dismissed L-1A Case: Financial Services

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 03 049 52363 Office: TEXAS SERVICE CENTER Date: F B 2 3 2005 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED . 
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. 
C 
Robert P. Wiemann. ~irecdr 
/Administrative Appeals Office 
SRC 03 049 52363 
Page 2 
DISCUSSION: The nonirnmigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
endeavors to classify the beneficiary as a manager or 
)(L) of the Immigration and Nationalit Act (the Act 
8 U.S.C. $ 1101(a)(15)(L). The petitioner claims to be an affiliate of Y 
located in South Africa, and claims to be engaged in the foreign trade, investment, and 
other financial services business. The petitioner seeks to extend the petition's validity and th~e 
beneficiary's stay for two years as the U.S. entity's president. The petitioner was incorporated in 
the State of Florida on May 5, 1997 and claims to have seven employees.' 
On April 17, 2003, the director denied the petition because the petitioner failed to establish: 
1) that sufficient physical premises to house the new office had been secured; 2) that the U.S. 
entity had been doing business for the previous year; and, 3) that the beneficiary had been and 
will be employed in a primarily executive or managerial capacity. 
On appeal, the petitioner objects to the director's findings. The petitioner submits a letter and 
additional evidence to support his assertions. 
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 ii 
managerial, executive, or specialized knowledge capacity. 
In relevant part, the regulations at 8 C.F.R. $ 214.2(1)(3) state 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 (I)(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. 
1 In a November 29, 2002 letter signed by the beneficiary, the petitioner 
company was incorporated on May 5, 1997; however, on the Form 1-129, the 
that the U.S. company was established in 1999. It is incumbent upon the petitioner 
inconsistencies in the record by independent objective evidence. Any attenpt 
reconcile such inconsistencies will not suffice unless the petitioner submits cc 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 
clamed that the U.S. 
petitioner claimed 
to resolve any 
to explain or 
lmpetent objective 
(BIA 1988). 
SRC 03 049 52363 
Page 3 
In addition, pursuant to 8 C.F.R. $ 214.2(1)(14)(i), if the petitioner is filing a petition to extend the 
beneficiary's stay for L-1 classification, the regulation requires that, "the petitioner shall file a 
petition extension on Form 1-129 to extend an individual petition under section lOl(a)(15)(L) of the 
Act. Except in those petitions involving new offices, supporting documentation is not required, 
unless requested by the director. A petition extension may be filed only if the validity of the original 
petition has not expired." 
Further, in relevant part, the regulations at 8 C.F.R. $ 214.2(1)(3)(viii) state that an individual 
petition filed on Form 1-129 shall be accompanied by "such other evidence as the director, in his 
or her discretion, may deem necessary." 
The first issue in this proceeding is whether the petitioner has secured sufficient physical premises 
to house the new office. The regulations at 8 C.F.R. § 214.2(1)(3)(~) indicate that the petitioner 
shall submit evidence that "[slufficient physical premises to house the new office have been 
secured." 
Initially, the petitioner submitted insufficient evidence to establish that it had secured sufficient 
physical premises to house the new office. Consequently, on January 17,2002, the director requested 
that the petitioner submit a copy of the lease agreement for the U.S. entity. 
In response, the petitioner submitted a 2002 interest certificate from a mortgage company indicating 
the property is owned and not leased. 
On April 17, 2003, the director denied the petition because the petitioner failed to establish that 
sufficient physical premises to house the new office had been secured. The director found that the 
evidence did not establish that the property was used to conduct business. 
On appeal, the petitioner submits copies of an occupational license, an additional license, ii 
warranty deed, and a previously submitted mortgage interest statement. The petitioner claims, 
"these show that the premises owned by the CEO are sufficient to conduct the business for the 
Company." 
On review, the petitioner has failed to establish that it had secured sufficient physical premises to 
house the office as required by the regulations at 8 C.F.R. 5 214.2(1)(3)(v)(A). Although on1 
appeal the petitioner submits additional evidence, it is unclear if the property was being used to 
conduct business. In this matter, the petitioner has not described its anticipated space 
requirements for its business and the documents in question do not specify the amount or type of' 
space secured. It is also unclear whether this location has any restrictions or covenants that would 
prevent the petitioner from conducting business. Based on the insufficiency of the information 
furnished, it cannot be concluded that the petitioner has secured sufficient space to house the new 
office. The non-existence or other unavailability of required evidence creates a presumption of 
ineligibility. 8 C.F.R. $ 103.2(b)(2)(i). For this reason, the petition may not be approved. 
The second issue in this proceeding is whether the petitioning organization has been doing 
business. 
SRC 03 049 52363 
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The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(H) defines "doing business" as: 
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. 
On January 17, 2003, the director requested additional evidence establishing that the U.S. 
petitioner was currently conducting business. The director requested a copy of the petitioner's 
sales contracts, invoices, or other evidence to show business activity. 
In response, the petitioner submitted its Employer's Quarterly Federal Tax Returns for the 
quarters ending December 3 1,2002, September 30,2002, and June 30,2002. 
On April 17, 2003, the director denied the petition because the petitioner failed to establish that 
the U.S. entity had been doing business for the previous year. The director found that the 
petitioner's tax returns and invoices showed minimal business activity. 
On appeal, the petitioner submits copies of its current financial statements, 2002 IRS Form 1040 
tax return with Schedule C, letters, Internet communications, bank statements, advertisement:;, 
and telephone account information. The petitioner claims that the "U.S. Company and foreign 
affiliate is currently engaged in business operations." 
On review, the petitioner has not established that the U.S. entity has been doing business on a 
regular, systematic, and continuous basis pursuant to 8 C.F.R. 214.2(1)(1)(ii)(G)(2). The petitioner 
submitted minimal documentation to establish that the petitioner was doing business. The 
petitioner submitted three invoices dated December 3,2002, December 18,2002, and January 10, 
2003. By themselves, the three invoices for activities that purportedly took place in December 2002 
and January 2003 do not establish that the petitioner has been actively engaged in regular, 
systematic, and continuous business activities. 
In addition, the AAO notes several discrepancies in the record. First, the petitioner submitted a 
checking account statement for the statement period from October 19, 2002 through November 
15, 2002 listing the beneficiary's name rather than the U.S. company's name. Second, the - - 
Employer's Quarterly Federal Tax Returns for the quarters 
ow the petitioner's address as 
rather than the one listed on the 
, which indicate the petitioner's address a- 
Third, on appeal, the petit 
isting the U.S. entity's address a 
This is the same address as the foreign entity's (Alan's 
Professional Services) address listed on the Form 1-129. Fourth, the petitioner indicated on an 
the same location as the address listed for the U.S. entity 'on the three Employer's Quarterly 
SRC 03 049 52363 
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Federal Tax Returns, Form 941. The inconsistencies between the submitted evidence raise serious 
doubts regarding the petitioner's claim that the U.S. company has been doing business for the 
previous year. 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 nlot 
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). Doubt cast on any aspect of the 
petitioner's proof may, of course, lead to a reevaluation of the reliability and sufficiency of the 
remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988). 
Further, the AAO notes that the petitioner claims on appeal that it is "mainly concerned with 
Import / Export and foreign investments of international clients." Although specifically requested 
to submit evidence of its business activities, the petitioner failed to submit any customs forms. 
Upon the importation of goods into the United States, the Customs Form 7501, Entry Summary, 
serves to classify the goods under the Harmonized Tariff Schedules of the United States and to 
ascertain customs duties and taxes. The Customs Form 301, Customs Bond, serves to secure the 
payment of import duties and taxes upon entry of the goods into the United States. According to 
19 C.F.R. 5 144.12, the Customs Form 7501 shall show the value, classification, and rate of duty 
for the imported goods as approved by the port director at the time the entry summary is filed. 
The regulation at 19 C.F.R. 5 144.13 states that the Customs Form 301 will be filed in the amount 
required by the port director to support the entry documentation. Although customs brokers or 
agents are frequently utilized in the import process, the ultimate consignee should have access to 
these forms since they are liable for all import duties and taxes. Any company that is doing 
business through the regular, systematic, and continuous provision of goods through importation 
may reasonably be expected to submit copies of these forms to show that they are doing business 
as an import business. In this matter, the petitioner has failed to submit any such documentation. 
After careful consideration, the AAO concludes that the petitioner has not demonstrated that the: 
U.S. entity had been doing business regularly, systematically, and continuously as defined by 
8 C.F.R. 5 214.2(1)(l)(ii)(H). For this reason, the petition may not be approved. 
The third issue in this proceeding is whether the beneficiary has been and will be primarily 
performing executive or managerial duties for the United States entity. Section IOl(a)(44)(A) of' 
the Act, 8 U.S.C. 5 1101(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; 
SRC 03 049 52363 
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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. 5 1101(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; 
. . 
11. 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. 
On December 9, 2002, the petitioner filed the Form 1-129. On the Form 1-129, the petitioner 
described the beneficiary's proposed U.S. duties as the "President and Chief Executive Officer." 
On January 17, 2003, the director requested additional evidence. Specifically, the director 
requested evidence of the current staffing levels in the United States. 
In response, the petitioner indicated that the U.S. company employed a marketing professional 
and an administration and office services employee. The petitioner also indicated that it employed 
an administration and offices services employee, marketing professional, accounts clerk, and 
sales and offices services employee at the foreign entity in its South African office. It stated that 
all employees of the foreign and U.S. offices report directly to the beneficiary. 
On April 17, 2003, the'director denied the petition because the petitioner failed to establish that 
the beneficiary has been and will be employed in a primarily executive or managerial capacity. 
The director found that there was insufficient evidence to establish that the U.S. company 
employed seven workers as the petitioner indicated on the Form 1-129. 
On appeal, the petitioner claims that the beneficiary has directed the U.S. and foreign 
organizations. The petitioner submits a letter and describes the beneficiary's duties as: 
SRC 03 049 52363 
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In charge of strategic decision making, the control and management of Branch 
Managers who in turn supervise their sales staff. . . meet face to face with branch 
managers for their performance appraisals and modifications to their office 
procedures and policies. . . . The over all guidance and policy making decisions 
are made by [the beneficiary], and all international coordination and expansion 
shall vest in him. He shall appoint, dismiss the managers, sign all wage, salary, 
commission checks as well as all other operating checks made out by branch 
managers in the U.S. and Overseas. He should also acquire as wide a range of 
skills useful to management of the U.S. and foreign business entities and required 
for specific licensures. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of job duties. See 8 C.F.R. 3 214.2(1)(3)(ii). On review, the petitioner 
has not established that the beneficiary has been and will be employed in a primarily executive or 
managerial capacity. The beneficiary's described duties are general and vague. For example, the 
petitioner described the beneficiary's duties as "[iln charge of strategic decision making" and 
"[plresident and [clhief [elxecutive [olfficer." However, it is unclear what strategies the 
beneficiary will direct or what exactly his role will entail as the president and chief executive 
officer of the company. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure 
Craft of Calfomia, 14 I&N Dec. 190 (Reg. Cornm. 1972). 
Further, the petitioner generally paraphrased the statutory definition of executive. See section 
lOl(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A). For instance, the petitioner stated that the 
beneficiary duties included "[tlhe over all guidance and policy making decisions." However, 
conclusory assertions regarding the beneficiary's employment capacity are not sufficient. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden US 
proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2cl 
41 (2d. Cir. 1990); Avyr Associates Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Specifics are clearly an important indication of whether a beneficiary's duties are 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. 1103 (E.D.N.Y. 1989). 
afd, 905 F.2d 41 (2d. Cir. 1990). 
Moreover, the record does not sufficiently demonstrate that the beneficiary will manage a 
subordinate staff of professional, managerial, or supervisory personnel. Although the beneficiary 
is not required to supervise personnel, if it is claimed that the beneficiary's duties involve 
supervising employees, the petitioner must establish that the subordinate employees are 
supervisory, professional, or managerial. See § lOl(a)(44)(A)(ii) of the Act. On appeal, the 
petitioner claims that the beneficiary is in charge of the "management of [blranch [mlanagers 
who in turn supervise their sales staff." However, the petitioner described two employees in 
the response to the director's request for additional evidence, a marketing professional and an 
administration and office services employee that the beneficiary oversees. There is insufficient 
evidence to establish that theses employees are managerial or that the petitioner actually 
employed these workers. The petitioner has neither presented evidence to document the existence 
of these employees nor identified the services these indiLiduals provide. The petitioner also has 
SRC 03 049 52363 
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not explained how their services obviate the need for the beneficiary to primarily conduct the 
petitioner's business. Again, without documentary evidence to support its statements, the 
petitioner does not meet its burden of proof in these proceedings. Matter of Treasure Craft of 
Cal$ornia, 14 I&N Dec. at 190. 
The AAO notes that although the director requested that the petitioner provide a description of 
the subordinate employees' duties, the petitioner failed to submit this information. The regulation 
states that the petitioner shall submit additional evidence as the director, in his or her discretion, 
may deem necessary. The purpose of the request for evidence is to elicit further information that 
clarifies whether eligibility for the benefit sought has been established, as of the time the petition 
is filed. See 8 C.F.R. $5 103.2(b)(8) and (12). The failure to submit requested evidence that 
precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 3 
103.2(b)(14). 
Further, the AAO is not persuaded that the beneficiary's duties establish that the beneficiary has 
managerial control and authority over a function of the company. The petitioner claims that the 
beneficiary "should also acquire as wide a range of skills useful to management of the U.S. and 
foreign business entities and required for specific licensures." 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 lOl(a)(44)(A)(ii) of the Act, 8 U.S.C. $ 1101(a)(44)(A)(ii). If a petitioner claims that 
the beneficiary is managing an essential function, the petitioner must 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. In addition, the petitioner 
must provide a comprehensive and detailed description of the beneficiary's daily duties 
demonstrating that the beneficiary manages the function rather than performs the duties relating 
to the function. In the instant matter, the petitioner claimed that the beneficiary manages the 
businesses. However, to allow the broad application of the term "essential function" to include 
such broad claims, without identifying specifics, would render the term meaningless. 
Finally, it is noted that the beneficiary has obtained a Florida real estate salesperson license; after 
taking the examination in April 2003. This license raises the question of whether the beneficiary 
is actively selling real estate rather than engaging in the claimed duties. 
After careful consideration of the evidence, the AAO concludes that the petitioner has failed to1 
establish that the beneficiary has been and will be employed in a primarily executive or 
managerial capacity. For this reason, the petition may not be approved. 
Beyond the decision of the director, the petitioner has not submitted any evidence to establish that 
the foreign sole proprietorship continues to do business, as required at 8 C.F.R. 
9 214.2(1)(l)(ii)(G)(2). Unlike a corporation, a sole proprietorship does not exist as an entity apart 
from the individual owner. Matter of United Investment Group, 19 I&N Dec. 248 (Cornm. 1984). 
A sole proprietorship is a business in which one person owns all of the assets and operates the 
business in his or her personal capacity. Black's Law Dictionary 1398 (7th Edition). As the 
beneficiary claims to be the owner and sole proprietor of the U.S. and foreign businesses, the 
presence of the beneficiary in the United States raises the question of whether the foreign 
SRC 03 049 52363 
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business continues to do business abroad. The lack of current evidence leads the AAO ,to 
conclude that the foreign sole proprietorship is no longer doing business. 
Additionally, it remains to be determined that the beneficiary's services are for a tempora~y 
period. The petitioner indicated that the beneficiary is the sole owner of both companies. The 
regulation at 8 C.F.R. 5 214.2(1)(3)(vii) states that if the beneficiary is an owner or major 
stockholder of the company, the petition must be accompanied by evidence that the beneficiary's 
services are to be used for a temporary period and that the beneficiary will be transferred to an 
assignment abroad upon the completion of the temporary sefvices in the United States. In the 
absence of persuasive evidence, it cannot be concluded that the beneficiary's services are to be 
used temporarily or that he will be transferred to an assignment abroad upon completion of hns 
services in the United States. For these additional reasons, the petition may not be approved. 
Beyond the decision of the director, the petitioner's Internal Revenue Service (IRS), Form 1040, 
Schedule C tax return reveals that the beneficiary is doing business as a sole proprietorship and 
that it is not a subsidiary and is not affiliated with any other entity. As a matter of law, the 
beneficiary is ineligible for the classification sought. It is fundamental to this nonimmigrant 
classification that there be a United States entity to employ the beneficiary. In order to meet the 
definition of "qualifying organization," there must be a United States employer. See 8 C.F.R.. 
214.2(1)(I)(ii)(G)(2). The petition includes evidence, including an IRS Form 1040 with Schedule 
C that demonstrates that the beneficiary is doing business as a sole proprietorship. Again, a  sol^? 
proprietorship is a business in which one person operates the business in his or her personal 
capacity. Black's Law Dictionary at 1398. Unlike a corporation, a sole proprietorship does not 
exist as an entity apart from the individual proprietor. See Matter of United Investment Group, I!) 
I&N Dec. at 250. As in the present matter, if the petitioner is actually the individual beneficiary 
doing business as a sole proprietorship, with no authorized branch office of the foreign employer 
or separate legal entity in the United States, there is no U.S. entity to employ the beneficiary and 
therefore no qualifying organization. Consequently, it cannot be concluded that the petitioner is a 
qualifying organization doing business in the United States as an employer. See 8 C.F.R. 
5 214.2(1)(l)(ii)(G). For this further reason, the petition may not be approved. 
Beyond the decision of the director, the AAO finds that the beneficiary has not been employed in 
a managerial or executive capacity abroad as defined at section 101(a)(44) of the Act, 8 U.S.C. 5 
1101(a)(44). As previously stated, to establish L-1 eligibility under section lOl(a)(15)(L) of the 
Act, the petitioner must submit evidence that within three years preceding the beneficiary's 
application for admission into the United States, the foreign organization employed the 
beneficiary in a qualifying managerial or .executive capacity, or in a specialized knowledge 
capacity, for one continuous year. The petitioner submitted a limited and vague description of the 
beneficiary's foreign duties. For example, in a November 15, 2002 letter, the petitioner described 
the beneficiary's duties as the "owner, Manager and Chief Executive Officer." Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Treasure Craft of California, supra. In sum, the AAO is not 
persuaded that the beneficiary has been employed in a primarily managerial or executive capacity 
abroad. For this additional reason, the petition may not be approved. 
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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 the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.ID. 
Cal. 2001), aff'd. 345 F.3d 683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (:!d 
Cir. 1989)(noting that the AAO reviews appeals on a de novo basis). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
CIS records reflect that the petitioner filed an 1-140, receipt number SRC 01 030 55966. The 
petition was received on November 7,2000 and subsequently approved. In addition, the petitioner 
filed a second 1-129, receipt number SRC 04 043 51911, received on December 1, 2003 and 
currently pending. If the two petitions are based on similar claims and evidence, the approved 
petition should be reviewed for possible revocation and the pending 1-129 should be closely 
examined and adjudicated. 
ORDER: The appeal is dismissed.