dismissed L-1A Case: International Trade

identifyingdata deletedtQ
preventclearlyunwarranted
invasionof personalprivacy
PUBLICCOfY
U.S. Departmentof HomelandSecurity
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
File: SRC 05 249 52952 Office: TEXAS SERVICE CENfER Date: APR" 0 4 lOO1
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:
SELF-REPRESENTED
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:~'
Administrative Appeals Office
www.uscis.gov
SRC 05 249 52952
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 dismissed.
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary 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, a Florida corporation, states that it intends to engage in international
trade. The petitioner states that it is a subsidiary of Datashop Comercio e Servico de Informatica Ltda, located
in Brazil. The petitioner seeks to open a new office in the United States and has requested that the beneficiary
be granted a two-year period in L-IA classification to serve as the U.S. entity's president. l
The director denied the petition concluding that the petitioner did not establish: (1) that the United States
company has secured sufficient physical premises to house the new office; or (2) that the foreign entity had
provided funding or capitalization for the U.S. company.
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 the foreign entity has
$25,000 set aside as an investment in the United States entity, and that such funds will be transferred upon the
approval of the petition. With respect to the petitioner's physical premises, the petitioner provides a new floor
plan for the U.S. company's office, which includes the square footage information previously requested by the
director. The petitioner submits a briefand additional documentary evidence in support of the appeal.
To establish eligibility for the L-l 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. § 214.20)(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)(I)(ii)(G) ofthis section.
(ii) Evidence that the alien will be employed in an executive, managerial, or specialized
knowledge capacity, including a detailed description ofthe 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.
1 Pursuant to the regulation at 8 C.F.R. § 214.2(l)(7)(i)(A)(3), if the beneficiary is coming to the United States
to open or be employed in a new office, the petition may be approved for a period not to exceed one year.
SRC 05 249 52952
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 himlher 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.
The regulation at 8 C.F.R. § 214.2(l)(3)(v) also provides 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 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 defmed in paragraphs (l)(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 first issue in this matter is whether the foreign entity has provided funding or capitalization for the new
office in the United States. When filing a petition for a beneficiary who is to be employed in a new office in a
managerial or executive capacity, the petitioner is required to submit evidence to establish the size of the
United States investment and the financial ability to commence doing business in the United States. See 8
C.F.R. § 214.2(l)(3)(v)(C)(2).
The nonimmigrant petition was filed on September 13, 2005. In a letter accompanying the petition, the
petitioner stated that the U.S. company "will provide local and international clientele with top export
products, marketing consulting services." In support of the petition, the petitioner provided a letter from
McCoy Federal Credit Union, dated August 25, 2005, indicated that the petitioner opened a checking
accountant on that date with a balance of $1600, and a savings account with a balance of $80. The petitioner
submitted a copy of the foreign entity's statement of accounts for 2004, which indicated gross revenues of
R$2,616,936 and net profit ofR$96,467.30
On October 17, 2005, the director issued a request for additional evidence, in part requesting that the
petitioner submit evidence of the funding or capitalization of the United States company to include copies of
SRC 05 249 52952
Page 4
wire transfers showing transfer of funds from the foreign organization and evidence of financial resources
committed by the foreign company to include copies of bank statements for the U.S. business checking and
saving accounts. The director also requested a business plan for the new U.S. company demonstrating
qualifications and financial goals for the first year of operation.
In a response dated January 1,2006, the petitioner referenced its attached bank statements for the months of
October and November 2005, and noted that the company's startup expenses are minimal and would comprise
rent, phone, licenses, legal expenses, furniture leases and office supplies. The petitioner further stated that the
company would purchase merchandise when the petition is approved, which "will create an automatic cash
flow for all expenses." The petitioner also stated that the foreign entity issued a resolution to fund the new
office for as long as necessary.
The petitioner resubmitted the letter from its bank dated August 25, 2005, and the above-referenced bank
statements, which show ending balances of $5,111.65 for October 2005 and $7550.56 for November 2005.
The bank statements show a total of eleven cash and check deposits and 32 withdrawals over the two-month
period. The bank statements do not indicate any wire transfers, nor did the petitioner provide evidence that
any of the deposited funds originated with the foreign entity.
The company "resolution" referenced by the petitioner is a "personal agreement" between the beneficiary and
the foreign entity, dated January 12, 2005, in which the foreign entity agrees to cover the beneficiary's
expenses for relocation to the United States, including continuation of her salary until her nonimmigrant
petition is approved.
Finally, the petitioner submitted a copy of its business plan. The plan included monthly income projections
for the first twelve months of operations, but did not identify the company's anticipated start-up costs. All
figures included in the business plan were indicated in Brazilian reass, rather than in United States dollars.
The director denied the petition on May 26, 2006, concluding that the petitioner had not established the size
of the United States investment or the financial ability to commence doing business in the United States. The
director observed that the petitioner failed to submit evidence that any funding has been committed to the
U.S. company from the foreign entity, noting that the $1,680 balance in the petitioner's bank account at the
time of filing "is not commensurate with the activities to be conducted nor does it demonstrate the financial
ability of the foreign entity to remunerate the beneficiary and to commence business in the United States."
The director acknowledged the petitioner's submission of its bank statements for October and November
2005, but found that the statements "are in no way demonstrative that the foreign company has any
association with these purported transactions nor do they evidence any funding omitted by the foreign entity."
The director further noted that the bank statements reflect transactions that occurred subsequent to the filing
of the petition and could not be considered as evidence that the foreign entity had made an investment in the
U.S. entity as of the date the petition was filed.
On appeal, the petitioner addresses the size of the United States investment, noting "very little funding is
necessary until the petitioner is authorized to operate." The petitioner asserts that the foreign entity is paying
the U.S. company's expenses related to lease payments, office supplies, phone bills, and licenses. The
petitioner submits a letter from the foreign entity's accountant, who states that the Brazilian entity authorized
the amount of $25,000 to begin operations in the United States, set this amount aside in its 2005 and 2006
SRC 05 249 52952
Page 5
budgets, and "pledged to make available or to commit any additional funds [that] might be necessary to keep
the company operating after authorization to open for business."
The foreign entity's accountant further states that the beneficiary was given $9,000 in cash when she moved to
the United States, and that additional funds were brought by the petitioner's president, on two
other occasions, including funds for the beneficiary's living expenses in the United States. The accountant
asserts that the foreign entity believed that the funds only needed to be available to the U.S. entity and not
already transferred to the U.S., with the understanding that the new office did not have to establish full
viability for an entire year. The accountant emphasizes that the foreign entity has been in business for a
significant period of time and has annual income of $3,000,000 reals, sufficient to fund the U.S. office.
Finally, the accountant refers to an attached "corporate agreement to open the company in the US and to
maintain the US Company with whatever funds are necessary," but the agreement is not included among the
evidence submitted on appeal.
Finally, the petitioner notes that the $9,000 given to the beneficiary, and additional funds brought by_
_ "were not put into a US bank because the allocation of personal or business expenses had not been
made and the company was not authorized to be in business." The petitioner asserts that the evidence
submitted is sufficient to establish that the company has the funds to commence doing business.
Upon review, the petitioner's assertions are not persuasive. The record as presently constituted contains no
documentary evidence of any funds already provided to the U.S. entity for the purpose of establishing the
subsidiary company. Although the U.S. company apparently has a bank account, the petitioner provided no
documentary evidence to demonstrate that the approximately $1,600 in the account at the time of filing was
provided by the foreign entity, nor did it specifically identify the purpose of these funds. Going on record
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in
these proceedings. MatterofSoffici, 22 I&NDec. 158,165 (Comm. 1998) (citing Matter ofTreasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Although the petitioner refers to a resolution by the foreign entity to commit $25,000 for the opening of the
United States company, and at least $9,000 in funds already provided to the beneficiary and another employee
related to the start up costs of the U.S. entity, the petitioner submitted no documentary evidence to
corroborate these claims, such as a copy of the resolution in question, or any evidence of funds originating
from the foreign entity deposited into the petitioner's bank account. The petitioner's explanation that these
funds "were not put into a US bank account because ... the company was not authorized to be in business," is
not persuasive. The non-existence or other unavailability of required evidence creates a presumption of
ineligibility. 8 C.F.R. § 103.2(b)(2)(i). The statement of the foreign entity's accountant that the funds will be
provided a later date is not sufficient to satisfy the petitioner's burden of proof.
The AAO also acknowledges the petitioner's submission of financial records for the foreign entity. However,
the AAO cannot determine whether the foreign entity's financial position can support the petitioner's
operations during the first year of operations. While the petitioner questions the need for the foreign entity to
actually deposit funds in a U.S. bank account in order to meet the regulatory requirements, the AAO finds
insufficient evidence that such funds are even available. In addition, the petitioner has not actually identified
the anticipated start up costs for the U.S. entity. Instead, the petitioner has repeatedly and vaguely stated that
the costs are "minimal." Given these uncertainties, and based on the lack of any evidence of an investment
from the foreign entity, the AAO must concur with the director's conclusion on this issue. Again, going on
SRC 05 249 52952
Page 6
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof
in these proceedings. Matter ofSoffici, 22 I&N at 165.
The evidence submitted does not clearly establish the size of the foreign entity's investment in the United
States entity, nor does it demonstrate what the company's anticipated start-up costs are, or that the company
had sufficient funds to cover such costs at the time 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). The petitioner has not submitted evidence on appeal to
overcome the director's determination on this issue. Accordingly, the appeal will be dismissed.
The second issue addressed by the director is whether the petitioner had secured sufficient physical premises
to house the new office as of the date the petition was filed.
In support of the initial petition, the petitioner submitted a two-page sub-lease agreement entered into with
E&R Logos Company, Inc. The agreement indicates that the leased space is to be used for business purposes,
and was signed on July 15,2005, with a one-year term.
On October 17, 200S, the director requested the "square footage layout" for the leased premises, and other
evidence that the premises secured are sufficient to house the new operation.
In response, the petitioner submitted a diagram purported to show the layout of the suite in which the
petitioner has secured an office. The diagram highlights the office within the suite leased by the petitioner, but
does not indicate any information regarding the square footage of the leased space. In its letter dated January
1, 2006, the petitioner stated:
Note that the square footage will increase as necessary. Also not that a certain percentage of
the merchandise for export to Brazil will be shipped direct. In this case, a large initial space is
not necessary. A large inventory will not be kept on the premises. The export clerks
essentially prepare all of the necessary paperwork for export to Brazil. The United States
company buys American wholesale products and ships to Brazil.
The petitioner also submitted a business plan for the U.S. entity, which indicates that the "main warehouse
and office" has the capacity to store approximately 500 pieces of merchandise."
The director denied the petition on May 26, 2006, concluding that the petitioner had not established that
sufficient physical premises to house the new office have been secured. The director noted that in response to
the request for the square footage and layout of the leased space, the petitioner "submitted a generalized
drawing with no square footage indicated which did not fulfill the basis of our request."
On appeal, the petitioner again emphasizes that the company does not require significant storage space at the
outset of commencing operations and can lease space for the storage of merchandise at a storage facility, "of
which there are many in the Orlando area." The petitioner re-submits the drawing submitted in response to
the director's request for evidence, stating that the director could have deduced the approximate size of the
five rooms depicted within the office suite. The new drawing includes hand-written square footage
measurements and shows that the office leased by the petitioner was 400 square feet. The petitioner asserts
SRC 05 249 52952
Page 7
that the landlord does not have a floor plan with square footage, but has added the information upon request
by the director.
The petitioner further states that the company acquired a new lease at a different location from the same
landlord, with a three-year term commencing on April 1, 2006, and submits a copy of the agreement and floor
plan for the new, larger office.
Upon review, the petitioner's assertions are not persuasive. The petitioner has not established that it had
secured sufficient physical premises to house its new office as of the date the petition was filed. The AAO
acknowledges the petitioner's submission of a sublease at the time the petition was filed. However, given the
petitioner's assertion that it intends to operate primarily as a purchasing and export operation with up to nine
employees, the petitioner has not established that the small office secured as of the filing date was sufficient
to house the new office. Such a conclusion is supported by the fact that the petitioner opted to secure a larger
space before the company had even commenced operations. Further, as noted by the director, the petitioner
failed to respond to the director's request for evidence of the size of the office, and now submits the evidence
on appeal. Given that the petitioner had 12 weeks in which to obtain the evidence, and was also asked to
submit other evidence to establish that the space secured was sufficient for the company's purposes, the
petitioner's failure to respond to the director's request will not be excused. The 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).
While the office and warehouse space secured in April 2006 may be sufficient for the petitioner's purposes, 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 ofMichelin 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 ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). The petitioner has not submitted evidence
on appeal to overcome the director's determination with respect to this issue. Accordingly, the appeal will be
dismissed.
Beyond the decision of the director, the record is not persuasive in establishing that the beneficiary would be
employed by the petitioner in a primarily managerial or executive capacity within one year, as required by 8
C.F.R. § 214.2(l)(3)(v)(C). The petitioner has not clearly identified the position to be held by the beneficiary
within the U.S. company. The petitioner indicated on Form 1-129 that the beneficiary will serve as the
president of the U.S. entity, and in its accompanying letter referred to the position as "President and Managing
Director," "President and General Director," and "President and General Manager." However, the record
contains numerous corporate documents, including the petitioner's lease agreements which have been signed
by _ the capacity of president of the petitioning company. The petitioner's articles of
inco~is individual and the beneficiary's spouse as the only officers of the U.S. company. 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).
Furthermore, while the petitioner's Form 1-129 and supporting letter refer to the beneficiary's proposed role as
president, the petitioner submitted a detailed job offer, job description and "work schedule" outlining her
SRC 05 249 52952
Page 8
proposed duties as "general manager." This job description, while highly detailed, is not consistent with
petitioner's statements that the U.S. company will be primarily engaged in purchasing and export operations.
For example, the "general manager" job description indicates that the beneficiary will manage an accounting
and finance manager, a sales manager, an operations manager, and an events manager, and notes that she will
have "high level contacts with industry representatives, mostly international tour operators or tour and travel
agents." According to the petitioner's organizational chart, the beneficiary's subordinates would include an
office manager, an export manager, an export clerk, a shipping clerk, a secretarylbookkeeper and a
driver/clerk. This conflicting information has not been resolved. Doubt cast on any aspect of the petitioner's
proof may, of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence
offered in support of the visa petition. Matter ofRo, 19 I&N Dec. 582, 591 (BIA 1988).
Finally, the petitioner's business plan references the beneficiary's proposed responsibility for the areas of
"personal selling," "marketing programs," and "sales programs." As the petitioner's proposed hiring plan does
not indicate that the company will hire sales or marketing personnel, it is questionable whether the beneficiary
would be relieved from performing non-managerial duties associated with these functions. 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 Intn 'I., 19 I&N Dec. 593,604 (Corom. 1988).
Overall, the conflicting evidence submitted raises questions regarding the beneficiary's proposed duties and
level of authority, the company's hiring plans, and the nature of the business to be operated by the U.S.
company, and fails to establish that the beneficiary will be employed in a primarily managerial or executive
capacity. For this additional reason, the petition cannot be approved.
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 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. § 1361.
Here, that burden has not been met.
ORDER: The appeal is dismissed.