dismissed L-1A Case: Retail/Distribution

identifyins data det& to 
prevent clearly unwmted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave, N.W., Rm. A3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
File: SRC 03 150 54728 Office: TEXAS SERVICE CENTER Date: @J 2 3 2006 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101 (a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. $ 1 10 1(a)(15)(L) 
IN 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. 
- 
5 -,.---- - 
Robeft-PrWiemann, Chief 
Administrative Appeals Office 
SRC 03 150 54728 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the petition for a nonimmigrant visa and a 
subsequent appeal was dismissed. The matter is now before the Administrative Appeals Office (AAO) on a 
motion to reopen and reconsider. The motion to reopen will be granted, but the motion to reconsider will be 
denied. 
The petitioner filed this nonimmigrant petition seeking to extend the employment of its president and director 
as an L- 1 A nonimmigrant intracompany transferee pursuant to section 10 1 (a)(15)(L) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 8 1101(a)(15)(L). The petitioner is a subsidiary o 
located in Lahore, Pakistan, and is engaged in the distribution of durable and 
stores. In addition, the petitioner operates gas stations. The beneficiary was initially granted a one-year 
period of stay to open a new office in the United States, and the petitioner now seeks to extend the 
beneficiary's stay. 
The director denied the petition concluding that the petitioner did not establish that the beneficiary had been 
and will continue to be employed in the United States in a primarily managerial or executive capacity. 
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 contends that the director 
erroneously denied the petition by relying solely on the small number of employees that the petitioner 
retained, and concludes that the level of the beneficiary's duties in the United States "requires significant 
authority over generalized policies which constitutes to the conclusion that the beneficiary's duties are 
primarily managerial in nature." 
The AAO dismissed the appeal, finding that the record was not persuasive in demonstrating that the 
beneficiary has been or will be employed in a primarily managerial or executive capacity. Specifically, the 
AAO based its conclusion on the fact that the reasonable needs of the petitioning company would not 
plausibly be met by the services of the beneficiary as president and three subordinate employees. 
On motion, counsel for the petitioner asserts the following: 
Rather than hash over the documents and facts already submitted, we would like to direct 
your attention to the crux of the matter. 
The denial and the dismissal of the appeal were based largely on the appearance that [the 
petitioner] [dlid not have sufficient employees to warrant a person who primarily was 
engaged in managerial or executive duties. 
The company has, in fact, recently employed four additional employees in addition to those 
already hired. Copies of their applications and 1-9's are attached. 
We would contend that the company has sufficient staffing that the services of a manager or 
executive are required. Therefore, we ask that this matter be re-opened and reconsidered at 
this time. 
SRC 03 150 54728 
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The regulation at 8 C.F.R. tj 103.5(a)(2) states, in pertinent part: "A motion to reopen must state the new facts 
to be provided in the reopened proceeding and be supported by affidavits or other documentary evidence." In 
this matter, the petitioner has submitted new facts accompanied by new documentary evidence in support of 
these facts. Therefore, the motion is granted. 
Counsel for the petitioner submits four Employment Eligibility Forms (Form 1-9) for four different persons.' 
Only one, for is dated as of March 9, 2005. The other forms are incomplete. Nevertheless, 
despite the fact that the forms are incomplete, this evidence is insufficient to overcome the basis for the denial 
and to conclude that the beneficiary is a qualified manager or executive based on the petitioner's allegations 
that it has hired new staff. 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). 
The petition in this matter was filed on May 5, 2003. At the time of filing, the petitioner employed the 
beneficiary and three other employees. The director found, and the AAO concurred, that the staffing of the 
petitioner at the time of filing was insufficient to support the beneficiary in a primarily managerial or 
executive capacity. The fact that the petitioner has verified employment of four additional individuals two 
years after the petition was filed is simply insufficient to overcome the basis for the denial in this matter. 
In addition to the motion to reopen, counsel simultaneously filed a motion to reconsider 
The regulation at 8 C.F.R. §103(a)(3) states: 
A motion to reconsider must state the reasons for reconsideration and be supported by 
any pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or [CIS] policy. A motion to reconsider a decision on an application 
or petition must, when filed, also establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. 
Counsel's assertions in the motion to reconsider do not overcome the AAO's finding that the evidence in the 
record of proceeding is insufficient. Counsel cites no pertinent precedent decisions to establish that the decisions 
of the director or the AAO were based on an incorrect application of law or policy. Furthermore, counsel 
1 
 This newly submitted evidence is insufficient to establish the beneficiary's eligibility in this case. However, 
counsel should note for future reference that any Citizenship and Immigration Services (CIS) Forms 1-9 
presented by a petitioner must be accompanied by other evidence to show that these employees have 
commenced work activities. Forms 1-9 verify, at best, that a business has made an effort to ascertain whether 
particular individuals are authorized to work; they do not verify that those individuals have actually begun 
working. See Matter of Ho, 22 I&N Dec. 206, 212 (Assoc. Comm. 1998). In the absence of such evidence as 
pay stubs and payroll records, a petitioner cannot establish that the petitioner employs a subordinate staff that 
would relieve the beneficiary from performing non-qualifying duties. 
SRC 03 150 54728 
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provides no attestation that the evidence in the record at the time of the initial decision contributed to an incorrect 
or erroneous finding by the director. 
Finally, the motion includes no additional evidence to supplement counsel's assertions. The assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
 In addition, simply going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. See 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornrn. 1972). 
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. 9 1361. Here, that burden has not been met. Accordingly, the 
decisions of the director and the AAO will be affirmed and the petition will be denied. 
ORDER: 
 The Motion to Reopen is granted. The Motion to Reconsider is denied. The AAO's decision 
of February 15,2005 is affirmed. The petition is denied. The appeal is dismissed.