dismissed L-1A Case: Plastics Industry

i&nti&lng data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC COW 
FILE: 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the 
Immigration and Nationality Act, 8 U.S.C. $ 1101(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
~M&~$LL~ 
ert P. iemann, Chief 
Administrative Appeals Office 
SRC 04 235 52246 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimrnigrant visa. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be summarily 
dismissed. 
The petitioner, a Georgia limited liability company, claims to be a subsidiary of World of Plastics - 
Plastienvases, CIA, LTDA located in Quito, Ecuador. The petitioner states that the United States entity is 
engaged in the business of exporting, manufacturing, buying, selling and commercial distribution of 
supplies related to the plastic industry. Accordingly, the United States entity petitioned CIS to classify 
the beneficiary as a nonirnrnigrant intracompany transferee (L-1 A) pursuant to section 10 1 (a)(15)(L) of 
the Act. The petitioner seeks to employ the beneficiary in the position of managing partner of its new 
office in the United States for a period of three years. 
The director denied the petition, concluding that the petitioner did not establish the following two 
requirements: 1) that sufficient physical premises to house the new office have been secured; and 2) that the 
intended United States operation, withn one year of the approval of the petition, will support an executive or 
managerial position. 
The petitioner subsequently filed an appeal on March 2 1, 2005. Counsel indicated on Form 1-1290B that 
she would submit a brief and/or evidence to the AAO within 30 days. As no additional evidence has been 
incorporated into the record, the AAO contacted counsel by facsimile on August 24, 2006 to request that 
counsel acknowledge whether the brief and/or evidence were subsequently submitted, and, if applicable, 
to afford counsel an opportunity to re-submit the documents. Counsel for the petitioner did not respond 
to the AAO. Accordingly, the record will be considered complete. 
To establish eligibility under section 10 1 (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 firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed 
the beneficiary 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. 
Regulations at 8 C.F.R. $ 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the 
party concerned fails to identify specifically any erroneous conclusion of law or 
statement of fact for the appeal. 
Upon review, the AAO concurs with the director's decision and affirms the denial of the petition. 
Counsel's general objections to the denial of the petition, without specifically identifying any errors on the 
part of the director or providing new evidence to support that the beneficiary will be employed in a 
primarily managerial or executive capacity within one year and that the petitioner has obtained sufficient 
physical premises for the U.S. entity, are simply insufficient to overcome the well-founded and logical 
conclusions the director reached based on the evidence submitted by the petitioner. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofici, 22 I & N Dec. 158, 165 (Comm. 1998)(citing Matter of Treasure 
SRC 04 235 52246 
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Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I & N Dec. 1 (BIA 1983); Matter of Rarnirez-Sanchez, 17 I & N Dec. 
503,506 (BIA 1980). 
On review, it appears that the petitioner did not submit any evidence documenting sufficient physical 
premises to house the new office in the United States as required under the regulations 8 C.F.R. § 
214,2(1)(3)(v). On October 19,2004, the director requested that the petitioner submit evidence of the lease or 
purchase contract of facilities in whch to conduct business in the United States. In the petitioner's response 
dated December 29,2004, counsel for the petitioner stated the following: 
Since the company has been doing business in the US for less than a year, it only has a small 
office with the necessary office equipment to start malung contacts and business. As the 
manager is seelung to change his visa status to L-1, the company is not able to launch into 
full operations that would require cosmetic painting, storing, and repair of acquired pieces of 
equipment in a warehouse. Upon approval of his [the beneficiary] application to change 
status, the company is planning to immediately lease a warehouse that will include electrical 
service of about 100KWA necessary to run and repair pieces of machinery. 
The petitioner did not submit any evidence that the petitioner actually has leased the above-mentioned 
office space. In addition, it appears that an office is not sufficient space for a company that plans to buy 
large machinery for production of plastics. The business plan indicates that the company needs a 
warehouse in order house "2 blowmolders, 3 to 6 injection molders, and 304 metal mechanical and 
auxiliary equipment." 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). 
The office is not sufficient physical premises in order to commence the type of business outlined in the 
petitioner's business plan. Further, the petitioner failed to submit a lease agreement for its claimed office 
space. 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 (Cornm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
If a petition indicates that a beneficiary is coming to the United States to open a "new office," it must 
show that it is ready to commence doing business immediately upon approval. 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 commence business, that it has the financial ability to commence doing business in 
the United States, and that it will support the beneficiary in a managerial or executive position within one 
year of approval. See generally, 8 C.F.R. 5 214.2(1)(3)(~). If approved, the beneficiary is granted a one- 
year period of stay to open the "new office." 8 C.F.R. § 214.2(1)(7)(i)(A)(3). At the end of the one-year 
period, when the petitioner seeks an extension of the "new office" petition, the regulation at 8 C.F.R. 
§ 214,2(1)(14)(ii)(B) requires the petitioner to demonstrate that it has been doing business "for the 
previous year" through the regular, systematic, and continuous provision of goods or services. See 8 
C.F.R. 5 214.2(1)(l)(ii)(H) (defining the term "doing business"). The mere presence of an agent or office 
of the qualifying organization will not suffice. Id. 
SRC 04 235 52246 
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Upon review of the record, the petitioner did not submit sufficient evidence to establish that the 
beneficiary will be employed in an executive capacity in the United States within one year. 
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. tj 214.2(1)(3)(ii). On review, the petitioner has 
provided a vague and nonspecific description of the beneficiary's duties that fails to demonstrate what the 
beneficiary does on a day-to-day basis. For example, the petitioner states that the beneficiary's duties 
include being "in charge of all activities related to starting up the company including hiring staff," and 
"investigate the importation of flowers from Ecuador to the US as an adjunct business activity." The 
petitioner did not, however, define the beneficiary's goals and policies, or clarify the role of the 
subordinates that the beneficiary will supervise. 
The description also includes several non-qualifying duties such as "setting up a facility in Atlanta that 
will have the capacity for production and warehouse capability," and "develop and implement marketing 
strategies that will increase the exportation of machinery and equipment to Ecuador and other markets in 
South America." Without further explanation, these duties suggest that the beneficiary is directly 
involved in the company's marketing, sales and promotion activities rather than supervising others who 
perform non-managerial duties related to these functions. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. 1 103, 1 108 
(E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). 
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather 
the AAO must determine based on the totality of the record whether the description of the beneficiary's 
duties represents a credible account of the beneficiary's role within the organizational hierarchy. As noted 
by the director, the petitioner indicated that it plans to hire one secretary and two certified mechanics by 
the end of the year. Thus, it appears that the only individual in charge of running the business and 
managing the sales, marketing, payroll, inventory, purchasing, exporting, customer service and finance 
operations will by the beneficiary himself. It appears that the secretary will be in charge of the 
administrative tasks for the office, and the mechanics will work with the repair and configuration of the 
equipment and machinery, however, the beneficiary is the only employee who will perform the majority 
of the operational tasks required in running a business. Accordingly, the director reasonably concluded 
that the beneficiary as the petitioner's only managerial employee will be performing the day-to-day 
operations and directly be providing the services of the business rather than directing such activities 
through subordinate employees. An employee who "primarily" performs the tasks necessary to produce a 
product or 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 International 19 I & 
N Dec. 593,604 (Cornm. 1988). 
Beyond the decision of the director, the record contains insufficient evidence to establish that the overseas 
company employed the beneficiary in a primarily managerial capacity. The job duties of the beneficiary's 
SRC 04 235 52246 
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position abroad submitted by the petitioner are vague and contain non-qualifying duties. For example, the 
petitioner stated that the beneficiary's duties in the position he held abroad as international and marketing 
coordinator included, "responsible for coordinating the work or plant operations, assuring quality and 
compliance with scheduling requirements," and "coordinate product development and sales, especially 
international sales." The petitioner did not, however, define the beneficiary's goals and policies, or 
clarify the role of the subordinates that the beneficiary will supervise. It appears that the beneficiary 
supervised a secretary and two mechanics. Since there are currently no employees in sales and marketing 
operations for the company, it appears that the beneficiary will be provihng the services of the business 
rather then directing such activities through subordinate employees. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide sufficient detail or 
explanation of the beneficiary's activities in the course of his daily routine. The actual duties themselves 
will reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Suva, 724 F. Supp. at 1108 
(E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). 
On October 19, 2004, the director requested that the petitioner submit evidence documenting the foreign 
employment of the beneficiary including the position title; a list of the duties; the percentage of time spent 
on each duty; the number of subordinate managers/supervisors or other employees who report directly to 
the beneficiary; a brief description of their job titles and duties; the qualifications required in order to fill 
the position the beneficiary held; and the beneficiary's position within the organizational hierarchy. 
On December 29, 2004, the petitioner responded to the director and failed to submit the requested 
documentation. Instead, the petitioner submitted information regarding the position offered to the 
beneficiary with the Untied States entity. Thus, the AAO cannot determine whether the beneficiary 
supervised any subordinate staff while employed by the foreign entity or if the beneficiary was primarily 
responsible for managing an "essential function" within the organization. Failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 9 
103.2(b)(14). 
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 petitioner will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. Inasmuch as 
counsel has failed to identify specifically an erroneous conclusion of law or a statement of fact in this 
proceeding, the petitioner has not sustained that burden. Therefore, the appeal will be summarily 
dismissed. 
ORDER: 
 The appeal is summarily dismissed.