dismissed L-1A Case: Construction Materials

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: SRC 02 041 52639 Office: TEXAS SERVICE CENTER Date: .u 11 0 5 2005 uw I.. .J - - 
IN RE: Petitioner: 
to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 9 1101(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. 
'7 
obert P. Wiemann, Director 
ed,nistrative appeals Office 
SRC 02 041 52639 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, Texas Service Center, 
and is now before the Administrative Appeals mce (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner, states that it is a wholly-owned subsidiary of - 
located in Colombia. The petitioner was incorporated in the State of Florida on November 
15, 2000 and plans to operate its business as a provider of construction materids. The petitioner 
seeks to hire the beneficiary as a new employee to open its U.S. office. Accordingly, in 
November 2001, the U.S. entity petitioned Citizenship and Immigration Services (CIS) to classify 
the beneficiary as a nonimmigrant intracompany transferee (L-1A) pursuant to section 
lOl(a)(15)&) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 101(a)(15)(L), as an 
executive or manager for three years. The petitioner endeavors to employ the beneficiary's 
services as the U.S. entity's Genera1 Manager at an annual salary of $30,000. 
On May 30, 2002, the director denied the petition. The director determined that the petitioner did 
not have sufficient physical premises to house the new office. 
On appeal, the petitioner's counsel states that the petitioner has sufficient physical premises to 
house the new business. 
To establish L-1 eligibility under section lDl(a)(lS)(L) of the Immigration and Nationality Act 
(the Act), 8 C.S.C. 5 1 lOl(a)(lS)(L), the petitioner must meet certain criteria. Specifically, within 
three years preceding the beneficiary's application for admission into the United States, 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. 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. 
Pursuant to 8 C.F.R. 5 214.2(1)(3), an individual petition filed on Form 1-129 shaIl 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 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 qualifying 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 managerid, executive, or involved specialized knowledge and that the aIienYs prior 
education, training, and employment qualifies himlher to perform the intended services in 
SRC 02 041 52639 
Page 3 
the United States; however, the work in the United States need not be the same work 
which the alien performed abroad. 
Pursuant to 8 C.F.R. § 214.2(1)(3)(~), if the petition indicates 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 subrnit evidence that: 
(A) Suff5cient 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 manageria1 
capacity and that the proposed employment involved executive or managerial 
authority over the new operation; 
(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 (I)(l)(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. 
The issue in this proceeding is whether the petitioner has secured sufficient physical premises to 
house the new office. 
Initially, the petitioner did not submit a copy of the lease or photographs for the U.S. entity. 
Therefore, on January 9, 2002, the director requested that the petitioner submit a copy of the 
business lease or evidence of the purchase of facilities for the U.S. entity's business. 
In response to the request for additional information, the petitioner submitted an Oc 
on November 1, 2001 for the property a 
ough the document was labeled "Lease Commercial," the 
use only. 
On May 30, 2002, the director denied the petition because the lease was restricted to residential 
use of the premises rather than commercial use of the premises. The lease stated: 
USE OF PREMISES. The premises shall be used and occupied by Tenant 
exclusively as a private single family residence, and no part of it shall be used by 
Tenant at any time during the term of this lease for the purposes of carrying on 
SRC 02 041 52639 
Page 4 
any business, profession, or trade of any kind, or for any other purpose other than 
as a private single family residence. 
On appeal, the petitioner submits a "service agreement" and supporting documents. The 
document indicates that the agreement was made and entered into on June 18,2002 for a 
three months and renewable monthly. The a ess Identity" services a 4iiim 
e petitioner will pay $145 per 
The petitioner states that the U.S. entity-has at this time sufficient physical premises to house the 
new office." However, 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 of Michelin Tire 
Cop., 17 I&N Dec. 248 (Reg. Comm. 1978). Therefore, at the time of filing on November 16, 
2001, the petitioner did not have sufficient physical premises to house the new office. 
In addition, the petitioner failed to establish sufficient physical premises to house the new office 
at the time of the director's request for additional information on January 8,2002. The purpose of 
the request for evidence is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established. 8 C.F.R. 8 103,2(b)(8). The petitioner was put on notice of 
the 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 AAO will not consider this evidence for any purpose. Matter 
of Soriano, 19 I&N Dec. 764 (BIA 1988). The appeal will be adjudicated based on the record of 
proceeding before the director. In sum, the petitioner has not secured sufficient physical premises 
to house the new office. See 8 C.F.R. 8 214.2(1)(3)(~). For this reason, the petition may not be 
approved. 
Beyond the decision of the director, the AAO finds that the beneficiary has not been employed in 
a managerial or executive capacity abroad as defined at section lOl(a)(44) of the Act, 8 U.S.C. 3 
1101(a)(44). As previously stated, to establish L-1 eligibility under section 101(a)(15)(L) of the 
Act, 8 U.S.C. 5 llOl(a)(lS)(L), the petitioner must submit evidence that within three years 
preceding the beneficiary's application for admission into the United States, the foreign 
organization employed the beneficiary in a qualifying managerial or executive capacity, or in a 
specialized knowledge capacity, for one continuous year. Id. On Form 1-129, the petitioner stated 
that the beneficiary oversees the operation of the foreign entity. In addition, in an October 15, 
2001 supporting letter, the petitioner stated that the beneficiary is responsible for increasing the 
sales of the company by identifying depressed markets, providing support for dealers, and acting 
as a liaison. However, the petitioner submitted a limited and vague description of the 
beneficiary's foreign duties. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). In sum, the AAO is not persuaded 
that the beneficiary has been employed in a primarily managerial or executive capacity abroad. 
For this additional reason, the petition will not be approved. 
SRC 02 042 52639 
Page 5 
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. Unifed States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 20011, afd. 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 reviews appeals on a de novo basis). 
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. 5 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal isdismissed.