dismissed L-1A Case: Pipe Lining

identifying data deleted to
prevent clearly unwarr~ted
invasionofpersoaalpnvacy
PUBLICCoP'!
U.S. Department of Ilomeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services ~
7
File: WAC 06 034 53600 Office: CALIFORNIA SERVICE CENTER Date: ~R 0 5 .,
lNRE: 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:
SELF-REPRESENTED
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
RO~~'
Administrative Appeals Office
www.uscis.gov
WAC 06 034 53600
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal.
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president 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. § 1l01(a)(15)(L). The petitioner, a California corporation, claims to be engaged in the
installation of pipe lining for residential and commercial buildings. The petitioner states that it is an affiliate
of Rikos GmbH, located in Mannheim, Germany. The beneficiary was initially granted a one-year period in
L-IA classification in order to open a new office in the United States, and the petitioner now seeks to employ
the beneficiary for three additional years.
The director denied the petition on March 21,2006, concluding that the petitioner had not established: (I) that
the beneficiary would be employed in the United States in a primarily managerial or executive capacity under
the extended petition; or (2) that the U.S. company was doing business.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, the petitioner asserts that the beneficiary will be
employed in the United States in a "managerial, executive capacity that involves specialized knowledge."
The petitioner discusses at length its business plans in the United States and obstacles encountered during the
first year of operations, and states that, as of April 2006, the petitioner is generating revenue through
provision of training services to a U.S. client. The petitioner asserts that it anticipated having three years in
which to develop the U.S. company, and that in fact, it had only ten months from the date the beneficiary was
granted his L-IA visa at the U.S. Consulate in Frankfurt. The petitioner submits a brief and additional
evidence in support of the appeal.
Upon review and for the reasons discussed herein, the petitioner's assertions are not persuasive. The L-I visa
classification is not an entrepreneurial visa or intended for nonfunctional start-up companies. The regulation
at 8 C.F.R. § 214.2(l)(3)(v)(C) allows the intended United States operation one year within the date of
approval of a new office petition to support an executive or managerial position. The only provision that
allows for the extension of a "new office" visa petition requires the petitioner to demonstrate that it is staffed
and has been "doing business" in a regular, systematic, and continuous manner for the previous year. 8
C.F.R. § 214.2(l)(14)(ii). Here, the petitioner has failed to demonstrate that the U.S. company has expanded
to the point where it can support the beneficiary in a primarily managerial or executive capacity. Further, the
petitioner's claim that the U.S. company has been doing business is not supported by sufficient documentary
evidence. As the petitioner has failed to establish these essential elements of eligibility for the extension of its
"new office" petition, the appeal will be dismissed.
To establish eligibility for the L-I 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
WAC 06 034 53600
Page 3
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or
specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ the
alien are qualifying organizations as defined in paragraph (1)(I)(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 him/her to perform the intended
services in the United States; however, the work in the United States need not be the
same work which the alien performed abroad.
The regulation at 8 C.F.R. § 214.2(1)(14)(ii) also provides that a visa petition, which involved the opening ofa
new office, may be extended by filing a new Form 1-129, accompanied ~y the following:
(A) Evidence that the United States and foreign entities are still qualifying organizations
as defined in paragraph (1)(1)(ii)(G) ofthis section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (1)(1)(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.
The first issue in this proceeding is whether the petitioner established that the beneficiary will be employed in
a primarily managerial or executive capacity under the extended petition.
WAC 06 034 53600
Page 4
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), defines the tenn "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. § 1l01(a)(44)(B), defines the term "executive capacity" 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.
The nonimmigrant petition was filed on November 25, 2005. On Fonn I-129, the petitioner stated that as
president of the company, the beneficiary would act as "executive/chief engineer" with responsibility for
"technology transfer and employee training, project supervision, company management." The petitioner
stated that it had two employees, including the beneficiary and the other claimed owner of the company. The
petitioner did not submit any of the initial evidence required in support of an L-l extension involving a new
office pursuant to the regulation at 8 C.F.R. § 214.2(l)(14)(ii).
Accordingly, on December 29,2005, the director requested additional evidence to establish that the petitioner
would employ the beneficiary in a managerial or executive capacity. Specifically, the director instructed the
WAC 06 03453600
Page 5
petttloner to submit: (I) a copy of the U.S. company's organizational chart, clearly identifying the
beneficiary's position and listing all employees under the beneficiary's supervision by name and job title; (2) a
brief description of job duties, educational level, and annual salaries/wages for all employees under the
beneficiary's supervision; (3) copies of the U.S. company's IRS Forms 941, Employer's Quarterly Federal Tax
Return, for the last four quarters; (4) copies of the U.S. company's payroll summary, Forms W-2 and W-3
evidencing wages paid to employees in 2004; and (5) copies of the company's California Forms DE-6,
Quarterly Wage and Withholding Report, for the last four quarters. The director also provided the statutory
definition for executive capacity, and requested that the petitioner provide the following evidence in support
of its claim that the beneficiary would serve in such a capacity: a list of specific goals and policies the
beneficiary established; a list of the specific discretionary decisions the beneficiary executed over the last six
months; and, a specific day-to-day description of the duties the beneficiary has performed over the last six
months.
In a response dated February 22, 2006, the petitioner stated that, since arriving in the United States, the
beneficiary "was active in transferring, purchasing, manufacturing and setting up all the equipment necessary
to perform the epoxy lining of potable water pipes in residential, commercial and industrial buildings," and
"devoted much of his time to developing tooling and adjustments to procedures to overcome technical
problems." The petitioner further stated that the beneficiary is in the process of studying to obtain a
California plumber's license, the possession of which is required in order to obtain business insurance. In
addition, the petitioner indicated that the company has an agreement with a plumbing company who will
purchase the petitioner's epoxy product and receive training and ongoing technical assistance from the
beneficiary once they receive the equipment. The petitioner noted that upon renewal of the beneficiary's visa,
the company intends to pursue the sale of its proprietary technology and training services as its major source
of revenue in 2006.
In response to the director's request for evidence regarding the staffmg of the company, the petitioner noted
that the company's two owners, including the beneficiary, "have worked as necessary throughout 2005 ...
without receiving compensation for these activities since the company generated no revenue." The petitioner
noted that the company's other owner, Frank Sanderson, serves as secretary, with responsibility for general
administration and marketing activities. Finally, the petitioner noted that the beneficiary made the decision to
file an L-IA visa petition on behalf of his son so that he could "assist in evaluating and refining new
procedures for the Southern California market. .. and train new employees." The petitioner indicated that the
petition process for the beneficiary's son took longer than expected and "delayed plans for operating a
business with adequate trained staff."
The director denied the petition on March 21, 2006, concluding that the petitioner had failed to establish that
the beneficiary would be employed in a primarily managerial or executive capacity under the extended
petition. The director acknowledged the petitioner's explanation regarding its inability to provide the
requested organizational chart, payroll records and detailed description of the beneficiary's job duties, but
noted that petitioner must establish eligibility as of the date the petition was filed. The director determined
that since the petitioner had no other employees, "the beneficiary has to perform all the business activities of
the petitioner including the non-qualifying duties." The director found insufficient evidence to establish that
the beneficiary's daily activities or the specific scope and nature of the beneficiary's activities will be
WAC 06 034 53600
Page 6
managerial or executive, as he will have no subordinate staff of professional, managerial, or supervisory
personnel who would relieve him from performing non-qualifying duties.
On appeal, the petitioner asserts that the beneficiary "is employed in a managerial, executive capacity that
involves specialized knowledge." The petitioner asserts "information provided by USCIS indicates that an L-I
visa application is associated with a three-year term," and noted that such a timeframe is consistent with the
petitioner's expectations for establishing a viable epoxy pipe lining company. With respect to the
beneficiary's duties the petitioner notes that during the previous year, the beneficiary developed and tested
procedures for the lining of larger diameter pipes used on ships, refined epoxy mixing and application
methods and equipment to enable pipe lining in hot weather, and developed equipment for applying epoxy to
pipes in a single family residence setting. The petitioner further indicated that the beneficiary spent a
considerable amount of time determining the appropriate business model for the u.s.company.
The petitioner again notes that it had filed an L-I visa petition for another employee, but that processing of
the petition took several months and the employee was thus not available to deliver training or to manage
individual projects. The petitioner states that the employee has since been transferred to the United States and
is currently training a client's employees in the application of the petitioner's epoxy products. The petitioner
further asserts:
[The beneficiary] was fully engaged in Executive duties as per the terms of his visa. He also
had some ongoing obligations to support Rikos Ltd. in Canada because of his personal
customer relationships with their existing major clients. Without an experienced project
manager and training it was impractical for [the petitioner] to contract for pipe-lining services
or to make training commitments.
The two company owners had the financial resources, without immediate compensation, that
enabled them to engage in planning, development, market research and organizational
activities that were executive and managerial in nature during a period in which a visa had
not yet been made available to employ an employee with essential skills and specialized
knowledge.
* * *
[The beneficiary] is the President and Chief Financial Officer of [the petitioner]. He has been
responsible for all the development activities discussed above including large project
marketing and proposal preparation. He is the lead in developing relationships with Plumbing
and Leak Detection companies. As Chief Engineer, he is responsible for refining [the
petitioner's] [t]echnology to the special needs of plumbing practices in California. His
responsibilities are managerial, executive and involve specialized knowledge. His activities
and responsibilities include all the items defined as "Executive Capacity."
The petitioner notes that the petitioner's inability to commence provision of its principal services in the United
States during the first year of operations "freed up [the beneficiary] from many executive and management
WAC 06 034 53600
Page 7
responsibilities that would have been incurred in a quicker start up of business services." The petitioner
submits an organizational chart depicting the beneficiary as president and treasurer, supervising a company
secretary responsible for marketing and administration, and the above-referenced L-IB employee, who is
responsible for technical training and project management. The petitioner states that the L-IB employee
received his visa in October 2005, but indicated that he began to receive wages during the second quarter of
2006.
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. § 214.2(l)(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. In addition, 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 show that the beneficiary
primarily performs these specified responsibilities and does not spend a majority of his or her time on day-to­
day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30,
1991). Whether the beneficiary is a managerial or executive employee turns on whether the petitioner has
sustained its burden of proving that his or her duties are "primarily" managerial or executive. See sections
101(a)(44)(A) and (B) of the Act.
The record contains no comprehensive description of the beneficiary's duties, nor any evidence to suggest that
his duties at the time of filing would rise to the level of those contemplated by the statutory definitions of
managerial or executive capacity. Initially, the petitioner described the beneficiary's duties as "technology
transfer and employee training, project supervision and company management." This general job description,
considered in light of the petitioner's statement that the company employed only the beneficiary and one other
employee at the time the petition was filed, suggested that the beneficiary may perform non-qualifying duties
associated with the technical aspects of the petitioner's business and the provision of the company services.
The petitioner did not identify any employees to be trained by the beneficiary, the "projects" he would
supervise, or what specific duties would be involved in "technology transfer" or "company management."
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).
Accordingly, the director reasonably requested a detailed description of the beneficiary's duties, including a
specific day-to-day account of the duties the beneficiary performed during the six months preceding the filing
of the petition. The petitioner did not provide the requested detailed description, and instead, its response
focused primarily on explaining the factors leading to the petitioner's delay in commencing operations in the
United States. The regulation states that the petitioner shall submit additional evidence as the director, in his
or her discretion, may deem necessary. The purpose of the request for evidence is to elicit further information
that clarifies whether eligibility for the benefit sought has been established, as of the time the petition is filed.
WAC 06 034 53600
Page 8
See 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. § 103.2(b)(14).
The minimal information provided regarding the beneficiary's actual job duties suggested that he was engaged
in developing tools and procedures to overcome unforeseen technical problems, evaluating and refining
equipment to meet market requirements, and studying for a California plumber's license. The petitioner also
mentioned an agreement with a customer which would require the beneficiary to provide training and ongoing
assistance with the petitioner's technology. The petitioner did not indicate how any of these duties would fall
under the statutory definitions of managerial or executive capacity, nor did it indicate what qualifying duties
the beneficiary would perform under the extended petition. The actual duties themselves reveal the true nature
of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108. An employee who "primarily"
performs the tasks necessary to produce a product or to provide services is not 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 In!'I., 19 I&N Dec. 593, 604 (Comm. 1988). As the evidence of record indicated that the
beneficiary would be the only employee available to provide the petitioner's services, the director reasonably
determined that he would not be employed in a primarily managerial or executive capacity.
On appeal, the petitioner attempts to clarify the beneficiary's job duties, noting his involvement in
"development activities" for "large project marketing" and "proposal preparation," responsibility for
developing relationships with potential clients and business partners, and responsibility for refining
technologies "to the special needs of plumbing practices in California." The petitioner asserts that these
duties, along with other organizational, planning and market research duties performed by the beneficiary,
meet the statutory requirements of "executive capacity." The petitioner's assertions are not persuasive. The
new, vaguely defined duties introduced on appeal are insufficient to establish the beneficiary's employment in
a qualifYing capacity, as they appear to confirm the beneficiary's involvement in non-qualifying marketing,
sales and technical product development functions.
The statutory definition of the term "executive capacity" focuses on a person's elevated position within a
complex organizational hierarchy, including major components or functions of the organization, and that
person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1l01(a)(44)(B).
Under the statute, a beneficiary must have the ability to "direct the management" and "establish the goals and
policies" of that organization. Inherent to the definition, the organization must have a subordinate level of
managerial employees for the beneficiary to direct and the beneficiary must primarily focus on the broad
goals and policies of the organization rather than the day-to-day operations of the enterprise. An individual
win not be deemed an executive under the statute simply because they have an executive title or because they
"direct" the enterprise as the owner or sole managerial employee. The beneficiary must also exercise "wide
latitude in discretionary decision making" and receive only "general supervision or direction from higher level
executives, the board of directors, or stockholders of the organization." Id. In this matter, the petitioner has
not established that the beneficiary is relieved from performing various routine activities related to the
company's marketing, sales and service functions, such that he could primarily focus on the goals and policies
of the organization, nor does the record establish that the organization has a subordinate level of managerial
WAC 06 034 53600
Page 9
employees. Accordingly, the record does not support the petitioner's assertion that the beneficiary has been
and would be performing primarily executive duties.
Pursuant to section 101(a)(44)(C) of the Act, 8 U.S.C. § 1101(a)(44)(C), if staffing levels are used as a factor
in determining whether an individual is acting in a managerial or executive capacity, CIS must take into
account the reasonable needs of the organization, in light of the overall purpose and stage of development of
the organization. In the present matter, however, the regulations provide strict evidentiary requirements for
the extension of a "new office" petition and require CIS to examine the organizational structure and staffing
levels of the petitioner. See 8 C.F.R. § 214.2(1)(14)(ii)(D). The regulation at 8 C.F.R. § 214.2(1)(3)(v)(C)
allows the "new office" operation one year within the date of approval of the petition to support an executive
or managerial position. There is no provision in CIS regulations that allows for an extension of this one-year
period. If the business does not have sufficient staffing after one year to relieve the beneficiary from
primarily performing operational and administrative tasks, the petitioner is ineligible by regulation for an
extension.
When examining the managerial or executive capacity of a beneficiary, Citizenship and Immigration Services
(CIS) reviews the totality of the record, including descriptions ofa beneficiary's duties and those of his or her
subordinate employees, the nature of the petitioner's business, and any other facts contributing to a complete
understanding of a beneficiary's actual role in a business. In this matter, the petitioner has not established that
it employed any employees to sell or deliver the services offered by the company. Based on the evidence of
record, it must be concluded that the beneficiary would be performing primarily non-qualifYing tasks
associated with the technical development, marketing and delivery of products and services, rather than
managing or supervising the performance of these routine duties by other subordinate employees. Although
the petitioner indicates that it now employs a project manager, 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).
Notwithstanding the petitioner's claim that it believed it had three years in which to complete its start up
operations and establish its business, the one-year "new office" provision is an accommodation for newly
established enterprises, provided for by CIS regulation, that allows for a more lenient treatment of managers
or executives that are entering the United States to open a new office. When a new business is first
established and commences operations, the regulations recognize that a designated manager or executive
responsible for setting up operations will be engaged in a variety of low-level activities not normally
performed by employees at the executive or managerial level and that often the full range of managerial
responsibility cannot be performed in that first year. In an accommodation that is more lenient than the strict
language of the statute, the "new office" regulations allow a newly established petitioner only one year to
develop to a point that it can support the employment of an alien in a primarily managerial or executive
position. In the instant matter, the petitioner has not reached the point that it can employ the beneficiary in a
predominantly managerial or executive position. Accordingly, the appeal will be dismissed.
The second issue in this matter is whether the petitioner has established that the U.S. company has been doing
business for the year preceding the filing of the petition as required by 8 C.F.R. § 214.2(1)(14)(ii)(B).
WAC 06 034 53600
Page 10
The regulation at 8 C.F.R. § 214.2(l)(I)(ii)(H) states: "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 petitioner must therefore establish that the U.S. company has been doing business since the approval of
the initial "new office" petition in December 2004. At the time of filing, the petitioner did not indicates a
gross income figure on the Form 1-129, nor did it submit any evidence that the company was doing business,
or evidence of the financial status of the company.
Accordingly, on December 29, 2005, the director requested a signed copy of the petitioner's corporate tax
return for the 2004 year, as well as color photographs of the petitioner's business premises.
In a response dated February 22, 2006, the petitioner stated that the U.S. company "did not generate any
Revenue or incur any Corporate Expense during Calendar 2005." The petitioner noted that the beneficiary's
activities in the United States upon his arrival included "transferring, purchasing, manufacturing and setting
up all the equipment necessary to perform the epoxy lining of potable water pipes in residential, commercial
and industrial building," as well as receiving inquiries regarding lining of pipes for U.S. Navy "Shipboard and
Housing" pipe installations.
The petitioner outlined a number of factors that "prevented the Company from actively engaging in the Epoxy
Lining of Pipes In California." The petitioner noted a serious illness affecting the petitioner's business
collaborator, a delay in obtaining an L-l visa for the beneficiary's son, and the beneficiary's need to study for
and obtain a California plumber's license in order to obtain business insurance. The petitioner further noted
that it was required to change its business model and noted that "the sale of proprietary technology, certified
epoxy and training is anticipated to be a major source of revenue in 2006." The petitioner mentioned an
agreement with a U.S. company "who are in the process of purchasing the specialized equipment required for
epoxy pipe lining, and which calls for the beneficiary to work with them for training purposes upon receipt of
the equipment." The petitioner also mentioned that the company has "had discussions and serious interest
from various established plumbing companies," which would be pursued upon receipt of the beneficiary's
renewed visa.
In response to the request for photographs of the petitioner's premises the petitioner noted its ongoing
relationship with "Clarke Plumbing, who supply a physical home and comprehensive support facilities as
described in [the beneficiary's] initial visa application." The petitioner enclosed a photograph of a van
bearing the name "Wes Clarke Pipe Lining." The petitioner also submitted a letter dated February 21,2006,
which states that American Sewer Detection Inc. dba A to Z Lead Detection has entered into an agreement to
receive technical training from the petitioner, with an expected commencement date of March 2006.
The director denied the petition on March 21, 2006, concluding that the petitioner had not established that it
was doing business at the time of filing or for the previous year. The director noted that the petitioner had
failed to address his request for copies of the petitioner's federal tax returns or color photographs depicting the
petitioner's business premises.
WAC 06 034 53600
Page 11
On appeal, the petitioner asserts that "a grant of intracompany transfer on a specific date is not synonymous
with the capability to operate a business that is dependent upon the issuance of visas to individuals with
necessary specialized knowledge." The petitioner again notes that the beneficiary did not take up residence in
California until approximately March 1, 2005, and emphasizes that the company's operations were on hold
until the beneficiary's arrival as the other owner of the company did not have the expertise or proprietary
knowledge to commence operations.
The petitioner notes the company's marketing activities during the first year, and noted that it did receive
requests for proposals from eight or more large condominium projects in southern California that are either
still awaiting funding commitments or have been abandoned and therefore have not yet generated any
revenue. The petitioner also references the lack of controlling statewide regulations governing the epoxy
lining of potable water pipe lines, but notes that it some of the petitioner's activities will require a California
plumbers license, which involves "complex and time consuming requirements for study activities and
examinations."
The petitioner further notes its relationship with Wes Clarke Plumbing Company, which "is able to provide a
contracting capability," and noted that Clarke Plumbing had submitted proposals for amounts in the hundreds
of thousands of dollars. The petitioner cites various factors causing delays, and indicates that the "cooperative
technical relationship between the two companies was not able to develop fully until late in the Summer
2005." The petitioner explains that the two companies worked together to adapt the petitioner's epoxy
technology to California single family residence requirements. The petitioner further notes that it has since
transferred another employee in L-IB status to provide training to customers who purchase the petitioner's
products and to manage individual projects. The petitioner asserts that it now has the capability to pursue
large building pipelining projects, single family residence projects, and to sell technology and epoxy to other
plumbing and lead detection companies and provide training.
The petitioner also confirms that it did not file federal tax returns in 2005 because it generated no revenue.
The petitioner again emphasizes that the company's revenue generating operations were dependent upon the
presence of the beneficiary's son as an L-IB employee, and the company did not have the reasonable
availability of the necessary employees during the first year of operations. The petitioner asserts that it is
currently generating revenue from training activities under contract to A to Z Lead Detection Co. The
petitioner notes that it maintains equipment at Clarke Plumbing, performs services at client sites, and
performs other business activities at the beneficiary's home office.
In support of the appeal, the petitioner submits excerpts from the web site of Rikos Ltd. in Canada, which lists
operations at "System Rikos USA," a copy of a newspaper advertisement for the petitioner, and copies of
proposals submitted to potential clients by "Wes Clarke Pipe Lining."
Upon review of the petition and evidence, the petitioner has not established that it was doing business for the
previous year, or at the time the petition was filed. The petitioner has not submitted evidence that it was
engaged in the regular, systematic, and continuous provision of goods and/or services at any time during the
beneficiary's initial period ofL-lA classification.
WAC 06 034 53600
Page 12
As noted above, the regulations allow for a one-year period for a U.S. petitioner to commence doing business
and develop to the point that it will support a managerial or executive position. The only provision that
allows for the extension of a "new office" visa petition requires the petitioner to demonstrate that it is staffed
and has been "doing business" in a regular, systematic, and continuous manner for the previous year. 8
C.F.R. § 214.2(l)(14)(ii).
If a petitioner indicates that a beneficiary is coming to the United States to open a "new office," it must show
that it is prepared to commence doing business immediately upon approval so that it will support a manager
or executive within the one-year timeframe. See generally, 8 C.F.R. § 214.2(l)(3)(v). At the time of filing the
petition to open a "new office," a petitioner must affirmatively demonstrate that it has acquired sufficient
physical premises to house the new office and that it will support the beneficiary in a managerial or executive
position within one year of approval. Specifically, the petitioner must describe the nature of its business, its
proposed organizational structure and financial goals, and submit evidence to show that it has the financial
ability to remunerate the beneficiary and commence doing business in the United States. Id. After one year,
CIS will extend the validity of the new office petition only if the entity demonstrates that it has been doing
business in a regular, systematic, and continuous manner "for the previous year." 8 C.F.R.
§ 214.2(1)(14)(ii)(B).
Upon review of the current petition, it is apparent that the petitioner was not prepared to commence doing
business upon approval of its initial new office petition and did not in fact start up its operations until more
than one year after the approval of the petition. Many of the activities undertaken by the petitioner during the
first year of operations involved research of the market, adaptation of its product and processes for the market,
studying for required licenses, and other activities which would reasonably be expected to be completed prior
to the filing of an initial new office petition. This failure on the petitioner's part is not a result of some
impossibility created by the law or regulations. The one-year period was not included in the regulations as a
hindrance to new offices. On the contrary, the new office provisions were added to the regulations in 1987
specifically in recognition that it would be impossible for some new offices to immediately employ someone
in an executive or managerial capacity as defined in the regulations. See 52 Fed. Reg. at 5739-5740. At the
same time, the legacy INS stated that it "must concern itself with abuse or the potential for abuse of any visa
category" and further noted that "one year is sufficient for any legitimate business to reach the 'doing
business' standard." Id. Thus, it appears that the petitioner's present ineligibility for the benefit sought is not
the result of a restrictive regulation but rather a lack of legal and business planning juxtaposed with what
appears to be normal and expected business delays in the petitioner's given industry.
The petitioner asserts on appeal that the U.S. entity is now doing business. However, 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 of
Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Regardless, the petitioner has provided no new
evidence to show that the petitioner has actually commenced sales, support or pipelining installation
activities. 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. 158, 165 (Comm. 1998) (citing
Matter of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
WAC 06 034 53600
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The petitioner has not submitted any evidence on appeal to overcome the director's conclusion that the U.S.
company was not doing business at the time of filing or for the previous year. Accordingly, the appeal will be
dismissed.
Beyond the decision of the director, the petitioner has not established that the U.S. company and the foreign
employer continue to maintain a qualifying relationship as required by 8 C.F.R. § 214.2(l)(14)(ii)(A). To
establish eligibility, the petitioner must show that the beneficiary's foreign employer and the proposed U.S.
employer are the same entity or are related as a "parent and subsidiary" or "affiliates." The petitioner claims
to be an affiliate of Rikos GmbH, located in Germany, and notes that the beneficiary has an ownership
interest in each company. However, the petitioner has not submitted any evidence of the U.S. company's or
foreign entity's ownership and control to substantiate this claim. Again, going on record without supporting
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings.
Matter ofSoffici, 22 I&N Dec. at 165. For this additional reason, the petition cannot 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), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
appeals on a de novo basis).
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an
independent and alternative basis for 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 dismissed.