dismissed L-1A Case: Engineering And Design

US. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: EAC 05 228 5 1234 Office: VERMONT SERVICE CENTER 
 Date: FEB 0 1 2007 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 101 (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. 
, EAC 05 228 5 1234 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner is a limited liability company organized in the State of Michigan that 
claims to be engaged in the provision of engineering and design services, primarily for the automobile 
industry. The petitioner states that it is an affiliate of 
located in Germany. The petitioner seeks to open a new office in the United 
beneficiary be granted a one-year period in L-1A classification to serve as its 
manager of product design. 
The director denied the petition concluding that the petitioner did not establish that the United States company 
has secured sufficient physical premises to house the new office. 
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 for the petitioner asserts that the director's 
conclusion that the physical premises secured by the U.S. company is not supported by evidence or relevant 
decisions. Counsel cites to numerous unpublished AAO decisions in which home offices were found to be 
sufficient physical premises for the purpose of opening a new office, and asserts that the regulations do not 
permit a determination as a matter of law that a residential office is never sufficient physical premises to 
house a petitioner's business. Counsel contends that the space secured is sufficient for the type of business to 
be operated by the petitioner. Counsel submits a brief and additional evidence in support of the appeal. 
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. 5 214.2(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. 
EAC05 228 51234 
Page 3 
(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 himlher 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. 
The regulation at 8 C.F.R. fj 214.2(1)(3)(~) also provides 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 involves 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 sole issue addressed by the director is whether the petitioner had secured sufficient physical premises to 
house the new office as of the date the petition was filed. 
The nonirnmigrant petition was filed on August 16, 2005. In a letter dated August 2, 2005, the petitioner 
indicated that the U.S. company has leased a "combination apartmentloffice space" and "is actively looking to 
purchase a commercial office building from which to conduct its business in the United States." The 
petitioner stated that the company was established in order to provide engineering and design services for the 
U.S. automotive and transportation industries. 
The petitioner submitted a copy of a document entitled "Move-In Information and Notification under Sec. 3, 
Act 348, Public Acts of 1972, State of Michigan," and a lease application for a two-bedroom Auburn Hills, 
Michigan apartment, which identify the petitioner's president and his spouse as the only intended occupants of 
the premises. The "Move-In Information" document indicates a date of occupancy of April 1, 2005, while the 
lease application indicates that the petitioner's president intended to lease the premises through September 30, 
2005. 
, EAC 05 228 5 1234 
Page 4 
The director requested additional evidence on August 25,2005, advising the petitioner as follows: 
You have stated that you are actively looking to purchase a commercial office building from 
which to conduct your business. It must be established that the petitioner has secured physical 
premises of sufficient size to conduct business. Submit photographs of the interior and 
exterior of all of the premises that you have secured for the United States entity. These should 
include photographs that clearly depict the organization and operations of the entity. 
In a response dated September 13, 2005, the petitioner submitted four photographs. One photograph depicts 
the outside of an apartment building with the street number "2809." A second-story window has a small sign 
bearing the petitioner's name. The petitioner also provided two photographs of a directory for the apartment 
building, which includes an entry bearing the petitioner's name and the beneficiary's surname. Finally, the 
petitioner provided one photograph of an interior room containing one desk and desk chair, two computers, a 
printer, a scanner and a small file cabinet. In a letter accompanying the petitioner's response, the petitioner 
indicated its intention to hire a team of approximately ten project directors who would carry out engineering 
projects under the beneficiary's supervision. 
On October 11, 2005, the director issued a notice of intent to deny the petition. The director acknowledged 
receipt of the photographs of the Auburn Hills, Michigan apartment. The director requested photographs of 
the foreign entity's operations, including photographs that clearly depict the organization and operation of the 
entity. The director requested that the petitioner explain if it intends for he U.S. operation to grow to be "of 
the same caliber as the foreign operation." The director also instructed the petitioner to submit a business 
plan for commencing the U.S. start-up company, including specific dates for each proposed action for the next 
two years. 
In a response dated November 4, 2005, counsel for the petitioner stated that the company anticipates that the 
U.S. company will obtain technical assistance and expertise fiom its parent company, which is expected to "at 
all time remain the dominant and larger entity as far as worldwide operations are concerned." Counsel further 
asserted that by April 2006, the petitioner intends to locate and purchase "suitable premises which will 
support a team of up to 15 employees in the Auburn Hills, Michigan area." Counsel, referencing the 
petitioner's attached business plan, noted that the company anticipates employing a staff of five employees in 
2006, eight employees in 2007, and 12 employees in 2008. 
Counsel stated that the petitioner has purchased an automobile to be used for business purposes, and signed a 
contract for high speed internet service required to conduct its business. Finally, counsel stated: 
Petitioner has been working and continues to work with a local realtor in 
Troy, Michigan, for the purpose of securing commercial property in the Auburn Hills, 
- - 
~ichi~an area. . . . The present location aluburn Hills, Michigan 
is however, suitable and adequate to carry on Petitioner's business at the present time. 
The director denied the petition on November 17, 2005, concluding that the petitioner has not secured 
sufficient physical premises for the petitioner's start-up business objectives. The director noted that the office 
space secured appears sufficient to accommodate the beneficiary only, and observed "the additional 
employees as well as the equipment needed to run the United States entity will require additional space." The 
EAC 05 228 5 1234 
Page 5 
director acknowledged the petitioner's stated intention to acquire additional space during the first year of 
operation, but noted that the petitioner must establish eligibility as of the date of filing the petition. 
On appeal, counsel for the petitioner states that the petitioning company is currently operating with fewer than 
the five employees anticipated by the end of the first year of operations. Counsel emphasizes that the 
company will be engaged in the provision of design and engineering services only and will not be engaged in 
any physical manufacturing or assembly at its current location, or at any new location secured by the 
company in the future. Counsel asserts that the director's determination that the physical premises depicted in 
the petitioner's photographs are not sufficient for conducting business "is not supported by evidence or 
relevant decisions." 
Counsel cites several unpublished decisions in which the AAO has noted that the regulations do not specify 
the type of physical premises that must be secured for a new office, and states that the AAO has previously 
indicated that an office in residential space may be sufficient under the petitioner's particular circumstances. 
Counsel further states: 
In the present case, the type of business in which [the petitioner] engages is a service and 
consulting enterprise. The Petitioner has no need for physical premises of a size that would be 
necessary for substantial physical activity, such as manufacturing or assembly. Moreover, the 
Petitioner currently has fewer than five employees engaged in its design and engineering 
services. Little more than desk space and basic office equipment are currently needed and 
used. Despite these circumstances, the Acting Center Director neither requested nor 
considered evidence of a floor plan of the Petitioner's office, the types of office equipment 
obtained and used by the Petitioner, and the allocation of office space between employees, 
records, and equipment. Without such information, it was not possible for the Acting Center 
Director to come to a reasoned conclusion regarding the sufficiency of the physical premises 
to house the Petitioner's new office. As discussed herein, the regulations do not permit a 
determination as a matter of law that a residential office is never sufficient physical premises 
to house a petitioner's business. 
Counsel requests that the AAO reverse the director's decision or remand the case to the director "for 
appropriate supplementation of the record." 
Upon review, counsel's assertions are not persuasive. The petitioner has not established that it has secured 
sufficient physical premises to house its new office. Contrary to the petitioner's assertions on appeal, the 
director did not deny the petition specifically because the petitioner intends to operate from a home office. 
The director's decision demonstrates that she reviewed the submitted lease application, photographs, and the 
petitioner's business plans and representations regarding its anticipated business operations, and reasonably 
concluded that the premises leased would not support the intended staffing levels or business activities. 
First, the AAO notes that the documentation furnished regarding the petitioner's leased premises shows that it 
is a two-bedroom apartment of unknown square footage being rented to the petitioner's president and his 
spouse, the company's claimed shareholders, for a monthly fee of $720.00. There is no evidence that the 
landlord is aware of or has authorized the use of the premises for any purpose other than as a residence, nor 
has the petitioner submitted evidence that it has established a separate telephone line, obtained a license to 
operate a business from a home office, or made other accommodations for the use of the premises by the U.S. 
. EAC 05 228 5 1234 
Page 6 
company, other than placing a single computer workstation in one room of the apartment. 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. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Second, even if the physical premises were deemed to be adequate, it appears that the initial agreement was 
for the petitioner's president to lease the premises for a period of six months, until September 30, 2005. The 
petitioner states that it does not expect to secure additional premises until April 2006. As the petitioner 
initially indicated its intention to employ the beneficiary for a one-year period commencing on September 1, 
2005, the record does not contain documentary evidence that the petitioner had secured any physical premises 
to house the company beyond the first month of the beneficiary's intended employment. The AAO 
acknowledges that secondary evidence in the record suggests that the petitioner's president continued to 
occupy the apartment beyond the initial six-month period, however, the lack of a lease agreement 
corroborating the continued rental of the premises cannot be excused. Again, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. at 165. 
The petitioner submitted copies of four purchase orders from a U.S. customer, all of which were dated 
October 2005, as evidence that the company is in fact doing business fkom the residential address, providing 
services associated with graphic and patent application support, design concepts and design labor. However, it 
is unclear who is providing these services on behalf of the petitioner, or how the petitioner's current office 
space, as depicted in its photographs, would support the addition of the beneficiary and other employees to be 
hired during the first year of operations, which the petitioner indicates will include "administrative, marketing 
and trainee engineers." As the petitioner has not specifically outlined its space requirements for the business, 
it is not possible to conclude that the office or bedroom depicted in the petitioner's photographs would support 
any additional employees. 
The AAO acknowledges the petitioner's assertion that it requires only standard office equipment, computers 
and specialized software in order to operate its business. However, it appears from the evidence submitted 
that the company will operate the same type of business operated by its foreign affiliate, which, based on the 
photographs provided, has premises sufficient for the construction of prototypes and the simulation testing of 
the products it designs, as well as conference rooms for client meetings. Again, the petitioner neither 
explained nor documented how it will operate its business from a one-room office with a single workstation, 
and thus the AAO cannot find that the premises secured are sufficient for the petitioner's specific purposes. 
Counsel further refers to unpublished decisions in which the AAO acknowledged that a home office could be 
found to meet the standard of "sufficient physical premises" to house a new office. Counsel has furnished no 
evidence to establish that the facts of the instant petition are analogous to those in the unpublished decisions. 
While 8 C.F.R. tj 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
Counsel contends on appeal that the director erred by denying the petitioner without first requesting 
additional evidence, such as a floor plan, "evidence of the types of equipment obtained and used by the 
Petitioner, and the allocation of office space between employees, records and equipment." Counsel asserts 
that, without such evidence, the director could not come to a "reasoned conclusion regarding the sufficiency 
of the physical premises." 
. EAC 05 228 5 1234 
Page 7 
The regulation at 8 C.F.R. fj 103.2(b)(8) requires the director to request additional evidence in instances 
"where there is no evidence of ineligibility, and initial evidence or eligibility information is missing." Id. The 
director is not required to issue a request for further information in every potentially deniable case. If the 
director determines that the initial evidence supports a decision of denial, the cited regulation does not require 
solicitation of further documentation. The director did issue a request for evidence and a notice of intent to 
deny the petition, both of which specifically expressed the director's doubts regarding the evidence submitted 
with respect to the petitioner's physical premises. If the petitioner had additional evidence to submit in support 
of its claim that the home office is adequate for the petitioner's purposes, it should have submitted the 
evidence in response to the request for evidence, in response to the notice of intent to deny, or in support of 
the appeal. While the AAO concedes that the director's requests were not ideal in their level of specificity, 
the petitioner had sufficient notice of the deficiencies of its petition, and the AAO declines to remand the 
matter to allow the petitioner a fourth opportunity to supplement the record. 
Based on the foregoing discussion, the petitioner has not established that the U.S. company had sufficient 
physical premises to house the new office as of the date of filing. As noted by the director, the fact that the 
company intends to purchase a commercial office building by April 2006 is not relevant to this determination. 
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). Accordingly, the appeal will be 
dismissed. 
Beyond the decision of the director, the record is not persuasive in establishing that the beneficiary will be 
employed in a primarily managerial or executive capacity within one year, as required by 8 C.F.R. tj 
214.2(1)(3)(v)(C). The petitioner intends to hire the beneficiary as its manager of product design, and stated in 
its supporting letter that the beneficiary "will be responsible for interacting with and designing products for 
Petitioner's clients." The petitioner further stated that the beneficiary's duties will include providing 
engineeringldesign services in the area of pre-development and development of automobile parts and 
components, being "in charge" of developing concepts, and compiling and illustrating technical issues for the 
company's clients, utilizing knowledge of proprietary engineering and design processes, strategies and 
information that is "unique" to the foreign entity. The petitioner further indicated that the beneficiary will be 
responsible for locating, hiring and training U.S. engineers, assigning them to specific projects, and 
supervising the progress of these projects. 
The initial job description, therefore, included a mix of non-managerial engineering and design duties, and 
managerial duties, but failed to indicate how the beneficiary's time would be allocated among these tasks, or 
identify when additional staff would be hired to relieve the beneficiary from directly providing services to 
customers. The definitions of executive and managerial capacity have two parts. First, the petitioner must 
show that the beneficiary performs the high-level responsibilities 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 functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991); see generally sections 10 1 (a)(44)(A) and (B) of the Act, 8 
U.S.C. $5 1 10 l(a)(44)(A) and (B) (defining "managerial capacity and "executive capacity.") 
In her request for evidence, dated August 25, 2005, the director observed that the beneficiary's stated duties 
do not appear to be related primarily to policy and general operational oversight. Accordingly, the director 
instructed the petitioner to provide: a comprehensive description of the beneficiary's duties, the job titles and 
. EAC 05 228 51234 
Page 8 
duties of the positions to be supervised by the beneficiary; the percentage of time the beneficiary will devote 
to managerial duties and non-managerial duties; and, the degree of discretionary authority the beneficiary will 
exercise over the company's day-to-day operations. 
In response, the petitioner stated that the beneficiary will assemble a team of design engineers to handle 
company accounts, supervise their work on individual projects and "develop design guidelines and standards." 
The petitioner stated that it intends to hire a team of ten project directors, and indicated that the beneficiary 
will spend approximately 80 percent of his time performing "managerial/executive functions," including 
hiring and firing personnel, assigning and supervising projects, and exercising authority to coordinate various 
project teams to ensure timely completion of client projects. The petitioner further indicated that the 
beneficiary will "work and interact with" clients to assess their design needs, and act as a mentor for the 
petitioner's design engineer professionals. 
The petitioner subsequently submitted its business plan in response to the director's notice of intent to deny 
the petition. In a letter dated November 4, 2005, the petitioner indicated its intent to hire an administrative 
assistant and bookkeeper by the end of March 2006, a design engineer in April 2006, and an additional design 
engineer in October 2006. The petitioner's business plan indicates that the company intends to hire "up to 3 
employees" by mid-2006 including "administrative, marketing and trainee engineers. " The record does not 
persuasively demonstrate that the beneficiary will supervise more than one engineer or trainee engineer within 
one year of the date of filing the petition in August 2005. The petitioner has not specifically outlined the 
anticipated training period for its new hires, but it is reasonable to assume that a single design engineer, even 
if fully trained by the end of the first year of operations, will not fully relieve the beneficiary from performing 
the day-to-day tasks of the petitioner's product design department, particularly in light of the petitioner's 
anticipated income of $620,000 from consulting services for the 2006 year. The record does not corroborate 
the petitioner's assertion that the beneficiary would devote 80 percent, or even 50 percent, of his time to 
managerial duties within one year. 
Rather, based on the record of proceeding, particularly considering the petitioner's first year hiring plan, it is 
evident that the beneficiary's duties at the end of the first year of operations would be primarily duties 
required to provide the petitioner's services, as described in the petitioner's initial description of the 
beneficiary's duties. An employee who "primarily" performs the tasks necessary to produce a product or to 
provide services is not considered to be "primarily7' 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 Int 'I., 19 I&N Dec. 593, 604 (Cornm. 1988). 
The AAO acknowledges that the U.S. company may eventually grow to a point where it would support the 
beneficiary in a primarily managerial capacity, wherein he would reasonably be required to devote the 
majority of his time to supervising the activities of professional employees performing the company's 
engineering and design functions. However, at the time of filing the petition to open a "new office," a 
petitioner must affirmatively demonstrate that it will support the beneficiary in a managerial or executive 
position within one year of approval. Here, the evidence submitted does not establish that the beneficiary will 
be employed in a primarily managerial or executive capacity within one year. For this additional reason, the 
petition cannot be approved. 
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 
. EAC 05 228 5 1234 
Page 9 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afyd. 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 and the appeal dismissed 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. 5 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.