regulation at 8 C.F.R ..§ 214.2(1)(3)(v)(C) allows the i~tended United States operation one year within
the date of approval of the petition to establish the new office. Furthermore , at the time the peVtioner
seeks an extension of the new office petition, the regulations at 8 C.F.R . § 214.2(1)(14)(ii)(B) requires the
petitioner to demonstrate that it has been doing business for the previous year. The term "doing business"
is defined in the regulations as "the regular, systematic , and continuous provision of goods and/or services
by a qualifying organization and does not include the mere presence of an agent or office of the qualifying
organization in the United States and abroad." 8 C.F.R. § 214 .2(1)(1)(ii). There is no provision 'in CIS
regulations that allows for an extension of this one-yearperiod. If the business is not sufficiently
operational after one year , the petitioner is ineligible by regulation for an extension . In the instant matter ,. . , .
the petitioner has not reached the point that it can employ the beneficiary in a predominantly managerial
or executive position.
The petitioner has not established that it is eligible for an extension of the initial one-year "new office"
validity period. As previously noted, the regulation at 8 C.F.R. § 214.2(1)(14)(ii) provides strict
evidentiary requirements that the petitioner must satisfy prior to the approval of this extension p~tition.
Upon review, the petit ioner has not satisfied any of the enumerated evidentiary requirements. The
petitioner has not submitted evidence that the United States and foreign entities are still qualifying
organizations as defined in 8 C.F.R. § 214.2(1)(1)(ii)(G) . The petitioner has not submitted evidence that
the United States entity has been doing business for the previous year as defined in 8 C.F.R. §
214.2(1)(1)(ii)(H). The petitioner has not submitted a detailed statement of the duties performed by the
beneficiary for the previous year and the duties the beneficiary will perform under the extended petition
so that the AAO can determine whether the beneficiary is employed in a primarily managerial or
executive capacity . . The petitioner has not submitted astatement describing the staffing of the new
operation. Finally , the petitioner has not submitted evidence of the financial status of the Unite? States
operation. For all of these rea sons, the petition may not be approved and the appeal will be dismissed.
In addition , the regulat ions state that the petitioner shall submit additional evidence as the director , in his
or her discretion, may deem necessary. The purpose of the request for evidence is to elicit further
information that clarifies whether eligibility for the benefit sought has been established, as of the time the
SRC 04 19752557
Page 4
petition is filed. See 8 C.F .R. §§ 103.2(b)(8) and (12) . The failure to submit requested evidence that
precludes a material line of inquiry shall be grounds for denying the petition . See 8 C.F.R. §
103.2(b)(14) . The director sent a request for evidence on August 30, 2005 and January 13,2005, and the
petitioner subsequently submitted a response ; yet failed to include: I) evidence of the staffing level in the
United States for the past year; 2) position titles, qualifications and duties of all employees ; and, 3) a
statement of the duties of the beneficiary for the past year , .including the percentage of time the
beneficiary spent performing each duty. Failure to .submit requested evidence that precludes a material
line of inquiry shall be grounds for denying thepetition, 8 C.F.R. § 103.2(b)(14).
The petitioner did submit its IRS Form 941, Employer's Quarterly Federal Tax Return, for the quarter
ending December 2003, which confirms that the petitioner employed only one employee. The petitioner
did not submit quarterly wage reports, financial statements, paystubs, payroll records, or its IRS Forms
W-2 or Forms 1099 to indicate that any other individuals were employed by the U.S. entity at the time the
instant petition was filed on July 12, 2004. Again, going on record without supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings . Matter of
. . I
Sofjici, 22 I&N Dec. at 165 .
As .the United States company appeared to employ only ' the beneficiary at the time of filing, it is
reasonable to assume, and has not been proven otherwise , that the beneficiary is directly performing sales,
promotion , purchasing, marketing and financial development , and all or many of the various operational
tasks inherent in operating a cleaning business and a gas station on a daily basis , such as acquiring
products, maintaining inventory, paying bills , and customer service . Based on the record of proceeding ,
'the beneficiary's job duties are principally composed of non-qualifying duties that preclude .him from
functioning in a primarily managerial or executive role . Accordingly, the director reasonably concluded
that the beneficiary will be performing the day-to-day operations and directly be providing theservices of
the business rather than directing such activities through subordinate employees. An employee who
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to
be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the
Act (requiring that one "primarily" perform the enumerated managerial or executive duties); see also
Matter of Church Scientology Intn 'I., 19 I&N Dec. 593 ,604 (Comm. 1988).
Although the petitioner states on appeal that the petitioner utilizes "several part-time employees," the
• 1
petitioner has neither presented evidence to document the existence of these employees nor identified the
specific services these individuals provide. .Additionally , the petitioner has not explained how the
services of the part-time employees obviate 'the need for the beneficiary to. primarily perform non:'
qualifying duties associated with running two businesses. Without documentary evidence to support its
statements , the petitioner does not meet its burden of proof in these proceedings . Matter of Sofjici , 22
I&N Dec. at 165.
Thus, even if the petitioner does utilize the services of part-time employees or independently contracted
employees , the record does not reflect that the employees are professional , maintain supervisory
positions , work on a full-time basis , or that they take direction from the beneficiary in performing their
duties. There is no evidence of fomial agreements or contracts entered into by the petitioner that explains
, the usage of outside sources . The petitioner has failed to submit job descriptions or duties performed by .
the independent contractors. There is no evidence on record to show that the claimed independent
SRC 04 197 52557
Page5
contractors would engage in the day-to-da y operations of the business or that they would relieve the
beneficiary from performing other routine, non-qualifying ' tasks associated with the busine ss' daily
marketing, sales , administrative , clerical and financial functions.
Beyond the decision of the director, the evidence submitted is insufficient to establish that the U.S. entity
has been or is engaged in the regular ,'systematic, and continuous provision of goods and/or services as a
qualifying organization . On appeal , the petitioner asserts that due to the economic effects of September
11, 2001, the U.S . entity needed to expand its bus iness from cleaning services to own ing a gas station .
According to the bill of sale submitted by the petitioner , the U.S. entity purchased the gas station on June
8, 2004, one month prior to filing the instant petition. The petitioner has failed to provide any
documentation of the U.S . company when the petitioner first commenced the business asa cleaning
service. In addition, the petitioner failed to present evidence that the U.S. entity is doing business as a gas
station. The petitioner did submit two financial statements for the u.s. entity; one statement is for the
period ended December 1, 2003 and the second is for the period ended March 31, 2004. Although the
financial statements indicate gross sales and assets and inventory, it is unclear how the business achieved
its sales as the petitioner failed to submit any supporting documentation , such as invoices , purchase
orders, or receipts , to establish that it has regularly, systemat ically and continuously conducted business
since the beneficiary wasgranted L-1A status in August 2003. The petitioner has not provided sufficient
evidence of the U.s. entity doing business in the United States during the initial year of business ana up to
the date the instant petition was filed. .
Furthermore, it appears that the U.s. company is still deciding as to what kind of business they wish to
pursue. In the original petition , the Form 1-129 indicates that the petitioneris engaged in the cleaning
service business. On appeal , counsel for the petitioner indicates that the petitioner is looking to expand '
the business into other industries and has purchased a gas station . However, the petitioner has not
submitted sufficient evidence that the U.S. company has been doing business in any of these areas.
An application or petition that fails to comply with the technical requirements of the law may be denied
, by the AAO even ifthe 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. 2d1025 , 1043 (E.D. Cal. 2001),
afj'd.345 F.3d 683 (9th Cir. 2003); see also Dar v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting
that the AAO reviews al'peals on a de novo basis).
Regulations at 8 C.F ~R . §103.3(a)(I)(v) state, in pertinent part :
An officer to whom an appeal is taken shall summarily dismiss any appeal when the
party concerned fails to identify specifically any erroneous conclusion of law or
statement of fact for the appeal.
In visa petition proceed ings, the burden of proving eligibility for the benefit sought remains entirely with
' the petitioner. Section 291 of the Act , 8 U.S.c. § ~ 361. Inasmuch as the petitioner has failed to identify
specifically an erroneous conclusion of law or a statement of fact in this proceeding , the petitioner has not
sustairied that burden. Therefore, the appeal will be summarily dismissed .
ORDER: The appeal is summarily dismissed ;