dismissed L-1A Case: Investment

COPY 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 04 026 53944 Office: VERMONT SERVICE CENTER Date: OCT 1 1 2005 
IN RE: 
PETITION: Petition for a Nonirnmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1101(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. 
l~dministrative Appeals Office 
EAC 04 026 53944 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimrnigrant 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 extend the employment of its president as an L-1A 
nonimmigrant intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of New Jersey 
that claims to be engaged in diversified investments, including real estate investment and management. The 
petitioner claims that it is a subsidiary o located in Nairobi, Kenya. The 
beneficiary was initially granted L-1A classifica6on in order to op6a new offics in the United States and the 
petitioner now seeks to extend the beneficiary's stay. 
The director denied the petition concluding the petitioner did not establish that: (1) the beneficiary will be 
employed in the United States in a primarily managerial or executive capacity; or that (2) the petitioner has 
commenced doing business in the United States. 
On appeal, counsel for the petitioner emphasizes that the beneficiary was granted only nine months in which 
to open the new office and was further delayed in commencing business operations due to a long delay in the 
issuance of his U.S. social security number. Counsel contends that the regulation at 8 C.F.R. 
3 214.2(1)(3)(v)(C) requires that a new office be given ode full year in which to support an executive or 
managerial position. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 3 1101(a)(15)(L), the petitioner must demonstrate that the beneficiary, within three years preceding 
the beneficiary's application for admission into the United States, has been employed abroad in a qualifying 
managerial or executive capacity, or in a capacity involving specialized knowledge, for one continuous year 
by a qualifying organization and seeks to enter the United States temporarily in order to continue to render his 
or her services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, 
executive, or involves specialized knowledge. 
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. 
EAC 04 026 53944 
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 himher 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. 5 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening of a 
new office, may be extended by filing a new Form 1-129, accompanied by the following: 
(A) Evidence that the United States and foreign entities are still qualifying organizations 
as defined in paragraph (l)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph (l)(l)(ii)(H) of this section for the previous year; 
(C) A statement of the duties performed by the beneficiary for the previous year and the 
duties the beneficiary will perform under the extended petition; 
(D) A statement describing the staffing of the new operation, including the number of 
employees and types of positions held accompanied by evidence of wages paid to 
employees when the beneficiary will be employed in a managerial or executive 
capacity; and 
(E) Evidence of the financial status of the United States operation. 
As a preliminary matter, the AAO will address counsel's claim that the beneficiary's initial period of 
employment was reduced to only three months due to circumstances outside the beneficiary's control. 
Counsel appears to be suggesting that the present petition should be adjudicated under the regulations 
governing new offices, provided in 8 C.F.R. 5 214.2(1)(3)(~), as the beneficiary did not receive a full year in 
L-1A status. Counsel takes issue with the director's application of the regulatory requirements for new office 
extensions as provided in 8 C.F.R. 3 214,2(1)(14)(ii). 
The initial new office petition (EAC 03 022 54296) was approved for a period from February 21, 2003 to 
November 14, 2003. If a beneficiary is coming to the United States to open a new office, the petition may be 
approved for a period "not to exceed one year." 8 C.F.R. 5 214.2(1)(7)(i)(3). Any request for an extension of a 
petition that was originally approved as a new office must be evaluated under the criteria set forth at 8 C.F.R. 
5 214.2(1)(14)(ii). The fact that the beneficiary did not apply for a U.S. social security number until four weeks 
after the approval and did not obtain the number for an additional five months after he was approved for L-1A 
status does not render him eligible for additional time in order to open a new office. The director 
appropriately applied the regulation at 8 C.F.R. 5 214.2(1)(14)(ii) in making his determination regarding the 
petitioner and beneficiary's eligibility in this matter. 
EAC 04 026 53944 
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The first issue in this proceeding is whether the beneficiary will be employed by the United States entity in a 
managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1101(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, 
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 1101(a)(44)(B), defines the term "executive capacity1' 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 an October 17, 2003 letter submitted in support of the petition, the petitioner discussed the delay in the 
issuance of the beneficiary's social security number, and stated that an extension of the beneficiary's status is 
needed to allow him "to complete the start up and direct the growth of our US operations." The petitioner 
submitted a proposed organizational chart depicting the beneficiary as president, a general manager position, 
an export manager position, office and export staff, and outsourced professional services. The petitioner 
indicated on the organizational chart that, as president, the beneficiary would be responsible for oversight of 
EAC 04 026 53944 
Page 5 
company operations, setting financial and operational goals, growth strategies and objectives, and 
organizational leadership. 
On February 2, 2004, the director requested additional evidence to establish that the beneficiary would be 
employed in a managerial or executive capacity.' Specifically, the director instructed the petitioner to 
provide: (1) a complete position description for all of the petitioner's proposed employees, including the 
beneficiary, and a breakdown of the number of hours devoted to each of the employees' job duties on a 
weekly basis; (2) copies of IRS Forms 941, Employer's Quarterly Tax Return, for the last two quarters of 
2003; and (3) copies of fully executed IRS Forms 1-9 for all individuals employed by the petitioner, including 
documentation submitted to show that they are authorized to accept employment in the United States. The 
director also noted that one of the petitioner's proposed employees was identified as "export manager," 
although the petitioner claimed to be engaged in "real estate investment and management and diversified 
investments." The director requested clarification regarding the type of business the petitioner conducts. 
The petitioner responded to the director's request on April 21, 2004, the petitioner submitted a February 18, 
2003 letter from the foreign entity that provided the following description of the beneficiary's proposed 
duties: 
The beneficiary will be performing many of the duties of establishing the export platform, 
researching the markets, sourcing products, negotiating with vendors, suppliers and shippers, 
assembling a team of custom brokers, frieght [sic] forwarder, accountant, information 
technology and other contract service providers. [The beneficiary] will be coordinating 
closely with the parent company management in Kenya in developing an effective 
distribution network for the import of US goods. Once the initial start up is completed, [the 
beneficiary] will commence hiring managerial and professional staff and assuming 
responsibility for executive functions of establishing company goals and targets, overseeing 
company operations and determining growth strategies and objectives. 
The above duties, and the acquisition of a motel to steady and diversity organizational income 
stream, and insuring a successful start up in diverse operations, in very competitive 
environments will take up all of [the beneficiary's] time. As the start up of [the petitioner] 
progresses [the beneficiary] will be delegating the day to day management of the company's 
operations to export and general manager, and devoting his time to expanding the company's 
business ventures, setting financial and operational goals, providing organizational leadership 
and insuring the creation of a profitable niche and operational excellence for ow U.S. 
operations. 
1 The AAO notes that the director erroneously stated on the February 2, 2004 request for evidence: "This 
petition is considered to be a 'new office' petition, as the record contains no evidence that it has conducted 
business for a full year." As discussed above, this petition is for the extension of a petition that involved the 
opening of a new office. In spite of this statement in the request for evidence, the director appropriately 
applied the requirements for a new office extension set forth at 8 C.F.R. 5 214.2(1)(14)(ii) and cited the 
appropriate regulation in her June 22, 2004 decision. 
EAC 04 026 53944 
Page 6 
The foreign entity indicated that the petitioner expected to hire an export manager within the next 12 months 
and a general manager and supporting staff within the next 12 to 18 months. The petitioner also submitted a 
business plan indicating that the petitioner plans to purchase and operate a franchised motel in mid-2004. The 
business plan indicates that the motel will employ 13 to 15 employees, including a chief executive officer, 
general manager, sales and marketing manager, front desk personnel, housekeeping staff, a maintenance and 
landscaping worker, and contracted legal and accounting staff. The petitioner did not submit the requested 
IRS Forms 941 or Forms 1-9 as evidence that it had hired employees. 
On June 14, 2004, the director denied the petition concluding that the petitioner did not establish that the 
beneficiary would be employed in a managerial or executive capacity. The director noted conflicting 
statements regarding the type of business to be conducted by the petitioner and concluded that, as the U.S. 
company has not yet commenced doing business, it had not grown to the extent that it can support a 
managerial or executive position. 
On appeal, counsel for the petitioner emphasizes that the beneficiary did not have a full year to develop the 
United States business due to a shortened period of approval from CIS and a delay in obtaining his social 
security card. Counsel does not specifically address the director's finding that the beneficiary was not 
employed in a managerial or executive capacity at the time the petition was filed, but instead asserts that he 
should be granted additional time in which to establish the petitioner's business operations in the United 
States. Counsel emphasizes that 8 C.F.R. 3 214.2(1)(3)(v)(C) requires that a new office be able to support an 
executive or managerial position within one year. 
Counsel's statements are not persuasive. Upon review of the petition and the evidence, the petitioner has not 
established that the beneficiary would be employed in a managerial or executive capacity under the extended 
petition. 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. 3 214.2(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. 
As discussed above, this matter involves the extension of a petition that involved the opening of a new office 
in the United States and therefore must be adjudicated accorded to the requirements set forth at 8 C.F.R. 
3 214.2(1)(14)(ii). While the delay in the issuance of the beneficiary's social security number was likely an 
inconvenience, the petitioner has not persuasively demonstrated how this factor prevented the petitioner from 
hiring employees and commencing business operations in the United States. The petitioner concedes that at 
the time of filing, the U.S. company was not yet doing business and had no employees other than the 
beneficiary, who is primarily engaged in non-qualifying duties such as conducting market research, sourcing 
products, researching potential investment properties, and locating potential suppliers and vendors. An 
employee who primarily performs the tasks necessary to produce a product or to provide services is not 
considered to be employed in a managerial or executive capacity. Matter of Church Scientology International, 
19 I&N Dec. 593, 604 (Comrn. 1988). The beneficiary's ongoing responsibility for guiding the start-up 
company in the early stages of its development does not constitute managing or directing the management of 
the company in this instance. 
EAC 04 026 53944 
Page 7 
The AAO acknowledges that the record contains numerous references to the future objectives of the U.S. 
operation, and outlines at least two different prospective business ventures and two proposed staffing 
structures. However, business activity that occurs after the date of filing is not probative of the petitioner's 
eligibility as of the filing date. The AAO cannot consider the petitioner's speculations about future activity. 
The petitioner must establish eligibility at the time of filing the nonimrnigrant 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). While the beneficiary may have 
achieved significant accomplishments toward planning the petitioner's operations in the United States, the 
petitioner has not shown that it has reached the point that he will be employed in a primarily managerial or 
executive capacity as of the date this petition was filed. For this reason, the appeal will be dismissed. 
The second issue in this matter is whether the petitioner has established that it has been doing business in the 
United States for the previous year as required by 8 C.F.R. 3 214.2(1)(14)(ii)(B). 
The regulation at 8 C.F.R. 3 214.2(1)(l)(ii)(H) defines "doing business" as "the regular, systematic, and 
continuous provision of goods andlor services by a qualifying organization and does not include the mere 
presence of an agent or office of the qualifying organization in the United States and abroad." 
On the 1-129 Petition submitted on November 6, 2003, the petitioner stated that it is engaged in "Real Estate 
Investments & Management & Diversified Investments," and indicated that it anticipated gross annual income 
of $150,000. In an October 7, 2003 supporting letter, the petitioner indicated that the company was still 
completing start up activities including "the establishment of a platform for the export of US products to 
Kenya" and "entry into the U.S. real estate industry." The petitioner submitted copies of classified 
advertisements placed in a newspaper as evidence that the company is attempting to locate and purchase or 
lease a property with 50 or more rooms. 
In his February 2, 2004 request for evidence, the director requested, in part, that the petitioner submit a 
detailed business plan, clarify what type of business it intends to operate, and provide copies of its bank 
statements for November and December 2003. 
In response, the petitioner submitted a letter from the foreign entity that states: "The U.S. operations of [the 
petitioner] are at a start up stage with growth objectives in import-export and investments including research 
opportunities for export of US goods to Kenya and other East African markets, establishment of an export 
platform for U.S. goods.. .." The petitioner also submitted a detailed business plan which states that the 
purpose of the company is "[tlo purchase a motel under the franchise name in 2004." The business plan 
indicates that the beneficiary is currently "looking for an investment opportunity" in the motel industry, but 
nevertheless states that the company will begin operating a motel in July 2004. The petitioner submitted the 
requested bank statements for November and December 2003. Both statements indicate a beginning and 
ending balance of $286 1.1 1. 
The director denied the petition on June 22, 2004 determining that the petitioner is not "doing business" as 
defined by 8 C.F.R. 3 214.2(1)(l)(ii)(H). Specifically, the director noted: "[Ylou have not clearly 
EAC 04 026 53944 
Page 8 
demonstrated that the United States entity has actually commenced doing business or even convincingly 
explained the scope and nature of the business activities it has or will engage in." 
On appeal, counsel for the petitioner asserts that, because of the beneficiary's delay in obtaining a social 
security number, the petitioner has had only three months in which to meet the "doing business" standard. 
Counsel clarifies that the company intends to engage in hotel management and export operations, but has had 
insufficient time in which to achieve its business objectives. 
Counsel's assertions are not persuasive. As noted above, the regulation at 8 C.F.R. $ 214.2(1)(14)(ii)(B) 
provides that a petition to extend a visa petition that involved the opening of a new office must be 
accompanied by evidence that the United States entity has been doing business for the previous year. Since 
the approval of a new office petition is granted for no more than one year, the regulations implicitly require 
that the petitioner be operational, i.e., engaged in the provision of goods andlor services, as soon as it is 
granted authorization to employ an intracompany transferee in the new office. Since the beneficiary's 
previous petition was approved for a period of only nine months, the petitioner in this matter must establish 
that it has been doing business since the approval of the previous petition in February 2003, rather than for a 
full year. 
Upon review of the evidence submitted, the petitioner has not established that the U.S. entity has been doing 
business since the initial new office petition was approved in February 2003, nor does it appear to have 
progressed beyond the planning stage. The AAO acknowledges the petitioner's claim that the beneficiary did 
not obtain a social security number until August 2003. As noted above, the petitioner has not adequately 
explained how the beneficiary's lack of a social security number prevented the U.S. company, a legal entity 
separate from the beneficiary, from engaging in any type of business whatsoever. Furthermore, the AAO 
notes that at the time the petitioner responded to the director's request for evidence in April 2004, seven 
months after the beneficiary received his social security number, the petitioner was still not operational or 
even prepared to commence doing business. All of the company's limited activities to date are prospective in 
nature, and the petitioner has failed to submit evidence that it had generated any income prior to the date of 
filing, or even prior to the director's decision seven months later. The majority of the petitioner's bank 
statements for 2003 reflect no activity, which raises questions as to whether the company is paying rent or 
utilities for its purported office space. Accordingly, it is evident that the petitioner is still engaged in 
preliminary planning and developmental activities that would normally be completed prior to filing a petition 
for a new office. The petitioner has not met the requirements set forth at 8 C.F.R. 9 214.2(1)(14)(ii)(B) and is 
therefore ineligible by regulation for an extension. For this additional reason, the appeal will be dismissed. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.