dismissed L-1A Case: Hvac

identifying data deleted to 
Bpevent clearly unwarrantec 
hv&on of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJe of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: WAC 09 019 5 1037 Office: CALIFORNIA SERVICE CENTER Date: OCT 2 1 2009 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1 (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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
C ef, Administrative Appeals Office 
WAC 09 019 51037 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. 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 to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 10 l(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner, an Arizona limited liability company, intends to engage in the sale 
and service of heating, ventilation and air conditioning systems. It claims to an affiliate of Busicor 86 CC, 
located in South Africa. The petitioner seeks to employ the beneficiary as the general manager of its new 
office in the United States for a period of one year. 
The director denied the petition on three independent and alternative grounds, concluding that the petitioner 
failed to establish: (1) that the beneficiary was employed by the foreign entity in a primarily managerial or 
executive capacity; (2) that the U.S. company has secured sufficient physical premises to house the new 
office; and (3) that the United States and foreign entities have a qualifying relationship. 
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 all 
requirements for the requested classification have been met, and that the director's findings to the contrary are 
unfounded. Counsel submits a detailed brief and additional evidence in support of these assertions. 
To establish eligibility for the L-1 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. 5 214.2(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 (l)(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. 
(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 himher to perform the intended 
. WAC 09 019 51037 
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. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or 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 (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 addressed by the director is whether the petitioner established that the beneficiary has been 
employed by the foreign entity in a primarily managerial or executive capacity. 
Section 10 1 (a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as 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, 
WAC 09 019 51037 
Page 4 
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 1 101(a)(44)(B), defines the term "executive capacity" as 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 making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
In a letter dated October 20, 2008, the petitioner stated that the beneficiary performs the following duties as 
general manager of the South African company: 
[The beneficiary] has exercised complete control over all restaurant policies and has been 
directing four upper level managers in charge of three distinct divisions of the company, who 
themselves manage a group of 3 8 additional restaurant employees. 
[The beneficiary] was charged with complete operational control, delegating management duties 
to the four upper level managers, with one Operations Manager, one Kitchen manager and two 
Floor managers, as indicated in the organizational chart of the restaurant. . . . As General 
Manager, [the beneficiary] was charged with overseeing and directing these subordinate 
managers who were in turn each in charge of their departments and employees. Accordingly, 
[the beneficiary] was primarily responsible for communicating and directing his subordinate 
managers to implement policies aimed at optimizing company efficiency and productivity. 
Additionally, as General Manager, [the beneficiary] was engaged in an array of oversight and 
control responsibilities relating to essential company hnctions. [The beneficiary] was in charge 
of ultimate decision making as to purchasing decisions, pricing, and marketing strategies. 
Furthermore, as General Manager [the beneficiary] had complete authority over personnel 
decisions, which he would discuss with his upper level managers if certain concerns or needs 
arose. 
WAC 09 019 51037 
Page 5 
[The beneficiary] also utilized his leadership abilities to motivate and lead his managers and 
other subordinate employees in departmental meetings aimed at entrenching company policies 
and objectives, all culminating in what is now an exceptionally successful restaurant. 
The petitioner submitted an organizational chart for the foreign entity which indicates that the beneficiary directly 
supervises a kitchen manager, two floor managers and an operations manager, who in turn supervise 16 kitchen 
staff and 22 floor staff. The petitioner provided copies of recent pay slips for the beneficiary's direct subordinates. 
The director issued a request for evidence (RFE) on November 7, 2008, in which he requested, inter alia, 
additional evidence to establish that the beneficiary has been employed by the foreign entity in a primarily 
managerial or executive capacity. Specifically, the director instructed the petitioner to submit: (1) a more detailed 
description of the beneficiary's job duties abroad, including the percentage of time the beneficiary allocates to 
each listed duty; (2) the total number of employees working for the foreign entity; and (3) a more detailed 
organizational chart for the foreign entity, including brief descriptions of job duties, educational level and annual 
salaries for all employees under the beneficiary's supervision. 
In a response dated November 14,2008, counsel for the petitioner stated: 
[The beneficiary's] duties abroad include the oversight of four subordinate managers as well 
as oversight of marketing, personnel decisions such as hiring and firing, budgetary oversight, 
community and public relations and the general overall direction of the business. 
Counsel emphasized that the beneficiary is not a first-line supervisor, but rather controls the work of four 
subordinate managers, who in turn control a staff of 32 subordinate employees. The petitioner provided a list 
of all staff by name, job title and salary, but did not provide the requested position descriptions for the 
subordinate employees. The petitioner indicated that its ten kitchen staff includes a kitchen manager, an 
assistant kitchen manager, two chefs, four "scullers," a salad prep employee and a "drinks" employee. The 
petitioner indicated that the two floor managers receive a salary, and the remaining 23 floor staff work on a 
"commission basis." 
The petitioner also submitted a letter from the beneficiary who further describes his duties as general manager 
of the foreign entity as follows: 
I have had responsibility for the oversight and direction of four lower level managers. . . . 
who themselves direct and manage our kitchen staff, floor staff, as well as the day to day 
operations of the restaurant. I have also spent the past three and one half years building the 
business name by overseeing quality control, marketing strategy, promotions, and public 
relations through my management. 
I control and supervise business operations through weekly meetings with the four managers. 
I take this time not only to convey to management new business strategies, but to also listen 
WAC 09 019 51037 
Page 6 
and gather information regarding the status of operations and be apprised of any challenges 
that our company faces from time to time. This takes up approximately 10% of my time. 
I spend the vast majority of my time as General Manager in analyzing the efficiencies and 
inefficiencies of the restaurant. The macro-level focus includes productivity comparisons and 
evaluations, quality assurance, sales analysis, discussions with managers, creation of policies 
to address inefficiencies, and supervision of management's implementation of such policies. I 
am also engaged in an array of other oversight and control responsibilities relating to 
company functions such as direct involvement with [the kitchen manager] in making 
purchasing decisions. These duties take up roughly 70% of my time as general manager. 
The beneficiary indicated that "personnel and marketing matters" required the remaining 20 percent of his 
time. 
The director issued a second request for evidence on December 8, 2008, but did not request additional 
evidence related to the beneficiary's foreign employment. In denying the petition, the director emphasized that 
the petitioner described the beneficiary's duties in only broad and general terms, with insufficient detail 
regarding the duties he performed in the position of general manager. The director further emphasized that the 
petitioner failed to provide the requested position descriptions for the beneficiary's subordinate employees, 
and noted that the foreign entity does not appear to have anyone on staff who is responsible for marketing 
duties. The director found the evidence submitted insufficient to establish that the beneficiary has been 
primarily managing a subordinate staff of professional, managerial or supervisory personnel who relieve him 
from performing non-qualifying duties, or that he manages an essential function of the organization. 
On appeal, counsel for the petitioner asserts that the "California Service Center cannot deny this petition 
based on an issue addressed in the first Request for Evidence, with which they were satisfied as evidenced by 
no mention of the issue subsequently in the second Request for Evidence." Counsel asserts that the director 
should have addressed the beneficiary's job duties in its second request for evidence or denied the petition 
after reviewing the response to the first RFE. Counsel contends that the petitioner logically assumed that the 
beneficiary's job duties were no longer at issue when the second RFE was issued, and that the director did not 
have a valid basis for denying the petition. 
Nevertheless, counsel contends that the petitioner established by a preponderance of the evidence that the 
beneficiary has been employed in a primarily managerial capacity. Counsel emphasizes that the director 
quoted only briefly from the various position descriptions provided and suggests that the director did not 
review the evidence in its entirety. Counsel provides excerpts from the petitioner's initial letter and the 
beneficiary's statement in response to the request for evidence in support of his assertion that the "majority of 
the Beneficiary's time is in fact spent on duties related to high levels of responsibility and not simple day-to- 
day operations." In addition, counsel acknowledges that the beneficiary may be involved in some marketing 
functions, but stresses that the petitioner need only establish that the beneficiary's duties are primarily 
managerial in nature. 
WAC 09 019 51037 
Page 7 
Finally, counsel asserts that the director's conclusions that the beneficiary is "directly providing the services 
of the foreign organization" and that he is not supervising a subordinate staff of managerial, supervisory or 
professional personnel are unfounded based on the evidence submitted. 
Upon review of the petition and the evidence, the petitioner has not established that the beneficiary has been 
employed in a managerial or executive capacity with the foreign entity. 
As a threshold issue, the AAO will address counsel's claim that the director should have first requested 
additional evidence prior to denying the instant petition based on this ground. 
Title 8 C.F.R. 5 103.2(b)(8)(ii), the revision of which went into effect on June 18, 2007, states as follows: 
If all required initial evidence is not submitted with the application or petition or does 
not demonstrate eligibility, [U.S. Citizenship and Immigration Services (USCIS)] in 
its discretion may deny the application or petition for lack of initial evidence or for 
ineligibility or request that the missing initial evidence be submitted within a 
specified period of time as determined by [USCIS]. 
Id.; see also 72 F.R. 19100 (April 17, 2007). As the instant petition was filed on October 28, 2008, the 
director was not obligated to request additional evidence if the petition and initial evidence failed to 
demonstrate eligibility for the benefit sought. Here, the director did in fact put the petitioner on notice that the 
initial evidence did not establish that the beneficiary was employed by the foreign entity in a primarily 
managerial or executive capacity. The director allowed the petitioner 12 weeks to submit additional evidence 
regarding the beneficiary's job duties and the duties performed by the beneficiary's subordinate employees. 
The petitioner submitted some, but not all, of the requested evidence. Contrary to counsel's claims, the 
director was under no obligation to issue a second request for evidence with respect to the same issue. The 
second WE was issued primarily to allow the petitioner an opportunity to establish that it had secured 
sufficient physical premises to house the new office, as required by 8 C.F.R. 5 214.2(1)(3)(v)(A), as it appears 
that the director previously overlooked the fact that the petitioner submitted no lease agreement or other 
evidence that the petitioner had secured physical premises. Again, the director, in her discretion, could have 
denied the petition based on the petitioner's failure to submit this required initial evidence, and was not 
obligated to issue either request for evidence. Ideally, all requests for additional documentation could have 
been addressed in a single RFE; however, there is no regulation prohibiting the issuance of two separate 
requests. 
When 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. 8 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The petitioner initially described the beneficiary's position with the foreign entity in only general terms, 
noting that the beneficiary "has exercised complete control over all restaurant policies" and delegated 
management duties to four subordinate managers. The petitioner further noted that the beneficiary was 
"charged with complete operational control," implemented policies, and "engaged in an array of oversight and 
WAC 09 019 51037 
Page 8 
control responsibilities relating to essential company functions," such as purchasing, pricing and marketing 
decisions. While such duties generally convey the beneficiary's level of authority within the company, this 
description provides little insight into what specific managerial duties the beneficiary performs on a day-to- 
day basis, and no indication as to what constitutes his "array of oversight and control responsibilities." 
Specifics are clearly an important indication of whether a beneficiary's duties are primarily executive or 
managerial in nature, otherwise meeting the definitions would simply be a matter of reiterating the 
regulations. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1 103 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 
1990). 
Accordingly, the director requested a detailed description of the beneficiary's duties while employed by the 
foreign entity, and a clear explanation as to how his time was allocated among specific duties. While the 
petitioner submitted a lengthier description of the beneficiary's duties in response, the description fell short of 
establishing what specific tasks the beneficiary primarily performs on a day-to-day basis. For example, the 
beneficiary stated that he oversees "quality control, marketing strategy, promotions and public relations," but 
he offered no further description of duties he performs in this regard. The beneficiary stated that he devotes 
70 percent of his time to "analyzing the efficiencies and inefficiencies of the restaurant" and stated that his 
focus includes "productivity comparisons and evaluations, quality assurance, sales analysis, discussion with 
managers, creation of policies to address inefficiencies, and supervision of management's implementation of 
such policies." The beneficiary also indicated that this "vast majority" of his time includes his involvement in 
"an array of other oversight and control responsibilities," such as purchasing decisions. The petitioner failed 
to provide sufficient examples of the beneficiary's actual day-to-day job duties, such as the specific tasks he 
performs with respect to the quality assurance, marketing, promotions, public relations functions, or his "other 
oversight and control responsibilities." 
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. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 
1108. While the AAO does not concur with the director's conclusion that the beneficiary is primarily engaged 
in providing the products or services of the foreign entity, the petitioner has not established with sufficient 
specificity what duties the beneficiary primarily performs, such that they could be classified as managerial or 
executive in nature. The AAO will not accept a vague job description and speculate as to what qualifying 
duties may be involved. A beneficiary's "control," management or direction over a company cannot be 
assumed or considered "inherent" to his position merely on the basis of broadly-cast job responsibilities. 
The definitions of executive and managerial capacity each have two parts. First, the petitioner must show that 
the beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the 
petitioner must prove that the beneficiary primarily performs these specified responsibilities and does not 
spend a majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 
(Table), 1991 WL 144470 (9th Cir. July 30, 1991). 
Thus, the fact that the beneficiary owns and manages a business does not necessarily establish eligibility for 
classification as an intracompany transferee in a managerial or executive capacity as defined by sections 
101(a)(44)(A) and (B) of the Act. The record must establish that the majority of the beneficiary's duties fall 
. WAC 09 019 51037 
Page 9 
within the statutory definitions of managerial or executive capacity. The AAO does not doubt that the 
beneficiary exercises the requisite level of authority over the foreign entity as its owner and senior employee. 
However, due to the petitioner's failure to provide a sufficiently detailed description of the beneficiary's day- 
to-day duties, and a breakdown of how the beneficiary's time has been allocated among managerial and non- 
managerial tasks, the petitioner has not established that the beneficiary was employed in a primarily 
managerial or executive capacity. 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 California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Moreover, the petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, 
rather the AAO must determine based on a totality of the record whether the description of the beneficiary's 
duties represents a credible perspective of the beneficiary's role within the organizational hierarchy. When 
examining the managerial or executive capacity of a beneficiary, U.S. Citizenship and Immigration Services 
(USCIS) reviews descriptions of a beneficiary's duties and those of his or her subordinate employees, the 
nature of the petitioner's business, and any other facts contributing to a complete understanding of a 
beneficiary's actual role in a business. 
The petitioner has submitted organizational charts indicating that the foreign entity has a three-tiered 
personnel structure and employs a staff of 36 employees in addition to the beneficiary. The statutory 
definition of "managerial capacity" allows for both "personnel managers" and "function managers." See 
section 101(a)(44)(A)(i) and (ii) of the Act, 8 U.S.C. 5 1 101(a)(44)(A)(i) and (ii). Here, the petitioner 
indicates that the beneficiary qualifies as a personnel manager based on his supervision of four supervisory 
personnel, namely, a kitchen manager, an operations manager, and two floor managers. Personnel managers 
are required to primarily supervise and control the work of other supervisory, professional, or managerial 
employees. Contrary to the common understanding of the word "manager," the statute plainly states that 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 10 1 (a)(44)(A)(iv) 
of the Act; 8 C.F.R. 5 214.2(1)(1)(ii)(B)(2). If a beneficiary directly supervises other employees, the 
beneficiary must also have the authority to hire and fire those employees, or recommend those actions, and 
take other personnel actions. 8 C.F.R. 5 214.2(1)(l)(ii)(B)(3). 
In the request for evidence, the director specifically requested that the petitioner provide job descriptions for 
all subordinate employees. Such information is critical in determining whether the beneficiary supervises 
professionals, managers or supervisors. The petitioner failed to submit the requested job descriptions for the 
beneficiary's subordinates. An employee will not be considered to be a manager or supervisor simply because 
of a job title, because he or she is arbitrarily placed on an organizational chart in a position superior to another 
employee, or even because he or she supervises daily work activities and assignments. See generally Browne 
v. Signal Mountain Nursery, L.P., 286 F.Supp.2d 904, 907 (E.D. Tenn. 2003) (cited in Hayes v. Laroy 
Thomas, Inc., 2007 WL 128287 at *16 (E.D. Tex. Jan. 11, 2007)). Rather, the employee must be shown to 
possess some significant degree of control or authority over the employment of subordinates. Therefore, the 
petitioner's claim that the beneficiary oversees four managers is not adequately supported. Again, the 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). Furthermore, the AAO notes that one of the beneficiary's subordinates, the 
WAC 09 019 51037 
Page 10 
operations manager, has no subordinate employees. Therefore, the petitioner has not established that the 
beneficiary's primarily supervises managerial or supervisory-level employees. 
Furthermore, without the requested descriptions of the beneficiary's subordinates' duties, it cannot be 
determined that the beneficiary is relieved from performing administrative and ope;ational tasks associated 
with the restaurant business. For example, the petitioner requires someone to performing marketing and 
promotion duties, purchase food, inventory and supplies, schedule staff, handle day-to-day bookkeeping and 
banking duties, and perform other administrative and clerical duties associated with operating the business. It 
is unclear who on the petitioner's staff is performing these functions and the AAO cannot assume that the 
kitchen, floor or operations managers perform such tasks, or that they fully relieve the beneficiary from 
performing the day-to-day operational and first-line supervisory tasks associated with their own departments. 
Based on the lack of a sufficiently detailed position description for the beneficiary and his subordinates, the 
petitioner has not established that the beneficiary has been employed by the foreign entity in a primarily 
managerial or executive capacity. Accordingly, the appeal will be dismissed. 
The second issue in this matter is whether the petitioner has secured sufficient physical premises to house the 
new office, as required by 8 C.F.R. !j 2 14.2(1)(3)(v)(A). 
The petitioner filed the nonimmigrant petition on October 28, 2008. The petitioner stated on Form 1-129 that 
same address. The petitioner stated in its letter dated October 20, 2008 that it has entered a contract to 
purchase the Mesa, Arizona-based company "Indoor Comfort Experts" (I.C.E.), contingent upon approval of 
the petition. 
In support of the petition, the petitioner submitted an agreement dated August 26, 2008 between "AALAN 
Company, LLC" as seller and the beneficiary as buyer, indicating that the beneficiary agreed to purchase the 
business known as I.C.E. located at 
 for a price of $550,000. The 
agreement indicates at paragraph 12 that "by close of escrow, buyer will have previously received or will have 
a reasonable opportunity to approve copies of the current lease for the premises now being occupied by the 
Company and its business operations." The same paragraph provides that "Seller shall obtain from the lessor 
under the foregoing real property lease and shall furnish to buyer at close of escrow the written consent of the 
lessor to buyer's assumption of the lease or as may be required, buyer shall procure a new lease or sublease 
agreement in accordance with the terms of the said lease." 
The petitioner also submitted an amendment to the purchase contract, dated October 8, 2008, in which the 
buyer was changed to reflect the petitioner's company name and the seller was changed to "Indoor Comfort 
Experts, LLC." The date for closing of the transaction was also moved to November 10,2008. 
In a request for evidence issued on December 8, 2008, the director instructed the petitioner to submit, inter 
alia: (1) a complete copy of the U.S. company's lease signed and dated by both lessor and lessee; (2) a copy 
of the U.S. company's floor plan for all leased premises; (3) photographs of the leased premises; and (4) a 
letter from the owner or property management company of the leased premises confirming that the petitioner 
is actually occupying and maintaining the lease agreement. 
. WAC 09 019 51037 
Page 11 
In response to the director's request, the petitioner submitted a copy of a "commercial lease and deposit 
receipt" indicating that the company has leased the premises located at in Mesa, Arizona for 
a three-year period commencing on December 1, 2008. The lease was signed by as 
lessor on December 1,2008, and was not signed by the petitioner. 
The petitioner submitted a letter dated December 19, 2008 fro 
 that he is the sole 
managing member of, the 
 in Mesa, Arizona. 
further states: "It is my intent to lease the property at this location to [the petitioner] for the 
operation of a heating, cooling and ventilation (HVAC) business upon receipt of the approval of [the 
beneficiary's] L-1 visa. The petitioner submitted evidence that 1-1 owns the premises 
and evidence that Indoor Comfort Experts LLC currently carries insurance for the property. 
The director denied the petition, concluding that the petitioner failed to establish that it had secured sufficient 
physical premises to house the office as of the date of filing. The director noted that the lease agreement 
provided was not in effect at the time the petition was filed. The director further emphasized that, pursuant to 
the terms of the purchase contract submitted, the petitioner would not assume the lease of I.C.E. until the 
close of escrow, which is contingent upon the beneficiary receiving his L-1 visa. 
On appeal, counsel for the petitioner states that the petitioner's purchase agreement is contingent solely upon 
the issuance of the beneficiary's L-1A visa and, accordingly, the lease agreement "stated a starting lease date 
of December 1, 2008 which was intended to provide enough time to properly file and receive approval of the 
Beneficiary's L-1A visa petition so that he could enter and start operating the business on the premises." 
Counsel further states: 
[Tlhe argument that no physical premises was secured prior to the filing of the petition is 
untrue as there are valid purchase and lease agreements that have already been entered into 
and secured. USCIS appears to believe that the lease start date of December 1, 2008 is 
indicative of subsequent developments that supposedly occurred after the original filing in 
October. This is incorrect as the purchase contract, escrow and lease agreements had all been 
prepared and agreed upon by [the petitioner], Indoor Comfort Experts, and Mark Allan 
Properties, LLC . . . . prior to the filing of this petition. 
Upon review, the petitioner has not established that it had secured sufficient physical premises to house the new 
ofice. 
At the time of filing, the petitioner indicated on Form 1-129 that the beneficiary's worksite would be located at 
in Phoenix, Arizona. The purchase contract submitted at the time of filing indicates that 
the petitioner agreed to purchase a business known as I.C.E., located at in Mesa, Arizona. The 
record contains no documentary evidence, such as a lease agreement, showing that the petitioner had secured 
premises at either of these addresses at the time the instant petition was filed on October 28,2008. 
In response to the director's request for evidence, the petitioner submitted a copy of an unexecuted lease 
agreement for premises located at and a letter from the property owner 
. WAC 09 019 51037 
Page 12 
indicating his intent to lease this premises to the petitioning company contingent upon approval of the 
beneficiary's L-1 visa. Contrary to counsel's assertions on appeal, there is no evidence in the record indicating that 
the petitioner had secured these premises as of the date the petition was filed, given that the petitioner's initial 
evidence indicated that the petitioner would occupy premises at one of the two above-referenced addresses. 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). 
While it appears that the business known as "I.C.E." has been occupying the premises at in 
Mesa, Arizona since at least mid-August 2008, the petitioner has not explained why it did not provide this 
address at the time of filing, or why a different address is mentioned on the Form 1-129 and the purchase 
contract. Counsel's assertion that the lease for these premises was prepared and signed prior to the filing of the 
petition is not supported by any evidence. 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 (1 984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). 
Based on the foregoing, the petitioner has not established that it had secured physical premises to house the 
new office as of the date the petition was filed. 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). Accordingly, the appeal will be dismissed. 
The third and final issue addressed by the director is whether the petitioner established that the petitioner and 
the foreign entity have a qualifying relationship. To establish a "qualifying relationship" under the Act and the 
regulations, the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer 
are the same employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as 
"affiliates." See generally section 10 l(a)(15)(L) of the Act; 8 C.F.R. 8 2 14.2(1). 
The petitioner claims to have an affiliate relationship with the foreign entity based on common ownership and 
control by the beneficiary, who is claimed to be the sole owner of both companies. The petitioner submitted 
documentary evidence, including articles of organization for both entities, which identify the beneficiary as 
the sole member. The director denied the petition based solely on a determination that the petitioner failed to 
establish that the beneficiary made a capital contribution in the U.S. company. 
On appeal, the petitioner provides further clarification and documentation evidencing that the beneficiary 
made an escrow deposit in the amount of $10,000 on behalf of the petitioning company for the purchase of 
the business known as I.C.E. in the United States. 
Upon review of the totality of the evidence, the petitioner has provided sufficient evidence to establish that 
the U.S. and foreign entities have a qualifying affiliate relationship. The director's determination with respect 
to this issue only will be withdrawn. 
. WAC 09 019 51037 
Page 13 
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. 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. tj 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.