dismissed L-1A Case: Manufacturing

identifyingdatadeletedto
preventclearlyunwarranted
mv.ion ofpersonalprivaey
PUBLICCOpy
u.s.Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and lnunigration
Services
File: SRC 06 014 50672 Office: TEXAS SERVICE CENTER Date: 'MIl .,m
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:
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.
jRObert P. Wiemann,
tbAdministrative Appeals Office
www.uscis.gov
SRC 06 014 50672
Page 3
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 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 is a corporation organized in the State of Florida that claims to be
engaged in the manufacture and sale of wood shutters. The petitioner states that it is a subsidiary of Lanco
Industries Limited, located in Jamaica. The petitioner seeks to open a new office in the United States and has
requested that the beneficiary be granted a one-year period in L-IA classification to serve as its marketing
manager and chief executive officer.
The director denied the petition on December 14, 2005, concluding that the petitioner did not establish that
the United States company has secured sufficient physical premises to house the new office.
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 for the petitioner indicates that the
petitioner entered into a lease agreement for warehouse space on December 23, 2005. In support of the
appeal, counsel submits a copy of the executed lease agreement, evidence of a security deposit and rent paid
by the petitioner, an occupational license for the newly-leased premises, and photographs of the leased
warehouse space. Neither counsel nor the petitioner objects to the denial of the petition, nor do they specify
any erroneous conclusions of law or statements of fact on the part of the director.
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.
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. While the
AAO acknowledges receipt of an adequate lease agreement on appeal, 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 ofMichelin Tire Corp., 17 I&N
Dec. 248 (Reg. Comm. 1978). The evidence submitted on appeal is not probative of the petitioner's eligibility
as of the date of filing and therefore will not be given any weight in this proceeding.
At the time of filing the petition on October 19, 2005, the petitioner submitted a copy of an "HQ Global
Workplaces Virtual Office Program Service Agreement." Under the terms of the agreement, the petitioner
was granted the nonexclusive right to two hours of use of private office space, full-time receptionist service,
mail receiving and forwarding services, and a dedicated inbound dial telephone number. The service
agreement was valid from November 1, 2004 through October 31, 2005. The petitioner's business plan
referenced the company's intention to secure 3000 square feet of warehouse space for the receipt and
handling of products exported from its foreign affiliate.
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On October 31, 2005, the director requested that the petitioner submit "documentary evidence that the
petitioner has conducted sufficient physical premises to conduct the stated business," specifically, a current,
valid, signed lease agreement. In response, the petitioner submitted evidence that it had signed a "virtual
office" agreement with HQ Global, valid fromAugust 8, 2005 through August 31, 2006. Pursuant to the
terms of the agreement, the petitioner would receive telephone answering services, fax and mail handling, use
of the address, and 16 hours of office usage per month. Counsel for the petitioner noted that the petitioner
would commence the "distribution and retail aspects of the business" after six months, and would obtain
3,000 square feet of warehouse space at that time.
Based upon this documentation, the AAO concurs with the director's finding that the petitioner did not submit
sufficient evidence that it had acquired sufficient physical premises to operate the new office as of the date of
filing, as required by 8 C.F.R. § 214.2(1)(v)(A). Although the petitioner has been given a suite number in an
office building, there is no indication that an office had been assigned for the petitioner's regular and exclusive
use. Accordingly, the petitioner has not established that it has secured adequately physical premises to house
an import and distribution company. The "virtual office" agreement does not satisfy the petitioner's burden to
show that it has obtained sufficient physical premises from which to operate its intended business and appears
to only grant the petitioner the right to use an office for several hours per week. The petitioner has not
submitted evidence on appeal to overcome the director's decision.
Regulations at 8 C.F.R. § 103.3(a)(1)(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.
Inasmuch as the petitioner has failed to identify specifically an erroneous conclusion of law or a statement of
fact in this proceeding; the appeal will be summarily dismissed.
Beyond the decision of the director, the record as presently constituted does not contain sufficient evidence of
a qualifying relationship between the United States and foreign entities, as required by 8 C.F.R. §
214.2(1)(3)(i). The petitioner stated on Form 1-129 that the U.S. entity is a wholly owned subsidiary on the
foreign entity, Lanco Industries, Ltd. In a July 1, 2005 letter submitted in support of the petition, the
petitioner stated that the two companies are affiliates, and noted that the beneficiary owns a 60 percent
interest in each company. The petitioner submitted the foreign entity's December 17, 1991 memorandum of
association, which identifies the beneficiary as one of three shareholders, and indicates that he owns 100
shares of the company, or 50 percent of the shares issued as of that date. No other evidence of the foreign
entity's current ownership was submitted. 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
~fHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
With respect to the ownership of the u.s. company, the petitioner submitted: its articles of incorporation,
indicating that the company is authorized to issue 1,000 shares of common stock; and its stock certificate
number one, which was blank. The petitioner has not submitted any documentary evidence to establish the
ownership and control of the U.S. entity. Going on record without supporting documentary evidence is not
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec.
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158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm.
1972».
Based on the inconsistent and incomplete evidence, the petitioner has not established that the U.S. and foreign
companies are affiliates, as there is insufficient evidence that they are owned and controlled by the same
parent or individual or by the same group of Individuals, with each individual owning and controlling
approximately the same share or proportion of each entity. 8 C.F.R. § 214.2(1)(ii)(L). Nor has the petitioner
established the foreign entity and the u.s. entity have the claimed parent-subsidiary relationship. For this
additional reason, the petition may not be approved.
Another issue not addressed by the director is whether the petitioner established that the beneficiary would be
employed in a primarily managerial or executive capacity within one year of approval of the petitioner, as
required by 8 C.F.R. 214.2(I)(3)(v)(C). The petitioner has provided only a vague and nonspecific description
of the beneficiary's proposed duties that fails to identify what tasks he will perform on a day-to-day basis. For
example, the petitioner stated that the beneficiary's duties will include "development and implementation of
goals, objective policies and procedures," developing and implementing "organizational and program plans,"
and performing "a wide range of difficult to complex administrative activities related to finances and
accounting, marketing, staffing and personnel operations" and "discretionary activities." Specifics are clearly
an important indication of whether a beneficiary's duties are primarily executive or managerial in nature,
otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros. Co.,
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990).
Furthermore, several of the beneficiary's duties do not clearly fall under traditional managerial or executive
duties as defined in the statute. See sections 101(a)(44)(A) and (B) of the Act; 8 U.S.C. §§ 1101(a)(44)(A)
and (B). For instance the beneficiary is described as making contact with service providers and contractors;
preparing reports, correspondence, memos, records and forms; evaluating activities of competitive firms;
interacting with customers; preparing presentations in support of the marketing functions; and monitoring and
evaluating accounting systems. These duties suggest that the beneficiary will devote some portion of his time
to routine administrative, operational, market research, marketing, customer service and finance functions.
Based on the current record, the AAO is unable to determine whether the claimed managerial duties constitute
the majority of the beneficiary's duties, or whether the beneficiary will primarily perform non-managerial
administrative or operational duties. The petitioner's description of the beneficiary's job duties does not
establish what proportion of the beneficiary's duties is managerial in nature, and what proportion is actually
non-managerial. See Republic ofTranskei v. INS, 923 F.2d 175,177 (D.C. Cir. 1991).
Finally, the petitioner's proposed staffmg structure is not persuasive in establishing that the company will
develop to a point where it can support the beneficiary in a primarily managerial or executive position within
one year. The petitioner indicates that it will hire a marketing/sales manager, a warehouse worker/installation
supervisor, a shutter installer and a "trade helper" during the first year of operation. Notwithstanding the
employees' job titles, the record does not establish that any of the beneficiary's subordinates will be
employed in a managerial or supervisory position, or that any of them will serve in a professional capacity.
See § 101(a)(44)(A)(ii) of the Act. Nor does it appear that the petitioner would have sufficient employees to
relieve the beneficiary from performing the company's day-to-day administrative, purchasing, import-related
and financial functions. It is reasonable to conclude, and has not been shown otherwise, that the beneficiary
will continue to perform these non-qualifying tasks until the petitioner is capable of hiring additional staff. An
employee who "primarily" performs the tasks necessary to produce a product or to provide services is not
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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 Int'l., 19 I&N Dec. 593, 604 (Comm, 1988). For this additional reason,
the petition can not 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), aff'd. 345 F.3d 683
(9th eire 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 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. § 1361. Here, that burden has
not been met.
ORDER: The appeal is summarily dismissed.