dismissed L-1A Case: Radio Broadcasting And Advertising

r identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCCOpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington. DC' 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: MAY 1 3 2011 Office: VERMONT SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(IS)(L) of the Immigration 
and Nationality Act, 8 U.S.C. § llOl(a)(IS)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Vennont Service Center, denied the nonimmigrant visa petition. 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 employ the beneficiary as an L-IA nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. § lI01(a)(15)(L). The petitioner, a Texas limited liability company established in June 2008, intends 
to operate a radio broadcasting and advertising business. The petitioner claims that it is a subsidiary of ••• 
•••••. , located in Venezuela. The petitioner seeks to employ the beneficiary as the president of its new 
office in the United States for a period of three years.' 
The director denied the petition, concluding that the petitioner failed to establish that it had secured sufficient 
physical premises to house the new office, as required by 8 C.F.R. § 214.2(l)(3)(v)(A). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that the petitioner has now secured a lease of an 
office and requests that the petition be approved. In support of the appeal, the petitioner submits a copy of the 
lease valid on February 1,2009, photographs of the premises, and updated financial projections for 2009 and 
2010. 
I. The Law 
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section IOI(a)(15)(L) of the Act. Specifically, a qualifYing organization must have employed the 
beneficiary in a qualifYing managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary'S application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
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)(1)(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 perfonned. 
(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. 
'Pursuant to 8 C.F.R. § 214.2(1)(7)(i)(A)(3), ifthe beneficiary is coming to the United States to open or be 
employed in a new office, the petition may be approved for a period not to exceed one year. 
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(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. 
The regulation at 8 C.F.R. § 214.2(I)(3)(v) further provides that 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 of managerial authority over the new 
operation; and 
(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 (l)(l)(ii)(8) 
or (C) of this section, supported by information regarding: 
II. Discussion 
(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 sole issue addressed by the director is whether the petitioner established that it has secured sufficient 
physical premises to house the new office. 
The petitioner filed the Form 1-129. Petition for a Nonimmigrant Worker, on October 20, 2008. The 
petitioner identified its address on the Form 1-129 as , Georgia. The petitioner 
did not submit evidence, such as a lease agreement, indicating that the company had secured sufficient 
physical premises to house the new office at this address. 
On October 22, 2008, the director issued a request for additional evidence in which he instructed the 
petitioner to submit, inter alia, the following: (I) documentary evidence establishing that the company has 
acquired a leased premises of sufficient size to conduct business, including original lease agreements, a 
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statement from the lessor identifYing the square footage of the leased premises, and the lessor's telephone 
number; and (2) photographs of the interior and exterior of all premises secured for the United States entity. 
In a letter dated January 19, 2009, counsel for the petitioner stated: 
[The petitioner] has not obtained permanent physical space for its U.S. operations. Currently 
located in Georgia, [the petitioner] does not have staff in the U.S. to visit and approve a 
permanent or long-term physical location. Indeed, [the petitioner's] ability to inspect any 
potential locations is limited unless and until the above-referenced petition is approved by the 
Service. 
The petitioner's response to the request for evidence included a chart titled for 
the Execution of the goals," which outlines the petitioner's planned actions for October 2008 through 
December 20 I O. According to the information provided therein, the petitioner anticipated searching for and 
leasing an office between July land September 30,2009. The petitioner had requested that the validity of the 
beneficiary's L-I A classification, if approved, commence in October 2008. 
The director denied the petition on January 26, 2009 on the sole grounds that the petitioner failed to establish 
that it had secured sufficient physical premises to house the new office, pursuant to 8 C.P.R. 
§ 2 14.2(l)(3)(v)(A). 
On appeal, the petitioner submits an "Office Lease Agreement" between the U.S. company and •••••• 
LLC, executed on January 30, 2009, and valid for a three-month period commencing on Pebruary 1,2009. 
Upon review, the AAO concurs with the director's conclusion that the petitioner failed to establish that it has 
secured sufficient physical premises to house the new office. 
The critical facts to be examined are those that were in existence at the actual time of filing the petition. It is 
a long-established rule in visa petition proceedings that a petitioner must establish eligibility as of the time of 
filing. A visa petition may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971); Matter of Izummi, 22 I&N Dec. 
169, 176 (Assoc. Comm. 1998). 
The petitioner conceded that it had not secured physical premises intended to house the new office in the 
United States at the time it filed the petition. According to the petitioner's own business plan, it did not 
originally intend to locate and lease an office until months after the expected approval of the petition. 
Therefore, the petition cannot be approved as the petitioner has not satisfied the evidentiary requirement at 8 
C.P.R. § 214.2(l)(3)(v)(A). Counsel's claim that no office could be secured prior to the beneficiary's arrival in 
the United States does not exempt the petitioner from satisfYing the initial evidence requirements for the 
requested classification. The evidence submitted on appeal demonstrates that the beneficiary was in fact able 
to secure a lease despite the denial of the instant petition. 
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With respect to the lease agreement submitted on appeal, we emphasize that where a petitioner has been put 
on notice of a deficiency in the evidence and has been given an opportnnity to respond 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); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Furthermore, as discussed above, 
the evidence submitted on appeal does not demonstrate the petitioner's and beneficiary's eligibility as of the 
date of filing the petition. 
If the petitioner or beneficiary becomes eligible under a new set of facts, the proper course of action is to file 
a new petition. Despite the previous denial, there is no bar to the petitioner's filing of a new petition 
supported by new evidence of eligibility. 
Based on the foregoing, the petitioner did not submit evidence to establish that it had secured sufficient 
physical premises to house the new office as of the date of filing. Accordingly, the appeal will be dismissed. 
Beyond the decision of the director, a remaining issue in this matter is whether the petitioner established that 
the intended United States operation, within one year of the approval ofthe petition, will support an executive 
or managerial position as defined at 8 C.F.R. § 214.2(1)(l)(ii)(B) or (C). The petitioner is required to submit 
supporting evidence regarding the proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals, and to provide evidence of 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. 8 C.F.R. § 214.2(1)(3)(v)(C). 
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. This evidence should demonstrate a realistic expectation that the 
enterprise will succeed and rapidly expand as it moves away from the developmental stage to full operations, 
where there would be an actual need for a manager or executive who will primarily perform qualifying duties. 
See generally, 8 C.F.R. § 214.2(1)(3)(v). 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. Jd 
Here, the petitioner's own business plan offers no indication that the company anticipates rapid growth during 
the first year of operations. Although the petition was filed in October 2008, the petitioner indicated on its 
"Chronogram of detailed Work for the execution of goals" that it anticipates beginning production of its 
Internet radio programming and other services in January 20 I 0, more than one year later. Between April and 
December 2009, the petitioner indicated that the beneficiary would be planning his trip to the United States, 
locating and furnishing a U.S. office, improving his English language skills, recruiting and training personnel, 
designing the company's webpage, and beginning preliminary promotional work prior to going live with its 
radio programming. 
Furthermore, the petitioner's business plan, and the record as a whole, provided minimal information 
regarding the financial position of the U.S. company, the petitioner's anticipated start-up costs, operating 
costs, and financial objectives for the first year of operations. The petitioner has not submitted sufficient 
evidence to meet the regulatory requirement at 8 C.F.R. § 214.2(1)(3)(v)(C)(J). 
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With respect to the petitioner's requirement to provide evidence of 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, the petitioner has stated that the company received an initial contribution of $5,000 and that 
it would receive gradual financing from the beneficiary and the foreign entity. Again, the petitioner's business 
plan does not outline the company's projected start-up costs or contain any other evidence of any financial 
transactions corroborating the petitioner's claims regarding the investment. Without such evidence, the 
petitioner has not met its burden to establish the size of the United States investment pursuant to 8 C.F.R. § 
2l4.2(l)(3)(v)(C)(2). 
The regulations require the petitioner to present a credible picture of where the company will stand in exactly 
one year, and to provide sufficient supporting evidence in support of its claim that the company will grow to a 
point where it can support a managerial or executive position within one year. The evidence submitted fails to 
demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it moves away from 
the developmental stage to full operations, where there would be an actual need for a manager or executive 
who will primarily perform qualifying duties. See generally, 8 C.F.R. § 2l4.2(l)(3)(v). Given that the 
petitioner indicated that it would take more than one year to even commence its intended business activities, it 
has not met this burden. For these additional reasons, 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 Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews 
appeals on a de novo basis). When the AAO denies a petition on multiple alternative grounds, a plaintiff can 
succeed on a challenge only if he or she shows that the AAO abused its discretion with respect to all of the 
AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. 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.