dismissed L-1A Case: Construction

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identifYingdatadeletedto .
preventclearlyunwarranted
'invasionofpersonalprivacy
PUBLICcow
U.S. Department of'~lomeland Security
20 Massachusetts Ave" N,W" Rm, 3000
. Washington, DC 20529
u.s.Citizenship
and Immigration
Services ' .
File: SRC 05 229 51855 Office: TEXAS SERVICE CE~TER· Date: /'fAR 062007
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the'
Immigration-and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
, ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the AdministrativeAppeal~ Office in your case. All docum~nts ha;e been returned'
to the office that originally decided your case. Any further inquiry must be made to that office.
.... ~~
~obert P. Wiemann, Chief' ,
"Administrative Appeals Office
SRC 05 229 51855
.Page 2
DISCUSSION: The Director, Texas Service Center , denied the petit ion for 'a nonimmigrant visa. The
matter is now ·before the Administrative Appeals Office (AAO) o~ appeal. . The AAO will dismiss the '
appeaL
,The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of president
as an L-1A nonimmigrant intracompany transferee pursuant to section 101(a)(1~)(L) of the Immigration arid
Nationality Act (the Act) ; 8,U.S .C.§ 1101(a)(15)(L) . The petitioner , a Texas limited liability company ,
states that it is . in the construction business: The petitioner claims to be an affil iate of••••••••
located in Pakistan. The pet itioner seeks to employ ,th. e beneficjaryfor a period of one year to open a new
office in the United States .
The director denied the petition on December 7, 2005 , concluding that the record contains insufficient
evidence to demonstrate that sufficient funding or capitaiization was provided to the U.S. entityfrom the
foreign entity.
, The petitioner filed a timely appeal on January 9, 2006. ' On appeal, counsel for the petitioner explained that
, the beneficiary brought $20 ,000 in cash when he entered the United States. In addition, counsel states that an
"additional $14,000+ was transferred by August 2005 to the U.S. company." Counsel further states that the
funds are sufficient for the United States company to commence business, and the foreign company has a net
worth of $2 million dollars -and can transfer additional funds to the U .S. entity if needed. The petitioner
submits a brief and copies of previously submitted documents in support of the appeal. .. . . . '. .
To establish eligibility under section 101(a)(15)(L) of the Act , the petitioner must meet certain criteria.
Specifically , within three years preceding the beneficiary 's application for admiss ion into the United
States, a firm, corporation , or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous 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.
The regulation at 8 C .F.R. § 214.2(1)(3) further 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 (l)(l)(ii)(G) of this
section .
.(ii) Evidence that , the ' alien will ,be employed in an executive , managerial, or
specialized knowledge .capaci tY, 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
abrbad with a' qualifying organization within the three .years preced ing the filing
of the petition. ' .
'.
. SRC 05 229 51855
Page 3
. .
(iv) Evidence that the alien 's' prior year of employment abroad was in a position that
was managerial , executive or involved ~pecialized knowledge and that the alien's
prior education, training, and employment qualifies him/her 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.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) stat,es that if the petition indicates that the beneficiary
is coming to the United States as a manager or executive to open or to be employed in a new office in the
United States, the petitioner shall submit evidence that:
(A) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three year period
preceding the filing of the petition in an executive or managerial capacity and that the
proposed employment inv~lved 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 anexecutive or managerial position as defined in paragraphs (l)(l)(ii)(B) or (C)
of this section, supported by information regarding:
(l) 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 issue in this proceeding is whether .sufficient funding or capitalization was provided to the U.S . entity
from the foreign entity . The regulation at 8 C.F.R. § 214.2(l)(3)(v)(2) requires the petitioner to submit :
evidence of the size of the United States investment and .the ability to commence doing business in the United
States .
The nonimmigrant petition was filed on August 17,2005 . The petitioner submitted with the original petition
two statements from the Bank of America indicating two wire transfers were deposited into the U.S.
company's bank account. One wire transfer was madeon July 6, 2005 and originated from an "t . , JOJ1 in
the amount of $4,975.00. The second wire transfer was made on July 11,2005 , which also originated from
'•••• in the amount of $8;975.00. Both wire -transfers originated from . The
petitioner also subm itted a Union Bank statement ,.dated May 19, 2005 , the beneficiary's foreign savings
deposit account in Pakistan. . ' . .
SRC 0522951855
. Page 4
On August 24, 2005, the director requested additional .information in order to proceed with this petition. In
part, the directo~ requested: evidence of sufficient funding for the U .S. entity such'as copies o 'f wire transfers
showing transfers of fund from the foreign organization , evidence of financial resources committed by the
'. foreign company , copies ot-bank statements for checking and savings accounts, profit and loss statements, or
other accountants' reports.
In the petitioner's response dated November 22, 2005, the petitioner submitted: (1) one copy of a statement
from the Bank of America that indicated a wire transfer on November 17, 2005 from" . ' . J Tand credited
to the beneficiary.jn the amount of $8;965.00; (2) one copy of a statement from the Bank of America in the
;U.S. company's name " dated July.2005, indicating two wire transfers in July 2005. One wire transfer
occurred on July 6,2005 , inthe amount of $4,975.00. The sec~nd wire transfer occurred on July 11, 2005 in
the amount of $8,975.00. Both wire transfers originated from~' '(3) a copy of the letter by Union
Bank, in Karachi , Pakistan , which is the foreign entity's bank, indicating the details of a "Term Deposit in
Favor of [the beneficiary]"; and (4) a .copy of the deposit certificate in the name of the beneficiary and the
.foreign company. The petitioner indicated that the termdeposit is due to mature on May 22 ,2006, and noted '
that the RS 4 ,000,000 .00 deposit is equivalent to $92,000 . The petitioner provided, partial copies of its ,
.' business checking account statements 'for the month of May through October 2005, with a depositof$20,000~
,The account balance as of the .date offiling appears to have been slightly less than $4,000.
The di~ector denied the petition concluding that the petitioner failed to provide sufficient e~dence that
sufficient funding or capitalization of the United States company has been provided by the foreign company.
, On appeal, counsel for the petitioner asserts that $20,000 was deposited in the U.S. company's accourit. On
the Form 1-290B, Notice of Appeal, counsel states that the beneficiary "brought $20,000 in cash, which he
cleared with Customs upon entry to the U.S ." In addition , counsel asserts "two wire transfers ~eremade by
the corporate accountant of the foreign entityto the U.S. company account in July 2005. " Firrthennore, '
counsel states that the foreign entity has a net worth of "app!oximately $2 million USD." In addition, the
petitioner re-submits the bank statement from the Bank of America for the period ending May 31 2005,
..which indicates an ending balance for the U.S. company's account of $20.000. The petitioner also submits
the bank statement for the Bank of America 'for the period ending July 31, 2005, indicating two wire transfers
originating from Ii' . , r r In addition, the petitioner submits information of property 'investments ,
agreements , and bank statements for the,foreign company. ' ' , .
.The petitioner submitted a one-page business planthat does not establish the U.S. company 's anticipated
start-up expenses and its it therefore not possible to detennine what investment amount would be
sufficient. Therefore, even assuming , arguendo, that the approximately $33,059 transferred into the U.S.
company 's bank account as of August 2005 , the -date the instant petition was' filed, was intended to be
used as capitalization for the new U.S. company , the AAO could not conclude that this amount is '
adequate for the U.S. company to commence doing business i~ the u.s. Tlie petitioner has not disclosed
the size of the U.S. investment, as required by 8 C.F.R. § 214 .2(1)(3)(v)(C)(2). 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 1&N Dec. 158 , 165 (Comm. 1998) (c,iting¥atter of Treasure Craft of '
California, 14 1&N Dec. 190 (Reg . Cqmm.1'972)). . '
SRC 05 229 51855
Page 5
Furthermore, on appeal, counsel for the petitioner states that the beneficiary entered the United States with
the $20,000 in cash. However, when the -instant petition was 'filed on August 17, 2005, the bank statement for
the U.S: company's account indicates a balance of $2,717.48. The petitioner did not present evidence that the
.majority of the $20,000 was ,utilized for start-up expenses. Since the petitioner has not explained how the
funds were used, and since the petitioner did not provide a business plan with anticipated start-up costs for the
U.S. entity, it is not clear if the petitioner has secured sufficient funding or capitalization froni the foreign
company. 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) .
Furthermore, in reviewing the two wire transfers,made on July 6 ,2005 and July 11 , 2005 in the amounts of
, $4,975.00 and $8,975.00, respectively, isinsufficient to establish funding to the U.S. entity from the foreign
company or the beneficiary since the wire transfers originatedfrom " , . ']"," rather then from the foreign
company, Defence Builders. Without ' further documentation; .the information provided indicates funding
from H ': ' Jrand does not ind'ic~te the required funding from the foreign company or the beneficiary. In
addition', on appeal, counsel for the petitioner asserts that "two wire ·transfers were made by the corporate ,
accountant of the foreign entity.'" However, in reviewing the organizational chart for the foreign company,
. the accountant is ' and the chart does not list an (f " 1 Y' as the originator of the two wire
transfers, as employed by the foreign company. Furthermore, the petitioner stated that the foreign company's
'bank is Union Bank. However, the two wire transfers origiriated from Soneri Bank 'Limited. It-is incumbent .
upon the petitioner to resolve any incons istencies 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. 58~, 591-92
, '(BIA 1988) .
Upon review, the documentation submitted by the petitioneris insufficient to establish that funding to the
U.S. entity was provided by the foreign company.,' The petitioner failsto submit documentation of funding
from the foreign company such as evidence of wire transfers .from the foreign company or the beneficiary
into the U.S. entity's company bank account, cancelled checks, or deposit receipts. In addition.fhe petitioner
did not submit a business plan indicating the estimated business costs in establishing the new U.S. office.
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. Based on the insufficiency '
, '
of the information furnished, it cannot be concluded that the petitioner has secured a suffi?ient financial
'investment from the foreign company.
Beyond the decision of the director, the petitioner has not submitted 'sufficient e.vidence to demonstrate '
'that the intended U .S. operation ; within one year of the approval ofthe petition , will support an executive
or managerial position . Specifically , the petitioner has not adequately defined the proposed nature 'of the
office , and has not realistically described ' the scope of the, entity, its ' organizational structure and its
financial goals. See 8 C.F.R. § 2~4.2(l)(3)(v)(C).
·SRC 05 22951855
Page 6
Accordingly, if a petitioner indicates that a beneficiary is coming to the United States to open a "new
office," it-must show that it is ready to commence doing business immediately upon approval so that it
will support · a manager or executive within the one-year ' timeframe. . See generally, 8 C.F.R . §
214 .2(1)(3)(v) ~ At the time of filing the petition to open a "new office.va petitioner must affirmati vely
demonstrate that it' has acquired sufficient physical premises to house the new office and that it will .
support the beneficiary in amanagerial or executive position within one year of approval. Specifically,
the petitioner must describe the nature ofits business, its proposed.organizational structure and financial
goals, .and submit evidence to show that it has the financial ability to remunerate the beneficiary and
commence doing business in the United States. Id. After one year , CIS willextend the validity"of the
.new office petition only if the entity demonstrates that it had .been doing business in a regular, systematic,
and continuous manner "for the previous year." '8 C.F.R. § 214.2(1)(14)(ii)(B)~
Furthermore, as contemplated by the regulations, a comprehensive business plan should contain , at a
minimum, a description of the business , i,tsproducts and/or services, and its objectives. See Matter ofHo,
22I&N Dec. at 213. Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter ofHo is instructive as to the cont~nts of an acceptable
business plan: .
The plan should contain 'a market analysis, including the names of competing businesses
and their relative strengths and 'weaknesses, a comparison of the competition's p~oducts ' .
and pricing structures, and a description ofthe target 'market/prospective customers of the
new commercial .enterprise. The plan should ,list 'the required permits and licenses .
obtained. If applicable, it should describe the manufacturing or production process, the
materials required, and the supply sources . The plan should detail any contracts executed ..
'. for the supply of materials and/or the distribution of products. It should discuss the
marketing strategy of the business, including pricing, advertising, and servicing. The plan
should set forth the business's organizational structure and Its personnel's experience. It
should explain the business's staffing requirements. and contain a timetable for hiring, as ,
well as job descriptions for all positions. 'It should 'contain sales, cost, and income
projections and detail the bases therefore. Most importantly, the business plan must be
credible . '
!d.
The petitioner submitted a one-page business plan that states that the goal is to start a new business in the
United States "concentratingin the construction industry" and "to focus oil remodeling existing properties
such as homes , shopping centers, ' and condominiums." The business plan fails to outline the intended
scope of the U.S. entity ,'its funding requirements and financial objectives , and how the U .S. entity will
reach the listed goals and 'plans. and. if it is financially feasible to do so. Going oil ~ecord without .
supporting documentary evidence is not sufficient for purposes of meeting the burden of proon~ these
' . . ~
proceedings . .Matter ofSofJici, 22.I&;N Dec. at 165.
In' addition, the record is not persuasive in demonstrating that the beneficiary would be .employed in a
managerial' or executive capacity as defined at section 101(a )(44) of the ActOn the Form I ~129 , the
! . '
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Page 7
'petitioner stated that the U.S. ,company plans 'to hire ten to twelve employees : However , the petitionerdid
.not explain when the U ~S . company plans to hire the estimated emplo yees , and did not explain the
position titles and job duties of the proposed employees. In addition, the petit ioner did not explain the
anticipated structure of the U.S. organization at the end of the ·first year of operations. Based upon, the
'lack of 'comprehensive job descriptions for the ' proposed employees , the lack of evidence of the,
, company's staffing levels, and the lack of a hir ing plan , the AAO cannot determine if the beneficiary will .
be employed in a managerial of executive capac ity within one year. '
The petitioner 's minim~l evidence regarding its proposed business, the lack of job descriptions for the ,
beneficiary and his 'proposed subordinates, and the lack of evidence to establish the funding of the new
entity, collectively, fail to demonstrate a realistic , expectation that the proposedenterprise will succeed
and rapidly expand as it moves ' away from the development stage to full operations, where 'there would be ,
,an actual need for ,a manager or executive who will perform primarily qualifying duties. For this
add,itional reason, the appeal will be dismissed .
Another issue not addressed ,by the director is whether the petitioner had secured, sufficient physical
, premises to house the new office , as required by 8 C.F ~R. § 214.2(1)(3)(v)(A) . The petitioner submitted a
signed lease agreement dated August 16;.2005. The term of the lease is for only six months ; commencing
, in October 2005 and ending in March 2006. In addition ; the lease will commence nearly two months after
the date the instant petition was filed. The petitioner must establish eligibility 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. Matter ofMichelin TireCorp. , I) I&N Dec. 248
(Reg . Comm. 1978) : Moreover, the petitioner has not describedits anticipated space requirements for the
new business , arid the lease in question does not specify the amount or type of space ·secured. Based on ,
the insufficiency of the information , furnished , it cannot be concluded that the petitioner had secured
sufficient space to house the new office. For this additional reason, the appeal is dismissed. " ,
Beyond 'the ) decision ,' of the director, it does not appeal that the foreign company is a qualifying
'·.organization currently doing business as required by 8 C.F.R. § 2142(1)(3) . ' The director specifically :
. . requested evidence of the viability of the foreign entity. In the petitioner's response , the petitioner
'submitted several bills and invoices that were issued to unknown individuals , rather than to the foreign .
company. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent
, ' .. I. . .
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; Matt er of Ho, 19 I&N
Dec . at 591-92. ,The petitioner did not submit anydocumentation that the foreign company is current
.: doing business as'required by 'the regulations. FOfthis addit ional reason , the appeal will be dismissed.
, .An application or petition that 'fails to comply with the technical requirements of the law may be denied
,, by the AAO e ven if-the Service Center does not 'identify all of the wounds for denial in the initial
-decision. See Sp encer Enterprise s, Inc . v.United States, 229'F. Supp . 2d 1025 , '1043 (E.D. Cal. 2001) ,
, . aff'd. 345 F.3d '683 (9th Cir. 2003); see also Dor v. INS,891 F.2d 997 , 1002 n .-9 (2d Cir. 1989)(noting
that the AAO review s appeals on a de novo basisj ..
The petition will be denied for the above stated reasons, with each considered as an independent and
·.. .
SRC 0522951855
Page 8
alternative basis for the decision, In visa petition proceedings , the burden of proving eligibility for the
benefit sought remains entirely with the petitioner. Section 291 ofthe Act , 8U$.c. .§ 1361. Here, that '
burden has not been met. Accordingly , the appeal will be dismissed. r
. ORDER: The appeal is dismissed.
,.,