dismissed L-1A Case: Export

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: WAC 98 060 51555 Office: CALIFORNIA SERVICE CENTER Date: JUL 1 2 2005 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 3 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. 
eobert P. Wiemann, Director 
Administrative Appeals Office 
WAC 98 060 51555 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
rict., located in China. The petitioner 
export business. The U.S. entity was incorporated in the State of 
California on January 13, 1997. The petitioner seeks to hire the beneficiary as a new employee to 
open its U.S. office.' Accordingly, in December 1997, the U.S. entity petitioned Citizenship and 
Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany 
transferee (L-1A) pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. $ 1101(a)(15)(L), as an executive or manager for four years. The petitioner 
endeavors to employ the beneficiary's services as the U.S. entity's president. 
On May 7, 1998, the director determined that the petitioner was not a new office. The director 
also determined that the petitioner failed to establish that the beneficiary will be employed in a 
primarily managerial or executive capacity. 
On appeal, the petitioner's counsel claims that the petitioner is considered to be a new office 
because it has been doing business for less than one year.2 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
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 shall be 
accompanied by: 
1 The AAO notes that on Form 1-129, the petitioner failed to indicate its current number of 
employees, gross annual income, and net annual income. However, in a supporting November 30, 
1997 letter, the petitioner stated, "At present time, there are four employees." It is incumbent 
upon the petitioner to diligently complete Form 1-129. The failure to provide the required 
information may cast doubt upon the petitioner's remaining evidence offered in support of the 
visa petition. 
Although counsel claims that the petitioner is a new office, counsel did not refute the director's 
conclusion that the beneficiary will not be employed in a primarily executive or managerial 
capacity. However, the AAO will adjudicate this matter as a new office petition pursuant to the 
regulation at 8 C.F.R. $ 214.2(1)(3)(~). 
WAC 98 060 51555 
Page 3 
(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 hidher 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. 
Pursuant to 8 C.F.R. 9 214.2(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 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; 
(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. 
WAC 98 060 51555 
Page 4 
The first issue in this proceeding is whether the petitioner has been doing business less than one 
year to qualify as a new office. The regulation at 8 C.F.R. $ 214.2(1)(l)(ii)(F) and (€3) defrne "new 
office" and "doing business" as: 
"New office" means an organization which has been doing business in the United 
States through a parent, branch, affiliate, or subsidiary for less than one year. 
"Doing business" means the regular, systematic, and continuous provision of goods 
andlor 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. 
On December 26, 1997, the petitioner submitted Form 1-129. On Form 1-129, the petitioner indicated 
that the petitioner is a new office. The petitioner submitted its articles of incorporation showing that 
the U.S. entity was incorporated on January 13, 1997. The petitioner also submitted evidence to 
indicate that the petitioner was in its preliminary stages of development. 
On February 5, 1998, the director requested additional evidence to show how the U.S entity has 
sufficient resources to do business in the United States. The director also requested a copy of the 
petitioner's original bank statements. However, the petitioner failed to comply with the director's 
request and did not submit the additional evidence. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
g 103.2(b)(14).~ 
On May 7, 1998, the director denied the petition. The director determined that that the petitioner 
was not a new office because the evidence indicated that the business was established in 1996. 
The director found that the petitioner did not comply with the request for additional evidence to 
submit bank statements to show continuous business since 1996. The director also determined 
that the petitioner submitted evidence that indicated that the U.S. entity had not been engaged in 
the regular, systematic, or continuous provision of goods andlor services pursuant to 8 C.F.R. 
3 214.2(1)(1)(ii)(H). 
On appeal, counsel claims that the petitioner is a new office that has been "registered for more 
than one year but has actually commenced business for less than one year." Counsel also asserts 
that the petitioner submitted the requested bank statements. 
On review, the petitioner is considered a new office that has been doing business less than one 
year. The petitioner filed its petition on December 26, 1997. The U.S. entity was not incorporated 
The AAO acknowledges counsel's claims that the petitioner submitted a response to the request 
for evidence. However, the record indicates that no response was received by the service center. 
On appeal, the petitioner submits no evidence to establish that it submitted a timely response to 
the director's request, nor does it provide copies of documents which were purportedly submitted. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
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). 
WAC 98 060 5 1555 
Page 5 
until January 13, 1997. Therefore, at the time of filing the visa petition, the petitioner was 
established less than one year. In addition, as correctly stated by the director, the evidence 
indicated that the petitioner has not been engaged in the regular, systematic, or continuous 
provision of goods and/or services pursuant to 8 C.F.R. 5 214,2(1)(l)(ii)(H). 
After careful consideration of the evidence, the AAO withdraws this portion of the director's 
decision and concludes that the petitioner has established that the U.S. entity has been doing 
business less than one year to qualify as a new office. Therefore, the AAO will adjudicate this 
matter as a new office petition. 
The second issue in this proceeding is whether the beneficiary will be employed in a primarily 
managerial or executive capacity in the United States. Section 101(a)(44)(A) of the Act, 8 U.S.C. 
5 1 101(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 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 f~e 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 10 l(a)(44)(B) of the Act, 8 U.S.C. $ 1 10 l(a)(44)(B), provides: 
The term "executive capacity" means 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 
WAC 98 060 51555 
Page 6 
(iv.) receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In a supplemental statement submitted with Form 1-129 and in a November 30, 1997 supporting 
letter, the petitioner described the beneficiary's proposed duties in the United States as: 
[Pllan, organize, oversee the subsidiary to conduct daily operations, confer with 
company officials to plan business objectives, administer activities regarding 
maintenance of the customer's contracts, exercise complete day-to-day 
discretionary authority over the work, such as recruit and train staffs, determine 
mark-up and mark-down percentages necessary to ensure profits based on 
estimated budget, profit goals, review activity reports and financial statements to 
determine progress and revise plans in accordance with current conditions, 
evaluate performance of employees. 
The petitioner indicated that it currently employs four employees, including a general manager, a 
business tradingfexport employee, a market ~esear~hl~romotion employee and a finance/account 
employee. 
Initially, the petitioner submitted a letter that incorporated the company's business.plan. The 
petitioner described the planned project as: 
There will be investment and employees in the company. The early stage of 
investment will be US$50,000. The purpose is to import compatible and 
competitive products. If the business grows and reaches our target, the 
investment in the coming two years will be increased to $500,000. 
On February 5, 1998, the director issued a request for evidence. In particular, the director 
requested detailed documentary evidence for each of the elements under 8 C.F.R. 
3 214.2(1)(3)(v)(C)(l) and (2). As noted above, the director did not receive a response to the 
request for evidence. 
On May 7, 1998, the director denied the petition because the petitioner failed to establish that the 
beneficiary will be employed in a primarily managerial or executive capacity. On appeal, the 
petitioner did not refute the director's determination. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the description of the beneficiary's job duties to determine whether the beneficiary has been or 
will be employed in a primarily managerial or executive capacity. See 8 C.F.R. 8 214.2(1)(3)(ii). 
On review, the petitioner has provided a vague and nonspecific description of the beneficiary's 
duties that fail to establish what the beneficiary has been doing or will do on a day-to-day basis. 
For example, the petitioner stated that the beneficiary's proposed U.S. duties include "plan[ning], 
organiz[ing], [and] oversee[ing] the subsidiary." However, these duties are generalities that fail to 
enumerate any concrete policies that the beneficiary will formulate, or how the beneficiary will 
plan, organize, or oversee the subsidiary. Going on record without supporting documentary 
WAC 98 060 5 1555 
Page 7 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Sofici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
As noted earlier, the petitioner's description of the U.S. entity was insufficient and the director 
requested additional information about the petitioner's business plan. In response, the petitioner 
failed to submit the additional requested evidence. Failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
103.2@)(14). 
In examining the business plan, the precedent decision, Matter of Ho, 22 I&N Dec. 206, 213 
(Comm.1998), lists possible criteria for establishing an acceptable business plan. "The plan 
should set forth the business's organizational structure and its personnel's experience. It should 
explain the business's staffing requirements and contain a timetable for hiring, as well as job 
descriptions for all positions." The decision concluded, "Most importantly, the business plan must 
be credible." Id. at 213. Although Matter of Ho, Id., addresses the specific requirements for the 
immigrant investor visa classification, the discussion of the business plan requirements is 
instructive for the L-1A new office requirements. On review, the petitioner's business plan lacks 
specificity and is vague. For instance, the business plan lists undefined goals as the "purpose is to 
import compatible and competitive products." Also, the petitioner plans to increase "the 
investment in the coming two years . . . to $500,000" if the business grows and reaches its target 
These goals are non-specific and broad. Additionally, the petitioner failed to provide the 
requested description of the proposed organizational structure, the types of employees it plans to 
employ, a detailed description of the type of business to be conducted, and the salaries that it will 
pay to its employees. The plan also does not indicate whether it applies to the first year of 
operation or subsequent years of the business. Again, 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. Thus, given the business plan's generalities, 
and lack of applicable information, it cannot demonstrate whether the new office will support a 
manager or executive within one year of filing this petition. 
In sum, the petitioner has not established that the U.S. entity will support an executive or 
managerial position within one year of the approval of the petition. For this additional reason, the 
petition may not be approved. 
Beyond the decision of the director, a third issue in this matter is whether the petitioner has 
secured sufficient physical premises to house the new ~ffice.~ The petitioner submitted a 
September 29, 1997 signed c 
30, 1998 for the office spac 
approximately 500 square 
premises only for trading company, office use, four adult employees only." However, this clause 
4 The AAO notes that since the director did not adjudicate this matter as a new office petition, the 
director failed to examine whether the petitioner has secured sufficient physical premises to house 
the new office. Therefore, the AAO will examine this issue as part of the new office requirements 
pursuant to 8 C.F.R. § 214.2(1)(3)(v)(A). 
WAC 98 060 5 1555 
Page 8 
limits the growth of the business and would be violated upon the approval of the beneficiary's 
petition. In a supporting November 30, 1997 letter, the petitioner claims that the U.S. entity 
presently has "four employees." The U.S. organizational chart lists five employees including the 
proposed position of the beneficiary. Therefore, it appears as if sufficient physical premises to 
house the new office has not been secured to operate the petitioner's business. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Furthermore, the director requested original canceled 
checks to show that the petitioner had paid for the office lease, and the full name, address, and 
telephone number of the lessor. The petitioner did not provide the requested information. 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). 
The petitioner also submitted several copies of photographs of the leased premises. Specifically, 
the photographs illustrated the claimed front door of the office and alleged interior. However, 
although the U.S. entity's business name appears in a photograph, the pictures themselves depict 
generic scenes and are difficult to read. Thus, it is difficult to determine whether the photographs 
depict the petitioner's actual business location. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Sofici, supra. 
In sum, the petitioner has not secured sufficient physical premises to house the new office. See 
8 C.F.R. 5 214.2(1)(3)(~). For this additional reason, the petition may not be approved 
Another issue not raised in the director's decision is whether there is a qualifying relationship 
between the petitioner and foreign entity. In the director's request for additional evidence, the 
director requested that the petitioner submit original wire transfers or original canceled checks 
and original business bank statements to show that the parent company in China actually paid for 
the ownership and control of the U.S. entity. 
On appeal, the petitioner claims that the director "fails to recognize all the evidence submitted 
and ignored the original money wire transfers and original bank statement enclosed with the 
additional document request." 
On review, the petitioner has submitted insufficient evidence to establish that there is a qualifying 
relationship between the petitioner and foreign entity. Although the petitioner submitted a copy of 
a document appearing to be the remittance of $50,000, the document is not original nor does it 
identify the foreign entity as the source of the funds transfer. Also, the petitioner submitted an 
original letter indicating the current status of an account with the Bank of America; however, this 
document is not an original bank statement. Therefore, the petitioner failed to comply with the 
director's request to submit original wire transfers and original canceled checks. 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). For this additional reason, the petition may be denied. 
WAC 98 060 51555 
Page 9 
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. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), 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. 9 1361. Here, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.