dismissed L-1A Case: Package Design And Import/Wholesale

identifying uuc= , .+.,r-ui LW 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
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U.S. Department of Homeland Security 
I 20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: EAC 03 048 52954 Office: VERMONT SERVICE CENTER Date: 1 ]1 2~ 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimrnigrant Worker Pursuant to Section 10 1 (a)( 15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. 8 1 101(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. 
obert P. Wiemann, Director 
~dministratiue Appeals Office 
EAC 03 048 52954 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner, Kovicom USA, LLC, claims to be an affiliate of Kovicom Co., Ltd., located in 
Korea. The petitioner plans to operate a package design, confectionary wholesale, and import 
business. The U.S. entity was incorporated in the State of Massachusetts on October 30, 2002. 
The petitioner seeks to hire the beneficiary as a new employee to open its U.S. office. 
Accordingly, on December 3, 2002, the U.S. entity petitioned Citizenship and Immigration 
Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L-1A) 
pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
$ 1101(a)(15)(L), as an executive or manager for one year. The petitioner endeavors to employ 
the beneficiary as the U.S. entity's president. 
On February 13, 2003, the director denied the petition. The director determined that the petitioner 
failed to establish that it had 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, the petitioner's counsel asserts that 
the petitioner previously provided sufficient evidence that it had secured physical premises to 
house the new office. Counsel submits additional evidence in support of this assertion. 
To establish L-1 eligibility under section 101(a)(15)(L) of the Act, the petitioner must meet 
certain criteria. Specifically, within three years preceding the beneficiary's application for 
admission into the United States, 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. Furthermore, 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. 
Pursuant to 8 C.F.R. 5 214.2(1)(3), 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 with the three years preceding 
the filing of the petition. 
EAC 03 048 52954 
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 hider 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. 
Pursuant to 8 C.F.R. 5 214.2(1)(3)(~), 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 involved executive or managerial 
authority over the new operation; 
(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 (I)(l)(ii)(B) or (C) of this section, supported by information 
regarding: 
(1) The proposed nature of the office describing the scope of the 
entity, its organizational structure, and its financial goals; 
(2) The size of the United States investment and the financial ability 
of the foreign entity to remunerate the beneficiary and to commence 
doing business in the United States; and 
(3) The organizational structure of the foreign entity. 
The issue in this proceeding is whether the petitioner has secured sufficient physical premises to 
house the new office pursuant to 8 C.F.R. 3 214.2(1)(3)(v)(A). 
On December 3, 2002, the petitioner filed the Form 1-129. In the initial filing, the petitioner 
submitted a copy of an agreement between the petitioner and HQ Global Workplaces signed and 
dated on October 24, 2002. This license agreement indicated that the petitioner received "business 
access: identity plus" for three months, at a fixed $175 fee for phone and mail services starting 
November 1, 2002 with a handwritten note stating "early move in of 10124102 TBS" written to the 
right of the typed starting date. In the space indicating the number of offices, "N/A" was written. The 
term and conditions stated, "as a client you have a license to use the office assigned to you. You also 
have shared use of common areas in the center." The buildings's address is indicated on the 
agreement as Framingham Center, 945 Concord Street, Framingham, Massachusetts 0 170 1. 
On December 10, 2002, the director requested that the petitioner submit additional evidence 
regarding its physical premises. The director noted that the agreement that the petitioner submitted 
EAC 03 048 52954 
Page 4 
was for "phone and mail services only, and did not include office space." The director requested a 
copy of the lease or deed to the petitioner's business premises and photographs of the interior and 
exterior of the premises. 
In response, the petitioner submitted a January 23,2003 letter signed by counsel. The petitioner did 
not submit any photographs of the premises. In the letter, counsel asserted: 
[The petitioner] is in the begmning stage of starting up the U.S. operation, therefore 
[the petitioner] has made temporary arrangements with HQ Global Workplaces to 
provide phone and mail services until an office is leased directly fiom HQ Global 
Workplaces. A fully operational office will be established within the first quarter of 
2003. Such rental of an office is contingent upon securing a visa that will allow the 
company to pursue its business plan after the principal of the U.S. operation obtains 
proper legal status. HQ Global Workplaces is a reputable national company that 
leases out office space for start-up companies. (www.ha.com) HQ Global 
Workplace[s] has made a full lease proposal which will be executed as soon as an L 
visa is obtained. 
On February 13, 2003, the director denied the petition. The director determined that the 
petitioner failed to establish that it had secured sufficient physical premises to house the new 
office. The director found that there was no evidence that any physical space had been secured. 
On appeal, counsel asserts, "On October 24, 2002, [the petitioner] entered into an agreement for 
an office space with a full-time office receptionist, voice mail, call forwarding services, and 
access to HQ's administrative support staff.'' Counsel resubmits a copy of the first agreement, 
signed on October 24, 2002 and asserts that this agreement included "two hours of private usage 
per month, and any additional usage would be $25 per hour." In addition, counsel submits a 
second and new agreement between the petitioner and HQ Global Workplaces, signed on 
February 26, 2003, to secure one office, number 119, at a fee of $850 per month, for a term of six 
months commencing on February 24,2003. 
On review, the petitioner has failed to establish that it had secured sufficient physical premises to 
house the ofice as required by the regulations at 8 C.F.R. 3 214.2(1)(3)(v)(A). Initially, the 
petitioner submitted a copy of an agreement between the petitioner and HQ Global Workplaces 
signed and dated on October 24, 2002. This license agreement indicated that the petitioner received 
"business access: identity plus" for three months, at a fixed $175 fee for phone and mail services 
starting November 1, 2002. There is also a handwritten note on the agreement stating that there was 
an "early move in of 10/24/02 TBS." Additionally, in the space indicating the number of offices, 
"NfA" was written. Therefore, there was no assigned office number and no indication that the 
petitioner received the "two hours of private usage per month" and if needed, the "additional 
usage" at "$25 per hour" as claimed by counsel on appeal. There were also no photographs of the 
interior and exterior of the premises that clearly depicted the organization and operation of the 
entity as requested by the director. 
In addition, although the petitioner resubmits the October 24, 2002 agreement on appeal, this 
agreement appears to have been altered. This agreement, unlike the one submitted previously, has 
EAC 03 048 52954 
Page 5 
a hand written statement that indicates "2 hrs. private office usage per month." Although this hand 
written statement appears on the agreement submitted on appeal, the number of offices indicated is 
consistent with the previous agreement which stated 'WIA." The language of the agreement's terms 
and conditions clearly indicated that, "as a client" the petitioner had "a license to use the office 
assigned" to it. However, there is no indication that an office had been assigned for the petitioner's 
use. A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to CIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. 
Cornrn. 1998). 
The AAO notes that the Form 1-129 did not indicate that the beneficiary will be working at this office 
location. This center is located at Frarningham Center, 945 Concord Street, Frarningham, 
Massachusetts 01701. The Form 1-129 and a supporting letter dated November 12, 2002 indicated 
that the petitioner's "principal ofice is located at 5-2 Kingson Lane, Medway, Massachusetts." 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 of Ho, 19 I&N Dec. 582,591-92 (BIA 1988). 
Moreover, the petitioner's own admissions further substantiate that it had not secured a sufficient 
physical premises to house the new office. The petitioner asserted in its January 23, 2003 response 
to the director's request for additional evidence that it "has made temporary arrangements with HQ 
Global Workplaces to provide phone and mail services until an office is leased directly fiom HQ 
Global Workplaces" and "HQ Global Workplace[s] has made a full lease proposal which will be 
executed as soon as an L visa is obtained." These assertions clearly indicated that the petitioner had 
arranged only an unexecuted "hll lease proposal" and had not established that it secured sufficient 
physical premises to operate its business. Even though the enterprise is in a preliminary stage of 
organizational development, the petitioner is not relieved from meeting the statutory 
requirements. 
Further, on appeal, the petitioner submits a new lease describing the premises secured for the U.S. 
entity's operations. However, 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. Comrn. 1978). Therefore, at the time of filing on December 3, 
2002, the petitioner did not have sufficient physical premises to house the new office. 
The petitioner also failed to establish sufficient physical premises to house the new office at the 
time of the director's request for additional information on December 10, 2002. 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. 8 C.F.R. $ 103.2(b)(8) and 
(12). The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the petition. 8 C.F.R. 5 103.2@)(14). As in the present matter, where the 
petitioner has been put on notice of a deficiency in the evidence, and has been given an 
opportunity to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should 
EAC 03 048 52954 
Page 6 
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. 
After careful consideration of the evidence, the petitioner did not establish that it had secured 
sufficient physical premises to house the new office. For this reason, the appeal will be 
dismissed. 
The AAO notes that the petitioner submitted numerous documents that were translated. As 
required by the regulations at 8 C.F.R. 5 103.2(b)(3), the petitioner must submit certified 
translations of these documents which the translator certified as complete and accurate, and by 
the translator's certification that he or she is competent to have translated from the foreign 
language into English. See id. However, the petitioner did not fully comply with the regulations. 
For example, a document "Certificate of the Financial Statements" indicated, "We hereby certify 
that attached financial statements are authentic copies of original statement filed with this office 
ones." The document indicated an issue date of June 5, 2001, the letter IS/, the words "Affirmed 
and Sealed," and the certified public account's name. There is no indication that the accountant is 
competent to translate from the foreign language into English. Accordingly, the evidence is not 
probative and will not be accorded any weight in this proceeding. Because the petitioner failed to 
submit certified translations of the foreign entity's financial documents and ownership records, 
the record contains insufficient evidence of the financial ability of the foreign entity to 
remunerate the beneficiary and commence doing business in the United States. See 8 C.F.R. 
9 214.2(1)(3)(v)(C)(2). In addition, the uncertified translations of the foreign entity's articles of 
incorporation are insufficient to establish that the petitioner has a qualifying relationship with the 
beneficiary's current employer as required by 8 C.F.R. 5 214.2(l)(ii)(G). For these additional 
reasons, the petition may not be approved. 
Beyond the decision of the director, the AAO finds that the petitioner failed to establish that the 
beneficiary has been employed in a qualifying managerial or executive capacity abroad as defined 
at section 101(a)(44) of the Act. As previously stated, to establish L-1 eligibility under section 
101(a)(15)(L) of the Act, the petitioner must submit evidence that within three years preceding 
the beneficiary's application for admission into the United States, the foreign organization 
employed the beneficiary in a qualifying managerial or executive capacity, or in a specialized 
knowledge capacity, for one continuous year. Id. In a November 12, 2002 letter, the petitioner 
stated that the beneficiary "served in an executive and managerial capacity for both companies' 
international and business projects." No other description of the beneficiary's duties with the 
foreign entity was submitted. 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 (Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg. Cornrn. 1972)). Conclusory assertions regarding the beneficiary's employment capacity 
are not sufficient. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), affd, 905 F. 2d 41 (2d. Cir. 1990). The regulations require the petitioner to submit a 
detailed description of the beneficiary's duties. See 8 C.F.R. 5 214.2(i)(3). The petitioner has not 
established that the beneficiary has been employed in a primarily managerial or executive 
capacity abroad. For this additional reason, the petition may not be approved. 
EAC 03 048 52954 
Page 7 
Although not explicitly addressed in the decision, the record contains no documentation to 
persuade the AAO that the beneficiary has been or would be employed in a managerial or 
executive capacity as defined at section 10 1(a)(44) of the Act, 8 U.S.C. 3 1 10 l(a)(44), or that the 
petitioner would support such a position within one year of approval of the petition. As the 
appeal will be dismissed on the grounds discussed above, this issue need not be examined further. 
Further, beyond the decision of the director, the petitioner indicated that the beneficiary is the 
"100% owner of [the petitioner] and the majority owner of [the foreign entity]." If this fact is 
established, it remains to be determined that the beneficiary's services are for a temporary period. 
The regulation at 8 C.F.R. 3 214.2(1)(3)(vii) states that if the beneficiary is an owner or major 
stockholder of the company, the petition must be accompanied by evidence that the beneficiary's 
services are to be used for a temporary period and that the beneficiary will be transferred to an 
assignment abroad upon the completion of the temporary services in the United States. In the 
absence of persuasive evidence, it cannot be concluded that the beneficiary's services are to be 
used temporarily or that he will be transferred to an assignment abroad upon completion of his 
services in the United States. Generally, the petitioner for an L-1 nonimmigrant classification 
need submit only a simple statement of facts and a listing of dates to demonstrate the intent to 
employ the beneficiary in the United States temporarily. However, where the beneficiary is 
claimed to be the owner or a major stockholder of the petitioning company, a greater degree of 
proof is required. Matter of Isovic, 18 I&N Dec. 361 (Cornm. 1982); see also 8 C.F.R. 8 
214.2(1)(3)(vii). As the appeal will be.dismissed on the grounds discussed, these issues need not 
be addressed further. 
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 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), afd. 3 45 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). 
In visa petition proceedings, the burden of proving eligbility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has not 
been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.