dismissed L-1A Case: Consulting

PWIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
. 
File: EAC 07 177 50325 Office: VERMONT SERVICE CENTER Date: FEB 0 8 2008 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § 1 10 1 (a)(15)(L) 
IN 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. 
Robert " " 0- iemann, Chief 
Administrative Appeals Office 
EAC 07 177 50325 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonirnrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seelung to employ the beneficiary in the position of manager 
to open a new office in the United States as an L-1A nonimmigrant intracompany transferee pursuant to 
section 101 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1 10 1 (a)(15)(L). The 
petitioner, a company organized under the laws of the British territory of Gibraltar, claims to have a 
qualifying relationship with the proposed United States operation, a New York limited liability company, and 
is allegedly a consulting business. 
The director, declining to treat the United States operation as a "new office," denied the petition concluding 
that the petitioner failed to establish (1) that the beneficiary will be employed in the United States in a 
primarily managerial or executive position; or (2) that the petitioner and the United States operation are 
qualifying organizations as it was not established that either entity is "doing business." 
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, counsel asserts that the petitioner is a "new office" 
and that it has established that it is eligible for the benefit sought. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 10 1 (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 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 (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 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
EAC 07 177 50325 
Page 3 
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 regula'tion at 8 C.F.R. § 214.2(1)(3)(~) states 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, 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 involved 
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 (l)(l)(ii)(B) or (C) of this section, 
supported by information regarding: 
(I) 
 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 regulation at 8 C.F.R. fj 214.2(1)(l)(ii)(F) defines a "new office" as: 
[A]n organization which has been doing business in the United States through a parent, 
branch, affiliate, or subsidiary for less then one year. 
Moreover, the regulation at 8 C.F.R. § 214.2(1)(l)(ii)(H) defines "doing business" as: 
[Tlhe 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. 
A threshold issue in this matter is whether the director correctly declined to treat the petitioner as a "new office" 
in adjudicating the petition. 
EAC 07 177 50325 
Page 4 
In this matter, the petitioner indicated in the Form 1-129 that the beneficiary is coming to the,United States to 
open a "new office" described as a "newly-formed US Company." The petitioner repeats this claim in the letter 
dated May 18,2007. The petitioner also submitted a copy of the United States operation's articles of organization 
dated April 23, 2007 and operating agreement dated April 24,2007. Furthermore, counsel indicated in his letter 
dated August 1, 2007 that, while the beneficiary has "occasionally" provided services in the United States on a 
"non-continuous basis, when on a business trip," he will provide services to clients "on a continuous basis" once 
the "new office" is in operation. mle the petitioner claims to have been in operation since 2000 and to have six 
employees in the Form 1-129, this apparently applies to the petitioner, i.e., the beneficiary's foreign employer, and 
not to the United States operation. As the record as a whole indicates that the petitioner has not been doing 
business in the United States through a parent, branch, afiliate, or subsidiary, the director should have applied the 
"new office" criteria in 8 C.F.R. 8 214.2(1)(3)(~) to the instant petition. Consequently, the petitioner was not 
obligated to establish that the beneficiary would be employed in a primarily managerial or executive capacity 
ipxnediately upon his anival in the United States nor was it obligated to establish that the petitioner was doing 
business at the time the petition was filed. Therefore, to the extent the director denied the petition on these bases, 
the director's denial shall be withdrawn. 
Accordingly, the primary issue in the present matter is whether the petitioner has established that the foreign 
employer is currently "doing business" and, thus, is a qualifying organization. 
A petition filed on Form 1-129 shall be accompanied by evidence that the petitioner and the organization 
which employed or will employ the beneficiary are "qualifying organizations." 8 C.F.R. 8 214.2(1)(3)(i). To 
establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the 
beneficiary's foreign employer and the proposed United States 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 
10 1 (a)(15)(L) of the Act; 8 C.F.R. 8 2 14.2(1). If a firm, corporation, or legal entity owns half of the entity and 
controls the entity, the organizations are related as "parent and subsidiary." See 8 C.F.R. $8 214.2(1)(l)(ii)(I) 
and (K). The petitioner must also establish that the foreign employer "[ils or will be doing business." 
 8 
C.F.R. 5 2 14.2(1)(1)(ii)(G)(2). 
In this matter, the petitioner asserts that it owns 50% of the United States operation, a limited liability 
company. While the petitioner submitted articles of organization and an operating agreement for the United 
States operation as well as its Gibraltar certificate of incorporation, the record is devoid of evidence of any 
business activity being conducted by the petitioner abroad other than representations made in the petitioner's 
letter dated May 18,2007 and in a letter fiom a Gibraltar chartered accountant. 
On June 15,2007, the director requested additional evidence. The director requested, inter alia, documentary 
evidence establishing the ownership and control of both the petitioner and the United States operation such as 
stock certificates, stock ledgers, and pertinent agreements; photographs of the interior and exterior of the 
petitioner's premises which clearly depict the organization and operation of the entity; and evidence 
establishing that the petitioner has been engaged and is presently engaged in the regular, systematic, and 
continuous provision of goods or services. 
In response, counsel submitted a letter dated August 1, 2007 in which he explains that the only document 
EAC 07 177 50325 
Page 5 
which indicates the ownership of the United States operation is the previously submitted operating agreement, 
which states that the petitioner and beneficiary each own a 50% interest. Counsel did not address the 
ownership and control of the petitioner. Furthermore, counsel responded to the director's request pertaining to 
evidence of business activity abroad as follows: 
The Petitioner stated that Petitioner had been in business since 2001 and also enclosed a copy 
of its web site which makes reference to five-year consulting arrangements with The Virgin 
Group, Arcadia Group and Debenhams. 
Counsel also submitted letters from both the petitioner's accountant and its solicitor collectively asserting 
"that the Company is engaged in the business of establishing international franchise networks for companies 
with worldwide trade names." However, the petitioner did not submit any invoices, contracts, agreements, 
marketing materials, work product examples, audited financial statements, or other documents specifically 
illustrating its past, current, or future business activity. Finally, the petitioner submitted two photos of its 
purported business operation in the United Arab Emirates. One photo is of an office building. The second 
photo is of a desk, laptop computer, and two chairs. Neither photo contains any characteristics specifically 
tying the subjects in the photos to the petitioner. 
On August 9, 2007, the director denied ihe petition. The director concluded that the petitioner failed to 
establish that it is "doing businesst' abroad. 
On appeal, counsel submitted a letter dated September 4, 2007 in which he asserts that the petitioner "has 
been retained to date by about 40 international companies, for which [the petitioner] has assisted in 
establishing new retail outlets accounting for annual revenues of about $20 million, currently resulting in 
revenues to [the petitioner] of about one million dollars annually." Counsel also asserts that the petitioner has 
existing contracts with clients which will "generat[e] fees to [the petitioner] of about $20 million annually." 
Finally, while counsel lists some of the petitioner's purported clients, he notes that confidentiality prohibits 
him from naming additional clients. Counsel did not submit any "existing contracts" or other evidence of 
business activity. 
Upon review, counsel's assertions are not persuasive in establishing that the petitioner is "doing business" as 
defined by the regulations. 
As noted above, in order to establish that it is a "qualifying organization," the petitioner must establish that it 
is or will be "doing business," which is defined in pertinent part as "the regular, systematic, and continuous 
provision of goods andlor services." 8 C.F.R. $ 214.2(1)(l)(ii)(H). In this matter, the record is devoid of any 
credible evidence establishing that the petitioner is or will be doing business. The petitioner failed to submit 
any objective evidence of it engaging in the regular, systematic, and continuous provision of services to 
clients even though this evidence was specifically requested by the director. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. tj 
103.2(b)(14). The non-existence or other unavailability of required evidence creates a presumption of 
ineligibility. 8 C.F.R. 3 103.2(b)(2)(i). The petitioner did not submit any invoices, contracts, agreements, 
marketing materials, work product examples, audited financial statements, or other documents specifically 
EAC 07 177 50325 
Page 6 
addressing its past, current, or future business activity. The petitioner only submitted letters from itself, its 
attorneys in the United States and Gibraltar, and its Gibraltar accountant. However, the unsupported 
assertions of counsel do not constitute evidence and will not satisfy the petitioner's burden of proof. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). Furthermore, neither the letters nor the photos provide 
any specificity regarding the petitioner's purported business activities abroad. Uncorroborated, self-serving 
statements "confirming" that the petitioner is engaged in providing services as well as generic photos of 
commercial buildings and offices do not establish that the petitioner is engaged in the regular, systematic, and 
continuous provision of goods and/or services. 
Finally, the petitioner also failed to establish its ownership and control even though this was specifically 
requested by the director. While the petitioner submitted evidence addressing the ownership and control of 
the United States operation, the record is devoid of evidence establishing the ownership and control of the 
petitioner, a company organized under the laws of the British territory of Gibraltar. Once again, 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). As the ownership and control of the foreign employer, the petitioner, is a legitimate 
and material line of inquiry, the petitioner's failure to respond to this part of the Request for Evidence is 
grounds for denying the petition. 
Accordingly, the petitioner has failed to establish that it is a ''qualifying organization," and the petition may not 
be approved for that reason. 
~eyond the decision of the director, the petitioner also failed to establish that it has secured sufficient physical 
premises to house the new office or that the beneficiary will be employed in the United States in a primarily 
managerial or executive capacity within one year. 8 C.F.R. 5 5 2 14.2(1)(3)(v)(A) and (C). 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 8 1 101(a)(44)(A), defines the term "managerial capacity" as 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 essential function within the organization, or a department 
or subdivision of the organization; 
(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 
EAC 07 177 50325 
Page 7 
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. $ 1 101 (a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision-making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby 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. tj 2 14.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perfonn qualifjring duties. 
In this matter, the petitioner has failed to establish (I) that it has secured sufficient physical premises to house 
the new office; or (2) that the beneficiary will be employed in a primarily managerial or executive capacity 
within one year. 
As correctly noted by the director, the record does not establish that the United States operation has secured 
sufficient premises to house the new office. In support of the petition, the petitioner submitted photographs 
and a letter from counsel dated August 1, 2007 in which counsel describes the United States operation's 
premises as follows: 
The location of the United States entity is a residential apartment at -~ 
on the Upper East Side of Manhattan in which Beneficiary will live 
as well as work. The location comprises a bedroom, bathroom, kitchen and living room, the 
latter being the room in which the operations of the United States Entity will be carried out. 
The inside photograph shows the equipment to be used (computer, printer, telephone, fax, 
etc.). Because the activity of the United States Entity will be the provision of services, the 
EAC 07 177 50325 
Page 8 
United States Entity does not require a large office or extensive furnishings or fixtures. Its 
clients will generally either be communicated with by telephone or email or visited by 
Beneficiary at their own locations. 
However, upon review, it is concluded that the petitioner has failed to establish that the physical premises will 
be sufficient for the new office to succeed and rapidly expand as it moves away from the developmental stage 
to full operations, where there would be an actual need for a manager or executive who will primarily perform 
quali@ing duties. It is simply not credible that a one-bedroom, residential unit will permit the business to 
grow into an organization which would require the beneficiary to primarily perform managerial or executive 
duties within one year. Furthermore, as the petitioner failed to submit a copy of its lease for the apartment, it 
cannot be concluded that the United States operation would even be permitted to conduct a home occupation 
business in the residential unit. It also cannot be concluded that the United States operation or the petitioner 
is the lessee. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Second, the petitioner's description of its proposed operation in the United States fails to establish that the 
beneficiary will perform primarily managerial or executive duties within one year. The petitioner described 
the beneficiary's proposed role with the United States operation in the letter dated May 18,2007 as follows: 
In the event that this [petition] is granted, [the beneficiary] will initially run the office of [the 
United States operation] in New York without any employees other than himself. That is 
possible because the business of [the United States operation] will be the provision of 
services and because technological advances make it possible to carry on a large volume of 
such business using computers, email and cell phones, even when not physically at his office. 
Nevertheless, it may eventually be desirable for [the United States operation] to employ one 
or more clerical employees. 
As previously stated, [the beneficiary's] daily activities will include consulting with and 
advising existing and new North American clients of [the petitioning organization] 
concerning expansion activities abroad for which [the beneficiary] will travel not only 
throughout the United States and North America but also in Europe. His effectiveness will be 
significantly enhanced by being based in the United States. In order to achieve the objectives 
of having a U.S. presence, [the petitioning organization] considers it necessary to be 
represented by an individual having special experience and contacts, which [the beneficiary] 
possesses, and who is fully familiar with our methods and capabilities. 
Upon review, it is concluded that the petitioner has failed to establish that the beneficiary will primarily 
perform qualifying duties within one year of petition approval. As indicated above, the beneficiary will 
primarily provide consulting services to the petitioning organization's clients. The provision of consulting 
services constitutes the performance of tasks necessary to provide a service or to produce a product. It 
appears that this will be the beneficiary's primary duty during the United States operation's first year in 
business as well as in the future. It does not appear that the petitioning organization has any plans to hire a 
EAC 07 177 50325 
Page 9 
subordinate staff which will relieve the beneficiary of the need to primarily perform these consulting services. 
An employee who "primarily" performs the tasks necessary to produce a product or to provide services is not 
considered to be "primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and 
(B) of the Act; see also Matter of Church Scientology International, 19 I&N Dec. 593,604 (Comm. 1988). 
Accordingly, the petitioner has failed to establish that it has secured sufficient premises to house the new 
office or that the United States operation will support an executive or managerial position within one year as 
required by 8 C.F.R. 5 214.2(1)(3)(~), and the petition may not be approved for the above additional reasons. 
Beyond the decision of the director, the petitioner has failed to establish that the beneficiary has been 
employed in a primarily managerial or executive capacity with the foreign entity for one year within the 
preceding three years. 8 C.F.R. 5 214.2(1)(3)(v)(B). The petitioner failed to specifically describe the 
beneficiary's job duties abroad. Specifics are clearly an important indication of whether a beneficiary's duties 
will be primarily executive or managerial in nature; otherwise meeting the definitions would simply be a 
matter of reiterating the regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103, am, 905 F.2d 41. 
Furthermore, the petitioner failed to describe the beneficiary's duties abroad even though this evidence was 
specifically requested by the director. Once again, 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). Absent detailed 
descriptions of the duties of both the beneficiary and his subordinates, it is impossible for Citizenship and 
Immigration Services (CIS) to discern whether the beneficiary was "primarily" engaged in performing 
managerial or executive duties abroad. See sections 101(a)(44)(A) and (B) of the Act; see also Matter of 
Church Scientology International, 19 I&N Dec. at 604. 
Accordingly, the petitioner has not established that the beneficiary has been employed in a primarily 
managerial or executive capacity for one continuous year in the three years preceding the filing of the petition 
as required by. 8 C.F.R. 5 2 14.2(1)(3)(v)(B), and the petition may not be approved for this reason. 
Beyond the decision of the director, the petitioner has not established that the beneficiary's services will be 
used for a temporary period and that the beneficiary will be transferred to an assignment abroad upon 
completion of the temporary assignment in the United States. 8 C.F.R. 8 214.2(1)(3)(vii). 
In this matter, the petitioner claims that the United States operation is 50% owned and controlled by the 
beneficiary. As a purported owner of the United States operation, the petitioner is obligated to establish that 
the beneficiary's services will be used for a temporary period and that he will be transferred to an assignment 
abroad upon completion of the assignment. Id. However, the record is devoid of any evidence establishing 
that the beneficiary's services will be used temporarily. Going 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. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190). 
Accordingly, as the petitioner has not established that the beneficiary's services will be used for a temporary 
period and that the beneficiary will be transferred to an assignment abroad upon completion of the temporary 
assignment in the United States, the petition may not be approved for this additional reason. 
EAC 07 177 50325 
Page 10 
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 dehial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 I), affd, 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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., 229 F. Supp. 2d at 1043. 
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. 8 1361. Here, that burden has not been met. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.