dismissed L-1A Case: Real Estate Development And Retail

U.S. Department of Homeland Security 
20 Mass Avc N W . Rnl A3042 
rctonturfandata~~ 
Washlngtoll, DC 20520 C 
,""t'Yi'iW.r: *m!y ~pmwm@.M 
' G - sV - 5 I.: Q 9f wmo@ dmi=. U.S. Citizenship 
and Immigration 
Services 
File: Office: TEXAS SERVICE CENTER Date: 1 9 uj05 
IN RE: Pet~t~oner: 
Benefic~ary: 
Pet~tion: Pet~tlon for a Nonimmigrant Worker Pursuant to Sect~on 10l(a)(15)(L) of the Immlgatlon 
and Nat~onallty Act, 8 U.S.C. 4 1101(a)(15)(L) 
IN BEHALF OF PETITIONER: 
Th~s 1s the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that orig~nally decided your case. Any further lnqulry must be made to that office. 
@o ert P. Wiemann. Dlrect r q/ * 0 
inistrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant vlsa. The matter 
IS now before the Administrative Appeals Office (AAO) on appeal. The AAO wlll d~smiss the appeal. 
The petitloner seeks to employ the beneficiary temporar~ly In the United States as an L-IA nonimmigant 
manager or executlve pursuant to sectlon 101(a)(15)(L) of the Imm~grat~on and Nat~onal~ty Act (the Act), 8 
U.S.C. 4 I lOl(a)(lS)(L). The U.S. pet~tioner, a corporation organized In the State of Cieorg~a engaged In real 
estate develo~ment and retall operations, seeks to em~loy the beneficiary as its pres~dent and chief executive 
officer. The petitloner claims to be the subsid~ary of ~ocated ~n ~e~ubli m 
The director denled the petitlon concluding that the petitioner had failed to establ~sh that: (1) it had secured 
suffic~ent premlses to house ~ts business; (2) the fore~gn entity had the financ~al abll~ty to remunerate the 
benefic~ary and to commence do~ng business In the Unlted States; and (3) the foreign entity would continue dolng 
busmess after the U S office was establ~shed. 
The petltioner filed an appeal In response to the denial. On appeal, counsel for the pet~tioner alleges that 
contrary to the director's conclusion, the fore~gn entity d~d transfer suffic~ent cap~tal to commence operations 
In the United States, and also would continue to do business after the U.S. pet~tloner was orgamzed, thereby 
remarning a qual~fy~ng organl~at~on as required by the regulat~ons. In addition, counsel alleges that the 
director erred by not finding that the evldence the petitioner subm~tted pertaming to its temporary buslness 
premlses. was acceptable to show that the petitioner had secured sufficient physical premises to house the 
new organlzatlon. In support of these contentions, counsel for the petltioner submits a br~ef and additional 
ro establish ellg~bil~ty for the L-I non~mmigrant vlsa class~ficat~on, the petrtloner must meet the cr~ter~a 
outlmed In sectlon lOl(a)(lS)(L) of the Act. Specifically, a qualifying organizatlon must have employed the 
benefic~ary In a qual~fylng managerla1 or executlve capaclty, or in a special~zed knowledge capac~ty. tor one 
continuous year within three years preceding the beneficiary's appllcatlon for adm~ssion Into the lln~ted 
States. In addit~on, the benefic~ary must seek to enter the Un~ted States temporar~ly to continue render~ng hrs 
or her scrvlces to the same employer or a subs~d~ary or affiliate thereof In a rnanagenal, executlve, or 
specialized knowledge capaclty. 
The regulat~on at 8 C F.R. tj 214.2(1)(3) states that an individual petit~on filed on Form 1-129 shall be 
accompan~ed by: 
(I) Ev~dence that the petlt~oncr and the organizatlon whlch employed or w~ll employ the 
alien are qualrfy~ng organ~zatlons as defined In paragraph (I)(l)(u)(G) of th~s scctlon. 
(11) Ev~dence that the allen w~ll be employed in an executlve, managenal, or speclal~zed 
knowledge capacity, mcluding a deta~led descr~ption of the services to be performed. 
(111) Evldcnce that the alien has at least onc continuous year of full tlme employment 
abroad with a qualifying organizatlon w~thln the three ycars preceding the fillng of 
the petitlon. 
Page 3 
(IV) Ev~dence that the allen's pnor year of employment abroad was In a posltlon that was 
managenal, execut~ve or involved spec~all~ed knowledge and that the allen's prlor 
education, tralnlng, and employment qualifies hlm/her to perform the Intended 
services In the Un~ted States; however, the work In the Un~ted States need not be the 
same work which the allen performed abroad. 
The regulation at 8 C.F.R. 4 214.2(1)(3)(~) states that ~f the petltlon lndlcates that the beneficlary IS comlng to the 
Unlted States as a manager or executlve to open or to be employed In a new office In the Jln~ted States. the 
petltloner shall subm~t evidence that: - 
(A) Suffic~ent phys~cal premlses to house the new office have been secured; 
(B) The benefic~ary has been employed for one continuous year In the three year 
penod preceding the filing of the petitlon in an executlve or managenal capacrty and 
that the proposed employment lnvolved executive or managenal authonty over the 
new operation; and 
(C) The Intended Un~ted States operat~on, withln one year of the approval of the 
petitlon, w~ll support an executlve or managenal posltlon as defined In para~~aphs 
(1)(1)(11)(B) or (C) of ths sect~on, supported by information regarding 
(1) The proposed nature of the office descnblng the scope of the entity. 
~ts organlzatlonal structure, and ~ts financial goals; 
(2) The slze of the Un~ted States Investment and the financ~al abillty of- 
the forelgn entity to remunerate the beneficiary and to commence dolng 
business In the United States; and 
(3) The organlzat~onal structure of the foreign ent~ty. 
The prlmary Issue In th~s matter is whether the pet~t~oner has secured suffic~ent physical premises In whlch to 
house the new organlzatlon. The regulation at 8 C.F.R.tj 214.2(1)(3)(v)(A) prov~des that ~f the petltlon 
lnd~cates that the beneficlary 1s comlng to the LJnlted States as a manager or executlve to open or to be employed 
In a new office, the petlt~oner shall subm~t ev~dence that suflicient phys~cal premises to house the new officc have 
been secured. 
In thls matter, the dlrector found that the evidence subm~tted \v~th the lnltlal petition was lnsufficl~ent to sat~sfy th~s 
requirement. Consequently, the director issued a request for evidence on October 2.2003, spec~fically requesting 
that the pet~t~oner submit a copy of a cornrnerc~al lease agreement In response to the dlrcctor's request. the 
pet~t~oner subm~tted an agreement whereby the pet~t~oner agreed to rent general office space for a ratc of $ lO per 
hour, In addlt~on to a $70 fee per month for the agreement. The d~rector found th~s agreement ~nsufficlent to 
Page 4 
establ~sh that the petltioner had secured sufficient phys~cal premlses for its buslness, and consequently denled the 
petltion. 
On appeal, counsel for the pet~t~oner argues that the director determ~ned that "phys~cal prem~ses" must be 
"exclusive to the lessee.," and further asserts that the dlrector has redefined "physical prem~ses." Counsel further 
contends that the dlrector should have considered what type of phys~cal premlses was sufficient to carry out the 
pet~t~oner's buslness operatlons, and alleges that the petltioner eventually would have purchased a permanent 
physical office. 
Upon revlew of the record of proceedmg, the AAO concurs w~th the d~rector's findlng In thls matter. 'he 
regulat~on at 8 C.F.R. 4 214,2(1)(3)(v)(A) states that if the petitlon Indicates that the beneficiary is comlng to the 
Un~ted States as a manager or execut~ve to open or to be employed In a new officc m the United States, the 
petltloner shall submlt ev~dence that sufficient phys~cal premlses to house the new office have been secured 
In th~s case, the fact that the pet~tloner Intends to engage m retall operatlons yet only has secured shared office 
space that IS rented by the hour suggests that the pet~t~oner's alleged buslness plan IS not ent~rely legitimate. 
Although the petlt~oner lnd~cates that 1t will eventually purchase ~ts own commerc~al space. lt will use th~s 
lnlt~al rental space to plan ~ts future endeavors. Thls allegat~on 1s not acceptable. A v~sa petltion may not be 
approved based on speculation of future elig~b~llty or after the pet~tloner becomes ehg~ble under a new set of 
facts See Matter of Mrchelh Tire Corp., 17 I&N Dec. at 248.: Mcctrer of Kat~gbnk, 14 I&N Dec. 45. 49 
(Comm. 1971) Consequently, the pet~tloner IS not elig~ble for the benefit sought when it 1s clearly not dolng 
business and clearly has not secured adequate space for its Intended operatlons. For th~s reason, the vlsa 
pet~t~on may not be approved. 
The second lssue In th~s matter IS whether the fore~pl entity had the financ~al ab~lity to remunerate the 
beneficlary and to cdmmence dolng busmess In the United States. See 8 C.F.R. 5 214.2(1)(3)(v)(C)(2) In 
response to the d~rector's request for ev~dence, the petitloner submitted copies of two wlre transfers totallng 
$80,000. Flndlng that the transfers were made between ~nd~wduals and not d~rectly between the forclgn entlty 
and the U.S. petitioner, the director concluded that the petltioner had fa~led to establish that the fore~bm entlty was 
capable of financ~ng the U.S. operat~on. 
On appeal. counsel for the petlt~oner confirms that the transfers were In fact between ~ndl\iduafs. IIowever. 
counsel alleges that the supportlng letters accompanying the trdnsfers, s~gned by the Manag~ng Director of the 
U.S. entlty, confirm that the transferred funds were Intended to be depos~ted Into the U.S entlty's corporate bank 
account for the purposes of commencing buslness operatlons. Counsel for the petltloner alleges that th~s ev~dcnce 
was more than suffic~ent to establ~sh the foreign entity's ability to remunerate the benefic~ary and commence 
buslness operatlons. 
Upon review, the AAO concurs wlth the d~rector's findlng In thls matter. 'I'he wlre transfers 'In the record 
show money exchanged between varlous ~nd~vlduals, nonc of whom are the managlng dlrector whose 
supportlng letters are adequate ev~dence, accord~ng to the petitioner, to show the intended use of the funds. 
The petltioner has subm~tted no ev~dence, such as bank statements for the petltloner showlng the deposit of 
these funds into a corporate account. The fact that the petltioner has not secured a physlcal lease also 
Page 5 
suggests that fund~ng may not be available to truly commence U.S. operations. Finally, the supporting letters 
are not acceptable as proof of the ultimate use of the transferred funds. Going on record without supporting 
documentary evtdence 1s not sufficient for purposes of meeting the burden of proof In these proceedings. 
Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treastrrc Cruft of Califorrriu, 14 
I&N Dec. 190 (Reg. Comm. 1972)). Furthermore, although counsel repeatedly contends on appeal that these 
letters are acceptable evldence of the use of these funds, these statements are not acceptable. Without 
documentary evidence to support the claim, the assertions of counsel will not sat~sfy the petitioner's burden of 
proof. The assertions of counsel do not constitute evidence. Matter of Ohaigbenu, I9 I&N Dec. 533, 534 
(BIA 1988); Mutter of Laureano, 19 I&N Dec. 1 (BIA 1983); Mutter of Raniirez-S(lr~che,-. 17 I&N Dec. 503, 
506 (BIA 1980). For th~s additional reason, the petition may not be approved. 
The final issue in this matter is whether the foreign entity would continue doing business after'the u.'s. of-fice 
was established. This issue is relevant because in order for a petifion to be approved, the petitioner must show 
that the petitioner and,& organization which employed or will employ the alien are qualifying organizations. 
8 C.F.R. 4 214.2(1)(3)(i). The regulations define the term "qualifying organization" as a United States or 
foreign firm, corporation, or other legal entity which: 
(I) Meets exactly one of the qualifying relationsh~ps specrfied in the definitions of a 
parent, branch, affiliate or subsidiary specified in paragraph (1)(1)(1i) of this section; 
(2) Is or wll be doing business (engaging in international trade IS not required) as an 
employer In the Unlted States and In at least one other country d~rectly or through a 
parent, branch, affiliate, or subsidiary for the duration of the allen's stay In the United 
States as an intracompany transferee; and 
(3) Otherwise meets the requirements of section 101(a)(15)(L) of the Act. 
Since the evidence of record indicates that the petltioner IS a wholly-owned subsidiary of the foreign parent, 
the director focused on the second criterla above; namely, whether the U.S. ent~ty is or will be doing business. 
'The regulahon at 8 C F.R. $ 214.2(1)(1)(11)(H) defines the term "doing bus~ness" as "the regular, systematic. 
and continuous provision of goods andor services by a qualifying organrzatlon and does not include the mere 
presence of an agent or office of the qualifying organ~mtion in the United States and abroad." 
In this matter, the petitioner claims that the foreign entity is engaged In the retail sale of grocenes. cosmetics. and 
household items. In support of the petltlon, the petitioner submitted the lease agreement, financial statements, 
bank statements, and tax documents for the fore~gn entity I he director found th~s imtial evidence to be 
insuffic~ent, and consequently issued a request for additional evidence on October 2, 2003. The director 
requested addit~onal documentation pertaining to the foreign entity's ongolng business operations. In a response 
dated December 9, 2003, the petltioner subm~tted the requested documentation, and supplemented this e\ idence 
with a number of tnvolces for the penod fiom June 2003 through September 2003. Counsel further contends that 
the director's denial was erroneous, and that the foreign entity would continue operations despite the beneficiary's 
transfer to the United States. 
m 
Page 6 I 
After revlewing this additional ev~dence, the AAO concurs with the director's denial.  he invoices submitted 
prov~de a sporadic vlew of the petitloner's recent buslness act~vit~es. For example, the foreign ent~ty is 
described as a retailer, who sells grocenes, cosmet~cs, and household items However. the only evidence 
submitted that evidences any sales by the foreign entlty are four invoices from June 2003. There are 
numerous other invoices that evidence items purchased by the forelgn entity; yet these documents are not 
translated and their contents are uncertain. Because the petitioner fa~led to submlt certified translations of the 
documents, the AAO cannot deterrnlne whether the ev~dence supports the petitloner's claims. See 8 C.F.R. 
4 103.2(b)(3). Accordingly, the evidence is not probat~ve and will not be accorded any weight In thls 
proceeding. Nevertheless, the record lacks evldence show~ng that the fore~gn entity's retail services are still 
in effect and will contlnue over the comlng months. 
Other than the three lnvolces previously discussed, 'there is no addltional documentat~on existing In the record 
to establish that the pet~tioner has been engaglng in the sale of grocenes, cosmetics, and household Items as it 
claims In the pet~tlon and again on appeal. Golng on record w~thout support~ng documentary evidence IS not 
suffic~ent for purposes of meeting the burden of proof in these proceedings. Mutter of Solfici, 22 I&N Dec 
158, 165 (Comm. 1998) (citing Matter of Treasure Cruft of Calfornrn, 14 I&N Dec. 190 (Reg. Comm 
1972)). In addition, without documentary ev~dence to support h~s cla~ms, the assert~ons of counsel will not 
satlsfy the petitloner's burden of proof. The assertions of counsel do not const~tute ev~dence. Matrer of 
Obaighenu, 19 I&N Dec. 533, 534 (RIA 1988): Matter of Latireatlo, 19 I&N Dec. 1 (BIA 1983). Mutfer of 
Rarnirez-Sarrc/rez, 17 I&N Dec. 503, 506 (BLA 1980). 
Finally. In the event that the lnvolces were accepted as ev~dence, the petitioner overlooks the fact that these 
involces represent, at best, a four-month senes of business activity. There is no addltional evidence of the 
fore~gn entity's alleged busmess operations pnor to th~s time period. which therefore makes ~t ~mpossible to 
conclude that the foreign entity had been regularly and systemat~cally engaged m the provlslon of goods and 
services. The defin~tlon of dolng buslness clearly requires the continuous provlslon of goods and servlces, yet 
the petitioner has faded to subm~t evidence establishing the forelgn entity's buslness activities for the 
remainder of the first year. On appeal, counsel falls to address this pertinent issue. In the present matter, the 
evidence subm~tted is lnsuffic~ent to establ~sh that the fore~gn entlty has been doing business as defined by the 
regulations. Therefore, the fore~gn entity cannot be deemed a qual~fy~ng organization under 8 C' F R. tj 
214.2(1)(3)(1). 
In add~tion, the petitioner Indicates that the beneficiary is the major~ty owner of both companies If this fact is 
establ~shed, ~t remalns to be determined that the benefic~ary's servlces are for a temporary period. rhe 
regulation at 8 C.F.R. tj 214.2(1)(3)(~11) states that ~f the beneficlay is an owner or major stockholder of the 
company, the-petition must be accompan~ed by evidence that the beneficlary's services are to be used for a 
temporary penod and that the beneficiary will be transferred to an asslgnment abroad upon the completion of 
the temporary senrlces In the United States. In the absence of persuasive ev~dence, it cannot be concluded 
that the beneficiary's servlces are to be used temporar~ly or that he w~ll be transferred to an asslgnment abroad 
upon completion of his services In the Un~ted States. 
An application or petitlon that falls to comply with the technical requirements of the law may be denled by 
the AAO even ~f the Serv~ce Center does not identify all of the grounds for denla1 In the inltlal decls~on See 
Page 7 
Sperlcrr Enterprises, he. v United States, 229 9. Supp. 2d 1025, 1043 (E.D. Cal. 2001). qfd. 345 F.3d 683 
(9th Cir. 2003); see also Dor a. INS, 891 F.2d 997, 1002 n. 9 (2d Clr. 1989)(noting that the AAO reviews 
i 
appeals on a dr rlovo basis). 
In visa pet~tlon proceddings, the burden of provlng eligibil~ty for the benefit sought remains entlrely w~th the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. Accordingly. the 
director's declsion will be affirmed and the petitlon will be denied. 
ORDER: The appeal is dismissed.