dismissed L-1A Case: Information Technology And International Trade

identieing aata Metad 
prevent clearly ~nwa~and 
invasion of pod 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: SRC 04 203 5 1546 Office: TEXAS SERVICE CENTER Date: APR 2 4 206 
IN RE: 
PETITION: 
 Petition for a Nonimmigrant Worker Pursuant to Section 10 l(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 101 (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. 
- 
- >Q -. 
/' / ,- 
~obertv W~ernann, Director 
Administrative Appeals Office 
SRC 04 203 5 1546 
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 summarily dismissed. 
The petitioner states that it is engaged in information technology and international trade. It seeks to extend its 
authorization to employ the beneficiary temporarily in the United States as its general manager. The director 
denied the petition based on the conclusion that the petitioner failed to establish that the beneficiary has been 
and will continue to be employed in a managerial or executive capacity. Specifically, the director noted that 
the beneficiary and one recently hired employee were the only persons in charge of operating the petitioner's 
business, which involved the generation of sales through direct contact with customers. The director noted 
that the evidence contained in the record indicated that the beneficiary engaged in numerous non-qualifying 
duties, and that the petitioner did not appear to be able to support the beneficiary in a primarily managerial or 
executive position after its first year of operations. 
On appeal, counsel for the petitioner indicated on Form I-290B that it would submit a brief and/or additional 
evidence to address the director's denial within 30 days.' Although counsel submitted a brief statement on 
the Form I-290B, it failed to adequately address the director's conclusions. In this brief statement, counsel for 
the petitioner states that the director "summarily denied" the petition, and bases this conclusion on the fact 
that the decision was concise. Counsel further asserts that the director erred by not issuing a request for 
evidence in this matter, and claims that had the request for evidence been issued prior to adjudication of the 
petition, the petitioner could have presented additional evidence confirming the expansion of the petitioner's 
staff that had subsequently relieved the beneficiary from performing non-qualifying duties since the filing of 
the extension. Counsel further contends that the director erred because "to just casually deny the extension 
without a chance to respond is arbitrary and capricious, and has placed the petitioner and his family out of 
status in the U.S. after having invested so much money in this country's economy." 
Counsel's assertions are not persuasive for two reasons. First, counsel contends on appeal that the director 
erred by failing to request further evidence before denying the petition. The regulation at 8 C.F.R. 
103.2(b)(8) requires the director to request additional evidence in instances "where there is no evidence of 
ineligibility, and initial evidence or eligibility information is missing." Id. The director is not required to 
issue a request for further information in every potentially deniable case. If the director determines that the 
initial evidence supports a decision of denial, the cited regulation does not require solicitation of further 
documentation. The director did not deny the petition based on insufficient evidence of eligibility. 
Second, counsel argues that had a request for evidence been issued, the petitioner would have submitted 
evidence showing that "after filing the extension and before the decision, the company hired two more 
employees" which, counsel asserts, would apparently have qualified the beneficiary for the benefit sought. 
This assertion is likewise erroneous. 
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). In this matter, counsel presumes 
' On March 22, 2006, the AAO sent a fax to counsel. The fax advised counsel that no evidence or brief had 
ever been received in this matter and requested that counsel submit a copy of the brief and/or additional 
evidence, if in fact such evidence had been submitted, within five business days. As of the date of this 
decision, the AAO has received no response from counsel or the petitioner. 
SRC 04 203 5 1546 
Page 3 
that the petitioner's expansion of its staff prior to the denial of the extension satisfied the regulatory 
requirements. This is incorrect. The regulation at 8 C.F.R. 9 214.2(1)(3)(v)(C) allows the intended United 
States operation one year within the date of approval of the petition to support an executive or managerial 
position. There is no provision in Citizenship and Immigration Services (CIS) regulations that allows for an 
extension of this one-year period. If the business is not sufficiently operational after one year, the petitioner is 
ineligible by regulation for an extension. In the instant matter, the petitioner has not reached the point that it 
can employ the beneficiary in a predominantly managerial or executive position. A visa petition may not be 
approved based on speculation of future eligibility or after the petitioner or beneficiary becomes eligible 
under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 
(Assoc. Comm. 1998). 
On review, the record as presently constituted is not persuasive in demonstrating that the beneficiary has been 
or will be employed in a primarily managerial or executive capacity. The evidence of record indicates that 
the beneficiary oversees one administrative employee, and no evidence has been presented to establish that 
this employee is supervisory, professional, or managerial such that the beneficiary's supervisory position over 
her would establish his managerial capacity. See 9 10 1 (a)(44)(A)(ii) of the Act. 
The petitioner's general objections on the Form I-290B, without specifically identifying any errors on the part 
of the director with regard to the conclusions about the beneficiary's managerial and/or executive capacity, 
are simply insufficient to overcome the well-founded and logical conclusions the director reached based on 
the evidence submitted by the petitioner. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972). 
On the Notice of Appeal received on October 18, 2004, the petitioner clearly indicates that it would send a 
brief with the necessary evidence to the AAO within thirty days. According to 8 C.F.R. 8 103.3(a)(2)(i), the 
petitioner "shall file the complete appeal including any supporting brief with the office where the unfavorable 
decision was made within 30 days after service of the decision," which in the case at hand would be no later 
than November 17, 2004. While the petitioner may request that it be granted additional time to submit an 
appeal, no such request was made in this case. See 8 C.F.R. 9 103.3(a)(2)(vii). Even if additional time to 
submit a brief in support of the appeal had been requested and approved, to date there is no indication or 
evidence that the petitioner ever submitted a brief andlor evidence in support of the appeal with the Service or 
with the AAO. As stated above, absent a clear statement, brief and/or evidence to the contrary, the petitioner 
does not identify, specifically, an erroneous conclusion of law or statement of fact. Hence, the appeal must be 
summarily dismissed. See 8 C.F.R. 9 103.3(a)(l)(v). 
Regulations at 8 C.F.R. 9 103.3(a)(l)(v) state, in pertinent part: 
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. 
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. 9 1361. Inasmuch as counsel has failed to identify specifically an 
SRC 04 203 5 1546 
Page 4 
erroneous conclusion of law or a statement of fact in this proceeding, the petitioner has not sustained that 
burden. Therefore, the appeal will be summarily dismissed. 
ORDER: 
 The appeal is summarily dismissed.