dismissed L-1A Case: Retail

identifyingdata deletedto
preventclearlyunwarranted
invasionof personalprivaq'
.PUBLIC COpy
U.S. Department of Homeland Security
20 Mass. Ave., N,W., Rm. 3000
Washington, DC 20529
-, .'
U.S. Citizenship
and Immigration
Services
FILE: SRC 06 066 52596 Office: TEXAS SERVICE CENTER Date: 'FEB 2 2 2007
INRE: 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. § 1101(a)(15)(L)
ON 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.
G~,4L·
~Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
SRC 06 066 52596
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 is a Florida corporation, and claims to be engaged in the retail sale of women's clothing. It
states that it is a subsidiary 0 , located in Sao Paolo,
Brazil. The U.S. entity petitioned Citizenship and Immigration Services (CIS) to classify the beneficiary
as a nonimmigrant intracompany transferee (L-lA) pursuant.to section 101(a)(l5)(L) of the Immigration
and Nationality Act (the Act), 8 U.S.C. § 'll01(a)(l5)(L). The petitioner seeks to employ the
beneficiary's services as the president of its new office in the United States for a one-year period.
The director denied the petition on April 10, 2006 concluding that there is- insufficient evidence to
demonstrate that a sufficient financial investment had been made in order to establish the new office. The
director also noted that since the petitioner has not established that sufficient funds have been invested
into the U.S. office, the petitioner has thus not established that the intended U.S. operation will support an
executive or managerial position within one year of operation.
The petitioner subsequently filed an appeal on April 26, 2006. The director declined to treat the appeal as
a motion and forwarded the appeal to the AAO for review. On appeal, the beneficiary asserts that the
U.S. company was not provided adequate counsel from its attorney and was not told that the U.S.
company's bank account should have funding from the foreign parent company. The beneficiary further
explains that she personally paid all initial expenses such as rent, water and electricity. The beneficiary
states that once she received the director's request for evidence asking for proof of funding or
capitalization of the foreign company, she then initiated a wire transfer from the foreign company for
deposit to the U.S. company's bank account. The petitioner su~mits a letter and additional evidence in
support ofthe appeal.
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 enter theUnited 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) further states that an individual petition filed on Form I-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)(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.
SRC 06 066 52596
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 ofemployment 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(1)(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 in the
United States, the petitioner shall submit evidence that:
(A) S~fficient 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 (1)(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.
The primary issue to be discussed in this matter is whether the petitioner established that a sufficient
financial investment has been made in the United States company, as required by 8 C.F.R. §
214.2(1)(3)(v)(C)(2).
As. outlined in 8 C.F.R. § 214.2(1)(3)(v), 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 petitioner must affirmatively
demonstrate 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. §
SRC 06 066 52596
Page 4
214.2(l)(3)(v). The regulations specifically require the petitioner to disclose the new office's business
plans and the size of the Untied States investment, and thereby establish that the proposed enterprise will
support an executive or managerial position within one year. Id.
In the instant matter, the petitioner has not provided sufficient evidence of the foreign entity's financial
investment of the United States operation, as required by 8 C.F.R.§ 214.2(l)(3)(C)(2). As evidence ofa
financial investment for the U.S. company, the petitioner submitted a copy of a Bank of America
statement in the U.S. company's name for the period ended December 21, 2005. The bank statement
indicates one deposit in the amount of $400:00 and two counter credits in the amount of $600.00 and
$100.00.
On January 5,2006, the director requested further documentation in order to proceed with the processing
of the pending petition. Specifically, the director requested evidence of the funding or capitalization of
the United States company, such as copies of wire transfers showing transfers of funds from the foreign
organization, evidence of financial resources committed by the foreign company, copies of bank
statements for checking and savings accounts, and/or profit and loss statements of other accountant's
reports.
In the petitioner's response dated March 27, 2006, the petitioner submitted a wire transfer dated March
17,2006 from the foreign company, transferring$15,000 to the U.S. entity's bank account in the United
States. In addition, the petitioner submitted a bank statement from the Bank of America, under the
account name of the U.S. entity, indicating that a wire transfer for the amount of $14,980 were credited to
the company's bank account on March 17,2006.
The director denied the petition on the ground that the petitioner failed to submit sufficient evidence of a
financial investment in the United States company, as required by 8 C.F.R. § 214.2(l)(3)(v)(2).
Specifically, the director observed that the wire transfer occurred three months after the instant petition
was filed and two months after the director's request for evidence was issued.
On appeal, as noted above, the petitioner asserts that the petitioner's attorney provided bad counsel
regarding the U.S. company's bank account. In addition, the petitioner states that the wire transfer
occurred two months after receiving the request for evidence because there was a computer error which
.indicated that the foreign company was delinquent in paying a tax, and therefore the wire transfer was
delayed two-months. '
Any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim
be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement
that was entered into with counsel with respect to the actions to be taken and what representations counsel
did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is
being impugned be informed of the allegations leveled against him and be given an opportunity to
respond, and (3) that the appeal or motion reflect whether a complaint has been filed with appropriate
disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if
not, why not. Matter ofLozada, 19 I&N Dec. 637 (BIA 1988), afJ'd, 857 F.2d 10 (1st Cir. 1988). The
petitioner did not comply with any of the above-mentionedrequirements.
SRC 06 066 52596
Page 5
Upon review, the petitioner has not provided sufficient evidence of a financial investment from the
foreign entity as required by 8 C.F.R. § 2l4.2(l)(3)(v)(C)(2). The petitioner presented evidence of a wire
transfer for the amount of $15,000 originated from the foreign parent company and deposited in the U.S.
entity's bank account on March 17, 2006, four months after the instant petition was filed. The petitioner
must establish eligibility at the time of filing the nonimmigrant visa petition. A visa petition may not be
approved at a future date after the petitioner or beneficiary becomes eligible under a new set of facts.
Matter ofMichelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm, 1978).
On appeal, the petitioner explains that once she received the director's request for evidence, she became
aware of the fact that the petitioner must present evidence of sufficient funding for the U.S. entity. It was
at this time that the petitioner requested a wire transfer from the foreign company. Again, a visa petition
may not be approved based on speculation of future eligibility or after the petitioner or beneficiary
becomes eligible under a new set of facts. See Matter ofMichelin Tire Corp., 17 I&N Dec. 248; Matter
of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). A petitioner may not make material changes to a
petition in an effort to make a deficient petition conform to CIS requirements. See Matter ofIzummi, 22
I&N Dec. 169, 176 (Assoc. Comm. 1998).
Furthermore, the petitioner has not submitted a business plan or other documentation to establish the U.S.
company's anticipated start-up expenses and it is therefore not possible to determine what investment
amount would be sufficient. Therefore, even assuming, arguendo, that the approximately $15,000 in the
U.S. entity's account as of March 2006 was intended to be used. as capitalization for the new U.S.
company, the AAO could not conclude that this amount is adequate for the U.S. company to commence
doing business in the U.S. The petitioner has not disclosed the size of the U.S. investment, as required by ..
8 C.F.R. § 2l4.2(l)(3)(v)(C)(2). 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)). For the foregoing reasons, the appeal will be dismissed.
As noted by 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. Specifically, the petitioner has not adequately defined the proposed nature of the
office, and has not realistically described the anticipated scope of the entity; its organizational structure
"and its financial goals. SeeB C.F.R. § 2l4.2(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. § 2l4.2(l)(3)(v). As noted
above, 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
must 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. § 2l4.2(l)(l4)(ii)(B).
SRC 06 066 52596
Page 6
Furthermore, as contemplated by the regulations , a comprehensive business plan should contain , at a
minimum, a description of the business, its products and/or services, and its objectives. See Matter ofHo,
,22 I&N Dec. 206 , 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory
requirements for the alien entrepreneur immigrant visa classification, Matter ofHo 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 process, 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.
!d.
The petitioner submitted a one page docu~ent entitled "company overview" that provides a very vague
outline of certain goals the U .S. company wishes to achieve . The overview explains that the U.S .
, company's strategy will be to have "very attracti ve and competitive prices to fulfill the America market
standards," and the company's strategy is to invest in advertising, participate in events and create a web
page. The overview also ' states that the U.S. company plans to hire one administrative manager, one sales
person and one secretary . The petitioner did not submit a business plan that outlines the U.S. entity's
funding requirements and financial objectives, or explains how the U.S. entity will reach the listed goals
and plans and if it is financially feasible to do so . Going on record w ithout supporting documentary
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings, Matter of
Soffici, 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 executi ve capacity as defined at section 101(a)(44) of the Act. 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 performed 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-I nonimmigrant classification during the first year of
operations, the regulations require the petitioner to disclose the business plans 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 . § 214.2(l)(3)(v)(C).
This evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly
SRC 06 066 52596
Page 7
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. The petitioner has not
submitted sufficient evidence to establish that the intended United States operations, within one year of
approval, will support an executive or managerial position.
As noted above, the petitioner indicated that the U.S. company intends to hire an administrative manager,
one sales person and one secretary. However, when the director specifically requested information
regarding the staffing level of the U.S. entity by the end of the first year of operations, the petitioner
indicated that the U.S. entity will hire one general manager, three sales persons, and two cashiers. The
petitioner did not explain why the proposed staffing level of the U.S. entity changed after the request for
evidence. 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 of Ho, 19 I&N
Dec. 582,591-92 (BIA 1988).
In its response to the director's request for further evidence; the petitioner expanded the beneficiary's
duties by adding several subordinate positions in which the beneficiary will supervise. In sum, the initial
description appeared to have the beneficiary doing more of the actual work since the U.S. entity would
employ one administrative manager, one sales person and one secretary, while the second iteration of the
staffing level has the beneficiary managing more of the actual work done in the petitioner's operation
through proposed subordinates who will perform the day-to-day operations of the company.
The purpose of the request for evidence is to elicit further information that clarifies whether eligibility for
the benefit sought has been established. 8 c.P.R. § 103.2(b)(8). When responding to a request for
evidence, a petitioner cannot offer a new position to the beneficiary, or materially change a position's title,
its level of authority within the organizational hierarchy; or its associated job responsibilities. The
petitioner must establish that the position offered to the beneficiary when the petition was filed merits
classification asa managerial or executive position. Matter ofMichelin Tire Corp., 17 I&N Dec. 248,249
(Reg. Comm. 1978). If significant changes are made to the initial request for approval, the petitioner must
file a new petition rather than seek approval of a petition that is not supported by the facts in the record.
The information provided by the petitioner in its response to the director's request for further evidence did
not clarify or provide more specificity to the beneficiary's level of authority, but rather elevated the
beneficiary's level of authority within the organizational hierarchy. Therefore, the analysis of this
criterion will be based on the job description submitted with the initial petition.
The petitioner submitted a proposed hiring plan for the U.S. company. The petitioner indicated that the
U.S. entity will hire one administrative manager, one sales person "and one secretary. Thus, it appears
from the record that the beneficiary will perform many or all of the marketing, finance operations,
business development activities, and export and import operations. An employee who "primarily"
performs the tasks necessary to produce a product or provide services.is not considered to be "primarily"
employed in amanagerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring
that one "primarily" perform the enumerated managerial or executive duties); see also Matter of Church
Scientology International 19 I & N Dec. at 604. . ,
SRC 06 066 52596
Page 8
Upon review of a totality of the evidence, the record is not persuasive in establishing that the beneficiary
will be employed in a primarily managerial or executive capacity within one year. For this additional
reason, the appeal will be dismissed.
Beyond the decision of the director, the record contains insufficient evidence to establish that the overseas
company employed the beneficiary in a primarily managerial capacity. The petitioner indicated that the
beneficiary held the position of director at the foreign company and supervised all the employees of the
.company. However, the petitioner also submitted the beneficiary's pay stubs issued by the foreign
. company for 2005 which indicated the beneficiary's position as "financial analyst." 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 ~988).
For this additional reason, the petition cannot be approved.
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 and the appeal dismissed 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. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.