dismissed L-1A Case: Garment Distribution

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PUBLICCOpy
U.S.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
File: SRC 06 138 53458 Office: TEXAS SERVICE CENTER Date: NOV 01 ZOOl
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) ofthe Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(15)(L)
IN 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.
RO~f
Administrative Appeals Office
www.uscis.gov
SRC 06 138 53458
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 employment authorization for the beneficiary in the
position of chief executive officer 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 Immigration and Nationality Act (the Act), 8
U.S.c. § 1101(a)(15)(L). The petitioner, allegedly a partnership formed under the laws of India, claims to
have a qualifying relationship with R&S Maini International, Inc., a corporation formed under the laws of the
State of Florida.
The director denied the petition concluding that the petitioner failed to establish (I) that sufficient physical
premises to house the new office have been secured, or (2) that the intended United States operation, within
one year of the approval of the petition, will support an executive or managerial position because the
petitioner failed to establish that an investment had been made 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 sufficient funds are
available to support the new office and that a "suitable site" for conducting business has been selected.
To establish eligibility for the L-I 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. § 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) ofthis section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description of the services tobe 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.
(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 himJher to perform the intended
SRC 06 138 53458
Page 3
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(l)(3)(v) states 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, the
petitioner shall submit evidence that:
(A) Sufficientphysical 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)(I)(ii)(B) or (C) of this section, supported by
informationregarding:
(1) The proposed nature of the office describing the scope of the
entity, its organizationalstructure, 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 has established that sufficient physical premises to
house the new office have been secured as required by 8 C.F.R. § 214.2(1)(3)(v)(A).
The petitioner did not provide any evidence in support of its petition regarding the securing of sufficient
physical premises to house the United States operation. While the petitioner's articles of incorporation and
organization documents designate as its business address,
the petitioner failed to submit a lease or other evidence addressing the sufficiency of these premises for the
importation, sale, and distribution of garments.
On April 4, 2006, the director requested additional evidence. The director requested, inter alia, evidence
demonstrating that sufficient physical premises to house the new office have been secured.
In response, counsel to the petitioner submitted a letter dated July 3, 2006 that states, in pertinent part, the
following:
SRC 06 138 53458
Page 4
[The petitioner has] not provided any documentation regarding our location for operational
purposes. No funds have as of yet been committed to find a location for operations primarily
because of concerns over the approval of the pending L-l Visa. Currently, all operations are
being conducted preliminarily from a private residence located at I
On August 16, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that sufficient physical premises to house the new office have been secured.
On appeal, the petitioner asserts that a "suitable site" for conducting business has been selected, i.e., 1410 E.
Main Street, Bartow, Florida. The petitioner further indicates that "[n]egotiations are in progress for
additional space awaiting permission from your esteemed [departmeht]."
Upon review, the petitioner's assertions are not persuasive.
When a new business is established and commences operations, the regulations require that the petitioner
establish that the United States operation has secured sufficient physical premises. 8 C.F.R. §
·214.2(l)(3)(v)(A). While the regulations do not specifically define "sufficient," it is clear from the "new
office" criteria that the petitioner must establish that the physical premises will permit the proposed enterprise
to succeed and rapidly expand as it moves away from the developmental stage to full operations, where there
would be a need for a manager or executive who will primarily perform qualifying duties within one year of
petition approval.
In this matter, the petitioner has failed to establish that its United States operation has secured sufficient
physical premises. As explained above, the petitioner has not provided any evidence that it has leased or
otherwise acquired space sufficient to establish a garment import, sales, and distribution business. While the
petitioner has asserted that its United States operation is currently using a private residence, the petitioner has
failed to provide any details regarding this residence, e.g., size, location, zoning classification, or lease terms.
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter 0/Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
a/Treasure Craft a/California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Furthermore, the petitioner's assertion on appeal that it is in the process of acquiring sufficient physical
premises is not persuasive. First, the petitioner did not provide any details regarding these premises;
therefore, Citizenship and Immigration Services (CIS) cannot determine whether these premises would be
sufficient. Second, it appears that these premises either have been or will be secured after the filing of the
petition. If so, the petitioner's securing of these premises in not relevant to this proceeding. 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
of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Third, even if these premises were secured
before the filing of the instant petition, the petitioner may not for the first time on appeal claim that it is
conducting business at 1410 E. Main Street, Bartow, Florida. The petitioner was put on notice of required
evidence and given a reasonable opportunity to provide it for the record before the visa petition was
SRC 06 138 53458
Page 5
adjudicated. The petitioner failed to submit the requested evidence and now submits it on appeal. However,
the AAO will not consider this evidence even if it supported the petition. See Matter ofSoriano, 19 I&N Dec.
764 (BIA 1988); Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988).
Accordingly, the petitioner has failed to establish that sufficient physical premises to house the new office
have been secured as required by 8 C.F.R. § 2l4.2(l)(3)(v)(A), and the petition may not be approved for that
reason.
The second issue in the present matter is whether 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. §
214.2(1)(3)(v)(C).
In support of its petition, the petitioner submitted a letter dated December 22, 2005 which indicates that "[i]t
is targeted that the business will be set up with in [sic] a period of [t]hree years." Counsel to the petitioner
also indicated in his letter dated March 20, 2006 that the United States operation will import, sell, and
distribute its garments in the United States and "eventually will also be engaged in the manufacture of such
products here in the United States." However, as the petitioner failed to submit evidence persuasively
establishing the scope, organization, or financial goals of the United States operation or the size of the
investment in the enterprise, the director requested additional evidence on April 4, 2006. The director
requested, inter alia, evidence addressing the United States operation's proposed staffing and the funding or
capitalization of the enterprise.
In response, the petitioner submitted bank receipts showing that a deposit of $27,000.00 was made into the
United States operation's bank account on or about May 1, 2006. The petitioner also submitted a list of
proposed employees of the United States operation which includes the beneficiary, a general sales manager,
sales representatives, and clerical employees. However, the petitioner did not submit a business plan, market
analyses, expense or revenue projections, or any other objective, credible evidence addressing the scope ofthe
proposed business. Finally, counsel to the petitioner submitted a letter dated July 3, 2006 in which he states
that "since very little if any production capabilities will be moved to the US for expense purposes staffing
levels should not go beyond 10 employees the first year of operations."
On August 16, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the intended United States operation, within one year of the approval of the petition, will
support an executive or managerial position because the petitioner failed to establish that an investment had
been made in the United States operation prior to the filing of the petition.
On appeal, the petitioner asserts that sufficient funds are available to commence doing business in the United
States. The petitioner also asserts that "[a]dditional funds are available after permission is accorded for
conducting lawful activities."
Upon review, the petitioner's assertions are not persuasive.
SRC 06 138 53458
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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 enterprise will support an executive or
managerial position within one year of the approval of the petition. 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 rmmmum.va
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec.
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
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 market/prospective customers of the new
commercial enterprise. The plan should list the required permits 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 and/or 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 matter, the petitioner has failed to establish that the intended United States operation, within one year
of the approval of the petition, will support an executive or managerial position. As correctly noted by the
director, the record does not establish that an investment had been made in the United States operation prior
to the filing of the instant petition on March 29, 2006. Instead, it appears that a $27,000.00 deposit was made
into the United States operation's bank account on or about May 1, 2006. Once 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 of
Michelin Tire Corp., 17 I&N Dec. 248. The purported investment made after the filing of the petition is not
relevant to these proceedings. Also, the petitioner's argument on appeal that these funds were held by a third
party pending the approval of the petition is not persuasive. There is no prohibition on the petitioner
controlling these funds prior to the approval of the petition. To the contrary, it is essential that the petitioner
SRC 06 138 53458
Page 7
establish that an investment was made in the United States operation prior to the filing of the petition.
Therefore, absent evidence of an investment having been made in the United States operation, the petitioner
has not established that the enterprise will likely expand during its first year in operation to the point that it
will support an employee who will perform primarily managerial or executive duties.
Furthermore, even if the $27,000.00 bank deposit made after issuance of the Request for Evidence could be
considered, the record does not establish that this amount of money would be sufficient to support the new
office. The record is devoid of any credible, objective evidence describing the scope or financial goals of the
United States operation. The petitioner has only revealed that its United States "branch" will import, sell, and
distribute its garments and that the beneficiary will be paid $30,000.00 per year. The petitioner did not
submit a business plan which specifically identifies its products, customers, competitors, projected expenses
or revenue, or marketing strategy. Once 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 (citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190).
Also, the record contains several serious inconsistencies regarding the petitioner's proposed United States
operation. For example, in the letter appended to the initial petition, counsel to the petitioner clearly states
that "eventually [the enterprise] will also be engaged in the manufacture of [garments] here in the United
States." However, in responding to the director's request for additional evidence regarding the United States
operation's proposed staffing, counsel stated in his July 3, 2006 letter that "very little if any production
capabilities will be moved to the US for expense purposes." Counsel offers no explanation for this
inconsistency in the record regarding the scope and nature of the new office. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Finally, in view of the petitioner's description of its proposed staffing and development, the record does not
establish that the United States operation will support a managerial or executive employee within one year.
The petitioner admits in its letter dated December 22, 2005 that "[i]t is targeted that the business will be set up
with in [sic] a period of [t]hree years." Moreover, counsel states in his letter dated July 3,2006 that all hiring
"will depend on market reception of our product and the ability of US representatives to market and sell to US
customers." Therefore, absent an adequate investment or a coherent business strategy that will likely result in
the generation of significant revenue soon after commencing operations, it is more likely than not that, after
the first year in operation, the beneficiary will still primarily be performing the administrative or operational
tasks necessary to the provision of a service or the production of a product. An employee who "primarily"
performs the tasks necessary to produce a product or to provide services is not considered to be "primarily"
employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that
one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church
Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988).
Accordingly, the petitioner has failed to establish 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. §
2l4.2(l)(3)(v)(C).
SRC 06 13853458
Page 8
Beyond the decision of the director, the petitioner has failed to establish that it has a qualifying relationship
with the United States operation, R&S Maini International, Inc.
The regulation at 8 C.F.R. § 214.2(l)(3)(i) states that a petition filed on Form 1-129 shall be accompanied by
"[e]vidence that the petitioner and the organization which employed or will employ the alien are qualifying
organizations as defined in paragraph (l)(I)(ii)(G) of this section." Title 8 C.F.R. § 214.2(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)(1)(ii) of this section." A "subsidiary" is defmed, in part, as a legal entity which "a parent owns,
directly or indirectly,more than half of the entity and controls the 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; see also Matter of
Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter ofHughes, 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
Scientology International, 19 I&N Dec. at 595.
In this matter, the record is devoid of evidence addressing the ownership and control of the United States
operation, a Florida corporation. The petitioner failed to submit stock certificates or any other documents
establishing whom, exactly, owns the corporation's shares. The petitioner also failed to describe the stock
ownership and managerial control of the United States operation in the L Classification Supplement to Form
1-129. In this matter, the burden is on the petitioner to establish eligibility for the benefit sought. Section 291
of the Act, 8 U.S.c. § 1361. As the petitioner has failed to establish that it has a qualifying relationship with
the United States operation, the petition may not be approved for this additional reason.
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 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 AAO 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 is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act. Here, that burden has not been met.
ORDER: The appeal is dismissed.