dismissed L-1A Case: Freight Transportation

U.S. Department of Homeland Security 
20 Mass. Ave., N.W , Rm. A3042 
Washlugton, DC 20529 
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FTT B: WAC 03 133 53435 Office: CALIFORNIA SERVICE CENTER Date: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
%-, Administrative Appeals ~Bffice 
LI 
WAC 03 133 53435 
Page 2 
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The 
matter is now before the Ad.ministrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as a 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of California 
that is engaged in freight transportation and importing and exporting Mexican goods. The petitioner claims 
that it is an affiliate of the beneficiary's foreign employer, located in Tijuana, Mexico. The petitioner now 
seeks to enlploy the beneficiary for two years. 
The director denisd the petition stating that the petitioner did not demo~strate: (1) that it was doing business 
in the United States; and (2) that the beneficiary was employed in the United States in a primarily managerial 
or executive capacity. The director specifically noted that the petitioning organization is capable of paying 
only a portion of the beneficiary's salary, and therefore was not doing "satisfactory business" in the United 
States. The director also noted that the petitioner employed the beneficiary as its sole employee at the time of 
filing the petition, and therefore, the beneficiary was likely performing non-managerial and non-executive job 
duties. 
9n apgeal, ccunsel challenges the director's finding that the pctitioniilg organization is not doicg business. 
Co~rnr-.l etstes that the director incorrectly assumed that the United States entity was not capable of pdying the 
le.nciicirary's salary. Counsel also Ytates that in cjetermining the beneficiary was not employed as a manager 
or executive in the United States entity, the director "overlooked the reason for the lack of enyloyees." 
Counsel claims that the events of September 11, 2001 impacted the company's business, md "has set the U.S. 
company back about two years in its plans for growth." The director submits a letter in suppol r of the appeal. 
To estabiish L-1 eligibility, the petitioller must meet the criteria outlined in section 101(a)(15)(L) of the Act, 8 
U.S.C. 5 1101(a)(15)(L). 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 ~pecialized knowledge capacity, for one contilluous year. 
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. g 214.2(1)(3) staies 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) Svidence 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. 
WAC 03 133 53435 
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 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. 
The AAO will first address the issue of whether the petitioning organization is doing business in the United 
States. 
The regulation at 8 C.F.R. 5 214.2(1)(l)(ii)(H) defines "doing business" as: 
[Tjhe 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. 
The petitioner filed the nonimmigrant petition on March 24, 2003. In an accompanying letter, dated March 
19, 2003. the ~etitioner explained that it was established in 1998 and is engaged in freight transportation, 
warehousing, customs clearance, and the import and export of goods between the United States and Mexico. 
The petitioner submitted its year 2002 Internal Revenue Service (RS) Form 1120, U.S. Corporation Income 
Tax Return, which retlected an annual income of ap~roximately $64.000. 
31 a reqwst for evidence, dated April 1, 2003, the director asked that the petitioner proxjde: (1) photographs 
9f its inside and outside business premises, including its factory, warehouse, and office; (2) an explanation of . 
the petitioner's business hours; and (3) its lease agreement indicating the dimensions of the business premises. 
Counsel responded in a letter dated May 15, 2003. Counsel stated that the company's ofilce hours are frorn 
5:00 am until 5:00 pm. Counsel submitted photographs of the petitioner's business premises and a copy of its 
lease, dated March 1, 2003, for the use of the office premises. Counsel explained in his letter that the 
petitioner's current premises would be too small when additioilal employees are hired, and noted that the 
petitioner would seek other office space by the end of the year. Counsel aiso submitted applications for a 
Texas certificate of title on two truck tractors and provided a letter from the seller confirming the sale of the 
tnrcks on May 22. 1998. 
In a decisiori dated June 2, 2003, the director determined that the petitioner had failed to establish that it was 
doing "satisfactory business." The director based his conclusion on the fact that the beneficiary's foreign 
employer was responsible for paying a portion of the beneficiary's salary, while the petitioner paid the 
remainder. Accordingly, the director denied the petition. 
Counsel filed a11 appeal on July 1, 2003 stating that the director's decision "overlooked the fact that the 
payment arrangements for the beneficiary were incorrectly described in the Petitioner's letter of March 19, 
2003." Courisel explains that his May 15, 2003 response to the director's request for evidence stated that 
during the petitioner's development phase, the beneficiary's salary would be paid by the foreign entity. 
Counsel notes that in 2002, the petitioner was able to contribute to the payment of the beneficiary's salary, and 
would, in the future, be responsible for the entire amount. 
On review, the petitioner has not conclusively demonstrated that it has been doing business in the United 
States. 
WAC 03 133 53435 
Page 4 
While the AAO determines that the record does not establish that the petitioner is operating in the United 
States, the AAO bases this conclusion on reasons other than that identified by the director. The petitioner 
claims that it is operating as a freight forwarder and importing and exporting company. Although the 
petitioner submitted evidence of its ownership of two trucks used for freight transportation and a lease 
identifying office premises used by the petitioner in the United States, there is no additional documentary 
evidence, such as customs forms or documents establishing a relationship between customs brokers or agents, 
substantiating the petitioner's claim as an importcr or exporter. 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 firm Additionally, the 
petitioner has not provided a lease for a warehouse or garage where freight or the petitioner's vehicles may be 
stored. Moreover, as the petitioner does not employ any drivers, it is unclear how the petitioner is performing 
any of its claimed operations, such as transporting freight. The record contains insufficient documentation 
establishing that the petitioner has been doing business in the United States. 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, 14 I&N Dec. 190 (Reg. Comrn. 1972). 
Furthermore, the lease subnlitted by the petitioner reflects that the petitioner secured officc premises on 
March 1, 2003 approximately three years after the beneficiary entered the United States as a L-1A 
intracompany transferee.' At the time of filing the original petition, either the petitioner did not .:ornply with 
this requiremmt, misrepresmted that they had complied, or the director committed gross error in approving 
I 
the yc'titiov without evidence of the pstitioner's physical premises. Regardless, the approval of ihe initial 
1 
petition may be subject to revocation based on the evidence submitted with this p~t~tion. See S C F.R. 
8 214.2(1)(9)(iii). 
Based on the foregoing discussion, the petitioner has not demonstrated that it has been doing business in the 
United States. For this reason, the appeal will be dismissed. 
The AAO will next address the issue of whether the beneficiary has been employed in the United States in a 
primarily managerial or executive capacity. 
Section 101(a)(@)(X) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), provides: 
The tern1 "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; 
The petitioner noted on both the nonimunigrant petition and in its March 19, 2003 letter submitted with the 
nonirnmigrant petition that the beneficiary has been in the United States in valid L-1A status since May 2000. 
WAC 03 133 53435 
Page 5 
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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 10l(a)(44)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primady- 
(i) Directs the management of the organization or a major component or function sf the 
organization; 
(3i) Establishes the goals and policies of the organization, co~nponent, or function; 
(iii) Exercises wide latitude in disc;-etionary decision-making; and 
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(iv) Receives only general supervision or direction from higher level executives, the board of 
directors. or stockholders of the o~ganization. 
The petitioner noted on the nonimmigrant petition that as president, the beneficiary would direct, adrninister 
and supervise the company's import and export activities. In an attached letter from the petitioner, dated 
March 19, 2003, the petitioner provided the following description of the beneficiary's position as president: 
In this position, he has been responsible for directing the day-to-day operations of the 
conlpany as well as developing long and short term goals and plans. He receives only general 
supervision from the Board of Directors. Although [the beneficiary] continues to be the Co- 
director of our Mexican company, his position as President of our United States company is a 
full time position. The salary of [the beneficiary] is currently paid by our Mexican company 
and the United States company. 
In the director's April 1, 2003 request for evidence, the director asked that the petitioner provide an 
organizational chart describing its managerial hierarchy and staffing levels. The director noted that the chart 
should identify all executives, managers, and employees of the petitioning organization, and clearly indicate 
all employees under the beneficiary's supervision. The director also requested that the petitioner submit a 
more detailed description of the beneficiary's job duties in the United States, including evidence that the 
beneficiary meets the petitioner's qualifications and educational requirements for the position of president. 
The director asked that the petitioner provide an allocation of the amount of time the beneficiary would spend 
on each identified job duty. 
WAC 03 133 53435 
Page 6 
In counsel's May 15, 2003 response to the director's request for evidence, counsel stated that the beneficiary, 
who "is the overall manager of the U.S. business," is the sole employee of the petitioning organization. 
Counsel explained that "[dlue to budget constraints caused by the events of September 11, 2001," the 
petitioner has not yet hied additional employees to assist the beneficiary. Counsel stated: 
The position held by the beneficiary requires a detailed and in-depth knowledge of the laws 
and regulations governing the importation of goods into the U.S. and Mexico. It is not 
possible to clear goods for such importation without this knowledge. [The beneficiary] has 
this knowledge. He has more than 28 years experience in this industry, and has dealt with 
importation issues of the kind dealt with by the U.S. company for the entire 28 years. He is 
one of the most experienced senior executives in this field. 
'With regard to the petitioner's personnel, counsel stated that the growth of the petitioning organi~atiori would 
require the company to hire additional workers, including: (1) an office managerlsenior assistant to the 
president; (2) a full-time secretary; and (3) two drivers. Counsel stated that the petitioner anticipates hiring 
these employees by the end of the year, and noted that the petitioner's organizational structure would be 
r,irrClar to that of the toreign organization. 
:u his June 2, 5003 decisioi~, the director determiried that the p2tiriuner 1ia.d failed to establish that the 
benzfi ciary was einpl~yed in the United States in a qualifyir~g capacity. The director acknowledged that the 
benzficiary may be performing some of the managerial job duties outlined by the petitioner, su~li as directing 
rhe Susiness' daily operations. The director concluded, however, "[slince there are no c-ther personnel 
involx~ed in the petitioning organization, it appears the beneficiary may be performing scme duties which are 
not managerial in nature." The director stated that the petitioner has nor demonstrated "that basically a11 of 
the duties perloaned by the beneficiary are 011 the managerial level." Accordingly, the director aeniea the 
yetition. 
9n appeal, co~xnscl states "[ilt is accurate that the petitioner had only one einployee at the time cf the filing of 
the petition," but notes that the director overlooked the previously-provided explanation for the lack of 
employees. Counsel again explains that the events of September 11, 2001 prevented the petitioner from 
realizing its plans for growth, and states that because "the effects of September 11 are now behind us," the 
petitioner is able to contiliue its plans. Counsel requests .chat "due to the fact that there is an unusual and valid 
reason for the interrupted growth of the U.S. comnpany," the petitioner be given the opportunity to employ the 
bttrrefi ciery as a manager or an executive. 
On appeal, the petitioner has not demonstrated that the beneficiary is employed in a qualifying capacity in the 
United States. The petitioner indicates that it plans to hire a manager and additional employees in the future. 
However, 8 C.F.R. § 214.2(1)(3)(v)(C) allows the intended United States operation one year ~ithin the date of 
approval of the petition to support an executive or managerial position. There is no provision in Citizenship 
and Immigration Services (CIS) regulations that allows for an extension of this one-year period. If the 
business is not sufficiently operational after one year, the petitioner is ineligible by regulation for an 
5xtension. Additionally, while the AAO recognizes the effects of the attacks of September 11, 2001 on the 
United States' economy, the tragic incident may not be exploited in order to receive additional time to 
establish the beneficiary's position as a manager or an executive. In the instant matter, the petitioner has not 
reached the point that it can employ the beneficiary in a predominantly managerial or executive position. For 
this additional reason, the appeal will be dismissed. 
WAC 03 133 53435 
Page 7 
Beyond the decision of the director, the record does not conclusively establish that the foreign and United 
States entity are qualifying organizations as required in the Act at 5 101(a)(15)(L), 8 U.S.C. 5 1101(a)(15)(L). 
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 
(Cornm. 1982). Tn 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 Churclz Scientology International, 19 I&N Dec. at 595. 
Here, the petitioner claimed that it is an affiliate of the beneficiary's foreign employer as both companies are 
"owned by substantially the same group of people." The petitioner however submitted evidence that the U.S. 
entity is owned by five individuals and the foreign entity is owned by four individuals. Absent documentary 
evidence such as voting proxies or agreements to vote in concert so as to establish a controlling interest, the 
petitioner has not established that the same legal entity or individuals control both entities. Thus. the 
companies are riot affiliates as both companies are not owned and controlled by the same individuals. Based 
on the evidcnce sbbrnitted, it is concluded that the petitioner has not established that a qaa1ifvir.g ~eiationship 
exists between the U.S. and foreign organizations. 
I 
I :/loreover, the petitioner did not submit entirely translated docunlcnts relating to the owllcrship of the foreign 
I. 
entity. Rather, the petitioner provided translated sections of the documentation. Because the ~etitioner failed 
to submit certified translations of the docun~ents. the AAO cannot determine whether the evidence slipports 
the peti~.icner's claiiiis. See 8 C.F.K. 103.2(b)(3). Accordingly, the evidence is not probative and will not be 
accorded ally weight in this proceeding. 
As the petitioner did not demonstrated the existence of a requisite qualifying relationship. the appeal will be 
dismised for this additional reason. 
An application or petition chat fails to comply with the technical requirements of the law may be denied by 
the AAO cven if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Ente~rises, lnc. I). United States, 229 F. Supp. 2d 1025, 1043 (E.1). Cal. 2001), afd. 345 P.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cjr. 1989)(noting that the AAO reviews 
zppeals 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. 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affmed and the petition will be denied. 
ORDER: The appeal is dismissed.