dismissed L-1A Case: Restaurant

identifyingdata deletedto
prevent clearly unwarranted
invasionof personalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. 3000
Washington, DC 20529
FILE: SRC 06 01552572 Office: TEXAS SERVICE CENTER Date:
INRE: 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. § 110l(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~nn,~
Administrative Appeals Office
www.uscis.gov
SRC 0601552572
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 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)(l5)(L) of the Immigration and Nationality Act (the Act), 8
U.S.C. § 1101(a)(15)(L). The petitioner, a limited liability company organized in the State of South Carolina,
intends to operate a restaurant. The petitioner claims that it is an affiliate of the beneficiary's foreign
employer, Operadora Andersons S.A. de C.Y., located in Cancun, Mexico. The petitioner seeks to employ the
beneficiary as the food and beverage manager of its new office in the United States for a three-year period.
The director denied the petition concluding that the petitioner did not establish: (1) that the U.S. company had
secured sufficient physical premises to house the new office; or (2) that the claimed foreign affiliate had
provided funding or capitalization for the U.S. company.
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner further explains the
corporate structure of the United States operations, noting that the petitioner's group established three United
States companies, which have different functions in order to satisfy state and local regulatory requirements.
Counsel asserts that funding for the business was supplied by the petitioner's ultimate parent company, AlIa
Las Tengo S.A. de c.Y., which is an affiliate of the beneficiary's current foreign employer, through its U.S.
affiliate, La Rana Myrtle Beach, LLC. Counsel notes that although the lease for the restaurant is assigned to
an affiliate of the petitioner, the petitioner's business is operating in the premises and therefore it has met the
regulatory requirements to acquire sufficient physical premises.
To establish eligibility for the L-I nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(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 (l)(l)(ii)(G) ofthis 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.
SRC 0601552572
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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 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 alien performed abroad.
The regulation at 8 C.F.R. § 214.2(1)(3)(v) also 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 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:
(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 first issue in this matter is whether the petitioner has secured sufficient physical premises to house the
new office, as required by 8 C.F.R. § 214.2(1)(l4)(ii)(A).
The nonimmigrant petition was filed on October 20,2005. The petitioner stated that the U.S. entity would be
employed at the following address: In a letter
dated September 22, 2005, the petitioner indicated that the petitioning company was established to develop
and manage a Senor Frog's restaurant, a brand developed by the beneficiary's current foreign employer, in the
United States. The petitioner stated that the restaurant would "either be directly owned or licensed to other
entities under the management of [the petitioner]."
The petitioner submitted an assignment of lease agreement made between Broadway At the Beach, Inc. as
landlord, MBC-Myrtle Beach, LLC as tenant, and s successor tenant, granting
tenancy for the remaining 140 months of the lease, commencing on February 1,
2005. The petitioner provided the following explanation: "Senor Frog's Restaurant will be established in
Myrtle Beach, South Carolina. The lease was assumed by a licensee of
SRC 06 015 52572
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Operadora Anderson's S.A. de C.V., for the sole purpose of establishing Senor Frog's Restaurant." The
petitioner also provided a copy of the original lease agreement between Broadway at the Beach, Inc. and
MBC-Myrtle Beach, LLC d/b/a Murray Bros. Caddyshack. The petitioner provided a floor plan and
photographs depicting the Senor Frogs restaurant.
The petitioner submitted a corporate organizational chart for the petitioner's group, on which
_is identified as a licensee of the petitioner.
On November 1,2005, the director issued a request for additional evidence, in part requesting a lease for the
petitioner, for the principal place of business along with a square footage layout
of the premises, in order to establish that premises sufficient to house they new operation have been secured.
The director also requested evidence that the petitioner was authorized to conduct business as "Murray Bros.
Caddyshack."
-- --
. :
In a response dated January 12, 2006, the petitioner re-submitted the lease agreement, assignment of lease
agreement, and floor plan provided in support of the initial petition, noting that
has executed a lease for 8,500 square feet for the restaurant, along with color photographs of the interior and
exterior of the Senor Frog's restaurant operating at the location. In response to the director's request for
evidence that the petitioner is doing business as "Murray Bros. Caddyshack," the petitioner explained that
MBC-Myrtle Beach, LLC d/b/a Murray Bros. Caddyshack was the original lessee for the premises that has
been assigned The petitioner's response included a "capitalization" chart,
which identifie an affiliate of the petitioner.
The director denied the petition on February 10, 2006, concluding that the petitioner had not established that
the U.S. company has secured sufficient physical premises to operate the new office. The director observed
that neither the original lease agreement nor the assignment of the lease named the petitioner,
•••• , as the tenant.
On appeal, counsel for the petitioner explains that the corporate structure of the petitioner's group in the
United States consists of three companies: (1) Big Gorilla, LLC, which is the holding company for all
operational subsidiaries; (2) which is responsible for the construction of the
premises and applying for food and liquor licenses; and (3) (the petitioner),
which will provide management and supervision of the operations. Counsel further asserts:
The petitioner has secured premises sufficient to house the business through its affiliate, •
•••••••••••••••••••• is an affiliate of the petitioner because
it is effectively controlled through its corporate and management structure. The corporate
structure provides that [two-thirds] of the voting managers (officers) be owners or affiliates of
the petitioner. Furthermore, 85% of the membership interest (stock) is effectively controlled
by the petitioner through an assignment of the membership interest by its initial member....
the purpose of this structure was solely to facilitate the approval of a liquor sales license,
which requires that at least one of the managers of the LLC be a South Carolina resident.
The lease was secured on January 4, 2005 and provides for 8.500 square feet of useable
space. The lease was assigned to and has a term of
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140 months, commencing February 1S\ 2005. Currently, the business is operating in the
premises and has over 60 employees.
In support of the appeal, the petitioner submits an assignment of interest dated June 20, 2005, for _
in which Caribbean Capital Fund, LLC, the original owner of a 100% membership
interest in the company, assigned an 85 percent interest to ho is claimed to be the
owner of both the beneficiary's foreign employer and the petitioner's ultimate parent company, _
., in Mexico.
Upon review, the assertions of the petitioner and counsel are not persuasive. As noted by the director, the
lease agreement does not name the petitioner as a tenant, although the evidence of record indicates that the
restaurant is in fact operating at the leased premises. While the petitioner has described a multi-company
structure in the United States and an explanation that the lease is held by the petitioner's U.S. affiliate, the
petitioner has not adequately documented its relationship with or described how
responsibility for various aspects of the restaurant's operations would be divided between the companies. The
initial information provided by the petitioner was that is a "licensee," rather than
an affiliate, and this discrepancy has not been explained. 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).
In light of this discrepancy, the AAO finds the "assignment of interest" transferring ownership of_
to be insufficient to establish the claimed affiliate relationship. Further, while it appears
that the restaurant was operational at the time of filing or soon thereafter, there is no documentary evidence
confirming that the petitioner, as opposed to the claimed affiliate, is in fact operating the restaurant. 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. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft
of California, 14 I&N Dec. 190 (Reg. Comm. 1972». Therefore, the petitioner's claims fail on an evidentiary
basis, and the appeal will be dismissed.
The second issue addressed by the director is whether the U.S. company was funded by the foreign entity at
the time the petition was filed. When filing a petition for a beneficiary who is to be employed in a new office,
the petitioner is required to submit evidence to establish the size of the United States investment and the
financial ability to commence doing business in the United States. See 8 C.F.R. § 214.2(l)(v)(C)(2).
In support of the petition, the petitioner submitted an unaudited balance sheet for the U.S.-company, dated
May 23,2005, showing assets in the amount of $1,626,860 in the form of a note receivable from _
as well as equity in the form of capital from Big Gorilla LLC, the petitioner's sole member, in
the amount of $1,626,860. The petitioner also provided an "investment estimate" for Senor Frog's Myrtle
Beach, showing a total budget of $3,150,239 for various expenses. The petitioner's initial submission did not
include other evidence to establish the funding or investment in the United States entity. Accordingly, on
November 1, 2005, the petitioner requested evidence of the funding or capitalization of the U.S. company to
include copies of wire transfers showing transfer of funds from the foreign organization and evidence of
financial resources committed by the foreign company, such as copies of bank statements for the U.s.
company's checking and savings accounts.
SRC 06 01552572
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In its response dated January 12, 2006, the petitioner submitted a "capitalization chart" showing that Alla Las
Tengo, S.A. de C.V., a member of Big Gorilla LLC, the petitioner's immediate parent company, and a
claimed affiliate of the beneficiary's foreign employer, transferred funds in the amount of $1,200,000 as
capital t in three separate transactions in May 2005. The chart shows that the
money was then loaned to the petitioner through the issuance of a promissory note from
_ payable to the petitioner. The petitioner provided copies of the three wire transfers identifying
the originator of the funds as AlIa Las Tengo S.A. de C.V. and the reci ient as
The petitioner also provided a copy of a promissory note by which promised to
pay to the order ofEI Sapo Myrtle Beach, LLC [the petitioner] an unspecified amount. The promissory note,
which is dated May 23,2005, references a "Security Agreement," dated March 31, 2005, but a copy of the
security agreement has not been provided for the record. The promissory noted indicates that the principal
amount is due and payable on December 31, 2006.
The director denied the petition on February 10, 2006, concluding that the petitioner had not established that
the funding or capitalization of the petitioner was committed by the foreign entity. The director observed that
the wire transfer transactions were made to rather than to the petitioner. The
director also noted that Ana Tengo S.A. de C.V. "is not the foreign corporation." Referencing the promissory
note made by the claimed U.S. affiliate, the director determined: "This loan from the u.s. company is not
considered funding from the foreign entity nor is the promissory note considered committed funds." Finally,
the director noted that CIS had specifically requested evidence of financial resources committed by the
foreign entity to include copies of bank statements for the u.S. business checking and saving accounts, yet the
petitioner failed to provide these documents. The director concluded that the petitioner did not establish that
the beneficiary's employer, Operadora Anderson's S.A. de C.V., provided funding to the u.S. petitioner.
On appeal, the petitioner submits the following statement:
The petitioner has received committed funds in the form of capital contributions for the start­
up and construction of the business from Alla Las Tengo S.A. de C.V., which is a foreign
affiliate of the petitioner .... All the funds provided by AlIa Las Tengo S.A. de C.V. are
accounted for as capital contributions of the petitioner and are supported by resolutions and
financial statements.... The funds received from Alla Las Tengo S.A. de C.V. is not a
promissory note, but rather a capital contribution.
The funds were sent directly to (an affiliate) by AlIa Las Tengo
SA de CV for the construction and start-up of the business and are properly documet;lted with
resolutions, contracts, and financial statements as committed capital of the petitioner .... the
funds are available to the petitioner because of the affiliate relationship and the effective
control of the company by the same shareholder. A promissory note has been issued between
the two u.S. affiliates and which
was done in this manner solely for local and state regulatory requirements.
The petitioner attaches a copy of a May 2005 bank statement for hich reflects
two wire transfers from Ana Las Tengo S.A. de C.V. in the amounts of $450,000 and $150,000. According to
a summary attached by the petitioner, the third wire transfer in the amount of $600,000 was credited to a
SRC 06 01552572
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different account owned by La Rana Myrtle Beach, LLC, but the petitioner has not proVided a copy of the
bank statement for that account.
Upon review, the AAO finds insufficient evidence of the funding or capitalization of the petitioning company
by a related foreign party. Although the record confirms monies transferred from Alla Las Tengo S.A. de
C.V., which appears to be the petitioner's ultimate parent company, to the petitioner's claimed affiliate, •
the record contains no evidence of monies transferred to the petitioning
organization. As discussed above, the petitioner has not submitted sufficient evidence to document its
claimed affiliate relationship with LLC, nor does it appear that the claimed
relationship existed at the time the wire transactions occurred or at the time the promissory note was signed.
The only financial document submitted for the petitioning entity was an unaudited balance statement which
indicated that the company had received capital in the amount of $1,626,860 from its sole member, Big
Gorilla, LLC, yet the petitioner did not provide any supporting documentation related to this capital
investment. Finally, as noted above, the promissory note does not specify the amount of funds involved, and
the document contains repeated references to the terms of a March 31, 2005 security agreement that has not
been provided for the record. 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.
The AAO acknowledges the petitioner's claims that there were legitimate business reasons for establishing a
multi-eompany organizational structure for the operation of the Sefior Frog's restaurant located in Myrtle
Beach, South Carolina, and under the circumstances, would be willing to consider evidence that the
petitioner's lease agreement and funding were both attained through its claimed affiliate,
•••••. However, as discussed above, the petitioner has provided neither adequate explanation nor
sufficient documentary evidence in support of its claims regarding the affiliate relationship and the multi­
company structure, nor adequately described the separation of responsibilities between the two companies in
the United States. Based on the evidence provided, it has not been clearly established that the petitioning
company, as capitalized at the time the petition was filed, or that it would be
the entity operating the restaurant or otherwise engaged in the provision of goods and/or services in the
United States. Accordingly, the appeal will be dismissed.
The petition 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. § 1361. Here, that burden has
not been met.
ORDER: The appeal is dismissed.