dismissed L-1A Case: Furniture

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washirlgton, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 03 095 52637 Office: VERMONT SERVICE CENTER Date: 
JU~ ; 3 2CO5 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 4 1 10 l(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. 
&& 
'/k&ert P. lernann, Director 
Administrative Appeals Office 
EAC 03 095 52637 
Page 2 
DISCUSSION: The nonirnrnigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner claims to be an affiliate of Jinwong Furniture, located in Korea. The petitioner 
plans to operate an import, manufacturing, and distribution of office furniture and parts business. 
The U.S. entity was incorporated in the State of Pennsylvania on November 20, 2001. The 
petitioner seeks to hire the beneficiary as a new employee to open its U.S. office. Accordingly, on 
January 31, 2003, the U.S. entity petitioned Citizenship and Immigration Services (CIS) to 
classify the beneficiary as a nonirnrnigrant intracompany transferee (L-1 A) pursuant to section 
101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 101 (a)(15)(L), as an 
executive or manager for three years. The petitioner endeavors to employ the beneficiary's 
services as the U.S. entity's president. 
On April 3, 2003 the director denied the petition. The director determined that the petitioner 
failed to establish that: 1) the U.S. entity was a new office; and 2) the beneficiary will be 
employed in a primarily managerial or executive capacity. 
On appeal, the petitioner's counsel claims that "the U.S. entity is a new office" because "it has 
not been doing business in the U.S. for more than one year" and the petitioner previously 
submitted sufficient evidence to meet the requirements for a new office petition. 
To establish L-1 eligibility under section lOl(a)(lS)(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 howledge capacity. 
Pursuant to 8 C.F.R. 3 214.2(1)(3), 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. 
(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. 
EAC 03 095 52637 
Page 3 
(iv) Evidence that the alien's prior year of employment abroad was in a 
position that was managerial, executive, or involved specialized knowledge and 
that the alien's prior education, training, and employment qualifies himlher to 
perform the intended services in the United States; however, the work in the 
United States need not be the same work which the alien performed abroad. 
Pursuant to 8 C.F.R. $ 214.2(1)(3)(~), if the petition indicates that the beneficiary is coming to the 
United States as a manager or executive to open or to be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) Sufficient physical premises to house the new office have been secured; 
(B) The beneficiary has been employed for one continuous year in the three 
year period preceding the filing of the petition in an executive or managerial 
capacity and that the proposed employment 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 manageria1 position as defined in 
paragraphs (l)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(I) The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability 
of the foreign entity to remunerate the beneficiary and to commence 
doing business in the United States; and 
(3) The organizational structure of the foreign entity. 
The first issue in this proceeding is whether the petitioner should be considered a new office. The 
regulations at 8 C.F.R. $8 214,2(1)(l)(ii)(F) and (H) define "new office" and "doing business'' as: 
(F) 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. 
(W) do in^ business means the reg&.., 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 January 3 1, 2003, the petitioner submitted the Form 1-129. On the Form 1-129, the petitioner 
indicated that the petitioner was a new office. The petitioner submitted its articles of incorporation 
EAC 03 095 52637 
Page 4 
showing that the U.S. entity was incorporated on November 20,2001. The petitioner also submitted 
evidence to indicate that the petitioner was in its preliminary stages of development. 
On February 13, 2003, the director requested additional evidence to establish when the U.S. 
office started doing business. 
The petitioner responded to the director's request stating that it has not "started business full 
scale" and that it has been preparing to take orders from dealers, placing orders, and delivering 
the products after its May 2003 show. 
On April 3, 2003 the director denied the petition. The director determined that the petitioner 
failed to establish that the U.S. entity was a new office because "there was evidence of business 
having been conducted more than one year prior to the filing of the petition" on January 3 1, 
2003.' 
On appeal, the petitioner's counsel claims, "[Tlhe U.S. entity is a new office" because "it has not 
been doing business in the U.S. for more than one year." The petitioner submits a time frame for 
the petitioner's business activities which included "incorporating, opening a bank account, 
transferring funds, signing a lease, and receiving proposals for support services and the purchase 
of equipment." 
On review, the petitioner has been doing business less than one year and is considered a new 
office pursuant to 8 C.F.R. 5 2 14,2(l)(l)(ii)(F). The petitioner was incorporated on November 20, 
2001 and filed its petition on January 31, 2003. Although the U.S. entity was incorporated in 
November 2001, at the time of filing the visa petition, the petitioner does not appear to have been 
engaged in the regular, systematic, or continuous provision of goods and/or services from the time 
of establishment in November 2001 until filing. Rather, the petitioner submitted documentation that 
indicated that the petitioner was in the preliminary stages of development. 
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 AAO now turns to the second issue in this proceeding of whether the petitioner will support 
an executive or managerial position within one year of the approval of the petition. Section 
lOl(a)(44)(A) of the Act, 8 U.S.C. 9 1101(a)(44)(A), provides: 
' The AAO notes that the director appears to not consider this matter as a new office petition. 
However, there 1s some indication that the d~rector is uncertain whether this matter should be 
adjudicated as a new office petition as the director stated "it is not a new office . . . [elven if this 
were not the case" and "[elven if this petition qualified as a new office petition." As a result, the 
AAO wiIl determine whether to adjudicate this matter as a new office petition. 
EAC 03 095 52637 
Page 5 
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 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; 
(ii.) establishes the goals and policies of the organization, component, or 
function; 
(iii.) exercises wide latitude in discretionary decision-malung; and 
(iv.) receives only general supervision or direction from higher level 
executives, the board of directors, or stockholders of the organization. 
The petitioner described the beneficiary's proposed U.S. duties on the Form 1-129 and in a 
January 29,2003 supporting letter as: 
Managerial/executive position in the [US. company]. He will hire and manage 
local employees to set up production and assembly Iine. [The beneficiary] has to 
hire professional assistance in the area of accounting, legal, and marketing. He 
will interview company accounting firms, company law firms, and marketing 
consultants. He also needs to attend industrial trade shows throughout the U.S. to 
EAC 03 095 52637 
Page 6 
develop and establish market ties and to negotiate with potential customers and 
dealers for import, export and distribution of high volume trade purchases. 
On February 13, 2003, the director issued a request for evidence. In particular, the director 
requested: 1) a copy of the business plan for commencing the start-up of the business in the 
United States; 2) an explanation of how the new company will grow to be a sufficient size to 
support a managerial or executive position; and, 3) an explanation of how the beneficiary will be 
relieved from performing the non-managerial, day-to-day operations of the business. 
In response, the petitioner submitted a timetable of its business plan and hiring schedule. 
The director denied the petition concluding that the petitioner had not established that the 
beneficiary would be employed in a managerial or executive capacity. As discussed above, the 
director concluded that the U.S. entity did not meet the definition of a new office. However, the 
director asserted that if the petition was considered to be a new office, the evidence did not show 
that sufficient growth would occur within the one-year time frame to support an executive or 
managerial position. 
On appeal, the petitioner's counsel claims that the petitioner has met the requirements for a new 
office petition. 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description ofjob duties. See 8 C.F.R. § 214.2(1)(3)(ii). On review, the petitioner 
has not established that the proposed employment involved executive or managerial authority 
over the new operation. It is unclear what managerial or executive duties the beneficiary will 
primarily perform for the U.S. entity because the beneficiary's proposed job description is vague. 
The petitioner described the beneficiary's proposed duties as "managerial/executive." However, 
the petitioner does not clarify whether the beneficiary is claiming to be primarily engaged in 
managerial duties under section 101(a)(44)(A) of the Act, or primarily executive duties under 
section 101(a)(44)(B) of the Act. A beneficiary may not claim to be employed as a hybrid 
"executive/manager" and rely on partial sections of the two statutory definitions. A petitioner 
must establish that a beneficiary meets each of the four criteria set forth in the statutory definition 
for executive and the statutory definition for manager if it is representing the beneficiary is both 
an executive and a manager. In addition, the petitioner described the beneficiary's duties as 
including "hir[ing] professional assistance in the area of accounting, legal, and marketing" and 
"to develop and establish market ties and to negotiate with potential customers." However, the 
petitioner fails to explain how hiring professional assistants will preclude the beneficiary from 
primarily performing nonexecutive or nonmanagerial duties or how the beneficiary will develop 
and establish market ties. 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 CaliJbrnia, 14 I&N Dec. 
190 (Reg. Comm. 1972)). 
Further, in examining the business @an, the precedent decision, Matter ofHo, 22 I&N Dec. 206, 
2 13 (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 
EAC 03 095 52637 
Page 7 
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 
indicates that the company will not begin operating at full capacity until August 2003 six months 
after the petition was submitted which raises the question as to the actual staffing levels by the 
end of the first year. Although the petitioner did provide a hiring plan indicating that it intended 
to hire a sales manager, trade agent, assistant production manager, and assembly workers during 
the first year the petition did not adequately explain what duhes the proposed employees would 
perform. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
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 performed. 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 enterpfise 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 qualifiing duties. 
In this matter, 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 reason, the petition 
may not be approved. 
The AAO now turns to an issue raised by the director of whether the beneficiary has been 
employed abroad in a qualifying managerial or executive capacity. As previously stated, 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. See 8 C.F.R. 9 2 14.2(1)(3)(v)(b). 
On the Form 1-129, the petitioner described the beneficiary's foreign duties as "[s]upervised and 
managed [the foreign entity] as the president. Established company policy, marketed [the foreign 
entity's] products. Managed personnel, financial, R & D matters of the company." In addition, in 
a January 29, 2003 letter, the petitioner claimed that the beneficiary has "3 years of experience at 
[the foreign company]." The petitioner also claimed that the beneficiary's "15 years of 
experience in office fmiture manufacturing industry gives him sufficient knowledge and 
experience to fulfill the duties of president for [the U.S. entity]." 
EAC 03 095 52637 
Page 8 
In a request for additional evidence on February 13, 2003, the director requested: 1) a description 
of the number of foreign subordinate supervisors under the beneficiary's management; 2) a 
description of the foreign job duties and titles of the subordinate employees; 3) an explanation of 
what executive and technical sluIls are required to perform the beneficiary's overseas duties; 4) a 
description of the time the beneficiary spends on his foreign executive and nonexecutive duties; 
and, 5) the beneficiary's degree of discretionary authority over the foreign day-to-day operations. 
In the response letter to the request for additional evidence, the petitioner appears to have 
responded to the director's request by providing further information about the beneficiary's U.S. 
duties and current role in establishing the U.S. office. 
On April 3, 2003 the director denied the petition. The director noted that the petitioner failed to 
submit requested evidence to establish that the beneficiary currently serves in a managerial or 
executive level position abroad. However, the director assumed that the beneficiary is "engaged 
in managerial level work abroad based on the fact that he owns the company and there are several 
documents which suggest that the company abroad is of a size sufficient to support a manager or 
executive." 
The director erred in his assumptions. Assumptions are not a substitute for probative evidence of 
eligibility in the record of proceeding. 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 
non-existence or other unavailability of required evidence creates a presumption of ineligibility. 
8 C.F.R. $ 103.2(b)(2)(i). 
In examining the executive or managerial capacity of the beneficiary, the AAO will look first to 
the petitioner's description of the job duties. See 8 C.F.R. $ 214.2(1)(3)(ii). On review, the AAO 
finds insufficient evidence to establish that the beneficiary has been employed in a managerial or 
executive capacity abroad as required by 8 C.F.R. 3 214.2(1)(3)(v)(b). Further, the petitioner 
provided a vague and nonspecific description of the beneficiary's duties that fails to establish 
what the beneficiary does on a day-to-day basis. For instance, the petitioner was described as 
"[s]upervised and managed [the foreign entity] as the president." The petitioner did not, 
however, define or clarify these duties. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. at 165. 
In addition, the petitioner generally paraphrased the statutory definition of executive capacity. See 
section lOl(a)(44)(A) of the Act. For instance, the beneficiary's position is depicted as 
"[e]stablish[ing] company policy." However, conclusory assertions regarding the beneficiary's 
employment capacity are not sufficient. Merely repeating the language of the statute or 
regulations does not satisfjr the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989)' afd, 905 F. 2d 41 (26. Cir. 1990); Avyr Associates Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Finally, on the Form 1-129, the beneficiary's duties were described as "marketed [the foreign 
entity's] products." Since the beneficiary actually engaged in marketing activities rather than 
directing or managing them, he is performing tasks necessary to provide a service or product. An 
EAC 03 095 52637 
Page 9 
employee who primarily performs the tasks necessary to produce a product or to provide services 
is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, I9 I&N Dec. 593,604 (Comrn. 1988). 
Finally, as noted above, the petitioner failed to respond to the director's request for additional 
evidence issued on February 13, 2003. The director specifically requested that the petitioner 
submit a comprehensive description of the beneficiary's duties, the amount of time he devotes to 
managerial duties, and a detailed description of the foreign entity's staffing. Again, 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). 
After careful consideration of the evidence, the AAO concludes that the beneficiary has not been 
employed in a qualifying managerial or executive capacity abroad and withdraws this portion of 
the director's decision. For this additional reason, the petition may not be approved. 
Beyond the decision of the director, another issue in this proceeding is whether the petitioner has 
secured sufficient physical premises to house the new office pursuant to 8 C.F.R. 
9 214.2(1)(3)(v)(A). The petitioner submitted a copy of two business leases and photographs. 
However, the petitioner has not described its anticipated space requirements for its import 
business and the leases in question does not specie the amount of space secured. The director, in 
his request for additional evidence, specifically requested photographs of the interior and exterior 
of the premises that clearly depict the organization and operation of the entity. In this matter, 
although the petitioner submitted leases for a showroom and a warehouse, the existence of the 
showroom is questionable. The photographs show an unidentified building and do not show the 
petitioner's office suite or number. The director specifically requested that the petitioner submit a 
comprehensive description of the beneficiary's duties, the amount of time he allocates to 
managerial duties, and a detailed description of the foreign entity's staffing levels. In addition, 
contrary to what the petitioner indicated as the new office's suite number on the Form 1-129 and 
on its lease, the photographs appear to represent that the petitioner's office is located in a 
warehouse. 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). 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. Id. At 591. In sum, based on the 
insufficiency of the information furnished, it cannot be concluded that the petitioner has secured 
sufficient space to house the new office. For this additional reason, the petition may not be 
approved. 
Although not addressed by the director, the petitioner indicated that the beneficiary is the sole 
owner of both companies. If this fact is established, it remains to be determined that the 
beneficiary's services are for a temporary period. 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 services in the United States. In the absence of persuasive evidence, it cannot be 
EAC 03 095 52637 
Page 10 
concluded that the beneficiary's services are to be used temporarily or that he will be transferred 
to an assignment abroad upon completion of his services in the United States. Generally, the 
petitioner for an L-1 nonimmigrant classification need submit only a simple statement of facts 
and a listing of dates to demonstrate the intent to employ the beneficiary in the United States 
temporarily. However, where the beneficiary is claimed to be the owner or a major stockholder 
of the petitioning company, a greater degree of proof is required. Matter of Zsovic, 18 I&N Dec. 
36 1 (Comrn. 1982); see also 8 C.F.R. 5 2 14.2(1)(3)(vii). 
In addition,' the petitioner failed to establish that a qualifying relationship exists between the 
petitioning entity and a foreign entity pursuant to 8 C.F.R. 5 214.2(1)(l)(ii)(G). The petitioner 
claimed that the U.S. entity was an affiliate of the foreign entity based on common ownership and 
control by the beneficiary. The petihoner submitted a copy of a stock certificate and stock ledger 
indicating that the beneficiary is the owner of one of the U.S. entity's shares. However, the 
petitioner did not submit any evidence to substantiate its claim that the beneficiary owns the 
foreign entity. 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. at 
165. Accordingly, the petitioner has not demonstrated that a qualifying relationship exists with a 
foreign entity and has not persuasively demonstrated that the foreign entity will continue doing 
business during the alien's stay in the United States. For these further reasons, the petition may 
not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the SeMce Center does not identifl all 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). 
Finally, the AAO notes that counsel on appeal stated, "8 C.F.R. 3 103.2@)(16)(i) makes it a legal 
obligation for the Service to provide the applicant specific information on which it relied in 
making its adverse decision. Without such evidence it is difficult, if not impossible, to 
meaningfully evaluate the decision and prepare a rebuttal." However, counsel incorrectly 
interpreted and applied the law to this proceeding. The regulation at 8 C.F.R. 5 103,2@)(26)(i) 
applies to derogatory information unknown to the petitioner. Here, the director did not base his 
decision on unknown derogatory information; rather the record of proceeding, known to the 
petitioner, constituted the basis for the director's decision. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.