dismissed L-1A Case: Gas Station Management

identityingdatadelefledto
preventcleartyunwammted
invasionof personalprivacy
PUBLICCOpy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
FILE: EAC 06 200 51379 Office: VERMONT SERVICE CENTER Date: IQf 05 ZaOl
INRE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) 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. Wiem , hief
c\Administrative Appeals Office
www.uscis.gov
EAC 0620051379
Page 2
DISCUSSION: The Director, Vermont 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 summarily
dismissed.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president as an L-l A
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, a Texas limited liability company, claims to be
engaged in the operation and management of gas stations and convenience stores. It states that it has a
qualifying relationship with Metro Shoes, located in India. The beneficiary was originally granted one year in
L-IA status in order to open a new office in the United States and the petitioner now seeks to extend his status
for two additional years.
The director denied the petition on January 10, 2007, concluding that the petitioner did not establish: (1) that
the beneficiary would be employed in the United States in a managerial or executive capacity; (2) that the
U.S. company was doing business for the previous year; (3) that the U .S. entity and the foreign entity have a
qualifying relationship ; or (4) that the beneficiary was employed by the foreign entity in a primarily
managerial or executive capacity.
The petitioner subsequently filed an appeal on February 12, 2007. The director declined to treat the appeal as
a motion and forwarded the appeal to the AAO for review. Counsel for the petitioner states the following on
Form I-290B, Notice of Appeal:
The Service denied the Petition for Nonimmigrant Worker (L Classification) because the
Service was not persuaded that the Beneficiary 's duties were that of an executive or
managerial. The brief to follow will show that the service committed error in looking at the
facts of the case and either failed to or incorrectly applied the statute pertaining to the L
classification.
Counsel indicated that he would send a brief and/or evidence to the AAO within 30 days. As no additional
evidence has been incorporated into the record, the AAO contacted counsel by facsimile on September 5,
2007 to request that counsel acknowledge whether the brief and/or evidence were timely submitted, and to
afford counsel an opportunity to re-submit the documents. To date , no response has been received.
Accordingly, the record will be considered complete.
To establish eligibility under section lOI(a)(15)(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
firm, corporation , or other legal entity, or an affiliate or subsidiary thereof , must have employed the
beneficiary 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 , execut ive, or specialized knowledge capacity.
Regulations at 8 C.F .R. § 103.3(a)(l)(v) state, in pert inent part:
EAC 06 200 51379
Page 3
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party
concerned fails to identify specifically any erroneous conclusion of law or statement of
fact for the appeal.
Upon review , the AAO concurs with the director's decision and affirms the denial of the petition. Counsel 's
general objections to the denial of the petition, without specifically identifying any errors on the part of the
director, are simply insufficient to overcome the well-founded conclusions the director reached based on the
evidence submitted by the petitioner. The unsupported statements of counsel on appeal or in a motion are not
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya , 464 U.S. 183, 188-89 n .6
(1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Accordingly, the appeal will be
summarily dismissed.
Furthermore, contrary to counsel's statement, the director did not deny the petition solely because the director
was not persuaded that the beneficiary would be employed in a managerial or executive capacity. As noted
above, the director cited four separate grounds for the denial of the petit ion, only one of which is even
disputed by the petitioner on appeal.
With respect to the beneficiary's claimed managerial and executive capacity, the record contains no detailed
description of what the beneficiary has been or will be doing as president of the petitioning company. The
petitioner asserts that the beneficiary "manages the organization," "functions at the top level of the
organizational hierarchy ," "exercises discretion over the day-to-day operations," "directs and coordinates
activities of the organization," and "formulates and administers company policies." These statements
essentially paraphrase the statutory definitions of managerial and executive capacity . See sections
101(a)(44)(A) and (B) of the Act. 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), aff'd, 905 F. 2d 41
(2d. Cir. 1990); Avyr Associates, Inc. v. Meissner , 1997 WL 188942 at *5 (S.D.N .Y.). Moreover, the director
specifically requested a comprehensive description of the beneficiary's duties. Reciting the beneficiary's
vague job responsibilities or broadly-cast business objectives is not sufficient; the regulations require a
detailed description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves will
reveal the true nature of the employment. Id. at 1108.
There is no evidence that the petitioner was doing business at the time of filing or at any point during the first
year of operations, thus it has clearly not been doing business for the previous year as required by 8 C.F .R. §
214.2(l)(14)(ii)(B). The petitioner claims that it acquired a 49 percent interest in a company that employs two
to three people and operates a gas station and convenience store on June 10 , 2006, approximately two weeks
prior to the expiration of the beneficiary's initial L-IA petition. The petitioner did not submit persuasive
evidence that this transaction was completed prior to the date of filing. Moreover , the petitioner did not
respond to the director's request for evidence of ownership for the petitioner's claimed subsidiary company ,
such as its membersh ip certificates. Any failure to submit requested evidence that precludes a material line of
inquiry shall be grounds for denying the petition . 8 C.F.R. § 103.2(b)(14). The AAO is not persuaded that the
petitioner was do ing business through a partially-owned subsidiary as of the date of filing, nor is there any
EAC 06 200 51379
Page 4
evidence that the beneficiary would actually exert managerial control over this company, as implied by the
petitioner. The petitioner also claims to be managing a second gas station in exchange for a management fee
of $5,000 per month, since June 1, 2006 . The petitioner has not submitted any supporting documentary
evidence , such as copies of invoices issued by the petitioner, or evidence of monthly payments received from
the owner of the gas station . Going on record without supporting documentary evidence is not suffic ient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici , 22 I&N Dec. 158 , 165
(Comm. 1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec . 190 (Reg. Comm. 1972» .
As noted by the director, the petitioner has not provided any evidence of business activities conducted by the
petitioning entity in the previous year, aside from the petitioner's claims that it acquired a partially-owned
subsidiary and signed a management contract just weeks before applying for an extension. There is no
evidence that the petitioning entity has hired any employees , and there is some question as to whether the
company ever had physical premises from which to conduct business, as the beneficiary 's residential address
and work site address, as indicated on Form 1·129, are the same. The petitioner has provided no explanation
for the apparent l l-month delay in commencing operations . It is evident that the petitioner was not prepared
to commence doing business upon approval of its initial new office petition as required by the regulations. See
generally 8 C.F.R. § 2l4.2(l)(3)(v) .
Another issue not acknowledged by counsel on appeal is the petitioner's failure to submit evidence of its
ownership, and thus, its failure to establish that it maintains a qualifying relationship with the foreign entity.
On Form 1-129, the petitioner referred to a "joint venture" between the petitioner and the foreign entity, and
also referred to the foreign entity as its affiliate. The foreign entity appears to be a partnership owned by the
beneficiary and another individual. The director specifically requested documentary evidence of the
ownership of the petitioning company, but the pet itioner neglected to respond to this request. Again, failure to
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition.
8 C.F.R. § 103.2(b){l4). .
The petitioner has not submitted any evidence on appeal to overcome the director 's multiple grounds for
denial of the petition. Therefore , the petition will be denied and the appeal dismissed for the reasons stated by
the director, with each considered as an independent and alternative basis for denial. 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. Inasmuch as the petitioner has failed to identify specifically an
erroneous conclusion of law or a statement of fact in support of the appeal , the petitioner has not sustained
that burden.
ORDER: The appeal is summarily dismissed.