dismissed L-1A Case: Real Estate Investment

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invasionofpefIOB8.lpnVIGY
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE: SRC 06 056 53566 Office: TEXAS SERVICE CENTER Date:¥.~{ Gt 2m
IN RE:Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the
Immigration and Nationality Act, 8 U.S.c. § 1101(a)(l5)(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.
·~lIH
dRObertP.~rAdministrative Appeals Office
www.uscis.gov
SRC 06 056 53566
Page 2
DISCUSSION: The Director; Texas Service Center, denied the petition for a nonimmigrant visa. The
. matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner, a Texas limited liability company, claims to be an affiliate of Lubricacion Acapulco, S.A.
De c.v., loca~ed in Mexico. The' petitioner states that the United States entity is engaged in the business
of real estate investment. Accordingly, the United States entity petitioned CIS to classify the beneficiary
as a nonimmigrant intracompany transferee (L-IA) pursuant to section 101(a)(15)(L) of the Act (the Act),
8 U.S.c. § 1101(a)(15)(L). The petitioner seeks to employ the beneficiary as president for a period Of one
year to open a new office in the United States.
The director denied the petition, concluding that the record contains insufficient evidence to demonstrate
that sufficient funding or capitalization was provided to the U.S. entity from the foreign entity.
The petitioner subsequently filed an appeal on April 30, 2006 and asserted on Form 1-1290B that the
Service is "applying a very narrow and radical interpretation of the federal regulations by requiring. that
the foreign entity has to issue the wire transfers to the U.S. company at the moment of the filing of the
petitioner." Counsel contends that the Service must focus on th~ foreign company's ability to provide
funding to the U.S. company. Counsel indicated on Form 1-1290B that he 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 February 6, 2007 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 responded via facsimile on February
6, 2007 indicating that counsel did not file a brief or evidence in support of the appeal. Accordingly, the
record will be considered complete..
To establish eligibility under section 101(a)(l5)(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 e~ter the United States
temporarily to 90ntinue 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)further 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 performed.
SRC 06 056 53566
Page 3
(iii) Evidence that the alien has at least om: 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 w·as ina 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 alieD performed abroad.
The regulation at8 C.F.R. § 214.2(l)(14)(ii) also provides that a visa petition, which involved the opening
of a new office, may be extended by filing a new Form 1-129, accompanied by the following:
(A) Evidence that the United States and foreign entItIes are still qualifying
organizations as defined in paragraph (l)(1)(ii)(G) of this section;
(B) Evidence that the United States entity has been doing business as defined in
paragraph (l)(l)(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 describ~ng 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 issue in this proceeding is whether sufficient funding or capitalization was provided to the U.S. entity
from the foreign entity. The regulation at 8 C.F.R. § 2l4.2(l)(3)(v)(C)(2) requires the petitioner to submit
evidence of the size of the United States investment and the ability to commence doing business in the United
States. .
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 petltioner must affirmativelydeinonstrate 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. § 214.2(l)(3)(v). If approved, the benefiCiary is granted a one­
year period of stay to open the "new office." 8 C.F.R. § 214.2(l)(7)(i)(A)(3).
The nonimmigrant petition was filed on December 12,2005. The petitioner submitted a business plan for the
U.S. company which outlined a "start-up summary'; of the U.S. company. The business plan stated that the
U.S. company will "receive initial funding from the [beneficiary] and Ana Livia Castrejon in the form of
SRC 06 056 53566
Page 4
capital contribution and short-term loans." The business plan also indicated that the start-up expenses will be
approximately $10,000. The petitioner did not submit documentation to demonstrate that the initial
contribution of$lO,OOOwas deposited in the u.s.company's bank account.
On December 19, 2005, the director requested documentary evidence of the funding or capitalization of the
U.S. company such as copies of wire transfers showing the transfer of funds from the foreign compa~y. In·
the petitioner's response dated March 17,2006, the petitioner submitted one copy of a statement from Chase
Bank that indicated a wire transfer on March 13,2006 from the foreign affiliate company credited to the U.S.
company, in the amount of $908.00; and a second wire transfer on March 3, 2006 from the foreign company
credited to the U.S. company in the amount of $8,505.00. It appears that the two wire transfers were made in
March 2006, nearly three months after the instant petition was filed. The petitioner must establish eligibility
at the time of filing the nonimmigrant visa petition. Avisa 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&NDec. 248 (Reg. Comm. 1978).
Furthermore, in reviewing the business plan, it is unclear why the plan indicated that the initial funding for
the U.S. company will derive from the beneficiary and (1; 7··7 F vhen the monies were
eventually transferred from the claimed foreign affiliate company. It is incumbent upon the petitioner to
resolve any inconsistencies in the record by independent objective evidence. Any attempt to explain or
reconcile such inconsistencies will not suffice unless the petitioner submits competent objective evidence
pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988).
Upon review, the documentation submitted by the petitioner is insufficient to establish that funding to the
U.S. entity was provided by either its individual members or by the foreign company as of the date of filing.
The wire transfers from the foreign affiliate company occurred three months after the instant petition was
filed. The petitioner fails to submit documentation of funding from the foreign company or from the U.s.
company's two individual members, such as evidence of wire transfers from the foreign company into the
U.S. entity's company bank account, cancelled checks, or deposit receipts, when the petition was filed in
December 2005. 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. Based on the
insufficiency of the information furnished, it cannot be concluded that the petitioner has secj.lred a
sufficient financial investment for the purpose of commencing operations in the United States.
On the Form I-290B, Notice of Appeal, counsel for the petitioner asserts that the regulations do not
require that the "foreign entity has to issue the wire transfers to the U.S. company at the moment of the
filing of the petition." Counsel contends that CIS must focus on the foreign company's ability to
capitalize the U.S. company rather then the timing of the bank transactions. As noted, counsel indicated
on Form I-1290B that he 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
February 6, 2007 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 responded via facsimile on February 6, 2007 indicating that counsel did riot file
a brief or evidence in support of the appeal.
SRC 06 056 53566
Page 5
Beyond the decision of the director, the petitioner has not submitted sufficient evidence to demonstrate
that the intended U.S. operation, within one year of the approval of the petition, will support an executive
or managerial position. Spe~ifically, the petitioner has not adequately defined the proposed nature of the
office, and has not realistically described the scope of the entity, its organizational structure and its
financial goals. See 8 C.F.R. § 214.2(l)(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 ready 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 rpust 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 had been doing business in a regular, systematic, and continuous manner "for the
previous year." 8 C.F.R. § 214.2(l)(l4)(ii)(B) .
. Furthermore, as contemplated by the regulations, a comprehensive business plan should contain, at a
miriimum, a description of the business, its products and/or services, and its objectives. See Matter ofRo,
22 I&N Dec. at 213. Although the precedent relates to the regUlatory requirements for the alien
. entrepreneur immigrant visa classification, Matter ofRo is instructive as to the contents of an acceptable
business plan:
The plan should contain a market analysis, including the names of competing businesses
and their relative strengths and weaknesses, a comparison of the competition's products
and pricing structures, and a description of the target market/prospective customers of the
new commercial enterprise. The plan should list the required permits and licenses
obtained. If applicable, it should describe the manufacturing or production proces.s, the
materials required, and the supply sources. The plan should detail any contracts executed
for the supply of materials and/or the distribution of products. It should discuss the
marketing strategy of the business, including pricing, advertising, and servicing. The plan
should set forth the business's organizational structure and its personnel's experience. It
should explain the business's staffing requirements and contain a timetable for hiring, as
well· as job descriptions for all positions. It should contain sales, cost, and income
projections. and detail the bases therefore. Most importantly, the business plan must be
credible.
Id.
The petitioner submitted a business plan that states that the goal is to start a new business in the United
States "to invest in distressed properties that require rehabbing for retail or rental." .The business. plan
fails to outline how the U.S. entity will reach the listed goals and plans and if iUs financially feasible to
do so within the first year of operation. In addition,. according to the financial plan listed in the business
SRC 06 056 53566
Page 6
plan, the U.S. company will "seek additional financing from investor friendly lenders," however, the
petitioner has not provided any documentation that the U.S. company already obtained financing from
these lenders. 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.
In addition, the record is not persuasive in demonstrating that the beneficiary would be employed in a
managerial or executive capacity as defined at section 101(a)(44) of the Act. On the Form 1-129, the
petitioner stated that the U.S. company plans to hire four to five employees .. However, the petitioner did
not explain when the U.S. company plans to hire the proposed employees; and did not explain the job
duties of the proposed employees. In addition, the petitioner did not explain the anticipated structure of
the U.S. organization at the end of the first year of operations. Based upon the lack of comprehensive job
descriptions for the proposed employees, the lack of evidence of the company's staffing levels, and the
lack of a hiring plan, the AAO cannot determine if the beneficiary wjll be employed in a managerial of
executive capacity within one year. For this additional reason, the appeal will be dismissed.
, 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),
afJ'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 AAOreviews appeals on a de novo basis).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decisi~n. In visa petition proceedings, th~ 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. Accordingly; the appeal will be dismissed.
ORDER: The appeal is dismissed.