dismissed L-1A Case: Computer Software

U.S. Department of Homeland Socurity 
20 Massachusetts Ave . N W , Rm A3042 
Wash~ngton. DC 20520 
i 
U.S. Citizenship 
and Immigration 
Petition: Petltlon for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. tj 1 101 (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 or~ginally decided your case. Any further Inquiry must be made to that office. 
~obert P. Wlemann, ~lr~r 
b 
dminlstrattve Appeals Office 
WAC 04 120 50167 
Page 2 
DISCUSSION: The Director, California 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 dismissed. 
The petitioner filed this nonrmrnigrant petition seeking to employ the beneficrary an L-1A non~mrnlbTant 
tntracompany transferee pursuant to section 101(a)(15)(L) of the Imrnigrat~on and Nat~onallty Act (the Act). 8 
U.S.C. 9 1101(a)(15)(L). The petitloner is a corporation organized In the State of California that intends to 
engage in the development and sale of computer software. The petitioner claims that it is the subsidiary of 
ocated in Beijing, China. I'he petitioner seeks to employ the 
beneficiary as the general ma'nager of Tts new office for 'a three-year period. 
The director denied the petition concluding that the petitioner did not establish that it had secured sufficient 
physical premises in which to house the new office. Specifically, the director noted that although the 
petitioner had submitted a copy of its sub-lease agreement, it had failed to submit the requested evidence that 
the master lessee's landlord had consented to the sub-lease arrangement. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, cdunse~ for the petitioner asserts that the sub-iessor 
had obtained the landlord's oral consent to sub-lease the office space to the petitioner prior to entering into the 
agreement. Counsel accepts responsibility for failing to submit a written consent in response to the request 
for evidence. On appeal, counsel submits a letter Erom the president of the master lessor's property 
management company acknowledging the sublease agreement, and a copy of the petitioner's new lease 
agreement for an office in the same building. 
To establish eligibility for the L-I. 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 &owledge 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 regulat~on at 8 C F.R. tj 214.2(1)(3) states that an ind~vidual petit~on filed on Form 1-129 shall be 
accompanted 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. 
(11) Ev~dence that the alien will be employed in an executive, managerial, or specialized 
knowledge capac~ty, including a detailed descr~ptron of the servlces to be performed. 
'(iir) Evidence that the alien has at least one continuous year of fuli time employment 
abroad with a qualifying organization within the three years preceding the fil~ng of 
the petition. 
WAC 04 120 50167 
Page 3 
(IV) Evidence that the ahen's pnor year, of employment abroad was in a pos~t~on that was 
managenal, executlve or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies h~mher to perform the Intended 
services in the Un~ted States; however, the work m the Unlted States need not be the 
same work which the allen performed abroad. 
The regulation at 8 C.F.R. lj 214.2(1)(3)(~) also prov~des that if the pehhon Indicates that the beneficiary IS 
cornlng to the United States as a manager or execuhve to open or be employed In a new office tn the United 
States, the pehtloner shall submlt evidence that: 
(A) Sufficient phys~cal premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three year penod 
preceding the fil~ng of the petition In an executive or managenal capaclty and that the 
proposed employment ~nvolves executlve or managerial author~ty over the new 
operation; and 
(C) The intended Un~ted States operation, withln one year of the approval of the petit~on. 
will support an execut~ve or managerial posit~on as defined in paragraphs (1)(1)(11)(B) 
or (C) of thls section, supported by information regarding: 
(I) The proposed nature of the office descnbmg the scope of the entity, its 
organlzational structure, and its financial goals; 
(2) The size of the United States Investment and the financial ability of the 
forergn entrty to remunerate the beneficiary and to commence doing business 
m the Un~ted States; and 
3 The organlzational structure of the foreign entity. 
The Issue in the present matter is whether the petitioner has secured sufficient physical premlses to house the 
new office In the Uhted States as required by 8 C.F.R. tj 21.1'.2(1)(3)(~)(~). 
The petltion was submrtted on March 24, 2004. In support of thepetitlon, the petitloner subm~tted a sublease 
agreement for a slngle bus~ness office dated February 1, 2004, valrd for the period from March 1. 2004 to 
December 3 1,2004. 
On March 29, 2004, the director issued a request for additional evidence. In part, the director requested that 
the petltloner subm~t the following ~nfonnatlon to establish that rt had secured adequate physical premises for 
the new U.S. company: 
WAC 04 120 50167 
Page 4 
Tme of Business: Describe, In detail, the type of business in the U.S., such as 
~mport/export, manufacturmg, sales, etc. 
Worksite: Define the workstte in the U.S, such as a sales office, representatwe agency, 
- 
Locabon: Explaln why the location for the busmess In the U.S. was chosen, and how the 
locat~on specifically benefits the type of business being conducted. 
Sub-Leased Premises: If the U.S. compjiny's prernlses are sub-leased, provlde a letter 
from the owner or property management company whlch confirms that the property 
owner has granted permission to the lessee to sublease to the U.S. company and that the 
U.S. company is actually occupying and maintaming the sub-lease agreement. The letter 
should be on the owner's or property management company's letterhead statlonary and 
should include the name, address and phone number of the owner or property 
management company should any further venficat~on be requ~red. Also, Include a copy 
of the contract between the owner and the lessee granting the permisslon/author~ty to sub- 
lease the space. Provlde copies of escrow documents or evidence of t~tle ava~table In the 
public records of the County Records Office, to establish who actually owns the property 
that is be~ng sub-leased. Fmally, ~nclude a letter from the U.S. Company as to why they 
do not maintain an independent buslness presence. 
The d~rector also requested a copy of the zoning map show~ng the locat~on of the petitioner's buslness 
premlses, evidence of an insurance pollcy that lncludes the petitioner and all ~ts facilities and equipment, a 
letter from the Insurer statlng their knowledge of the pet~t~oner's budding occupancy, and an occupancy 
perrnlt for the pet~ttoner 
In a response dated June 7, 2004, counsel for the petitioner indicated 'that the U.S. business would "develop, 
import and export software technology, equipment and services," and provided the follbwing explanation 
regarding the petitioner's sub-leased premises: , . 
The company temporarily will usi as its business location an extra office with its 
accountancy fim', at this initial stage of business. Since the company is 
newly established and its main business is software technology.development, it does not need 
a warehouse, factory or other substantial space at current time. 
The petitioner submitted another copy of the sublease agreement, and a copy of the master lease agreement 
for the suite in which the petitioner rents an office. Finally, counscl indicated"that the petitioner would 
purchase insurance and apply for an occupancy permit following approval of the instant petition. The master 
lease agreement was valid .for a three-year period ending on August 3 1,2004. 
The d~rector denied the pet~tlon on June 18, 2004 conclud~ng that the pet~t~oner had not submitted sufficient 
ev~dence that ~t had secured adequate physical premlses to house the new office. The drrector observed that 
WAC 04 120 50167 
Page 5 
the master lease agreement clearly prohibits the lessee from sub-leasing the premlses wlthout the wrltten 
consent of the landlord. As the pet~troner d~d not submit the requested evidence ihat the lessor had granted 
consent for the pet~tloner to sub-lease the premlses, the director found that the sub-lease agreement was 
~nvalld. 
On appeal, counsel for the petitioner acl&owledges that the petitioner failed to submit documentary evidence 
showing that the consent from the landlord has been obtained before the sublease took effect. ~ounskl states: 
"In fact, such consent was indeed obtained fiom the landlord, hut both the assignor and the assignee failed to 
document it, an omission that both the petitioner and the consul [sic] deeply ikgret." counsel notes that "the 
petitioner has been paying all the rental fees and complied with all the terms and conditions as contained in 
the sublease" . . and acquired a new lease on July 26,2004. 
In support of the appeal, counsel subrnrts an August 2, 2004 letter from the pres~dent of the properly 
In which the pet~tloner's sub-leased office IS located, who ind~cates 
a portion of its sulte to the pet~ttoner The property management's 
the Sublease. [The pet~troner] has determined that ~t would 
for 11s own offices. For this reason, [the petltloner] has now 
d~rectly leased fro the prem~ses descnbed ~n the attached Lease " 
October 3 1, 2004. 
The petlt~oner submlts a new lease for a different surte in the same burldtng valid from August 1. 2004 to 
Counsel's arguments are not persuasive.' The petitioner has not established that it had a valid lease agreement 
for sufficient physlcal premises to house the office at the time the petition was filed. The director observed 
that the petitioner was subleasing an office and reasonably requested that the petitioner subm~t documentary 
evidence to show that the petitioner's lessor had the consent of its landlord to sublease the space to the 
petitioner. The petitioner failed to respond to this request, although the, mas;ter lease agreement clearly 
indicates that the written consent of the landlord is required for any subleasing arrangement. The petitioner' 
also failed to respond to the director's request for a letter from the petitioner explaining why the US.. 
company does not maintain an independent business premises separate from its accountant's office. 
The ,regulation states 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 petition is filed. See 
8 C.F.R. 43 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). Furthermore, the non-existence or 
other unavailability of required evidence creates a presumption of ineligibility. 8 C.F.R. 9.103.2(b)(2)(1). 
Where, as here, a pet~tioner has been put on notlce of a deficiency In the evidence and has been glven an 
opportunity to respond to that defictency, the AAO need not accept evidence offered for the first tlme on 
appeal. See Matter of Sortano, 19 I&N Dec. 764 (BIA 1988); see also Mutter of Obazgbenu, 19 I&N Dec. 533 
(BIA 1988). Regardless, the evrdence subrnltted on appeal 1s msufficlent to overcome the director's iindmgs. 
The letter from the property management company merely confirms that the landlord IS aware of the sublease 
arrangement and has consented to ~t as of August 2,2004. more than SIX months after the sublease agreement 
WAC 04 120 50167 
Page 6 
was signed, and after the petitioner has already signed a new agreement for different premises. The record is 
stiIl devoid of documentary evidence that such consent was ganted to,the lessor at the time the agreement 
was slgned, in spite of the fact that the master lease explicitly requires fitten consent From the landlord. 
Golng on record without supporting documentary evidence is not sufficient for 'purposes of meeting the 
burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 1 58, 165 (Comm. 1998) (citing Mutter 
of Treasure Craji of Culifornia, 14 I&N' Dec. 190 (Reg. Comm. ,1972)). Further, the AAO notes that the 
master lease agreement was due to expire on August 3 1, 2004, while the sub-lease agreement was granted to 
the petitioner for a period ending on December 3 1, 2004, which raises further questions regarding the validity 
of the sub-lease. The petitioner is obligated to clarify the inconsistent and c'onflicting testimony by 
independent and objective evidence. Matter of Ho, 19 I&N Dec. '582, 591-92 (BIA 1988). Counse\'s 
assertion that "both the assignor and the assignee failed to document" the landlord's consent does not qualify 
as independent and objective evidence. Furthermore, evidence that the petitioner creates after CIS points out 
the deficiencies in the petition wlll not be considered independent and objective evidence. Necessarily, 
independent and objective evidence would be evidence that is contemporaneous with the event to be-proven 
and existent at the time of the director's notice. 
In addition, the petitioner has failed to submit secondary evidence that it was leasing and occupying the 
office, such as evidence that it was paying rent to the sub-lessor, evidence that it had obtained a business 
license, or evidence that it had established a telephone line separate from that utilized by the accounting firm 
that leased the office suite. Even if the AAO accepted the validity of the sub-lease agreement, the petitioner 
has not established that a single small office is adequate physical premises for the development, import and 
export of software. The petitioner has not described its anticipated space requirements for its business and the 
lease in question does not specify the amount of space secured. Even though the enterprise is in a preliminary 
stage of'organizational development, the petitioner is not relieved from meeting the statutory requirements. 
The evidence submitted in support of a new office petition should show that the company is prepared to 
commence business operations and should demonstrate a realistic expectation that the enterprise will succeed 
and rapidly expand as it moves away from the developmental stage to full operations. To establish eligibility, 
the petitioner must provide evidence that it has acquired sufficient physical premises from which to carry out 
his business plan. 
The petitioner submits a copy of a new lease agreement on appeal. The new lease agreement does not identify 
the amount of space leased and is for only a three-month period. Regardless, the petitioner must establish 
ellgib~lity 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. Matler of Michelin Tire 
Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). The petitloner did not submit evidence that it had acquired 
sufficient physical premises to house the new office at the time of filing. For this.reason, the appeal will be 
dismissed. 
Beyond the decision of the director, the petitioner has not persuasively demonstrated that the beneficiary's 
proposed role involves executive or managerial authority over the new operation, or that the,new'office will 
support a managerial or executive position within one year of approval of the petition. See 8 C.F.R. 
$6 2 14.2(1)(3)(v)(B) and (C). The petitioner described the beneficiary's proposed duties In only vague terms, 
noting that she will "oversee the entire operation of the subsidiary,". "hire and train more employees" and 
WAC 04 120 50167 ' 
Page 7 I- t 
"control the subsidiary's financial records." The petitioner did not, however, indicate what specific 
managerial or executjve duties would be encompassed by overseeing the company or contro1ling its financial 
records, nor did it specify what types.of employees the beneficiary would be hiring and training. Specifics are 
clearly an importantlindication of whether a beneficiary's duties are primarily executive &r managerial in 
nature, otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. 
Co., Lld. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). The petitioner also 
I indicated that the beneficiary would supervise a sales employee, as well as "examine the US market 
conditions," "draft btsiness proposals," and "contact with US companies, negotiate contracts, and enter into 
. business agreements.:' Wlthout further explanation, these duties appear to describe an employee engaged in 
sales, marketing and first-line supervisory tasks. These duties do not appear to be incidental to the 
beneficiary's daily duties. The beneficiary's duties associated with these activities wouId not comprise 
primarily manageria? or executive functions. An employee who primarily perfornis the tasks necessary to 
produce a product or provide services is not considered to be employed in a managerial or executive capacity. 
Ma!!er of Church Scientology International, 19 I&N Dec. 583,604 (Comrn. 1 988). 
Further, although sp<cifically requested by the director, the petitioner has not provided a description of the 
proposed staffing of \he new office, including the proposed number of employees and types of positions they 
will hold. Instead, the petitioner referred to a February 18, 2005 letter from the foreign entity which indicates , . 
that the company intends to employ the beneficiary, a "salesman," a president who will.be primarily lqcated 
in China, and "more kaff." In response to the director's request for a business plan including specific details 
as to how the businebs is to be conducted within one, three and five-year projections for business expenses, 
sales, gross Income land profits or losses, the .petitioner submitted a three-page document that lacks the 
detailed information :requested by the director. For example, the business plan indicates that the company 
plans to transfer two managers, and hire a local professional sales person and four or five engineers, but does 
not provrde a timeline for its hiring plan. Again, going on record without supporting documentary evidence is 
not sufficient for pufposes ,of meeting the burden' of proof in these proceedings. Matter ofsoffici, 22 I&N 
Dec. 158, 165 (~omrh. 1998) (citing Matter of Treusure CF& of Calrfornia, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The evidence on record is insufficient to 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. 
S; 2 14.2(1)(3)(v)(C). For this additional reason, the appeal will be dismissed. 
Finally, the AAO notes that a search of the California Department of Sgte's hternet site 
(http:~~keplcr.ss.ca.govlcorpdata) shows the petitioner's corporate status as "dissol-ied" as of this date. It is 
fundamental to this nbnimmigrant classification that there be a United States entity to employ the beneficiary. 
In order to rneet'the!definition of "qualifying brganization," there must be a United States employer. See 
8 C.F.R.' 4 214.2(1)(1j(ii)(~)(2). As it is assumed that any dissolution occurred subsequent to the filing of the 
instant appeal, the MO notes the deficiency for the record and will not discuss this issue further. 
An applicat~on or petftion that falls to comply w~th the technical requ~rements of the Iaw may be denled by the 
AAO even ~f the Serv~ce Center does not ~dentlfy all of the grounds for denla1 in the rnstral declsion See 
Spencer Enterprises, Ync v Unlted States, 229 F. Supp 2d 1025, 1043 (ED. Cal. 2001), ard. 345 F.3d 683 
(9th Or 2003); see 41.~0 Dor v INS, 891 F.2d 997, 1002 n 9 (2d Clr 1989)(notmg that the AAO revlews 
appeals on a de novo bass). 
WAC04 12050167 
Page 8 
The pet~t~on will be denled for the above stated reasons, w~th each considered as an ~ndependent and 
alternative basis for denlal. In visa petltron proceed~ngs, the burden of prov~ng elig~billty for the benefit 
sought remains entirely with the pet~honer. Sect~on 291 of the Act, 8 U.S.C. 4 1361. Here, that burden has 
not been met 
L 
ORDER: The appeal is dismissed.