dismissed L-1A Case: Computer Equipment Sales

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal pnvacy 
PUBLIC COpy 
u.s. Department of Homeland Security 
U.S. Citizenship and inunigration Services 
Administrative Appeals Office (AAO) 
20 \1assachusettsAve., N.\V .. MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: MAY 3 1 2011 Office: VERMONT SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(1S)(L) of the Immigration 
and Nationality Act, 8 U.S.c. § 1101(a)(IS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.S. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Vennont Service Center, denied the nonimmigrant visa petition. 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 as a nonimmigrant 
intracompany transferee pursuant to section IOI(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § IIOI(a)(l5)(L). The petitioner, a Delaware limited liability company established in June 2007, 
intends to operate a computer equipment sales and distribution company. It claims to be a subsidiary of • 
. The petitioner seeks to employ the beneficiary as the Managing 
Director and Chief Executive Officer of its new office in the United States for a period of two years.' 
The director denied the petition concluding that the petitioner failed to establish: (I) that it had secured 
sufficient physical premises to house the new office; and (2) that the beneficiary has at least one continuous 
year of full-time employment abroad with a qualifying organization within the three years preceding the filing 
ofthe petition. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that the petitioner established that the premises 
secured for the new office are sufficient by demonstrating that it is currently conducting business from such 
premises. With respect to the beneficiary's foreign employment, counsel asserts that the beneficiary, since his 
initial admission to the United States in F-J status on August 23, 2002, "has constantly traveled to Trinidad 
and Tobago and has returned to his managerial duties at the while outside of the United 
States," and has been continuously employed by in salary 
based compensation." Counsel submits a brief and additional evidence in support of the appeal. 
I. The Law 
To establish eligibility for the L-J nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section IOJ(a)(l5)(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. § 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 (I)(l)(ii)(G) of this section. 
I Pursuant to 8 C.F.R. 214.2(1)(7)(3) ifthe beneficiary is coming to the United States to open or be employed 
in a new office, the petition may be approved for a period not to exceed one year. 
Page 3 
(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 qualitying 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. § 214.2(l)(3)(v) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or 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 involves 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 (1)(1 )(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. 
II. The Issues on Appeal 
A. Sufficient Physical Premises to House the New Office 
The first issue addressed by the director is whether the petitioner established that it has secured sufficient 
physical premises to house the new office, as required by 8 C.F.R. § 2l4.2(l)(3)(v)(A). 
Page 4 
Evidence of the physical premises secured for the new office is required initial evidence for a petition filed 
pursuant to 8 C.F.R. § 214.2(l)(3)(v). Therefore, the critical facts to be examined are those that were in 
existence at the time of filing the petition. It is a long-established rule in visa petition proceedings that a 
petitioner must establish eligibility as of the time of filing. A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or 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); Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on March 3 
the the located at 
premises were leased to the beneficiary and his immediate family "for occupancy only as a private dwelling, 
and for no other use and to no other parties." The petitioner subm itted evidence that the beneficiary filed a 
document with the Town of Brookline declaring that the petitioning entity operates a business from this 
address. 
The petitioner also submitted a business plan in support of the petition. The business plan does not discuss 
the type of space secured for the business or the petitioner's space requirements. According to the initial 
business plan, the petitioner intends to employ a total of five workers during the first year of operations. 
The director issued a request for additional evidence ("RFE") on April 7, 2008, in which the director noted 
that the lease agreement provided is for a private dwelling. The director requested that the petitioner submit 
evidence that it has secured sufficient physical premises to house the new office, including evidence 
demonstrating that such premises are sufficient for conducting international trade. The director advised that 
the evidence submitted should include, but is not limited to, original lease agreements, a statement from the 
petitioner's lessor identifying the square footage of the leased premises, and the telephone numbers of the 
petitioner's lessor. The director also requested photographs of the interior and exterior of all premises that 
have been secured for the United States entity. 
In response to the RFE, the petitioner re-submitted a copy of the with a 
storage unit rental agreement made between the beneficiary and The 
agreement is dated March 6, 2008, and the space rented is a 5 by lOft. storage unit with a monthly rent of $70. 
The petitioner submitted photographs of the exterior of an apartment building, the door to and 
some interior photographs of an apartment which includes a room with two computer workstations, and a 
piece of standard office paper pinned to the wall that bears the petitioner's company name. The petitioner also 
provided a proposed organizational chart for the U.S. company which indicates a proposed staff of 13 
employees. According to the chart, the petitioner has filled three positions, including an administrative 
assistant, a marketing executive and an online store manager. 
The director denied the petition on July 16, 2008, concluding that the petitioner failed to establish that it had 
secured sufficient physical premises to house the new office. In denying the petition, the director noted three 
Page 5 
deficiencies: (1) the record does not establish that the beneficiary can conduct business from his apartment or 
that the apartment can accommodate employees; (2) the storage unit lease agreement does not indicate the 
size of the unit or state that the petitioner can conduct business from the premises; and (3) the photographs 
submitted merely show the beneficiary's apartment arranged so as to show 'business' work stations. 
On appeal, counsel, relying on Matter of LeBlanc, 13 I&N Dec. 816 (Reg. Comm'r 1971), asserts that "it has 
been determined that the determining factor for 'sufficiency of physical premises' is evidence that 'the 
petitioner has acquired physical premises necessary to its functions ... which evidences the bona fides of its 
intended operation in this country.'" Counsel asserts that "although the beneficiary has a 'private dwelling,' 
the evidence of record establishes that the U.S. entity has been conducting business since the date of 
establishment, and that this is "clear and convincing evidence that the company can conduct business and that 
the physical premises are sufficient for its functioning." Counsel asserts that "the photos for the beneficiary's 
apartment have been arranged to show business work station because it is used as a business work station." 
In support of the appeal, the petitioner submits documentation reflecting that the petitioner is engaged in the 
purchase and sale of computer and electronic equipment, through operation of an eBay store and other means. 
The petitioner also submits photographs of its storage unit and the items stored there. 
Upon review, counsel's assertions are not persuasive. The petitioner has not submitted evidence that it has 
secured adequate physical premises to house the new office. 
The AAO acknowledges that the regulations do not specifY the type of premises that must be secured by a 
petitioner seeking to establish a new office, and observes that there may be cases in which a home office 
would satisfY the regulatory requirements. However, the petitioner bears the burden of establishing that its 
physical premises should be considered "sufficient" as required by the regulations at 8 C.F.R. 
§ 214.2(1)(3)(v)(A). To do so, it must clearly identifY the nature of its business, the specific amount and type 
of space required to operate the business, its proposed staffing levels, and evidence that the space can 
accommodate the petitioner'S growth during the first year of operations. USCIS may also consider evidence 
that the company has obtained a license to operate the business from a home office, if required, evidence that 
the landlord has authorized the use of residential space for commercial purposes, evidence that the company 
has established separate phone lines or made other accommodations for the use of the premises by the U.S. 
company, or any other evidence that would establish that a residential dwelling will meet the company's 
needs. Finally, photographs and floor plans ofthe leased premises may assist in determining that the premises 
secured are sufficient to accommodate the petitioner's business operations. 
Here, the petitioner has not offered any additional evidence on appeal to show that the specific premises 
secured are sufficient to accommodate the petitioner's intended business. As noted by the director, the lease 
agreement was entered by the beneficiary in his personal capacity, for a dwelling to be occupied by him and 
his immediate family, and the lease expressly prohibits any other use ofthe premises. The petitioner has not 
provided evidence that the landlord has granted the petitioner authorization to operate the business from the 
beneficiary's home or that the petitioner has obtained any applicable licenses required to operate a electronics 
sales and distribution business from a private home. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
Page 6 
22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure CraflofCalifornia, 14 I&N Dec. 190 (Reg. 
Comm'r. 1972)). 
While the petitioner has subm itted evidence that it also leases a small storage unit, the petitioner is clearly not 
able to use this space for any other purpose than storage of its products. The beneficiary's home office may 
be sufficient to accommodate limited business activities undertaken by the beneficiary to date; however, the 
petitioner claims that it has already hired three additional staff and intends to employ at least five and up to II 
workers. Even if the petitioner had established that it is authorized to conduct a business from the 
beneficiary's apartment, the maximum occupancy of the premises secured is two people. The space secured 
may be sufficient for the purposes of conducting eBay transactions, but it is clearly not sufficient to 
accommodate the proposed staff and scope of operations the petitioner anticipates for its first year in 
operation. 
The petitioner has not submitted evidence on appeal to overcome the director's determination on this issue. 
Accordingly, the appeal will be dismissed. 
B.. One-year of full-time continuous employment abroad 
The second issue addressed by the director is whether the petitioner submitted evidence that the beneficiary 
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, as required by 8 C.F.R. § 214.2(1)(3)(iii). 
In a letter submitted in SU()port 
experience working with 
wholly-owned subsidiary 
"has at least seven years of 
" which is claimed to be a 
Counsel indicated that the beneficiary was employed by 
the foreign entity as "Chief Operations Assistant" responsible for initiating contracts, delivering and installing 
computers, solving problems, and ensuring that payments were received on time and equipment was returned 
in good condition. 
The petitioner submitted copies of the beneficiary's Forms TD-4, Return of Emoluments Paid and 
Deducted" for the years 2003 through 2007. The forms were issued by The 
•••• , and indicate that the beneficiary was paid as a regular, salaried eITlpl,oy,~e, 
Counsel stated that this entity is the parent company 
The petitioner also submitted a copy of the beneficiary's resume. According to the resume, the beneficiary 
graduated from with a Bachelor's degree in January 2007, and since that time has been 
employed by the petitioner and another U.S. company, The beneficiary states in his resume 
from January 2003 until December 2007, with 
from November 2005 until April 2007, and with_ 
~rom January to May 2003. The record shows that the beneficiary was last admitted to the United 
States in F-I status in December 2006. 
Page 7 
In the RFE issued on April 7, 2008, the director requested additional evidence to establish that the beneficiary 
has been employed abroad in a full-time managerial or executive capacity for one continuous year within the 
three years preceding his last entry to the United States. 
In response to the director's request, the petitioner re-submitted copies of the beneficiary's Forms TD-4 for the 
years 2003 through 2007, along with an organizational chart indicating that the beneficiary's foreign job title 
was "Executive Manager." The petitioner submitted a description for this position that was significantly 
different than that previously provided for the "Chief Operations Assistant" position. The petitioner's 
response to the RFE also included a letter dated August 26, 2002 from International 
Students and Scholars Office confirming that the beneficiary was enrolled in a full-time course of study as of 
that date. 
The director denied the petition concluding that the petitioner failed to submit evidence that the beneficiary 
was employed by a qualifYing foreign entity on a full-time basis for at least one continuous year within the 
three years preceding the beneficiary's last entry to the United States. 
In denying the petition, the director noted that the beneficiary has been in the United States in F-I status since 
August 2002, not including trips outside the United States for breaks. The director noted that the beneficiary's 
Trinidad and Tobago Forms TD-4, indicating that he worked 52 weeks per year in Trinidad and Tobago in the 
years 2003 through 2007, are contradicted by evidence showing that the beneficiary maintained F-I status as a 
full-time university student in the United States. The director emphasized that "it is not clear how the 
beneficiary would have a full year of experience as an executive or manager while attending school in the 
United States." 
The director further found that the petitioner's response to the RFE contained no explanation of how the 
beneficiary obtained the required one year of continuous work experience abroad. The director found no 
evidence to establish that the beneficiary was employed full-time for one continuous year by a qualifYing 
foreign entity prior to the filing date of March I, 2008 or prior to August 2002 when the beneficiary was first 
admitted to the United States as a student. 
On appeal, the petitioner submits copies of the 
he received a salary from 
Forms TD-4 for 200 I and 2002, indicating that 
during those years. Counsel asserts that such 
evidence demonstrates that the beneficiary had one year of continuous employment with the foreign entity 
prior to his first date of entry as an F-I nonimmigrant student. 
With respect to the director's observation that the beneficiary'S tax forms indicate that he worked for the 
foreign entity for 52 weeks each year between 2003 and 2007, counsel states: 
The Beneficiary has constantly traveled to Trinidad and Tobago and has returned to his 
managerial duties at the foreign company while ()l]i~~ 
has been continuously employed by the 
salary based compensation. The "salary compensation" 
Page 8 
that the weeks of work could have been less than the amount noted on the return date. The 
tax form has the individual enter the pay periods that the "annual salary" covers, but not 
necessarily the number of weeks during which work was performed. 
Upon review, the petitioner has not submitted evidence on appeal to overcome the director's determination. 
The petitioner has not established that the beneficiary was employed by a qualifying organization abroad on a 
full-time basis for at least one continuous year in the three years preceding the filing of the petition, as 
required by 8 C.F .R. 214.2(1)(3)(iii). We further find that the petitioner failed to establish that the beneficiary 
has been employed by a qualifying foreign entity in a primarily managerial or executive capacity. 8 C.F.R. §§ 
214.2(l)(3)(iv) and (l)(3)(v)(B). 
In this case, the beneficiary was authorized for employment with the petItIOner in F-I optional practical 
training status, and the petitioner indicates that the beneficiary was employed by the petitioner since March 
2007, although the petitioner was not registered as a limited liability company until June 2007. Pursuant to 8 
C.F.R. § 214.2(l)(1)(ii)(A), periods spent in the United States in a lawful status for a branch of the same 
employer or a parent, affiliate or subsidiary thereof and brief trips to the United States for business or pleasure 
shall not be interruptive of the one year of continuous employment abroad, but such periods shall not be 
counted toward fulfillment of that requirement. Therefore, any period of authorized employment with the 
petitioner, while not interruptive of the beneficiary'S employment with the foreign entity, does not count 
toward fulfillment of his qualifying year of employment abroad. 
Although counsel indicates that the beneficiary was "constantly" traveling to Trinidad and 
managerial duties while maintaining a full-time course load as an undergraduate student at 
the petitioner has not provided evidence that the beneficiary ever left the United States for a full year to work 
for the foreign entity, such that his employment would be considered both full-time and continuous at any 
point during his period of authorized F-I status, which was granted from August 2002 through January 31, 
2008. Therefore, even though it appears that the beneficiary received a salary from a claimed qualifying 
entity during the years 2003 to 2007, the beneficiary could not have accrued his one year of continuous fuIl­
time employment experience with the foreign entity if he was physically present in the United States during 
the greater portion of each of these years. 
The petitioner claims for the first time on appeal that the beneficiary was employed by a qualifying foreign 
entity in 200 I and 2002, and therefore acquired his continuous year of full-time qualifying experience prior to 
his initial entry to the United States as an F-I student. The petitioner offers no explanation as to why this 
period of employment was not mentioned previously in any statement from the petitioner, counsel, the foreign 
entity or the beneficiary. Furthermore, counsel offers no additional explanation with respect to the 
beneficiary's claimed job titles and duties during this alleged period of employment. We note that the 
beneficiary was 17 years old for the majority of 2001 and the beneficiary lists no employment prior to 2003 
on his detailed resume. Even if the AAO were persuaded that the beneficiary were employed by the foreign 
entity on a full-time basis for a continuous year in 200 I and 2002, the evidence would be insufficient to 
establish that such employment was in a qualifying managerial capacity. 
In addition, we note that the record contains additional inconsistencies regarding the beneficiary's dates of 
employment, job titles, job duties, and level of authority within the foreign entity which make it impossible to 
properly analyze this issue. As noted above, the petitioner changed the beneficiary'S overseas job title and 
Page 9 
level of authority from "Chief Operations Assistant," a position that did not appear to involve any managerial 
or executive duties, to that of "Executive Manager" without explanation. 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). 
Given the facts presented and the discrepancies noted above, the AAO cannot conclude that the beneficiary 
was employed by the foreign entity in a managerial or executive capacity, that he was employed by the 
foreign entity on a full-time basis for a continuous year during the relevant three-year time period, or that he 
was ever employed by the foreign entity on a full-time basis for a continuous year. The beneficiary's actual 
job titles, job duties, dates of full-time continuous employment and level of authority within the foreign entity 
have not been resolved. For this additional reason, the appeal will be dismissed. 
C. Qualifying Relationship 
Beyond the decision of the director, a remaining issue is whether the petitioner established that the U.S. entity 
has a qualifYing relationship with the beneficiary'S claimed foreign employer. To establish a "qualifYing 
relationship" under the Act and the regulations, the petitioner must show that the beneficiary'S foreign 
employer and the proposed U.S. 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 IOI(a)(l5)(L) ofthe Act; 8 C.F.R. 
§ 214.2(1). 
The petitioner has claimed that the beneficiary's and 
submitted evidence that a different entity, The 
Based on the appears that both of these foreign entities are owned in 
equal shares 
The petitioner claims that the owns a 51 percent interest in the U .S. £2!:!!£~ 
49 nen,ent The record contains a 
identifies the beloeiici,ary 
owners of the company. The petitioner also submitted share certificates indlic~ltin,g 
authorized to issue 1000 shares, of which the beneficiary holds 
Again, it is incumbent upon the petitioner to any InCOnSIstencIes In 
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). The petitioner has not submitted consistent claims or evidence regarding 
its ownership. 
Regardless, the petitioner has consistently claimed that the beneficiary owns a majority interest in the U.S. 
company. 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. Here, the petitioner has not claimed that the beneficiary owns any interest in either foreign entity. 
The entities are not "owned and controlled by the same group of individuals, each individual owning 
controlling approximately the same share or proportion of each entity " 8 C.F.R. 
§ 214.2(1)(1 )(ii)(L)(2)(emphasis added). In addition, there is no parent entity with ownership and control of 
Page 10 
both the foreign and U.S. companies that would qualifY the two as affiliates. Although it appears that all of 
the companies involved are owned by members of the same family, this familial relationship does not 
constitute a qualifYing relationship under the regulations. For this additional 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. United States, 229 F. Supp. 2d 1025, 1043 (ED. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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 AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 (9th Cir. 2003). 
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. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.