dismissed L-1A Case: Restaurant And Property Development

identifying data deleted to
prev~nt clearly unwarranted
mvasJonofpersonalprivacy
U.S. Department of Homeland Security
20 Massachusetts Ave., N.W., Rm. A3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
PUBLICCOpy
File: SRC 06 086 51476 Office: TEXAS SERVICE CENTER Date:
1
JUN 05 zoo~
IN RE: Petitioner:
Beneficiary:
Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration
and Nationality Act, 8 U.S.C. § 1IOl(a)(l5)(L)
IN BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~,., .. e"'~
Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 086 51476
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 in the position of vice
president to open a new office in the United States 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)(l5)(L). The petitioner, a limited liability company organized under the laws of the State of Florida,
claims to be engaged in the business of "retail hos itali restaurant and property development," and alleges
that it is the subsidiary of
The director denied the petition concluding that the petitioner failed to establish that the beneficiary had at
least one continuous year of full-time employment abroad with a qualifying organization within the three
years immediately preceding the filing of the petition.
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, the petitioner asserts the definition of "intracompany
transferee" only requires the petitioner to establish that the beneficiary had at least one year of continuous
employment by a qualifying relationship within three years preceding the time of her application for
admission into the United States. The petitioner asserts that, since the beneficiary first applied for, and was
granted, admission into the United States on June 7, 2002 in H-4 visa status, the beneficiary only needs to
demonstrate that the beneficiary had been employed abroad for one continuous year within three years
preceding June 7, 2002. As the beneficiary was allegedly employed in a managerial or executive capacity for
a qualifying organization from February 1, 2001 until April 30, 2002, the petitioner asserts that it meets this
criterion. In support of the appeal, counsel submitted a brief and additional evidence.
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria
outlined in section 101(a)(l5)(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)(I)(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 06 086 51476
Page 3
(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 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.
In addition, the regulation at 8 C.F.R. § 214.2(l)(3)(v) states 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, 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; 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)(1)(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.
Finally, "intracompany transferee" is defined in 8 C.F.R. § 214.2(l)(l)(ii)(A) as follows:
Intracompany transferee means an alien who, within three years preceding the
time of his or her application for admission into the United States, has been
employed abroad continuously for one year by a firm or corporation or other
legal entity or parent, branch, affiliate, or subsidiary thereof, and who seeks to
enter the United States temporarily in order to render his or her services to a
branch of the same employer or a parent, affiliate, or subsidiary thereof in a
SRC 06 086 51476
Page 4
capacity that is managerial, executive, or involves specialized knowledge.
Periods spent in the United States in lawful status for a branch of the same
employer or a parent, affiliate, or subsidiary thereof and brief trips to the United
States for business or pleasure shall not be interruptive of the one year of
continuous employment abroad but such periods shall not be counted towards
fulfillment of that requirement.
The primary issue in this proceeding is whether the petitioner has established that the beneficiary had at least
one continuous year of full-time employment abroad with a qualifying organization within the three years
immediately preceding the filing of the petition.
The instant petition was filed on January 23, 2006. As indicated above, the petitioner asserts that the
beneficiary was employed in a managerial or executive capacity for a qualifying organization from February
1, 2001 until April 30, 2002. The petitioner also asserts that, since the beneficiary first applied for admission
into the United States on June 7, 2002 as an H-4 nonimmigrant, she only needs to establish that she had at
least one continuous year of full-time employment abroad with a qualifying organization within the three
years immediately preceding this date and not the date of the filing of the instant petition.'
On February 14, 2006, the director denied the petition. The director concluded that the petitioner failed to
establish that the beneficiary had at least one continuous year of full-time employment abroad with a
qualifying organization within the three years immediately preceding the filing of the petition.
On appeal, the petitioner reiterates its argument that the definition of "intracompany transferee" only requires
the petitioner to establish that the beneficiary had at least one year of continuous employment by a qualifying
relationship within three years preceding either June 7, 2002 or December 3, 2003, the two dates on which
she applied for admission into the United States.
Upon review, the petitioner's assertions are not persuasive and the appeal will be dismissed.
As indicated above, the regulation at 8 C.F.R. § 214.2(1)(3)(iii) clearly requires that an individual petition
filed on Form 1-129 be accompanied by evidence that the beneficiary "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." (emphasis added). This requirement is repeated in the "new office" regulations at 8 C.F.R. §
214.2(1)(3)(v)(B). While the petitioner correctly quotes the definition of "intracompany transferee" in the
regulations, its interpretation of this definition is inconsistent with the clear and unambiguous requirements
set forth in 8 C.F.R. § 214.2(1)(3).
lIt is further noted that the record indicates that the beneficiary was in the United States in H-4 visa status
from June 7, 2002 until October 23, 2003. She was then readmitted to the United States as an H-4
nonimmigrant on December 3, 2003, and, pursuant to an extension of stay, remained in H-4 visa status until
August 13, 2005 at which time she changed status to that of a B-2 nonimmigrant visitor for pleasure. The
beneficiary was in B-2 nonimmigrant status at the time the instant petition was filed on January 23, 2006.
SRC 06 086 51476
Page 5
Moreover, it is noted that the petitioner's evidence regarding alleged prior approvals by Citizenship and
Immigration Services (CIS) of petitions for L-1A nonimmigrants who had been employed for one continuous
year abroad more than three years prior to the filing of the relevant petitions is not persuasive for two reasons.
First, even if a service center director had approved the nonimmigrant petitions on behalf of beneficiaries in
accordance with the petitioner's erroneous interpretation of the regulations, the AAO would not be bound to
follow these decisions of the service centers. See Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785
(E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
Second, the redacted Forms 1-797 and 1-129 submitted by the petitioner fail to provide enough information for
CIS to confirm what the petitioner asserts is even true. For example, in its brief the petitioner refers to the
purported approval of an L-1A petition on November 17, 2005 for a beneficiary who had been in the United
States since August 2001, and who had not worked abroad since July 1999, as evidence that its interpretation
of the regulations is correct. However, the petitioner did not reveal whether the beneficiary in that case had
been employed in the United States beginning in 2001 in H-IB status for an employer who has a qualifying
relationship with the foreign employer. In such a case, the November 17, 2005 would have been entirely
appropriate under the regulations because "periods spent in the United States in lawful status for a branch of the
same employer or a parent, affiliate, or subsidiary thereof . . . shall not be interruptive of the one year of
continuous employment abroad but such periods shall not be counted towards fulfillment of that requirement." 8
C.F.R. § 214.2(1)(1 )(ii)(A). In the instant case, because the beneficiary was in the United States in either H-4
or B-2 status, she was not in the United States on behalf of the foreign employer, and CIS may not "reach
over" her stay in the United States and consider employment abroad which concluded more than three years
prior to the filing of the instant petition. '
Accordingly , as the petitioner has failed to establish that the beneficiary had at least one continuous year of
full-time employment abroad with a qualifying organization within the three years immediately preceding the
filing of the petition , the petition may not be approved.
Beyond the decision of the director, the petitioner has failed to establish that the foreign entity has made an
investment in the United States operation as required by 8 C.F .R. § 214.2(l)(3)(v)(C)(2) or that the foreign
entity has a qualifying relationship with the petitioner.
In support of its assertion that the foreign entity has made an investment in the United States operation, the
petitioner submitted evidence that the foreign entity issued a c ly ~Indian
rupees to a third party, in December 2005. n_then
wrote a check made payable to the petitioner on January 17,2006 for $25,147.00. The petitioner further
2It is also noted for the record that the interim decision cited by the petitioner, Matter of Thompson, 18 I&N
169 (Comm. 1981) , is not relevant to the instant matter. First, the facts of the decision are entirely inapposite
to the instant matter. The decision and underlying facts are not analogous to the instant case and the holding
of the decision has nothing to do with the petitioner's interpretation of the definition of intracompany
transferee . Second , this decision has been overturned. See 52 Fed . Reg. 5738, 5741 (February 26, 1987).
SRC 06 086 51476
Page 6
alleges that, on January 9, 2006, the sole member of the petitioning limited liability company conveyed 51%
of the membership interests to the foreign entity.
Upon review, the petitioner has not credibly established that the foreign entity has made an investment in the
ntity. The evidence submitted by the petitioner establishes only that and
,a arentl residents of New Jersey, have written a check to the petitioner for $25,147.00.
The fact that an may have received an identical amount of money from the
foreign entity a few weeks earlier, a fact that the record also does not clearly establish, does not prove that the
foreign entity has actually invested this sum in the United States operation. The petitioner offers no credible
explanation as to why the foreign ~fer th~o the petitioner. Likewise, the
petitioner offers no evidence that _ and _ were obligated to make their
investment in the United States entity on behalf of the foreign entity upon their supposed receipt of the money
from India. Finally, the petitioner offers no explanation as to why the membership certificate was issued to
the foreign entity over one week before it received the "investment" or why the $25,147.00 was transferred to
the petitioner when the sole member, , was actually the seller of the membership interest.
In view of the above, the petitioner has failed to establish that the foreign entity has made an investment in the
United States operation, and the petition may not be approved for this additional reason.
Moreover, because it has not been established that the foreign entity actually paid for its 51% membership
interest, the petitioner has failed to establish that it has a qualifying relationship with the foreign entity. As
ownership and control are critical elements in determination whether the foreign entity and the petitioner are
the same employer for purposes of this visa classification, CIS may reasonably inquire beyond the issuance of
paper stock or membership certificates into the means by which ownership or control was acquired. In this
matter, because it has not been credibly established that the foreign entity has made an investment in the
United States operation, it has not been established that the issuance of a membership certificate to the foreign
entity truly represents the vesting of ownership and control in the foreign entity. Therefore, the petitioner has
not established that is has a qualifying relationship with the foreign entity as required by 8 C.F.R. §
214.2(l)(3)(i). For this additional reason, the petition may not be approved.
Beyond the decision of the director, the petitioner has failed to demonstrate that the intended United States
operation, within one year of the approval of the petition, will support an executive or managerial position
because the petitioner failed to sufficiently describe the scope of the United States operation as required by 8
C.F.R. § 214.2(l)(3)(v)(C)(l).
In support of its petition, the petitioner submitted a business plan allegedly describing the scope of the United
States operation. However, this business plan, and the record as a whole, fails to describe with any specificity
the proposed business operation in the United States. The business plan states generally that the petitioner
"assists investors and other businesses in developing properties - be it a convenience store, hotel, motel,
office building or apartment complex. [The petitioner] help[s] in securing loans as well as getting approvals
from various authorities. We also do [a] market study before you make [a] buy/sell decision[.]" However,
the petitioner never specifically defines what services it will provide or how it will help secure loans or
perform market studies. Simply put, the business plan reveals absolutely nothing material about the proposed
SRC 06 086 51476
Page 7
business in the United States. Going on record without supporting documentary evidence is not sufficient for
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
Specifics are clearly an important indication of whether a petitioner will likely expand beyond the
developmental stage and become fully functional business enterprise; otherwise meeting the definitions would
simply be a matter of reiterating the regulations. See generally Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp.
1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). In order for a business plan to be sufficient, it must
be credible. See Matter ofHo, 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).
Accordingly, as the petitioner has failed to credibly describe the scope of the United States operation, the
petition may not be approved 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), affd, 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).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff can
succeed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO's
enumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought.
Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.
ORDER: The appeal is dismissed.