dismissed L-1A Case: Commercial Printing

U.S. Deparrment of Homeland Securlty 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 04 024 52886 Office: CALIFORNIA SERVICE CENTER Date:"j(j~ 1 4 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 10 1 (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. 
Administrative Appeals Office 
WAC 04 024 52886 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service 
Center. The matter is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner claims that it is a subsidiary of Karnavati Offset Private Limited (KOPL), located 
in India. The petitioner plans to operate a commercial printing operations business. The U.S. 
entity was incorporated in the State of California in 2003. The petitioner seeks to hire the 
beneficiary as a new employee to open its U.S. office. Accordingly, in November 2003, the U.S. 
entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary as a 
nonimmigrant intracompany kansferee (L- I A) pursuant to section 101 (a)(l S)(L) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1101(a)(15)(L), as an executive or 
manager for three years. The petitioner endeavors to employ the beneficiary as the U.S. entity's 
president and CEO at an annual salary of $50,000. 
On December 18, 2003, the director denied the petition. The director determined that the 
petitioner had not established: (1) a financial investment fiom the foreign entity sufficient to 
commence doing business in the United States; and, (2) that the beneficiary will function in an 
executive or managerial capacity within one year. 
On appeal1, counsel disagrees with the director's decision and asserts that the evidence submitted 
is sufficient to establish that the U.S. entity is in a financial position to operate a viable business 
and will be able to support an executive position within one year of operation. Counsel submits a 
brief and an expert opinion let-ter in support of the appeal. 
To establish L-l eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act 
(the Act), 8 U.S .C. 5 1 10 l(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 qualifLing 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 howledge. 
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 qualifiing 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, inchding a detailed description of the 
services to be performed. 
Counsel filed a Motion to Reconsider and Appeal. However, the director declined to treat the 
appeal as a Motion to Reconsider and forwarded it to the AAO for review. 
WAC 04 024 52886 
Page 3 
(iii) Evidence that the alien has at least one continuous year of full-time 
employment abroad with a quali@ing organization with 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 himher to perform the intended serves 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. 9 214.2(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; 
(El) 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: 
(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. 
The first issue in this proceeding is whether the petitioner has established the size of the United 
States investment and the financial ability to commence doing business in the United States. 
In support of the 1-129 petition, filed on November 4, 2003, the petitioner submitted its fifteen 
page business plan which provided the company's background, its plan to acquire an established 
printing business, its proposed products and services, its sales forecast for the first year of 
operations, growth expansion plans, a proposed organizational chart, and descriptions of three 
commercial printing businesses described as "target acquisition candidates currently under due 
diligence." 
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However, on November 9, 2003, the director requested additional evidence including a more 
detailed business plan, a feasibility study, minutes of the foreign company's meetings discussing 
the U.S. business plans, evidence of the purchase of some assets needed to run the petitioner's 
business, and evidence of the total investment or capital deposited in the petitioner's bank 
accounts, and an original letter fiorn the foreign entity explaining the need for the new office in 
the United States. The director noted that the letter from the foreign entity should address the 
amount of the US, investment and the financial ability of the foreign company to pay the 
beneficiary and commence doing business in the U.S. The director also requested evidence to 
show that the foreign entity has committed a substantial amount of capital investment in the U.S. 
company, including copies of original wire transfers from abroad, or canceled checks and deposit 
receipts detailing monetary amounts for the stock purchase. Finally, the director asked the 
petitioner to provide a detailed description of the actual costs to establish the U.S. business to the 
point of being operational, and evidence that the U.S. company has been purchasing assets and 
obtaining required permits, licenses, and insurance 
In a response dated December 4, 2003, the petitioner submitted, through counsel, the following: 
(1) an original letter from the foreign entity stating, in part, that the initial investment in the 
petitioner would be $100,000; (2) minutes of four board of directors meetings of the foreign 
entity, indicating its decision to establish the U.S. company, including a resolution "that initial 
investment in the U.S. subsidiary would be approximately US$lOO,OOOm with an additional 
$100,000 investment planned within the first year ; (3) another copy of the previously submitted 
business plan; (4) evidence that the U.S. company had $5,000 in its bank account as of November 
24, 2003; (5) a California Notice of Transaction Pursuant to Corporations Code Section 25 102(f) 
indicating that the value of the petitioner's stock sold or proposed to be sold was $10,000; (6) a 
one-page document outlining the budgedoperating costs for the petitioner's first year of 
operations; and (7) financial documentation for the foreign entity. Counsel advised that the 
foreign entity had not undertaken a formal feasibility study with respect to the establishment of 
the U.S. company. With respect to the investment in the United States, counsel stated, "The 
company has identified three U.S. printing companies . . .which the newly established company 
will expand and operate as the acquisitions are made . . . . Please note an additional $200,000 US 
is budgeted and available for Transfer to fund the planned acquisition no on "Offer to Buy" 
status." The petitioner also included a description of each "acquisition candidate" and a document 
entitled "offer and agreement to buy" a business which identified the beneficiary as the buyer. 
The agreement was signed by the beneficiary on November 7, 2003, but was not signed by the 
seller. 
On December 18, 2003, the director denied the petition determining that the U.S. company was 
not in a financial position to operate a viable business. The director found that the investment 
capital of $5,000 was insufficient to operate the business and was not sufficient to pay for the 
stocks purchased by the foreign entity. The director also noted that there was no documentary 
evidence such as contracts submitted to support the petitioner's claim that it planned to acquire 
three U.S. based printing companies. The director concluded that "the petitioner has failed to 
substantiate that it has, via its foreign affiliated company, made the financial investment required 
to set up a qualifying new office operation in the United States." 
WAC 04 024 52886 
Page 5 
On appeal, counsel asserts that the evidence submitted is sufficient to establish that the U.S. entity 
is in a financial position to operate a viable business and will be able to support an executive 
position within one year of operation. Counsel claims that the "U.S. budget for the first two (2) 
years for acquisition and set up was $200,000. . . Please note that the account is currently in 
excess of approximately $100,000.00." Counsel further explains that a "corporation may establish 
g price for its stock" and that "the viability of the company is based on the Business Plan and 
overall funding." Counsel also notes that the U.S. subsidiary's budget was "clearly shown in a 
number of places as $200,000." 
On review, the AAO finds that the petitioner submitted insufficient evidence of the financial 
ability of the foreign entity to remunerate the beneficiary and to commence doing business in the 
United States. Although counsel claims and submits evidence that the U.S. entity currently has 
"$100,000" in its bank account, the petitioner was put on notice of required evidence and given a 
reasonable opportunity to provide it for the record before the visa petition was adjudicated. The 
petitioner failed to submit the requested evidence and now submits it on appeal. However, the 
MO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 
(BLA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The appeal will be adjudicated 
based on the record of proceeding before the director. 
Moreover, at the time of filing its petition and in examining the documents submitted, the U.S. 
entity had $5,000 in its U.S. business checlung account as of November 24, 2003. Based on the 
petitioner's and counsel's representations, the U.S. business requires an initial investment of 
$100,000. Therefore, $5,000 appears to be insufficient to support the establishment of the new 
business. In addition, although counsel has merit in claiming that the "par Value of a Company's 
stock has no relation to the actual value; that a corporation may establish any price for its stock," 
the AAO will evaluate the sale of the stock and transfer of funds as evidence of having the 
financial ability to commence doing business in the United States. In this case, the petitioner has 
failed to establish that the foreign entity had transferred any funds to the U.S. company as of 
November 2003. The petitioner submitted evidence that it had $5,000 in its bank account and 
noted that such funds were for its initial stock offering. However, there is no evidence that these 
funds originated with the foreign entity. The director specifically requested documentation as to 
the origin of the U.S. company's investment funds, including copies of wire transfers. The 
petitioner did not document the source of these funds. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
9 103.2(b)(14). Furthermore, the documentation submitted indicates that the petitioner valued its 
initial stock offering at $10,000, not $5,000, which raises further questions regarding the foreign 
company's investment in the United States entity. 
Further, the petitioner's assertion that "an additional $200,000 US is budgeted and available for 
Transfer to fund the planned acquisitions" and limited exhibits is insufficient evidence to indicate 
that the foreign company had the financial resources to commence doing business in the United 
States. Without actual documentary evidence such as a bank statements and copies of wire 
transfers indicating that the U.S. entity had actually received the necessary funding at the time it 
filed the petition, it is unclear how exactly the company would commence operations. In addition, 
although the petitioner repeatedly cIaimed that $200,000 is available for transfer to the U.S. 
company, the petitioner did not submit evidence, such as the foreign entity's bank statements, to 
WAC 04 024 52886 
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establish the existence of these claimed funds. 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. at 165 (Reg. Comrn. 1988) (citing Matter of Treasure Craj of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Without evidence of funding, the petitioner has not established how it would carry out its 
business strategy to acquire existing printing businesses in the United States. The petitioner 
submitted evidence of an offer to buy an existing business but this document identified the buyer 
as the beneficiary, not the U.S. company. Nevertheless, there is no evidence that this offer was 
accepted by the seller or that the company had funds to pay the proposed $35,000 downpayment. 
This document is insufficient to establish that the petitioner is prepared to commence doing 
business in the United States. 
After carehl consideration of the evidence, the AAO has determined that the petitioner failed to 
establish the investment in the U.S. company and financial ability to commence doing business. 
Accordingly, the appeal will be dismissed. 
The second issue in this proceeding is whether the evidence submitted is sufficient to demonstrate 
that the beneficiary will be primarily employed in an executive or managerial capacity within one 
year of the approval of the petition. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. $ 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily- 
(i.) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii.) supe~ises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the organization, 
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 directIy 
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 supervisor 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 10 1 (a)(44)(B) of the Act, 8 U.S.C. 5 1 10 1 (a)(44)(B), provides: 
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The term "executive capacity" means 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 goaIs 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. 
In an October 3 1, 2003 letter submitted with the initial petition, the petitioner stated that the 
beneficiary, as president and CEO of the U.S. entity, would be involved in the following duties: 
[Hlold ultimate responsibility for establishing, implementing, managing and 
directing all operations of the U.S. subsidiary, including the goals, policies and 
objectives of the corporation in order to ensure a successful and profitable 
business operation. [The beneficiary] will have the authority over the marketing, 
financial, product development, and acquisition departments of [the petitioner]. 
He will have full authority to hire, fire and promote subordinate management 
personnel as well as general staffing personnel. [The beneficiary] will also be 
responsible for researching and identifying prospective new acquisitions and 
negotiating contracts for purchase on behalf of [the U.S. company]. 
The petitioner also submitted its business plan, which indicates that the company expects to hire 
thee to five employees within the first year. The business pIan aIso includes a proposed 
organizational chart depicting a company secretary, administrative assistant, a sales and 
marketing department, a production and operations department, and a finance and human 
resources department. The petitioner indicated in its October 31, 2003 letter that it projects initial 
staffing of four to six individuals during the first one to two years of operations. 
On November 9, 2003, the director requested additional evidence of the beneficiary's proposed 
U.S. position including a detailed description of his proposed duties, the U.S. entity's 
organizational chart showing the beneficiary's position, and job titles and job duties for any 
subordinate employees the beneficiary will supervise. 
In response to the director's request for evidence on this subject, the petitioner resubmitted the 
organizational chart included in the business plan. The petitioner described the beneficiary's 
subordinate employees' duties and explained how the beneficiary would monitor the support 
staffs duties and responsibilities. The petitioner also stated that the beneficiary would perform 
the following job responsibilities: 
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To supervise and manage all aspects of the U.S. subsidiary company, & 
To direct all operations of the company, inciuding the goals, policies and 
objectives in order to ensure a successful and profitable operation, (35%) 
To hold authority over the marketing, financial, product development 
departments of the company, (26%) 
r To hold full authority to hire, fire and promote subordinate management 
personnel as well as generate staffing personnel, and (1 9%) 
To be responsible for researching and identifying prospective new 
acquisitions and negotiating contracts for purchase on behalf of the 
company. (20%) 
The director subsequently denied the petition because the petitioner failed to establish that the 
beneficiary will be employed in a primarily executive or managerial capacity within one year of 
the approval of the petition. The director noted that the description of the job duties merely 
paraphrased the definitions of managerial and executive capacity. 
On appeal, counsel disagrees with the director's decision, and claims that the director ignored the 
submitted business plan and anticipated growth of the business. Counsel also submits an expert 
opinion letter which addresses the viability of the U.S. company and the beneficiary's 
qualifications. 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 nbt 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 fiorn 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 the instant matter, the business plan submitted by the petitioner fails to detail clear, realistic 
projections to establish that the U.S. entity will realize growth within one year. Although the 
organizational chart demonstrate that the U.S. entity intends to hire new employees, it has not 
provided a clear timetable for hiring subordinate employees, or established that there would be 
sufficient staff to relieve the beneficiary from performing non-qualifying duties within one year 
of approval of the petition. 
In addition, the AAO notes that the petitioner has budgeted only $60,000 for salaries during its 
first year of operations. If this figure includes the beneficiary's $50,000 salary, it is clear that his 
subordinate staff would be minimal. Even if this figure does not include the beneficiary's salary, 
it's not clear how this amount pay the wages of all the employees of one to three full-service 
printing businesses. 
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Moreover, while the petitioner has provided detailed descriptions of its proposed personnel, it's 
proposed staff does not include any employees who would perform the actual printing services of 
the business. The petitioner has not established that its organizational structure will support a 
managerial or executive position within one year of commencing operations. 
In addition, the petitioner has provided a vague and nonspecific description of the beneficiary's 
duties that fails to demonstrate what the beneficiary does on a day-to-day basis. For example, the 
petitioner states that the beneficiary's duties include "directing all operations of the company," 
"hold authority over marketing, financial and product development departments," and "supervise 
and manage all aspects of the U.S. subsidiary company." Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a 
detailed description of the beneficiary's daily job duties. The petitioner has failed to answer a 
critical questlon in this case: What does the beneficiary primarily do on a daily basis? The actual 
duties themselves will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 
724 P. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In addition, many 
of the described duties generally paraphrase the statutory definition of executive capacity. See 
section 101(a)(44)(B) of the Act, 8 U.S.C. 5 1 IOl(a)(44)(B). 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. at 1 108. 
Further, the petitioner claimed that the "Initial size of the company is irrelevant." The AAO notes 
that a company's size alone, without taking into account the reasonable needs of the organization, 
may not be the determining factor in denying a visa. CIS must take into account the reasonable 
needs of the organization, in light of the overall purpose and stage of development of the 
organization. However, it is appropriate for CIS to consider the size of the petitioning company 
in conjunction with other relevant factors, such as a company's small personnel size, the absence 
of employees who would perform the non-managerial or non-executive operations of the 
company, or a "shell company" that does not conduct business in a regular and continuous 
manner. See, e.g. Syslronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). In addition, as 
noted above, the regulation at 8 C.F.R. § 2 14.2(1)(3)(v)(C) requires a petitioner seeking to open a 
new office sufficient evidence regarding the size of the investment, its proposed organizational 
structure and its detailed business plan in order to demonstrate a realistic expectation that the 
company, at the end of its first year of operation, will have an actual need for a manager or 
executive who primarily performs qualifying duties. As noted above, the petitioner has provided 
insufficient evidence of its financial ability to commence operations, and an unclear picture as to 
what the company's organizational structure may be within one year, and a vague description 
which fails to identi@ the beneficiary's actual proposed duties. 
Based upon the evidence presented, the petitioner has failed to demonstrate the U.S. entity will be 
able to support the beneficiary in a primarily managerial or executive position within one year of 
commencing operations. Accordingly, the appeal will be dismissed. 
The AAO notes that the petitioner submitted an expert opinion letter in support of the appeal 
offered as evidence of the viability of the U.S. company and of the beneficiary's managerial and 
executive qualifications. While the MO certainly respects the opinion provided, the testimonial 
WAC 04 024 52886 
Page 10 
letter does not shed light on any of the documentary deficiencies regarding the foreign entity's 
investment in the U.S. entity, nor does it explain how the beneficiary meets the definitions of 
managerial or executive capacity under the Immigration and Nationality Act. The AAO may, in 
its discretion, use as advisory opinion statements submitted as expert testimony. However, where 
an opinion is not in accord with other information or is in any way questionable, the AAO is not 
required to accept or may give less weight to that evidence. Matter of Caron International, 19 
I&N Dec. 791 (Comrn. 1988). Here, the expert opinion submitted does not overcome the valid 
objections of the director or the deficiencies discussed in detail above. 
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. 4 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.