dismissed L-1A Case: Music Distribution

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. A3042 
Washington, DC 20529 
US. Citizenship 
and immigration 
Services 
FILE: EAC 03 033 52418 Office: VERMONT SERVICE CENTER Ddr: Am 0 1 
IN RE: 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. (j 1 lOl(a)(lS)(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. 
obert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 033 52418 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioning entity was established in 2001, and is described as a music distribution company. The 
petitioner claims to be a branch office of Saregama PLC, located in India. The petitioner claims one 
employee. The petitioner seeks to extend its authorization to employ the beneficiary temporarily in the 
United States as its senior sales manager for a period of three years, at an annual salary of $50,400.00. The 
director determined that the petitioner had failed to establish that: (I) the beneficiary had been or would be 
employed in a primarily managerial or executive capacity; or that (2) the petitioning entity is doing business. 
On appeal, counsel disagrees with the director's decision and submits a brief in opposition thereto. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 9 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)(l)(ii) states, in part: 
Intrucompany transferee means an aIien who, within three years preceding the time of his or her 
application for admission into the United States, has been employed abroad continuously for one 
year by a firm or corporation or other legal entity or parent, branch, affiliate, or subsidiary 
thereof, and who seeks to enter the United States temporarily in order to render his or her 
services to a branch of the same employer or a parent, affiliate, or subsidiary thereof in a capacity 
that is managerial, executive, or involves specialized knowledge. 
The regulation at 8 C.F.R. Q; 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 (I)(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. 
(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. 
EAC 03 033 524 18 
Page 3 
The regulation at 8 C.F.R. 214.2(1)(14)(ii) states that a visa petition under section 101(a)(15)(L) of the Act 
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 (t)(l)(ii)(G) of this section; 
(B) Evidence that the United States entity has been doing business as defined in 
paragraph ( 1 )(l)(ii)(H); 
(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. 
The first issue in this proceeding is whether the petitioner has established that the beneficiary has been or will 
be employed in a primarily managerial or executive capacity. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. Q; 1 lOl(a)(44)(A), provides: 
The term "managerial capacity" means 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 
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 
EAC 03 033 52418 
Page 4 
managerial capacity merely by virtue of the supervisor's 
supervisory duties unless the employees supervised are 
professional. 
Section lOI(a)(44)(B) of the Act, 8 U.S.C. Q; I lOl(a)(44)(B), provides: 
The term "executive capacity" means 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 a letter dated January 11,2002, the petitioner described the beneficiary's job duties in part as: 
[The beneficiary's] responsibilities include overseeing market development and sales and 
marketing operations throughout the east coast and Eastern Canada; supervising the sales 
operations of our distributors to ensure that legitimate Saregama products are available to 
consumers, rather than pirated materials; overseeing product development by proposing new 
products, and promoting U.S. based artists; liase lsicl with the Recording Industry 
Association of America (RIAA) to identify counterfeit Saregama products and remove them 
from the market; oversee promotion of Saregama products to the media (television, radio, and 
newspapers); and, supervise the activities of Saregama's clearing and forwarding agent to 
ensure availability of products. 
Additionally, [the beneficiary] supervises the sales, indenting and receivable management for 
the east coast of the U.S. and Eastern Canada; is working to increase the width and depth of 
our market, primarily for catalogue products of Saregama in the above territories, with special 
focus given to regional and classical products; supervises consolidation and growth of the 
dealer and distribution network in the aforementioned territories, with special attention given 
to the virgin territories in Georgia, Michigan, Indiana and, in the future, Latin America; 
employs attorneys and oversees legal teams to enforce Saregama's rights in cases of piracy 
and copyright infringement; supervises licensing and royalty collections from various bodies 
like ASCAP, and BMI, etc. to increase revenue; proposes compilations, which will benefit 
the U.S. market; supervises distribution agents to ensure they increase retail presence in 
mainline stores like Virgin, Tower, and HMV in the above territories; is responsible for the 
increase and enhancement of our company's brand and product media visibility as well as 
corporate attendance at industry conventions, such as MIDEM; and supervises media 
EAC 03 033 524 18 
Page 5 
planning in an effort to increase awareness of Saregama.com, Hamaracd.com and other e- 
ventures. 
Furthermore, he is responsible for overseeing and managing the expansion of our product 
distribution system via e-commerce sales strategies, including business to business and 
retailing via [the] Internet; establishing sales budgets, targets per distributorldirect accounts, 
and appropriate controls to achieve budgeted expenditures; identifying new sales segments 
and appointing and managing new distributors, wholesalers, and direct accounts; overseeing 
the accumulation and analysis of sales data to formulate sales policies; setting targets and 
adopting appropriate sales programs; managing specific product and sales techniques to train 
sales representatives, distributors, agents, and associates; overseeing promotional and 
advertising campaigns to establish product ranges (CD, DVD & MC); and, representing our 
company in various music industry forums and trade associations to protect label copyrights. 
[The beneficiary] will be directly responsible for the supervision, management and control of 
our New Jersey office, and will supervise and control eight (8) distribution agents in New 
Jersey, New York, Virginia, Florida, and Ontario, Canada. He will thus oversee all aspects of 
Saregama Plc's sales activity in his territory and will act as a management liaison with the 
senior sales manager for the southern United States, West Coast and Internet Operations; the 
logistics and warehousing agent in Chicago, Illinois, and, the distribution agents. [The 
beneficiary] will have the authority and power to recommend the hiring and firing of 
individuals in his department and make such personnel decisions as recommending raises, 
advancements and worklvacation schedules. 
The petitioner submitted a business plan, which described the sales methods overseen by the beneficiary as: 
1. Direct sales to distributors through sales calls. 
2. Using catalogs and instock lists to create sales movements. 
3. Retail level promotions and consumer promotions to create demand pull for our products. 
The petitioner described the staff recruitment process in the business plan in part as: 
[The beneficiary] will manage a team of distribution agents . . . . The distribution agents will 
maintain warehouses and sales staff to further redistribute our products to retailers and shops 
throughout the market. Their remuneration will be entirely on la] commission basis . . . . 
These agents will not be employees of the company but will be independent companies who 
will be appointed in due course. [The beneficiary] will directly supervise each of the 
distribution agents in his territory. 
The petitioner submitted copies of retail distribution contracts entered into by the London office. The 
petitioner also submitted copies of various business cards. The petitioner submitted a copy of the U.S. 
entity's organizational chart, which depicts the beneficiary as senior sales manager, and a receptionist and 
independent distributors as subordinates. 
In response to the director's request for additional evidence on the subject, counsel described the beneficiary's 
duties its: 
EAC 03 033 52418 
Page 6 
Set corporate strategies, goals, and policies for the [U.S. entity's] New Jersey office 
so as to consolidate the existing music business and aggressively diversify into DVD 
sales. . . .6 hours a week. 15% of time spent. 
Manage long-term distributors in the east coast U.S. and Canada. Oversee 
distributors to ensure that they are stocking products in adequate quantities to meet 
demand, as sales are time-sensitive. Make random checks in select stores to find out 
how well Saregama's products are distributed and displayed by distributors. Educate 
distributors on the investment they have made in Saregama products and returns they 
earn from Saregama products. Educated distributors on identifying 
counterfeitlpirated products and legitimate products. All distributors independently 
report to the senior sales manager, 3.5-4 hours a week. 10% of time spent. 
Supervise anti-piracy activities of Indian music industry in the New York region as a 
member of the RiAA (Recording Industry Association of America.) Oversee 
strategies for increasing legitimate music share of Indian music; 3.5-4 hours a week. 
10% of time spent. 
Coordinate with government agencies such as U.S. Customs Service and the Royal 
Canadian Mounted Police (RCMP) in an ongoing effort to help fight music piracy; 2 
hours a week. 5% of time spent. 
Oversee identification of gaps-opportunities for expansion of existing business by 
managing the expansion of the distribution network in unrepresented areas, such as 
Georgia, Massachusetts, and Pennsylvania. Direct expansion into DVD sales and 
marketing throughout the east coast and Eastern Canada. Advise UK corporate office 
on marketing in the east coast; 3-5 hours a week. 10% of time spent. 
Control acquisition of music and DVD rights of Tamil products for American market. 
As the sole manager fluent in the South Indian language of Tamil, advise Saregama 
Plc. on which rights to acquire based on in-depth analysis of factors such as who 
produces, stars in, and directs each film. . . 6 hours a week. 15% of time spent. 
Develop relationships with local ethnic media by overseeing promotion of the 
company on local television channels. Determine which marketing software to 
distribute which provides free promotion for Saregama and free software for the 
media. . . .Manage marketing activities for Saregama products by creating product 
awareness through development of effective marketing campaigns to establish that 
Saregama is synonymous with Indian music; 3.5-4 hours a week. 10% of time spent. 
Create relationships with music publishing bodies such as ASCAP to develop future 
licensing and publishing income from broadcast and public performance of 
Saregama's repertoire; 3.5-4 hours a week. 10%) of time spent. 
Manage warehouse operations in Chicago. . . . Chicago warehouse manager . . . 
reports to senior sales manager on ongoing logistic activities; 2 hours a week. 5% of 
time spent. 
Manage new product development division. Supervise products created by [the! 
Indian product management team in India. Advise on product marketing in U.S. 3.5- 
4 hours a week. 10% of time spent. 
In response to the director's request for a list of individuals employed by the New Jersey office that identifies 
each employee by name and position title, the petitioner stated: 
EAC 03 033 524 18 
Page 7 
Unfortunately, due to the turndown in the economy, the New Jersey office has not hired any 
new employees. Thus, [the U.S. entity] is unable to provide such a list, and cannot submit 
pages from the Forms 941, Employer's Quarterly Tax Return, which fist[s] employees by 
name. Additionally, the New Jersey office has not used independent contractors to perform 
any functions. 
In response to the director's request for additional evidence describing the beneficiary's duties in relation to 
the independent distribution agents, the petitioner stated: 
[The beneficiary] does supervise independent distribution agents. He oversees these 
distribution agents to ensure that they are stocking products in adequate quantities to meet 
demand, as sales are time-sensitive; makes random checks in select stores to find out how 
well Saregama's products are distributed and displayed by distributors; educates distributors 
on the investment they have made in Saregama products and returns they earn from Saregama 
products; and, educates distributors on identifying counterfeitlpirated products and legitimate 
products. . . . Saregama Plc. does not pay remuneration to the distributors as, per their 
contracts, they are entitled to mark-up their prices to the public. 
The director denied the petition after determining that the petitioner had failed to establish that the beneficiary 
had been and would be employed by the U.S. entity primarily in a managerial or executive capacity. The 
director stated that the job duties described were too vague to determine the extent of the beneficiary's daily 
activities. The director noted that the beneficiary's job description and other evidence contained in the record 
demonstrated that he performed all of the functions of the U.S. entity. The director also noted that the 
petitioner indicated, in response to the director's request for additional evidence, that the U.S. entity didn't 
employ any subordinates or utilize any independent contractors. The director stated that although the retail 
distributors independently display and sell music products they are not employees of the U.S. entity. The 
director further stated that it is the beneficiary who is responsible for all promotional activities, site visits, 
sales, marketing, and administrative functions of the business. The director concluded by noting that based 
on the size and nature of the U.S. business, it appeared that the beneficiary would primarily be engaged in the 
day-to-day functions of the operation as the foreign entity's agent, without any subordinate staff to relieve 
him from performing non-managerial duties. 
On appeal, counsel disagrees with the director's decision and asserts that the beneficiary's job duties have 
been set forth in great detail and are not vague or general in nature. Counsel also asserts that the beneficiary 
sets corporate strategies, goals, and policies in dealing with the distributors who he manages. Counsel 
contends that the beneficiary also has the authority to grant payment credit or allow the substitution for 
damaged or mis-sent items, and negotiate credit terms with Pyramid AV (Canada). Counsel further contends 
that the beneficiary sets pricing policy and the amount of deposit to be collected, and makes all other financial 
arrangements with distributors. Counsel also asserts that the beneficiary's primary managerial function 
includes locating, negotiating with, appointing, managing and controlling the work of the retail distributors. 
Counsel contends that the retail distributors qualify as independent contractors. Counsel further contends that 
the beneficiary manages independent contractors, supervises the company's anti-piracy activities, oversees 
expansion effort, supervises and oversees the acquisition of music and DVD rights, develops relationships 
with local ethnic media, serves as a liaison to music publishing bodies and contracts with the organizations to 
gain royalty payments, manages warehouse operations in Chicago, directly supervises the warehouse 
manager, manages and develops marketing strategies for the company's new product development division, 
and oversees the CPA's work. 
EAC 03 033 524 18 
Page 8 
Upon review, counsel's assertions are not persuasive. The evidence submitted is not sufficient to demonstrate 
that the beneficiary has been or will be employed by the New Jersey office primarily in a managerial or 
executive capacity. 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. 5 214.2(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. The definitions of executive and 
managerial capacity have two parts. First, the petitioner must show that the beneficiary performs the high- 
level responsibilities that are specified in the definitions. Second, the petitioner must prove that the 
beneficiary yrirnnrily performs these specified responsibilities and does not spend a majority of his or her 
time on day-to-day functions. Champion Wurld lnc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th 
Cir. July 30, 1991). The record shows that the beneficiary was the sole employee of the U.S. entity at the 
time the petition was filed. There is no evidence that the independent contractors actually perform the day-to- 
day non-qualifying duties of the New Jersey office. Consequently, there is insufficient evidence to show that 
the beneficiary has performed or will perform the high-level responsibilities as defined, or that he has 
performed or will primarily perform those duties rather than spending the mijority of his time performing 
day-to-day functions of the organization. 
The petitioner describes the beneficiary as shipping the product, performing sales functions, writing business 
checks, being involved in the negotiating process, marketing the petitioner's product, etc. Since the 
beneficiary actually distributes the foreign entity's products, negotiates the contracts, markets the petitioner's 
product. and performs administrative duties, he is performing tasks necessary to provide a service or product 
and these duties will not be considered managerial or executive in nature. 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 (Comm. 
19881. 
Even though the petitioner claims that the beneficiary directs and manages the petitioner's sales and marketing 
activities, it does not claim to have anyone on its staff to actually perform the sales and marketing functions. 
Thus, either the beneficiary himself is performing the sales and marketing functions or he does not actually 
manage the sales and marketing functions as claimed by the petitioner. In either case. the AAO is left to 
question the validity of the petitioner's ctairn and the remainder of the beneficiary's claimed duties. 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 uf Ho. 19 l&N Dec. 582, 
591 (BIA 1988). If the beneficiary is performing the sales and marketing functions, the AAO notes that 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 of Scientology 
Internutionul, supra. 
On appeal, counsel contends that the beneficiary is a functional manager in that he manages the sales and 
marketing functions of the organization. The term "function manager" applies generally when a beneficiary 
does not supervise or control the work of a subordinate staff but instead is primarily responsible for managing 
an "essential function" within the organization. See section IOl(a)(44)(A)(ii) of the Act, 
8 U.S.C. 5 1101(a)(44)(A)(ii). If a petitioner claims that the beneficiary is managing an essential function, the 
petitioner must identify the function with specificity, articulate the essential nature of the function, and 
establish the proportion of the beneficiary's daily duties attributed to managing the essential function. In 
addition, the petitioner must provide a comprehensive and detailed description of the beneficiary's daily duties 
EAC 03 033 52418 
Page 9 
demonstrating that the beneficiary manages the function rather than performs the duties relating to the 
function. 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. Mntter of Church 
Scientology Intenzationcrl, supra. In this matter, the petitioner has not provided sufficient evidence to 
establish that the beneficiary manages an essential function. Moreover, it appears from the record that the 
beneficiary performs the functions of the organization rather than managing them. 
Counsel further contends that the beneficiary manages the activities of independent contractors. Contrary to 
counsel's contention, the evidence shows that the independent distributors contracted with the London office 
to distribute the foreign entity's products in the United States and Canada. There is nothing in the contractual 
agreements indicating that the beneficiary has authority to manage the ~etail distributors or their businesses. 
Furthermore, the petitioner indicated that the beneficiary devotes only ten percent of his time managing 
distributors. Counsel contends that the beneficiary manages a CPA who is responsible for preparing tax 
records for the New Jersey office. Contrary to counsel's assertion, there has been no evidence submitted to 
show whether the contractor will be retained by the New Jersey office on a full-time or part-time as needed 
basis. Additionally, the petitioner has not explained how the services of the independent contractors will 
obviate the need for the beneficiary to primarily perform non-qualifying duties. Without documentary 
evidence to support its statements. the petitioner does not wet its burden of proof in these proceedings. 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comrn. 1972). 
The second issue in this proceeding is whether there has been sufficient evidence submitted to establish that 
the U.S, entity is doing business. 
The regulations at 8 C.F.R. 9 214.2(1)(l)(ii)(G) state: 
Qun1iJ)ing organizntion means a United States or foreign firm, corporation, or other legal 
entity which: 
(1) Meets exactly one of the qualifying relationships specified in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (I)(l)(ii) of this section; 
(2) Is or will be doing business (engaging in international trade is not required) as an 
employer in the United States and in at least one other country directly or through a 
parent, branch, affiliate, or subsidiary for the duration of the alien's stay in the United 
States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
The regulations at 8 C.F.R. 9 214.2(1)(l)(ii)(H) state: 
Doing business means the regular, systematic, and continuous provision of goods and/or 
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. 
The record shows that the U.S. entity is a branch office of the foreign company. Based upon evidence 
presented in the record, the foreign entity is engaged in manufacturing and marketing Indian music, including 
DVD, cassettes, and other media instruments. The foreign company's products are sold through its London 
EAC 03 033 52418 
Page 10 
office and subsequently shipped to the United States where they are stored in its Chicago warehouse for 
distribution. From the Chicago warehouse the items are shipped to retail establishments for sale. 
In a letter dated November 12, 2002, counsel stated that the London-based office filed the petition on behalf 
of the beneficiary to extend his employment as senior sales manager of his employer's New Jersey branch 
office. As evidence that the U.S. entity is doing business, the petitioner submitted copies of the New Jersey 
office's bank account records and business plan. The petitioner also submitted copies of retait distributor's 
contracts, proof of television advertising, janitorial bills, and the New Jersey executive's earnings statement. 
The petitioner further submitted a copy of a New Jersey state filing certification for the New Jersey office, 
dated November I. 200 1. 
The director determined that insufficient evidence had been submitted to determine whether the New Jersey 
office has been doing business and subsequently requested additional evidence. The director specifically 
requested: 
Submit additional evidence to show the Ievel of business activity currently being conducted 
by your New Jersey office. Evidence to submit should include: 
A copy of Saregama I1 Inc.'s business tax return for 2001, including all schedules, if one was 
filed. 
An audited or reviewed financial statement for Saregama I1 Inc. covering the last six months. 
A representative sample of business activities for the New Jersey office since incorporation 
such as copies of marketing brochures, purchase orders, contracts, invoices, occupational 
licenses, advertisements etc. 
In response to the director's request for additional evidence on the subject, the petitioner submitted copies of 
the New Jersey office's IRS Form 1120-F, U.S. Income Tax Return of a Foreign Corporation for the year 
2001, a financial statement, advertisements, and business invoices. The petitioner also submitted copies of 
retail distributor's contracts entered into by the foreign entity's London office. 
1n a letter of response, dated February 13, 2003, the petitioner stated in part: 
The RFE requests additional evidence to show the level of business activity currently being 
conducted by the New Jersey office. The office is, in fact, engaging in setting up 
infrastructure, appointing dealer network, anti piracy activity-with the objective of starting 
direct commercial activity. . . . 
Exhibit "F": a financial statement from Saregama PLC's CPA covering the last six months, 
showing profit and loss generated by the US operations. Please note that an audited or 
reviewed financial statement specifically for the New Jersey office is not available as all sales 
are generated from the UK office. . . . During 2002-03, the New Jersey office has been in the 
process of setting up its operations by appointing distribution agents, conducting anti-piracy 
activity, and setting up warehouse facilities. As a result, all sales transactions are being 
EAC 03 033 52418 
Page 11 
carried out by the UK office in London. Although the New Jersey office posted paper losses 
in the last year, those are due to set-up costs, no infrastructure, and the resultant higher costs 
of sales. 
The director denied the petition stating that the petitioner had failed to demonstrate that the New Jersey office 
was engaged in the regular, systematic or continuous provision of goods and/or services. The director noted 
that the general manager of the foreign entity, in response to the Request For Evidence, stated in part: "the 
New Jersey office has been in the process of setting up its operations" and that "all sales transactions are 
being carried out by the UK office." The director further noted that the general manager indicated that the 
New Jersey office was not conducting business, and for that reason was not submitting any business tax 
returns. The director noted the financial statement submitted by the petitioner showed combined business 
activities of the New Jersey and Texas branch offices, and did not clearly show business activity on the part of 
the New Jersey branch. The director also noted that the London office generated all sales invoices submitted. 
The director concludes by stating that based upon the record, it appeared that the beneficiary was acting as an 
"agent" for the foreign entity, in that he promotes the company's products, makes follow-up visits with 
distributors, represents the foreign company at various trade associations and events, and performs any 
necessary marketing or administrative tasks required by the foreign company. 
On appeal, counsel disagrees with the director's decision and asserts that the evidence clearly demonstrates 
that the New Jersey office is engaged in the regular, systematic or continuous provision of good and/or 
services. Counsel further contends that the New Jersey office has been doing business since January 2002. 
Counsel quotes from a letter written by the foreign entity's general manager and submitted on appeal, to 
substantiate his claim. As evidence of the New Jersey office doing business, the petitioner submitted business 
policy documents; set-up and expansion plans; contracts between the New Jersey office and independent 
contractors; correspondence between the New Jersey office and independent contractors; letters from 
independent contractors; business cards of independent contractors; a contract between the New Jersey office 
and a CPA firm; sample invoices; wire transfers; and issued checks. 
The regulation at 8 C.F.R. 3 214.2(1)(3)(v)(C) allows the intended United States operation one year within the 
date of approval of the petition to establish the new office. At the time the petitioner seeks an extension of the 
new office petition. the regulations at 8 C.F.R. $ 214.2(1)(14)(ii)(B) require the petitioner to demonstrate that 
it has been doing business for the previous year. The term "doing business" is defined in the regulations as 
"the regular, systematic, and continuous provision of goods and/or 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." 8 C.F.R. 4 214.2(1)(l)(ii). There is no provision in 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, there has been insufficient evidence submitted to show 
that the New Jersey office has been doing business. The evidence initially submitted by the petitioner 
demonstrated that independent distributors entered into contracts with the foreign entity's London office, not 
the New Jersey office. The evidence also showed that the financial statements submitted failed to distinguish 
the financial status of the New Jersey office from that of the Texas office. The invoices submitted 
demonstrate business transactions conducted by the London office, Texas office, and Chicago office. The 
general manager of the foreign entity admits that the New Jersey office is still in its developmental stages and 
that as a result the London office had carried out all business transactions. The general manager also notes 
that as a result of a downturn in the music industry and the events of 911 1 it had to "temporarily postpone 
additional employment plans." The general manager stated in part: "the planned setup and expansion of the 
New Jersey office's infrastructure was postponed until turnover and margins returned to normal and the 
EAC 03 033 52418 
Page 12 
branch offices were no longer reliant on the shared infrastructure and personnel of their U.K. parent." The 
New Jersey office's IRS Form 1120-F, U.S. Income Tax Return of a Foreign Corporation, for the year 2001 
shows no income from sales for 2001. The petitioner failed to submit copies of the New Jersey office's 
financial statement covering the last six months of business as requested by the director. 
On appeal, the petitioner submitted copies of contracts between the New Jersey office and independent 
contractors; correspondence between the New Jersey office and independent contractors; sample invoices; 
wire transfers; and company issued checks. The invoice dates are not complete. The other business 
documents including the correspondence, independent contractor agreements, and wire transfers are dated 
from November of 2002 through 2003. Although the petitioner submitted copies of two canceled checks 
dated July and September of 2002, this evidence alone is insufficient to demonstrate that the entity was doing 
business. The record as presently constituted does not demonstrate that the New Jersey office was engaged in 
the regular, systematic, and continuous provision of goods and/or services during the period in question. For 
this additional reason, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought rests solely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.