dismissed L-1A Case: Real Estate

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 03 193 5 1969 Office: NEBRASKA SERVICE CENTER Date: 
PETITION: Petition for a Nonirnrnigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. 5 110.l(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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
LIN 03 193 5 1969 
Page 2 
DISCUSSION: The Director, Nebraska 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 employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 101(a)(15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. 5 1101(a)(15)(L). The petitioner is a corporation organized in the State of Indiana that is engaged in 
the purchase and management of rental properties in the United States. The petitioner claims that it is a 
subsidiary of the beneficiary's foreign employer, located in Lagos, Nigeria. The petitioner now seeks to - 
employ the beneficiary as its president for two years. 
The director denied the petition concluding that the beneficiary would not be employed by the United States 
entity in a primarily managerial or executive capacity within one year of approval of the petition. In making 
this determination, the director specifically focused on the financial ability of both the beneficiary's foreign 
employer and the petitioning organization to fund the business activity of the new United States company. 
On appeal, counsel states that the director incorrectly concluded that the beneficiary would not be employed 
in the United States in a primarily managerial or executive capacity. Counsel claims that contrary to the 
director's decision, the beneficiary would not directly perform any job duties directly related to the daily 
operation of the business. Counsel also contends that the petitioner, the foreign entity and its affiliates have 
adequate fund& to implement the petitioner's business plan. Counsel submits a brief and additional 
documentary evidence in support of the appeal. 
To establish L-1 eligibility, the petitioner must meet the criteria outlined in section lOl(a)(15)(L) of the Act, 8 
U.S.C. 5 1101(a)(15)(L). 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. 
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. 5 214.2(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 (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 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 hidher 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 perforined abroad. 
LIN 03 193 51969 " 
, Page 3 
Pursuant to the regulation at 8 C.F.R. 5 214.2(1)(3)(~), if the petition indicates that the beneficiary is corning 
to the United States as a manager or executive to open or 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 (l)(l)(ii)(B) or (C) of this 
section, supported by information regarding: 
(I) 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 the instant matter is whether the beneficiary would be employed by the United States entity in a 
primarily.manageria1 or executive capacity within one year of approval of the petition. 
Section lOl(a)(44)(A) of the Act, 8 U.S.C. 5 1101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the employee. 
primarily- 
(i) Manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) Supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department or 
subdivision of the organization; 
(iii) Has the authority to hire and fire or recommend those as well as other personnel actions 
(such as promotion and leave authorization) if another employee or other employees are directly 
supervised; 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 fxst-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. 
LIN 03 193 51969 
Page 4 
Section lOl(a)(44)(B) of the Act, 8 U.S.C. 5 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the employee 
primarily- 
(i) Directs the management of the organization or, a major component or function of the 
organization; 
(ii) Establishes the goals and policies of the organization, component, or function; 
(iii) - Exercises wide latitude in discretionary decision-making; and 
(iv) Receives only general supervision or direction from higher level executives, the board of 
directors, or stockholders of the organization. 
The petitioner filed the nonirnrnigrant petition on June 2, 2003, noting that the beneficiary would be employed 
in the United States company as its president. In an attached "rider," counsel provided the following 
description of the beneficiary's proposed responsibilities: 
As President, she will be responsible for managing and directing all aspects of the business 
operations of the U.S. subqidiary during the initial stages. She will exercise complete 
discretion and auth%rity in making business decisions, including the acquiring of new 
properties, entering into financing or lending agreements, the hiring and firing of employees, 
contractors, and consultants, supervising the management of the company's rental properties, 
establishing business goals and operating policies for the leasing and development' of 
properties, and planning and directing the growth of the company. 
[The beneficiary] will report every month to the chairman of the Nayee Group on the status 
of the U.S. subsidiary. 
As President of the U.S. subsidiary, the beneficiary will perform an essential function within 
the parent company's international business expansion strategy. 
Counsel noted that following the beneficiary's assignment in the United States, she would resume her position 
in the Nigerian company. 
Counsel also stated that over the next two' years the petitioner anticipated hiring an accountant, a building 
manager-supervisor, a secretary, and a clerical employee. Counsel noted that the petitioner may utilize estate 
surveyors, construction engineers, and property appraisers on a contractual basis. 
In an attached letter from the foreign entity, its managing director explained that the beneficiary would 
supervise the business activities of the United States operation until it "is well-established and substantial in 
terms of returns." The managing director stated that the beneficiary "is then expected to appoint a General 
I 
LIN 03 193 51969 
Page 5 
Manager who shall report to her as the Executive Director (Finance and Administration) of the Group." The 
.managing director also explained that the beneficiary was expected to hire for the petitioning organization 
"[a] staff with such academic qualifications as shse [sic] considers necessary now or in the nearest future." 
With regard to the funding of the business, counsel stated that the petitioner would purchase additional 
properties with funds from the parent company's overseas 'operations and rental income from the United 
States operation. Counsel stated that the petitioner's business would eventually expand to include the 
development and construction of residential properties and multipurpose buildings. As evidence of the 
petitioner's financial status, counsel submitted a bank statement for an account held by the petitioner in the 
amount of approximately $45,000. Counsel also provided two bank account statements for the foreign entity 
reflecting account balances of approximately $25,000 and $36,000. 
The director issued a request for evidence on June 6, 2003, noting that the petitioner had not submitted "a 
specific, credible business plan for the development of this proposal that would support an L-1A 
rnanage;ial/executive position within one year." The director also noted it is unclear from the financial 
documentation submitted with the petition whether the foreign entity has the "financial capability" to support 
the development of the United States entity and the beneficiary as a manager or an executive. The director 
requested that the petitioner submit the following evidence: (1) a lease confirming that physical office 
premises have been obtained; (2) photographs of the interior and exterior premises; (3) photographs of real 
estate purchased by the petitioner; and (4) evidence that the petitioning organization would support the 
beneficiary in a primarily managerial or executive capacity within one year of approval of the petition. The 
director noted that such evidence should include the petitioner's business plan, a description of its scope, 
organizational structure and financial goals, and copies of current bank account statements for both the United 
States and foreign organizations. 
In counsel's response to the director's request, counsel referred to a March 28, 2003 letter from the foreign 
entity's managing director as evidence of the petitioner's ability to support the beneficiary in a primarily 
qualifying capacity within one year of approval of the petition. Counsel restated sections of the managing 
director's letter and explained that the petitioner's organizational structure would include personnel who the 
beneficiary "considers necessary now or in the nearest future." Counsel again stated that the petitioner 
anticipated hiring an accountant, a building manager-supervisor, a secretary, and a clerical employee within - 
the next one to two years. Counsel also referenced the managing director's explanation that the United States 
operation would be funded with rental income from properties owned by the foreign company overseas, and 
would, within one to three years, generate rental income equal to that of the foreign company. As evidence of 
the companies' financial ability to remunerate the beneficiary and fund the petitioner's operations, counsel 
submitted the foreign company's 200'1 and 2002 annual reports and bank statements for both organizations. 
Counsel also provided the petitioner's business plan in which the petitioner stated that it anticipated an initial 
base of 100 rental units during its first year of operations. The petitioner explained this "goal represents the 
number of properties that can be managed and controlled by a limited staff while allowing for principal* 
preservation and income and profit utilization for further investments." The petitioner further noted that 
--* 
during its second through fifth years of operation it would diversify into real estate based business operations, 
which would allow for the emplo;ment of a property manager who would direct the daily business 
operations. The petitioner explained that repairs and maintenance work would be outsourced, therefore 
limiting the number of workers necessary. 
LIN 03 193 51969 
Page 6 
In a decision dated September 8, 2003, the director determined that the petitioner did not demonstrate that the 
beneficiary would be employed in the United States as a manager or executive. The director stated that the 
record did not indicate that the petitioner would employ any professional, managerial or supervisory 
personnil within its first year of operations, and concluded that "the beneficiary would be involved in the 
performance of day-to-day tasks that are necessary to provide the services of the U.S. entity for the 
foreseeable future." The director also concluded that the foreign and United States entities do not have "the 
financial capability to support the U.S. entity in the major real estate investment planned for the first year of 
operations." The director further noted inconsistencies in the purchase agreements for the petitioner's 
residential properties and in the financial statements submitted as evidence of the petitioner's funds. 
Consequently, the director denied the petition. 
\ In an appeal filed on October 7, 2003, counsel claims that Citizenship and Immigration Services (CIS) erred 
in determining that the petitioning organization would not support the beneficiary in a primarily managerial or 
executive position within one year of approval of the petition as the petitioner submitted sufficient evidence to 
satisfy the regulation at 8 C.F.R. 5 214.2(1)(3)(~). Counsel states that the foreign parent company and its 
affiliates have adequate funds and assets to implement the petitioner's business plan, and notes that the 
petitioner already purchased two apartment buildings at a purchase price of approximately $500,000. Counsel 
submits the petitioner's purchase agreement, warranty deed, and settlement statement as evidence of the 
purchase. Counsel also provides documentary evidence, including bank statements and an electronic funds 
transfer, as evidence of funds received by the petitioner from the foreign entity and its affiliates to finance the 
petitioner's purchase of the real estate. Counsel contends that "[CIS'] apparent requirement of liquid assets in 
the accounts of the petitioner, the parent company, and its affiliates sufficient for the purchase of 100 rental 
units fails to properly consider the highly leveraged nature of real estate investments and cash flows from 
rental properties." Counsel further notes that fixed assets and property held by the foreign and United States 
companies could be used as collateral for additional sources of funding. 
On review, the petitioner has failed to establish that the beneficiary would be employed by the United States 
entity in a primarily managerial or executive capacity. 
When a new business is 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 activities not 
normally perforined by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans, organizational 
structure, and the size of the United States investment, and thereby establish that the proposed enterprise will 
support an executive or managerial position within one year of the approval of the petition. See 8 C.F.R. 
5 214.2(1)(3)(v)(C). 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. 
As correctly determined by the director, the record does not demonstrate that within one year of approval of 
the petition the beneficiary would be employed by the United States entity as a manager or executive. 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. 3 214.2(1)(3)(ii). As required in the regulations, the petitioner must 
submit a detailed description of the executive or managerial sepices to be performed by the beneficiary. Id. 
Other than a brief statement that the beneficiary "will exercise complete discretion and authority in making 
LIN 03 193 51969 
Page 7 
business decisions," hire and fire employees, supervise the management of the petitioner's rental-propgies, and 
s ->" "- 
establish business goals and policies, the petitioner failed to specifically identify the job duties to be performEd by 
the beneficiary as a manager or executive. In fact, it appears that the petitioner described only those job 
responsibilities of the beneficiary during the first year of the petitioner's operations, as the petitioner-specifically 
noted that "[the beneficiary] would be responsible for managing and directing all aspects of the business 
operations of the U.S. subsidiary during the initial stages." The petitioner is required to substantiate its claim of 
the beneficiary's future employment as a manager or executive with a detailed description of the qualifying job 
duties to be performed by the beneficiary. Id. 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), aff'd, 905 F.2d 41 (2d. Cir. 1990). Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comrn. 1972). 
Additionally, it does not appear that the petitioner would employ a staff sufficient to support the beneficiary 
in a primarily managerial or executive capacity. While the petitioner noted its plans to hire additional 
employees, including an accountant, building manager, secretary and clerical employee, the additional 
personnel wol?ld not begin employment until after the first or second years of operation. The petitioner 
further confirms in its business plan its anticipated delay in hiring additional employees. The petitioner stated 
in the business plan that it is unlikely that a large full-time staff will be needed during the first one to two 
years of operation except for maintenance and repairs. The petitioner's remaining references to personnel are 
vague and merely indicate that the beneficiary would hire a staff with such academic qualifications she deems 
necessary in the future. The petitioner's limited explanation of the petitioner's proposed personnel as well as 
its expected delay in hiring additional subordinate workers indicates that the petitioner's organizational 
structure would not support the beneficiary in a primarily managerial or executive capacity within one year of 
approval of the petition. The AAO notes that absent a subordinate staff to perform the non-qualifying 
functions of the business, it is likely that the beneficiary would be responsible for the daily operations of the 
business. An employee who primarily performs the tasks necessary to produce a product or to provide 
services is not considered to be employed in a managerial or executive capacity. Matter of Church 
Scientology International, 19 I&N Dec. 593, 604 (Cornrn. 1988). 
Moreover, although counsel submits financial documentation of the foreign entity's ability to fund the petitioner's 
operations, the monetary amounts are not translated into U.S. dollars. Because the petitioner failed to submit 
certified translations of the documents, the AAO cannot determine whether the evidence supports the 
petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence is not probative and will not be 
accorded any weight in this proceeding. Furthermore, the bank statements submitted on appeal as evidence of 
the petitioner's financial status reference an account held in the name of the beneficiary, not a business - ------ 
account. There is no~indication that the petitioning organization is the owner of the funds. Again, this 
documentary evidence is not probative of the petitioner's financial ability to support the beneficiary in a 
qualifying capacity. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. at 
193. 
Based on the foregoing discussion, the AAO cannot conclude that the beneficiary would be employed by the 
United States entity in a primarily managerial or executive capacity. For this reason, the appeal will be 
dismissed. 
LIN 03 193 5 1969 
Page 8 
Beyond the decision of the director, the petitioner has not demonstrated the existence of a qualifying 
relationship between the foreign and United States entities as required in the Act at 5 101(a)(15)(L). The 
regulations and case law confirm that the key factors for establishing a qualifying relationship between the 
U.S. and foreign entities are ownership and control. Matter of Siemens Medical Systems, Inc. 19 I&N Dec. 
362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 (Cornrn. 1982); see also Matter of Church Scientology 
International, 19 I&N Dec. 593 (BIA 1988) (in immigrant visa proceedings). In the context of this visa 
petition, ownership refers to the direct and indirect legal right of possession of the assets of an entity with full 
power and authority to control; control means the direct or indirect legal right and authority to direct the 
establishment, management, and operations of an entity. Matter of Church Scientology International, 19 I&N 
Dec. at 595. 
Here, the petitioner claimed that it is the subsidiary of the beneficiary's foreign employer. The petitionkr 
submitted two stock certificates identifying the beneficiary and her husband as equal shareholders of the 
petitioning organization's stock. A 2002 annual report for the foreign entity indicates that 20% of the foreign 
entity's stock is held by the beneficiary while her husband owns the remaining stock. The record does not 
contain any stock certificates for the foreign entity. The petitioner has not submitted sufficient documentary 
evidence to establish the claimed parent-subsidiary relationship or an affiliate -. relationship. Going on record 
. .without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Treasure Craft of California, 14 I&N Dec. at 193. Based on the petitioner's 
representations, the two entities do not meet the definition of qualifying organization. See 8 C.F.R. 
§ 214.2(1)(1)(ii)(G). For this additional reason, the appeal will be dismissed. 
An additional issue not addressed by the director is the beneficiary's current H-1B status. According to Form 
I-797A, the petitioner was granted status as an H-1B nonirnrnigrant worker from May 1, 2002 through 
January 31, 2005 for employment with an unrelated company. Based on the record, the beneficiary is 
currently wbrking for another United States company, and therefore has not satisfied the regulatory 
requirement for foreign employment. Pursuant to the regulation at 8 C.F.R. 5 214.2(1)(3)(iii), the beneficiary 
is required to have "at least one continuous year of full-time employment abroad with a qualifying 
organization within the three years preceding the filing of the petition." The beneficiary's current 
employment as an H-1B nonirnmigrant worker is interruptive of her claimed overseas employment. 
Consequently, the appeal will be dismissed for this additional reason. 
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), aff'd. 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). 
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. 5 1361. Here, that burden has not been met. Accordingly, the 
director's decision will be affirmed and the petition will be denied. 
ORDER: The appeal is dismissed.