dismissed L-1A Case: Construction Materials

u.s. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services .
FILE: SRC 05 225 50357 Office: TEXAS SERVICE CENTER Date: MAR 0 1- 2007
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. § llOl(a)(15)(L)
ON BEHALF OF PETITIONER:
L.
INSTRUCTIONS:
This is the decision of the Administrative Appeais 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 ..
.. ~~~obert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 05 225 50357
Page 2
DISCUSSION: The Director, Texas 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, a Texas corporation, claims that it is engaged in the import and export of construction
materials. The petitioner states that it is a subsidiary of
located in China . Accordingly, the 'United States entity petitioned Citizenship and Immigration Services
(CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-IA) pursuant to section
1oI(a)(l5)(L)of the Immigration and Nationality Act (the Act), 8 U.S .c. § 110I (a)(l5)(L). The
petitioner was initially granted a one-year period of stay to open a new office. The petitioner now seeks
to extend the beneficiary's stay in order to continue to fill the position of president for a three-year period.
The director denied the petition on April 18, 2006, concluding that the . record contains insufficient
evidence to demonstrate : (I) that the beneficiary will be employed in a primarily executive or managerial
capacity by the U.S. company; and (2) that the p.S. company is doing business on a continuous and
systematic basis. The director noted that it did no~ appear that the beneficiary supervises a staff of
professional, managerial of supervisory personnel who will relie ve the beneficiary from performing non­
qualifying duties , and thus the beneficiary will be primarily involved in performing the day-to-day
services essential to running a business .
On appeal, counsel for the petitioner states that during the time period of August 22, 2004 through August
26,2005, the U.S . entity employed "at least three workers. " Counsel explains that two individuals were
employed to fill the positions of accounting and office clerk. In addition, counsef states that "other 2005
employees were hired as temporary help in the amount of $2,959.20." In addition, counsel for the
petitionerasserts that the beneficiary 's function isto manage the organization. Finally , counsel contends
that the petitioner submitted documentation with the original petition to evidence t~at the U.S. entity has
been doing business for the past year. Counsel for the petitioner submits a brief and additional
documentation in support -ofthe appeal.
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission 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 serv ices 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 tha~ 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 (1)(I)(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.
SRC 05 225 50357
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(iii) Evidence that the alien has atleast one continuous year of full time employment
abroad with a qualifying organization withi:t:tthe 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 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 alienperformed abroad .
The regulation at 8 C.F.R. § 214 .2(l)(l4)(ii) also provides that a visa petition, which involved the opening
of a new office, may be extended by filing a new Form 1-129, accompanied by the following:
. '.
(A) Evidence that the United States and foreign entities are still qualifying
organizations as defined in paragraph (l)(l )(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(l )(ii)(H) of this section for the previou s year ;
(C) A statement of the duties performed by the beneficiary for the previous year and
the duties the beneficiary will perform under the extended petition;
(D) A statement describing the staffing of the new operation , including the number of
employees and types of positions held accompanied by evidence of wages paid to
employees when the beneficiary will be employed in a managerial or executive
capacity; and
(E) Evidence of the financial status of the United States operation.
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary
will be employed in a primarily managerial orexecutive capacity.
Section 101(a)(44)(A) of the'Act, 8 U.S.C. § 110I(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) supervises and controls the work of other supervisory, professional , or managerial
employees, or manages an e ssential function within the organization , or a department or
subdivision of the organization;
SRC 05 22550357
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. (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 directly 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 101(a)(44)(B) of the Act , 8 U.S.c. § nOl(a)(44)(B) , provides:
The term "executive capacity" means an assignment within an organization in which the ~mployee
primarily-
(i) directsthe management of the organization or a major component or function of the
organization ;
(ii) establishes the goals and policies of the organization, com~onent, or function ;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general superv ision or direction from higher level executives, the
board ofdirectors , or stockholders of the organization.
The nonimmigrant petition was filed on August 12,2005. The Form 1-129 indicates that the beneficiary will
be employed in the position of president for the petitioner , which claimed to have two employees . The
petitioner indicated on the Form 1-129 that the beneficiary 's proposed duties in th~ United States are the
following:
Direct to [sic] set up & management of the Houston branch operation, establishing the
organization , component or functions . Exercise discretion over the day operation ; seek new
business and contracts and actively market the company.
In addition, in a letter dated April 15,2005, subm itted by the general manager of the foreign parent company ,
the beneficiary 's proposed duties in the U.S. are described as the following :
. (1) Expanding market, developing business
(2) Establish structure organization
(3) Managing other employees
(4) Making business decisions
The petitioner also submitted the' organizational chart of the U.S. entity . .The chart indicates the beneficiary
as president who supervises "employee I", "employee 2" and "employee 3". The petitioner also submitted
. the company 's Form 941, Employer's Quarterly Federal Tax Return, for the last three quarters of 2004 and
SRC 05 225 50357
Page 5
the first quarter of 2005 which indicated that the U .S. entity did not hire any individuals as of March 2005.
The petitioner also submitted copies of its Texas ' state, quarterly wage reports, which showed that the
petitioner paid wages to _ during the second quarter of 2004, to "_and the beneficiary ,
during the third quarter of 2004, and no wages .during the-fourthquarter of 2004 and the first quarter of 2905.
On August 29, 2005" the director determined that the petitioner did not submit sufficient evidence to process
the petition. The director noted that the petitioner indicated in the petition that the U .S. entity currently '
employs two individuals , including the beneficiary. The director requested that the petitioner submit a
description ofthe positions held by each employee, including all duties performed and documentary evidence
of the educational credentials held by each individual.
In the response to the director's request, the petitioner submitted a letter dated November 10,2005 indicating
that the U.S. entity employed one assistant manager and one office clerk. The letter stated that the assistant
manager is responsible for "investigation of market , interaction with clients, collecting market information
, and translating." The beneficiary also indicated that the duties performed by the office clerk are "products
purchasing , market development , negotiation of import ' and export goods with clients , participating .in
business meetings ; and purchasing products in China ." The beneficiary also indicated that -the assistant
manager has earned an associate 's degree and the office clerk has a high school diploma .. "-- ~ . . . .
The director denied the petition on April 18, 2006 on the ground that insufficient evidence was submitted '
to demonstrate that the beneficiary will be employed in a primarily executive or mariagerial capacity 'by
the U.S. company. The director noted that the petitioner did not submit documentation to confirm the
employment of the assistant manager and the office clerk at the .U.S. entity. The director also stated that '
according to the documentation submitted , it appears that the beneficiary is 'the only individual 'employed
by the U.S . company.
The petitioner submitted an appeal on May 22, 2006 . On appeal, counsel for the petitioner restates the '
beneficiary's proposed duties as the president of the U .S. company. In addition , counsel states that fr~m
August 2004 until August 2005, the U.S. company employed at least three individuals. Counsel asserts
that the two employees filled an accounting position and the second job title is not identified. Counsel
further states that the U.S . entity hired "temporary help" in 2005 who was compensated in the amount of
$2959.20. Finally , counsel states that the submitted documentation "demonstrate two basic requirements
in the Executive Capacity ;" including that the beneficiary "exercises wide latitude in discretionary
decision-making by hiring of employees and receives only general supervise or d irection ' from higher
, level. executives , the board of directors , or stockholders of the organization." On appeal , the petitioner
submitted the Form 941 , Employer's Quarterly Federal Tax Return ; for the fourth quarter of 2005 , which
ind ~cated that the U.S. company employed two individuals. In addition , the petitioner submitted the Fo~
W-2 for the individual indicated as the "office clerk" in the director 's request for evidence. This
individual recei ved wages in the amount of $3600 .00 in 2005. According to the petitioner 's 2005 IRS
Form 1120, U.S. Corporation Income Tax Return , the petitioner paid a total of $8,100 in salaries and
wages , with the beneficiary receiving $4,500. All ofthese wages were paid in the fourth quarter of2005 .
Counsel's assertions are not persuasive. Upon r eview .of the petition and evidence , the petitioner has not
established that the beneficiary will be employed in a managerial or executive capacity. When examining the '
executive or managerial capacity of the beneficiary , the AAO will look first to the petitioner's description of
SRC 05 225 50357 .
Pag~ 6
thejob duties. See 8 C.F.R. § 214.2(1)(3)(ii). The petitioner's description of the job duties .must clearly
descri~ the duties to be performed by the beneficiary and indicate .whether such duties are either in an
executive or manag~rial capacity. Id.
The definitions of executive and managerial capacity have two parts. First , the petitioner must show that
. the beneficiary performs the high-level respons ibilities that are specified in the definitions. Second , the
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not
spend a majority of his or her time on day-to-day funct ions. Champion-World, Inc. v. INS, 940 F.2d 1533
(Table), 1991 WL 144470 (9th Cir. July 30, 1991).
The petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in managerial
duties under section 10l(a)(44)(A) of the Act, or primarily executive duties under section 101(a)(44)(B)
of the Act. Instead, on appeal , counsel for the petitioner asserts that the beneficiary will hold a position
that is primarily managerial in nature, and that the beneficiary's position "demonstrates two basic
requirements in the Executive -Capacity." A beneficiary may not claim to be employed as a hybrid
. "executive/manager" and rely on partial sections of the two statutory definitions . Ifthe petitioner chooses
to represent the beneficiary as both an executive .and a manager , it must establish that the beneficiary
meets each of the four criteria set forth in the statutory definition for executive and the statutory definition
for manager.
The .beneficiary's proposed -job description includes vague duties such as the beneficiary will be
responsible for "expanding market, developing business"; " establish structure organization" ; "managing
other employees;" "making business decisions" and "seek new business and contracts and actively market the
company." Reciting the beneficiary's vague job responsibilities or broadly-cast business objectives is not
sufficient ; the regulations require a detailed descript ion of the beneficiary's da ily job duties. The
petitioner has Jailed to provide any detail or explanation of the beneficiary's activities in the course of his
daily routine. The actual duties themselves will reveal the true nature of the employment. Fedin Bros.
Co., Ltd. v.Sava, 724 F. Stipp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F.2d 41 (2d. Cir. 1990).
Based on the current record , the AAO. is unable to determine whether the claimed managerial duties
constitute the majority of the beneficiary's duties, or whether the beneficiary primarily performs non­
managerial administrative or operational duties. An employee who "primarily" performs the tasks
necessary to produce a product or provide a service is not considered to be "primarily" employed in a
managerial or executive capacity . See sections .101(a)(44)(A) and (B) of the Act (requiring that one
."primarily" perform the enumerated managerial or executive duties); see also Matter of Church
Scientology International , 19 I & N Dec . at 604.
According to the petitioner's statement on Form 1-129 , the U.S. company has two employees. The
petitioner submitted an organizational chart of the U.S. entity indicating that the beneficiary supervises
three employees who were not identified by name orjob title. In response to the director 's request for
evidence, the-beneficiary stated that the U .S. company currently employs the beneficiary as president , one
assistant manager and one office clerk. On appeal , counsel for the petitioner states that the U.S . company ­
employed one indi vidual in accounting , one individual who was not provided a title , and one temporary
employee from August 22 , 2004 through August 26 , 2005. The petitioner has described the staffing level
of the U.S. company three different ways. It is incumbent upon the petitioner to resolve any
SRC 05 225 50357
Page 7
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 ofHo, 19 I&N Dec. 582,591-92 (BIA 1988).
In addition, the petitioner submitted the U.S. company's Form 941, Employer's Quarterly Federal Tax
Report, forthe last three quarters of 2004 and the first quarter of 2005 which indicated that the U.S.
company did not have any employees. On appeal, the petitioner submitted Form 941 for the last quarter
of 2005 which indicated that the U.S. entity employed two individuals. However, the petitioner has not
submitted evidence to establish that the beneficiary supervised a subordinate staff at the time the
petitioner was filed in August 2005. Going on record without supporting documentary evidence is not
sufficient to satisfy the petitioner's burden ofproof in these proceedings. Matter ofSoffici, 22 I & N Dec.
158, 165 (Comm. 1998)(citing Matter of Treasure Craft of California, 14 I & N Dec. 190 (Reg. Comm.
1972». 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 Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). As
discussed above, all wages paid by the petitioner in 2005 were reported during the fourth quarter.
Therefore, it is evident that the company did not employ any workers when the petition was filed.
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a
factor in deterrriining whether an individual is acting in a managerial or executive capacity, CIS must take
, \
into account the reasonable needs of the organization, in light of the overall purpose and stage of
development' of the organization. In the present matter, however, the regulations provide strict
evidentiary requirements for the extension of a "new office" petition and require CIS to examine the
organizational structure and staffing levels of the petitioner: See 8 C.F.R. § 214.2(l)(14)(ii)(D). The
regulation at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the "new office" operation one year within the date of
approval of the petition to support an executive or managerial position. There is no provision in CIS,
regulations that allows for an extension of this one-year period. If the business does not have sufficient
staffing after one year to relieve the beneficiary from primarily performing operational and administrative
tasks, the petitioner is ineligible by regulation for an extension. In the instant matter, the petitioner has
not reached the, point that it can employ the beneficiary in a predominantly managerial or executive
position.
Furthermore, 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. Systronics Corp. v. INS, 153 F. Supp.
2d 7, 15 (D.D.C. 2001). The size ofa company may be especially relevant when CIS notes discrepancies
in the record and fails to believe that the facts asserted are true. Id.
The U.S. entity employed one full-time employee, the beneficiary as president. As the beneficiary is the
only employee of the U.S. company, it appears that the beneficiary will be performing all of the various
operational tasks inherent in operating a business on a daily basis, such as acquiring products, negotiating
contracts, preparing budgets and financial statements, researching the market, marketing and sales,
budgeting, bookkeeping, and paying bills. Based on the record Ofproceeding, the beneficiary's job duties
are principally composed of non-qualifying duties that preclude him from functioning in a primarily
SRC 05 225 50357
Page 8
managerial or executive role . Based on the petitioner's representations, it does not appear that the
reasonable needs of the petitioning company might plausibly be metby the services of the beneficiary as
the president and one general manager and one sales associate /cashier, Regardless , the reasonable needs
of the petitioner serve only as a factor in evaluating the lack of staff in the context of reviewing the
claimed managerial or executive duties. The petitioner must still establish that the beneficiary is to be
employed in the United States in a primarily managerial or executive capacity , pursuant to sections
101(a)(44)(A) and (B) or the Act. As discussed above, the petitioner has not established this essential
element of eligibility.
In addition, as noted above, the petitioner submitted an organizational chart for the U.S. entity which
indicates that the beneficiary supervises three unident ified employees. In response to the director 's
request for evidence, the petitioner stated that the beneficiary supervises an office clerk and an assistant
manager. However, the petitioner did not submit any documentation to confirm that these individuals are
currently employed by the U .S. entity. Furthermore , the petitioner submitted Form 1099 for 2005 issued
to the individual identified as the office clerk for the amount of $2600. Therefore , it does not appear that
this employee was employed by the U .S. entity in a full-time position , nor is it possible to determine that
this individual was employed at the time offiling . Thus, the beneficiary is the only employee of the U.S.
entity for the majority of the time , Without documentary evidence to support its statements, the petitioner
does not meet its burden of proof in these proceedings . Matter of Soffici, 22 I&N Dec. 158, 165 (Comm.
1998).
Furthermore , the petitioner has not established that the beneficiary will be managing an essential function
of the U .S. company . The term "function manager" applies generally when a beneficiary does not
supervise or control the work of a subordinate staff but instead is primarily responsible for managing an
"essential function" within the organization. See section 101(a)(44)(A)(ii) of the Act , 8 U.S.C. §
1101(a)(44)(A)(ii) . The term "essential function" is not defined by statute or regulation . Ifa petitioner
claims that the beneficiary is managing an essential function, the petitioner must furnish a written job
offer that clearly describes the duties to be performed in managing the essential function, i.e, identify the
function with specificity , articulate the essential nature of the function, and establish the proportion of the
beneficiary's daily duties attributed to managing the essential function. See 8 C.F .R. § 214.2(l)(3)(ii). In
addition, the petitioner's description of the beneficiary's daily duties must demonstrate that the beneficiary
manages the function rather than performs the dut ies related to the function. An employee who primarily
performs the tasks necessary to produce a product or to provide services is not considered to be employed
in a managerial or executi ve capacity. Boyang, Ltd. v. I N S., 67 F.3d 305 (Table) , 1995 WL 576839 (9th
Cir, 1995)(citing Matter of Church Scientology Int ernational, 19 I&N Dec . 593, 604 (Comm. 1988)). In
this matter , the petitioner neither claimed nor provided evidence that the beneficiary manages an essential
function.
As discussed above , the totality of the record supports a conclusion that the beneficiary would be required
to perform primarily non-qualifying duties associated with the petitioner' s day-to-day functions, as the
petitioner has not identified sufficient staff within the petitioner's 'organization , subordinate to the
beneficiary , who would relie ve the beneficiary from performing routine duties inherent to operating the. .
business. The fact that the beneficiary has been g iven a managerial job title and general oversight
authority :over the business is insufficient to elevate his position to that of a "function manager" as
contemplated by the governing statute and regulations .
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Page 9
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be
employed in a primarily managerial or executive position. Accordingly , the appeal will be dismissed.
The secondissue in this proceeding is whether the United States entity has been doing business as defined
in the regulations for the year preceding the filing of the petition , 'as required by 8 C.F.R. §
2l4 .2(l)(l4)(ii)(B).
The regulations at 8 C.F.R. § 2l4.2(l)(l)(ii)(G) state:
Qualifying organization means a United States or foreign firm, corporation, or other legal
entity which:
(1) Meets exactly one of the qualifying relationships specified in the
definitions of a parent, branch, affiliate or subsidiary specified in
paragraph (l)(l)(ii) of this section;
(2) Is or will be doing business (engaging in international trade is not
required) as an employer in the United States and in at least one
other country directly or through a parent, branch , affiliate, or
subsidiary for the duration of the alien's stay in the United States as
an intracompany transferee; and
(3) Otherwise meets the requirements of section 101(a)(l5)(L) of the
Act.
The regulations at 8 C.F.R. § 2l4.2(l)(l)(ii)(H) state:
Doing business means the regular, systematic, and continuous provision of goods .and/or
services by a qualifying organization and does not include the mere presence of an agent
or office of the qualifying organization in the United States and abroad.
The nonimmigrant petition was filed on August 12 , 2005. As evidence that the U.S. entity is doing
business , the petitioner submitted the following documentation: (1) bank statements for the U.S.
company for April 2005 and May 2005; (2) the U.S. company's IRS Form 1120, U.S. Corporation
Income Tax Return , for 2004, indicating gross sales of $97,004; (3) two order contracts dated February
28, 2005 and March 2 , 2005 indicating that the beneficiary purchased products. .
On August 29, 2004 the director requested that the petitioner provide documentary evidence of the
business conducted by the U.S. entity during the past year, such as bills of sale, sales receipts ; sales
contract and/or invoices .:
In a response dated November 18, 2005, the petitioner submitted the following: copies of the U.S.
company 's bank statements for May, June , August, September, October and November 2004; copies of
sales receipts dated May through August 2004; and a balance record for the U.S. entity for the period May J
2004 through December 2005.
· .
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Page 10
The director denied the petition determining that the petitioner had not submitted sufficient evidence to
establish that the U.S. entity was doing business, in that it continuously and systematically engaged in the
provision of goods and services for the previous year. The director noted the petitioner's failure to
document business activities subsequent to August 2004.
On appeal, counsel asserts that the petitioner submitted evidence that the U .S. company has been doing
business. In addition the petitioner submitted the following documentation: copies of the U.S. entity 's
bank statements from January 2005 until December 2005; and IRS Form 1.120, U.S. Corporation Income
Tax Return, for 2005 , indicating gross sales in the amount of $21,260.
On review, the evidence submitted is insufficient to establish that the U.S . entity has been or is engaged in
the regular, systematic, and continuous provision of goods and/or services as a qualifying organization.
The petitioner's compliance with inquires made by the director in the request for additional evidence is
marginal, at best. The petitioner was given ample opportunity to produce the required initial evidence and
other business records to substantiate its claim of doing business as a viable entity in the United States for
the previous year. The bank statement and a balance "record prepared by the U.s. company did not
adequately demonstrate that the U.S. entity was doing business . The non-existence or unavailability of
required evidence creates a presumption of ineligibility, 8 C .F.R. § 103.2(b)(2)(i).
Furthermore, the Form 1120 gross receipts and sales figure in the amount of $21,360 for 2005 is not
substantiated by any independent documentary evidence in the record . The record as presently
constituted is not persuasive in demonstrating that the U .S. entity, at the time of filing the petition , was
doing business.
If a petition 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 busines s immediately upon approval. At the time of filing the
petition"to open a "new office ," a petitioner must affirmatively demonstrate that it has acquired sufficient
physical premises to commence business, that it has the financial ability to commence doing business in
the United States , and that it will support the beneficiary in a managerial or executive position within one
year of approval. See generally, 8 C.F.R. § 214.2(l)(3)(v) . If approved, the beneficiary is granted a one­
year period of stay to open the "new office." 8 C.F.R. § 214.2(l)(7)(i)(A)(3). At the end of the one-year
period, when the petitioner seeks an extension of the "new office" petition, the regulation at 8 C .F.R.
§ 214.2(l)(l4)(ii)(B) requires the petitioner to demonstrate that it has been doing business "for th~
previous year" through the regular , systematic, and continuous provision of goods or services. See 8
C.F.R. § 214.2(l)(1)(ii)(H) (defining the term "doing business"). The mere presence of an agent or office
of the qualifying organization will not suffice . Id. Based on the foregoing "discussion, the petitioner did '
not submit sufficient documentation to evidence that the U.S. entity was do ing business for one year prior
to filing the instant petition and thus the appeal will be dismissed.
The petition will be denied for the above stated reasons with each considered as an independent and
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 of the Act , 8 U.S.C. § 1361. Here, that
burden has not been met. Accord ingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.