dismissed L-1A Case: Food Production

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm A3000 
Washington, DC 20529 
identifying data deleted to 
 U.S. Citizenship 
prevent clearly ~nwaminted and Immigration 
invasion of penonsl pivar~y Services 
File: SRC 05 138 5 1042 Office: TEXAS SERVICE CENTER Date: 0 2 3 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(L) 
IN BEHALF OF BENEFICIARY: 
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 P. Wiemann, Chief 
Administrative Appeals Office 
SRC 05 138 51042 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary in the position of president 
and general manager to open a new office in the United States as an L-IA nonimmigrant intracompany 
transferee pursuant to section 101(a)(15)(L) of the lmmigration and Nationality Act (the Act), 8 U.S.C. 3 
1 lOl(a)(15)(L). The petitioner, a corporation organized under the laws of the State of Texas, claims to be a 
tortilleria and alleges that it has a qualifying relationship with a group of Mexican tortillerias.' 
The director denied the petition concluding that the petitioner failed to establish that the United States 
operation will support an executive or managerial position within one year. Specifically, the director 
concluded that the petitioner did not establish that the foreign entity had made an investment in the United 
States operation. 
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, the petitioner asserts that the director erred in 
denying the petition because the record establishes that the foreign entity, and not the beneficiary, invested 
sufficient funds in the United States operation. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(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 
'1t should be noted that, according to Texas state corporate records, the petitioner's corporate status in Texas is 
not in good standing. Therefore, as the State of Texas has forfeited the petitioner's corporate privileges, the 
company can no longer be considered a legal entity in the United States. Therefore, as this clearly and 
unequivocally renders the petitioner ineligible for the classification sought, the petition could not be approved 
even if the other issues in this matter were overcome on appeal. 
SRC 05 138 51042 
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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 
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 regulation at 8 C.F.R. § 214.2(1)(3)(v) states that if the petition indicates that the beneficiary is 
coming to the United States as a manager or execu~tive 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: 
(1) 
 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 primary issue in this matter is whether the intended United States operation, within one year of the approval 
of the petition, will support an executive or managerial position. 
In the initial petition, the petitioner states in the letter dated March 30, 2005 that the United States operation 
will be in the business of "making, selling and distributing fresh homemade style corn tortillas" and derivative 
products, both retail and wholesale. The petitioner provided a "forecasted financial statement," a lease signed 
by the beneficiary, a list of objectives of the petitioner's proposed business, and a three-phased organizational 
chart. The list of objectives and forecasted financial statement, while establishing the petitioner's intent to 
SRC 05 138 51042 
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grow its business, are not corroborated by any documentation establishing the feasibility of the objectives or 
the reasonableness of the forecast. Moreover, the three-phased organizational chart depicts the petitioner's 
business in its third phase of growth to employ the beneficiary, a vice president, an operations manager, and 
employees engaged in sales and in tortilla production. Again, the organizational projections are not 
corroborated by any supporting documentation nor do they include any job descriptions for the beneficiary or 
the projected subordinate employees. Finally, the petitioner failed to provide any evidence of an investment 
in the United States operation. 
On April 26, 2005, the director requested additional evidence. The director requested, inter alia, evidence of 
the funding or capitalization of the United States operation. 
In response, the petitioner provided a letter from the beneficiary explaining that he sold a house and two 
vehicles to raise the money to buy equipment to start the United States operation. The petitioner also 
provided copies of the beneficiary's personal, foreign bank statements purporting to show relevant activity, 
including the deposit of the proceeds from the sale of the house and vehicles in Mexico. No bank statements 
for the petitioner were provided. 
On May 18, 2005, the director denied the petition. The director determined that the petitioner failed to 
demonstrate that the intended United States operation, within one year of the approval of the petition, will 
support an executive or managerial position due to the petitioner's failure to establish any investment in the 
United States operation. 
On appeal, the petitioner asserts that the record establishes that the foreign entity, and not the beneficiary, 
invested sufficient funds in the United States operation and that this establishes that the United States 
operation, within one year of the approval of the petition, will support an executive or managerial position. 
Upon review, the petitioner's assertions are not persuasive. 
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 perfonned. 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. 5 214.2(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 perform qualifying duties. 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter ofHo, 22 I&N Dec. 
206, 2 13 (Assoc. Comrn. 1998). Although the precedent relates to the regulatory requirements for the alien 
SRC 05 138 51042 
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entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target marketlprospective customers of the new 
commercial enterprise. The plan should list the required pennits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials andlor the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. 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. It should contain sales, cost, and income projections and detail the bases 
therefor. Most importantly, the business plan must be credible. 
Id. 
In this case, the "forecasted financial statement," the list of objectives of the petitioner's proposed business, 
and the three-phased organizational chart submitted by the petitioner collectively fail to prove that the 
enterprise will likely 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 
qualifying duties. The documents fail to corroborate any of its assertions with documentation, studies, or 
independent analyses. Given this lack of corroboration, the documents do not credibly explain the scope of 
the entity or its financial goals nor does it outline a credible plan for expansion beyond the initial start-up 
phase. Also, since the three-phased organizational chart fails to provide any timelines, it is impossible to 
determine in which stage the petitioner expects to be by the end of its first year in business. Therefore, the 
petitioner has failed to present evidence sufficient to prove that the intended United States operation, within 
one year of the approval of the petition, will support an executive or managerial position. 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)). 
Moreover, the petitioner has failed to establish that an investment has been made in the United States 
operation. Even accepting as true the petitioner's uncorroborated averment that the beneficiary sold a house 
and two vehicles to raise money to start the United States operation, there is no evidence that these assets 
belonged to the foreign entity2 and, more importantly, there is no evidence that these assets were liquidated 
2 
Although counsel to the petitioner asserted on appeal that these assets belonged to the foreign entity, he 
provided no documentary proof corroborating this assertion. The unsupported statements of counsel on 
appeal or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v, 
Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter ofRarnirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
SRC 05 138 51042 
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and invested in the United States operation. While the petitioner provided several bank statements showing 
activity, including substantial deposits, these statements are for the beneficiary's personal, foreign bank 
account. No bank account information was provided for the petitioner. Also, while the petitioner argues that 
the beneficiary acquired certain equipment, there is no evidence that the petitioner has acquired this 
equipment. 
Accordingly, the petitioner has not established that the intended United States operation, within one year of the 
approval of the petition, will support an executive or managerial position as required by 8 C.F.R. 5 
214,2(1)(3)(v)(C), and the petition may not be approved for this reason. 
Beyond the decision of the director, a related issue is whether the petitioner has established that it has secured 
sufficient physical premises to house the new office as required by 8 C.F.R. 5 214.2(1)(3)(v)(A). While the 
petitioner supplied a copy of a lease for, and photos of, its purported offices in the United States, the lease 
provided by the petitioner is for premises secured by the beneficiary. Moreover, since the beneficiary, as the 
tenant, is prohibited from assigning the lease or subleasing the leased premises under paragraph B(8) without 
the landlord's written consent, the petitioner has not established that it has secured sufficient physical 
premises absent evidence that the landlord has given consent. For this additional reason, the petition may not 
be approved. 
Beyond the decision of the director, a related issue is whether the petitioner has established that it and the 
foreign entity are qualifying organizations as required by 8 C.F.R. § 214.2(1)(3)(i). 
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. 
8 C.F.R. 9 214.2(i)(l)(ii)(G) defines a "qualifying organization" as a firm, corporation, or other legal entity 
which "meets exactly one of the qualifying relationships specified in the definitions of a parent, branch, affiliate 
or subsidiary specified in paragraph (l)(l)(ii) of this section." An "affiliate" is defined, in part, as "a legal entity 
owned and controlled by the same group of individuals, each owning and controlling approximately the same 
share or proportion of each entity." 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientoloa~ International, 19 I&N Dec. at 595. 
SRC 05 138 51042 
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In the initial Form 1-129 petition, the petitioner purports that the foreign entity, or foreign entities, are owned 
either entirely or partly by the beneficiary and his spouse who, in turn, own 100% of the petitioner, thus 
establishing, if true, that the entities are affiliates. In support of this contention, the petitioner provided a copy 
of articles of incorporation for the petitioner authorizing 100,000 shares of stock, stock certificate #1 issuing 
500 shares of stock to the beneficiary, stock certificate #2 issuing 500 shares to the beneficiary's spouse, and a 
copy of organizational minutes. The petitioner explained the organization of the foreign entity in a letter 
dated March 30,2005: 
[The beneficiary] and his wife are owners of six Tortillerias in Zacatecas, Mexico. [The 
beneficiary], along with his wife, own and control five Mexican Tortillerias, and are in 
association with [the beneficiary's mother-in-law] in the original Tortilleria. 
The fact that [the beneficiary] either solely or jointly with his wife own five of the six 
Mexican tortillerias and are partners with [the beneficiary's] mother-in-law in the 
tortilleria, together with the fact that [the beneficiary and his spouse] own [the petitioner], 
establishes the existence of a qualifying relationship between the [the petitioner] and the 
Mexican company,- 
While the petitioner provided evidence regarding the activities of the foreign business, the petitioner did not 
provide any further evidence regarding its ownership or organization. 
Upon review, the petitioner has not established that it has a qualifying relationship with the foreign employer, 
because it has not sufficiently established the organization, ownership, or control of this entity or entities. As 
explained by the petitioner, there appear to be six different businesses in Mexico with which the petitioner 
claims a qualifying relationship. It is unclear whether the petitioner is claiming that all six businesses are one 
entity, that the five tortillerias allegedly owned by the beneficiary and h~s spouse are one entity, or that there 
are six separate entities. Moreover, the petitioner has not provided sufficient documentary evidence 
establishing who owns and controls the foreign employer(s). 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. Without this evidence, Citizenship and Immigration Services (CIS) 
cannot determine whether the same group of individuals who owns and controls the petitioner also owns and 
controls the foreign entity. 
Second, the petitioner has provided insufficient evidence to establish the ownership and control of the United 
States operation. In this case, the petitioner has provided stock certificates evidencing the issuance of 1,000 
of the petitioner's 100,000 shares, the articles of incorporation, and the organizational minutes of the 
petitioner. As general evidence of a petitioner's claimed qualifying relationship, the corporate stock 
certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder 
meetings must also be examined to determine the total number of shares issued, the exact number issued to 
the shareholder, and the subsequent percentage ownership and its effect on corporate control. Additionally, a 
petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, 
SRC 05 138 51042 
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the management and direction of the subsidiary, and any other factor affecting actual control of the entity. 
See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all relevant documents, CIS is 
unable to determine the elements of ownership and control. 
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), 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 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 MO 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.