dismissed L-1A Case: International Trade

identifyingdatadeletedto
preventclearlyunwarranted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
PUBLIC COpy
File:
INRE:
Petition:
SRC 0507351547 Office: TEXAS SERVICE CENTER Date:
Petitioner:
Beneficiary:
Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(l5)(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.
Robert P. Wiemann, Clef
~dministrative Appeals Office
www,uscis.gov
SRC 0507351547
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)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(l5)(L). The petitioner is a Texas corporation that claims to be engaged in international
services and the purchase and export of air conditioning parts. The petitioner states that it is a subsidiary of
Compresores Rotativos Venezolanos, S.A., located in Venezuela. The petitioner seeks to open a new office in
the United States and has requested that the beneficiary be granted a three-year period in L-IA classification
to serve as its general manager.
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 U.S. entity has been
operating from the beneficiary's residence since its formation in October 2004, although the written
agreement for the arrangement was not signed until April 2005. The petitioner asserts that the foreign entity
has made a significant investment in the U.S. company, but notes that current money transfer rules in
Venezuela do not allow the direct transfer of funds from Venezuela to the United States. The foreign entity
provides an explanation regarding the company's use of intermediaries to fund the petitioning company's U.S.
operations. The petitioner submits a letter and additional documentary evidence in support of the appeal.
To establish eligibility for the L-1 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.
SRC 0507351547
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(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(1)(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 defined in paragraphs (1)(1)(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 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.
The nonimmigrant petition was filed on January 18 2005. The
beneficiary would work at the following address: The
petitioner did not submit evidence that the U.S. company had leased or purchased property located at this
address.
In a request for evidence dated February 23, 2005, the director requested evidence of the lease or purchase of
facilities in which to conduct business in the United States.
In response, the petitioner submitted a commercial lease for the property located at the above-cited address,
which identifies the petitioner as the lessor and the beneficiary as the lessee. The lease has a term of one year
commencing on April 2, 2005, and states that the premises are to be used as an "import/export office." The
lease agreement was executed on April 1, 2005.
SRC 0507351547
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The director denied the petition on December 1, 2005, concluding that the petitioner had failed to establish
that the U .S. company had secured physical premises in which to conduct business as of the date the petition
was filed. The director observed that the submitted lease agreement was not signed until several months after
the filing of the petition.
On appeal, the petitioner asserts:
When the petition was presented, it was shown that they had purchased a location from where
the business was running, then the company dedcided [sic] to type up a contract , but the
property had been purchased and the company was occupying this same location since
August 2004 and the occupational license had also been registered by the company to that
address.
The petitioner also submits a letter , dated December 15,2005, from the foreign entity's general manager , who
states that the beneficiary "bought a house to be used as her primary residence at
FL on August 16, 2004." The foreign entity 's general manager states that the petitioner has used the premises
since October 2004 and has complied with the licensing and permits required by the municipality of Miramar,
Florida.
In support of the appeal, the petitioner submits a closing statement and warranty deed confirming that the
beneficiary and her spouse purchased a condominium located at the above-cited address on August 16, 2004.
The petitioner also submits an occupational license for the U.S. business for the same address , valid from
October 1, 2004 through September 30, 2005. The occupational license contains the following restrictions:
Mail & phone only
No employees at home
No work on premises
No clients at home
No deliveries to home
Home used for office only
Upon review, counsel's assertions are not persuasive. The petitioner has not established that it has secured
sufficient physical premises to house its new office. While the evidence submitted on appeal shows that the
beneficiary secured a U.S. residence prior to the filing of the petition, there is no evidence that the
condominium is suitable for the petitioner to do business as an exporter or international legal services
provider. As noted above, the occupational license for the premises prohibits employees or clients on the
premises, deliveries, or any type of work, and appears to allow the petitioner to use the premises for receipt of
mail and telephone calls only.
Furthermore , even if the secured space were properly zoned and licensed for the petitioner's full use , the AAO
notes that the petitioner has not specifically outlined the type or amount of space required to operate its
business, nor indicated how much of the residential space obtained would in fact be available for use by the
U.S. company . Going on record without supporting documentary evidence is not sufficient for purposes of
meeting the burden of proof in these proceedings. Matter of Sofjici, 22 I&N Dec. 158 , 165 (Comm. 1998)
(citing Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm . 1972)).
SRC 05 073 51547
Page 5
Based on the foregoing discussion, the petitioner has failed to establish that it secured sufficient physical
premises to house the new office. Accordingly, the appeal will be dismissed.
The second issue addressed by the director is whether the u.s. company was funded at the time the petition
was filed. 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 petitioner stated on Form 1-129 that it is a majority-owned subsidiary of_., a Venezuelan
company. In support of the petition, the petitioner submitted copies of its Bank of America statements for the
company's checking account for the months of October and November 2004. The two submitted bank
statements show the following transactions: (1) a teller transfer in the amount of $5,668.00 from
on October 12, 2004; (2) a wire transfer in the amount of $16,000 on October 26,
2004, for which is identified as the originator; (3) a "counter credit" in the
amount of $25,000 on November 12, 2004; and (4) a "counter credit" in the amount of $6,600 on November
16,2004.
In a request for evidence dated February 23, 2005, the director instructed the petitioner to submit evidence of
the funding or capitalization of the U.S. company, including documentary evidence of wire transfers from the
foreign company to the US. company. The director noted that the petitioner's bank statements list wire
transfers, but did not indicate the originator of the funds.
In its response, the petitioner re-submitted its October and November 2004 bank statements, along with
statements for the months of December 2004, January 2005, and February 2005. No additional wire transfers
or other deposits appeared on the petitioner's subsequent bank statements. The petitioner stated that "the
company is well based and it has enough funds deposited into the commercial account which will enable it to
have a base with which to operate during the first year and will also enable it to purchase the parts ordered for
export to the foreign company." The petitioner emphasized that the submitted bank statements "prove that the
company has been capitalized for proper operation."
The director denied the petition on December 1, 2005, concluding that the petitioner failed to establish that
the U.S. company has been funded by the foreign entity and has the financial ability to commence doing
business in the United States. The director observed that the deposits indicated on the petitioner's bank
statements do not show that the money was transferred from the foreign entity.
On appeal, the petitioner submits an elaborate explanation from the foreign entity's general manager, Jose
who addresses foreign exchange controls set in place by the Venezuelan government, and
their effect on the foreign entity's methods of funding the U.S. petitioner_explains that Venezuelan
regulations prohibit the possibility of securing dollars for capital formation, "thus forcing the private sector to
go to the "parallel market," via the Securities and Exchange Commission of Venezuela." _ further
explains:
Any private company who needs to exchange Bolivar's to dollars go to the parallel market. ..
. In this particular case, our company in Venezuela, _Igo to a stock brokerage house
in Venezuela (the intermediary), the intermediary proceed to buy American Depositary
SRC 05 073 51547
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Receipts (ADR) in this particular example we buy "Public Debt Bonds issued by Venezuela
and with the bonds we enter into a swap agreement in US Treasury Bills," after the previous
operation is done we then proceed to authorize the intermediary (brokerage house) to sell the
TBills in dollars and the dollars are wire transferred for credit to the account of [the
petitioner]. The name of_I will never show as the remitter of the funds. This above
described clearly provide an explanation as to why in the bank statements of [the petitioner],
the name of_as remitter of the funds will never show up, since the transfers of funds
in a direct way are strictly forbidden by the Venezuelan government and the only way to do it
is through the Stock and Bond Market of Venezuela and the Stock and Bond markets in New
York.
The petitioner provides a "history of funds sent to [the petitioner] with funds originated and sent by-I
_using the swap mechanism," and states that capital contributions made by the foreign entity ~
October 2004 and December 2005 totaled $194,150.
Upon review, the petitioner's assertions are not persuasive. Preliminarily, the AAO notes that the record
contains no business plan or other evidence detailing the anticipated start-up costs for the petitioning
company. While it appears that the U.S. company had an account balance of approximately $25,000 at the
time of filing, without additional evidence, the AAO could not conclude that this amount was sufficient to
allow the petitioner to commence doing business operations in the United States and move forward with its
plan to expand to the point where it would realistically support an executive or managerial position within one
year. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
With respect to the evidence submitted on appeal, the regulation states that the petitioner shall submit
additional evidence as the director, in his or her discretion, may deem necessary. The purpose of the request
for evidence is to elicit further information that clarifies whether eligibility for the benefit sought has been
established, as of the time the petition is filed. See 8 C.F.R. §§ 103.2(b)(8) and (12). The director specifically
advised the petitioner that its bank statements were not sufficient to establish that the foreign entity had
provided sufficient funding for the U.S. company, yet the petitioner simply re-submitted these documents in
response to the director's request for additional evidence. 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).
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 evidence submitted on appeal. 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 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 intends to hire the beneficiary as its general manager. The petitioner stated
in its supporting letter that the U.S. company will purchase and export supplies and materials for use in the
SRC 05 073 51547
Page 7
foreign entity's manufacturing activities, as well as offer legal services for Venezuelans residing in the United
States and other countries. The petitioner emphasized the beneficiary's legal background, and noted that she,
along with the petitioner's proposed vice president, will "offer services such as divorces, power of attorneys,
property sales and representation and other very delicate legal matters that require professional
representation." The petitioner also attached a job description indicating that the beneficiary would "plan,
direct and control the administrative, financial, information systems, and budgetary activities" of the
company, advise management regarding commercial decisions, direct sales, buying new products, and
collections, negotiate purchase of raw materials, and to ensure compliance with legal requirements.
In her request for evidence dated February 23, 2005, the director instructed the petitioner to submit a business
proposal describing the beneficiary's proposed duties and the percentage of time she would spend on each
duty, as well as information regarding the proposed staffing level by the end of the company's first year of
operations, including position titles and duties for all proposed employees. In response, the petitioner
provided a list often duties to be performed by the beneficiary, which included opening the company, seeking
a location to open a warehouse, obtaining permits, consulting with the foreign entity on all decisions, setting
an agenda, developing contracts, setting up accounts with financial institutions, and setting a budget. The
petitioner stated that the beneficiary would hire a "sales manager-marketing director," a purchasing manager,
and a warehouse supervisor and workers. The petitioner further stated that there should be four to five
employees, and possibly up to eight employees, after one year of operations, and listed the following job
titles: general manager, marketing director, administrator/operations manager, financial
administrator/accounting manager, distributions director, warehouse supervisor, shipping and receiving, legal
advisors and legal assistants.
Although requested by the director, the petitioner did not provide a clear timeline for the hiring of additional
staff for the U.S. entity or job descriptions for the proposed employees, and thus it cannot be determined that
the beneficiary would be relieved from performing the day-to-day operational duties of the company within
one year. 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). Furthermore, the initial job description provided for the
beneficiary suggested that she would be personally responsible for providing legal services to the petitioner's
clients, rather than supervising others to do so. When a new business is established and commences
operations, the regulations recognize that a designated manager or executive responsible for setting up
operations will be engaged in a variety of activities not normally performed by employees at the executive or
managerial level and that often the full range of managerial responsibility cannot be performed. In order to
qualify for L-1 nonimmigrant classification during the first year of operations, the regulations require the
petitioner to disclose the business plans and the size of the United States investment, and thereby establish
that the proposed enterprise will support an executive or managerial position within one year of the approval
of the petition. See 8 C.F.R. § 214.2(l)(3)(v)(C). This evidence should demonstrate a realistic expectation
that the enterprise will succeed and rapidly expand as it moves away from the developmental stage to full
operations, where there would be an actual need for a manager or executive who will primarily perform
qualifying duties.
As contemplated by the regulations, a comprehensive business plan should contain, at a rrummum, a
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec.
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable
business plan:
SRC 0507351547
Page 8
The plan should contain a market analysis, including the names of competing businesses and
their relative strengths and weaknesses, a comparison of the competition's products and
pricing structures, and a description of the target market/prospective customers of the new
commercial enterprise. The plan should list the required permits and licenses obtained. If
applicable, it should describe the manufacturing or production process, the materials required,
and the supply sources. The plan should detail any contracts executed for the supply of
materials and/or the distribution of products. It should discuss the marketing strategy of the
business, including pricing, advertising, and servicing. The plan should set forth the
business's organizational structure and its personnel's experience. It should explain the
business's staffing requirements and contain a timetable for hiring, as well as job descriptions
for all positions. It should contain sales, cost, and income projections and detail the bases
therefore. Most importantly, the business plan must be credible.
Id.
Since the petitioner has not provided a business plan, it is impossible to determine if the petitioner can
realistically be expected to launch and staff both its material purchase and export business and international
services business within a one-year period. Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at
165. Accordingly, the petitioner has not established that the beneficiary will be employed in a primarily
managerial or executive capacity within one year. For this additional reason, the appeal will be dismissed.
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), aff'd. 345 F.3d 683
(9th Cir. 2003); see also Dor 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.