dismissed L-1A Case: Industrial Equipment Sales

identifying data deletea to
prevent clearly unvi.ftrr~nted
invasionof personalprtvacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.S. Citizenship
and Immigration
Services
ftmuccop¥
File: WAC 05 087 51430 Office: CALIFORNIA SERVICE CENTER Date: fEB o1 Z007
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
ROb&!~hief
Administrative Appeals Office
www.uscis.gov
WAC 05 087 51430
Page 2
DISCUSSION: The Director, California 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 to employ the beneficiary in the position of president
to open a new office in the United States as an L-1A nonimmigrant intracompany transferee pursuant to
section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5)(L). The
petitioner, a corporation organized under the laws of the State of Arizona, claims to be engaged in the sale of
industrial equipment, and alleges that it is the subsidiary of of
India.
The director denied the petition concluding that the petitioner failed to establish that it has a qualifying
relationship with the foreign employer. Specifically, the director determined that the petitioner did not
establish that the foreign employer furnished consideration in exchange for stock ownership, and that the
record instead indicates that an unrelated British company furnished the consideration.
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 to the petitioner asserts that, while the
British company did transfer money to the petitioner in exchange for stock, this money was transferred by the
British company on behalf of the foreign entity as its lender. Counsel further argues that the foreign entity
became indebted to the British company via a promissory note and that the foreign entity has since repaid this
obligation in Indian Rupees. In support of the appeal, counsel submits a brief and additional evidence.
To establish eligibility for the L-l nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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 (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.
WAC 0508751430
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.
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) Sufficient physical premises to house the new office have been secured;
(B) The beneficiary has been employed for one continuous year in the three
year period preceding the filing of the petition in an executive or
managerial capacity and that the proposed employment involved
executive or managerial authority over the new operation; 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 (1)(l)(ii)(B) or (C) of this 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 primary issue in this proceeding is whether the petitioner has established that it and the organization
which employed the beneficiary abroad are qualifying organizations as defined in 8 C.F .R. §
214.2(1)(1)(ii)(G).
To establish a "qualifying relationship" under the Act and the regulations, the petitioner must show that the
beneficiary's foreign employer and the proposed United States employer are the same employer. See
generally section IOI(a)(15)(L) of the Act; 8 C.F.R. § 214.2(1). Title 8 C.F.R. § 214.2(i)(1)(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 defined, in part, as a corporation "of which a parent owns,
directly or indirectly, more than half of the entity and controls the entity."
WAC 05087 51430
Page 4
In this matter, the petitioner asserts that it is a subsidiary of the foreign employer,
In support of this assertion, the petitioner provided organizational documents and stock
certificates which indicate that 1000/0 of the petitioner's stock has been issued to the foreign entity.
On March 11, 2005, the director requested additional evidence. Specifically, the director requested evidence
that demonstrates "that the foreign parent company has, in fact, paid for the U.S. entity."
In response, the petitioner provided evidence that a British company, ., transferred
$30,000.00 to the beneficiary and her husband in the United States as consideration for the issuance of the
petitioner's stock. The petitioner provided further evidence that this sum was then transferred into petitioner's
bank account b the beneficiary and her spouse. Counsel explained in a letter dated May 27, 2005 that the
owner of . is a relative of the managing director of the foreign entity, and that_
agreed to transfer the funds on behalf of the foreign entity in order to "bypass the Indian
bureaucracy." This explanation was corroborated by the foreign entity in a letter dated May 15, 2005 in
which it states that it intends to repay . in Indian Rupees. However, the petitioner
provided no evidence that the foreign entity was legally obligated to repay the purported loan and did not
provide any objective evidence corroborating its assertion that the "Indian bureaucracy" renders the transfer
of funds to the petitioner impossible or impracticable.
On August 5, 2005, the director denied the petition concluding that the petitioner failed to establish that it has
a qualifying relationship with the foreign employer. Specifically, the director determined that the petitioner
did not establish that the foreign~d consideration in exchange for stock ownership and that
the record instead indicates that_. furnished the consideration.
On appeal, counsel asserts that, while did transfer money to the petitioner in exchange for
stock, this money was transferred by the British company on behalf of the foreign entity as its lender.
Counsel further argues that the foreign entity became indebted to the British company via a promissory note
and that the foreign entity has since repaid this obligation in Indian Rupees . In support of the appeal, counsel
provides a copy of the alleged promissory note and evidence that this debt has been repaid in Indian Rupees
by the foreign entity.
Upon review, the petitioner's assertions are not persuasive.
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 ofChurch Scientology International, 19 I&N Dec. 593 (BIA 1988); 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.
WAC 05 087 51430
Page 5
The regulations specifically allow the director to request additional evidence in appropriate cases. See 8
C.F.R. § 214.2(l)(3)(viii). As ownership is a critical element of this visa classification, the director may
reasonably inquire beyond the issuance of paper stock certificates into the means by which stock ownership
was acquired. As requested by the director, evidence of this nature should include documentation of monies,
property, or other consideration furnished to the entity in exchange for stock ownership. Additional
supporting evidence could include stock purchase agreements, subscription agreements, corporate bylaws,
proxies, minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the
ownership interest.
In this matter, the petitioner has not established that its stock was acquired by the foreign entity and, th_UShas
not established that a qualifying relationship exists. The record establishes that an unrelated entity, I
, transferred money to the beneficiary and her husband allegedly as consideration for the stock
issued by the peti~ entity. The record does not establish that the foreign entity was
obligated to repay _ for wiring these funds or that the Indian government mandated such a
roundabout method of transferring funds. While the petitioner attempt~ement the record
with evidence establishing that the foreign entity was legally indebted to_ and that its debt
has been repaid in Indian Rupees, the petitioner was put on notice by the director in the March 11, 2005
Request for Evidence of the need to provide evidence regarding the acquisition of stock by the foreign entity.
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on
appeal. See Matter ofSoriano, 19 I&N Dec. 764 (BIA 1988); see also Matter ofObaigbena, 19 I&N Dec. 533
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted
the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need
not and does not consider the sufficiency of the promissory note submitted on appeal.
Accordingly, the petitioner has not established that it and the organization which employed the beneficiary
abroad are qualifying organizations, and the petition may not be approved for that reason.
Beyond the decision of the director and for the same reasons articulated above, the petitioner did not establish
that the foreign entity made an investment in the United States operation as required by 8 C.F.R. §
214.2(l)(3)(v)(C)(2), and the petition may not be approved for this additional reason.
Beyond the decision of the director, the petitioner did not establish that sufficient physical premises to house
the new office have been secured as required by 8 C.F.R. § 214.2(l)(3)(v)(A).
In the initial petition, the petitioner provided a copy of a "Commercial Lease" for space described as
"office/retail." As the lessee in the Lease is the beneficiary and not the petitioner, it has not been established
that the petitioner has secured sufficient physical premises to house the petitioner's business. Moreover, the
Lease prohibits the assignment of the Lease to a third party, including the petitioner, without the written
consent of the lessor. The record is devoid of any evidence that the lessor has agreed pursuant to the Lease to
its assignment to the petitioner. Therefore, the petitioner has not established that it has secured sufficient
physical premises to house its new office, and the petition may not be approved for this additional reason.
WAC 05 087 51430
Page 6
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 Dar 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, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.