dismissed L-1A Case: Furniture

h7
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
File: SRC 06 111 53094 Office: TEXAS SERVICE CENTER Date:
INRE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15XL) of the Immigration and
Nationality Act, 8 U.S.c. § 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.
~~~.
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06111 53094
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 appeal will be dismissed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-IA nonimmigrant
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8
U.S.c. § 1101(a)(l5)(L). The petitioner, a Florida limited liability company, states that it intends to engage in
the design, distribution and sale of contemporary furniture. The petitioner claims to be a subsidiary of
Essebici Comunicazioni illtegrate SRL, located in Milan, Italy. The petitioner seeks to open a new office in
the United States and has requested that the beneficiary be granted a three-year period in L-1A classification
to serve as its general manager.!
The director denied the petition concluding that the petitioner failed to establish that the foreign entity had
provided funding or capitalization for the U.S. company prior to the filing of the petition.
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, counsel for the petitioner asserts that the petitioner
provided ample evidence of an investment in the U.s. company, and contends that the petitioner did in fact
provide evidence of wire transfers from the foreign entity to the U.S. entity which pre-dated the filing of the
petition. Counsel contends that as of June 2006, the foreign entity has invested approximately $150,000 in the
U.S. company. Counsel submits a brief and additional documentary evidence in support of the appeal.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(15)(L) ofthe 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. ill 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. § 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 (1)(1)(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.
! Pursuant to the regulation at 8 C.F.R. § 214.2(l)(7)(i)(A)(3), if the beneficiary is coming to the United States
to open or be employed in a new office, the petition may be approved for a period not to exceed one year.
SRC 06 III 53094
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 him/her 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 regulation at 8 C.F.R. § 2l4.2(l)(3)(v) also provides that 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 involves 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 (IXl)(ii)(B)
or (C) ofthis 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 sole issue addressed by the director is whether the U.S. company was funded at the time the petition was
filed. When filing a petition for a beneficiary who is to be employed in a new office in a managerial or
executive capacity, the petitioner is required to submit evidence to establish the size of the United States
investment and the financial ability to commence doing business in the United States. See 8 C.F.R. §
2l4.2(1)(3)(v)(C)(2).
The nonimmigrant petition was filed on February 22, 2006. The petitioner stated on Form 1-129 that it is a
majority-owned subsidiary of Essebici Comunicazioni Integrate SRL. In support of the petition, the petitioner
submitted a business plan for the U.S. company, which indicated that the anticipated start-up requirements for
the business will be $84,000, including $25,000 in cash and $59,800 to cover costs associated with the
petitioner's legal expenses, insurance, equipment purchases, office supplies, leasehold improvements, and
showroom samples. The petitioner submitted a letter, dated February 8,2006, confirming that the petitioner
had opened a business checking account at Washington Mutual Bank. The petitioner did not provide copies of
bank statements or other evidence of funding of the U.S. entity.
SRC 0611153094
Page 4
In a request for evidence dated February 28, 2006, the director instructed the petitioner to submit evidence of
sufficient funding for the U.S. entity such as copies of wire transfers showing transfers of funds from the
foreign organization, evidence of financial resources committed by the foreign company, copies of bank
statements for checking and savings accounts, profit and loss statements, or other accountants' reports.
In a response dated May 17, 2006, counsel for the petitioner stated:
We enclose proof of payment by the parent/foreign company to the suppliers for inventory
merchandise to be received in the US subsidiary company. This merchandise is expected to
arrive at Miami during the second week of the coming June. We are enclosing invoices
showing the merchandise and the catalogue which shows the furniture.
The petitioner submitted un-translated copies of bank statements for the foreign entity; all of which appear to
be dated in 2005. The petitioner also provided a copy of a letter from the foreign entity, datedApril15, 2006,
addressed to the petitioner, which states the following:
Please note that based on your request dated 29th March 2006, I can confirm that I have
provided payment for the following Purchase orders:
* * *
The total amount of €53.000,00 have been paid to Divani Group Italia and I am enclosing
copy of confirmation of the transfer.
The petitioner also submitted a letter from the foreign entity, addressed to the Banca di Roma, requesting that
the bank send to Divani Group Italia a total of €53,000.00 as payment for four orders, referenced as "BC
Miami LLC [the petitioner]." The petitioner provided copies of the four reference purchased orders to "D
Group," identifying the petitioning company as the purchaser. The purchase orders are dated "1 Maggio
2006" or May 1, 2006.
Finally, the petitioner submitted a copy of a letter from the foreign entity, dated May 1, 2006, addressed to
petitioner's counsel, which referenced "deposits to [the petitioner's] bank accounts," but no bank statements or
other documentary evidence showing the contribution of funds to the petitioner from the foreign entity were
submitted in support of the petitioner's response to the request for evidence.
The director denied the petition on June 1, 2006, concluding that the petitioner had failed to establish that the
foreign entity made an investment in the United States entity as of February 22,2006, the date of filing of the
petition. The director acknowledged that the letter from the foreign entity, dated April 15,2006, "indicates the
foreign entity procured goods and/or services for the United States entity, but fails to indicate any deposits
and/or wire transfers were received by the United States entity from the foreign entity as of February 22,
2006."
On appeal, counsel for the petitioner asserts in a brief dated June 29, 2006, that in addition to the evidence
acknowledged by the director, the petitioner submitted the following evidence:
SRC 06 III 53094
Page 5
The company showed a signed and stamped (on the right hand side of paper) computer
statement issued by the bank showing all of the deposits and counter deposits in the
Wachovia Bank account for the US Subsidiary Company.
The company showed a letter from Bank of America stating that there were wire transfers
received in the Miami account from before the date of the letter on February 28,2006.
The total amount up to date of the Italian company's investment in the Miami company has
been approximately $150,000.00, such as wire transfers in the amount of $19,946.00 (see
evidence in file), inventory in the amount of $70,000.00, plus monies specifically invested on
the leases and equipment.
Counsel asserts that the director incorrectly required that the investment in the U.S. entity be established only
via wire transfers at banks, and contends that "this is not the only mechanism foreseen under the law."
Counsel states that the evidence submitted "shows an overwhelming investment from the Italian company into
the Miami company."
In support of the appeal, the petitioner submits a letter from Bank of America, dated June 28, 2006,
confinning that the petitioner maintains two business checking accounts with the bank, and has received two
wire transfers from Essebici SRL, totaling $19,946.00. The petitioner also submits a copy of a Wachovia
Bank statement for a business checking account dated June 28, 2006. The account number is not the same as
the one referenced on the February 8, 2006 l.ettersubmitted in support of the initial petition and the statement
does not identify the name of the account hoider.
Upon review, counsel's assertions are not persuasive. While counsel correctly asserts that the petitioner is not
specifically required to submit evidence of wire transfers between the foreign and U.S. companies, the
petitioner must still submit documentary evidence in support of its assertion that the foreign entity has made
an investment in the U.S. company as of the date the petition was filed. Although counsel asserts that the
petitioner submitted evidence that the foreign entity transferred funds in the amount of $19,946 prior to the
filing of the petition, the record contains no documentary evidence to verify the claimed dates of the wire
transfers. 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. 158, 165 (Comm. 1998) (citing
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
The only documentary evidence submitted in support of the petitioner's claims that the foreign entity has
made an investment in the U.S. company relates to the purchase of furniture for the petitioner's showroom
display. As noted by the director, this evidence post-dates the filing of the petition and is thus not probative of
the petitioner's eligibility at the time of filing. The petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or
beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978).
Furthennore, the evidence related to the foreign entity's purchase on behalf of the petitioning entity consists
of letters from the petitioner and foreign entity and is not supported by eviden,cethat the funds in the amount
of€53,000.00 were actually deducted from the foreign entity's account, such as copies of the wire transfers or
copies of the foreign entity's banks statements for the relevant month. Finally, as noted above, the purchase
SRC 0611153094
Page 6
orders referenced in the petitioner's March 29, 2006 and the foreign entity's April 15,2006 letters are dated
May 1,2006, and the petitioner has not explained how the foreign entity paid for the purchases prior to the
completion and submission of the purchase orders to the supplier. 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.
Finally, the AAO notes that the petitioner's business plan indicates that the company anticipated receiving a
$45,000 investment from its "owner" and a $39,800 investment from an "investor" to meet its stated start-up
costs of $59,800 and its start-up cash requirements of $25,000. It is reasonable to expect the petitioner to
provide evidence that it has received the required funding anticipated to commence operations in the United
States, or to explain any deviation from its business plan, in order to determine whether the petitioner had
sufficient funding as of the date of filing of the petition. The evidence submitted does not clearly establish the
size of the foreign entity's investment in the United States entity, nor does it demonstrate that the company
had sufficient funds to meet its anticipated start-up costs at the time the petition was filed. Again, 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. Based on the foregoing discussion, the appeal
will be dismissed.
Beyond the decision of the director, the evidence of record does not establish that the beneficiary was
employed by the foreign entity in a primarily managerial or executive capacity for at least one continuous
year within the three years preceding the filing of the petition, as required by 8 C.F.R. § 214.2(1)(3)(v)(B).
The petitioner stated that the beneficiary was employed as the executive manager of the foreign entity from
September 2003 until September 2004, at which time he re-located to the United States in J-l status. In two
attached letters, both dated February 10, 2006, the foreign entity indicated that as executive manager, the
beneficiary "has been in charge of the administration, management and supervision" of the Italian company;
"controls the work of other employees and has the authority to hire or fire or recommend those actions as well
as other personnel actions"; "exercises discretionary authorities over day-to-day operations"; and "devotes one
hundred percent (100%) of his time to managerial duties and does not spend any time on a first line
supervision of employees nor on hand-on productive labor."
First, the AAO notes that the record contains contradictory evidence that undermines the petitioner's claims
that the beneficiary was employed by the foreign entity for one full year prior to his admission to the United
States in J-l status. Although the petitioner stated that the foreign company employed the beneficiary from
September 2003 through September 2004, the petitioner submitted a copy of the beneficiary's Form DS-2019,
Certificate of Eligibility for Exchange Visitor (J-1) Status, indicated that the beneficiary was admitted to the
United States in J-l nonimmigrant status on August 3, 2004, only eleven months after he purportedly
commenced employment With the foreign entity. Again, 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. at 591-92. The petitioner's actual dates of employment with the
foreign entity have not been resolved, and therefore the petitioner has not established that the beneficiary
completed one year of continuous employment abroad within three years preceding the filing of the instant
petition.
SRC 06 III 53094
Page 7
Furthermore, the brief job description submitted for the be~eficiary's previous position of executive manager
merely paraphrases the statutory definition of managerial capacity. See section 101(a)(44)(A) of the Act, 8
U.S.c. § 1101(a)(44)(A). 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
of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajJ'd, 905 F. 2d 41 (2d.
Cir. 1990); Aryl" Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Absent a detailed
description of the beneficiary's actual duties while employed by the foreign entity, the AAO cannot determine
that he was employed in a primarily managerial or executive capacity. For these additional reasons, the
petition cannot be approved.
Beyond the decision of the director, the petitioner has not established that it had secured sufficient physical
premises to house the new office as of the date the petition was filed, as required by 8 C.F.R. §
214.2(l)(3)(v)(A). In support of the petition, the petitioner provided a copy of a commercial sublease contract
between the petitioner and 10 Coral Gables, Inc., for "a portion of 10 Coral Gables, Inc.'s office location" at
an "Intelligent Office" building in Coral Gables, Florida. The agreement is valid for one year commencing on
February 2, 2006 and requires the petitioner to pay a fee of $355.00. The petitioner did not provide a copy of
the original lease agreement between the sub-lessor and Intelligent Office, or any information regarding the
size or type of premises secured.
ill response to the director's subsequent request for photographs of the petitioner's office space, the petitioner
submitted a photograph of a small office containing one computer desk. The petitioner did not explain how it
is able to sublease "a portion" of an office with room for only one desk, nor clarify how it intended to operate
a furniture showroom out of such a location. The AAO acknowledges that, in response to the director's
request for evidence, the petitioner also submitted a lease agreement between the petitioner and RiverArts
Building, LLC for a larger space to be used for a warehouse and showroom. Although the lease agreement
appears to have been signed on January 9, 2006, the petitioner was not established until January 23, 2006.
Further, the term of the lease commences on or after April 1, 2006, and is contingent upon whether the rented
building passes a final inspection. Again, the petitioner must establish eligibility at the time of filing the
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or
beneficiary becomes eligible under a new set of facts. Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg.
Comm. 1978). The petitioner has not established that it had secured sufficient physical premises to house its
intended business as of the date the petition was filed. For this additional reason, the appeal will be dismissed.
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), affd. 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 and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for the decision. ill 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.
ORDER: The appeal is dismissed.